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Kelson v Queensland Police Service QCATA 67
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Kelson v Queensland Police Service & Anor  QCATA 67
BRUCE ALEXANDER KELSON
QUEENSLAND POLICE SERVICE
OFFICE OF THE INFORMATION COMMISSIONER
ORIGINATING APPLICATION NO/S:
10 June 2019
On the papers
Justice Daubney, President
ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – RIGHT OF ACCESS – GROUNDS FOR REFUSAL – where finding by Information Commissioner not to release information on the ground that disclosure would, on balance, be contrary to the public interest – where appellant appealed to Tribunal under s 119 of the Right to Information Act 2009 (Qld) on basis of errors in determining the public interest – where appeal can only be on a question of law – whether error of law in failing to include a certain document in the scope of the access application – whether error of law in failing to consider a relevant public interest factor – whether error of law in incorrectly weighting and balancing factors favouring disclosure and nondisclosure – whether error of law in not granting access to information in a different form – whether error of law in not providing appellant opportunity to be de-identified in decision – whether the decision should be returned to the Information Commissioner for reconsideration
Queensland Civil and Administrative Tribunal Act 2009, s 66
Right to Information Act 2009 (Qld), s 47, s 49, s 68, s 119
Darlington v Office Of The Information Commissioner & Queensland Police Service  QCATA 167
House v The King (1936) 55 CLR 499
Marshall-Holst v Office of the Information Commissioner and Queensland Health (Metro North Hospital and Health Service)  QCATA 28
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985) 162 CLR 24
Sibelco v Right to Information Commissioner  QCATA 59
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- This is an appeal under s 119 of the Right to Information Act 2009 (Qld) (‘RTI Act’). Such an appeal can only be on a question of law. The appeal is against a decision of the Information Commissioner (‘IC’) to refuse the appellant access to certain documents on the grounds that disclosure of such information would, on balance, be contrary to the public interest (‘the IC Decision’).
- On 25 October 2012, an incident occurred at the workplace of the appellant, Mr Kelson. Mr Kelson had a complicated relationship with his employer, stemming in part from an earlier serious work-related injury subject to a WorkCover Queensland claim. It is unnecessary to recount the details of that work history nor of the 25 October 2012 incident, save to note that officers of the first respondent, the Queensland Police Service (‘QPS’), were called and attended at the workplace. Mr Kelson subsequently lodged complaints regarding the conduct of the officers and the handling of those complaints by QPS. Mr Kelson also lodged complaints regarding the WorkCover Queensland process. He has raised some of the issues concerning these agencies with the Queensland Ombudsman.
- On 26 November 2015, Mr Kelson made an ‘access application’ within the meaning of that term under the RTI Act (the ‘access application’). The access application sought access to various documents related to complaints against, and investigations by, the QPS arising broadly from the 25 October 2012 incident.
- Relevantly, Mr Kelson sought access to the following subject matter from 4 October 2010 to the date of the application:
Complaints, investigations, recordings of interviews and/or transcripts of those interviews, outcomes of incidents, mail & email correspondence, electronic database records, photographs including metadata, video footage…
- Mr Kelson also specified the following types of documents:
Job cards, investigation records (audio, video or written), intelligence reports or logs, police link notes, PPM records & charges laid.
- On 16 February 2016, the Public Safety Business Agency (‘PSBA’), on behalf of the QPS, decided to allow full access to 58 pages and 3 audio recordings, partial access to 131 pages and to refuse access to 12 pages and 7 audio recordings. Access was refused under s 47(3)(b) of the RTI Act, on the grounds that the documents comprise information the disclosure of which would, on balance, be contrary to the public interest under s 49 of the RTI Act.
- On 29 March 2016, on internal review, the PSBA, on behalf of the QPS, affirmed the original decision refusing access to the information under s 47(3)(b).
- On 3 May 2016, Mr Kelson applied to the IC for external review. It is the decision of the IC on that external review which is the subject of the current appeal.
- The object of the RTI Act is to give a right of access to information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give the access. The legislature’s intention that the Act be administered with a pro-disclosure bias is made explicit.
- Section 47 of the RTI Act provides grounds on which access to a document may be refused. Relevantly for this appeal, s 47 provides:
- (3)On an application, an agency may refuse access to a document of the agency and a Minister may refuse access to a document of the Minister—
- (b)to the extent the document comprises information the disclosure of which would, on balance, be contrary to the public interest under section 49 …
- Section 49 in turn provides:
49Contrary to public interest
- (1)If an access application is made to an agency or Minister for a document, the agency or Minister must decide to give access to the document unless disclosure would, on balance, be contrary to the public interest.
