ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - LAW ENFORCEMENT OR PUBLIC SAFETY INFORMATION - application for access to information supplied by an applicant for a road closure - whether disclosure would reveal information that could reasonably be expected to identify a confidential source of information in relation to the enforcement or administration of the law - whether disclosure would endanger a person's life or physical safety - whether disclosure would result in a person being subjected to a serious act of harassment or intimidation - whether disclosure would endanger the security of a building or structure - whether information is exempt from disclosure under sections 47(3)(a) and 48 and schedule 3, sections 10(1)(b), 10(1)(c), 10(1)(d) and 10(1)(h) of the Right to Information Act 2009 (Qld)

ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - application for access to information about a road closure - whether disclosure would, on balance, be contrary to the public interest - sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld)

ADMINISTRATIVE LAW - RIGHT TO INFORMATION -DISCLOSURE DECISION - ONUS ON EXTERNAL REVIEW - agency consulted external review applicant as a third party under section 37 of the Right to Information Act 2009 (Qld) - external review applicant objected to disclosure - whether a decision not to disclose is justified - section 87(2) of the Right to Information Act 2009 (Qld)

1. The access applicant[2] (Access Applicant) applied under the Right to Information Act 2009 (Qld) (RTI Act) to the then Department of Resources[3] (Department) for access to correspondence and documents relating to a road closure.

1. The Department located 129 pages that were responsive to the request. The Department identified that 111 pages may be of concern to third parties and sought their views on the Department's proposed disclosure. One third party (the Review Applicant)[4] objected to disclosure, but the Department decided[5] to grant full access to 76 pages and partial access to 53 pages of documents (the information in issue), contrary to the Review Applicant's objections.

1. The Review Applicant then applied to the Department for internal review of the Department's decision.[6] The Department decided[7] to uphold the original decision, contrary to the Review Applicant's objections.

1. The Review Applicant then applied to the Information Commissioner for external review of the Department's decision.[8]

1. For the reasons set out below, I affirm the Department's decision that the information in issue is not exempt information[9] and disclosure would not, on balance, be contrary to the public interest under the RTI Act.[10]

1. The Review Applicant lodged a road closure application with the Department. The Access Applicant sought information about this process as an adjacent landowner. Both the Review Applicant and the Access Applicant are companies.

1. Significant procedural steps relating to this external review are set out in the appendix.

1. The decision under review is the Department's internal review decision[11] dated 20 June 2024.

1. The evidence, submissions,[12] legislation and other material I have considered in reaching this decision are set out in these reasons (including footnotes and the Appendix). I have taken the Review Applicant's submissions into account to the extent they are relevant to the issue for determination in this decision.

1. I have turned my mind to the provisions of the Human Rights Act 2019 (Qld) (HR Act) and its application to this matter. As the Access Applicant and the Review Applicant are both companies, the HR Act does not apply to them.[13] I have nevertheless considered the HR Act in making my decision, in accordance with section 58(1) of the HR Act, to the extent that this decision may impact individuals.

1. The Review Applicant objects to the release of the information in issue. The Review Applicant has submitted[14] that the information is exempt from release and that disclosure would be contrary to the public interest. The issue for determination in this matter is whether there is any basis to refuse access to the information in issue under the RTI Act.

1. The RTI Act provides a right to access government held information[15] and states that access to requested information should be given unless there is a ground under the RTI Act to refuse access.[16]

1. The RTI Act permits an agency to refuse access to documents to the extent that they comprise exempt information.[17] Relevantly in this matter, information will be 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[18]
• endanger a person's life or physical safety[19]
• result in a person being subjected to a serious act of harassment or intimidation;[20] or
• endanger the security of a building, structure or vehicle.[21]

1. Information will be exempt if its disclosure could reasonably be expected to enable the existence or identity of a confidential source of information in relation to the administration of the law to be ascertained.[22] Information will be exempt on this basis if:

• there exists a confidential source of information
• the information which the confidential source has supplied is in relation to the enforcement or administration of the law; and
• disclosure of the information in issue could reasonably be expected[23] to enable the existence or identity of the confidential source of information to be ascertained.[24]

Endanger the security of a building or structure

1. Information will also be exempt if its disclosure could reasonably be expected to endanger the security of a building, structure or vehicle.[25]

1. For this exemption to apply, there must be a reasonable expectation that disclosing the information in issue could endanger the security of the building or structure. When assessing whether an outcome could reasonably be expected, I must distinguish 'between what is merely possible ... and expectations that are reasonably based' and for which 'real and substantial grounds exist'.[26]

1. Information will be exempt if its disclosure could reasonably be expected to endanger a person's life or physical safety.[27]

1. The Information Commissioner has previously confirmed that the endangering life or safety exemption requires:[28]

...an evaluation of the expected consequences of disclosure in terms of endangering (i.e. putting in danger) a person's life or physical safety, rather than in terms of the actual occurrence of physical harm...

