McMahon and Department of Primary Industries and Fisheries

McMahon and Department of Primary Industries and Fisheries
(2003 F0257, 20 June 2006)

The applicant sought access to a large number of documents, some of which had been the subject of previous external reviews, concerning his employment with the Department.

Cabinet and Executive Council matter – application of s.36(1) and s.37(1)

AC Barker found that the Cabinet and Executive Council matter was exempt from disclosure under s.36(1)(g) and s.37(1)(a) of the FOI Act respectively, as it was clearly matter of a kind which fell within the terms of those sections.  The applicant had argued that public interest considerations should be applied to that matter; applying Lindeberg and Department of Families, Youth & Community Care (1997) 4 QAR 14, AC Barker found that it is not possible to do so, having regard to the way in which those sections are framed.

Personal affairs – application of s.44(1)

AC Barker found that the remaining matter in issue was prima facie exempt from disclosure under s.44(1) of the FOI Act, as it would either identify unsuccessful applicants for positions with the Department or (in the case of a few documents) disclose information concerning the personal affairs of third parties.  Applying the public interest balancing test, AC Barker found that there were no public interests of sufficient weight which would be served by disclosure of the matter in issue to outweigh the public interest in non-disclosure which is inherent in s.44(1).

'Sufficiency of search' for documents; discretion not to review

The applicant raised 'sufficiency of search' issues in respect of various categories of documents.  AC Barker exercised the discretion, conferred by s.77(1) of the FOI Act, not to review 'missing' documents which had been the subject of previous external reviews.  With respect to the remaining documents AC Barker found that, although further documents once existed in the possession or control of the Department, and some documents should still exist, they cannot now be located.  AC Barker also found that the searches and inquiries by the Department to locate such documents had been reasonable in all the circumstances of the case.