- (2)This section sets out the steps, and, in schedule 4, factors, the Parliament considers appropriate for deciding, for types of information (other than exempt information), whether disclosure would, on balance, be contrary to the public interest.
- (3)If it is relevant for an agency or Minister to consider whether, on balance, disclosure of information would be contrary to the public interest, the agency or Minister must undertake the following steps—
- (a)identify any factor that is irrelevant to deciding whether, on balance, disclosure of the information would be contrary to the public interest, including any factor mentioned in schedule 4, part 1 that applies in relation to the information (an irrelevant factor);
- (b)identify any factor favouring disclosure that applies in relation to the information (a relevant factor favouring disclosure), including any factor mentioned in schedule 4, part 2;
- (c)identify any factor favouring nondisclosure that applies in relation to the information (a relevant factor favouring nondisclosure), including any factor mentioned in schedule 4, part 3 or 4;
- (d)disregard any irrelevant factor;
- (e)having regard to subsection (4), balance any relevant factor or factors favouring disclosure against any relevant factor or factors favouring nondisclosure;
- (f)decide whether, on balance, disclosure of the information would be contrary to the public interest;
- (g)unless, on balance, disclosure of the information would be contrary to the public interest, allow access to the information subject to this Act.
- (4)The factors mentioned in schedule 4, part 4 are factors where disclosure could reasonably be expected to cause a public interest harm (harm factors) but the fact that 1 or more of the relevant factors favouring nondisclosure is a harm factor does not of itself mean that, on balance, disclosure of the information would be contrary to the public interest.
- (5)However, despite an agency or Minister being able, under section 47(3)(b), to refuse access to all or part of a document, the agency or Minister may decide to give access.
- Section 119 of the RTI Act provides that an appeal to the Appeal Tribunal against a decision of the IC on external review may only be on a question of law.
The decision of the Information Commissioner
- Mr Kelson’s application to the IC for external review contended that several public interest factors supported disclosure of the information to which he was refused access by the PSBA on behalf of the QPS. Mr Kelson also submitted that an audio recording of a conversation he had with a QPS officer on 15 February 2014 should have been identified in response to his access application.
- The IC provided Mr Kelson with its preliminary view on 22 September 2016 and Mr Kelson made written submissions in response to that on 23 September and 20 October 2016.
- In its decision dated 3 March 2017, the IC determined that it was reasonable for QPS not to identify the 15 February 2014 recording as a document falling within the scope of the access application.
- The IC then considered the remaining information in issue in four categories, on the basis that different public interest factors applied to each category. Those categories are as follows:
- Information provided to QPS during its inquiries and/or investigations (‘Category A’);
- Information provided to QPS seeking police assistance (‘Category B’);
- Non-routine personal work information of QPS officers (‘Category C’);
- Information concerning management of Mr Kelson’s complaint (‘Category D’).
- In purporting to follow the steps required by s 49 as set out above, the IC found that disclosure of the Category A, B, C and D information would, on balance, be contrary to the public interest.
- Accordingly, the IC affirmed the decision under review to refuse access under s 47(3)(b) of the RTI Act.
- An Application to review the decision was filed in Gladstone on 31 March 2017. By decision dated 6 April 2017, in accordance with the legislative requirements, it was transferred to the Appeal list to proceed as APL106-17.
- In his application to appeal filed 6 April 2017, Mr Kelson addresses paragraph by paragraph the IC Decision, stating whether each paragraph is acknowledged, agreed or disagreed, and providing reasons for the disagreement. Mr Kelson addresses each category of information considered by the IC and states his views on the conclusions reached by the IC in respect of each. Mr Kelson also provides a graded schedule, ranking the information in terms of importance to him.
- With respect, the errors of law alleged by Mr Kelson are not clear on the face of the application. This is rectified to an extent by his submissions filed 29 June 2018. In these submissions, Mr Kelson sets out his ‘Grounds of Appeal’ and also a section titled ‘Outline of the Applicant’s arguments under the RTI Act’. Not all arguments made in this latter section are identified as grounds of appeal.
