Stella v Griffith University [2025] QCATA 20

ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - REVIEW OF DECISIONS - OTHER STATES AND TERRITORIES - Queensland - where the appellant made a request under the Information Privacy Act 2009 (Qld) for documents relating to a complaint made about him and the respondent's management of the complaint - where the Information Commissioner on review decided to refuse to disclose certain information on the basis that disclosure of it would be contrary to the public interest - where the appellant sought disclosure of further documents, some of which were created in connection with the decision on the first request for access - where the Information Commissioner held the decision maker on that request was not an agency for the purposes of the Act - where the appellant appealed to the Appeal Tribunal - where an appeal to the Appeal Tribunal from a decision of the Information Commissioner can only be on a question of law - whether error of law shown

Information Privacy Act 2009 (Qld) , s 100, s 118

Right to Information Act 2009 (Qld) Sch 4 Part 2 Items 6, 12; Part 3 Items 16, 19

Allen v Queensland Building and Construction Commission [2024] QCA 24

Re B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279

Cairns Port Authority v Albietz [1995] 2 Qd R 470

Carmody v Information Commissioner [2018] QCATA 14

Carmody v Information Commissioner (No 3) [2018] QCATA 18

Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1995] QCA 187; [1996] 2 Qd R 462

Deemal-Hall v Office of the Director of Public Prosecutions [2024] QCATA 131

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Ergon Energy Corporation Ltd v Rice-McDonald [2009] QSC 213

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123

House v R (1936) 55 CLR 499

Marshall-Holst v OIC [2017] QCATA 28

McMillan v Commissioner of Police [2013] NSWADT 53

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427

Minister for Aboriginal Affairs v Peco-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259

Morant v Ryan [2023] QCA 109

Oakey Coal Alliance Inc v New Acland Coal Pty Ltd [2019] QCA 184; (2019) 2 QR 271

Osland v Secretary, Department of Justice [2010] HCA 24; (2010) 241 CLR 320

Parsons v OIC [2021] QCATA 75

Pivovarova v Michelson [2019] QCA 256; (2019) 2 QR 508

Powell v Queensland University of Technology [2017] QCA 200; [2018] 2 Qd R 234

Purrer v OIC [2021] QCATA 92

Sutton v Hunter [2022] QCA 208, 102 MVR 34

T71 and Queensland Police Service [2022] QICmr 10

[1] This is an appeal from a decision of the Information Commissioner. In August 2022 the respondent received a complaint about certain conduct of the appellant alleged to breach the Student Misconduct Policy. After the outcome was notified to the appellant, he made a request under the Information Privacy Act 2009 (Qld) ("the IP Act") for all documents about the complaint and the management of the complaint by the respondent.[1] Some documents were disclosed to him, but some were not disclosed in whole or in part. The appellant sought internal review of the decision, which resulted in some additional disclosure, but not all documents requested were disclosed in full. The appellant subsequently sought access to all documents created, received or sent by named staff of the respondent about the appellant, other than those considered in the earlier application. Again, not all documents identified were disclosed in full. The outcome of an internal review was that more disclosure occurred, but not all identified documents were disclosed in full.
[2] In early 2023 the appellant applied (separately) to the Office of the Information Commissioner ("OIC") for external review of the decisions of the respondent in relation to the requests for disclosure. On 7 December 2023 the Commissioner affirmed the respondent's decision on the first application, and varied the respondent's decision on the second application, by substituting a different ground for refusing disclosure under the IP Act. One set of reasons was provided covering both decisions. On 8 January 2024 the appellant filed an Application for leave to appeal and appeal to the Appeal Tribunal from that decision. That is the appeal which is now before me.
[3] Under the IP Act s 132 the appellant is entitled to appeal to the Appeal Tribunal, but only on a question of law. The appeal is to be heard and decided by a judicial member, and the parties have a right to legal representation before it.[2] In this matter the parties provided written submissions, and there was also an oral hearing. It is established by authority that an appeal on a question of law is confined to an appeal where the question (or questions) of law are the subject of the appeal, not just an appeal which touches incidentally on a question or questions of law.[3] It is appropriate for the appellant to identify the question or questions of law raised by the appeal, but it is not unusual for an appeal by a litigant in person, such as here, not to do this expressly in the application for appeal, or in submissions.

