The Right to Information Act 20091 (Qld) (RTI Act) gives people the right to access documents in the possession or control of Queensland government agencies2. This right of access is subject to some limitations. These limitations include information which is exempt from release under schedule 3 of the RTI Act.
Law enforcement and public safety information provisions
Schedule 3, section 10(1) of the RTI Act provides that certain kinds of information relating to law enforcement and public safety are exempt from release. Schedule 3, section 10(2) lists circumstances in which this information will not be exempt. This guideline explains the requirements of the most commonly used of these provisions. Decision makers should refer to the Annotated Legislation3 for more information.
Could reasonably be expected to
Much of the information in section 10(1) will only be exempt if disclosing the information could reasonably be expected to result in one of the specified outcomes. For example, information is exempt information if its disclosure could reasonably be expected to endanger a person’s life or physical safety. To rely on one of these provisions, there must be a reasonably based expectation that the consequence identified in the exemption will follow as a result of the information being disclosed. A mere possibility, speculation or conjecture regarding the consequence is insufficient.
In O’Connor4, the applicant sought access to information about himself, his child, and his partner from the Queensland Police Service (QPS).
QPS refused access to the information on the basis that disclosure could reasonably be expected to prejudice the investigation of a contravention or possible contravention of the law.
QPS had not yet finalised its investigation and it was reasonable to expect that disclosure would prejudice the investigation. The Assistant Information Commissioner affirmed QPS’s decision and refused access to the report.
Prejudice an investigation
Information is exempt from disclosure if its disclosure could reasonably be expected to prejudice the investigation of a contravention or possible contravention of the law.5 This exemption is not confined to criminal investigations and can apply in a range of circumstances, for example:
- investigations by environmental compliance officers into breaches of environmental regulations or licence contraventions
- investigations by local government officers into breaches of local law
- investigations into breaches of liquor licensing laws; and
- misconduct investigations.
Generally, if an investigation has been finalised the exemption will not apply, as it is unlikely that disclosure of information could prejudice a concluded investigation.
There are a number of ways in which disclosure of information can potentially prejudice a current investigation. For example, premature disclosure of information about witnesses in a workplace investigation could undermine the effectiveness of the investigation.
In Latemore6, the Right to Information Commissioner found that disclosing to the applicant diary notes and emails of certain QPS officers relating to matters in an ongoing investigation, prior to QPS finalising the investigation, could reasonably be expected to “severely jeopardise the integrity of the entire investigation by enabling persons subject to the investigation to construct defences, create alibis, tamper with evidence and interfere with witnesses”. The Right to Information Commissioner affirmed the QPS decision to refuse access to the information in issue.
Confidential sources of information
Information is exempt if its disclosure could reasonably be expected to enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained.7 If applying this provision, the following must be established:
* there must be a confidential source of information
* the information supplied by the confidential source must relate to the enforcement or administration of the law; and
* it must be reasonable to expect that disclosing the information in question would enable the identity or existence of the confidential source to be ascertained.8
An information provider will be a confidential source if the agency gave an express assurance to the information provider that their identity would be kept confidential or surrounding circumstances indicate that there was an implicit mutual understanding of confidentiality between the parties.9
In deciding whether there was an implicit mutual understanding of confidence, the following factors may be relevant:10
- nature and sensitivity of the information given
- relationship of the information provider to the person(s) about whom the information was given
- the manner in which the information was imparted
- whether the information provider is comparable to an informer, for example a ‘whistleblower’ or witness
- whether it could have been reasonably understood by both the information provider and the agency that the agency could take action on the information provided, without identifying the information provider
- whether there is any real risk of harassment or other detriment to the information provider; and
- any indication of the information provider's desire or request, at the time of providing the information, to have their identity kept confidential.
Endanger life or physical safety
Information is exempt if its disclosure could reasonably be expected to endanger a person's life or physical safety.
