Mewburn and Department of Natural Resources and Mines [2016] QICmr 31 (19 August 2016)

Application number:
312214
Applicant:
Mewburn
Respondent:
Department of Natural Resources and Mines
Decision date:
Friday, Aug 19, 2016
Catchwords:

ADMINISTRATIVE LAW - RIGHT TO INFORMATION - SCOPE OF ACCESS APPLICATION - IRRELEVANT INFORMATION - request for information relating to the public service employment history of current and past agency officers - applicant and agency engaged in negotiations to narrow the application scope - applicant agreed to exclude certain categories of information - whether some of the located documents fall outside the narrowed scope - whether information may be deleted on the basis it is irrelevant to the terms of the application - section 73 of the Right to Information Act 2009 (Qld)

ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - request for information relating to the public service employment history of current and past agency officers - whether information is the routine personal work information of public servants - level of privacy and public interest harm balanced against accountability and transparency - whether disclosure would, on balance, be contrary to the public interest - whether access may be refused under section 47(3)(b) of the Right to Information Act 2009 (Qld)

ADMINISTRATIVE LAW - RIGHT TO INFORMATION - CONSULTATION WITH RELEVANT THIRD PARTIES - routine personal work information of public servants - whether disclosure could reasonably be expected to be of concern to the relevant individuals - whether third party consultation is required under section 37 of the Right to Information Act 2009 (Qld)

REASONS FOR DECISION

Summary

1. The applicant applied to the Department of Natural Resources and Mines (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to a broad range of information relating to the public service employment history of eight named individuals, either past or current officers of the Department, covering a 24 year period.

2. The Department initially considered that the work involved in processing the application would substantially and unreasonably divert its resources and proceeded to negotiate with the applicant to narrow the scope of the application, as required under section 42 of the RTI Act. The applicant agreed to exclude certain categories of documents (Narrowed Scope). However, the Department maintained its view on the resources required to process the application and sought to issue a decision refusing to deal with the application.1 The Department did not however, make its decision within the applicable processing period2 and was therefore, taken to have made a decision refusing access to all of the information (Deemed Decision).3

3. The applicant applied to the Office of the Information Commissioner (OIC) for external review.  In assessing the documents located by the Department, OIC identified that a significant number were dated outside the application date range and that certain information fell outside the terms of the Narrowed Scope.  While the Department accepted that some information may be disclosed to the applicant, it also submitted that third party consultation should be conducted with the eight individuals named in the application.  For the reasons explained in this decision, I have found that certain information may be disclosed under the RTI Act.  In respect of this information, I am satisfied that its disclosure may not reasonably be expected to be of concern to the named individuals as it is their routine personal work (public service) information, some of which has been published in the Queensland Government Gazette.

4. For the reasons set out below, I set aside the Deemed Decision and find that:

  • some entire pages fall outside the Narrowed Scope and are excluded on that basis
  • certain information is irrelevant to the terms of the Narrowed Scope and may be deleted under section 73 of the RTI Act
  • disclosure of certain information would, on balance, be contrary to the public interest and therefore, access may be refused to it under section 47(3)(b) of the RTI Act; and
  • on balance, the public interest favours disclosure of the remaining information and therefore, there is no basis to refuse access to it under the RTI Act, nor is there any requirement to consult with any third parties in relation to its disclosure.

5. Appendix 1 lists each page located by the Department and the applicable finding on disclosure I have made in this decision.

Background

6. As shown in Appendix 2, the access application was made on 24 June 2014.  I acknowledge that a significant period of time has elapsed since the original application was first made to the Department.  This can be attributed to a series of complex issues which arose during the processing of the application and the external review process, in addition to a three month suspension of the external review, due to the applicant’s repeated requests for extensions of time.

7. The significant steps taken during the application and review are set out in Appendix 2 and explained in more detail below, to provide context of the history of this matter.

8. The Department issued a notice to the applicant under section 42 of the RTI Act of its intention to refuse to deal with the application under section 41 of the RTI Act and invited the applicant to either confirm or narrow the scope of the access application.4 The applicant agreed to narrow the scope by excluding certain categories of documents, ie. resulting in the Narrowed Scope.5 The Department confirmed the Narrowed Scope and notified the applicant that it would still be a substantial and unreasonable diversion of its resources and suggested ways for the applicant to further narrow the scope.6 The applicant did not agree to further narrow the scope and requested that the Department issue a decision.7 The Department purported to issue a decision refusing to deal with the application on the basis that it would substantially and unreasonably divert its resources.8

9. On external review, the Department initially maintained its position that the work involved in processing the application would substantially and unreasonably divert its resources and provided extensive submissions to OIC, including several revised processing estimates.9 Generally, the Department submitted that its processing estimates rarely reflect the actual time taken to deal with an application, but rather reflect the times and subsequent charges that are considered reasonable to pass on to the applicant.10 The Department also sought to rely on its ‘internal processing threshold’, which it submitted has been established based on the number and complexity of access applications received by the unit, the workload of delegated officers, the ongoing requirement/ability to meet statutory timeframes and relevant case law in this area.

10. OIC gave the applicant several opportunities to respond to the Department’s revised processing estimates.11 In accordance with its obligation to identify opportunities for settlement of the external review,12 OIC also asked the applicant to consider informally resolving the review, by electing to make a fresh application, on narrower terms.  The applicant did not agree to OIC’s proposal.  In November 2015, the applicant asked for several extensions of time within which to provide submissions and provided evidence of her personal circumstances to support her request.  The Right to Information Commissioner suspended the review until March 2016.13

11. A significant proportion of the Department’s processing estimate was attributed to consultation with third parties.14 In view of this, OIC had originally asked the Department to provide copies of the documents located on the application for the purpose of assessing the estimated time required for third party consultation.  However, in conducting this assessment, it became apparent that a significant number of the documents fell outside the scope of the application and that access could plainly be refused to sensitive personal information of other individuals, without consultation.

