Rinaldi v Department of Justice

(a) a copy of occurrence report QP1802232800 and two related video recordings dated 22nd of November 2020 held by victims assist Queensland ('VAQ') in relation to Mr Dion Rinaldi and VAQ reference A33447.[1]

[3] On 8 December 2022, the respondent issued the applicant with a notice of considered decision under section 65 of the IP Act. The decision was to:

(a) Give full access to eight pages;

(b) give partial access to six pages under schedule 4, part 3, section 3 of the Right to Information Act 2009 (Qld) ('RTI Act'); and

(c) refuse access to two video recordings under section 52(1)(a) of the RTI Act.[2]

[4] The applicant then undertook external review of the decision to the Information Commissioner who affirmed the respondent's decision to refuse access to the information in issue under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act on the ground that disclosure would, on balance, be contrary to the public interest.[3]

[5] It is this decision of 26 September 2023 that is appealed.

[6] The appellant applied for leave to appeal or appeal to QCAT on 28 September 2023. In that application, the appellant sought the following orders to be made by the tribunal:

1. That the Queensland Office of the Information Commissioner's ('OIC') decision of 26 September 2023, refusing to grant the applicant access to the information in question, be quashed.
2. That the OIC be ordered to grant the applicant access to the information in question.
3. That the OIC be ordered to provide the applicant with a more detailed explanation of its reasons for refusing access to the information in question.
4. That the OIC be ordered to consider the public interest in exposing misconduct and holding government agencies accountable when providing its explanation.
5. In the alternative, that the OIC be ordered to reconsider its decision in accordance with the law.
6. In the alternative, the OIC be ordered to provide the applicant with access to a censored version of the information in question, with the personal information of the other individuals involved in the incident redacted.

[7] The appellant based the appeal on the following grounds.

(a) The OIC interpreted the phrase "contrary to the public interest" too narrowly and failed to give proper consideration to the public interest in exposing misconduct and holding government agencies accountable.

(b) The OIC gave undue weight to the privacy interests of the other individuals involved in the incident and failed to give proper consideration to the public interest factors.

(c) The OIC decision is inconsistent with the pro-disclosure bias of the IP Act and the RTI Act, which are designed to give individuals broad access to government information.

(d) The OIC's decision violates the applicant's human rights under the Human Rights Act 2019 (Qld) ('HR Act'), as the right to seek and receive information is a fundamental human right.[4]

[8] For clarity, the Information Commissioner affirmed the department's decision that access to parts of six pages be refused on the ground that disclosure would, on balance, be contrary to the public interest; and the recordings, on the ground that they are non-existent or are not locatable.[5]

[9] The Information Commissioner, properly in my view, described the issue for determination as a "whether access may be refused to the information in issue on the ground that its disclosure would, on balance, be contrary to the public interest." The Information Commissioner noted in paragraph 18 that regard had been had to the factors set out in schedule 4 of the RTI Act relevant in determining where the balance of the public interest lies in the particular case.

[10] The Information Commissioner also, in addition to considering these, considered all other relevant information in reaching a decision, and noted "I have also applied the IP Act's pro-disclosure bias and considered Parliament's intention that grounds for refusing access to information are to be interpreted narrowly."[6] Before making a decision, the Information Commissioner set out in detail the facts favouring disclosure and the facts favouring non-disclosure.

[11] The Information Commissioner then embarked on a balancing exercise, ultimately finding that disclosure would, on balance, be contrary to the public interest.

[12] Section 25 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act') sets out the Tribunal's appeal jurisdiction under the IP Act (the enabling Act). Section 132 of the IP Act provides that external review is to QCAT against a decision of the Information Commissioner. The section says:

1. Appeal to Queensland Civil and Administrative Tribunal on question of law

(1) A participant in an external review may appeal to the appeal tribunal against a decision of the information commissioner on the external review.

(2) The appeal may only be on a question of law.

(3) The notice of appeal must, unless the appeal tribunal orders otherwise -

(a) be filed in QCAT's registry within 20 business days after the date of the decision appealed from; and

(b) be served as soon as possible on all participants in the external review.

(4) The appeal tribunal -

(a) has jurisdiction to hear and decide the appeal; and

(b) must be constituted by 1 judicial member.

(5) The appeal may only be by way of a rehearing.

[13] The following legislation is also relevant to this appeal:

(a) The IP Act:

1. Considered decision on access application

If a person makes an access application for a document to an agency or Minister, the agency or Minister must -

(a) after considering the application, make a decision (a considered decision) -

(i) whether access is to be given to the document; and

(ii) if access is to be given - whether any access charge must be paid before access is given; and

(b) give the person written notice of the decision under section 68.