When deciding if information is exempt under this section, it is important to objectively review all relevant evidence, including any evidence obtained from, or about, the alleged source of danger.11 It is not enough to unquestioningly accept the views of the person claiming to be in danger.
In Courier-Mail and Queensland Police Service12 the applicant sought access to documents about suicides at specific locations, which the agency refused. The agency submitted—and provided evidence supporting—that release of the information, and the inevitable reporting of it, would lead to an increase in the number of people who either attempt or completed acts of suicide at the specific locations.
The Information Commissioner found that:
- disclosing the information in issue could reasonably be expected to lead to an increase in the number of people who either attempt or complete acts of suicide at the specific location; and therefore
- the information in issue was exempt information under schedule 3, section 10(1)(c) of the RTI Act.
Serious act of harassment or intimidation
Information will be exempt if its disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation.13
In Sheridan14, the Information Commissioner found that a serious act of harassment means an action that 'attacks, disturbs or torments a person and that causes concern or apprehension or has undesired consequences'15. The Information Commissioner specifically observed that:
- acts which induce fear or force a person into some action by inducing fear or apprehension are acts of intimidation
- acts of intimidation which have undesired consequences or cause concern and/or apprehension are serious acts of intimidation
- acts which persistently trouble, disturb or torment a person are acts of harassment; and
- acts of harassment which have undesired consequences or cause concern and/or apprehension are serious acts of harassment.
Importantly, the Information Commissioner decided that the exemption can apply even where only a single act of serious harassment is expected to result from disclosure of the information.
Past conduct of the applicant and the nature of the information
Past conduct of the applicant and the nature of the information can be relevant when making the decision.
In two Mathews and Department of Transport and Main Roads16 decisions, the Information Commissioner considered the release of information that identified individuals. The applicant maintained a website on which he had previously placed information released to him under RTI. It contained information about individuals, many of whom were public service officers, accompanied by offensive and abusive remarks.
The website had the stated malicious intention of causing professional detriment and effecting the individual’s future employment prospects. Based on the nature of the information and the past conduct of the applicant the Information Commissioner was satisfied that serious acts of harassment or intimidation could reasonably be expected to occur as a result of disclosing the information.
In Richards and Gold Coast City Council17, the applicant had a history of persistently making abusive and threatening contact with agency staff, elected representatives, and their family members outside work hours on private and mobile phone numbers. Significant amounts of the applicant’s communications with the agency were abusive, rude, threatening, and/or harassing; the agency had a security plan in place to protect specific persons from the applicant.
The Information Commissioner considered the applicant’s past conduct provided a reasonable basis for agency staff and elected representatives to expect to be subjected to further serious acts of harassment or intimidation.
In establishing a link between the disclosure of the information in issue and the expected act of serious harassment or intimidation, the Information Commissioner noted that the subject matter of the information had previously elicited a strong response from the applicant, the applicant had been in dispute with Council for many years, and the applicant’s conduct had detrimentally impacted Council staff and elected representatives. Accordingly, the relevant information was found to be exempt information under schedule 3, section 10(1)(d) of the RTI Act.
Prejudice a fair trial or impartial adjudication of a case
Information is exempt if its disclosure could reasonably be expected to prejudice a person’s fair trial or the impartial adjudication of a case.18
- A person’s fair trial does not refer to a civil suit between parties but to the trial of a person charged with a criminal offence.19
- Impartial adjudication of a case is broad enough to refer to any kind of case involving a dispute between parties which is to be formally adjudicated by an impartial decision-maker.20
The Information Commissioner has recognised that prejudice to a fair trial can occur if disclosure could prejudice the prosecution as well as the defence.21
In North Goonyella Coal Mines Pty Ltd and Millard and Department of Natural Resources and Mines22 (North Goonyella) the information in issue related to the agency’s decision to prosecute the applicants and not to any issues relating to the current trial in which the applicants were actually being prosecuted. The agency submitted that disclosure could reasonably be expected to result in the following prejudice to a person’s fair trial:
- the defence would raise irrelevant matters beyond the scope of the elements of the offence, which would detract from the effectiveness of the prosecution; and
- the prosecution would be required to address allegations about motivations, reasoning, alternate compliance options and the decision to prosecute (which are issues beyond the scope of proof of the elements of the issues under trial).23
The Assistant Information Commissioner considered it relevant that the applicant’s representatives were legal professionals with professional standards of ethics and behaviour and that the court itself had mechanisms for both establishing the relevance of issues and arguments presented to it and for dealing with conduct it identified as inappropriate.24 She considered that there was not sufficient evidence to demonstrate that disclosure would result in the outcomes the agency had suggested would occur and, even if they did, the courts had sufficient mechanisms to deal with such behaviour. As such, the information in issue was not exempt under schedule 3, section 10(1)(e).
