OKP and Department of Communities
(210604, 9 July 2009)
Section 44(1) of the FOI Act – Personal affairs
Section 48(1) of the FOI Act – Matter to which secrecy provisions of enactments apply
The applicant sought access to documents held by the Department of Communities (Department) regarding his time in State care as a child (FOI Application).
The Department identified seven files in response to the FOI Application and decided to release some documents in full, others in part and refuse access to the remaining documents pursuant to section 44(1) of the Freedom of Information Act 1992 (Qld) (FOI Act). The applicant sought internal review of the Department’s decision. On internal review, the Department decided to vary its earlier decision and partially release additional information. The applicant then applied to the Information Commissioner for external review of the Department’s decision to refuse access to the remaining documents.
On external review, the applicant submitted that:
· disclosure of the matter in issue:
o may explain why he was placed in care
o will give him insight into his childhood
o will fulfil his desire to know more about his family’s history and why decisions were made
· disclosure of deceased family member’s information contained in the documents would not be detrimental to anyone
· information written by staff and social workers has previously been incorrect.
In its submissions to this Office, the Department stated that:
· the matter in issue is highly personal information of third parties (the applicant’s family) which is protected from release under section 44(1) of the FOI Act
· there are no public interest considerations that are capable of outweighing the protection of personal information conferred by section 44(1) of the FOI Act
· the only interest served by release of the information is that of the applicant himself
· the Department’s requirements under the current Child Protection Act 1999 (Qld) (CP Act) should not be considered in the context of the applicant’s time in care (which was some 40 years ago)
· section 187 of the CP Act applies
· there is no reference to the consideration of an applicant’s ‘justifiable need to know’ in the FOI Act and this cannot be a reasonable consideration when making decisions about the release of third party information
· release of information to one person is release to the world
Following consideration of the documents in issue, the requirements of section 44(1) and 48(1) of the FOI Act, relevant public interest considerations and the submissions made by each party, the Acting Information Commissioner found that:
Section 44(1) of the FOI Act
· the matter in issue comprises personal affairs information of persons other than the applicant for the purpose of section 44(1) of the FOI Act
· there are five public interest considerations that favour disclosing the matter in issue to the applicant, each of which should be given significant weight:
o enhancing government’s transparency
o enhancing government’s accountability
o the applicant’s justifiable need to know the information sought
o social and economic well-being of the community
o respect for fundamental human rights
· the principal public interest consideration favouring non-disclosure of the matter in issue is the inherent public interest in protecting personal privacy, however:
o the privacy interest is slightly reduced because of the age of the documents and the diminished privacy concerns of deceased persons over time
o the nature of the privacy interest is such that its weight is significantly lessened
· the public interest arguments which favour disclosure of the matter in issue outweigh the public interest in protecting the privacy of the named individuals
· Section 44(1) of the FOI Act makes it clear that the ultimate criterion for disclosure is the public interest. To the extent that it might be necessary to consider the dissemination of the matter in issue in balancing the public interest, a decision maker:
o cannot assume that disclosure of information to an applicant is disclosure to the world at large
o should not exclude from consideration evidence about the intended or likely extent of dissemination of information by the applicant.
· the matter in issue is not exempt from disclosure under section 44(1) of the FOI Act
Section 48(1) of the FOI Act
· disclosure of the matter in issue is not prohibited by section 187 of the CP Act
· the matter in issue does not qualify for exemption under section 48(1) of the FOI Act
· had the information qualified for exemption under section 48(1) of the FOI Act, the public interest in ensuring that people formerly in the care of the State are afforded every opportunity to repair the damage done to their lives and reach their potential is a compelling reason to necessitate disclosure of the matter in issue.
Accordingly, Information Commissioner Kinross found that the matter in issue should be released to the applicant.