1. The question of whether disclosure of information could reasonably be expected to endanger a person's life or physical safety is to be objectively judged, in light of all relevant evidence.[29] A source of danger to individuals must be in contemplation and there must be evidence of a risk that disclosure of the information in issue could reasonably be expected to endanger the life or physical safety of individuals.[30]

1. Information will be exempt from disclosure if it could reasonably be expected to result in a serious act of harassment or intimidation.[31]

1. In relation to the exemption,[32] Thomas J of the Queensland Civil and Administrative Tribunal observed as follows in the matter of Watson v Office of the Information Commissioner Queensland & Ors:[33]

For the exemption to apply, it must be reasonably expected that a person would be subject to a serious act [of] harassment or intimidation as a result of the disclosure of the information, rather than independently or from any other circumstance.

1. Accordingly, for this exemption to apply, I must be satisfied that:

• there is a reasonable expectation of harassment and intimidation arising as a result of disclosure,[34] rather than from other circumstances;[35] and
• the expected harassment or intimidation is serious in nature.

1. The term 'could reasonably be expected to' requires that the expectation is reasonably based, that it is neither irrational, absurd or ridiculous,[36] nor merely a possibility.[37] Whether the expected consequence is reasonable requires an objective examination of the relevant evidence.[38] It is not necessary for a decision-maker 'to be satisfied upon a balance of probabilities' that disclosing the document will produce the anticipated prejudice, in this case, serious harassment or intimidation.[39]

1. Factors that might be relevant in considering whether an event could reasonably be expected to occur include, but are not limited to:[40]

• past conduct or a pattern of previous conduct
• nature of the information in issue
• nature of the relationship between the parties and/or relevant third parties; and
• relevant contextual and/or cultural factors.

1. The RTI Act does not define harassment or intimidation. Therefore, the terms are given their ordinary meanings.[41] In this regard, the Information Commissioner has previously accepted[42] the following definitions:

• 'harass' includes 'to trouble by repeated attacks, ... to disturb persistently; torment'; and
• 'intimidate' includes 'to make timid, or inspire with fear; overawe; cow ... to force into or deter from some action by inducing fear'.[43]

1. Also, the exemption is not invoked if the expected harassment or intimidation does not meet the serious threshold. The exemption's reference to a 'serious act of harassment or intimidation' indicates that it was Parliament's intention, when passing this provision, that some degree of low level harassment or intimidation would be tolerated before the exemption could be invoked.[44]

1. A confidential source of information supplies information on the understanding that their existence or identity will remain confidential.[45] This understanding may arise by express agreement between the parties.[46] Alternatively, the surrounding circumstances may indicate an implicit mutual understanding of confidentiality of the identity of the source between the parties.[47]

1. The Review Applicant acknowledged that the Department did not explicitly state that the road closure process would be a confidential process. [48] However, they submitted[49] there was an implied understanding of confidentiality in the road closure process. Having reviewed the information in issue, there is no indication that an assurance of confidentiality was provided to the Review Applicant either explicitly or impliedly. Indeed, the information in issue indicates the Review Applicant was advised that consideration of the road closure application may involve consultation and disclosure with third parties and that the information was subject to the RTI Act. Given these clear statements regarding the process, it is evident that there was no information provided to the Review Applicant upon which an implied understanding of confidentiality could be based. On this basis, and on the basis of the Review Applicant's acknowledgement, I find there was no explicit or implied expectation of confidentiality.

1. The term 'in relation to the enforcement or administration of the law' has been interpreted broadly and has been recognised as extending to various government activities in relation to which the relevant agency has regulatory responsibilities.[50] Generally, it has application where a person makes a complaint to a government entity which triggers an action on the part of that entity to remedy a breach of a law. While processing a road closure application could be said to be in relation to the administration of the law, the nature of the process is such that an applicant is obliged to provide information in order to take the benefit of the process. It is not the type of process that would ordinarily necessitate confidentiality. At any rate, I am satisfied that there was no mutual, implied, or explicit understanding of confidentiality between the Review Applicant and the Department.

