Uksi and Redcliffe City Council; Cook (Third Party)
(1993 L0025, 16 June 1995)
This was a ‘reverse-FOI’ application in which the applicants objected to release by the respondent Council of documents relating to complaints made by them about damage to their property allegedly caused by the neighbouring property of the third party (the initial applicant for access under the FOI Act).
The applicants claimed legal professional privilege in respect of letters to the respondent Council, and an engineer’s report allegedly obtained for use in anticipated litigation. While it was not clear that the engineer’s report satisfied the 'sole purpose' test so as to attract legal professional privilege, it was quite clear that any privilege which might have attached to the report had been waived by its intentional disclosure to the Council. The correspondence from the applicants to the Council was not brought into existence for a purpose which would attract legal professional privilege. The applicants could not establish a case for exemption under s.43(1) of the FOI Act.
The applicants also claimed that the documents in issue were exempt under s.42(1)(d) of the FOI Act, on the basis that disclosure of the documents could prejudice the fair trial of any subsequent civil action concerning the damage to their property. The Information Commissioner expressed the view (at paragraph 34) that the words 'a person’s fair trial' in s.42(1)(d) do not refer to a civil suit between parties, but to the trial of a person charged with a criminal offence. The words did not apply to a civil suit of the kind the applicants had in contemplation. The words 'impartial adjudication of a case' in s.42(1)(d) did extend to a civil suit of the kind the applicants had in contemplation; however, the Information Commissioner was unable to see any reasonable basis for an expectation that disclosure of the documents in issue could prejudice the impartial adjudication of such a case.
The applicants also contended that the documents in issue concerned their personal affairs and were exempt under s.44(1) of the FOI Act. However, the Information Commissioner concluded that most of the matter in issue was properly to be characterised as information which concerned the shared personal affairs of both the applicants and the third party, and (applying principles set out in B and Brisbane North Regional Health Authority(1994) 1 QAR 279 at paragraphs 172-178) that disclosure of all of the matter in issue to the third party would, on balance, be in the public interest.