Q Squash Ltd and Department of Local Government, Sport and Recreation; Fraser (third party)
(210231, 30 June 2008)
The initial FOI applicant, Mr Fraser, applied to the Department of Local Government, Sport and Recreation (Department) for access to documents relating to a review undertaken by the Department (Review) into Q Squash Ltd (Q Squash). The Department decided to grant Mr Fraser access to certain documents but delayed the release of some matter while consultation was engaged in with a third party, Q Squash Ltd. Q Squash objected to disclosure of the matter in issue and applied to this Office for external review of the Department’s decision to disclose matter to Mr Fraser.
On external review, the Department and Q Squash initially claimed that the matter in issue was exempt from disclosure under section 44(1) and section 45(1)(c) of the FOI Act. During the course of the review, Q Squash also raised the application of section 39 of the FOI Act as a result of an investigation commenced by the Queensland Ombudsman (Ombudsman) into the Review of Q Squash by the Department:
· whether natural justice was afforded to Q Squash during the Review process
· whether the Department provided Q Squash and its regional offices with a reasonable opportunity to respond to the Review
· the manner in which the Department dealt with the responses it received from Q Squash concerning the Review.
Mr Fraser objected to the application of section 39 of the FOI Act to the matter in issue. In deciding that the matter in issue was prima facie exempt from disclosure under section 39 of the FOI Act, First Assistant Commissioner (AC) Rangihaeata found that disclosure of the matter in issue could reasonably be expected to prejudice the conduct of the Ombudsman’s investigation in that the matter in issue would:
· be examined by the Ombudsman during its investigation
· go toward the Ombudsman’s ultimate findings with respect to natural justice and therefore, the conduct of the Department
· assist in determining whether the review process conducted by the Department needs to be amended or repeated.
In applying the public interest balancing test required under section 39 of the FOI Act, First AC Rangihaeata found that the public interest in:
· protecting the privacy of individuals
· limiting the distribution of matter which is the product of a government review process which currently under review by the Ombudsman
was sufficient to outweigh the public interest in openness and transparency in government decision making and increased public understanding of the material relied upon by the Department in conducting the Review. First AC Rangihaeata therefore found that disclosure of the matter in issue was not, on balance, in the public interest.
Accordingly, First AC Rangihaeata found that the matter in issue was exempt from disclosure under section 39 of the FOI Act and should not be released to Mr Fraser.