Morse and Queensland Police Service [2017] QICmr 38 (31 August 2017)

REASONS FOR DECISION

Summary

1. The applicant applied to the Queensland Police Service (QPS) under the Right to Information Act 2009 (Qld) (RTI Act) for access to information showing the names of the police officers who had accessed his personal information on the QPRIME database (QPRIME)¹ from 2006 until 10 June 2016, and the dates on which such access occurred.²

2. Given the applicant’s application concerned his personal information, QPS decided to process it under the Information Privacy Act 2009 (Qld) (IP Act) and neither confirmed nor denied the existence of the requested information under section 69 of that Act.³

3. The applicant sought internal review of QPS’s decision.⁴ On internal review, QPS affirmed its original decision.⁵

4. The applicant applied to the Office of the Information Commissioner (OIC) for external review of QPS’s internal review decision.⁶

5. On external review, QPS accepted OIC’s preliminary view⁷ that the neither confirm nor deny provision could not be relied on in this case⁸ and made alternative submissions.⁹

6. For the reasons set out below, I vary QPS’s decision and find that all documents to which the application relates comprise exempt information under schedule 3, section 10(1)(f) of the RTI Act, as their disclosure could reasonably be expected to prejudice QPS’s lawful methods and procedures and, therefore, section 59 of the IP Act can be relied on to refuse to deal with the application.

Background

7. Significant procedural steps relating to the application and external review process are set out in the Appendix.

Reviewable decision

8. The decision under review is QPS’s internal review decision dated 13 September 2016 to neither confirm nor deny the existence of documents requested by the applicant in his access application dated 20 June 2016.

Evidence considered

9. The evidence, submissions, legislation and other material considered in reaching this decision are disclosed in these reasons (including the footnotes and Appendix).

Issues to be determined

10. As noted at paragraph 5 above, QPS no longer contends that section 69 of the IP Act can be relied on to neither confirm nor deny the existence of the documents requested in the access application. Therefore, that provision is not considered in this decision.¹⁰

11. The Information Commissioner¹¹ can decide any matter in relation to an application that could, under the IP Act, have been decided by the agency dealing with the application.¹² Accordingly, I will now consider whether the application may be the subject of a refusal to deal decision under section 59 of the IP Act.¹³ To determine this issue, I must consider whether:

• the application is expressed to relate to all documents, or all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter; and
• all of the documents to which the application relates comprise exempt information.

12. In support of his position that the requested information should be released, the applicant generally relies on:¹⁴

• his knowledge of previous releases of QPRIME information to other individuals
• his belief that there is a culture within QPS of unlawfully accessing QPRIME; and
• his concern that, due to media reporting around this issue, his profile on QPRIME has been accessed unlawfully.

Relevant law

13. If an access application is made to an agency under the IP Act, the agency should deal with the application unless this would not be in the public interest.¹⁵ One of the few circumstances where it is not in the public interest to deal with an access application is set out section 59 of the IP Act as follows:

59       Exempt Information

(1)  This section applies if—

(a) an access application is expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter; and

(b) it appears to the agency or Minister that all of the documents to which the application relates are comprised of exempt information.

(2)  The agency or Minister may refuse to deal with the application without having identified any or all of the documents.

14. Exempt information is information, the disclosure of which Parliament has considered would, on balance, be contrary to the public interest.¹⁶ Schedule 3 of the RTI Act lists the various types of information that constitute exempt information, including:

10     Law enforcement or public safety information

(1)  Information is exempt information if its disclosure could reasonably be expected to—
…

(f)  prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law;
…

(2) However, information is not exempt under subsection (1) if it consists of—

(a) matter revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law; …

Findings

Class of documents

15. For section 59 of the IP Act to be enlivened, I must firstly consider whether the application is expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind, or relate to a stated subject matter.  To determine this, it is necessary to examine the terms of the access application.

16. OIC has recently considered the application of section 59 of the IP Act in relation to applications for information substantially the same as that requested by the applicant in the application which is the subject of this review.¹⁷ The applicant’s application seeks access to specific information (QPRIME access information) over a ten year period,¹⁸ namely:

Names and Dates of Police officers that have accessed any of my information on the QPRIME data base.