- The grounds of appeal can be summarised as follows:
- The IC erred in determining that an un-located audio recording is not a document falling within the scope of the access application;
- The IC erred in failing to consider a relevant factor favouring disclosure (Schedule 4, part 2, item 5);
- The IC erred in not giving appropriate weight to relevant factors favouring disclosure in the public interest (Schedule 4, part 2, items 1, 11, 16, 17) and relevant factors favouring non-disclosure in the public interest (Schedule 4, part 3, item 3);
- The IC erred in failing to reason how the disclosure of personal information could reasonably be expected to cause a public interest harm under Schedule 4, Part 4, item 6;
- The IC erred in not providing access to audio recordings in a different form under s 68;
- The IC erred in failing to provide the appellant the option to be de-identified.
- It should be noted at the outset that Mr Kelson’s submissions did not clearly identify which categories of information under the IC Decision he was referring to in respect of the errors of law he alleges. I have been left to infer this from the sections of the IC Decision to which he refers.
- As is conventional in appeals such as this, the IC indicated its intention to abide by the decision of this Appeal Tribunal, on the basis that the QPS is the proper contradictor. However, the IC has made submissions to assist the Appeal Tribunal in respect of matters relating to the IC’s powers and procedures which the QPS would not be in a position to address.
Question of law
- As I have already stated, an appeal under s 119 of the RTI Act can only be made on a question of law.
- As explained by Thomas J in Sibelco v Right to Information Commissioner, an appeal under s 119 of the RTI Act is akin to judicial review and generally requires the appellant to base their appeal on one or more of the established grounds of judicial review. Thomas J confirmed that the prescription in s 119(5) that the appeal may only be by way of rehearing does not materially alter the function of the Appeal Tribunal under s 119 as being in the nature of judicial review.
- The exercise of the IC’s role on external review under the RTI Act, in deciding the weight to give to, and the appropriate balancing of, competing public interest factors, necessarily involves the exercise of discretion.
- The determination of an appeal against an exercise of such a discretion is governed by well-established principles. As stated by Dixon, Evatt and McTiernan JJ in House v The King:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed…
- Justice Mason, as his Honour then was, further clarified in Minister for Aboriginal Affairs v Peko-Wallsend Limited that the role of a court reviewing the exercise of an administrative discretion is a limited one. The court does not substitute its own decision by exercising a discretion which the legislature has vested in the administrator, but sets limits on the exercise of that discretion. His Honour stated that a decision made within those boundaries cannot be impugned.
- Of particular relevance for the current mater, Mason J continued:
… in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.
- These principles were cited with approval and held as applicable to the Tribunal by Thomas J in Marshall-Holst v Office of the Information Commissioner and Queensland Health (Metro North Hospital and Health Service).
- Mr Kelson filed an Application for miscellaneous matters on 4 April 2018, seeking an interim hearing for preliminary orders and a non-publication order for de‑identification of his surname in all published decisions.
- In a Directions Hearing on 10 April 2018, the Appeal Tribunal made an order adjourning this application to be heard as part of the final hearing in this matter. Directions were subsequently made, by consent, for this matter to be determined on the papers. Accordingly, it now falls to the Appeal Tribunal to decide this application.
Application for preliminary hearing
- The application for the preliminary hearing sought to resolve what Mr Kelson described as ‘basic points of law’.
- Mr Kelson sought orders to uphold the pro-disclosure bias of the RTI Act and for the release of various information which he argued flowed from recognition of that pro-disclosure bias. Mr Kelson further proposed the redaction of such information, to the extent it raised privacy concerns or disclosure was not in the public interest.
- As I have already noted, the pro-disclosure bias in deciding access to documents is explicit in the RTI Act. It is thus unnecessary for this Appeal Tribunal to make an order upholding it.
- The access to transcribed audio that Mr Kelson seeks under this pro-disclosure bias is at the crux of the decision now under review. It is appropriate to deal with this alongside the other substantive issues and not as part of some kind of preliminary inquiry.
Application for non-publication order
- Mr Kelson seeks the de-identification of his surname from all published decisions. It is unclear on the face of the application whether this refers only to the decision of this Tribunal or also encompasses the already published IC decision. From Mr Kelson’s later submissions on this point under the heading ‘Deidentification of the Applicant – both OIC’s decision & QCAT’s decision’, it can be surmised that the application is intended to refer to both.
- Under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’), the Tribunal may make an order prohibiting the publication of information that may enable a person who has appeared before the Tribunal to be identified.
- However, the Tribunal may only make such an order if it considers the order necessary to avoid certain situations or for any other reason in the interests of justice. None of the specific situations listed arise in the current matter, so Mr Kelson’s application turns on whether the Tribunal considers a non-publication order is necessary in the interests of justice.