1. I therefore find that this exemption does not apply.

Endanger the security of building or structure

1. The Review Applicant submitted[51] the Director of the Access Applicant had threatened to destroy any fence which was not approved by their company. The Review Applicant also provided communications detailing ongoing legal disputes with the Access Applicant. However, these communications relate to ongoing disputes over fencing and do not demonstrate that release of the information in issue - concerning the road closure - could reasonably be expected to cause any security issues with the Review Applicant's fencing, building or structures.

1. I therefore find that this exemption does not apply.

1. The Review Applicant provided the Information Commissioner[52] with approximately 117 pages of correspondence with the Access Applicant. This correspondence can best be described as communication regarding unresolved legal disputes. Having reviewed the correspondence, I did not find any threat to life or safety.

1. The Review Applicant acknowledged by submission[53] there had been no explicit threat to life or safety, yet said there was a risk that disclosure could lead to further escalation. Given, as noted above, the correspondence concerned unresolved legal disputes and did not contain any threat to life or safety, I consider the only escalation likely is in further legal wrangling rather than the endangerment of a person's life or physical safety.

1. The Review Applicant also submitted[54] that the Director of the Access Applicant company personally phoned a Director of the Review Applicant company and arranged contractors to remove a non-boundary fence in August 2023. While I acknowledge such situations between parties can be challenging and at times uncomfortable, I find that there is no reasonable basis to believe that release of the information in issue risks endangering any person's life or safety.

1. I therefore find that this exemption does not apply.

1. The Review Applicant has provided the Information Commissioner with correspondence with the Access Applicant[55] and submitted[56] it involved repeated, forceful communications that have escalated in nature. Some of the correspondence from the Access Applicant could be characterised as forceful or claiming to assert perceived legal rights against the Review Applicant. It is evident from this correspondence that there is an acrimonious relationship between the Access Applicant and the Review Applicant arising from disputes about obligations/responsibilities resulting from a Development Application and/or Deed of Covenant. It is equally evident that the acrimony existed beyond the road closure process and prior to it. While I acknowledge such correspondence may be unpleasant to receive, I am satisfied that it did not amount to a serious act of harassment or intimidation.

1. Consequently, I consider that disclosure of the information in issue could not reasonably be expected to result in a serious act of harassment or intimidation in circumstances where acrimony already existed and further acrimony could not be said to be the result of disclosure, particularly given the Access Applicant is already aware of the road closure application.

1. I therefore find that this exemption does not apply.

1. Access to information may also be refused if its disclosure would, on balance, be contrary to the public interest.[57]

1. The RTI Act identifies various factors that may be relevant to deciding the balance of the public interest[58] and explains the steps that a decision maker must take when deciding whether disclosure would, on balance, be contrary to the public interest as follows:[59]

• identify any irrelevant factors and disregard them
• identify relevant public interest factors favouring disclosure and nondisclosure
• balance the relevant factors favouring disclosure and nondisclosure; and
• decide whether disclosure of the information in issue would, on balance, be contrary to the public interest.

1. The RTI Act holds that it is irrelevant if disclosure could reasonably be expected to result in mischievous conduct by the access applicant.[60] This means I am unable to take such an argument into account when determining where the public interest lies.

1. It is Parliament's intention that the RTI Act be administered with a pro-disclosure bias[61] and the grounds to refuse access are to be interpreted narrowly.[62]

1. Where an agency has made a decision to give access to a document, the participant in the external review who opposes disclosure has the onus of establishing that a decision not to disclose the information is justified.[63]

1. The Review Applicant submitted[64] the land closed as part of the road closure was not publicly accessible, did not impact any other property owner and the information should not be released.

1. I consider disclosure of the information in issue would:

• enhance the Department's accountability and transparency regarding the road closure process and sale of the land[65]
• reveal the reasons for the Department's decision to grant the application, as well as information that was taken into account during that process;[66] and
• allow the Department's decision-making process to be scrutinised.[67]

1. Road reserve areas are intended as dedicated areas for the use of the general public when travelling. I consider there is significant public interest in processes through which road reserves are closed and the land sold to private landholders, being open to public scrutiny. As such, I consider that each of the above factors is deserving of significant weight in favour of disclosure.

1. I acknowledge the information in issue details the Review Applicant's dealings with the Department regarding the road closure. While the personal information of individuals from the Review Applicant company has been redacted from the information in issue, I accept that a person with knowledge of the Review Applicant's company may be able to identify the primary person/s involved. This raises two factors weighing against disclosure on privacy grounds.[68]

1. I would not ordinarily consider information relating to an application for road closure to be particularly sensitive or private, however in this case, I acknowledge the acrimonious relationship between the Review Applicant and Access Applicant raises the weight of these considerations to some degree. I therefore afford these two factors moderate weight.

