Rolfe and Banana Shire Council
(210545, 30 September 2009)
Banana Shire Council (Council) operated a quarry on property owned by a third party (Quarry Owner). The applicant requested information relating to the extraction of gravel from a pit located on that property (Gravel Pit).
A number of issues were informally resolved during the course of this external review and Council located and agreed to provide a number of additional documents to the applicant. The decision related to the issues which were remaining for determination.
Section 44(1) of the FOI Act - Matter affecting personal affairs
The first issue related to whether information about an employee’s course of study as it appeared in a document provided to Council as part of a tender submission was exempt from disclosure under section 44(1) of the Freedom of Information Act 1992 (Qld) (FOI Act).
Acting Assistant Commissioner Jefferies considered the principles in Stewart and Department of Transport (1993) 1 QAR 227 and Griffiths and Building Services Authority (Unreported, Queensland Information Commissioner, 31 August 1998) (Griffiths) and decided that, for the reasons set out in Griffiths, the relevant matter in issue:
· related to an individual’s course of study and was therefore characterised as concerning the individual’s personal affairs
· was prima facie exempt from disclosure under section 44(1) of the FOI Act.
In relation to the public interest question, the Acting Assistant Commissioner decided that:
· the public interest in Council being accountable for the tender process in this matter was met by disclosure of a significant amount of the information in the tender documents
· disclosure of the information concerning an individual’s course of study did not advance the public interest in Council’s accountability in this tender process
· there were no public interest considerations favouring disclosure of the information.
Section 45(1)(c) of the FOI Act - Matter relating to business affairs
The second issue related to whether figures relating to the extraction of gravel from the Gravel Pit were exempt from disclosure under section 45(1)(c) of the FOI Act. The relevant figures appeared in gravel tally sheets, recipient created tax invoices, job ledgers and a table showing payments made to the Quarry Owner.
Acting Assistant Commissioner Jefferies considered the principles in Cannon and Australian Quality Egg Farms Ltd (1994) 1 QAR 491 and decided that information which would disclose:
· the quantity of gravel extracted by Council
· the price per unit for gravel royalty payments
· payment information including payments to be paid to the Quarry Owner, the payments actually made to the Quarry Owner, the date the payments were made, the payment method and the progressive totals of those payments
did not qualify for exemption under section 45(1)(c) of the FOI Act.
Section 28A(1) of the FOI Act – Document nonexistent or unlocatable
The third issue related to whether access to some of the requested documents could be refused under section 28A(1) of the FOI Act, namely:
· contracts given out by Council for extracting, crushing, screening and carting material from the Gravel Pit since 1/10/2004 (including letters of acceptance to the contractors)
· delivery dockets from contractors for quantise of materials carted on behalf of Council from the quarry and daily run sheets for contract cartage
Council provided submissions stating that the requested documents did not exist and explaining why they had not been created. Council also provided information about the searches it conducted for the requested documents.
Acting Assistant Commissioner Jefferies considered the principles in PDE and the University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) and decided that:
· Council’s searches were extensive and comprehensive in the circumstances and Council had taken all reasonable steps to locate the contracts for the tender process to which the applicant sought access
· the extent of the searches undertaken by Council and the outcomes also afforded weight to Council’s submissions
· there were reasonable grounds for Council to be satisfied that the requested documents did not exist.
Accordingly, access to the requested documents was refused under section 28A(1) of the FOI Act.
Scope of the FOI Application
The fourth issue related to whether the additional documents the applicant requested on external review fell outside the scope of the FOI Application.
Acting Assistant Commissioner Jefferies noted that under section 25(2)(b) of the FOI Act an applicant must, at the time of making the FOI application, provide sufficient information concerning the documents sought to enable a responsible officer of an agency to identify the documents.
Acting Assistant Commissioner Jefferies decided that:
· the FOI Application was broadly worded in terms of the types of documents to which the applicant sought access
· however, the FOI Application was specifically confined to documents concerning the extracting of gravel from the Gravel Pit and those documents specified in items A) to E) in the FOI Application
· the parameters of the FOI Application could not reasonably encompass the additional documents the applicant requested on external review.