12. Ultimately, OIC did not accept that the requirements for establishing the substantial and unreasonable threshold were met by the Department in this case.  Ordinarily, in these circumstances, OIC would seek to informally resolve a review by asking the agency to consider processing the application afresh.  However, the Department was not agreeable to this approach and OIC does not have the power to formally remit an application back to an agency under the RTI Act.  Accordingly, and given that the practical effect of the Deemed Decision was such that the Department was taken to have refused access to the information, the issue for OIC to determine on external review became one of refusal of access.15

13. Both the applicant and agency provided submissions to OIC on the issue of refusal of access.  The applicant insists that further information falls within the Narrowed Scope.16 The Department made some submissions on the issue of scope, but primarily focused on the requirement to consult with the individuals named in the application.17

14. On several occasions, the applicant asked OIC to provide her with copies of submissions made by the Department to OIC during the external review.  OIC advised the applicant18 that, taking into account the procedural requirements of sections 95 and 97 of the RTI Act, it was not necessary to provide the applicant with a complete copy of the Department’s submissions to afford the applicant procedural fairness.  I have ensured that anything that has been put to OIC and which I have taken into account in making this decision has been conveyed to the applicant.  During the review process, OIC advised the applicant of any preliminary view that it had formed, even when the view was not adverse to her interests, and ensured that she was appraised of the evidence on which OIC’s view was based. In the circumstances, I am satisfied that the applicant has been afforded procedural fairness in this review.19

Reviewable decision

15. The decision under review is the decision deemed to have been made by the Department, on 14 October 2014, refusing access to the information requested by the applicant.

Evidence considered

16. Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and Appendices).

Information in issue

17. The Information in Issue comprises 926 pages which the Department located in processing the access application.

18. Generally, the Information in Issue comprises public service employment history information about the eight current and past officers named in the access application and includes position commencement and cessation dates, position locations, secondment arrangements, higher duties information (including time periods), employment conditions and recruitment process documentation.  The information appears in letters, emails, internal memoranda, spreadsheets, human resources records, gazetted notices and other Department records.

Issues for determination

19. In this review, the primary issue for determination is whether access may be refused to the Information in Issue, on any grounds set out in section 47(3) of the RTI Act.  In examining this issue, the following questions arise for consideration:

a) does any information fall outside, or is it irrelevant to, the Narrowed Scope?
b) may access be refused to any information under section 47(3)(b) of the RTI Act on the basis that disclosure would, on balance, be contrary to the public interest?; and
c) is it reasonable to expect that the individuals named in the application would be concerned about disclosure of the information identified for release?

20. As demonstrated in Appendix 2 and the discussion above under the heading ‘Background’, a significant period of time during the external review was devoted to assessing the Department’s substantial and unreasonable diversion of resources claim.  However, in the particular circumstances of this case,20 it is not necessary to make a finding on this issue.  Therefore, in making my findings below, I have only considered the submissions made by the applicant and the Department to the extent they relate to the refusal of access issues, set out at paragraph 19 above.

(a)  Does any information fall outside, or is it irrelevant to, the Narrowed Scope?

21. Yes. For the reasons set out below.

Relevant law

22. The general rule is that the scope of an RTI Act access application should not be interpreted narrowly or with the same degree of precision as a piece of legislation.21 However, an access application must give sufficient information concerning the document(s) sought to enable a responsible officer of the agency to locate the relevant documents.22 There are sound practical reasons for the documents sought being clearly and unambiguously identified, including that the terms of an application set the parameters for an agency’s response and the direction of an agency’s search efforts.23

23. It is not possible for an applicant to unilaterally extend the terms of an access application at the external review stage.24 The terms in which the access application was framed will already have set the parameters for an agency's response, and in particular set the direction of the agency's search efforts to locate all documents of the agency which fall within the terms of the access application.25 When narrowing of an access application has occurred, the reviewable decision relates to the narrowed access application, rather than the original access application and it is not possible for OIC to interpret the narrowed application more broadly than its terms.26

24. In assessing whether documents fall within the scope of an application, it will be generally be fairly apparent if a document is outside the relevant date range or relates to subject matter/individual(s) with no connection to the application.  In practice, the term ‘out of scope’ is used to exclude whole documents. Where parts of a document do not relate to the terms of an application, section 73 of the RTI Act operates to allow deletion of the information.  This is not a ground for refusal of access, but a mechanism to allow irrelevant information to be deleted from documents which are otherwise identified for disclosure.  In deciding whether information is irrelevant, a decision-maker should consider whether the information has any bearing upon, or is pertinent to, the terms of the application.27

Findings

25. The applicant originally applied to the Department for access to the following information:

All employment tenures (employment history) including any disciplinary action, positions held including dates, promotions, position or job title changes etc. location of the positions, qualifications and cessation dates for the following officers - [eight named individuals]
Date range: 1990 to June 2014.

26. Following extensive negotiations with the Department about scope, the applicant agreed to specifically exclude the following information from the above scope:

  • leave calculations and pay related information except higher duties appointment letters
  • training and development information (other than qualifications)
  • performance planning and review information other than disciplinary action for [three named individuals] between 1999 and 2002
  • duplicates of documents
  • leave applications.

27. The applicant submits28 that the following information directly relates to the ‘employment tenures’ of the relevant officers and that therefore, it is within the scope of her application:

  • reasons for individuals being appointed to, moving to or leaving from different positions or acting in higher duties; and
  • position description documents.

28. The Department submits there were difficulties in ‘getting the applicant to define her understanding of the term tenure and to clarify the documents requested’ and that a ‘broad interpretation’ was indicated by the applicant.29

29. As set out above, the Department engaged in extensive negotiations with the applicant in relation to the scope of the application.  The applicant was given several opportunities to specify particular documents of interest to her.  I have carefully considered the emails exchanged between the applicant and agency on this issue and am satisfied that the applicant did not, at any time, expressly seek to include the above categories of documents within the scope, despite being given ample opportunity to do so.