17. I am satisfied that the application is framed as a request to access all entries in QPRIME relating to the applicant during the specified period.  I am also satisfied that the application is expressed to relate to all documents that contain information of a stated kind, that is, information demonstrating when the applicant’s personal information on QPRIME was accessed and by whom.  Accordingly, I find that the first limb of section 59 of the IP Act is satisfied.

Exempt information

18. I must also be satisfied that the documents to which the application relates are comprised of exempt information.  Of relevance to this review, information will be exempt information if the following are established:

• there exists a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law; and
• disclosure could reasonably be expected to prejudice that method or procedure.¹⁹

19. QPS submitted²⁰ that the process of QPS officers accessing information in QPRIME forms an integral part of the methods and procedures used by QPS for preventing, detecting or investigating contraventions, or possible contraventions of the law, specifically regarding intelligence and surveillance operations.

20. Further, QPS submitted that disclosing the QPRIME access information would reveal:

• the number of occasions on which QPS officers have accessed QPRIME in relation to a particular individual
• the nature of the access; and
• the number and/or identity of the inquiring officer.

21. QPS submitted that disclosure of such information would enable an individual to deduce whether particular QPS units were monitoring the individual’s behaviour or involvement in activities, and the level of QPS surveillance/investigation they were under.²¹ On this basis, QPS submitted that disclosure of the QPRIME access information could reasonably be expected to prejudice the effectiveness of its lawful methods or procedures for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law.

22. The applicant submitted²² that disclosure of the use of QPRIME as a method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law could not be said to prejudice the effectiveness of QPRIME as a method or procedure.  In support of this position, the applicant submitted as follows:

• ‘to disclose either that the police keep information in a computerised database or that police officers access the information held in that database reveals nothing which is novel, covert or clandestine’²³
• ‘disclosure of methods or procedures which are “obvious and well known to the community” is not likely to prejudice their effectiveness’²⁴
• some, but not all of, QPRIME access information might be exempt under other specific provisions in schedule 3, section 10 of the RTI Act²⁵ which would ‘otherwise have no work to do’²⁶
• ‘if Parliament had intended that keeping documents in the QPRIME database be regarded as an integral part of QPS methods and procedures … then it would have been unnecessary for the Parliament to have enacted the[se] specific provisions’²⁷
• the logical result of finding that the QPRIME access information may be refused under schedule 3, section 10(1)(f) of the RTI Act is that QPS may circumvent the disclosure regimes in the RTI and IP Acts by claiming that ‘information held by it in computer databases which may be searched and accessed by police officers form an integral part of its lawful methods or procedures’, and ‘that effectively would operate to exempt the QPS from the disclosure regimes’²⁸; and
• ‘the characterisation of QPRIME as “an integral part of QPS’s lawful methods and procedures, etc.” … may have the absurd result of some information in QPRIME being deemed not to be exempt information by virtue of schedule 3, [section] 10(6) because it had been used by a specialist intelligence or security unit of the QPS, but other information continuing to be exempt as it was used by ordinary members of the QPS’²⁹.

23. Having considered the submissions provided by QPS on review,³⁰ I am satisfied that, when dealing with contraventions, or possible contraventions, of the law, QPS officers record information about certain individuals on QPRIME, and such information may relate to intelligence or surveillance operations, or other investigations.  Further, I am satisfied that QPS officers also access information recorded in QPRIME both during and after such activities—for example, to obtain background information and inform their decisions. Given this position, I accept that accessing information in QPRIME forms an integral part of the methods and procedures used by QPS when dealing with contraventions, or possible contraventions, of the law.

24. The existence of QPRIME as a database used by QPS, and the manner in which QPS officers use QPRIME—namely, recording information obtained by them and accessing previously recorded information—are commonly known.  Consequently, I accept the applicant’s submission that ‘to disclose either that the police keep information in a computerised database or that police officers access the information held in that database reveals nothing which is novel, covert or clandestine’.