[4] The decision of the Commissioner considered three issues. First, whether documents received or created by the respondent in connection with the appellant's first request under the IP Act were excluded from disclosure under the IP Act s 52(1)(b)(ii); second, whether certain irrelevant information can be deleted under the IP Act s 88 from documents otherwise disclosed; and third, whether disclosure of certain information may be refused on the basis that disclosure of it would, on balance, be contrary to the public interest.
[5] As to the first, this arose because the documents in issue in relation to the review of the decision on the second request were limited to documents relating to the first request. The Commissioner found that the OIC was a quasi-judicial entity and that its external review functions are quasi-judicial functions, and that although the officer of the respondent who processed the first application for review did not hold a position with the OIC, the decision issued by that officer in respect of the first application was a reviewable decision and in that way the documents were in connection with the quasi-judicial functions of the OIC, and hence excluded from access under the IP Act. Reference was made to the decisions in Carmody v Information Commissioner (No 3) [2018] QCATA 18 and in T71 and Queensland Police Service [2022] QICmr 10.
[6] As to the second issue, the Commissioner reviewed the documents where information had been deleted as irrelevant under the IP Act s 88, and found that the information was irrelevant in that it did not relate to the appellant, to the complaint or to the complaint handling process, but related to other students or to other University matters. The effect of this finding was to confirm that this information was properly deleted under s 88. It was said that the appellant had made no submissions addressing this issue.
[7] As to the third issue, the Commissioner referred to the applicable provisions, and identified five factors favouring disclosure which it was said were relevant to consider in the balancing exercise, including that some of the information comprised the personal information of the appellant, a factor which was afforded significant weight. It was said however that to some extent this personal information was inextricably intertwined with the personal information of other individuals. It was said that other factors sought to be relied on by the appellant did not arise on the basis of the content of the information in question. The Commissioner also identified that the contested material included the personal information of other individuals, disclosure of which was a public interest harm, and that disclosure of information disclosed in a complaint process could reasonably be expected to make complainants reluctant to participate in the process in the future, which would impact negatively on the respondent's capacity to obtain confidential information. The Commission identified two other factors said to support non-disclosure, and concluded that, on balance, the public interest favoured non-disclosure of the relevant material.

[8] The grounds of appeal included two which applied generally to the entire decision:

(a) Apprehended bias.

(b) The Commissioner failed to place on the respondent the onus of establishing that the decision was justified, or should be given adverse to the applicant, as required by the IP Act s 100(1).

[9] There were also four grounds which related to the decision of the Commissioner that on balance it was in the public interest not to disclose particular information:

(a) The Commissioner mistook or disregarded certain essential facts.

(b) The Commissioner acted on irrelevant information in treating administrative and non-routine matters as factors favouring non-disclosure.

(c) The Commissioner erred in the interpretation of the factor "management function" in the legislation.

(d) The Commissioner failed to give reasons in relation to the respondent's "deliberative process" deletions.

[10] With regard to the IP processing documents, the appellant advanced a further four grounds:

(a) The IP Act s 52 can be invoked only with respect to access applications, not individual documents.

(b) The IP Act s 52 is not available to the OIC on external review.

(c) The documents were not genuine processing documents for the purposes of the Right to Information Act 2009 (Qld) ("the RTI Act") Schedule 2 Part 2 Item 9.

(d) The RTI Act Schedule 2 Part 2 Item 7 does not operate to exclude all agencies from the operation of the Act in relation to their access decision makers.

