ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL TO DEAL WITH APPLICATIONS – information subject of earlier access application and completed external review – whether the Information Commissioner should decide to not further deal with part of external review application concerning information previously dealt with under section 94(1)(a) of the Right to Information Act 2009 (Qld)
ADMINISTRATIVE LAW - RIGHT TO INFORMATION - IRRELEVANT INFORMATION – application for access to information – information post-dating, or irrelevant to the terms, of the access application - whether irrelevant information may be deleted under section 73 of the Right to Information Act 2009 (Qld)
ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - LEGAL PROFESSIONAL PRIVILEGE - whether information is exempt on the basis of legal professional privilege under schedule 3, section 7 of the Right to Information Act 2009 (Qld) - whether access may be refused under section 47(3)(a) of the Right to Information Act 2009 (Qld)
ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - access refused to information about other individuals and businesses - personal information and privacy – business, commercial, financial affairs – whether disclosure would, on balance, be contrary to public interest - whether access may be refused under sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld)
1. The applicant applied1 to the Department of Communities (Communities) under the Right to Information Act (Qld) (RTI Act) for ‘the complete file’ concerning a specified residential unit. The applicant was a public housing tenant of the unit at the time she made her application.
2. Communities did not make a decision within the timeframe prescribed in the RTI Act. Under section 46(1) of the RTI Act, Communities was therefore taken to have made a decision refusing access to the requested information (Deemed Refusal).
3. The applicant applied2 to the Office of the Information Commissioner (OIC) for external review of the Deemed Refusal.
4. OIC did not determine substantive issues arising from the applicant’s external review application, but decided3 not to further deal with that application, in accordance with section 94(1)(a) of the RTI Act (Original Decision).
5. The applicant appealed OIC’s decision to the Queensland Civil and Administrative Tribunal (QCAT). By order dated 23 October 2014,4 QCAT set aside the Original Decision and remitted the matter to OIC to be dealt with according to the provisions of the RTI Act.
6. OIC reopened the external review and I have considered the matter afresh. A considerable amount of information in issue at the outset of the review has been released to the applicant. As for the balance, I have decided:
7. The period between OIC’s Original Decision and this decision has seen various machinery of government changes. The respondent agency is now the Department of Housing and Public Works (HPW).
8. Significant procedural steps are set out in Appendix 1 to these reasons.
9. The decision under review is the Deemed Refusal taken to have been made on 1 April 2011.
10. Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and appendix).
11. HPW located 560 pages relevant to the applicant’s RTI request for the file concerning her tenancy.6 During the course of this review, HPW agreed to release 238 of these pages to the applicant in full,7 and a further 76 in part. This released information is no longer in issue.
12. The information in issue as at the date of this decision thus comprises:
13. The information in issue is identified in Appendix 2 to these reasons. Additionally, I have forwarded to HPW with these reasons a CD containing the information in issue, clearly identifying those segments of information appearing on the 76 partially released pages noted above, to which I have decided access may be refused.
14. In view of the large number of pages in issue, I adopted a degree of generalisation during the course of the review, in order that the review could proceed with as much expedition as possible. That generalisation is also reflected in these reasons. This is in keeping with the approach to voluminous applications endorsed by Woodward J of the Federal Court of Australia in News Corporation Ltd & Ors v National Companies and Securities Commission,8 His Honour observing that: ‘… if the Freedom of Information legislation is to remain workable, it must be open to a respondent, and to the AAT [as the independent review tribunal], to deal with large numbers of documents with a degree of generalisation appropriate to the case.’9
15. The applicant requested10 that she be provided with any agency submissions lodged with OIC. Exercising my discretion under 95(1)(a) of the RTI Act, I have declined to do so, for the reasons explained in my letter to the applicant dated 4 February 2016:
I note your request for a copy of any agency submissions; the procedure to be followed on external review is a matter for OIC: section 95(1)(a) of the RTI Act. In order that participants may focus on issues salient to the review, I have opted for a procedure by which all information necessary to enable to you to address those issues is conveyed in the body of my correspondence. I am satisfied that this procedure affords you procedural fairness and is adequate to permit you to understand applicable law, respondent agency positions, and my preliminary view, and to enable you to formulate appropriate submissions as necessary. This procedure will also serve to ensure both compliance with section 108 of the RTI Act, and that the review is conducted with as much expedition as possible, as required under section 95(1)(b) of the RTI Act.
16. I have ensured that anything that has been put to me and which I have taken into account in making my decision has been conveyed to the applicant. I have also advised the applicant of any preliminary view I have formed in the course of the review, where such view has been adverse to her interests, and ensured that she has been apprised of the evidence on which I have based that view. I am satisfied that the applicant has been afforded procedural fairness in the circumstances of this review.
17. I turn now to explain the reasons for my findings as summarised in paragraph 6 above.
18. 130 of the pages in issue in this review comprise duplicates or counterpart copies of documents dealt with previously under the RTI Act, as a result of the applicant’s access application to HPW dated 28 February 2011 and OIC’s external review of HPW’s decision on that access application. This review – review no. 310671 – was finalised by way of formal decision: Underwood and Department of Housing and Public Works (Underwood).11 The schedule forming Appendix 2 to this decision cross-references pages in issue in this review against corresponding pages dealt with in that earlier matter.
19. Additionally, a number of pages partly disclosed to the applicant contain the names of private sector employees and a Tenants’ Union of Queensland employee, each of which has been deleted from the copies disclosed to the applicant.12 It was decided in Underwood that disclosure of these names would be, on balance, contrary to the public interest.13
20. For the reasons explained below, I decide not to further deal with the applicant’s external review application in this review, to the extent it concerns ‘repeat’ information (Repeat Information) of the kind described in paragraphs 18 and 19 above.
