Commissioner of the Police Service v Shelton & Anor

This matter related to whether, in the context of an application for access to information said to be exempt information within the “law enforcement or public safety” category of s 10 of Sch 3 to the Right to Information Act 2009, s 59 of the Information Privacy Act 2009 permitted the decision-maker to conclude that information was “exempt information” based on information that documents of the type sought would generally contain, or whether it required consideration of the particular documents that were sought. It was held that, at least in this category of exempt information, there was a “hybrid” answer to this question of construction – s 10(1) of Sch 3 permitted consideration of the type of documents generally; s 10(2) of Sch 3 required consideration of the particular documents sought.

Holmes CJ and Fraser JA and Boddice J

8 May 2020

The first respondent is a former police officer. She applied to the applicant, the Commissioner of Police, under s 43 of the Information Privacy Act 2009 seeking an activity report from a particular police database relating to: searches performed in respect of her file; amendments made to her file; and details of the police officers who had made such searches or amendments. [4]–[6]. The Commissioner of Police refused to confirm or deny existence of documents containing this information.

On external review, the Information Commissioner determined that the Commissioner of Police was entitled to refuse to deal with the application under s 59 of the Information Privacy Act 2009, on the basis that the application sought information that was “exempt information” within the meaning of s 48(4) and Sch 3 to the Right to Information Act 2009. [10]–[23]. Schedule 3 provided for 12 categories of exempt information. Section 10(1)(f) of Sch 3 provided that information would be “exempt information” if it was “law enforcement or public safety information”, the disclosure of which “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) …”. However, by s 10(2)(a) of Sch 3, “if [the information] consists of … matter revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law” then information will be non-exempt. [11]. The Information Commissioner considered that disclosure of activity reports from this database would prejudice lawful policing methods and procedures. [18]. The first respondent’s suspicion that there had been unauthorised access to her file was not enough to bring the information within the exception in s 10(2). [20]–[22].

On an appeal on a question of law, the Appeal Tribunal of QCAT held that the Information Commissioner had misconstrued s 59 of the Information Privacy Act 2009. The Information Commissioner had, in the Appeal Tribunal’s view, failed to have regard to the particular activity report sought by the first respondent, or to consider how disclosure of this particular information could reasonably be expected to have the consequences referred to in s 10(1)(f) of Sch 3 of the Right to Information Act 2009. [24]–[30].

The Commissioner of Police sought an extension of time in which to apply for leave to appeal to the Court of Appeal. The central issue was whether s 59 of the Information Privacy Act 2009 permitted the decision-maker to determine whether particular documents contained “exempt information” based on the information which the type of document usually contained, or whether attention had to be focused on the information which the particular documents sought contained. [40]. The leading judgment was delivered by Holmes CJ, with whom Fraser JA and Boddice J agreed.

In her Honour’s view, the answer to the construction of s 59 of the Information Privacy Act 2009 lay in the fact that, to be “exempt information”, the contents of the documents had to be within one of the categories in Sch 3 of the Right to Information Act 2009. [41]–[44]. Within the “law enforcement or public safety information” category, this required consideration of both ss 10(1) and 10(2) of the Right to Information Act 2009. [45]. While it could be said that activity reports from this database generally might have characteristics that would enable a judgment to be made about whether they were within s 10(1), it was not possible to determine whether they “lack any indication that investigative authority has been exceeded” as required by s 10(2) without considering the particular activity reports. [46].

It followed that there was a “hybrid” answer as to the proper construction of s 59 of the Information Privacy Act 2009 in the context of “law enforcement or public safety information”. [40].

The Chief Justice held that while it was permissible to reach a conclusion as to the effects of disclosure for the purposes of s 10(1) of Sch 3 by reference to the information that documents of the type sought generally contained, satisfaction of s 10(2) made “actual consideration of those documents a necessary earlier step” to determining whether the documents were exempt information. [48]. It was possible, however, that other categories of exempt information in Sch 3 might enable the requisite opinion to be formed by reference to the kind of information, without any regard to the content of the particular documents sought. The conclusion here stemmed from the requirements of ss 10(1) and 10(2) of the Right to Information Act 2009. [48].

The Information Commissioner had, in her Honour’s view, erred by expressing satisfaction that the activity reports were exempt information within s 10(1)(f) before going on to consider whether s 10(2) applied. [52]. As Holmes CJ explained, the proper approach was to consider whether any of the factors set out in s 10(1) applied and then consider whether any of the features in s 10(2) existed (in the particular documents the subject of the application). Section 10(2) was not an exception; rather, it rendered the information non-exempt under s 10(1). [52]. This error in the sequence of reasoning by the Information Commissioner had no practical effect in the matter under appeal, however. Although the Information Commissioner considered that information of the kind contained in activity reports from this particular database would not generally satisfy s 10(2), the Information Commissioner went on to conclude that the particular activity report in question relating to the first respondent did not disclose that any law enforcement investigation had exceeded its proper bounds so as to satisfy s 10(2) of Sch 3 to the Right to Information Act 2009.

In the result, the appeal was allowed, the decision of QCAT Appeal Tribunal set aside and the appeal from the decision of the Information Commissioner dismissed. [55]. In the circumstances, it was appropriate to make no order as to costs. [54].

S Walpole