(1) An agency may refuse access to a document of the agency and a Minister may refuse access to a document of the Minister in the same way and to the same extent the agency or Minister could refuse access to the document under the Right to Information Act, section 47 were the document to be the subject of an access application under that Act.

_Note - _

See the Right to Information Act, section 47 (Grounds on which access may be refused). Generally, the grounds for refusal relate to issues concerning exempt information, the public interest, a child or applicant's best interests, documents being non-existent or unable to be located and other availability of access to documents. However, see also section 4 (Act not intended to prevent other accessing or amendment of personal information) of this Act.

(2) It is the Parliament's intention that -

(a) the grounds on which access may be refused under the Right to Information Act, as applied under this Act, are to be interpreted narrowly; and

(b) an agency or Minister may give access to a document even if a ground on which access may be refused applies.

(b) The RTI Act:

1. Grounds on which access may be refused

(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 -

(a) to the extent the document comprises exempt information under section 48; or

(b) to the extent the document comprises information the disclosure of which would, on balance, be contrary to the public interest under section 49; or

(c) to the extent the document is sought under an application by or for a child and comprises the child's personal information the disclosure of which would not be in the child's best interests under section 50; or

(d) to the extent the document comprises an applicant's relevant healthcare information the disclosure of which might be prejudicial to the physical or mental health or wellbeing of the applicant under section 51; or

(e) because the document is non-existent or unlocatable as mentioned in section 52; or

(f) because other access to the document is available as mentioned in section 53.

_Note - _

Only a principal officer, Minister or appointed healthcare professional may refuse access to a document of an agency as mentioned in paragraph (d) - see sections 30(5) and 31(2).

[14] In addition, section 49 of the RTI Act outlines the steps that must be undertaken when deciding whether disclosure of information would, on balance, be contrary to the public interest. Schedule 4 prescribes the factors for deciding the 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 that applies in relation to the information (an irrelevant factor), including, for example, any factor mentioned in schedule 4, part 1;

(b) identify any factor favouring disclosure that applies in relation to the information (a relevant factor favouring disclosure), including, for example, 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, for example, 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.

...

1. Document non-existent or unlocatable

(1) For section 47(3)(e), a document is non-existent or unlocatable if -

(a) the agency or Minister dealing with the application for access is satisfied the document does not exist; or

_Example - _

a document that has not been created

(b) the agency or Minister dealing with the application for access is satisfied -

(i) the document has been or should be in the agency's or Minister's possession; and

(ii) all reasonable steps have been taken to find the document but the document can not be found.

_Examples - _

• a document that has been lost

• a document that has been disposed of under a disposal authorisation given by the State Archivist under the Public Records Act 2023

_Note - _

Under the Public Records Act 2023, section 23, it is an offence to dispose of a public record without authorisation.

(2) Before an agency or Minister may be satisfied under subsection (1)(a) that a prescribed document does not exist, a search for the document from a backup system is required, but only if the agency or Minister considers the document has been kept in, and is retrievable from, the backup system.

(3) Subject to subsection (2), a search for a document from a backup system is not required before the document is nonexistent or unlocatable for section 47(3)(e).

(4) In this section -

prescribed document means a document that -

(a) is a document required to be kept under the Public Records Act 2023; and

(b) is not a document that the agency or Minister could lawfully have disposed of under the Public Records Act 2023.

[15] The meaning of question of law is generally held to mean whether there has been an error of law as opposed to a question of fact.

[16] In Mokbel v Queensland Police Service,[7] DJ McGill SC considered the meaning of the question of law for the purposes of an Information Commissioner appeal:

The IP Act s 132 and the RTI Act s 119, which are relevantly in the same terms, provide for an appeal from a decision of the Information Commissioner to the Appeal Tribunal. By those sections, the appeal is only on a question of law and may only be by way of a rehearing. The appeal provided by s 132, 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, a ground not raised by the appellant. The only issue is whether an error of law was made by the Commissioner.[8]

[17] In Purrer v Office of the Information Commissioner & Anor it was said

the prescription that an appeal such as the present may "only" be on a question of law is notable. In a cognate context concerning appeals from this Appeal Tribunal to the Court of Appeal, the limitation in s 150(3)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) that such an appeal may be made "only on a question of law" has been given full force, with the question of law defined precisely, and not extending to a mixed question of fact and law.[9]

[18] The appellant submits that the respondent has applied the limitation of the appeal to a question of law too narrowly, ignoring the possibility that errors of law can arise from the interpretation or application of legal principles to the facts of the case.[10] The appellant notes that in Mokbel DJ McGill SC stated that

"a question of law" extends beyond mere error in legal reasoning to encompass misapplications of legal standards to the factual circumstances of the case. This interpretation aligns with the broader understanding that errors of law can manifest not only in the application of legal principles, but also in their interpretation and subsequent application to the factual matrix.[11]

[19] The appellant in submissions addressed the following issues.