[11] This issue must be dealt with first.[4] The basis of the appellant's argument was that the original complaint about him to the respondent related to material the appellant had posted on line supporting the "No" case at the recent referendum, and the OIC had published material on social media providing links to organisations advocating the "Yes" case at the referendum. It was submitted that this was tantamount to the OIC campaigning for the "Yes" case at the referendum, and gave rise to the reasonable apprehension that a person who had publicly supported the "No" case would not receive a fair hearing in the review.
[12] The appellant also referred to the wording of a footnote in the reasons for decision of the Commissioner, referring to a submission made to the Commissioner as to the significance of the fact that, as a result of the complaint process of the respondent, he was already aware of the identity of the individuals who had complained. After referencing the applicable submission of the appellant, the Commissioner added: "The applicant's submission also discusses an inadvertent release of information to the complainants which I understand has been the subject of a separate complaint process. I have not dealt with this issue any further ... as it falls outside OIC's external review jurisdiction." The appellant took issue with the use of the term "inadvertent", which had not been used by him in his submission, and contended that the disclosure was not "inadvertent", in that his personal information had been disclosed in two emails presumably sent to the complaining individuals. It was submitted that the Commissioner had failed to give reasons for finding that this disclosure was "inadvertent". This was said by the appellant to be suggestive of a decision maker unduly sympathetic to the respondent's cause.[5]
[13] The Commissioner was not required to give any reasons for this "finding", as it was not a finding on any issue which was to be decided in the review. It occurs to me that the disclosure may have been inadvertent in that, although the communication was not inadvertent, the inclusion of the personal information objected to was, but that does not in my opinion matter. The appellant submitted that this indicated or suggested that the Commissioner was complicit in concealing evidence of unlawful activity. The appellant went so far as to suggest that this indicated that the Commissioner had received some submission from the respondent other than what had been disclosed. I see no basis to draw either inference, and I do not consider that a reasonable, fair minded lay observer would draw such an inference.[6]
[14] It is well established that the wording of reasons of administrative or Tribunal decisions should not be scrutinised with an eye keen to detect error.[7] I regard this as a trivial matter not suggestive of bias on the part of the Commissioner in making this decision. As to the significance of this document in the context of another ground of appeal, that is dealt with later, but as explained then, a fundamental problem with this argument is that it is built on speculation as to the identity of the recipient or recipients of a particular email.
[15] With regard to the argument based on the links to sources of statements supporting the "Yes" case at the referendum, there are I think two problems with this submission. The first is that it is concerned with matters done by the OIC as an organisation or agency, rather than by anything done personally by the decision maker in this particular case. It is commonplace that, particularly under Labor governments, there is a degree of sympathetic support of Aboriginal reconciliation which is often manifested in what could be described as superficial ritualistic ways. The state government at the time supported its Canberra colleagues in relation to the referendum, and inevitably some of this percolated through to various government agencies. The matters to which the appellant referred can be seen as examples of this. The significance of this is that anything of this nature on the part of the OIC can be seen as actions driven from above, rather than the initiative of any particular decision maker associated with it.