21. Section 94(1)(a) of the RTI Act provides:
(1) The information commissioner may decide not to deal with, or not to further deal with, all or part of an external review application if—
(a) the commissioner is satisfied the application, or the part of the application, is frivolous, vexatious, misconceived or lacking substance…
22. The power prescribed in section 94(1)(a) of the RTI Act is applicable to the extent an external review applicant seeks information that has been dealt with under the RTI Act in the course of prior applications by that applicant.14 As the Information Commissioner has stated, an application of this kind:15
…would clearly be vexatious, and contrary to the principle that a decision by a court or tribunal resolves the issues in dispute between the parties. A litigant cannot seek multiple hearings of the same issues between parties - that is vexatious and oppressive to the other party and to the relevant court or tribunal, and unfair to other citizens waiting their turn to use the dispute resolution services, provided from public funds, by courts and tribunals.
23. Applying the above reasoning, to the extent that the applicant’s external review application seeks to revisit information and issues dealt with previously under the RTI Act, I consider that it is frivolous, vexatious, misconceived or lacking in substance. Accordingly, I decide not to further deal with that aspect of the applicant’s application under s.94(1)(a) of the RTI Act, and to therefore deal no further with:
24. In forming this view, I have taken into account the fact that some of the documents with which I have decided to deal no further – generally, counterpart emails as appearing in the ‘mailboxes’ of multiple recipients, or subsets of larger email chains – vary slightly from the corresponding documents dealt with pursuant to the applicant’s access application ultimately the subject of review no. 310671 (the ‘Concluded Review’). They relay, however, the same information and/or embody the same communication, differing only in insignificant and superficial respects.16 To the extent the applicant’s review application seeks to press for access to such inconsequential information, I consider it frivolous.17 Further reviewing the decision under review as it relates to information and documents of this kind would – in view of the fact that the status of the substantive information they embody has been analysed and associated right of access questions previously resolved – constitute a repeat hearing of issues already determined. In the circumstances, it is my view that proceeding further in relation to such information would be ‘vexatious and oppressive to the other party and to the relevant court or tribunal, and unfair to other citizens waiting their turn to use’ OIC’s publicly-funded services.
25. I should also note that in making the finding stated in paragraph 23, I recognise18 that the access application leading to the external review the subject of this decision was made to Communities, whereas the access application leading to the Concluded Review was made to HPW.
26. HPW was, at the time the applicant made the access applications noted in the preceding paragraph, providing legal services to Communities. Communities sought HPW’s assistance in dealing with various issues concerning the applicant’s tenancy – HPW was, in practical terms, Communities’ ‘in-house’ legal advisor. Documents and information dealt with in the Concluded Review therefore essentially came from the legal files maintained by HPW in assisting Communities.
27. The Repeat Information in issue in this review comprises the ‘flip side of the coin’; the same information, as created or received by Communities in seeking HPW’s assistance. Duplicates and/or the substance of a considerable amount of the Repeat Information was, as discussed above, released to the applicant pursuant to her access application dated 28 February 2011 as lodged with HPW and through the Concluded Review that resulted. While I have not conducted an exhaustive re-examination of the issues determined in the Concluded Review,19 I have satisfied myself that where information was refused in that earlier and completed review, it was refused on grounds that would apply regardless of which agency held the documents.
28. It is also important to note that I am required to consider relevant facts and circumstances as they now stand,20 and as a result of machinery of government changes, the documents in issue in this review are HPW documents, and have been for some time. HPW was, by the time of the remitting order of Cullinane J, the relevant respondent in QCAT proceedings APL075-12. HPW is the respondent in this external review, is the agency that has collated and assessed all relevant information in response to the access application the subject of this review, and is the agency with whom OIC has conducted all meaningful liaison as regards refusal of access and disclosure. HPW is, in short, the respondent agency that did all the ‘legwork’ in the Concluded Review, and has done so again in response to the access and external review applications the subject of my review.
29. In summary, my view is that revisiting information and issues determined pursuant to the access and external review applications the subject of the Concluded Review would involve a further hearing of issues otherwise finally determined as between the applicant and HPW, the agency now responsible for relevant documents and for prosecuting a case in relation to same in this external review. This would give rise to a result that would be vexatious and oppressive to OIC, by requiring it to reconsider the same information and issues previously determined and resolved. Revisiting relevant issues would, I think it fair to conclude, also be unreasonable as regards HPW, by necessitating that it deal again in this review with matters resolved in the Concluded Review. Further, re-considering the Repeat Information may adversely impact other external review applicants seeking to avail themselves of OIC’s finite, and publicly funded, resources.
30. For the above reasons, I decide not to further deal with the applicant’s application for external review under section 94(1)(a) of the RTI Act, insofar as it seeks to revisit the Repeat Information.
31. Some of the information appearing on page 263 post-dates the applicant’s access application. Under section 73(2) of the RTI Act, an agency may give access to a document with irrelevant information deleted, if it considers from the terms of the application or after consultation with the applicant, that the applicant would accept the copy and it is reasonably practicable to give access to the copy. The agency is entitled to make the decision to delete irrelevant information based on the access application itself (i.e., without consulting the applicant) where the information clearly falls outside the scope of the access application.21
32. Information post-dating an access application plainly falls outside the temporal scope of that application. Accordingly, as the pertinent information appearing on page 263 relates to a period of time other than that which is relevant to the access application, it may be deleted as irrelevant information under section 73(2) of the RTI Act.
33. The RTI Act gives people a right to access documents of government agencies.22 This right is subject to other provisions of the RTI Act, including grounds on which access may be refused. Access may be refused to information, to the extent the information comprises ‘exempt information’.23 ‘Exempt information’ includes information that would be privileged from production in a legal proceeding on the ground of legal professional privilege.24
34. Legal professional privilege attaches to confidential communications between a lawyer and client made for the dominant purpose of seeking or giving legal advice or professional legal assistance, or preparing for, or for use in or in relation to, existing or reasonably anticipated legal proceedings.25
35. The privilege extends to copies of unprivileged documents made for the dominant purpose of obtaining legal advice26 and to internal communications repeating legal advice, whether verbatim or in substance.27
36. Relevant information – the ‘Legal Information’ – is noted in the schedule forming Appendix 2 to these reasons.28 It generally comprises communications between then-Communities officers and Communities’ legal services providers as employed by HPW,29 and communications between the latter and Crown Law solicitors. Having reviewed the Legal Information, I am satisfied that relevant communications were made for the purposes of either requesting or conveying legal advice as to the management of the applicant’s tenancy, and dealing with proceedings involving Communities and the applicant in QCAT arising as a consequence of that tenancy. Relevant pages (or parts) generally consist of emails (including attachments) between Communities staff, Communities lawyers’ at HPW, and Crown Law, conveying instructions, and requesting or providing legal advice (including internal Communities communications forwarding, repeating or reiterating the substance of such legal advice to other government officers).