[20] Presumption of disclosure: noting that one of the fundamental principles underlying the RTI legislation is the presumption of disclosure. The appellant submits that information held by public bodies should be accessible to the public unless there are compelling reasons for withholding it. He notes in the decision of McKinnon v Secretary, Department of Treasury,[12] that "the fundamental principle of the RTI Act is disclosure."

[21] Balancing test: the appellant submits that the RTI Act requires a balancing of the public interest in disclosure against any harm that may result from disclosure. He noted the decision of Lutvey v Department of Community Safety, which stated "the balancing test to be applied is whether the public interest in disclosure of the information outweighs the public interest in protecting it."

[22] Transparency and accountability: the appellant submits that transparency and accountability are cornerstones of good governance. And noted the decision of Cameron v Department of Environment and Resource Management, which said "disclosure promotes transparency and accountability, and assists in ensuring that government is open, responsive and accountable."[13] The appellant submits that given the presumption of disclosure and the balancing test, there are strong arguments to challenge such a refusal and advocate for greater transparency in government operations.[14]

[23] In respect of the document's nonexistence or impossibility to locate, the appellant submits that if the borrowed records are in the hands of another agency, then pursuant to section 12 of the RTI Act and section 13 of the IP Act, individuals have the right to apply for records held by government agencies. 'Records of an agency' include those in its possession or control, as defined by legal guidelines.[15] The appellant submits that if an access application is made for borrowed records the borrowing agency is obliged to process the application and make a decision under the Act.[16] In conclusion, the appellant submits that

[15] In summary, the respondent's argument regarding the appeal jurisdiction of QCAT seems to misinterpret the breadth of the term "question of law". It fails to acknowledge that errors of law can stem not only from legal reasoning, but also from misapplications, legal standards and the factual context of a case.

[16] Moreover, regarding access to records the fundamental principles of the RTI Act emphasises the presumption of disclosure, and necessity of the balancing test between public interest and harm, and the importance of transparency and accountability in government operations. Additionally, records borrowed by one agency from another considered records of the borrowing agency under the RTI Act and IP Act. Therefore, the borrowing agent is obliged to process an application for borrowed records as if they were its own.

[24] The respondent's submissions in respect of the two videos were that the videos were removed from the scope of the Information Commissioner's external review. It is submitted that it is a question of fact whether the video recordings are non-existent or non-locatable. It is noted that the respondent was given details of how to make application to the Queensland Police Service with respect to the two recordings.

[25] The respondent noted the decision in Z'Quessah Bosch v Office of the Information Commissioner & Anor[17] where Justice DJ Thomas (as he then was) noted that whether a disclosure of the information would on balance be contrary to the public interest involves attribution of weight to the relevant factors identified in the preceding steps of the analysis.[18]

[26] It was noted that the appellant in this case submits similar reasoning to that considered in Z'Quessah Bosch as to why disclosure would not be contrary to the public interest, namely that there is a need to release the information in order to "exonerate" him and his compensation application and that misconduct outweighs individual privacy when considering the public interest.

[27] The respondent noted the following passage from Z'Quessah Bosch:

The matters raised by Ms Bosch, while relevant to her circumstances are not central to the public interest balance provided for in the RTI Act.

The correct approach is that the degree of importance or weight given to a relevant public interest factor will depend on the effect that disclosing the information would have on the public interest consideration addressed by the factor. This is reflected in the decision.

The disclosure of the health care information would be a significant intrusion into the privacy of some individuals and the extent of public interest harm that could be anticipated from disclosure is significant. This is a factor favouring non-disclosure that has significant weight.

The OIC appropriately considers each of the factors previously analysed, assessing the weight to be given to be given to each of these factors and then concludes that the factors favouring non-disclosure outweigh the factors favouring disclosure.

The approach of balancing the weight of the factors against one another in coming to a decision is the correct approach and does not reveal any error of law in the decision.[19]

[28] The respondent also noted the decision of Gordon Resources Pty Ltd v State of Queensland[20] where, it was submitted, the tribunal concluded that the exercise of balancing factors for the public interest and attributing weight to those factors is not itself a question of law.[21] It is submitted that this conclusion is supported by the decision of Minogue v Information Commissioner & Queensland Health.[22]

[29] The respondent submits that other submissions by the appellant as to unreasonable delay, inadequate internal review and failure to provide reasons are not factors that are provided for under the RTI Act or IP Act as reasons for review.[23]

[30] In conclusion the respondent submits that as there is no error of law established by the applicant, the Tribunal should find that the appeal pursuant to s 132 of the IP Act should be dismissed.