25. The applicant further submits that ‘disclosure of methods or procedures which are “obvious and well known to the community” is not likely to prejudice their effectiveness’. In my view, this submission conflates information confirming the existence of QPRIME with the QPRIME access information.  It suggests that, because QPS’s use of QPRIME is obvious or known to the community, it follows that disclosure of particular information from that database—that is, the QPRIME access information—is not likely to prejudice the effectiveness of QPS’s use of QPRIME.

26. However, the prejudice does not, in my view, arise insofar as the QPRIME access information reveals the existence of QPRIME, how it works or its use by QPS officers.  Rather, the prejudice arises in terms of the QPRIME access information revealing information (or an absence of information) which enables or assists an individual to deduce the level of surveillance they may (or may not) be under.  This, in my opinion, reduces the effectiveness of QPRIME as a system for recording and exchanging information within QPS as part of conducting intelligence or surveillance operations, or otherwise dealing with contraventions, or possible contraventions, of the law.  I am satisfied that disclosure of QPRIME access information, for any individual, whether that individual is subject to intelligence or surveillance operations or not, could reasonably be expected to prejudice these lawful methods and procedures as a whole.

27. In reaching this conclusion, I have considered whether specific types of QPRIME access information may, if released with surrounding information redacted, not qualify as exempt information.  In this regard, I have noted that the applicant does not seek access to information which would identify particular QPS units or the reasons for searches in QPRIME.  However, I am of the view that releasing names or other information specific to particular QPS officers may still enable their identity and relevant unit, and therefore the nature of surveillance or intelligence (if any), to be ascertained.  I have also considered the possibility of releasing information which indicates the frequency of access to information on QPRIME about a particular individual by QPS officers generally, or specific QPS officers.  However, doing so would, in my view, risk revealing the level of QPS surveillance or investigation (if any) that an individual is under.

28. As to the question of whether the expectation of prejudice is reasonable,³¹ I am satisfied that QPS has demonstrated that there are particular circumstances³² in which disclosing QPRIME access information could reasonably be expected to prejudice the lawful methods and procedures used by QPS, of which QPRIME is an integral part, even though the information may otherwise appear innocuous on its face or when read in isolation.³³

29. The applicant submits that disclosure of QPRIME access information might be exempt under other provisions in schedule 3, section 10,³⁴ that these provisions would ‘otherwise have no work to do’, and that it would have been unnecessary for Parliament to enact them ‘if Parliament had intended that keeping documents in the QPRIME database be regarded as an integral part of QPS methods and procedures’.  It is my understanding that, in making these submissions, the applicant’s position is that I cannot find that the QPRIME access information may be refused under schedule 3, section 10(1)(f) of the RTI Act, as to do so would render the other provisions raised by him redundant.  In respect of these submissions, I note that the provisions raised by the applicant³⁵ require that an investigation be on foot,³⁶ and that the information in issue be given in the course of the investigation, or obtained, used or prepared for it.³⁷ However, the nature of the information that would be subject to these provisions can be distinguished from the information in issue in this review.  Here, the applicant is seeking information about who accessed his records within QPRIME and when (whether or not such access related to any investigation).  He is not seeking his records viewed during any such access, nor is he seeking any documents received or generated during any investigation.  Depending on the particular information and circumstances, I consider it feasible that the other exemption provisions in schedule 3, section 10 of the RTI Act raised by the applicant—or indeed schedule 3, section 10(1)(f)—may possibly apply to information of this nature. Accordingly, I cannot accept the applicant’s submissions that, to find that the QPRIME access information is exempt information under schedule 3, section 10(1)(f) is to, in effect, find that the other provisions raised by him are superfluous.

30. I also do not accept the applicant’s submission that the logical effect of refusing access to the QPRIME access information is that QPS may circumvent the disclosure regimes in the RTI and IP Acts entirely by claiming that ‘information held by it in computer databases which may be searched and accessed by police officers form an integral part of its lawful methods or procedures’.  This decision relates only to the QPRIME access information, not all information and documents stored on QPRIME.  Each decision on an access application must be considered on its own particular merits, on a case by case basis.

