Trustees of the de la Salle Brothers and Queensland Corrective Services Commission
(1994 S0049, 4 April 1996)
The applicant sought access to documents concerning Goodspell Park, a half-way house for young male offenders. Goodspell Park was operated by the applicants under contract with the QCSC. The external review was based on a deemed refusal of access by the QCSC, as it failed to make a decision within the prescribed time. Although some 2000 folios were initially in issue, this was reduced to a handful of documents over the course of a lengthy negotiation process facilitated by the Office.
The Information Commissioner determined that some of the documents in issue were exempt under s.43(1), as they would be privileged from production in legal proceedings on the ground of legal professional privilege. These documents comprised legal advice given by, and draft documents prepared by, the QCSC's 'in-house' solicitor. The Information Commissioner determined that the independence of the solicitor's position was such that advice given by her was capable of attracting the protection afforded by legal professional privilege. However, the Information Commissioner found that some matter was not exempt under s.43(1), as legal professional privilege had been waived when legal advice, given by the QCSC's solicitor to another officer of the QCSC, was disclosed to the QCSC's opponent in litigation concerning Goodspell Park.
The Information Commissioner rejected the QCSC's claim that other documents, comprising intra-agency memoranda, QCSC Board Papers, and briefing notes for the relevant Minister, were exempt under s.41(1) (the deliberative process exemption). Large parts of the documents comprised merely factual or statistical matter, and were therefore not eligible for exemption under s.41(1) by virtue of s.41(2)(b). The Information Commissioner was satisfied that the remainder of the matter was deliberative process matter within the terms of s.41(1)(a).
The QCSC submitted that disclosure of this matter would be contrary to the public interest because disclosure would have the effect of impeding the proper flow of information between public servants and the Minister. This was essentially a 'candour and frankness' claim, of the kind falling within the third 'Howard criterion', which the Information Commissioner critically analysed in Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60. The QCSC's case on the public interest balancing test was vague and unsubstantiated by evidence. Examination of the matter itself revealed nothing of particular sensitivity, and no information which, if disclosed, could harm the public interest. The Information Commissioner determined that disclosure would not, on balance, be contrary to the public interest in terms of s.41(1)(b).