Phyland and Department of Police
(310548, 31 August 2011)
Section 55 – information as to existence of particular documents
The applicant applied, under the Right to Information Act 2009 (Qld) (RTI Act) to the Department of Police (known as the ‘Queensland Police Service’ – QPS) for access to documents comprising the criminal record of a named individual. The applicant submitted the documents were relevant to Family Court proceedings between the applicant and the individual.
The QPS neither confirmed nor denied the existence of the documents sought by the applicant, under section 55 of the RTI Act. The applicant applied to the Information Commissioner for external review of the decision.
The Right to Information Commissioner noted that when an agency relies on section 55 of the RTI Act, an agency must demonstrate that the information sought by the applicant is ‘prescribed information’ as that term is defined in schedule 6 of the RTI Act. For the purposes of this review, the Right to Information Commissioner identified that part (b) of the definition of ‘prescribed information’ was relevant, that is, the information must be:
· personal information
· the disclosure of which would, on balance, be contrary to the public interest under section 47(3)(b) of the RTI Act.
Given the terms of the applicant’s access application, the Right to Information Commissioner was satisfied that the documents sought by the applicant would, if they existed, comprise the personal information of an individual other than the applicant.
In deciding whether the disclosure of the documents, if they existed, would, on balance, be contrary to the public interest, the Right to Information Commissioner decided that:
· given that information of the kind requested could be obtained through formal Family Court mechanisms, the public interest relating to the administration of justice should be afforded marginal weight
· the public interest in protecting an individual’s right to privacy should be attributed substantial weight
· the type of the personal information that the documents would contain (if they existed) could reasonably be expected to cause a public interest harm, if disclosed.
The Right to Information Commissioner found that disclosure of the documents (if they existed) would, on balance, be contrary to the public interest.
The Information Commissioner decided that the QPS was entitled to neither confirm nor deny the existence of the documents sought by the applicant under section 55 of the RTI Act on the basis that, if the documents did exist, they would be documents to which access would be refused under section 47(3) of the RTI Act because they comprised prescribed information.
