25 February 2011
Section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(a) and 48 of the Right to Information Act 2009 (Qld) – exempt information – schedule 3 section 10(1)(a)
The applicant was a former employee of the Queensland Police Service (QPS) who sought access to a range of documents about him from QPS under the Information Privacy Act 2009 (Qld) (IP Act).
QPS refused access to the documents under section 67 of the IP Act and section 47(3)(a) of the Right to Information Act 2009 (Qld) (RTI Act)on the basis that:
· the documents related to matters that were under investigation
· disclosure of the documents could reasonably be expected to prejudice the investigation of a contravention or possible contravention of the law in a particular case; and
· the documents comprise exempt information under section 48 and schedule 3 section 10(1)(a) and section 10(1)(e) of the RTI Act.
The Right to Information Commissioner (RTI Commissioner) considered the application of sections 47(3)(a), 48 and schedule 3 section 10(1)(a) to the documents and particularly whether:
· there was an investigation of a contravention or possible contravention of the law (including revenue law) in a particular case; and
· there was a reasonable expectation of prejudice to that investigation.
In relation to the first requirement, the RTI Commissioner noted that schedule 3 section 10(8) of the RTI Act provides that a reference in that section to a contravention or possible contravention of the law includes a reference to misconduct or possible misconduct under the Crime and Misconduct Act 2001 (Qld) (CM Act) and decided that:
· the applicant was the subject of several internal QPS investigations relating to activities undertaken during his employment as a police officer
· the investigations related to matters which, if proven, could amount to misconduct as that term is defined by the CM Act and result in formal disciplinary hearings
· there was an investigation of a contravention or possible contravention of the law; and
· the first requirement was satisfied.
In relation to the second requirement, QPS explained that the documents were potentially pivotal to the investigation and their premature release had the propensity to severely jeopardise the integrity of the entire investigation. Based on QPS’ submissions and the documents, the RTI Commissioner decided that:
· release of the documents before the investigations were finalised could prejudice the investigations
· in the circumstances, the expectation was reasonably based; and
· the second requirement was satisfied.
Accordingly, the RTI Commissioner affirmed QPS’ decision to refuse access to the documents under sections 47(3)(a) and 48 of the RTI Act on the basis that they comprise exempt information under section 48 and schedule 3 section 10(1)(a) of the RTI Act.