McMahon and Department of Natural Resources

McMahon and Department of Primary Industries
(1996 S0169, 26 August 1999)

McMahon and Department of Natural Resources
(1997 S0048, 26 August 1999) 

In both cases, the applicant sought access to information relating to certain position evaluations, and audits of evaluations, using the JEMS methodology, carried out both internally and externally by a firm of consultants engaged by the respondent agencies. 

The main issue for the Information Commissioner's determination was whether documents in the possession of the consultants were 'documents of the agency', as defined by s.7 of the FOI Act, having regard to the principles established in the Commissioner's decision in Price and Nominal Defendant (1999) 5 QAR 80. 

The Information Commissioner found that there was no express contractual term in any contracts between the consultants and the respondents which gave the respondents a right or entitlement to obtain possession of any working documents created by the consultants in the course of preparing their reports or assessments.

The Information Commissioner also found that such a term was not necessary to give business efficacy to any such contracts, and hence that there was no implied contractual term of that kind.  The Information Commissioner found that documents created by the consultants in the course of preparing position evaluations or audits of positions were documents created by the consultants for their own benefit to assist in completing the task they had contracted to undertake, and were not 'documents of the agency' for the purposes of the FOI Act.