30. On external review, the applicant submits that she seeks information which identifies ‘which decision maker, made which decision whilst in which position and at which time’.30 I consider this submission gives context to the scope of the application in that it tends to indicate that the applicant was particularly focused on establishing which position was held by each of the named officers, during the relevant time period.  I am not persuaded that the scope should be interpreted to include the reasons behind the officers’ appointments or the generic information appearing in position description documents.

31. On the basis of the above, I am satisfied that:

(a) the following information falls outside the Narrowed Scope:

  • information which predates 1 January 1990
  • pay related information (which includes salary details, employee allowances, employment expenses or entitlements, position classifications or levels, internal changes or proposed changes to position classifications or levels and internal apportionment of salary)
  • leave applications and associated leave reasons/details
  • training information; and
  • duplicate documents.

(b) the following information is irrelevant to the terms of the Narrowed Scope:

  • reasons for individuals being appointed to, moving to or leaving from different positions or acting in higher duties
  • names of Department officers whose positions are being relieved, except where they are the individuals specified in the access application
  • position description documents
  • training information
  • employment related information about individuals other than those specified in the access application (including names and personal details of other individuals considered in position selection processes); and
  • information which otherwise does not relate to the requested employment tenure information.

32. In view of the above, I find that the information listed above at (a) is outside the scope of the application and can be excluded on that basis, and the information at (b) may be deleted under section 73 of the RTI Act.31

(b)  May access be refused to any information under section 47(3)(b) of the RTI Act?

33. Yes.  I am satisfied that the disclosure of certain information would, on balance, be contrary to the public interest, for the reasons set out below.

Relevant law

34. Access to information may be refused where disclosure would, on balance, be contrary to the public interest.32 The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens.  This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests.

35. The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest33 and explains the steps that a decision-maker must take34 in deciding the public interest as follows:

  • identify any irrelevant factors and disregard them
  • identify relevant public interest factors favouring disclosure and nondisclosure
  • balance the relevant factors favouring disclosure and nondisclosure; and
  • decide whether disclosure of the information would, on balance, be contrary to the public interest.

Findings

36. In the reasons that follow, I have dealt with the Information in Issue in two separate categories, as set out in the table below.

Category Description of information
Third Party Information Employee/personnel/payroll numbers, dates of birth, residential contact details, family and health information, signatures, contents of Curriculum Vitae (other than qualifications directly related to positions held), answers to selection criteria, transcripts of academic results, signatures of other individuals, mobile telephone numbers of Department staff, officers’ middle names (except where such names appear in gazette notices), officers’ nicknames, internal file references (in correspondence where it is unclear if those references are to officers’ payroll numbers) and information about intended, rather than actual, commencement or exit dates.
Remaining Information Information about the start and end dates of the various positions held by the officers, periods of higher duties and qualifications held by the officers for positions.

37. In summary, I have found that disclosure of the Third Party Information would, on balance, be contrary to the public interest and therefore, access may be refused to that information under section 47(3)(b) of the RTI Act.  However, I consider the balance of the public interest favours disclosure of the Remaining Information.  The Department has submitted that third party consultation should be conducted with the individuals named in the access application as the Remaining Information comprises their personal information.  I have assessed the Department’s submissions on the issue of consultation at paragraphs 50 to 59 below, following the public interest analysis.

Irrelevant factors

38. No irrelevant factors arise in the circumstances of this case.

Accountability and transparency

39. The applicant submits that information is sought ‘ … to ascertain which decision maker, made which decision whilst in which position and at which time, so that any alleged bias or misconduct and indeed even the lawfulness or otherwise of the decision can be ascertained by the affected party and challenged’.35

40. The RTI Act gives rise to factors favouring disclosure in circumstances where disclosing information could reasonably be expected to:

  • promote open discussion of public affairs and enhance the Government’s accountability36
  • inform the community of the Government’s operations;37 and
  • reveal the reason for a government decision and any background or contextual information that informed the decision.38

41. I am satisfied that these factors apply to both the Third Party Information and Remaining Information.  The information demonstrates the workings of government in terms of how the Department manages its employment affairs in relation to recruitment, appointment and allocating higher duties positions.  I am satisfied that the public should be entitled to a level of transparency in relation to public service appointments as taxpayer funds are expended on public sector salaries and in order to maintain integrity in the merit-based appointment process.

42. I am satisfied that disclosure of the Remaining Information will allow the applicant to identify which officer held which position at a particular point in time and therefore, I afford these factors moderate weight in favour of disclosure.  However, given the inherently personal nature of the Third Party Information, I do not consider these factors will be significantly advanced through its disclosure and therefore, afford them very low weight.

Personal information and privacy

43. The RTI Act also gives rise to factors favouring nondisclosure in circumstances where disclosing information could reasonably be expected to prejudice the protection of an individual’s right to privacy39 and cause a public interest harm by disclosing the personal information of other individuals.40

44. I am satisfied that Third Party Information and Remaining Information comprises the personal information41 of other individuals, primarily, the eight individuals named in the access application.  Accordingly, I consider these factors apply to the information.

45. Information relating to the day-to-day work duties and responsibilities of a public sector employee may generally be disclosed under the RTI Act, despite it falling within the definition of personal information.  Primarily, this approach is taken to ensure transparency and accountability in government processes and the performance of public duties.42 Routine work information can include names, job titles and opinions given in a professional capacity.43 However, information which is not wholly related to the day-to-day work activities of a public service officer is not considered routine, eg. reasons why an officer is accessing leave entitlements and information about an officer’s involvement in a grievance/complaint process.44 Such information is generally considered to fall outside of the day-to-day routine work category and will therefore, be subject to higher privacy considerations favouring nondisclosure.45

46. The Third Party Information contains some highly personal information about the officers, eg. family and health details and academic transcripts, which I am satisfied is not their routine work information.  The Third Party Information also includes several mobile telephone numbers.  I consider that a mobile telephone number, which allows an individual to be contacted directly and potentially outside of working hours, falls outside the realm of routine work information and into their personal sphere.46 Having carefully considered the nature of the Third Party Information, I am satisfied that disclosure would be a significant intrusion into the relevant individuals’ privacy and that the extent of the public interest harm to their personal information would be significant.  Therefore, I afford these nondisclosure factors significant weight.

