Kupr and Department of Primary Industries

Application number:
1997 S0099
Decision date:
Wednesday, Sep 29, 1999
(1999) 5 QAR 140

Kupr and Department of Primary Industries
(1997 S0099, 27 September 1999) 

The applicant sought access to two referee reports from previous supervisors, which were relied upon to the applicant's detriment in a selection process for employment as a Field Officer with the Queensland Boating and Fisheries Patrol.  The respondent agency claimed that the referee reports were exempt matter under s.40(c) and s.46(1) of the FOI Act. 

Substantial parts of the two referee reports had been disclosed to the applicant by a member of the interview panel during the selection process, who felt that the applicant should be given the opportunity to respond to adverse comments by the referees.  Those parts could no longer be considered confidential information vis-à-vis the applicant; however, the Information Commissioner considered whether the disclosure of those parts had been in breach of an equitable obligation of confidence imposed on the respondent, such that equity would restrain further disclosure of the information (in written form) in breach of the obligation. (In circumstances where the grant of an equitable remedy would not be futile, a defendant would not ordinarily be permitted to avoid an equitable obligation where the only asserted ground for avoidance arose by virtue of the defendant's own conduct in breach of the equitable obligation.) 

While it was not clear that an express assurance was given to the referees that their reports would be treated in confidence as against the applicant, the Information Commissioner was satisfied that the comments made when the reports were sought were such as to lead both referees to believe that their reports would be treated in confidence.  However, in the particular circumstances of the case (whereby the selection panel proposed to lower the applicant's position in the order of merit derived from the selection process, by reference to the adverse comments of referees), the Information Commissioner found that the disclosure to the applicant of those parts of the reports was in accordance with the requirements of procedural fairness, and that equity would not restrain disclosure of those parts.  Thus, those parts of the referee reports already orally disclosed to the applicant did not qualify for exemption under s.46(1)(a), nor under s.46(1)(b) of the FOI Act. 

The Information Commissioner found that the small portions of each report that had not been orally disclosed to the applicant retained the necessary quality of confidence to be the subject of an equitable obligation of confidence, and that the requirements of procedural fairness did not necessitate the disclosure of those portions to the applicant.  However, as one of the authors of the reports had withdrawn his objection to the disclosure of his whole report, the Information Commissioner found that that report was not subject to a continuing obligation of confidence so as to qualify for exemption under s.46(l)(a) or s.46(l)(b). The undisclosed portions of the other report were, however, exempt under s.46(l)(a) and s.46(1)(b) of the FOI Act. 

In relation to the application of s.40(c), the Information Commissioner found that the disclosure of the whole of one report and the previously disclosed parts of the other could not reasonably be expected to have a substantial adverse effect on the management or assessment of the respondent’s personnel so as to qualify for exemption under s.40(c) of the FOI Act.