Johnson and Department of Transport; Department of Public Works (Third Party)

Application number:
2002 S0049
Decision date:
Saturday, May 01, 2004
(2004) 6 QAR 307

Johnson and Queensland Transport; Department of Public Works (Third Party)
(2002 S0049, 5 January 2004)

The matter in issue comprised segments of three documents relating to the Lang Park redevelopment.  The third party claimed that some matter in issue in document (i) was exempt from disclosure to the applicant under s.41(1) of the FOI Act, and that all matter in issue in documents (i), (ii) and (iii) was exempt from disclosure to the applicant under s.45(1)(c) of the FOI Act. 

I was satisfied that the matter in issue from document (i) answered the general description in s.41(1)(a) of the FOI Act, being opinion or advice sought from the respondent by the third party's Infrastructure and Major Projects division, for the purposes of the latter's deliberative processes.  However, I also considered that the opinion and advice was sought from the Director, Transport Planning – SEQ, because of his expertise in matters of transport infrastructure planning and analysis.  I therefore found that the matter in question consisted of expert opinion or analysis, plus some factual matter, and decided that it was excluded from eligibility for exemption under s.41(1), by the operation s.41(2)(b) and s.41(2)(c) of the FOI Act. 

I went on to record my views on the application of the public interest balancing test contained in s.41(1) to the matter in issue in document (i).  Although the major infrastructure components of the Lang Park redevelopment had been completed, construction of "Infrastructure East" had been deferred by the government pending further advice from the City West Task Force (a joint initiative of the Queensland government and the Brisbane City Council, responsible for producing and implementing a "master plan" for infrastructure and other development in the area immediately west of Brisbane's central business district, including the Lang Park precinct.).  The thrust of the third party's submissions was that the public interest weighed against disclosure of the matter remaining in issue because the City West Task Force, of which the Director General of Public Works was a member, was still deliberating about the development plan for "Infrastructure East".  Disclosure of the matter in issue (which dated from the early planning stages of the Lang Park redevelopment) would confuse and mislead the public, because it did not represent current thinking of the City West Task Force.  In addition, premature disclosure of the matter in issue would prejudice the Task Force's deliberations by diverting staff from their functions to deal with undue pressure from specific interest groups seeking to influence the Task Force's deliberations. 

I was not satisfied that the matter in issue was capable, if disclosed, of confusing or misleading the public to an extent that warranted a finding that its disclosure would, on balance, be contrary to the public interest.  I was also not satisfied that disclosure of the matter in issue was liable to excite activity by speculators and special interest groups to the prejudicial extent suggested by the third party. 

I observed that disclosure of preliminary documents relating to policy or planning proposals in development is essential if the FOI Act is to achieve one of its major objects, i.e., promoting informed public participation in the processes of government.  Moreover, there was a strong public interest in the accountability of the third party (and other government agencies which had contributed to the project), and in informing the community generally of details of planning proposals that had been considered for Infrastructure East, given the importance of the Lang Park precinct redevelopment for the community as a whole, its potential impact upon the community, and its significant cost implications for the taxpayers of Queensland. 

With respect to s.45(1)(c), I did not accept that the matter remaining in issue in documents (i), (ii) and (iii) could properly be characterised as information concerning the business, commercial or financial affairs of the third party.  I said that an agency will have business or commercial affairs within the terms of s.45(1)(c) if, and only to the extent that, it is engaged in a business undertaking carried on in an organised way for the purpose of generating income or profits, or is otherwise engaged in an ongoing operation involving the provision of goods or services on commercial terms for the purpose of generating income or profits. 

There was no indication in the relevant material before me that the third party's Infrastructure and Major Projects Division operated as a commercialised business unit, or that it charged fees for the services it provided to other government agencies in acting as Project Director of the City West development area.  The Division did not appear to generate income from charging 'clients' for the performance of its services.  In acting as Project Director in the terms described in its submissions, the third party was simply discharging the duties and responsibilities allocated to it by government, and funded out of consolidated revenue. 

In any event, I was not satisfied that there was a reasonable basis for expecting disclosure of the matter in issue to have the adverse effects asserted by the third party under s.45(1)(c). Even if there were, the balance of public interest clearly favoured disclosure for the reasons referred to in the context of the discussion of the application of s.41(1). 

Accordingly, I decided that none of the matter in issue qualified for exemption under s.41(1) or s.45(1)(c) of the FOI Act.