47. In contrast, I find that the Remaining Information falls squarely within the meaning of routine work information in that it is limited to the public service positions held, dates of appointment and periods of higher duties and position specific qualification information.  I am satisfied that the Remaining Information directly relates to the day-to-day work duties and responsibilities of the relevant officers and therefore, the factors at paragraph 43 carry very limited weight in favour of nondisclosure.

Balancing the relevant factors

48. In making this decision, have taken into account the pro-disclosure bias.47 In addition, I am satisfied that disclosure of the Remaining Information would moderately enhance government accountability and transparency in public sector appointments and employment generally.  I find that these factors are not outweighed by the limited personal information and privacy attaching to the Remaining Information.  However, with respect to the Third Party Information I find that the government accountability and transparency factors carry very low weight due to the inherently personal nature of the information.  Balanced against this is the significant weight which I have attributed to safeguarding the personal information and protecting the privacy of the sensitive personal details of other individuals associated with their employment history.

49. On the basis of the above, I find that:

  • disclosure of the Remaining Information would not, on balance, be contrary to the public interest; and
  • disclosure of the Third Party Information would, on balance, be contrary to the public interest and therefore, access may be refused under section 47(3)(b) of the RTI Act.

(c) Is it reasonable to expect that the individuals named in the application would be concerned about disclosure of the Remaining Information?

50. No, for the reasons set out below.

51. The Department submits48 that most of the named officers should be consulted about disclosure of the Remaining Information, for the following reasons:49

  • it is debatable as to whether all of the Remaining Information can be correctly categorised as routine personal work information
  • the access application is by a member of the public seeking access to personal information of public service officers and not their work product or subject matter of the Department
  • the officers would reasonably be concerned that such information was being requested and that they would reasonably expect to be made aware of the information being released and have a chance to comment
  • the information does not appear incidentally in work related documents, rather it is a collection of information which provides an entire history of the officers’ employment with the Department
  • much of the Remaining Information appears in correspondence with the relevant third parties and in forms and documents related to their employment and human resource records; such records are not normally found in the public arena
  • even if each document within the Remaining Information is categorised as routine personal work information, the information as a whole takes on a different quality, becoming potentially more sensitive in nature; and
  • whilst the third parties may have no concerns, their views should be sought and considered as the effect of releasing the Remaining Information is unknown.

Relevant law

52. An agency may give access to a document that contains information the disclosure of which may reasonably be expected to be of concern to a third party only if the agency has taken steps that are reasonably practicable to obtain the views of the third party about disclosure.50

53. The words in section 37 of the RTI Act ‘may reasonably be expected to’ import an objective test, that is, the expectation that disclosure of the information may be ‘of concern’ to the relevant third party must be reasonably based.51 A mere possibility, speculation or conjecture is not enough to satisfy this requirement.52 The obligation to consult under section 37 of the RTI Act is not governed by the public interest balancing test, but by an objective assessment as to whether release of information may reasonably be expected to be of concern to a third party.

54. Neither the term ‘of concern’ nor ‘concern’ are defined in the RTI Act or the Acts Interpretation Act 1954 (Qld). Therefore, it is appropriate to have regard to the ordinary meaning of the words.  The definition of ‘concern’ relevantly includes the following: ‘to disquiet or trouble’ and ‘engages one’s attention, interest or affects one’s welfare or happiness’.53

55. The Information Commissioner has previously found that the public is generally entitled to know the identity of the service deliverers, advice givers and decision makers and that a reasonable public service officer would expect that information that is solely their routine personal work information would be made available to the public.54

Findings

56. The Remaining Information includes the start and end dates of the various positions held by the named officers, relevant periods where those officers undertook higher duties and the qualifications they held for those positions.  As set out above, the more sensitive and private Third Party Information falls into a different category to which I have found access may be refused under the RTI Act.

57. I agree with the Department’s characterisation of the Remaining Information as providing a level of history of the officers’ employment with the Department.  However, I am not persuaded that the historical collection of information gives it a more sensitive quality to move it beyond the routine work information category.  Once the Third Party Information is removed from the documents, what remains is a very basic outline of the positions held by the officers during the relevant time periods in the Queensland public service, ie. in taxpayer funded employment.

58. Many types of public service officer appointments are required to be notified in the Queensland Government Gazette.55 Copies of such appointment notices appear within the Remaining Information for some of the individuals named in the application.  While the Remaining Information also appears in various other documents, I consider it is reasonable to expect that public services officers would anticipate that a certain level of basic information about their public service employment could be subject to broader disclosure under the RTI Act.  By its very nature, public service employment occurs in an environment which is subject to a level of public scrutiny and transparency.  I do not consider it is reasonable to expect that public servants would necessarily be troubled, nor expect to be consulted about, the disclosure of their basic public service employment history information.

59. For the reasons set out above, I am satisfied that, given the removal of the Third Party Information, the obligation to consult with any individuals named in the application is not enlivened as disclosure of the Remaining Information could not reasonably be expected to be of concern to those individuals.

DECISION

60. I set aside the Deemed Decision and in substitution, I find that:

  • some entire pages, as identified in Appendix 1, fall outside the Narrowed Scope and can be excluded on that basis
  • information that is irrelevant to the terms of the Narrowed Scope may be deleted under section 73 of the RTI Act
  • disclosure of the Third Party Information would, on balance, be contrary to the public interest and therefore, access may be refused to it under section 47(3)(b) of the RTI Act; and
  • on balance, the public interest favours disclosure of the Remaining Information and therefore, there is no basis to refuse access to it under the RTI Act, nor is there any requirement to consult with any third parties about its disclosure under section 37 of the RTI Act.

61. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.