[16] At an earlier stage in this appeal, the OIC filed submissions which supported an application to be removed as a party, but which also dealt with the issue of apparent bias. As an exercise in allaying concern about possible bias in the organisation, it left something to be desired. It was submitted that the referendum issue was not controversial because certain legislation had been passed by the Queensland Parliament with the support of all parties. This was at best disingenuous; whatever may have prompted the voting on this in the parliament, the referendum was certainly controversial in the community from when it was first suggested, and the submission to the contrary suggests that the OIC may be infected with a type of "groupthink." I expect however that a more plausible explanation is that it was a misguided attempt to argue the unarguable.
[17] Personally, I cannot understand why an organisation such as the OIC has any reason to have a social media presence at all. Its function is to decide matters brought to it for decision in accordance with the relevant legislation, and I cannot see how activity on social media is necessary, or even useful, for that purpose. I should disclose however that this is the opinion of someone who has no social media presence, and never looks at it. It is I suppose possible that there is some purpose of some value to the OIC in such activity which is unknown to me. It does seem to me however to have been unwise for the OIC to have been propagating opinions on political matters, no matter how uncontroversial someone in the organisation may regard them.
[18] The respondent submitted that it was not open for the appellant to raise this issue, because the existence of apparent bias was a question of fact, so that this ground was in substance an appeal on a question of fact. There is certainly excellent authority for the proposition that whether or not apparent bias has been shown in a particular case is a question of fact, taking into account all the circumstances, but I do not regard that as turning this ground of appeal into one of fact. Apparent bias can certainly be considered on judicial review of such a decision, and the appeal provided to the Tribunal has been characterised as a form of judicial review. But apart from this, whether the review has been conducted according to law is a question of law, and an aspect of that issue is whether there has been a process which was, and which appeared to be, impartial. A question is no less a question of law because some factual issue has to be decided in order to determine it. Besides, there was no application to the OIC to disqualify itself for apparent bias, so there is in this respect no decision on a question of fact from which the appeal is brought.[8] Accordingly I reject the respondent's submission on this ground.
[19] Given that overall in Queensland about 60% voted "No" in the referendum, one could say that the odds favoured any particular person, and hence any particular decision maker, being a "No" voter anyway. But the point is that, whatever this consideration may say about any corporate attitude on the part of the OIC, it really says nothing about the attitude of an individual decision maker. It therefore does not show apparent bias on the part of the particular delegate of the Commissioner who decided this review. There is therefore no basis to find that there was apparent bias on the part of the Commissioner in relation to the decision under appeal.
[20] Apart from this, if there were some taint of apparent bias on the part of the OIC as a result of this social media activity, it remains the case that the right of external review under the IP Act is given specifically and exclusively to the OIC. On this point, the appellant advanced two arguments: first, that the Tribunal could conduct a review itself, and second, that the OIC had power to refer matters to the ombudsman. As to the first, there is strong authority that in an appeal on a question of law only, the appellate body is limited to correcting any error of law identified, and can substitute its own decision only if, as a matter of law, only one decision was open. Hence the Tribunal cannot itself conduct a merits review. As to the second, although the IP Act ss 169 and 179 contain power for the OIC to refer to the ombudsman a privacy complaint which can properly be made to the ombudsman, there is no power that I can find to refer a review of a decision on an application for access.[9]
[21] The principle of necessity therefore applies. If I allowed the appeal on this ground, all I could do would be to send the review back to be decided again by the OIC, to which the same objection could be raised. For better or for worse, the only external review provided for by the IP Act is review by the OIC, and anyone seeking a review by it must accept it with any faults it may have. There is therefore no substance to this ground.

