McCann and Queensland Police Service
(1993 S0174, 10 July 1997)
Re McCann was one of a group of four key test cases published between March and August 1997 which explored the application of exemption provisions in the FOI Act to documents created in the course of law enforcement/disciplinary investigations, the other cases being:
· Prisoners' Legal Service Inc and Queensland Corrective Services Commission (1997) 3 QAR 503, 27 March 1997;
· Godwin and Queensland Police Service(1997) 4 QAR 70
· Griffith and Queensland Police Service; Thorpe (Third Party)(1997) 4 QAR 110.
The applicant in McCann and Queensland Police Service(1997) 4 QAR 30was a serving police officer who sought access to documents concerning an investigation by the Queensland Police Service (the QPS) of the applicant's conduct, when the applicant was Officer in Charge of a rural police station. Following the investigation, the applicant had been charged with assault, and with a firearms offence, and the charges had been dealt with in the Magistrates Court. During the course of the external review, the QPS agreed to disclose documents related to those charges. The documents remaining in issue concerned other complaints against the applicant, which were investigated but did not result in the laying of charges. Information had been obtained by the police investigator from other serving police officers, from civilian administrative staff employed by the QPS, and from members of the public.
The significance of the case lies in its analysis of the circumstances in which those various classes of witnesses might be properly found to have given information to police investigators pursuant to an implicit mutual understanding that their identities, and/or the information they provided, was to be treated in confidence, and in its analysis of the nature and operation of any necessarily qualifications or exceptions to such an understanding. The case includes analysis of the different considerations pertaining to informers, as opposed to mere witnesses, and police officer witnesses (who can be compelled to answer questions by an investigator) as opposed to civilian witnesses.
At paragraph 58 of the reasons for decision, the Information Commissioner observed that there would ordinarily be implicitly authorised exceptions to any express or implicit mutual understanding that the identity of, or the information given by, a witness had been communicated in confidence, namely:
(a) where selective disclosure is considered necessary for the more effective conduct of relevant investigations;
(b) where the investigation results in the laying of charges, which are defended, and in accordance with the applicable rules or practice, the prosecutor must disclose to the person charged the evidence relied upon to support the charges;
(c) where selective disclosure is considered necessary:
(i) for keeping a complainant, especially a victim of crime, informed of the progress of the investigation; and
(ii) (in cases where the investigation results in no formal action being taken) for giving an account of the investigation, and the reasons for its outcome, to a complainant, especially a victim of crime.
In relation to the third element of the test for exemption under s.46(1)(b), ie prejudice to the future supply of like information to the QPS, the Information Commissioner noted that there were difficulties in establishing that element, where the sources of information are police officers or civilian employees of the QPS, who are legally obliged to provide information to their employer about a breach of discipline by a police officer. However, the Information Commissioner also discussed the circumstances in which the identities of, or information provided by, witnesses who are police officers or civilian employees of the QPS, might qualify for exemption from disclosure under s.40(c) of the FOI Act (on the basis that disclosure could reasonably be expected to have a substantial adverse effect on the management or assessment by the QPS of its personnel).
The Information Commissioner also assessed the application of s.40(c), s.41(1) and s.42(1)(e) of the FOI Act to the conclusions and recommendations in the investigating officer's reports on his investigations of the complaints against the applicant.