________________________
K Shepherd
Assistant Information Commissioner

Date: 19 August 2016

APPENDIX 1

PageDecision
File A
1-2 Partial access: delete irrelevant information and Third Party Information
3-9 Full page: outside scope
10-11 Partial access: delete irrelevant information and Third Party Information
12 Full page: outside scope
13-15 Partial access: delete irrelevant information and Third Party Information
16 Full page: outside scope (duplicate)
17-19 Full page: outside scope
20-22 Partial access: delete irrelevant information and Third Party Information
23-44 Full page: outside scope
45 Partial access: delete irrelevant information and Third Party Information
46 Full page: outside scope (duplicate)
47 Partial access: delete irrelevant information and Third Party Information
48 Full page: outside scope (duplicate)
49-51 Partial access: delete irrelevant information and Third Party Information
52-53 Full page: outside scope
54-55 Partial access: delete irrelevant information and Third Party Information
56-78 Full page: outside scope
79 Full page: outside scope (pay related information)
80 Full page: outside scope
81 Partial access: delete irrelevant information and Third Party Information
82 Full page: outside scope
83 Full access
84-85 Partial access: delete Third Party Information
86 Partial access: delete irrelevant information and Third Party Information
87 Full page: outside scope (pay related information)
88 Full page: outside scope
89 Full page: outside scope (pay related information)
90 Partial access: delete irrelevant information
91 Partial access: delete Third Party Information
PageDecision
File B
1-7 Partial access: delete irrelevant information and Third Party Information
8-22 Full refusal: Third Party Information
23-30 Partial access: delete irrelevant information and Third Party Information
31 Partial access: delete irrelevant information
32-36 Partial access: delete irrelevant information and Third Party Information
37-38 Partial access: delete irrelevant information
39 Partial access: delete irrelevant information and Third Party Information
40-46 Full page: outside scope (duplicate)
47-60 Full refusal: Third Party Information
61-63 Partial access: delete irrelevant information and Third Party Information
64-66 Full page: outside scope
67-70 Partial access: delete irrelevant information and Third Party Information
71-76 Full refusal: Third Party Information and irrelevant information
77-79 Partial access: delete irrelevant information and Third Party Information
80 Partial access: delete Third Party Information
81 Partial access: delete irrelevant information
82-89 Partial access: delete irrelevant information and Third Party Information
90 Full page: outside scope
91-93 Partial access: delete irrelevant information and Third Party Information
94-95 Full page: outside scope
96 Partial access: delete Third Party Information
97-104 Partial access: delete irrelevant information and Third Party Information
105 Full page: outside scope
106-109 Partial access: delete irrelevant information and Third Party Information
110 Partial access: delete Third Party Information
111 Partial access: delete irrelevant information and Third Party Information
112 Partial access: delete irrelevant information
113 Partial access: delete irrelevant information and Third Party Information
114 Full page: outside scope (duplicate)
115 Partial access: delete irrelevant information and Third Party Information
116 Full page: outside scope (duplicate)
117 Full page: outside scope
118-119 Partial access: delete irrelevant information and Third Party Information
120 Partial access: delete irrelevant information and Third Party Information
121 Full page: outside scope
122 Partial access: delete irrelevant information and Third Party Information
123 Full page: outside scope
124-126 Partial access: delete irrelevant information and Third Party Information
127 Full page: outside scope (pay related information)
128 Partial access: delete irrelevant information and Third Party Information
129 Full page: outside scope (pay related information)
130 Partial access: delete irrelevant information and Third Party Information
131 Partial access: delete Third Party Information
132-136 Partial access: delete irrelevant information and Third Party Information
137 Full page: outside scope
138-140 Partial access: delete irrelevant information and Third Party Information
141 Full page: outside scope
142 Partial access: delete irrelevant information and Third Party Information
143 Full page: outside scope (duplicate)
144-176 Full page: outside scope (outside date range)
PageDecision
File C
1-2 Full refusal: Third Party Information
3 Full page: outside scope (duplicate)
4-5 Full refusal: Third Party Information
6-8 Partial access: delete irrelevant information and Third Party Information
9 Full page: outside scope
10-11 Partial access: delete irrelevant information and Third Party Information
12-15 Full page: outside scope (duplicate)
16-18 Partial access: delete irrelevant information and Third Party Information
PageDecision
File D
1-18 Full page: outside scope (duplicate)
PageDecision
File E
1 Partial access: delete Third Party Information
2 Full page: outside scope (duplicate)
3 Partial access: delete irrelevant information
4 Full page: outside scope (duplicate)
5 Partial access: delete irrelevant information
6 Full page: outside scope (duplicate)
7 Partial access: delete Third Party Information
8 Full page: outside scope (leave application)
9 Partial access: delete irrelevant information and Third Party Information
10 Full page: outside scope (leave calculation information)
11-12 Partial access: delete irrelevant information and Third Party Information
13 Partial access: delete irrelevant information
14-44 Partial access: delete irrelevant information and Third Party Information
45-47 Partial access: delete Third Party Information
48 Partial access: delete irrelevant information and Third Party Information
49Full access
50 Full page: outside scope
51-52Full access
53-54 Partial access: delete irrelevant information and Third Party Information
55 Full page: outside scope
56-57Full access
58 Partial access: delete irrelevant information and Third Party Information
59 Partial access: delete Third Party Information
60-63 Partial access: delete irrelevant information and Third Party Information
64 Partial access: delete irrelevant information
65 Partial access: delete irrelevant information and Third Party Information
66-67 Full refusal: Third Party Information
68 Partial access: delete irrelevant information and Third Party Information
69 Full page: outside scope (pay related information)
70 Full refusal: Third Party Information
71 Partial access: delete irrelevant information and Third Party Information
72 Full page: outside scope (pay related information)
73-74 Partial access: delete irrelevant information and Third Party Information
75-76 Full page: outside scope
77 Partial access: delete irrelevant information and Third Party Information
78-83 Full page: outside scope
84 Partial access: delete irrelevant information and Third Party Information
85 Partial access: delete irrelevant information
86-91 Partial access: delete irrelevant information and Third Party Information
PageDecision
File F
1 Partial access: delete irrelevant information and Third Party Information
2-3 Partial access: delete irrelevant information
4 Partial access: delete irrelevant information and Third Party Information
5 Full page: outside scope (pay related information)
6-7 Partial access: delete irrelevant information and Third Party Information
8 Full page: outside scope (pay related information)
9 Full page: outside scope
10 Partial access: delete Third Party Information
11-12 Partial access: delete irrelevant information and Third Party Information
13 Full page: outside scope
14 Partial access: delete irrelevant information and Third Party Information
15 Full page: outside scope
16-19 Partial access: delete irrelevant information and Third Party Information
20-21 Partial access: delete Third Party Information
22 Partial access: delete irrelevant information and Third Party Information
23-24 Full page: outside scope
25 Partial access: delete irrelevant information
26 Full page: outside scope
27 Partial access: delete irrelevant information
28-30 Full page: outside scope
31 Full page: outside scope (pay related information)
32 Partial access: delete Third Party Information
33-35 Full page: outside scope (pay related information)