[31] It is clear and indeed accepted by the parties that for an appeal of this type to succeed an error of law must be shown. As stated by McGill in Mokbel,

The appeal provided by s 132, because it is confined to a question of law, is in the nature of judicial review. 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, a ground not raised by the appellant. The only issue is whether an error of law was made by the Commissioner.[24]

[32] The applicant argues that an error of law occurred because

the OIC interpreted the phrase "contrary to the public interest" too narrowly and failed to give proper consideration to the public interest in exposing misconduct and holding government agencies accountable.

It is necessary then to consider the OIC decision to see whether the OIC failed to apply the principles correctly and/or fell into legal error.

[33] It is clear from the OIC's reasons that the issue for determination was properly identified as whether disclosure would, on balance, be contrary to the public interest. The OIC had regard to the factors set out in schedule 4 of the RTI Act and applied the IP Act's pro-disclosure bias and the Parliament's intention that grounds for refusing access be interested narrowly. With these matters in mind the OIC conducted a detailed review of the factors favouring disclosure and non-disclosure ultimately finding disclosure would, on balance, be contrary to the public interest. In those circumstances it is difficult to see what error of law the OIC had made.

[34] In my view it is not sufficient in an appeal of this type to assert that there are strong arguments to challenge the refusal given the presumption of disclosure and accountability, in circumstances where the decision maker was clearly aware of these factors. It is incumbent on the applicant to show an error of law. If the proper principles have been taken into account and the necessary balancing exercise has been undertaken, as here, then what is left is the applicant not agreeing with the decision. This does not give rise to an error of law. This is the conclusion reached in Z'Quessah Bosch with which I respectfully agree.

[35] As to the two videos, I accept the respondent's submission that it is a matter of fact whether the video recordings are non-existent or non-locatable.

[36] In submissions the appellant made reference to the decisions of Cameron v Department of Environment and Resource Management and Lutvey v Department of Community Safety.

[38] It would appear the appellant has used artificial intelligence to generate part of his submission. The dangers of using artificial intelligence for legal research have been well-documented so as to avoid the risk of misleading the Tribunal, giving rise to a possible charge of contempt. Parties to proceedings in the Tribunal, and indeed in other Tribunals and courts should check to ensure that cases referred to are actual cases and support the proposition they are submitting.

[39] In the circumstances no error of law has occurred here and accordingly the appeal is dismissed.

[1] Refer to submissions of the respondent, paragraph 1.

[3] Submissions of the respondent, paragraph 3.

[4] See the applicant's application for leave to appeal or appeal.

[5] See paragraph 2 of the decision of the Information Commissioner.

[6] See Information Commissioner decision paragraph 18, referencing s 64(4) of the IP Act and s 67(2) of the IP Act.

[7] [2023] QCATA 158 at [2] ('Mokbel').

[8] See also HAR v Metro North Hospital and Health Service [2021] QCATA 115 at [9], citing Osland v Secretary, Department of Justice [2010] HCA 24; (2010) 241 CLR 320; Powell v Queensland University of Technology [2017] QCA 200; [2018] 2 QdR 234 at [42]- [46], a case concerning the IP Act section 132.

[9] [2021] QCATA 92 [34].

[10] Appellant's submissions paragraph 1.

[11] Appellant's submissions paragraph 3.

[12] [2006] HCA 45.

[13] Appellant's submissions paragraph 9.

[14] Appellant's submissions paragraph 10.

[15] Appellant's submissions paragraph 12.

[16] Appellant's submissions paragraph 13.

[17] [2016] QCATA 191 ('Z'Quessah Bosch').

[19] Z'Quessah Bosch at [68] to [73].

[20] Gordon Resources Pty Ltd v State of Queensland [2012] QCATA 135

[21] See respondent's reply submissions para 32.

[22] Minogue v Information Commissioner & Queensland Health [2014] QCATA 98 at [48] to [50].

[23] See respondent's reply submissions para 34 and 35.

[24] See also HAR v Metro North Hospital and Health Service [2021] QCATA 115 at [9], citing Osland v Secretary, Department of Justice [2010] HCA 24; (2010) 241 CLR 320; Powell v Queensland University of Technology [2017] QCA 200; [2018] 2 Qd R 234 at [42]- [46], a case concerning the IP Act section 132.