Haneef and Department of Police
(210751, 24 August 2010)
The applicant applied for access to transcripts of conversations involving him that were recorded while he was in custody.
The Department of Police identified one transcript that was responsive to the application – a transcript of a conversation between the applicant and the Indian Consul General.
Sufficiency of search
The Information Commissioner was satisfied that a conversation between the applicant and his wife was recorded – however, it was recorded by an officer of the Australian Federal Police and accordingly is not in the possession of the Queensland Police Service (QPS). Further, the Information Commissioner found that it was likely that a further conversation between the applicant and the Indian Consul General was similarly recorded – however, it is also not in the possession of the QPS.
Section 38(a)
On consideration of the circumstances in which the transcript came into existence, the Information Commissioner found that disclosure of the transcript could reasonably be expected to cause damage to relations between the State of Queensland and the Indian government. On this basis, the Information Commissioner was satisfied that section 38(a) of the Freedom of Information Act 1992 (Qld) (FOI Act) prima facie applies to exempt the transcript from disclosure.
Section 38(b)
The Information Commissioner found that those parts of the transcript that record the words of the Indian Consul General were communicated in confidence by or on behalf of another government, whereas, in these particular circumstances, those parts of the transcript that record the words of the applicant were not so communicated. Accordingly, the Information Commissioner was satisfied that section 38(b) of the FOI Act prima facie applies to exempt the words of the Indian Consul General in the transcript from disclosure (but not the words of the applicant).
Public interest test
As the Information Commission was satisfied that section 38(a) of the FOI Act prima facie applies to exempt all of the transcript from disclosure, and section 38(b) of the FOI Act prima facie applies to exempt the words of the Indian Consul General in the transcript, the Information Commissioner was required to apply the public interest test in section 38 of the FOI Act and determine whether disclosure of the transcript ‘would, on balance, be in the public interest’.
The Information Commissioner observed that the public interest factors in favour of disclosure and non-disclosure were finely balanced. She found that factors favouring disclosure related to transparency, accountability, the proper enforcement of the criminal law and the maintenance of public confidence in the QPS should be accorded significant weight. However, having particular regard to the submissions of the Department of Foreign Affairs and Trade (DFAT), and the objections of the Indian High Commission as communicated to DFAT, the Information Commissioner found that, on balance, factors favouring non-disclosure of the transcript, to avoid damage or further damage to relevant relationships, outweighed the significant public interest factors favouring disclosure.
