Park v Information Commissioner
[2021] QCATA 109
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- Park v Information Commissioner[2021] QCATA 109
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Park v Information Commissioner[2021] QCATA 109
Park v Information Commissioner[2021] QCATA 109
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Park v Information Commissioner [2021] QCATA 109 |
PARTIES: | kenneth eugene park |
(applicant/appellant) | |
v | |
office of the information commissioner moreton bay regional council university of the sunshine coast orora ltd | |
(respondents) | |
APPLICATION NO/S: | APL356-20 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 15 September 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – REVIEW OF DECISIONS – OTHER STATES – Queensland – appeal on a question of law – documents sought comprise exempt information – contractual confidentiality – scope of exemption – relevance of other Acts – no error of law shown. Right to Information Act 2009 (Qld) s 48, s 119, s 125, Schedule 3 s 8(1). Adani Mining Pty Ltd v Office of the Information Commissioner [2020] QCATA 52 BGC (Australia) Pty Ltd v Fremantle Port Authority (2003) 28 WAR 187 Commissioner for Liquor and Gaming v Farquhar Corporation Pty Ltd [2018] QCA 202 Hocking v Director-General of the National Archives of Australia [2020] HCA 19 Osland v Secretary, Department of Justice (2010) 241 CLR 320 Powell v Queensland University of Technology [2018] 2 Qd R 276 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondents: | Self-represented, except for the fourth respondent, represented by Corrs Chambers Westgarth, solicitors. |
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
- [1]From 1957 to 2013 a paper mill was operated on a large site near Petrie. Following the closure of the mill, in 2015 the fourth respondent sold the site to the second respondent, with a view to its use as a tertiary education facility. Apart from the contract of sale, those respondents entered into three further contracts concerning the sale between 2017 and 2019. In 2018 a development agreement in relation to the site was entered into by the second and third respondents. A campus has been constructed on part of the site, and has been operated by the third respondent since early last year.
- [2]Those five contracts were covered by an application made by the appellant on 6 August 2019 to the second respondent for access under the Right to Information Act 2009 (Qld) (“the Act”). The second respondent, after consulting the third and fourth respondents, decided that the contracts were exempt information under the Act s 48 and Schedule 3 s 8(1), and their disclosure would on balance be contrary to the public interest under the Act s 49. The appellant applied to the first respondent to review that decision. On 23 July 2020 the first respondent confirmed the decision, on the ground that the contracts were exempt information under the Act s 48 and Schedule 3 s 8(1). The first respondent found that there were contractual provisions which covered all five documents, and which applied to provide contractual confidentiality to them.[1] It was therefore unnecessary for the first respondent to deal with any issue under the Act s 49.
- [3]The appellant has appealed to the Tribunal from the decision of the first respondent, as he is entitled to under the Act s 119. By that section, the appeal is only on a question of law, and may only be by way of a rehearing. The appeal provided by s 119, because it is confined to a question of law, is in the nature of judicial review.[2] The appeal does not provide a mechanism for reconsidering any issue of fact decided by the first respondent, except on the narrow ground that, as a matter of law, the decision on the issue was not open on the material before the first respondent. The only issue is whether an error of law was made by the first respondent.[3] As well, the Tribunal has jurisdiction under the Act only in respect of the proper operation of the disclosure regime provided by the Act, and cannot consider any broader ground for disclosure.
- [4]The appeal was heard on the papers, pursuant to a direction of the President of the Tribunal on 8 June 2021. The appellant attached to the Application for appeal a statement which was essentially submissions is support of the appeal, and filed further submissions on 25 March 2021, and some submissions in reply on 20 May 2021. He also relied on a letter sent to the first respondent on 24 May 2020. The first respondent filed brief, limited submissions on 21 April 2021. The second respondent filed submissions on 23 April 2021 supporting the decision of the first respondent. The third and fourth respondents each filed submissions on 7 May 2021 supporting the decision of the first respondent.
Appellant’s submissions
- [5]The appellant challenged the proposition that the content of the relevant contracts was confidential information, and submitted that any confidential information provided during negotiations would not have ended up in the contract. Such an argument mistakes the significance of contractual confidentiality. What matters is the scope of the information covered by the contractual provision. That is a question of fact, which is not subject to appeal, unless it involves some question of interpretation of a particular contract. For this reason, there is no question of releasing the document with the confidential parts redacted, if the confidentiality extends to the whole document. As well, there is no reason to assume that confidential information would not be incorporated into a contract document. Commonly, the point of contractual confidentiality is specifically to keep the commercial terms of a contract confidential.
- [6]The appellant argued that the first respondent was wrong to confine the decision to the operation of the Act, and submitted that, for example, the first respondent, like everyone else, was bound by the Local Government Act 2009 (Qld). That is correct in the sense that, in matters governed by the Local Government Act, that Act applies to the first respondent. For example, if she owned rateable property in her statutory capacity she would be bound to pay any rates on it duly levied by the local authority.[4] But her function under the Act is created and limited by the terms of the Act, and the Act does not authorise her to go beyond its scope of operation. There was no error of law by the first respondent in confining her attention exclusively to disclosure under the Act. The appellant has not identified any specific provision of any other Act which modifies in a relevant way the operation of the Act s 48.
