Richardson and Queensland Police Service; Whittaker (Third Party)
(2000 S0033, 13 August 2001)
Karlos and Queensland Police Service; Whittaker (Third Party)
(2000 S0057, 13 August 2001)
The applicants brought ‘reverse FOI’ applications to prevent the disclosure by the Queensland Police Service (QPS) of a police brief prepared for presentation in the Magistrates Court at the prosecution of Mr Karlos for prostitution-related offences.
The contents of the brief had not previously been made public because Mr Karlos had pleaded guilty to the charges. In applying s.44(1) of the FOI Act, the Information Commissioner was satisfied that the information in the police brief concerned the personal affairs of either Mr Karlos, Mr Richardson (who was referred to in the brief), or both.
The FOI access applicant, a journalist, took part in the external reviews as a third party. All participants contributed submissions identifying a range of public interest considerations claimed to tell for, and against, a finding that disclosure of the matter in issue would, on balance, be in the public interest.
The Information Commissioner accorded significant weight to the privacy interests of Mr Karlos and Mr Richardson, but ultimately held that the weight of the public interest considerations favouring disclosure warranted a finding that disclosure would, on balance, be in the public interest. Two considerations in particular ultimately carried determinative weight in favour of disclosure:
• accountability of Mr Richardson for his conduct at a time when he was a Minister of the Crown in right of the Commonwealth of Australia; and
• informing public debate about acceptance of gifts or benefits by Ministers. The Information Commissioner relevantly observed:
• I do not consider that the ‘public interest’ referred to in the Queensland FOI Act is limited to considerations operating at the level of State or local government. Clearly, the operations of government at a Commonwealth level have a profound effect on Queenslanders, as much as on every other citizen of Australia. The concept of public interest is a broad one, and I see no reason to limit its scope merely because it appears in a Queensland enactment.
• In my view, the fact that the QPS was satisfied that the allegations against Mr Richardson (if true) involved no offence on his part under Queensland law, and that the AFP found no evidence to establish an offence under Commonwealth law, does not exhaust the public interest in scrutiny of, and accountability for, the propriety of the alleged conduct of a person who, at the relevant time, held an important position of public trust… Australian electors are entitled to, and do, expect appropriate standards of ethical behaviour from their elected representatives. It is commonly accepted that this extends to activities undertaken away from the actual conduct of the duties of public office, that may affect or compromise a person's ability to faithfully carry out the duties of public office.
• … the circumstances in which a public officer accepts a gift or benefit has been recognised as relevant to the performance of public duties and capable of compromising, or appearing to compromise, the integrity of a holder of public office: see, for example, ‘Guidelines on Official Conduct of Commonwealth Public Servants’ (Public Service Commission, Canberra, 1995); ‘A Guide on Key Elements of Ministerial Responsibility’ issued by the Prime Minister (Canberra, December 1998) at pages 10-12. The acceptance of a significant gift or benefit may give rise to at least a perception that there was an expectation of, or agreement as to, a quid pro quo in terms of the way the public officer carries out his or her public duties, or, in the case of an office-holder as senior as a Minister of the Crown, deploys the influence that attaches to such a position.
• I consider that there is a public interest consideration favouring disclosure of information about a situation in which a Minister is alleged to have been offered a benefit of significant value, in order to allow the public to assess whether the Minister has exercised sound judgment and common sense in deciding whether to accept such a benefit. That the beneficiary of the gift did not intend to, or did not in fact, do anything in return, would not, in my view, significantly detract from the public interest in accountability in respect of the holder of an important position of public trust putting himself or herself in a situation of the kind that Mr Richardson is alleged to have done, as a Minister of the Crown in 1993.
• In my view, it cannot be a sufficient counter to the force of this public interest consideration, that Mr Richardson has denied the allegations and they remain untested. A lapse in the standards of propriety or ethical conduct (which does not cross the line into criminal conduct) that electors have a right to expect of their elected representatives holding senior positions of public trust, is not going to be tested in a court of law, but is certainly, in my view, a matter on which the public should be informed, since informed public debate may be one of the few avenues available to moderate or deter unacceptable behaviour by holders of public office that does not cross the line into criminal conduct. Disclosure of the matter in issue would assist interested members of the public to assess the strength of the evidence to substantiate the allegations involving Mr Richardson and Mr Karlos, that the QPS had available to present to a court.
• I do not accept the contentions put on behalf of Mr Richardson and Mr Karlos to the effect that this public interest consideration does not warrant further public ventilation of the allegations against them, because Mr Richardson no longer holds public office and the allegations have long since ceased to be a matter of public controversy. It is inherent in the concept and purpose of accountability that it involves being called to account for, and take responsibility for, past actions (or inaction), and the existence of meaningful accountability measures is intended to promote and encourage (in part, through a desire to avoid being called to account for unsatisfactory performance or conduct) the more efficient, economical and ethical conduct of government by present and future occupants of public office.
• In my view, disclosure of the matter in issue would also assist to promote more informed public debate about the standards of conduct that the electors have a right to expect from their elected representatives, especially Ministers of the Crown, and whether, for example, a code of conduct should be developed to more explicitly prescribe the standards to be observed, or more specifically proscribe certain behaviours. Fruitful public debate is often fuelled by consideration of specific problem cases, rather than just general principles.