37. I am satisfied that the Legal Information was created for the dominant purpose of obtaining professional legal assistance from independent legal advisors, for conveying that assistance, or for obtaining material for use in actual litigation.30 There is nothing before me to suggest that this information is anything other than confidential.31 Accordingly, I find that the Legal Information attracts legal professional privilege, and is therefore exempt information to which access may be refused.
38. It is Parliament’s intention that access should be given to a document unless giving access would, on balance, be contrary to the public interest.32 The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs, for the wellbeing of citizens generally. This means that ordinarily, a public interest consideration is one which is common to all members of the community, or a substantial segment of the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of a particular individual.
39. In deciding whether disclosure would, on balance, be contrary to the public interest, the RTI Act requires a decision-maker to:
40. Schedule 4 of the RTI Act contains non-exhaustive lists of various factors that may be relevant in determining the balance of the public interest.
41. There are three principal categories of contrary to public interest information (CTPI Information) in issue in this review, as follows:
42. I can identify no irrelevant factors arising in the circumstances of this case, and I have taken none into account in making my decision. I will now consider whether the balance of the public interest favours disclosure or nondisclosure of the CTPI Information.
43. Some of the information in issue comprises the mobile telephone numbers of both private individuals and public servants.
44. I consider that the mobile telephone numbers of private individuals comprise those individuals’ personal information,35 as by calling the numbers it would be reasonably possible to ascertain their identities. The RTI Act presumes that disclosure of personal information will give rise to a public interest harm.36 I am also of the view that disclosure of this information could reasonably be expected to prejudice protection of those individuals’ right to privacy, giving rise to a public interest factor favouring nondisclosure.37 There is, in my view, a manifest and self-evident public interest in ensuring that government protects personal information and the individual privacy of private citizens. Accordingly, I am satisfied that each of these factors warrants substantial weighting.
45. I acknowledge the general public interest in promoting access to government-held information.38 That sole factor is, however, insufficient to displace the weighty privacy interests canvassed in the preceding paragraph. I can identify no other factors favouring disclosure of private citizens’ mobile telephone numbers to the applicant, and the applicant has not, during the course of this review on remittal, sought to persuade me that any exist.39 Weighing the competing factors against one another, I am therefore satisfied that disclosure of these numbers would, on balance, be contrary to the public interest.
46. Turning then to consider the mobile telephone numbers of public servants, I dealt with the same type of information in my decision dated 29 September 2015 finalising another of the applicant’s remitted external review applications, Underwood and Minister for Housing and Public Works (Underwood and Minister).40 As in that earlier case, while I acknowledge the general public interest in furthering access to government-held information, I can in this matter identify no other public interest considerations telling in favour of information of this kind. I cannot see how disclosure of such limited and particular personal contact details could, for example, enhance government accountability,41 promote open discussion of public affairs,42 or contribute to positive and informed debate on important issues or matters of serious interest.43
47. The applicant has made no submissions during this review in support of a case for access to any of the mobile telephone numbers in issue (private citizens’ or public servants’), beyond the general assertion that she is being denied ‘…any opportunity to have wrong information corrected.’44 The submissions annexed to her application for external review, however, contain various contentions as to why information generally should be disclosed to her, including that she was being denied the ‘right to know the details of seemingly fabricated information ie perpetuating and compounding one’s persecution and prolific defamation’.45
48. The applicant made near-identical submissions in Underwood and Minister.46 To paraphrase what I said in that case, insofar as the submissions canvassed in the above paragraph are relevant, they would appear to be meaningfully applicable only to the Category 3 information. I have addressed them in that context below. There is, however, no evidence before me to suggest that any of the public servant mobile telephone numbers47 are incorrect,48 and I cannot see how mere contact numbers could be said to ‘perpetuate and compound…persecution and…defamation’ in any way, least of all in a way sufficient to merit disclosure.
49. As for factors favouring nondisclosure of public servants’ mobile telephone numbers, my analysis of relevant factors in Underwood and Minister is apposite here:
66. A factor favouring nondisclosure arises where disclosure of information could reasonably be expected to prejudice the protection of an individual’s right to privacy. OIC has previously found that disclosure of the mobile telephone numbers of public officers could reasonably be expected to lead to this prejudice. This is because such information allows officers to be contacted directly and outside of work hours. As the Assistant Information Commissioner has noted:
I acknowledge that agency employees are provided with mobile telephones to perform work associated with their employment. However, I also consider that a mobile telephone number which allows an individual to be contacted directly and potentially outside of working hours, falls outside the realm of routine work information and attracts a certain level of privacy.
67. I agree. As I have noted, disclosure of mobile telephone numbers permits potential contact with a public officer when off duty and/or engaged in private activity, thus giving rise to a reasonable expectation of intrusion into to the officer’s private life or ‘personal sphere’. (Footnotes omitted.49)
50. I am satisfied that disclosure of public servants’ mobile telephone numbers could reasonably be expected to prejudice the protection of associated individuals’ right to privacy, and that the nondisclosure factor50 therefore applies.
51. It remains then to balance relevant factors against one another. As noted in paragraph 45, I recognise the general public interest in promoting access to government-held information. There are, however, no broader accountability or transparency considerations standing to be advanced by disclosure of the public servant mobile numbers in issue, and in the circumstances I think this consideration favouring disclosure warrants only minimal weight.
52. Weighing against disclosure is the public interest in avoiding prejudice to the protection of an individual’s right to privacy. There is a clear public interest in ensuring that government respects personal privacy, including the privacy of its employees. I accord this consideration significant weight.
