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International Law

: Open and Shut

Queensland first RTI review decision published

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There is a long tail to the review of Freedom of Information decisions by the Queensland Information Commissioner, with half a dozen decisions (going back some time) published in the last month or so, on applications made under the FOI Act, the act replaced by the Right to Information Act in July. Transition arrangements mean anything on hand at that time, and the pursuit of available review rights are to be dealt with under the FOI Act.

But a decision made in October and only recently published (why so slow?) appears to be the first review of a decision under the RTI Act. The decision in the end is primarily about a refusal to neither confirm nor deny documents are held. The published summary of Tolone and the Department of Police (220006 9 October 2009) gives the gist of how the Police took a while to get on the right track in pressing the right exemption claim and the complex steps involved in following the RTI public interest decision-making formula, something the full text brings home more clearly. The formula as the Commissioner sets out is:

Section 49 of the RTI Act sets out the steps which must be taken when deciding whether disclosure of information would, on balance, be contrary to the public interest. The requirements of section 49 of the RTI Act must be read in conjunction with the public interest factors listed in schedule 4 of the RTI Act. Schedule 4 of the RTI Act sets out factors irrelevant to deciding the public interest; favouring disclosure in the public interest (Part 2 Factors); favouring nondisclosure in the public interest (Part 3 Factors); favouring nondisclosure in the public interest because of public interest harm in disclosure (Part 4 Factors.) In determining whether disclosure of information, would, on balance, be contrary to the public interest under section 47(3)(b) of the RTI Act, I must identify any irrelevant factors that apply in relation to the information and disregard them; identify public interest factors favouring disclosure and nondisclosure that apply in relation to the information; balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information, on balance, would be contrary to the public interest.

The matter concerned an application for documents relating to a complaint made to the Department regarding a criminal offence which allegedly occurred in Toowoomba in1975 and any corresponding admission made by the alleged offender. (The body of the decision reveals the applicant is the son of a man killed at the time. The Department initially relied on section 40 of the RTI Act to refuse to deal with the application. Section 40 provides the basis for such a claim if the application requests documents of a particular class, that contain information of a stated kind or relate to a stated subject matter, and the agency believes all of the documents to which the application relates are comprised of ?exempt information?, as defined in section 48 of the RTI Act and described in schedule 3. However it failed to specify the provision of schedule 3 under which the information in the documents sought is exempt information; and the reasons for the decision classifying the documents sought as exempt information. Before the Commissioner, the issues changed and proceeded on whether Section 55 of the RTI Act, not Section 40 provided grounds for the agency decision.

Section 55 of the RTI Act provides:
Information as to existence of particular documents

(1) Nothing in this Act requires an agency or Minister to give information as to the existence or non-existence of a document containing prescribed information.

(2) For an access application for a document containing prescribed information, the agency or Minister may give a prescribed written notice that does not include the details mentioned in section 191(a) or (b) but, by way of a decision, states that?

(a) the agency or Minister neither confirms nor denies the existence of that type of document as a document of the agency or a document of the Minister; but

(b) assuming the existence of the document, it would be a document to which access would be refused under section 47(3) to the extent it comprised prescribed information.

(3) The prescribed written notice may be given in a schedule of relevant documents.

Here are a couple of extracts from the decision.

30. The term 'prescribed information' is defined in schedule 6 of the RTI Act as follows:

prescribed information means?

(a) exempt information mentioned in schedule 3, section 1, 2, 3, 4, 5, 9 or 10; or

(b) personal information the disclosure of which would, on balance, be contrary to the public interest under section 47(3)(b).

31. For the purpose of this review, part (b) of the 'prescribed information' definition is relevant. This part of the definition has two components:

(i) personal information

(ii) the disclosure of which would, on balance, be contrary to the public interest under section 47(3)(b) of the RTI Act.

After finding the information was personal information, and weighing the public interest considerations, the Commissioner concluded

52. I find that the documents sought by the applicant (if they exist) would contain information:

� that is personal information

� the disclosure of which, would, on balance, be contrary to the public interest.

53. Therefore, I find that the documents sought by the applicant (if they exist) would contain 'prescribed information'.

54. As I have found that the documents sought by the applicant contain 'prescribed information', I therefore, find that QPS is entitled to neither confirm nor deny the existence of those documents under section 55 of the RTI Act. I have made this finding on the basis that, if the documents sought by the applicant exist, they would be documents to which access would be refused under section 47(3) of the RTI Act because they contain prescribed information.

I wonder what difference a provision as in the NSW GIPA Act, that allows consideration of the personal interest of the applicant in accessing the information in question - something less than a public interest in access - would have made in these circumstances?

�

Full post as published by Open and Shut on February 17, 2010 (boomark / email).