West and Banana Shire Council
(210628, 19 May 2009)
Section 44(1) – personal affairs – identifying information about complainants
In her application for external review, the applicant applied for a review of Banana Shire Council’s (Council) decision to refuse her full access to a two page animal nuisance complaint form (Complaint Form) under sections 42(1)(b), 42(1)(ca) and 42(1)(e) of the Freedom of Information Act 1992 (Qld) (FOI Act).
The applicant argued that she required access to the contact details of the complainants (Complainant Details) on the Complaint Form so that she could determine whether Council had properly complied with section 25(3) of Council’s (Keeping and Controlling of Animals) Local Law No.6 (Local Law No.6). The applicant was of the view that Council issued her with a written notice pursuant to section 25(3) of Local Law No.6 when it had not obtained three complaints from three individuals occupying separate premises as required under that provision.
During the course of the external review, this Office contacted Council and informed it that it was considering the potential application of section 44(1) of the FOI Act to the Complainant Details. Although Council was provided with the opportunity to provide submissions in support of this provision, it declined to provide further submissions.
In determining whether section 44(1) of the FOI Act applied to the Complainant Details, Assistant Commissioner Corby applied the principles in Stewart and Department of Transport (1993) 1 QAR 227 and Byrne and Gold Coast City Council (1994) 1 QAR 477. In doing so she found that the Complainant Details comprised the personal affairs of persons other than the applicant and was, prima facie, exempt from disclosure under section 44(1) of the FOI Act, subject to the application of the public interest balancing test.
In weighing the public interest considerations favouring disclosure against the public interest considerations favouring non-disclosure, Assistant Commissioner Corby stated that the applicant’s argument (in terms of deciding whether release of the Complainant Details enhanced government accountability) that she required the Complainant Details to scrutinise Council’s compliance with Local Law No.6 was not made out because it was evident on the face of the partially released Complaint Form that the details of three separate individuals had been collected under the headings ‘Applicant Details’ and ‘Witness Details’. Assistant Commissioner Corby noted that although section 25(3)(a) of Local Law No.6 required 3 complaints to be made by three individuals, occupying separate premises in the vicinity of the nuisance, section 25(3)(b) of Local Law No.6 enabled Council to take the same action (ie. issue a written notice) with fewer than 3 complainants.
Assistant Commissioner Corby found that in this case the public interest considerations favouring non-disclosure of the Complainant Details (including the privacy interests of the complainants and the possible detriment to the future flow of such information to Council) outweighed those in favour of disclosure to the applicant. Accordingly, the Complainant Details were found to qualify for exemption under section 44(1) of the FOI Act.