53. Balancing relevant factors against one another, I consider the substantial public interest in safeguarding individual privacy outweighs the general public interest in promoting access to government-held information.
54. Disclosure of the public servant mobile numbers in issue would, on balance, be contrary to the public interest.51
55. For the reasons explained above, access may be refused to the Category 1 information.52
56. The information in issue includes various documents relating to the management of the body corporate for the complex in which the applicant was resident. The bulk of this information was released to the applicant in the course of this review. A number of these pages do, however, contain segments of CTPI Information, generally:
a) names of private lot owners and information disclosing the manner in which those owners voted on proposed resolutions;
b) financial information concerning amounts payable by individual lot owners and the body corporate representing those owners;
c) names and personal information of employees of the strata title management company engaged to manage the body corporate; and
d) financial and operational information concerning fees payable to and services performable by the strata management company.
57. I will address each of the above sub-categories in turn.
58. I have carefully reviewed the applicant’s submissions, and this information itself. Having done so, the only factor favouring disclosure of this information that I can identify is the general public interest in promoting community access to government-held information.53 Given the nature of this information – genuinely private information concerning the personal and financial affairs of members of the public – this sole consideration favouring disclosure deserves only marginal weight.
59. Telling against disclosure is the fact that this information comprises the personal information of individual proprietors of units in the relevant complex,54 and/or information disclosure of which could reasonably be expected to prejudice the protection of those proprietors’ right to privacy.55 In this regard, I consider that an individual’s ownership of residential property, their intentions as regards the management of such property, and the financial liabilities attending ownership, comprise information falling within their ‘personal sphere’.56
60. In the circumstances, the personal information public interest harm and privacy nondisclosure factors both weigh against disclosure of this information. Each warrants substantial weight. As I can identify but one factor favouring disclosure – of negligible weight – I am of the view that disclosure of relevant information would, on balance, be contrary to the public interest. Access to this information may therefore be refused.
61. As for the employee names (and occasional segments of related personal information, such as information concerning named employees’ employment details), OIC has previously found that the fact that an individual works for a private sector business is their personal information, giving rise to the public interest harm factor favouring nondisclosure and the related public interest nondisclosure factor intended to avoid prejudice to the protection of individual privacy.57 Applying that earlier reasoning, I am satisfied that each of these factors applies to the equivalent information in issue in the present case.
62. The only factor favouring disclosure of this category of information that I can identify is the general public interest in advancing access to government-held information, noting that the applicant has put nothing before me – either in her original submissions or during this review on remittal – to identify any others meriting consideration.58 That consideration alone is, in my view, insufficient to displace the privacy interest attaching to this information and the public interest in safeguarding personal information held by government. Accordingly, it is my view that disclosure of relevant names would, on balance, be contrary to the public interest, and access to this information may be refused.
63. This subcategory of information discloses fees payable by the body corporate of the unit complex in which the applicant resided to the company contracted to manage the body corporate’s affairs, and particulars of the latter’s service arrangements. Strata management is a competitive industry, and by revealing fees received and ‘price-points’ at which it offers particular services, disclosure could, in my view, reasonably be expected to assist the company’s competitors to compete with it more effectively in the strata management services market generally.
64. In the circumstances, I consider that disclosure could reasonably be expected to prejudice the company’s business, commercial or financial affairs,59 and to cause a public interest harm, by having an adverse effect on those affairs.60 There is a legitimate public interest in ensuring that the affairs of private businesses are not unduly impacted or prejudiced by the mere fact that their information comes into the possession of government, via, as in this case, government participation in the private residential property market. I acknowledge, however, that this information is now relatively aged, arguably diminishing its commercial sensitivity somewhat. In the circumstances, I afford the nondisclosure considerations discussed in this paragraph moderate weight.
65. I again recognise the general public interest in advancing public access to government held information. I also acknowledge that HPW is accountable for its decisions to appoint and remunerate private contractors in relation to its real property holdings, and recognise the public interest in disclosing information about government dealings with public housing properties to ensure and enhance transparency and accountability of government expenditure and operations.61
66. HPW was, however, but one lot owner in a multi-unit complex, and therefore only partly responsible for decisions to engage and remunerate the company – diluting relevant accountability and transparency interests. In the circumstances, I consider that any pro-disclosure factors warrant only marginal weight; a weighting insufficient to displace those favouring nondisclosure discussed above.
67. Accordingly, I find that disclosure of relevant information would, on balance, be contrary to the public interest. Access to these segments may be refused.
68. A number of pages contain information disclosure of which would identify persons other than the applicant, in a context concerning those persons’ complaints to and/or dealings with Communities62 (or dealings proposed by Communities), including information describing individual attitudes, opinions, and personal and financial plans. As identifying information,63 this information comprises personal information, release of which would occasion a public interest harm.64 A private citizen’s dealings with a government agency concerns a central aspect of their ‘personal sphere’,65 and therefore I am further satisfied that, by linking identifiable individuals with such dealings, disclosure of the Category 3 information could reasonably be expected to prejudice protection of the third parties’ right to privacy.66
69. I recognise the public interest in disclosing information that may assist to ensure public agencies operate transparently and accountably, and acknowledge that disclosure of these segments may allow the applicant to be fully apprised of issues concerning her tenancy, and Communities’ management of same. These considerations enliven the public interest factors favouring disclosure set out in schedule 4, part 2, item 1 and 11 of the RTI Act.
70. I consider, however, that in this case applicable public interests have been adequately served by disclosure to the applicant of information concerning relevant issues, and that she has been provided with sufficient information (including via disclosure made during the course of this review) to allow her to understand those issues and Communities handling of same. Relevant pro-disclosure factors therefore warrant only moderate weight.