In Uksi and Redcliffe City Council; Cook (Third Party) (1995) 2 QAR 629, the Information Commissioner found that disclosing an engineer’s report could not reasonably be expected to prejudice the impartial adjudication of anticipated civil litigation because it was the type of document which a court would likely compel the applicants to disclose in the course of preparations for hearing, in the interests of a fair hearing of the issues.
Lawful method or procedure
Information is exempt if its disclosure could reasonably be expected to prejudice the:
- effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law (including revenue law);25 or
- maintenance or enforcement of a lawful method or procedure for protecting public safety.26
The method or procedure must be lawful. Accordingly, the exemption does not protect information relating to unlawful investigative methods or procedures, for example unauthorised telephone tapping.
Schedule 3, section 10(1)(f)
The prejudice required for this section is to the effectiveness of the procedure. The following elements must be met for information to be exempt under these provisions:
- an identifiable lawful method or procedure used by the agency for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law; and
- the agency has a reasonable basis for expecting that disclosure of the matter in issue could prejudice (that is, reduce the effectiveness or usefulness of) that method or procedure.27
This exemption will often arise when the investigating agency has adopted a relatively secret or covert method or procedure. If people were to become aware of the use of a covert procedure, or its use in particular circumstances, it could reasonably be expected to be less effective in the future in terms of preventing, detecting, investigating and dealing with contraventions of the law. It will not generally apply to routine methods or procedures used by an agency.
In Gold Coast Bulletin and Department of Police28 the RTI Commissioner considered the release of police staffing rosters. The agency submitted that rosters were developed taking into account crime rates and operational requirements of the specific area and provided specific and detailed knowledge not readily available through other means that would allow criminals to 'risk manage' any planned unlawful activity.
The RTI Commissioner was satisfied that the:
- police rosters comprised a method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law
- information was not readily available through other means; and
- information could be used by third parties to further criminal activity and subvert police attention.
The RTI Commissioner was therefore satisfied that disclosing the information could be expected to prejudice the effectiveness of the method or procedure of rostering.
Schedule 3, section 10(g)
While section 10(1)(f) is concerned with preserving the effectiveness of a method, section 10(1)(g) is concerned with protecting the maintenance of, or the ability to enforce, a method or procedure intended to protect public safety.
In Nine Network Australia and Department of Justice and Attorney-General29 the Information Commissioner found that compliance notices, cautions, enforceable undertakings, fines or prosecutions issued to carnival ride operators were not exempt under section 10(1)(g).
While the documents did relate to a method or procedure for protecting the public safety, the method or procedure was not prejudiced, because:
- the ride operators recognised safe rides were in their commercial interest and the voluntary process facilitated safety improvements
- the notices were issued under a mandatory legislative process.
Information given under compulsion in an investigation
Schedule 3, section 10(3) provides that information is exempt from release if:
- it consists of information given in the course of an investigation of a contravention or possible contravention of the law (including revenue law); and
- the information was given under compulsion under an Act that abrogated the privilege against self-incrimination.
The common law privilege against self-incrimination entitles a person to refuse to answer any question, or produce any document, if the answer or the production would tend to incriminate that person.30 However, an Act can override this right and compel a person to answer even if the answer would tend to incriminate them.