- I note that no submissions or material have been filed in support of this application. To the extent that the underlying basis of the application can be gleaned from Mr Kelson’s other submissions in this appeal, it seems that Mr Kelson seeks non-publication of his name to avoid prejudice to his future employment prospects and undue influence in a civil claim he has filed in Victoria.
- In the absence of material detailing how the publication of Mr Kelson’s name in this decision can be said to prejudice the prospects of his Victorian claim or his employment, I cannot accept that de-identification is necessary in the interests of justice. No convincing reasons to depart from the ordinary practice of the Tribunal, which ensures open and transparent justice, have been given. I further note that Mr Kelson has previously himself acknowledged that the issues he is dealing with in Queensland are remote from his civil action in Victoria.
- It is relevant also to note that the procedure of the IC in publishing decisions and identifying the parties therein was explained to Mr Kelson before he made the decision to proceed to a formal review by way of an information sheet attached to the IC’s acknowledgment of acceptance of Mr Kelson’s external review application. Mr Kelson was well aware that a decision naming him would be made public and chose to proceed on that basis. It is also worthwhile noting that there would likely be little utility in such an order given that the IC’s decision has been available online since 3 March 2017.
- On the material available, I am, therefore, satisfied that no such necessity has been established. Accordingly, the application for a non-publication is refused.
Ground 1: Error in determining that an unlocated audio recording is not a document falling within the scope of the appellant’s access application
- Mr Kelson contends that the IC erred in determining that the 15 February 2014 audio recording fell outside of the scope of his access application.
- The IC determined that it was reasonable for QPS not to identify the 2014 audio recording as a document falling within the access application. The IC reasoned that the access application identified ‘complaints’ and ‘investigations’ and it was reasonable for the QPS to focus its search on documents after the date Mr Kelson filed his official complaint with QPS, in early March 2014.
- In its submissions in this appeal, the IC refers to the above finding and reasoning therefor, arguing that Mr Kelson’s disagreement with the IC’s factual findings does not identify any question of law. The QPS submissions concur with those of the IC and make further arguments regarding the factual finding which it is not necessary for me to consider.
- Turning to the scope of the access application, Mr Kelson submits that QPS and IC have misconstrued its terms. He argues that that given his request for ‘recordings of interview’ and the date range specified (4 October 2010 to the date of application, 26 November 2015), the 15 February 2014 recording clearly fell within this scope. Mr Kelson also make references to the structure of the wording in the access application and his intention in making the application.
- The question of the scope of the access application and the documents that fall within that is obviously a question of fact, and one which this Appeal Tribunal has no jurisdiction to review. This remains the case regardless of Mr Kelson’s views about that determination.
- While I do not suggest that to be the case here, it is worth noting that a determination of fact remains so no matter how unreasonable or perverse the finding of fact might be.
- Mr Kelson also submits that the IC erred in holding that the recording did not exist or was unlocatable. He argues that the only reasonable conclusion to be drawn on the evidence is that the recording exists and that in finding otherwise the IC erred in law. The QPS notes that Mr Kelson has previously conceded that it seems the audio recording has been lost, while Mr Kelson continues to seek in his submissions a written explanation as to why the documents do not exist or cannot be located.
- Mr Kelson also refers to a variety of information, including references to guidelines provided on the IC website, regarding steps to be taken in determining that particular information is unlocatable. He argues that the IC has not complied with these steps. In his submissions filed 29 June 2018, Mr Kelson also refers to s 48 of the RTI Act, which deals with exempt information, which is presumably an argument to the effect that the IC erred in refusing access to the recording on the basis that it was exempt information.
- It is clear from the IC decision that access to this recording was not denied on the basis that it did not exist or was unlocatable. I accept the submission of the IC, with which the QPS agreed, that these arguments are misconceived. I am also satisfied that the decision was not made on the basis that the information was exempt information.
- This ground of appeal raises no question of law.
Ground 2: Error in failing to consider a relevant factor favouring disclosure
- Mr Kelson alleges that the IC erred in not identifying Item 5 in Part 2, Sch 4 of the RTI Act; a factor which he submits should be given considerable weight.
- As set out above, s 49 requires a decision-maker to identify any factor favouring disclosure in the public interest, including those factors listed in Schedule 4, Part 2. The factor in Item 5 is:
5Disclosure of the information could reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official.
