Morris and Queensland Treasury
(1993 S0231, 19 October 1995)
This case concerned an FOI access application made by the applicants for documents held by Queensland Treasury, relating to the applicants' business of selling Australian lotto and lottery-type products overseas. It involved the application of s.44(1), s.46(1)(b) and s.38(b) of the FOI Act.
The first category of documents the Information Commissioner considered was correspondence involving general inquiries about the applicants' business, complaints concerning the applicants and the provision of information by the Golden Casket Art Union Office (GCAUO) about its Direct Mail Club and the applicants. These documents had been released to the applicants, subject to the deletion of matter which would enable the identities of the authors or complainants named in the documents to be ascertained. The Information Commissioner considered that disclosure of this matter would disclose information concerning the personal affairs of the individuals named, on either or both of two bases:
· it would disclose that an identifiable person had engaged, or had made inquiries with a view to engaging, in gambling (on lotto or lottery-type products); and/or
· it would disclose that an identifiable person had sought to make a complaint to a government agency believed to be the appropriate regulatory authority in respect of Australian lotto or lottery-type products, which the person had seen advertised in a foreign country, or to which the person subscribed.
In considering the public interest balancing test contained in s.44(1), the Information Commissioner noted that the applicants had had access to edited versions of the documents and that the regulatory authority did not propose to take action against the applicants in respect of a particular complaint of wrongdoing. The Information Commissioner was unable to accept that there was any public interest factor that may exist in the applicants having access to the matter in issue, which was of sufficient strength to outweigh the public interest in non-disclosure which was inherent in the satisfaction of the prima facie test for exemption under s.44(1). Accordingly, the Information Commissioner found the matter in issue in relation to the first category of documents to be exempt matter under s.44(1).
The second category of documents involved correspondence between the GCAUO and its solicitors, which enclosed reports from a private detection agency employed by the GCAUO's solicitors on its behalf to investigate the activities of the applicants. The documents had been released to the applicants, subject to the deletion of matter which would enable the identity of the detection agency's source of information to be ascertained.
This category of documents involved the application of s.46(1)(b) and the principles discussed in B and Brisbane North Regional Health Authority (1994) 1 QAR 279. The Information Commissioner considered that, having regard to the general content of the detection agency reports, both the detection agency and the GCAUO's solicitors would have understood that they were under a duty to their client to keep the reports confidential, but that it would have been the client's right (except in special circumstances) to deal with the reports as they wished. The Information Commissioner considered one possible exceptional circumstance was the communication by the detection agency of information of such sensitivity or value to the detection agency that the recipient must have understood that it was expected to keep the information confidential. The Information Commissioner accepted that, in this case, the identity of the detection agency's source of information was understood by both the detection agency and the GCAUO to have continuing sensitivity and value, and that there were mutual expectations that the identity of the source of information would be treated in confidence. The Information Commissioner also found that the other elements of s.46(1)(b) had been made out by the respondent and that the Commissioner was unable to identify any public interest consideration favouring disclose of the identity of the detection agency's source, which would displace the public interest in non-disclosure inherent in the satisfaction of the test for prima facie exemption under s.46(1)(b). Hence, the Information Commissioner found the matter in issue in the second category of documents to be exempt matter under s.46(1)(b).
The third category of documents involved correspondence between a NSW government agency and the GCAUO, which included a copy of correspondence with a third party. Consideration of these documents involved the application of s.38(b). The Information Commissioner considered that when s.38(b) is contrasted with s.46(1)(b), its key elements are, in essence, identical to the first and second requirements of s.46(1)(b), save that the relevant communication must be made by or on behalf of another government agency. The Information Commissioner noted that s.38(b) contains no equivalent to the third element of s.46(1)(b), but, like that section, s.38(b) is qualified by a public interest balancing test. Having had regard to the evidence lodged on behalf of the respondent, the Information Commissioner found that information conveyed in the correspondence between the NSW government agency and the GCAUO comprised information communicated in confidence by or on behalf of another government for the purpose of s.38(b). The Information Commissioner then considered two public interest factors favouring disclosure of the correspondence but decided they were not of sufficient weight to outweigh the public interest in non-disclosure established by the satisfaction of the first two elements of s.38(b). The Information Commissioner found the correspondence between the government agencies to be exempt under s.38(b), but decided that the enclosure to that correspondence was not exempt under s.38(b). The Information Commissioner did, however, determine that matter in the enclosure which would identify its author, was exempt matter under s.44(1), on the same basis as for the first category of documents.