Holt; Reeves and Education Queensland; McNaught (Third Party); Diery (Fourth Party); Muller (Fifth Party)

Holt; Reeves and Education Queensland; McNaught (Third Party); Diery (Fourth Party); Muller (Fifth Party)
(1995 S0101, 20 April 1998) 

The matter in issue in this case comprised audiotapes, and written notes, of a meeting between a school principal and parents concerning teacher behaviour at the school. There were two issues for the Information Commissioner's consideration: 

·       whether the audiotapes were "documents of an agency" as defined in s.7 of the FOI Act, and hence subject to the application of the FOI Act; and

·       whether the tapes and notes comprised exempt matter under s.46(1) of the FOI Act. 

In relation to the first issue, the Information Commissioner discussed the evidence relating to ownership of the tapes and the circumstances in which, and the purpose for which, they passed into the possession of the respondent. The Information Commissioner also considered the meaning of the word "possession" as it appears in the definition of "document of an agency" in s.7 of the FOI Act.  The Information Commissioner decided that it was clear that the tapes were in the physical possession of the respondent, and that they were received by the principal in the performance of his duties as principal of the school. The Information Commissioner found that regardless of who owned the tapes, they were presently "documents of an agency" within the meaning of that term as defined in s.7 of the FOI Act, and that they were subject to the application of the FOI Act for so long as they remained in the possession of the respondent. 

In relation to the second issue, the Information Commissioner applied the principles in B and Brisbane North Regional Health Authority(1994) 1 QAR 279 in deciding that the matter in issue satisfied all of the criteria necessary to found an action in equity for breach of confidence. The Information Commissioner found that it was exempt matter under s.46(1)(a) of the FOI Act. 

At paragraphs 49-53 of the Information Commissioner's reasons for decision, the Information Commissioner made some observations as to how the new s.15(1) and s.16(2) of the Public Service Regulation 1997 Qld might affect the application of s.46(1)(a) of the FOI Act to documents recording complaints against, or documents created in the course of a grievance or disciplinary procedure against, an employee of an agency which is subject to the application of the Public Service Regulation 1997. The Information Commissioner expressed the view that it is arguable that it is now impossible for an agency subject to the application of the Public Service Regulation 1997 to receive information about an employee's performance, that could reasonably be considered to be detrimental to the employee's interests, on the basis of any agreement or understanding that it would be treated in confidence as against the employee.