Murphy and Queensland Treasury
(1993 S0222, 19 September 1995)
Mr Murphy sought access to documents held by the respondent (specifically, the Office of State Revenue) concerning his land tax affairs. In its response to Mr Murphy's access application, the respondent refused to grant access to the names of individual officers of the Office of State Revenue, appearing on the requested documents, claiming that the names were exempt matter under s.40(a), s.40(c), s.40(d), s.42(1)(c) and s.44(1) of the FOI Act.
With regard to s.44(1) (the personal affairs exemption), the Information Commissioner held that the names of officers, recorded in connection with the performance of their work duties, were not 'personal affairs' information within the meaning of that provision, and therefore did not qualify for exemption on that basis.
With respect to s.42(1)(c) (danger to a person's life or physical safety), the Information Commissioner canvassed numerous decisions from other jurisdictions dealing with corresponding exemption provisions. The Information Commissioner stated that the question of whether disclosure of certain matter could reasonably be expected to endanger a person's life or physical safety is to be objectively judged in the light of all relevant evidence, including any evidence obtained from or about the claimed source of danger, and not simply on the basis of what evidence is known to persons claiming to be at risk of endangerment, or their subjective view of the matter.
The Information Commissioner found that evidence of Mr Murphy's verbal abuse and aggressive telephone manner towards agency staff in sporadic contacts over a period of four years, was insufficient to establish a reasonable expectation that disclosure could endanger a person's life or physical safety. There was also evidence that Mr Murphy had claimed that he kept a list of public servants whom he considered had acted inappropriately towards him, and that he had foreshadowed that he would, one day, take action against those listed. The Information Commissioner found that the threats of action did not relate to any threat to the life or physical safety of those listed but rather to future legal action which Mr Murphy would take in the event that the law changed in the manner he hoped.
The Information Commissioner also discussed the relevance of claims of potential 'harassment' to the application of s.42(1)(c), indicating that only harassment which could reasonably be expected to endanger a person's life or physical safety would justify exemption, having regard to the terms in which s.42(1)(c) is framed. The Information Commissioner stated that a threat to take legal action, or even the commencement of legal action, would not amount to harassment which could reasonably be expected to endanger a person's life or physical safety. The Information Commissioner concluded that, viewed objectively, disclosure of the officers' names could not reasonably be expected to endanger the life or physical safety of any person, and that the matter in issue was not exempt matter under s.42(1)(c).
The Information Commissioner dismissed the respondent's claim for exemption under s.40(a) (prejudice to the effectiveness of a method or procedure for the conduct of audits by an agency). The Information Commissioner held that the respondent had failed to identify a method or procedure for the conduct of land tax audits that could reasonably be expected to be affected by disclosure of the matter in issue.
With respect to s.40(c) (substantial adverse effect on the management or assessment of the agency's personnel), the Information Commissioner held that the respondent's evidence concerning its officers' expectations of fear of harassment, or endangerment to life or physical safety, was not sufficient to establish a substantial adverse effect on staff morale or productivity, particularly in light of the respondent's written policy of requiring staff to identify themselves in their dealings with members of the public. The Information Commissioner held that the public interest in the respondent's officers being accountable to the public for their actions outweighed any interests favouring non-disclosure of the matter in issue.
Concerning s.40(d) (substantial adverse effect on the conduct of industrial relations by an agency), the Information Commissioner stated that the expected substantial adverse effect must be on the conduct by an agency of industrial relations, rather than the management by an agency of its personnel (which is covered by s.40(c)). The Information Commissioner held that he was not satisfied that there was a reasonable basis for an expectation that disclosure of the matter in issue would have a substantial adverse effect on the conduct of industrial relations by the respondent.
The respondent subsequently mounted an unsuccessful challenge to the Information Commissioner's decision in the Supreme Court of Queensland (see State of Queensland v Albietz [1996] 1 Qd R 215). In his decision, de Jersey J dealt with the three issues raised by the respondent.
First, the respondent argued that, in making my determination on the applicability of s.40(a), the Information Commissioner had failed to afford it procedural fairness. The respondent contended that the Information Commissioner had made findings concerning a particular assertion by the respondent, based on submissions from Mr Murphy on the issue which referred to the contents of the relevant land tax audit file held by the respondent, and on my independent examination of that file, without giving the respondent an opportunity to comment. Mr Justice de Jersey rejected this aspect of the respondent's challenge, noting that the respondent had been provided with Mr Murphy's submissions on the point, which referred to the file in question, but had made no response on the point. Mr Justice de Jersey held that the respondent had notice that its assertion was challenged by Mr Murphy, and of the basis for that challenge, and therefore had not been treated unfairly. His Honour further held that the Information Commissioner was entitled to examine the file in question to test the competing claims of the parties.
Secondly, the respondent argued that the Information Commissioner had erred in the interpretation of the words 'could reasonably be expected to' in s.42(1)(c) of the FOI Act, particularly by taking undue account of matters probably outside the knowledge of the relevant departmental officers. Mr Justice de Jersey rejected this aspect of the respondent's application, stating that the relevant test in s.42(1)(c) required an objective assessment on the Information Commissioner's part of all relevant factors, rather than an assessment 'through the eyes of someone who does not know all the facts'.
Finally, the respondent challenged my finding, under s.44(1) of the FOI Act, that the names of departmental officers, in the context of the performance of their work duties, were ordinarily incapable of being properly characterised as information concerning the 'personal affairs' of those persons. Mr Justice de Jersey stated his agreement with the approach adopted by the New South Wales Court of Appeal decision in Commissioner of Police v Perrin (1993) 31 NSWLR 606. His Honour indicated that the name by which a person is known would not ordinarily form part of that person's 'personal affairs'. He noted that the Information Commissioner had examined the documents in issue, and held that the Information Commissioner's conclusion that disclosure of the names of the respondents' officers would disclose information 'which merely concerns the performance by a government employee of his or her employment duties' must therefore be accepted as a finding of fact the Information Commissioner was entitled to make. This, Mr Justice de Jersey held, led to the natural next step of concluding that exemption under s.44(1) was unavailable to such matter.