- Mr Kelson points to explicit acknowledgment in the IC decision of public interest factors relating to procedural fairness and administration of justice (Items 16 and 17) in respect of the Category A information as an indication that the IC did not consider Item 5.
- It is true that the IC decision and indeed the earlier preliminary view provided to Mr Kelson contain no reference to Item 5.
- The IC contends that to the extent Mr Kelson argues that Item 5 should have been considered in relation to the 2014 recording, that submission is misconceived as the IC factually determined that it was reasonable for the QPS not to identify the 2014 recording. In light of my findings in regard to the first ground of appeal, I accept this submission.
- However, having regard to wording of Mr Kelson’s submission which raises this ground of appeal in relation to ‘Public Interest Factors – Audio Recordings’, and the sections of the IC Decision referred to by Mr Kelson in his submissions, it is reasonable to interpret this Item 5 argument as intended to apply also to the audio recordings within Category A and C information, and not simply the 2014 recording alone.
- The IC submits that Mr Kelson has not enunciated how this public interest factor is relevant to those recordings. The IC refers to the IC decision in which it was noted that that these recordings contain information provided by individuals, other than the appellant, in response to QPS officers’ inquiries and information about QPS officers who were the subject of a human resources investigation of Mr Kelson’s complaint about officer conduct toward him.
- The IC submits that, taking into account the nature of this audio, there was no evidence before the IC to support the contention that Item 5 as an additional public interest factor is relevant to these audio recordings and should have been considered.
- I do not accept this submission. It may well be that the nature of the information would outweigh Item 5 as a factor in favour of disclosure, but that does not excuse the IC from its obligation to consider Item 5 as a relevant public interest factor favouring disclosure when it was apparent on the face of Mr Kelson’s application.
- Mr Kelson has outlined a number of possible deficiencies in the conduct or administration of the QPS, for example regarding complaint management and the conduct of officers, and also in relation to WorkCover Queensland’s administration of his claim.
- He clarifies in his submissions in reply that he seeks greater understanding of witnesses’ evidence and who from the QPS did the interviewing as this will afford him the opportunity to approach the Queensland Ombudsman for final review of the issues he has raised.
- Of course, those submissions were not before the IC at the time the decision was made. However, this issue was evident in many of the documents relied on by the IC in making its decision.
- It is unnecessary to delve into the details of the various deficiencies alleged by Mr Kelson, save to note that there were multiple references to his ongoing complaints and efforts to resolve the perceived deficiencies in QPS and WorkCover Queensland. These should have alerted the IC to the relevance of Item 5.
- Of particular note are references in Mr Kelson’s written reply to the IC’s preliminary view to his inquiries with the Queensland Ombudsman and his request that the IC provide nondisclosed information to the Ombudsman to assist in its investigation. Correspondence between Mr Kelson and WorkCover Queensland and the Queensland Ombudsman is also quoted in that written reply. Even before the IC issued its preliminary view, Mr Kelson had sent correspondence to the IC copying the Assistant Ombudsman and mentioned the possibility of complaining to the Ombudsman in a telephone conversation with an IC employee.
- It is true that Mr Kelson did not refer to Item 5 in his written reply, while he did make specific reference to other factors. But this is not determinative. The failure of a member of the public to identify relevant factors does nothing to narrow the duty of the IC under the RTI Act. This is especially so in cases, like the present, where information from which it is possible to identify the factor was before the IC.
- This view accords with that of Thomas J in Marshall-Holst. After rejecting the IC’s submission that no question of law arises on appeal where an applicant seeks to rely on additional factors which were not raised prior to the decision, Thomas J later considered whether the failure to consider the factor in issue amounted to an error of law.
- His Honour noted that while the conclusion of the IC as to the weight to be applied to a certain factor does not give rise to a question of law, ‘where there is a total failure to take a relevant consideration into account this can amount to an error of law’.
- Thomas J held that an error of law had been committed in circumstances where no reference was made to Schedule 4, Part 2, Item 12 and the factors outlined in that Item were not dealt with at all in the IC decision.
- I am satisfied that is what has occurred here. There is no evidence that Item 5 was considered and as I have already outlined, there was sufficient information before the IC from which it was possible to identify Item 5 as a relevant factor favouring disclosure.
- This amounts to an error of law on the basis of which the decision should be set aside. The IC should reconsider the decision taking Item 5 into account, alongside the other factors already considered by the IC.