36-39 Full page: outside scope
40-41 Partial access: delete irrelevant information and Third Party Information
42 Partial access: delete irrelevant information
43-45 Partial access: delete irrelevant information and Third Party Information
46-95 Full page: outside scope (outside date range)
96 Full page: outside scope
97-141 Full page: outside scope (outside date range)
PageDecision
File G
1-6 Partial access: delete irrelevant information and Third Party Information
7 Partial access: delete irrelevant information
8 Full page: outside scope (pay related information)
9-25 Partial access: delete irrelevant information and Third Party Information
26 Full page: outside scope (pay related information)
27 Partial access: delete irrelevant information and Third Party Information
28-37 Full page: outside scope (pay related information)
38 Partial access: delete irrelevant information and Third Party Information
39-40 Full page: outside scope (pay related information)
41 Partial access: delete irrelevant information and Third Party Information
42-47 Full page: outside scope (pay related information)
48 Partial access: delete irrelevant information
49-66 Partial access: delete irrelevant information and Third Party Information
67 Full page: outside scope
68-69 Partial access: delete irrelevant information and Third Party Information
70 Partial access: delete irrelevant information
71 Full page: outside scope
72-74 Partial access: delete irrelevant information and Third Party Information
75 Partial access: delete Third Party Information
76 Partial access: delete irrelevant information and Third Party Information
77-83 Full page: outside scope
84-85 Partial access: delete irrelevant information and Third Party Information
86 Full page: outside scope (pay related information)
87 Partial access: delete Third Party Information
PageDecision
File H
1-2 Partial access: delete irrelevant information and Third Party Information
3-4Full access
5 Partial access: delete Third Party Information
6-7Full access
8 Partial access: delete irrelevant information and Third Party Information
9Full access
10 Partial access: delete irrelevant information and Third Party Information
11-17 Full page: outside scope (duplicate)
18-19 Partial access: delete irrelevant information
20Full access
21 Full page: outside scope (duplicate)
PageDecision
File I
1-2 Partial access: delete irrelevant information and Third Party Information
3-8 Full page: outside scope (outside date range)
9-21 Partial access: delete irrelevant information and Third Party Information
PageDecision
File J
1-9 Partial access: delete irrelevant information and Third Party Information
10 Full page: outside scope (duplicate)
11 Partial access: delete irrelevant information and Third Party Information
PageDecision
File K
1-5 Partial access: delete irrelevant information and Third Party Information
PageDecision
File L
1-2 Partial access: delete irrelevant information and Third Party Information
3 Full page: outside scope (outside date range)
4-13 Partial access: delete irrelevant information and Third Party Information
PageDecision
File M
1 Partial access: delete irrelevant information and Third Party Information
PageDecision
File N
1-3 Partial access: delete irrelevant information and Third Party Information
4-6 Full page: outside scope (outside date range)
7-14 Partial access: delete irrelevant information and Third Party Information
PageDecision
File O
1 Partial access: delete irrelevant information and Third Party Information
PageDecision
File P
1-2 Partial access: delete irrelevant information and Third Party Information
3-4 Full page: outside scope (pay related information)
5 Partial access: delete irrelevant information and Third Party Information
6-8Full access
9 Partial access: delete Third Party Information
10-13 Partial access: delete irrelevant information and Third Party Information
14 Full page: outside scope (pay related information)
15-18 Partial access: delete irrelevant information and Third Party Information
19 Partial access: delete Third Party Information
20 Partial access: delete irrelevant information and Third Party Information
21-22 Full page: outside scope (duplicate)
23 Partial access: delete Third Party Information
24-26 Partial access: delete irrelevant information and Third Party Information
27 Partial access: delete irrelevant information
28 Full page: outside scope
29 Partial access: delete irrelevant information and Third Party Information
30-33 Full page: outside scope
34 Partial access: delete irrelevant information
35 Full page: outside scope (duplicate)
PageDecision
File Q
1-2 Partial access: delete irrelevant information and Third Party Information
3 Partial access: delete irrelevant information
4 Full page: outside scope
5 Partial access: delete irrelevant information
6 Full page: outside scope
7 Full page: outside scope (pay related information)
8-30 Full page: outside scope
31-32 Full page: outside scope (pay related information)
33-34 Partial access: delete irrelevant information
35 Full page: outside scope (outside date range)
36 Full page: outside scope
37-38 Full page: outside scope (outside date range)
39 Full page: outside scope
40 Partial access: delete irrelevant information and Third Party Information
41-43 Full page: outside scope
44 Partial access: delete irrelevant information
45-52 Partial access: delete irrelevant information and Third Party Information
53 Partial access: delete Third Party Information
54 Partial access: delete irrelevant information and Third Party Information
55 Partial access: delete Third Party Information
56-58 Partial access: delete irrelevant information and Third Party Information
59 Partial access: delete Third Party Information
60 Partial access: delete irrelevant information and Third Party Information
61-62 Partial access: delete Third Party Information
63-65 Partial access: delete irrelevant information and Third Party Information
66Full access
67-68 Partial access: delete irrelevant information and Third Party Information
69 Full page: outside scope (pay related)
70-72 Partial access: delete irrelevant information and Third Party Information
73-81 Full page: outside scope (outside date range)
82 Full page: outside scope (pay related information)
83 Full page: outside scope (training information)
84-86 Full page: outside scope (outside date range)
87 Full page: outside scope
88-96 Full page: outside scope (outside date range)
97-99 Partial access: delete Third Party Information
100-102 Full page: outside scope
103-113 Full page: outside scope (outside date range)
114 Full page: outside scope (pay related information)
115 Full page: outside scope (training information)
PageDecision
File R
1-2 Partial access: delete irrelevant information and Third Party Information
3-6 Full page: outside scope
7-8 Full page: outside scope
9-10 Full page: outside scope (duplicate)
11-19 Full page: outside scope
20Full access
21 Full page: outside scope
22-23 Partial access: delete irrelevant information
24 Partial access: delete irrelevant information and Third Party Information
25 Partial access: delete irrelevant information
26 Partial access: delete irrelevant information and Third Party Information
27 Full page: outside scope (pay related information)
28 Full page: outside scope (duplicate)
29 Partial access: delete irrelevant information
30 Partial access: delete Third Party Information
31-32 Partial access: delete irrelevant information and Third Party Information
33 Full page: outside scope (pay related information)
34 Full page: outside scope
35 Full page: outside scope
36-38 Partial access: delete irrelevant information and Third Party Information
39 Partial access: delete Third Party Information
40 Partial access: delete irrelevant information
41-44 Partial access: delete irrelevant information and Third Party Information
45 Partial access: delete irrelevant information and Third Party Information
46 Full refusal: Third Party Information
47 Partial access: delete irrelevant information and Third Party Information
48 Partial access: delete irrelevant information
49 Partial access: delete irrelevant information and Third Party Information
50 Full page: outside scope
51-54 Full page: outside scope (leave information)
55-56 Full page: outside scope
57 Partial access: delete irrelevant information and Third Party Information
58 Full page: outside scope
59-60 Partial access: delete irrelevant information and Third Party Information
61 Partial access: delete irrelevant information
62-67 Full page: outside scope