31. Finally, I do not accept the applicant’s submission that finding that the QPRIME access information may be refused under schedule 3, section 10(1)(f) of the RTI Act ‘may have the absurd result of some information in QPRIME being deemed not to be exempt information by virtue of schedule 3, [section] 10(6) because it had been used by a specialist intelligence or security unit of the QPS, but other information continuing to be exempt as it was used by ordinary members of the QPS’.  In this regard, I note that the relevance of one exemption provision does not necessarily preclude the applicability of others.  If there were circumstances where the exemption provisions in schedule 3, section 10(4) or (5) could apply, but for the operation of the exception raised by the applicant, the exemption provision in schedule 3, section 10(1)(f) of the RTI Act may still apply, depending on the particular information and circumstances.

32. Given these considerations, I am satisfied that the QPRIME access information comprises exempt information under schedule 3, section 10(1)(f) of the RTI Act.

Exception to the exemption

33. The applicant also made an alternative submission³⁸ that, if the QPRIME access information does qualify as exempt information, it cannot be said on a ‘blanket basis’ that all documents must be exempt, because of the exception to the exemption in schedule 3, section 10(2)(a) of the RTI Act.  This exception provides that information is not exempt information where it reveals that the scope of a law enforcement investigation has exceeded the limits imposed by law.

34. In his submissions,³⁹ the applicant refers to previous cases of unauthorised QPRIME access and a ‘culture within the QPS of officers accessing the QPRIME database unlawfully’.  In this regard, he refers to media articles discussing this issue,⁴⁰ and expresses concern that his personal information within QPRIME has been accessed unlawfully.⁴¹ However, for the exception in schedule 3, section 10(2)(a) of the RTI Act to apply,⁴² the information itself, that is, the QPRIME access information, must consist of material that objectively reveals that the scope of a law enforcement investigation has exceeded the limits imposed by law.⁴³

35. In the application that is the subject of this review, the applicant sought access to QPRIME access information.  As noted at paragraph 29 above, the applicant is seeking to access information about who has accessed, viewed or otherwise utilised his records within QPRIME and when they did so, rather than seeking to access records relating to an investigation.  I am satisfied that the QPRIME access information alone, cannot, of itself, reveal that any particular access to QPRIME was unauthorised, or that the scope of any law enforcement investigation had exceeded the limits imposed by law.  I also consider that this is the case when considering the QPRIME access information within the context of all information before me in this review.  Accordingly, I am satisfied that the QPRIME access information may, at best, amount to untested evidence concerning an officer’s authority to access QPRIME in a particular instance.

36. Given this position, I cannot conclude that QPRIME access information reveals evidence of an investigation having exceeded its limits.  Accordingly, I am satisfied that on the available information in this review, the exception to the exemption in schedule 3, section 10(2) of the RTI Act does not apply.⁴⁴

Other submissions

37. In his submissions, the applicant also referred to other individuals who have successfully obtained access to QPRIME access information from QPS which revealed, in one case, that an individual’s record had been accessed in excess of 1,400 times.⁴⁵ I acknowledge that QPS has, on some occasions in the past, disclosed QPRIME access information.⁴⁶ However, in processing a series of applications made to QPS by various individuals seeking access to information substantially the same as the QPRIME access information in the past year, QPS identified several issues associated with disclosure of such information, which led to QPS making submissions to OIC regarding its expectation of prejudice to its methods or procedures, as they relate to QPRIME.⁴⁷

38. The position previously taken by QPS in relation to disclosure of QPRIME access information does not have any impact on my finding that this information meets the requirements for exemption under schedule 3, section 10(1)(f) of the RTI Act.  There is nothing in the IP Act which prevents an agency from reconsidering its position on disclosure of particular information.  Similarly, there is no requirement for me to follow the approach taken by an agency in response to a previous access application.  In conducting a merits review, I am required to determine each matter on its own facts and on the basis of the available evidence at the time of making my decision.