71. I also note that, as information concerning the applicant’s tenancy, it is arguable that some of this information also comprises her personal information (giving rise to the factor favouring disclosure prescribed in schedule 4, part 2, item 9 of the RTI Act). It is not possible, however, to separate this personal information from the personal information of others. Disclosing it would therefore require disclosure of the personal information of a person other than the applicant, and would prejudice protection of an individual’s right to privacy. In the circumstances of this case, my view is that the public interest in safeguarding personal information and privacy of third parties should be preferred to that favouring disclosure to a person of their own personal information. In short, I am not persuaded that disclosure of the Category 3 information would materially advance the pro-disclosure public interest factors I have identified above; certainly, not to an extent sufficient to justify disclosure of the personal information of which this information is comprised.
72. The applicant did not make any meaningful submissions as to public interest factors that might favour disclosure of the Category 3 information during the course of this review on remittal.67 In her application for external review, however, she asserted68 that information is ‘fabricated’, and ‘inaccurate, incomplete, out of date or misleading’.
73. A factor favouring disclosure will arise for balancing where disclosure of information could reasonably be expected to reveal that that information itself is incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant.69 There is, however, nothing before me to suggest that relevant information is inaccurate, incomplete etc. Much of it is merely factual matter – such as names – which clearly present as accurate. As for more substantive ‘complaint’ detail, OIC has previously found that information of this kind:
… is by its very nature, an individual’s particular version of events which is shaped by factors including the individual’s memory and subjective impressions.
In my view, this inherent subjectivity does not necessarily mean that the resulting account or statement is incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant. Rather, it means that complaint information comprises a personal interpretation of relevant events, which an investigator must balance against other (often competing) statements and evidence in reaching a conclusion in a particular case.70
74. I agree with and adopt the above analysis, and do not consider that the relevant pro-disclosure factor arises for consideration in this case.71
75. Nor does this appear, in my view, to be a case in which procedural fairness considerations might arise to favour disclosure. The substance of any matters potentially adverse to the applicant have either been disclosed to pursuant to related RTI access applications, or by HPW in the course of this review.
76. In the circumstances, I consider that the privacy and personal information considerations discussed above should be preferred to any considerations favouring disclosure of relevant third party information. Members of the public are generally entitled to expect that personal information collected from them by government agencies will be handled appropriately, and not subject to routine and unconditional72 disclosure to others. Safeguarding individual privacy and avoiding public interest harm by protecting personal information are public interest considerations warranting relatively substantial weight, and which outweigh any considerations favouring disclosure in this case. Disclosure would, on balance, be contrary to the public interest, and it is therefore my view that access to the Category 3 information may be refused.
77. In addition to the three categories discussed above, there is also a segment of information appearing on page 68, concerning a public officer’s leave arrangements. Disclosure of this information would cause a public interest harm by disclosing personal information,73 and would prejudice protection of the officer’s right to privacy.74 Public servants are entitled to have their personal information protected and their privacy respected, particularly as regards information relating to their personal affairs rather than public duties. Each of these considerations favouring nondisclosure therefore deserve substantial weight.
78. Other than the general public interest in promoting access to government-held information – which, in view of the considerations canvassed in the preceding paragraph, warrants only marginal weight – I can identify no other factors favouring disclosure of this information to the applicant. The applicant has made no case as to how or why the public interest might conceivably favour disclosure of this segment,75 and in the circumstances I am satisfied that its disclosure would be, on balance, contrary to the public interest. Access to this segment may therefore be refused.
79. In reaching the above findings as regards the CTPI Information, I acknowledge that the applicant may be aware of a considerable amount of information concerning identities and events to which the Category 3 and indeed other categories of CTPI Information relate, as a consequence, for example, of information released to her pursuant to various RTI access applications and of her intimate involved in events to which relevant segments contained in that information pertain. In these circumstances, it is arguable that the privacy interests attaching to some of the personal information embodied in the CTPI Information may not be of the same magnitude as might ordinarily be the case. Having said that, members of the community are, as I have noted above, entitled to expect that the personal information they convey to a government agency will not be subject to unconditional disclosure to others. In the circumstances, I remain satisfied that the factors favouring nondisclosure discussed above retain sufficient weight so as to justify refusal of access in this case.
80. I set aside the Deemed Refusal under review. In its place, I decide not to further deal with the applicant’s application for external review under section 94(1)(a) of the RTI Act, insofar as it seeks to revisit the Repeat Information. I further find that:
81. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act
Right to Information Commissioner
Date: 17 March 2016
|External review 310594|
|25 February 2011||The Department received the access application under the RTI Act.|
|1 April 2011||The Department did not make a decision within the relevant timeframe and the principal officer of the Department was taken to have refused access to the requested information under section 46(1) of the RTI Act.|
|5 April 2011||OIC received the application for external review of the deemed decision.|
|20 June 2011||OIC received submissions from the applicant.|
|23 November 2011||OIC issued a preliminary view to the applicant and invited her to provide submissions in support of her case if she did not accept the preliminary view.|
|8 December 2011||OIC received the applicant’s submissions in response to the preliminary view.|
|9 February 2012||OIC decided not to further deal with the applicant’s external review application, finalising external review no. 310594.|
|External review 100104 (remitted matter 310594)|
|23 October 2014||QCAT set aside OIC’s decision dated 9 February 2012, and remitted the matter to OIC. OIC opened review no. 100104.|
|24 December 2014||OIC asked HPW to provide submissions.|
|13 January 2015||OIC advised the applicant it had opened file no. 100104 (remitted matter 310594).|
|22 January, 3 March 2015||HPW requested and was granted by OIC extensions of time in which to provide its submissions.|
|19 March 2015||OIC updated the applicant on progress in the review.|
|5 May 2015||OIC requested HPW provide an update on the status of its submissions.|
|13 May 2015||HPW provided the requested update.|
|14 May 2015||OIC wrote to the applicant, advising of the status of the review and requesting the applicant confirm that she wished to proceed with the review.|
|25 May 2015||The applicant confirmed she wished to proceed with the review.|
|2 June 2015||HPW provided requested submissions.|
|10 September 2015||OIC updated the applicant on progress in the review.|
|24 September 2015||OIC issued a preliminary view to HPW as to the status of the information in issue and invited submissions in reply.|
|16 October 2015||HPW replied to OIC’s preliminary view, agreeing to release some of the information in issue.|
|29 October 2015||OIC wrote to HPW seeking clarification on several issues and categories of information.|
|10 November 2015||OIC updated the applicant on progress in the review.|
|13 November 2015||HPW provided clarification as requested by OIC.|
|3 December 2015|
OIC issued a preliminary view to the applicant that OIC intended not to deal further with part of her external review application, and that access may be refused to other information.