APPENDIX 2

Significant procedural steps

DateEvent
24 June 2014 The Department received the access application.
25 July 2014 The Department issued a notice under section 42 of the RTI Act to notify the applicant that it intended to refuse to deal with the access application under section 41 of the RTI Act and invited the applicant to either confirm or narrow the scope of the access application.
28 July 2014 The applicant indicated to the Department that she wished to narrow the scope of the access application and sought additional information from the Department for that purpose.
1 August 2014 The applicant proposed a narrowed scope to the Department.
18 August 2014 The Department sought clarification from the applicant regarding the proposed narrowed scope.
26 August 20114 The applicant sought additional information from the Department to clarify the proposed narrowed scope. The Department provided that requested information to the applicant.
9 September 2014 The applicant agreed to exclude further categories of information from the proposed narrowed scope.
12 September 2014 The Department sought confirmation from the applicant on the wording of the proposed narrowed scope.
21 September 2014 The applicant confirmed the wording for the proposed narrowed scope.
9 October 2014 The Department invited the applicant to further narrow the scope of the access application.
10 October 2014 The applicant agreed to exclude a further category of information and requested the Department issue a decision.
14 October 2014 The timeframe prescribed by the RTI Act for making a decision on the access application expired.
15 October 2014 The Department issued a decision to the applicant, purporting to refuse to deal with the access application.
21 October 2014OIC received the external review application.
22 October 2014 OIC notified the Department the external review application had been received and requested relevant procedural information.
24 October 2014 OIC received the requested information from the Department.
11 November 2014

OIC notified the applicant and the Department that it had accepted the external review application.

OIC received additional procedural information from the Department.

15 January 2015 OIC provided the applicant with an update on the status of the review.
26 February 2015 OIC provided the applicant with an update on the status of the review.
1 April 2015 OIC asked the Department to provide additional information.
20 April 2015 OIC received the requested information from the Department.
29 May 2015 OIC conveyed a preliminary view to the applicant that the Department was entitled to refuse to deal with the application and invited her to provide submissions supporting her case if she did not accept the preliminary view.
1 June 2015 OIC received the applicant’s submissions.
31 August 2015 OIC conveyed a revised preliminary view to the Department that it was not entitled to refusal to deal with the application on the basis of substantial and unreasonable diversion of resources and invited the Department to provide submissions supporting its decision, if it did not accept the preliminary view.
21 September 2015 OIC received the Department’s submissions.
28 October 2015 OIC invited the applicant to make further submissions about the refusal to deal issue.
5 November 2015 The applicant asked OIC for additional time to make submissions.
6 November 2015 OIC granted an extension of time for the applicant to make further submissions to OIC.
19 November 2015 The applicant asked OIC for an extension of time to make submissions.
20 November 2015 OIC granted the applicant a further extension of time to make submissions.
25 November 2015 The applicant asked OIC for a further extension until 1 March 2016 to make submissions and provided reasons to support her request.
27 November 2015The Right to Information Commissioner decided to suspend the external review until 1 March 2016.
24 February 2016 The applicant emailed OIC to request a copy of submissions made to OIC by the Department, to assist the applicant in preparing her final submissions.
26 February 2016

OIC advised the applicant that it had taken the applicant’s recent email as confirmation that she was ready to proceed with the review and therefore, removed the matter from suspension. OIC confirmed its previous advice to the applicant that as the view OIC had formed in the review was not adverse to her, OIC did not require any submissions from her on the refusal to deal issue, and similarly, there was no requirement to provide her with a copy of the Department’s submissions.

OIC confirmed its preliminary view to the Department that dealing with the application would not be a substantial and unreasonable diversion of resources and invited the Department to provide final submissions.