39. The applicant also submitted that there is a significant public interest in disclosure of the QPRIME access information.  I acknowledge that the IP Act is to be administered with a pro-disclosure bias⁴⁸ and that it is Parliament’s intention that the grounds for refusing to deal with applications be interpreted narrowly.⁴⁹ However, the exemptions in schedule 3 of the RTI Act set out the types of information which Parliament has decided would, on balance, be contrary to the public interest to disclose.  While an agency has discretion in these circumstances,⁵⁰ the Information Commissioner does not.⁵¹ Once a class of documents satisfies the requirements of an exemption, as I have found in this case, I am precluded from considering any public interest factors, no matter how compelling.⁵²

DECISION

40. I vary the decision of QPS and find that section 59 of the IP Act can be relied on to refuse to deal with the applicant’s access application, on the basis that the application is expressed to relate to all documents containing information of a stated kind, and all of the documents to which the application relates comprise exempt information under schedule 3, section 10(1)(f) of the RTI Act.

41. I have made this decision under section 123 of the IP Act, as a delegate of the Information Commissioner, under section 139 of the IP Act.

A Rickard
Assistant Information Commissioner

Date: 31 August 2017

APPENDIX

Significant procedural steps

1 QPRIME is the Queensland Police Records and Information Management Exchange.  This is the database used by QPS to capture and maintain records for all police incidents in Queensland.
2 Access application dated 20 June 2016.
3 Decision dated 29 July 2016.
4 In a letter to QPS dated 25 August 2016.
5 Internal review decision dated 13 September 2016.
6 External review application dated 30 September 2016.
7 Letter to QPS dated 19 October 2016.
8 Given it is commonly known that QPS maintains a computer database to capture and maintain records about police incidents.
9 Submission dated 24 October 2016.
10 Accordingly, the applicant’s submissions in respect of QPS’s decision to neither confirm nor deny the existence of documents requested in the access application have also not been addressed in these reasons for decision.
11 Or delegate.
12 Section 118(1)(b) of the IP Act.
13 QPS does not contest the application of section 59 of the IP Act.
14 While I have carefully considered all of the submissions received, the applicant’s submissions are only addressed below to the extent they are relevant to the issues for determination.
15 Section 58(1) of the IP Act.
16 See sections 47(3)(a) and 48 and schedule 3 of the RTI Act.  
17 See Isles and Queensland Police Service [2017] QICmr 1 (12 January 2017) (Isles), Flori and Queensland Police Service [2017] QICmr 5 (16 February 2017) (Flori), Shelton and Queensland Police Service [2017] QICmr 18 (29 May 2017) (Shelton), Eaves and Queensland Police Service [2017] QICmr 23 (30 June 2017) (Eaves), Kyriakou and Queensland Police Service [2017] QICmr 29 (9 August 2017) (Kyriakou (1)), Kyriakou and Queensland Police Service [2017] QICmr 30 (9 August 2017) (Kyriakou (2)), Kyriakou and Queensland Police Service [2017] QICmr 31 (9 August 2017) (Kyriakou (3)).
18 The period 2006 to 10 June 2016.
19 Schedule 3, section 10(1)(f) of the RTI Act.
20 Submission dated 16 June 2017.
21 In its submission, QPS provided generic examples of how disclosure of QPRIME access information, showing the frequency of access and identifying who accessed the information, may prejudice policing activities.  The following are a sample of QPS’s examples:
* Persons who have engaged in criminal activities could identify, through the existence or absence of records, whether they have been identified as a suspect or person of interest.  For example, a person who has committed an offence could identify whether they are a suspect simply by applying for access records for any enquiries undertaken after the date of the offence
* Persons who may have previously been considered a suspect/person of interest may be able to identify whether they remain so, through the existence or absence of records.  For example, a suspect in a cold case murder could identify whether they remain a suspect, and if not, could feel safe to take action to dispose of items used or obtained in the commission of the offence; and