1. I acknowledge there are moderate public interest arguments weighing against disclosure. However, this is insufficient to outweigh the significant public interest in release of the information in issue. For these reasons, I hold the Department's decision to be correct.

1. I affirm the Department's decision that the requested information is not exempt information[69] and disclosure would not, on balance, be contrary to the public interest under the RTI Act.[70]

1. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.

OIC received an application for external review from the Review Applicant.

OIC advised the Department that the external review had been received and requested preliminary procedural documents.

OIC received procedural documents from the Department.

OIC received a request from the Access Applicant to be joined as a participant in the external review. OIC also received confirmation that the requested information is still sought and further information from the Access Applicant.

OIC requested further preliminary procedural documents from the Department.

OIC emailed the Access Applicant to provide information about the external review process.

OIC received further procedural documents from the Department.

OIC received further information from the Access Applicant.

OIC informed the Review Applicant, Department and Access Applicant that the application for external review had been accepted.

OIC asked the Department and the Review Applicant to provide further information.

OIC advised the Access Applicant that he had been accepted as a party to the review.

OIC received further information from the Access Applicant.

OIC received the requested further information from the Department.

OIC received the requested further information from the Review Applicant. The information was resent on 15 August 2024 due to an IT issue.

OIC asked the Department to provide further information.

OIC received the requested further information from the Department.

OIC received further information from the Access Applicant.

OIC received further information from the Access Applicant.

OIC received further information from the Access Applicant.

OIC conveyed a preliminary view to the Review Applicant.

OIC updated the Department and Access Applicant on the progress of the external review.

OIC received further information from the Access Applicant.

OIC received submissions from the Review Applicant in response to the preliminary view.

OIC received further information from the Access Applicant.

OIC received further information from the Access Applicant.

OIC received further information from the Access Applicant.

[1] Known as the Department of Resources at the time of the access application.

[3] Due to machinery of government changes, set out in the Administrative Arrangements Order (No. 2) 2024, made pursuant to the Constitution of Queensland 2001, on 1 November 2024 the Department of Resources became the Department of Natural Resources and Mines, Manufacturing and Regional and Rural Development. The Department of Natural Resources and Mines, Manufacturing and Regional and Rural Development will be referred to as the Department in this decision.

[5] Decision notice to Access Applicant dated 26 April 2024 and decision notice to Review Applicant dated 2 May 2024.

[6] Internal review application dated 18 May 2024.

[7] Decision notice to Review Applicant dated 20 June 2024.

[8] External review application dated 5 July 2024 and received on 11 July 2024.

[9] Sections 47(3)(a) and 48 and schedule 3, sections 10(1)(b), 10(1)(c), 10(1)(d) and 10(1)(h) of the RTI Act.

[10] Sections 47(3)(b) and 49 of the RTI Act.

[12] Including the Review Applicant's external review application dated 5 July 2024 and received on 11 July 2024 and submissions made on 2 January 2025 (3 January 2025), and the Access Applicant's emails dated 17 July 2024, 23 July 2024, 1 August 2024, 17 September 2023, 15 October 2024, 20 November 2024, 12 December 2024, 13 February 2025, 27 February 2025 and 4 March 2024.

[13] Section 11(1) of the HR Act provides that '[a]ll individuals in Queensland have human rights'. Section 36 and Schedule 1 of the Acts Interpretation Act 1954 (Qld) define an "individual" as a natural person, which is not a company.

[14] On 13 August 2024 (resent 15 August 2024) and 3 January 2025.

[16] Section 44(1) of the RTI Act. The grounds to refuse access are set out in section 47 of the RTI Act.

[17] Sections 47(3)(a) and 48 and schedule 3 of the RTI Act.

[18] Schedule 3, section 10(1)(b) of the RTI Act.

[19] Schedule 3, section 10(1)(c) of the RTI Act.

[20] Schedule 3, section 10(1)(d) of the RTI Act.

[21] Schedule 3, section 10(1)(h) of the RTI Act.

[22] Schedule 3, section 10(1)(b) of the RTI Act.