Ground 3: Error in failing to give appropriate weight to relevant factors favouring disclosure and non-disclosure
- Mr Kelson alleges that insufficient weight was given to the following factors favouring disclosure contained in Schedule 4, Part 2:
Part 2 Factors favouring disclosure in the public interest
1 Disclosure of the information could reasonably be expected to promote open discussion of public affairs and enhance the Government’s accountability.
11 Disclosure of the information could reasonably be expected to reveal the reason for a government decision and any background or contextual information that informed the decision.
16 Disclosure of the information could reasonably be expected to contribute to the administration of justice generally, including procedural fairness.
- He also argues that Item 17 is relevant but would likely be unable to be realised given the time that has now passed. Item 17 states:
17Disclosure of the information could reasonably be expected to contribute to the administration of justice for a person.
- Each of the above factors was considered by the IC in relation to the Category A information, while items 1 and 16 and 1 and 11 were considered in regard to the Category C and Category D information respectively.
- Mr Kelson also argues that an error was committed in giving increased weight to item 3 in Schedule 4, Part 3:
Part 3 Factors favouring nondisclosure in the public interest
3 Disclosure of the information could reasonably be expected to prejudice the protection of an individual’s right to privacy.
- This was considered by the IC in respect of the Category A information.
- Mr Kelson has not made submissions that directly articulate how it is he alleges the weight placed on these factors by the IC was inappropriate or how this is said to amount to an error of law, particularly in the face of contrary previous decisions of the Appeal Tribunal.
- The IC referred to the decision of Thomas J in Marshall-Holst, where His Honour held that the question of weight afforded to a factor is a question of fact, not law, and hence not the subject of an appeal under s 119 of the RTI Act. The QPS agreed on this point.
- It is possible that Mr Kelson intended to make a submission that it was the overall weighing of the factors, or the step of balancing the relevant factors as it is termed under s 49(1)(e) of the RTI Act that amounted to an error. Indeed, this seems to be how the QPS interpreted the argument, referring as it does to these submissions of the appellant under the heading ‘error in balancing of competing public interests’.
- In this regard, the QPS drew the Appeal Tribunal’s attention to an earlier decision, Darlington v Office of the Information Commissioner & Queensland Police Service, in which it was stated that:
if that evidence admits of only one reasonable conclusion, any divergence from that conclusion would be an error of law. However, if the evidence reasonably admits of multiple different conclusions, then the question as to which is the correct conclusion is a question of fact.
- Having regard to the IC decision, in particular to the weight the IC determined to give to each relevant factor and her assessment of the appropriate balance to be struck between competing factors, it is clear that the IC’s finding that the balance of public interest was tipped in favour of non-disclosure was wholly open on the evidence.
- The approach taken by the IC in this regard was consistent with the requirements of the statute in that it followed the process set down by s 49 of the Act. The decision was made within the appropriate limits for the exercise of discretion by the IC and, as in the case before Thomas J in Marshall-Holst, it should not be impugned on that basis. This ground of appeal raises no question of law.
Ground 4: Error in failing to reason how the personal information could reasonably be expected to cause a public interest harm
- Mr Kelson has also submitted that the IC committed an error of law in failing to reason how the personal information could reasonably be expected to cause a public interest harm under s 6(1) in Sch 4, Part 4. This section provides that:
Part 4 Factors favouring nondisclosure in the public interest because of public interest harm in disclosure
6Disclosing personal information
- (1)Disclosure of the information could reasonably be expected to cause a public interest harm if disclosure would disclose personal information of a person, whether living or dead.
- The IC submits that for this public interest factor favouring non-disclosure to apply, the relevant question to be determined is whether disclosure of the information would disclose personal information of a person, and that where that question is answered in the affirmative, it can be reasonably expected to cause a public interest harm. The QPS supported this interpretation in its submissions.
- Mr Kelson has not addressed these arguments in his submissions in reply and the allegation in his original submissions was nothing more than a statement that the IC had failed to reason how disclosure amounted to a public interest harm.
- Mr Kelson has not properly raised an issue of law for consideration in this appeal. But even if he had, I would have rejected the argument in the present case.
- Having regard to the plain, ordinary meaning of the text, in particular, the use of the conditional ‘if’ clause, the provision should be read as indicating that where the condition is satisfied (i.e., where disclosure would disclose personal information of a person), then a reasonable expectation of public interest harm is established.