* Persons proposing to engage in criminal activities could identify, through the existence or absence of records, whether they are the subject of attention/surveillance by police.  For example, persons proposing to engage in terrorism related activities could identify whether they are, or have been subject to police attention and, if so, alter their activities to avoid detection; or, if not, feel empowered to continue with the activity.
These examples, being generic, should not be construed as relating to the circumstances of this external review.
22 External review application and submission dated 8 December 2016.
23 Paragraph 16 of submission dated 8 December 2016.
24 Paragraph 17 of submission dated 8 December 2016, citing T and Queensland Health (1994) 1 QAR 386 at [32].
25 That is, schedule 3, section 10(1)(a), 10(3), 10(4), 10(5)(a), 10(5)(b) and 10(5)(c) of the RTI Act.
26 Paragraph 18 of submission dated 8 December 2016.
27 Paragraph 19 of submission dated 8 December 2016.
28 Paragraph 20 of submission dated 8 December 2016.
29 Paragraph 21 of submission dated 8 December 2016.
30 Submission dated 16 June 2017.
31 The requirements of the phrase ‘could reasonably be expected to’ in the particular context of this exemption were discussed by the Right to Information Commissioner in Gold Coast Bulletin and Queensland Police Service (Unreported, Queensland Information Commissioner, 23 December 2010) at [20]-[21].
32 Including those noted in the generic examples at footnote 21 above.
33 Under section 121(3) of the IP Act, I must not disclose information claimed to be exempt or contrary to the public interest in reasons for decision. I am therefore constrained in the extent to which I can explain the particular circumstances put forward by QPS in support of the application of this exemption.
34 That is, schedule 3, section 10(1)(a), 10(3), 10(4), 10(5)(a), 10(5)(b) and 10(5)(c) of the RTI Act.
35 Except schedule 3, section 105(c) of the RTI Act which relates to information received by Crime Stoppers Queensland Ltd.
36 Schedule 3, section 10(1)(a) of the RTI Act.
37 By the relevant law enforcement body for the purposes of schedule 3, sections 10(3), 10(4) and 10(5)(a) and (b) of the RTI Act.
38 Paragraphs 25-29 of submission dated 8 December 2016.
39 External review application and submission dated 8 December 2016.
40 The media articles referred to in the applicant’s submission include, among others:
* AAP, ‘Qld cop stood down over ‘database breach’ (17 May 2016) http://www.news.com.au/national/breaking-news/qld-cop-stood-down-over-database-breach/news-story/a62186679a17dd70ca4eea4c589c83e2; and
* CCC Media Release, ‘Police officer charged for unauthorised access and disclosure of confidential information’ (22 June 2016) http://www.ccc.qld.gov.au/news-and-media/ccc-media-releases/police-officer-charged-for-unauthorised-access-and-disclosure-of-confidential-information-22-june-2016.
41 I note that such concerns are able to be considered by other bodies such as the Crime and Corruption Commission, who are able to obtain access to relevant records.
42 As noted in Isles at [21], Flori at [25], Shelton at [28], Eaves at [24], and Kyriakou (1), Kyriakou (2) and Kyriakou (3) at [29].
43 Previous decisions of the Information Commissioner have not considered, in any detail, the nature or extent of evidence required for this exception to apply.
44 There is no evidence available to OIC to indicate that any other exceptions in schedule 3, section 10(2) of the RTI Act apply.
45 External review application.
46 For example, see information released pursuant to informal resolution processes referred to at [12] of Wolfe and Queensland Police Service [2016] QICmr 27 (30 June 2016).
47 See paragraphs 19 to 21 above.
48 Section 58(4) of the IP Act.
49 Section 67(2) of the IP Act.
50 Section 58(4) of the IP Act.
51 Sections 58(4) and 118(2) of the IP Act.
52 Section 118(2) of the IP Act provides that the Information Commissioner does not have the power to direct that access to an exempt document be granted.  
53 The applicant’s solicitor made the same submissions in this external review and another external review which has also been finalised by decision—see Cutts and Queensland Police Service [2017] QICmr 39 (31 August 2017) (Cutts).
54 QPS made the same submissions in this external review and the external review finalised in Cutts.