- [7]The appellant referred to the Act s 125, which gives the first respondent power to do all things “that are necessary or convenient to be done for or in connection with the performance of the commissioner’s functions under an Act.” This however does not give the first respondent a general power to do things in relation to any Act. It is necessary to identify the function that is being performed by the first respondent under an Act. Here, it was the function of conducting an external review of the decision of the second respondent under the Right to Information Act 2009 (Qld). No other Act confers functions on the first respondent for conducting such an external review. It follows that the power in s 125, in the present case, could be exercised only for or in connection with the performance of that function. It does not authorise the first respondent to do anything in such a review relevant to the operation of any other Act.[5]
- [8]The appellant also submitted that the first respondent erred in concluding that, in the case of exempt information under s 48 there was no public interest test to be applied, at least in the case of exempt information under Schedule 3 s 8(1). This conclusion was in accordance with authority cited by the first respondent,[6] and no error of law occurred in doing so, for the reasons given in those decisions.
- [9]The first respondent rejected a submission by the appellant based on the decision in Hocking v Director-General of the National Archives of Australia [2020] HCA 19, on the basis that that decision turned on the correct interpretation of certain provisions of the Archives Act 1983 (Cth). The appellant challenged that conclusion, but it was clearly correct. The issue in Hocking was whether the relevant documents fell with the terms of the provisions for release after thirty years; it was not concerned with any general principle of confidentiality of documents.[7]
- [10]The appellant submitted that the Act provides a right to information. That is so, but it is not an unlimited right, despite the general preference in favour of disclosure revealed in several provisions. It contains in s 48 a limitation with respect to exempt documents, where the Parliament has decided that the right will not apply. The first respondent was correct to conclude that, on an external review under the Act of the decision of the second respondent, she had no power to override that limitation.
- [11]The appellant submitted that it was wrong to make the decision on “one small part of the RTI Act.” But that was the key provision which was applicable to the decision in the present case, and there was no error of law in basing the decision on that part of the Act, however small it may be. Most decisions under any Act ultimately come down to the identification and application of the specific provision of the Act which governs such a decision.
- [12]The appellant submitted that one party should not be entitled unilaterally to dictate confidentiality in relation to particular information. But the basis of contractual confidentiality is that both (or all) parties to the contract have agreed to such confidentiality. Parties seeking such confidentiality would not provide the relevant information, or enter into the relevant agreement, unless such confidentiality is promised. All that this exemption does is permit that promise of confidentiality to be honoured. The real alternative to respecting contractual confidentiality is not disclosure of the relevant information; it is that the relevant information will not be provided to the agency in the first place.
- [13]A recent example of this, as disclosed in media reports, was that a particular vaccine manufacturer was not prepared to enter into detailed negotiations with the Commonwealth Government for the supply of the vaccine without a confidentiality agreement in place covering those negotiations. Administrative hesitancy about entering into such an agreement, motivated no doubt by the considerations favouring open government expounded by the appellant in his submissions, delayed the conduct of detailed negotiations, and as a result the supply of the relevant vaccine. Some people might regard obtaining, or trying to obtain, public access to the information provided in the negotiations and the terms of any resulting supply agreements as more important than obtaining vaccines as soon as possible; I expect others would disagree.
- [14]It is always a matter for an agency to decide whether or not to agree to contractual confidentiality. But if an agency has agreed, it is necessarily unjust to the other party to the agreement for that confidentiality not to be respected. Parliament has, in this small part of the Act, passed its judgment on where the public interest lies in that situation. There was no error of law on the part of the first respondent in respecting that judgment; it would have been an error of law not to respect it.
- [15]Some of the appellant’s submissions were directed to the alternative ground on which disclosure was refused by the second respondent, under s 49. Since it was not necessary for the first respondent to consider this ground in view of the decision on the first ground, there was necessarily no error of law in relation to it. If the appellant had succeeded in showing that the relevant information was not exempt information, the correct result would have been to remit the matter to the first respondent to consider the alternative ground.
- [16]The appellant also referred to the power of the agency to release information notwithstanding that it is exempt information, or that the public interest on balance favours non-disclosure.[8] The Act provides specifically that this power is not available to the first respondent on external review: s 105(2). Nor can the first respondent direct the second respondent to exercise this power. There was no error of law on the part of the first respondent in this respect.
Conclusion
- [17]The appellant has failed to show that there was any error of law in the decision of the first respondent. The appeal is therefore dismissed. Two of the respondents reserved the right to be heard on costs, so I will give directions for submissions on costs.
Footnotes
[1] In so far as that conclusion involved the correct interpretation of the terms of the contracts, it involved issues of law; but whether something meets a description in a term of a contract is a question of fact. I have checked the wording of the relevant confidentiality clauses, and did not discover any error of law by the first respondent involved in this finding.
[2]Osland v Secretary, Department of Justice (2010) 241 CLR 320; Powell v Queensland University of Technology [2018] 2 Qd R 276 at [42] – [46]. That case involved the Information Privacy Act 2019 (Qld) s 132, but that is relevantly in the same terms as the Act s 119.
[3] As to the identification of an error of law, see also Commissioner for Liquor and Gaming v Farquhar Corporation Pty Ltd [2018] QCA 202.
[4] This is a hypothetical example; I doubt if the first respondent would in fact own property in that capacity.
[5] The practical explanation of the wording of s 125 is that the first respondent also has functions under the Information Privacy Act 2009 (Qld) Chapter 3 Part 9.
[6] Adani Mining Pty Ltd v Office of the Information Commissioner [2020] QCATA 52; BGC (Australia) Pty Ltd v Fremantle Port Authority (2003) 28 WAR 187.
[7] See the joint judgment of Kiefel CJ, Bell, Gageler and Keane JJ at [7].
[8] The Act s 48(3), s 49(5).