18 March 2016 OIC received further submissions from the Department.
4 April 2016 The Department made further oral submissions to OIC on the refusal to deal issue.
5 April 2016 OIC asked the Department to provide a copy of the documents located by the Department on the application.
12 April 2016 The Department provided OIC with a copy of the documents it considered relevant to the application.
21 April 2016 OIC provided the applicant with an update on the status of the review.
27 April 2016 OIC received the further submissions from the applicant.
6 May 2016 OIC staff held a telephone conference with staff of the Department in relation to the issue of consultation.
12 May 2016 OIC requested a further submission from the Department.
23 May 2016 OIC received the Department’s further submissions.
24 May 2016 OIC reiterated its preliminary view to the Department on the refusal to deal issue and confirmed that OIC would proceed to assess the issue of refusal of access to information under the RTI Act. OIC asked the Department to provide an unrestricted version of the documents.
27 May 2016The Department provided OIC with a copy of the documents.
3 June 2016OIC provided the applicant with an update on the status of the review.
10 June 2016OIC conveyed a preliminary view to the applicant and the Department on the refusal of access issue and invited the applicant and the Department to provide final submissions.
16 June 2016The applicant asked OIC for a copy of the Department’s submissions on the refusal of access issue.
17 June 2016OIC advised the applicant that the Department had not yet provided OIC with any submissions on the refusal of access issue.
29 June 2016The applicant provided her final submissions to OIC.
30 June 2016The Department provided submissions to OIC.
1 July 2016OIC spoke to the Department to clarify certain information in its submissions.
12 July 2016OIC asked the Department to provide additional information in support of its submissions, particularly in relation to the consultation issue.
14 July 2016OIC received a further submission from the Department on the consultation issue.

1 Under section 41 of the RTI Act.
2 See discussion below at paragraph 8.
3 Under section 46(1)(a) of the RTI Act.
4 Dated 25 July 2014 (day 23 of the processing period).  In the notice, the Department estimated 1680 documents were within the scope of the access application and processing it would take 74.75 hours.
5 By emails to the Department dated 1 August and 9 September 2014 and confirmed in the Department’s email to the applicant on 12 September 2014.
6 On 9 October 2014.
7 On 10 October 2014. This had the effect of restarting the processing period on the next business day: 13 October 2014 (day 24 of the processing period), thereby making the Department’s decision due by 14 October 2014 (day 25 of the processing period).
8 Letter dated 15 October 2014, issued one day outside the processing period (day 26). The Department estimated that it would take 56.25 hours to process the application and make a decision on the information.
9 Submissions received on 21 September 2015, 18 March 2016 and 23 May 2016.
10 Submissions to OIC dated 18 March 2016.
11 Letters dated 29 May and 28 October 2015.
12 Section 90 of the RTI Act.
13 Section 95 of the RTI Act gives the Information Commissioner discretion as to the procedure to be followed on external review.
14 Estimated at 32 hours in the Department’s submissions to OIC dated 17 March 2016 and 12 April 2016 and 26.5 hours in the Department’s submissions to OIC dated 23 May 2016.
15 To the documents requested in the Narrowed Scope.
16 Submissions dated 29 June 2016.
17 Submissions dated 30 June and 14 July 2016.
18 By letters dated 20 November 2015 and 26 February 2016.
19 Similar issues arose in Underwood and Department of Housing and Public Works (No. 1) [2016] QICmr 11 at [15]-[16].
20 See paragraph 11 above.
21 Fennelly and Redland City Council (Unreported, Queensland Information Commissioner, 21 August 2012) at [21] and O80PCE and Department of Education and Training (Unreported, Queensland Information Commissioner, 15 February 2010) (O80PCE) at [35].
22 Section 24(2)(b) of the RTI Act.
23 Cannon and Australian Quality Egg Farms Ltd (1994) 1 QAR 491 at [8].
24 Robbins and Brisbane North Regional Health Authority (1994) 2 QAR 30 at [17] (Robbins).
25 Robbins at [17] and O80PCE at [36].
26 Simpson MP and Department of Transport and Main Roads (Unreported, Queensland Information Commissioner, 29 July 2011) at [12].
27 O80PCE at [52].
28 Submission dated 29 June 2016.
29 Submission dated 30 June 2016.
30 External review application.
31 To clarify, the applicant has no entitlement, through this review, to access any information in the documents which I have found fall outside the scope of the application.
32 Section 47(3)(b) of the RTI Act.
33 Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest.  However, this list of factors is not exhaustive.  In other words, factors that are not listed may also be relevant.
34 Section 49(3) of the RTI Act.
35 External review application.
36 Schedule 4, part 2, item 1 of the RTI Act.
37 Schedule 4, part 2, item 3 of the RTI Act.
38 Schedule 4, part 2, item 11 of the RTI Act.
39 Schedule 4, part 3, item 3 of the RTI Act.
40 Schedule 4, part 4, item 6 of the RTI Act.
41 As defined in section 12 of the Information Privacy Act 2009 (Qld) as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’.
42 Schedule 4, part 2, items 1, 3 and 11 of the RTI Act.
43 Underwood and Department of Housing and Public Works (Unreported, Office of the Information Commissioner, 18 May 2012).
44 See McKinnon and Department of Communities (Unreported, Office of the Information Commissioner, 7 June 2011) at [30] for further discussion.
45 Schedule 4, part 3, item 3 and part 4, item 6 of the RTI Act.
46 Underwood and Minister for Housing and Public Works [2015] QICmr 27 at [67].
47 Section 44 of the RTI Act.
48 Submission dated 30 June 2016.
49 Submissions dated 30 June and 14 July 2016.
50 Section 37 of the RTI Act.
51 Attorney-General v Cockcroft (1986) 64 ALR 97.
52 B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at [339]-[341].
53 Macquarie Dictionary Online. The definition also includes to have an ‘important relation or bearing’.
54 The Amanda Flynn Charity Pty Ltd and the Crime and Misconduct Commission (Unreported, Queensland Information Commissioner, 19 October 2011) at [22].
55 Refer to the Public Service Commission Directive No 15/13.  Queensland Government Gazettes are publicly searchable, see https://publications.qld.gov.au/.