- This interpretation is supported by reference to the context in which the provision appears. Section 49, which governs the application of the public interest test, states that the factors mentioned in schedule 4, part 4 ‘are factors where disclosure could reasonably be expected to cause a public interest harm (harm factors)’.
- The intention of the legislature seems clear. Under Schedule 4, Part 4, s 6(1), disclosure of personal information is deemed a ‘harm factor’ and it is clearly stated that where a harm factor is present, disclosure could reasonably be expected to cause a public interest harm.
- There is no good reason to deviate from this plain and ordinary meaning, particularly in the absence of any submissions from Mr Kelson as to why this interpretation should not be accepted.
- The natural consequence of this conclusion is that the IC is not required to reason how the disclosure of the personal information could amount to a public interest harm; that harm is caused by the very disclosure of the information itself.
- The IC’s determination that disclosure of Category A and C information would disclose personal information of certain individuals is not a matter that can be questioned by this Appeal Tribunal, being as it is a finding of fact.
- Accordingly, this ground of appeal is not made out.
Ground 5: Error in failing to provide access to audio recordings in a different form
- Mr Kelson submits that the IC made an error of law by not providing access to audio recordings in a different form under s 68(1)(d) of the RTI Act.
- The IC has interpreted this submission as applying only to the Category A recordings on the basis of certain sections of the IC decision referenced by Mr Kelson in his submissions. This is a reasonable interpretation but in light of the fact that Mr Kelson has not specified which audio recordings the submission pertains to, I will consider the argument as if it were intended to apply to all audio recordings which remain in issue; Categories A and C.
- Section 68 relevantly provides:
68Forms of access
- (1)Access to a document may be given to a person in 1 or more of the following forms—
(d)if the document is one—
- (i)by which words are recorded in a way in which they are capable of being reproduced in the form of sound; or
- (ii)in which words are contained in the form of shorthand writing or in codified form;
providing a written transcript of the words recorded or contained in the document; …
- A question regarding the IC’s interpretation and application of this provision could potentially amount to a question of law. However, in the present case, I am not convinced that the submissions advanced by Mr Kelson do successfully identify any such question.
- The IC refused access to the Category A and C recordings in the interests of safeguarding the personal information and privacy of private citizens and concerned police officers, as well as the anticipated prejudice to the flow of information to the QPS in respect of Category A.
- The IC submits that as they had determined that access to the documents should not be given, s 68 did not arise for consideration. The QPS concurs with this submission that where documents are being wholly refused, the form of access is irrelevant.
- That the question of form of access arises only after determining to give access follows as a matter of logic. This is further apparent from the context in which s 68 appears. The provision falls under Part 7, Division 1 of the RTI Act, ‘Giving Access’ and ‘Giving access to applicant’ respectively.
- Mr Kelson failed to articulate any grounds for forsaking this logical approach or put forward any alternative interpretation.
- Accordingly, I am satisfied for the reasons contended by the IC and QPS, in the absence of any sensible alternative from Mr Kelson, that consideration of s 68(1)(d) does not arise in circumstances where access to information is wholly refused.
- In light of the above, Ground 5 of the appeal is dismissed.
- Lastly, in the course of written submissions, Mr Kelson mentioned s 75 of the RTI Act, but this was not properly identified as a ground of appeal.
- As errors in the application of s 75 had not been argued before the IC and were not substantively addressed by any of the parties, it is unnecessary to consider this further.
Ground 6: Error in failing to provide the appellant the option to be de-identified
- Mr Kelson submits that the IC erred in failing to give him the option to be de-identified in the IC’s published decision. He argues that it is incongruous to identify applicants and publish their personal information when nothing in the RTI Act or Information Privacy Act explicitly requires it. Mr Kelson states that the decision to do so diminishes his privacy as well as that of involved third parties.
- Mr Kelson makes a number of other points detailing why, in his view, this practice is inappropriate. These submissions are irrelevant in the absence of any articulation of how this amounts to an error of law within the jurisdiction of this Appeal Tribunal.
- The IC is required to give a written decision with reasons either affirming, varying or setting aside an agency’s decision under review and must publish the decision and reasons.
- As the IC rightly notes, pursuant to s 95 of the RTI Act, the procedure to be followed on external review is, subject to the Act, within the discretion of the IC. It is thus the prerogative of the IC to publish the names of parties in external reviews.
- Mr Kelson was advised during the external review process that if a formal decision was required to finalise the review, the decision would contain ‘the names of the parties, all the facts relied on, details of the law used, details of submissions made by the parties and reasons for the decision’. Mr Kelson was also specifically advised that the IC publishes decisions on its website, including participant names.
