LKJ and Department of Police; A Federal Member of Parliament (Third Party)
LKJ and Queensland Police Service, A Federal Member of Parliament (Third party)
(210183, 2 June 2008)
Section 42(1)(f), 41(1), 44(1) and 42(1)(ca)
The applicant sought access to all documents retained by the QPS in relation to a phone call it had received from the electorate office of a Federal Member of Parliament on a particular date or any communications received from that office since that date.
The QPS decided to neither confirm nor deny the existence of documents under section 35 of the Freedom of Information Act 1992 (Qld) (FOI Act) and stated that in the event that documents responsive to the application were to exist, they would qualify for full exemption under section 42 of the FOI Act. This decision was upheld on internal review.
During the course of the review, the QPS advised that it no longer wished to maintain its claim under section 35. As a consequence, three documents were able to be identified as being responsive to the applicant’s freedom of information application. During the course of the review, some issues were informally resolved and claims for exemption withdrawn. Prior to the conclusion of the review, the QPS confirmed it only wished to maintain its claim that document 1 (a warning on a QPS database) qualified for exemption under sections 41(1), 42(1)(f) and 42(1)(ca) of the FOI Act and support the third party’s claim that the names of electorate office staff in documents 2 and 3 qualified for exemption under section 44(1) of the FOI Act.
In respect of the QPS’ claims for exemption under section 42 of the FOI Act, First Assistant Commissioner Rangihaeata found that having regard to the nature of the information contained within document 1, its disclosure could not be reasonably be expected to prejudice the maintenance and enforcement of the lawful system under section 42(1)(f) of the FOI Act nor result in a person being subjected to a serious act of harassment or intimidation for the purposes of section 42(1)(ca) of the FOI Act. In making this finding, First Assistant Commissioner Rangihaeata referred to the decision of Price and Queensland Police Service (2005 FO442, 29 June 2007) and considered the extent of information which had previously been released to the applicant, which showed that the applicant knew of the system used by the QPS and what information it was likely to have recorded.
In relation to the QPS’ claim under section 41(1) of the FOI Act, First Assistant Commissioner Rangihaeata decided that whilst it was unclear whether the content of document 1 could be properly characterised as comprising an opinion, advice or recommendation, or a consultation or deliberation directed at the QPS’ deliberative processes, the QPS had not established that specific and tangible harm (of sufficient gravity to outweigh competing public interest considerations favouring disclosure) to an identifiable public interest would result from the disclosure of document 1.
In deciding whether section 44(1) of the FOI Act applied to names and other identifying information of electorate office staff as they appear in documents 2 and 3, First Assistant Commissioner Rangihaeata found that whilst the complaint made by the electorate office staff had been made during the course of their employment, it could still be properly categorised as their personal affairs, because it had arisen out of concerns for the personal safety of those involved. In applying the public interest balancing test, First Assistant Commissioner Rangihaeata was unable to identify any public interest considerations favouring release of the names and other identifying information of electorate office staff as they appear in documents 2 and 3 to outweigh the strong public interest considerations against disclosure in this instance.
In setting aside the decision of the QPS, First Assistant Commissioner Rangihaeata decided that only the names and other identifying information of electorate office staff as they appear in documents 2 and 3 qualified for exemption under section 44(1) of the FOI Act.