OIC invited the applicant to provide submissions in support of her case.
OIC requested HPW arrange for disclosure to the applicant of information to which it had agreed to grant access.
|14 December 2015 2015||The applicant requested an extension of time within which to reply to OIC’s preliminary view.|
|15 December 2015||OIC granted the extension of time requested by the applicant.|
|29 January 2016||The applicant lodged submissions in reply to OIC’s 3 December 2015 preliminary view. The applicant requested further time, to 29 February 2016, to lodge additional submissions.|
|4 February 2016||OIC advised the applicant it was prepared to allow until 18 February 2016 to lodge additional submissions.|
|18 and 19 February 2016||The applicant lodged additional submissions.|
|17 March 2016||HPW agreed to release some additional information to the applicant.|
|Page||310671 page reference (as relevant)||Decision|
|30-35||Exempt: Legal Professional Privilege (LPP)|
|65-67||Full Contrary to Public Interest (CTPI) (Category 3)|
|68-69||Part CTPI (68: leave, 69: Category 1)|
|70||Part 94(1)(a) (name)|
|71||Part CTPI (Category 2(c))|
|76||Part CTPI (Category 1)|
|78||Part 94(1)(a) (name)|
|80||Part CTPI (Category 1)|
|81-82||Part 94(1)(a) (name)|
|117-119||Full CTPI (Category 3)|
|120||Part CTPI (Category 2(c))|
|121||Part CTPI (Category 1)|
|122-123||Part 94(1)(a) (name)|
|124||Part CTPI (Category 1)|
|134||Part 94(1)(a) (name)|
|175||Part 94(1)(a) (name)|
|177||Part 94(1)(a) (name)|
|186||Part 94(1)(a) (name) |
Part CTPI (Category 1)
|193||Part CTPI (Category 1)|
|195||Part CTPI (Category 3)|
|203||Part CTPI (Category 2(c))|
|212-217||Part CTPI (Categories 2(a), (b) and (c))|
|227-228||Part CTPI: (Category 2(d))|
|231||Part CTPI (Category 2(a))|
|239||Part CTPI (Category 2(a))|
|240||Part CTPI (Categories 2(a) and (c))|
|241||Part CTPI (Category 2(b))|
|242||Part CTPI (Categories 2(b),(c) and (d))|
|243||Part CTPI (Category 2(a))|
|244||Part CTPI (Category 2(d))|
|245||Part CTPI (Category 2(c))|
|246||Part CTPI (Category 2(a))|
|249||Part CTPI (Category 2(b))|
|250||Part CTPI (Category 2(d))|
|252||Part CTPI (Category 2(a))|
|263||Part irrelevant: information post-dates access application|
|264||Part 94(1)(a) (name)|
|266||Part CTPI (Category 1)|
|272||Part 94(1)(a) (name)|
|306||Part CTPI (Category 1)|
|307||Part CTPI (Category 1)|
|317||Part CTPI (Category 1)|
|318||Part CTPI (Category 3)|
|319||Part CTPI (Category 3)|
|328||Full CTPI (Category 3)|
|350||Part 94(1)(a) (name)|
|351-352||Full CTPI (Category 3)|
|380||879-880; 881-882; 883-884||94(1)(a)|
|381||Part CTPI (Category 1)|
|383||Part CTPI (Category 1)|
|384-385||Part CTPI (Category 1)|
|390||Part Scope - information subject to 100105 (R0766)|
|391||Part 94(1)(a) (name)|
|400||Part 94(1)(a) (name)|
|426||Part 94(1)(a) (name)|
|427||Part 94(1)(a) (name)|
|428||Part 94(1)(a) (name) Part CTPI (Category 1)|
|430||Part 94(1)(a) (name)|
|522||Part 94(1)(a) (name)|
|523||Part 94(1)(a) (name)|
|525||Part 94(1)(a) (name)|
|526||Part 94(1)(a) (name)
Part CTPI (Category 1)
|540||Full CTPI (Category 3)|
|541||Part 94(1)(a) (name) Part CTPI (Category 1)|
|547||Part CTPI (Category 3)|
|551||Part CTPI (Category 1)|
|552||Part CTPI (Category 3)|
|553||Part CTPI (Category 3 )
|560||Part 94(1)(a) (name)|
1 Application dated 25 February 2011.
2 Application dated 4 April 2011, received 5 April 2011.
3 By decision dated 9 February 2011. OIC in this decision also decided not to deal further with three other external review applications lodged by the applicant, each seeking review of decisions made or taken to have been made by Communities or the-then Minister for Communities.
4 Underwood and Department of Housing and Public Works; Minister for Housing and Public Works and Information Commissioner (APL075-12), per Justice Cullinane.
5 Section 94(1)(a) provides that the Information Commissioner may decide not to deal with, or not to deal further with, all or part of an external review application if the Commissioner is satisfied the application (or part) is frivolous, vexatious, misconceived or lacking substance.
6 In her application for external review, the applicant appears to seek to expand the scope of her access application, stating (at the fourth dot point on the third page) that ‘additional emails…to those already requested are required for the following…’, before going on to specify a number of officers. An access applicant cannot unilaterally expand the scope of an access application on external review: Robbins and Brisbane North Regional Health Authority (1994) 2 QAR 30, at .
7 One of these pages, page 136, is endorsed with redaction markings and RTI ‘watermarkings’, possibly made by Communities during initial processing in 2011. Nevertheless, I have treated it as a ‘fully released’ page, as it was fully released to the applicant in the form in which it appeared in the bundle of relevant documents collated by HPW. The bulk of the relevant page is, in any event, strictly outside the scope of the access application the subject of this review on remittal, as it comprises a document provided to the applicant pursuant to an earlier application ‘R0602’ (‘File01 page 58’ in that matter - now the subject of OIC review no. 100103), and therefore falls within an exception stated by her in an annexure to her access application, in which she excluded information ‘provided under’ the earlier application. The status of the obscured text on this page is being assessed in review 100103.
