Sheridan and South Burnett Regional Council, Local Government Association of Queensland Inc. and Dalby Regional Council
(210201, 201238, 210285 and 210286, 9 April 2009)
The applicant was an employee of the former Nanango Shire Council (now South Burnett Regional Council) (Council). The CEO terminated her employment with Council in 2006.
The applicant sought access to a range of documents from the respondent agencies which related to the termination of her employment from Council and other related matters.
Three of the respondent agencies claimed that section 42(1)(ca) of the Freedom of Information Act 1992 (FOI Act) was applicable in the circumstances.
The Office had previously finalised a number of related external reviews and had four other related external reviews on foot involving another applicant, Ms S Scott.
During the course of the external reviews, the Office requested that the respondent agencies and the former CEO of Council provide information in relation to their concerns about the release of documents to the applicant and Ms Scott.
Section 42(1)(ca) – Disclosure of the matter in issue could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation
The Acting Information Commissioner made the following observations about the operation of section 42(1)(ca) of the FOI Act:
· The conduct contemplated in section 42(1)(ca) is more ‘serious’ than some conduct that may be contemplated by section 96A(3)(b).
· Some degree of harassment or intimidation is contemplated as permissible before the right to access documents under the FOI Act is removed.
· The subjective purpose of the applicant is not a relevant consideration.
· Section 42(1)(ca) may apply in respect of a single access application, that is, neither the application nor the applicant need be characterised as vexatious for the provision to apply.
· Section 42(1)(ca) does not require a causal link to be drawn between a specific person and the conduct; nor does it require the conduct to be that of the applicant.
Having regard to parliament’s intention in enacting section 42(1)(ca) of the FOI Act and the plain meaning of the words used in that provision, the Acting Information Commissioner found that:
· Acts which induce fear or force a person into some action by inducing fear or apprehension are acts of intimidation.
· Acts of intimidation which have undesired consequences or cause concern and/or apprehension are serious acts of intimidation.
· Acts which persistently trouble, disturb or torment a person are acts of harassment.
· Acts of harassment which have undesired consequences or cause concern and/or apprehension are serious acts of harassment.
The Acting Information Commissioner found that serious acts of harassment and intimidation had previously occurred based on the:
· information provided by the former CEO that he had received a threatening phone call from an unknown caller with reference to the applicant and had been subject, in the presence of his children, to an act of physical violence
· numerous postings that had been made on a website known as Bunya Watch by people claiming to be the applicant’s supporters
· use of FOI applications by the applicant and people claiming to be her supporters.
Having taken into account the:
· nature of the matter in issue which was the subject of the external reviews
· likely effect of disclosure of the matter in issue
· past conduct
· nature of the relationship between the parties and/or third parties
the Acting Information Commissioner determined that, in the circumstances, the matter in issue qualified for exemption under section 42(1)(ca) of the FOI Act.
Section 29(4) – Refusal to deal with an application
The Acting Information Commissioner decided to refuse to deal with the sufficiency of search issues raised by the applicant in these reviews under section 29(4) of the FOI Act on the basis that if the documents existed they would fall within the classes of documents that could reasonably be expected to result in a person being subjected to a serious act of harassment and/or intimidation if disclosed and would qualify for exemption under section 42(1)(ca) of the FOI Act.