(210910, 18 December 2009)
Section 51 of the FOI Act – Disclosure that may reasonably be expected to be of substantial concern
Section 77(1)(a) of the FOI Act – Commissioner may decide not to review
This decision relates to a freedom of information application (Application) for documents concerning the Queensland gaming industry in 2007 and 2008.
In the course of processing the Application, Treasury Department (Department) consulted a third party - Tabcorp Casinos Division (Tabcorp). Tabcorp requested an internal review of the Department’s decision to release the documents sought in the Application under the Freedom of Information Act 1992 (Qld) (FOI Act).
The internal review decision substantially affirmed the original decision to release the documents in issue. Upon receiving the internal review decision, Tabcorp notified the Department of:
· its intention to lodge an application for external review; and
· its understanding of the due date for the external review application.
The Department and Tabcorp disagreed about the date by which an application had to be lodged for the external review because each party relied on a different date of receipt of the internal review decision. The Department relied on the advertised service standard of Australia Post as the time of service of the internal review decision; whereas Tabcorp relied the actual date service was affected. The Department released the documents in issue to the freedom of information applicant, in accordance with its calculation of the end of the review period. Tabcorp subsequently applied for external review.
Under section 39A of the Acts Interpretation Act 1954 (Qld) (AI Act), service is taken to have been effected at the time at which a letter would be delivered in the ordinary course of post, unless the contrary is proved.
A/AC Jefferies found that the internal review decision was not given to Tabcorp in accordance with the general service standards of Australia Post, but rather on the day it was actually received by Tabcorp, because under section 39A of the AI Act, the contrary had been proved by the date stamp on the decision letter. Therefore, the documents in issue were released before the end of the review period, thus effectively depriving Tabcorp of its right under the legislation to have the Department’s decision reviewed.
As there was no meaningful remedy available to Tabcorp in this review and Tabcorp indicated that it did not intend to pursue the matter, A/AC Jefferies decided not to further deal with the application on the basis that it was lacking substance under section 77(1)(a) of the FOI Act.