8 (1984) 57 ALR 550.
9 Page 562.
10 See, for example, her letter dated 29 January 2016.
11 (Unreported, Queensland Information Commissioner, 18 May 2012). The applicant appealed this decision to QCAT (APL184-12), which was dismissed by decision of Cullinane J dated 23 October 2014.
12 Also identified in Appendix 2.
13 See paragraphs - and -.
14 Price and Local Government Association of Queensland Inc (S 111/01, 29 June 2001, unreported) (Price and LGAQ), as applied in a number of subsequent decisions, eg Price and Queensland Police Service (227/04, 26 July 2004, unreported). These decisions concerned section 77(1)(a) of the repealed Freedom of Information Act 1992 (Qld), the material equivalent of section 94(1)(a) of the RTI Act. They are therefore applicable in this case.
15 Price and LGAQ, at . The Information Commissioner went on to note that ‘[i]t is equally vexatious and oppressive to agencies to make repeated applications for the same documents…’: . The notion that frivolous or vexatious conduct may incorporate ‘oppressive’ conduct as alluded to by the Information Commissioner in this passage has been recognised by the Court of Appeal: Mudie v Gainriver Pty Ltd (No 2)  2 Qd R 271, - (Mudie v Gainriver).
16 Such as name of recipient, date of printing for the purposes of generating hard copies to collate in response to the applicant’s applications, and/or in the text of automatically-generated disclaimer ‘boilerplate’. The latter occasionally causes a line break and thus generates an additional page not mirrored in its 310671 equivalent. These extra pages contain nothing more than mere ‘spillover’ of such ‘boilerplate’.
17 Adopting the ordinary meaning of the word, which includes ‘of little or no worth, weight or importance’: Mudie v Gainriver, at .
18 As I explained to the applicant in my letter dated 4 February 2016, in reply to her submissions dated 29 January 2016 that external review no. 310671 was ‘irrelevant’ (a position she continues to maintain: submissions dated 18 February 2016).
19 Which, by necessitating a re-hearing of said issues would defeat the very purpose of my invoking section 94(1)(a), and occasion the very prejudice to OIC and others my decision in this regard is intended to avoid.
20 Woodyatt and Minister for Corrective Services (1995) 2 QAR 383, at ; Beanland and Department of Justice and Attorney-General (1995) 3 QAR 26, at .
21 8U3AMG and Department of Communities (Unreported, Queensland Information Commissioner, 15 September 2011) at .
22 Section 23 of the RTI Act.
23 Section 47(3)(a) of the RTI Act.
24 Section 48 and schedule 3, section 7 of the RTI Act.
25 Esso Australia Resources Ltd v Commissioner of Taxation 201 CLR 49; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 552. A detailed analysis of the principles of legal professional privilege – particularly as they apply in the context of the RTI Act – can be found at - of Underwood.
26 Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501.
27 Brambles Holdings v Trade Practices Commission (No. 3) (1981) 58 FLR 452 at pp.458-459; Komacha v Orange City Council (Supreme Court of New South Wales, Rath J, 30 August 1979, unreported).
28 Pages fully exempt as Legal Information are noted as ‘Exempt: LPP’. There are 106 of these pages. Pages containing segments of exempt Legal Information are noted as ‘Part LPP’.
29 In my letter to the applicant dated 3 December 2015, I referred to these HPW legal officers as having been ‘in house’ lawyers – as explained in this paragraph and in paragraphs 26-27 above, they were, strictly speaking, external to Communities, the client agency seeking advice. Nothing turns on this distinction.
30 Noting that proceedings in administrative tribunals such as QCAT have been held to attract the privilege: SZHWY v Minister for Immigration and Citizenship (2007) 159 FCR 1; Re Farnaby and Military Rehabilitation and Compensation Commission (2007) 97 ALD 788; VCA and Australian Prudential Regulation Authority (2008) 105 ALD 236 (all three decisions concerning proceedings in the Administrative Appeals Tribunal); Cianfrano v Director General, Attorney General's Department  NSWADTAP 10 at  (concerning proceedings in the former Administrative Decisions Tribunal of NSW).
31 The applicant having made no submissions in this review to suggest otherwise, nor to contest the application of the privilege. In this regard, I note that the bulk of the applicant’s correspondence during the course of this review on remittal did not address substantive issues. It mostly concerned process and procedural matters. I have addressed the relevant parts of those submissions in these reasons.
32 Section 44(1) of the RTI Act. Where disclosure would, on balance, be contrary to the public interest, access may be refused under sections 47(3)(b) and 49 of the RTI Act.
33 Section 49(3) of the RTI Act.
34 The schedule at Appendix 2 references CTPI Information according to these three categories.
35 Section 12 of the Information Privacy Act 2009 (Qld) defines personal information as ‘…information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’. This definition applies for the purposes of the RTI Act: section 10 and schedule 6 of the latter.
36 Schedule 4, part 4, section 6 of the RTI Act.
37 Schedule 4, part 3, item 3 of the RTI Act. The concept of ‘privacy’ is not defined in the IP Act or RTI Act. It can, however, be viewed as the right of an individual to preserve their personal sphere free from interference from others: see Marshall and Department of Police (Unreported, Queensland Information Commissioner, 25 February 2011) at  paraphrasing the Australian Law Reform Commission’s definition of the concept in ‘For your information: Australian Privacy Law and Practice’ Australian Law Reform Commission Report No. 108 released 11 August 2008, at paragraph 1.56. I am satisfied that contact details such as individuals’ mobile phone numbers fall within their ‘personal sphere’.
38 Implicit in, for example, the objects of the RTI Act.
39 Beyond a generalised assertion that she was being denied a right to ‘correct’ information, discussed further below (paragraph 47). It is pertinent to note here that I cannot see how any of the submissions contained in the annexures to the applicant’s application for external review, insofar as they can be read as arguments as to why disclosure of information would advance the public interest, could be meaningfully applied to a private citizen’s telephone number.