Section 157 of the Coal Mining Safety and Health Act 1999 gives investigators the power to require a person to attend and answer questions unless the person has a reasonable excuse; it is not a reasonable excuse for a serious accident or high potential incident that the information would tend to incriminate the person.
Decision makers need to establish the following before deciding information is exempt under this section:
- the information must have been given in the course of investigating a contravention, or possible contravention, of the law
- the Act under which the investigation was conducted must give investigators the power to compel information from a person even where it would tend to incriminate the person; 30 and
- the investigators must have actually relied on that power when acquiring the information from the person.
Where an Act gives investigators the power to compel information but they did not rely on it, the information cannot be exempt from release under this section.
- 1 And Chapter 3 of the Information Privacy Act 2009 (Qld).
- 2 Agency includes a Minister.
- 3 https://www.oic.qld.gov.au/annotated-legislation/rti/schedule-3/10-law-enforcement-or-public-safety-information
- 4 O’Connor and Queensland Police Service, (Unreported, Queensland Information Commissioner, 25 June 2013).
- 5 Schedule 3, section 10(1)(a); this includes revenue law.
- 6 Latemore and Department of Police (Unreported, Queensland Information Commissioner, February 25 2011) (Latemore)
- 7 Schedule 3, section 10(b).
- 8 See McEniery and Medical Board of Queensland (1994) 1 QAR 349 (McEniery), particularly paragraphs 16-45, for further analysis of these requirements.
- 9 Christophers and Redland City Council (Unreported, Queensland Information Commissioner, 6 August 2009) (Christophers). In this decision the agency had published a Customer Charter that stated: ‘When you contact Council with a request or a complaint you can expect to … have your personal details kept confidential’. The Information Commissioner decided there was an implied understanding of confidence.
- 10 McEniery in Christophers
- 11 Murphy and Queensland Treasury (1995) 2 QAR 744 at paragraph 47 (Murphy).
- 12 (Unreported, Queensland Information Commissioner, 15 Feb 2013)
- 13 Schedule 3, section 10(1)(d).
- 14 Sheridan and South Burnett Regional Council, Local Government Association of Queensland Inc and Dalby Regional Council; and Crime and Misconduct Commissioner (Sheridan) (Unreported, Queensland Information Commissioner, 9 April 2009).
- 15 Sheridan at paragraph 199
- 16 (Unreported, Queensland Information Commissioner, August 28 2013) and (Unreported, Queensland Information Commissioner, September 19 2014)
- 17 (Unreported, Queensland Information Commissioner, 28 March 2012)
- 18 Schedule 3, section 10(1)(e) of the RTI Act.
- 19 In the context of section 42(1)(d) of the repealed FOI Act.
- 20 Uksi and Redcliffe City Council; Cook (Third Party) (1995) 2 QAR 629, at paragraphs 34-35.
- 21 John Dale and Australian Federal Police  AATA 345 (24 September 1997) considering the exemption in section 37(2)(a) of the Freedom of Information Act 1982 (Cth), referred to in North Goonyella.
- 22 (Unreported, Queensland Information Commissioner, 26 June 2012)
- 23 North Goonyella at paragraph 23
- 24 North Goonyella at paragraph 26.
- 25 Schedule 3, section 10(1)(f).
- 26 Schedule 3, section 10(1)(g).
- 27 T and Department of Health (1994) 1 QAR 386.
- 28 (Unreported, Queensland Information Commissioner, 23 December 2010)
- 29 (Unreported, Queensland Information Commissioner, 14 Feb 2012)
- 30 Godwin and Department of Employment, Economic Development and Innovation (Unreported, Queensland Information Commissioner, 17 January 2011), decided under the equivalent provisions in the now repealed Freedom of Information Act 1992. See also Nugent v Ian Stewart (Commissioner of Police) & Anor  QSC 338.
Current as at: March 2, 2016