- In response to this, Mr Kelson argues that the IC may be in breach of s 20 of the RTI Act in not having a publicly available policy through which RTI applicants can seek de‑identification and be fully informed of the process for de-identification. He argues that such information should not be inserted in subscripts which can be easily missed or misunderstood. Here Mr Kelson is presumably referring to a footnote to the information sheet enclosed with the IC’s acknowledgement of acceptance of his access application which states, ‘In limited circumstances, the Information Commissioner may exercise the discretion to deidentify the name of a participant in an external review.’
- Mr Kelson may not agree with the IC’s external review procedure, but that, in itself, does not equate to a question of law. Nor does the Tribunal have any jurisdiction to assess the adequacy or otherwise of any official policy in this regard.
- Accordingly, the jurisdiction of the Appeal Tribunal is not enlivened in respect of this ground and it is dismissed.
- It is the decision of the Appeal Tribunal that:
- The appeal is allowed only in respect of the ground of appeal by which the appellant contends that the Second Respondent erred in failing to consider a relevant factor favouring disclosure, but is otherwise dismissed.
- The Decision of the Information Commissioner dated 2 March 2017 be set aside and the matter remitted to the Information Commissioner for reconsideration taking into account Schedule 4, Part 2, Item 5 of the Right to Information Act 2009 (Qld) alongside the factors already considered by the Information Commissioner.
- Both Mr Kelson and the OIC have reserved the right to be heard on costs. The QPS has not reserved this right but in the interests of procedural fairness should be granted the same opportunity to be heard.
- Accordingly, it is further ordered:
- The parties are to file any submissions on which they intend to rely in relation to costs by 4.00 pm on 21 June 2019.
- Unless either party requests an oral hearing, the issue of costs will be determined on the papers on a date to be fixed by the Tribunal.
Kelson and Queensland Police Service  QICmr 7 (3 March 2017); made by the Assistant Information Commissioner as a delegate pursuant to s 145 of the RTI Act.
RTI Act, sch 5.
RTI Act, s 3.
RTI Act, s 44.
RTI Act, s 119(1): ‘A participant in an external review may appeal to the appeal tribunal against a decision of the information commissioner on the external review’ (emphasis added).
 QCATA 59.
(1936) 55 CLR 499 at 504-505.
(1985) 162 CLR 24 at 40-41.
Citing Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223 at 228.
(1985) 162 CLR 24 at 41.
 QCATA 28 at -.
RTI Act, s 44(1).
QCAT Act, Section 66(1).
QCAT Act, s 66(2)(d),(e).
Mr Kelson’s response to IC’s preliminary view dated 20 October 2016 at Appeal Book, Part A, 61.
IC Decision, -.
See, for example, Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139.
Darlington v Office of the Information Commissioner & Queensland Police Service  QCATA 167 at .
IC Decision, .
IC Decision, .
Mr Kelson’s further written submissions in response to OIC’s preliminary view dated 20 October 2016 at Appeal Book, Part A, Document 11, 60-61. An enquiry as to the possibility of sharing non-disclosed information with the Office of the Queensland Ombudsman was also raised in Mr Kelson’s initial written response to OIC’s preliminary view dated 23 September 2016 at Appeal Book, Part A, Document 10, 50-52.
Mr Kelson’s further written submissions in response to OIC’s preliminary view dated 20 October 2016 at Appeal Book, Part A, Document 11, 62-63.
Mr Kelson’s further written submissions to OIC dated 25 May 2016 at Appeal Book, Part A, Document 7, 31.
OIC file note – Mr Kelson’s further oral submissions to OIC dated 11 August 2016, Appeal Book, Part A, Document 8, 34-35.
 QCATA 28 at -.
Ibid at .
Ibid at -.
 QCAT 167 at .
 QCATA 28 at .
RTI Act, s 49(4).
IC Decision at - and .
IC Decision, , .
RTI Act, s 110.
Information for applicants sheet enclosed with IC’s acknowledgement of acceptance of Mr Kelson’s external review application dated 9 May 2016, 3; at Appeal Book, Part A, 23.
Ibid, see footnote 7.
- Published Case Name:
Bruce Alexander Kelson v Queensland Police Service and Office of the Information Commissioner
- Shortened Case Name:
Kelson v Queensland Police Service
 QCATA 67
10 Jun 2019