40  QICmr 27 (29 September 2015).
41 Schedule 4, part 2 item 1 of the RTI Act.
42 As above.
43 Schedule 4, part 2, item 2 of the RTI Act.
44 Applicant’s submissions dated 14 December 2015.
45 Paragraph 1 of those submissions.
46 The applicant’s submissions in this regard – which are in large measure comprised of unsubstantiated assertions or lengthy sections that do no more than repeat provisions of the RTI Act – appear to have been duplicated from one review application to the next, and are often irrelevant to the issues arising in a given review. Many of these submissions as annexed to the review application the subject of these reasons were largely premature: the decision under review being a deemed decision, there was at the time the applicant made her external review application no basis to claim, for example, that she was being ‘denied information considered “not in or contrary to the public interest”. Nor, by way of further example, was there any basis to contend that she was being ‘denied access to documents…due to an insufficiency of search’ (in other words, that requested documents were ‘missing’), for the simple reason that as Communities had failed to make a considered decision on her application, there was no evidence as to what documents might have been located – relevant, ‘missing’ or otherwise (noting that the applicant has not sought to agitate sufficiency of search claims during the course of my review on remittal). Nevertheless, I have carefully considered these initial submissions, and endeavoured to apply them, where relevant, to the facts as they have emerged in this review on remittal.
47 Nor, indeed, any of the numbers relating to private citizens.
48 And thus no basis on which to reasonably conclude that their disclosure would reveal that they were incorrect, out of date, misleading etc., a factor favouring disclosure: schedule 4, part 2, item 12 of the RTI Act. I also note that even if this Category 1 information was incorrect, refusing the applicant access to it does not ‘deny’ her the opportunity to ‘correct’ it (see paragraph 47), as the right to amend information contained in section 41 of the Information Privacy Act 2009 (Qld) only applies to an individual’s own personal information, which these numbers – whether private citizen’s or public servant’s – are plainly not.
49 The OIC decision referred to at  of my decision in Underwood and Minister is Kiepe and the University of Queensland (Unreported, Queensland Information Commissioner, 1 August 2012), specifically -. The nested passage quoting the Assistant Information Commissioner appears at paragraph  of Kiepe.
50 Schedule 4, part 3, item 3 of the RTI Act.
51 In accordance with the balancing exercise prescribed in section 49 of the RTI Act.
52 Under section 47(3)(b) of the RTI Act.
53 Noting, in view of the applicant’s generalised submissions as canvassed in paragraph 47 above, that there is absolutely nothing before me to suggest that any of this purely factual Category 2 information is incorrect, out of date, misleading etc., and therefore no basis on which to reasonably conclude that its disclosure would reveal same. I again note that even if this information was incorrect, refusing the applicant access to it does not ‘deny’ her the opportunity to ‘correct’ it (see paragraph 47), for the reasons explained at note 48.
54 As information about individuals and whose identity is apparent or could reasonably be ascertained from the information. As noted above, the RTI Act presumes that disclosure of personal information could reasonably be expected to give rise to a public interest harm: schedule 4, part 4, section 6 of the RTI Act.
55 Schedule 4, part 3, item 3 of the RTI Act.
56 See note 37.
57 Underwood, at .
58 It being difficult to see, for example, how disclosure of the names of individuals employed outside the public sector could enhance government accountability or official transparency.
59 Schedule 4, part 3, items 2 and 15 of the RTI Act.
60 A small segment appearing at the bottom of one of the body corporate pages (page 228) also describes a familial relationship, thus comprising personal information/information disclosure of which would prejudice protection of right to privacy. I can identify no public interest considerations of weight sufficient to displace the privacy interests attaching to this information, and thus access to it may alternatively be refused under section 47(3)(b) of the RTI Act.
61 Schedule 4, part 2, items 1, 3 and 4 of the RTI Act.
62 Remembering that Communities was the agency responsible for the applicant’s tenancy at the time relevant events occurred, and with whom the applicant lodged the RTI access application that has ultimately become the subject of this decision: see paragraphs 1 and 7.
63 Or information disclosing a relationship or proximity to the applicant which could reasonably be expected to identify other individuals.
64 Schedule 4, part 4, section 6 of the RTI Act.
65 0P5BNI and Department of National Parks, Recreation, Sport and Racing (Unreported, Queensland Information Commissioner, 12 September 2013) at .
66 Remembering that this is a factor favouring nondisclosure: schedule 4, part 3, item 3 of the RTI Act.
67 Other than the general assertion as to being denied an opportunity to ‘correct’ information, discussed at paragraph 47.
68 Albeit, at that point, somewhat presumptively: see note 46.
69 Schedule 4, part 2, item 12 of the RTI Act.
70 Matthews and Gold Coast City Council (Unreported, Queensland Information Commissioner, 23 June 2011) at -.
71 And nor, accordingly, that the applicant has been denied any right of ‘correction’ or amendment. Some of this information is plainly not the applicant’s personal information (and thus not amenable to correction – see note 48), while none of it is, as explained in this paragraph, incorrect etc, which is a ground for refusing a request for amendment: section 72(1)(a)(i) of the Information Privacy Act 2009 (Qld).
72 The right of access contained in section 23 of the RTI Act provides for no restrictions on the use to which information accessed under it may be put.
73 As noted, the RTI Act presumes that disclosure of personal information could reasonably be expected to give rise to a public interest harm: schedule 4, part 4, section 6 of the RTI Act. I am satisfied the segment falls within the definition of personal information set out above at note 35.
74 Schedule 4, part 3, item 3 of the RTI Act. I am satisfied that leave arrangements fall within an individual’s ‘personal sphere’: see note 37.
75 There being no reason whatsoever to suspect that it is ‘incorrect’ etc, nor, as a record of an entirely unrelated individual’s personal affairs, information that might be amenable to ‘correction’ on application by the applicant: see paragraph 47 and note 48.