[23] The phrase 'could reasonably be expected to' requires an objective consideration of all the relevant evidence and consideration of whether the expectation is reasonably based. A reasonable expectation is not irrational, absurd or ridiculous. Sheridan and South Burnett Regional Council and Others [2009] QICmr 26 (9 April 2009) at paragraphs [189] - [193] (Sheridan) referring to Attorney-General v Cockcroft [1986] FCA 35; (1986) 64 ALR 97.

[24] McEniery and Medical Board of Queensland [1994] QICmr 2; (1994) 1 QAR 349 (McEniery) at paragraph [16]. McEniery considered the

application of section 42(1)(b) of the repealed Freedom of Information Act 1992 (Qld), identical in terms to schedule 3, section

[25] Schedule 3, section 10(1)(h) of the RTI Act.

[26] B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 (BNRHA) at [154]- [160]. Other jurisdictions have similarly interpreted the phrase 'as distinct from something that is irrational, absurd or ridiculous': See Smolenski v Commissioner of Police, NSW Police [2015] NSWCATAD 21 at [34], citing Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [28], McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] and Attorney-General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at [190].

[27] Schedule 3, section 10(1)(c) of the RTI Act.

[28] See Murphy and Treasury Department [1995] QICmr 23; (1995) 2 QAR 744 (Murphy) at [52] where the Information Commissioner referred to Department of Agriculture and Rural Affairs v Binnie [1989] VicRp 73; [1989] VR 836 at 844, with approval. See also IJG and Department of Health (Unreported, Queensland Information Commissioner, 25 August 2010) at [19].

[29] Deputy Premier and Minister for State Development, Infrastructure and Planning and the Premier; Mulherin, MP (Third Party) [2014] QICmr 41 (Mulherin) at [18].

[30] Mulherin at [19] citing Murphy at [47].

[31] Schedule 3, section 10(1)(d) of the RTI Act.

[32] Schedule 3, section 10(1)(d) of the RTI Act.

[33] [2015] QCATA 095 (Watson) at [19].

[34] As noted in Watson and also as discussed by OIC in Sheridan at [191]. The decision in Sheridan concerned section 42(1)(ca) of the repealed Freedom of Information Act 1992 (Qld). Schedule 3, section 10(1)(d) of the RTI Act is drafted in substantially the same terms as this provision. Therefore, the Information Commissioner's findings in Sheridan are relevant in interpreting schedule 3, section 10(1)(d) of the RTI Act.

[35] Murphy at [54] and Seven Network (Operations) Limited and Redland City Council (Unreported, Queensland Information Commissioner, 30 June 2011) at [19].

[36] Attorney-General v Cockcroft [1986] FCA 35; (1986) 64 ALR 97 (Cockcroft) at 106.

[37] Murphy at [44], citing BNRHA at [160].

[39] Cockcroft at 106, cited in Sheridan at [192].

[40] Sheridan at [193] and Richards and Gold Coast City Council (Unreported, Queensland Information Commissioner, 28 March 2012) (Richards) at [19].

[42] Richards at [13] and Ogawa and Queensland Police Service (Unreported, Queensland Information Commissioner, 21 June 2012) at [13] applying the Macquarie Dictionary Online (Fourth Edition) definitions referred to in Sheridan at [194]-[195].

[50] Bussey and Bowen Shire Council [1994] QICmr 10; (1994) 1 QAR 530 at [28].

[51] On 15 August 2024 and 2 January 2025 (received 3 January 2025).

[56] On 2 January 2025, received 3 January 2025.

[57] Sections 47(3)(b) and 49 of the RTI Act.

[58] Schedule 4 of the RTI Act sets out a non-exhaustive list of factors relevant to deciding whether disclosing information would, on balance, be contrary to the public interest.

[60] Schedule 4, part 1, item 3 of the RTI Act.

[61] Section 44 of the RTI Act. Noting that, in accordance with section 105(2) of the RTI Act, if it is established that a document is an exempt document or a contrary to the public interest documents, the Information Commissioner does not have power to direct that access to the document is to be given.

[64] On 2 January 2025, received 3 January 2025.

[65] Schedule 4, part 2, item 1, 2, 3 of the RTI Act.

[66] Schedule 4, part 2, item 11 of the RTI Act.

[67] Schedule 4, part 2, item 5 of the RTI Act.

[68] Schedule 4, part 3, item 3 and part 4, section 6 of the RTI Act.

[69] Sections 47(3)(a) and 48 and schedule 3, sections 10(1)(b), 10(1)(c), 10(1)(d) and 10(1)(h) of the RTI Act.

[70] Sections 47(3)(b) and 49 of the RTI Act.**