LUE and Department of Police
(210923, 24 March 2010)
Section 44(1) of the Freedom of Information Act 1992 – matter affecting personal affairs
The applicant sought access to information from the Department of Police (also known as Queensland Police Service) (QPS) about her deceased brother (the Deceased).
The applicant submitted that:
· It is unacceptable that the Deceased died as a result of domestic violence and that access to the requested documents was refused.
· Her family believes it is in the public interest to be informed about domestic violence including, but not limited to, how the Queensland Government documents, records, maintains and releases information in relation to domestic violence.
The matter in issue was broadly categorised as:
· Category B matter – QPS’ procedural records related to the Deceased’s death
· Category C matter – QPS’ procedural records relating to the Deceased’s dealings with QPS prior to his death.
Personal affairs question
After considering the principles in Stewart and Department of Transport (Stewart) (1993) 1 QAR 227, Assistant Commissioner Henry found that the Category B and C information:
· fell within the meaning of the phrase ‘personal affairs of a person’ as it related to the private aspects of the Deceased’s life (and the lives of other individuals in some cases)
· was prima facie exempt from disclosure under section 44(1) of the FOI Act subject to the public interest balancing test.
The Assistant Commissioner also noted that:
· an applicant’s familial relationship to another person does not confer any entitlement to be given access to information concerning the personal affairs of that other person (referring to FMG and Queensland Police Service (Unreported, Queensland Information Commissioner, 24 April 1998) at paragraph 22)
· accordingly, the fact that the applicant was the Deceased’s sister and sought access to the information on behalf of her family, did not automatically entitle the applicant to access information concerning the Deceased’s personal affairs.
Public interest question
In the circumstances, Assistant Commissioner Henry considered that the following public interest considerations were relevant:
· a justifiable need for the applicant to know relevant information which was more compelling than for other members of the public
· enhancing the accountability of QPS in relation to its dealings with the Deceased
· protecting the privacy of other individuals.
Justifiable need to know
In considering whether there was a justifiable need for the applicant to know the information which was more compelling than for other members of the public, Assistant Commissioner Henry considered the principles in Pemberton and The University of Queensland (1994) 2 QAR 293 and the applicant’s submissions and decided that:
· To the extent that the relevant information related to information about other people, such as:
o the steps taken to notify another individual about the Deceased’s death
o the date of birth, residential addresses, private contact numbers and passport numbers of other individuals
no justifiable need to know arose as this information was not of a type which could further the applicant’s understanding of the circumstances surrounding the Deceased’s death. This consideration was afforded no weight in the circumstances.
· The remaining information which comprised QPS’ procedural records relating to the Deceased’s death (Category B matter) and the Deceased’s dealings with QPS prior to his death (Category C):
o was limited to QPS’ procedural records in relation to the Deceased’s death and his prior dealings with QPS
o was not of a type which evidenced a link between the circumstances surrounding the Deceased’s death and issues of domestic violence.
This public interest consideration was afforded limited weight in the circumstances.
Accountability of QPS for the performance of its functions
Assistant Commissioner Henry noted that:
· facilitating the accountability of government is a public interest consideration that is recognised in section 5 of the FOI Act
· the relevant question is whether disclosure of the matter in issue would allow interested members of the public a better understanding of action taken, or proposed to be taken, by government, and enable them to better scrutinise and assess the performance of government
· it must be determined whether disclosure of the particular matter in issue would materially enhance that public interest consideration to an extent that warrants it being accorded significant weight in favour of disclosure.
Based on the applicant’s submissions, the Assistant Commissioner acknowledged that there was a public interest in:
· QPS’ accountability for its handling of domestic violence matters involving complaints from male victims as the system is largely geared towards female victims
· assessing the thoroughness and appropriateness of the response and support provided to victims of domestic violence.
Given the applicant’s submissions, Assistant Commissioner Henry carefully considered the content of the Category B and C matter and found that:
· the matter in issue did not evidence a link between the circumstances of the Deceased’s death and domestic violence
· disclosure of this information would not materially enhance QPS’ accountability in the way the applicant contemplated
· this public interest consideration should be afforded limited weight in the circumstances.
Protecting the privacy of other individuals
In relation to the public interest in protecting the privacy of other individuals, Assistant Commissioner Henry decided that:
· this public interest consideration is a strong one, which will ordinarily be deserving of considerable weight in the application of a public interest balancing test
· the public interest in protecting the privacy of other individuals in this case should be afforded significant weight as the matter in issue concerned highly sensitive and personal information, did not directly relate to the applicant and was information concerning the personal affairs of other individuals
· this public interest consideration favouring non disclosure should be afforded significant weight in the circumstances.
After carefully weighing all of the considerations set out above, Assistant Commissioner Henry found that the public interest considerations favouring disclosure did not outweigh or override the public interest in protecting the privacy of other individuals and the remaining matter in issue was exempt from disclosure under section 44(1) of the FOI Act.