[22] This Ground was based on the IP Act s 100(1), which provides:

On an external review, the agency or Minister who made the decision under review has the onus of establishing that the decision was justified or that the information commissioner should give a decision adverse to the applicant.

[23] The appellant's point, in essence, was that, because the respondent did not actively oppose the review before the Commissioner, the effect of this subsection was that the Commissioner had to conclude that the respondent had failed to show that the relevant information was not to be disclosed. The respondent in submissions described the position of the appellant as obscure, and submitted that there was no indication in the reasons of the Commissioner that the decision on the review turned in any respect on the question of onus. That is true; but the appellant submitted in reply that the reasons failed to refer to s 100(1), which suggested that the provision had been overlooked.
[24] In my opinion it is necessary to have regard, in order to understand the proper function of s 100(1), to the nature of the review conducted by the Commissioner under Part 9 of the IP Act. It is clearly a merits review, with the Commissioner having the opportunity to consider afresh the question of whether the information the release of which is sought is properly subject to release under the IP Act.[10] This is subject to the constraint that the power of an agency to release information notwithstanding that it was entitled not to release it under the IP Act cannot be exercised on review by the Commissioner.[11] In these circumstances, the obligation on the Commissioner is to come to the appropriate decision in the light of the material available.
[25] That material will of course include the full content of the information the subject of the dispute. In this respect the process before the Commissioner differs from the ordinary mechanism for a hearing in a court, because the Commissioner is not just permitted but required to conduct the review taking into account material which will not be available to one of the parties. The IP Act provides in s 110(2)(a) that the procedure adopted by the Commissioner must be fair, but that is confined by the obligations on the Commissioner under the IP Act s 120 and s 121, which extend to a constraint on the contents of the reasons for the decision. The clear legislative intention is that the review be conducted in a way that will not result in the disclosure of the information in issue unless the Commissioner decides that it be released.
[26] It follows that the Commissioner, in reviewing the decision of the agency, will have available both the material available to the agency and the reasons given by the agency for refusing to disclose the information in contention. If the reasons are regarded as inadequate, the agency can be asked to enlarge on them.[12] The Commissioner will therefore have available to it a basis for the agency's "case" on the review, even if the agency does not make any submissions to the Commissioner in relation to the review.
[27] The submissions of the appellant seek to interpret s 100(1) as providing in effect for a kind of "default decision", where an applicant seeking disclosure must win in the absence of active opposition on the part of the respondent.[13] I have not been able to locate any authoritative exposition of the correct function of s 100(1). It is an unusual provision in the context of a merits review, where it is generally said that there is no onus, and the obligation of the decision maker is to arrive at the correct or preferable decision. In Purrer v OIC [2021] QCATA 92 Daubney J, the then President of the Tribunal, said at [32] that the provision referred to the ultimate or legal onus, and did not exclude the proposition that a party may be under an evidentiary onus to produce material which will support the case of the party.
[28] I expect that s 100(1) is just another provision which reinforces the pro-disclose bias which the legislature has written into the IP Act.[14] I note that s 101(2) permits but does not require the applicant for a review to set out in the application details of the basis on which the applicant disputes the decision under review. The legislature clearly contemplated that an applicant might simply be seeking a decision on the request from a body independent of the relevant agency, and could obtain one in that way, but there is nothing to suggest that the intention was that, in the absence of active support of the decision by the agency, the review was to result in the release of the information in dispute without any consideration of the applicable law and the facts of the matter.
[29] The appellant submitted that the fact that the Commissioner had not contacted the respondent after the last two submissions were provided by the appellant meant that, in respect of issues raised in those submissions, his submissions had to be accepted, as they were unopposed. But it is not unusual for a court not to call on one party, if the submissions of the other party do not convince. I did this myself frequently. There is no reason why that approach should not also be adopted by the Commissioner. There is no significance in this behaviour and I reject this submission.
[30] I expect that in practice most of the factual issues arising on a review will be resolved by a consideration of the content of the relevant documents containing the information in context, and perhaps other related documents which serve to provide more context for the content of the relevant documents. So far as other factual issues arise, there would be room for s 100(1) to operate, but there is nothing in the reasons of the Commissioner which suggests that in the course of the review any factual issue was decided against the appellant in a way which suggests that there has been a misapplication of the onus on the respondent.
[31] Two other matters can be dealt with concisely. The failure to mention the operation of s 100(1) in the reasons does not suggest to me that the Commissioner had disregarded it. The presumption is that the Commissioner would be well aware of the statutory provisions regulating the conduct of a review under the IP Act, bearing in mind that, as well as conducting similar reviews under the RTI Act,[15] that is all the Commissioner ever does. The function of reasons is to record how the decision was arrived at. There is no need to mention this section unless there is some issue in the review between the parties which gives rise to some consideration specifically under s 100(1).[16] The respondent submitted that any such onus arose only in relation to a factual matter, and that there was no right to appeal from a finding of fact. That the appeal is so limited is correct, but an error in the way the onus is applied is an error of law, which can be the subject of an appeal under the IP Act s 132. But for the reason given, this ground is also not upheld.

Ground 3: Essential fact mistaken or disregarded

[32] This ground was the first of those that were identified as grounds to dispute the decision of the Commissioner that it was in the public interest not to disclose certain information. The ground was based on what was said by Thomas J, the then President of the Tribunal, in Marshall-Holst (supra) at [35], that a discretionary decision can be disturbed for error of law only if "the decision maker acted upon a wrong legal principle, or mistook essential facts, or disregarded an essential fact, or acted upon information that was irrelevant, so as to reach a result that was plainly unreasonable or unjust." As a statement of the grounds for interfering with a discretionary decision, I consider that this passage, in so far as it suggests that the reaching of an unreasonable or unjust decision is an additional requirement to what has been stated earlier, is erroneous, and that the last proposition is really an additional basis for interference with a discretionary decision.[17]
[33] In circumstances where the appeal is available only on a question of law, it is necessary to examine carefully the nature of the argument to distinguish between this situation and one where it is sought to challenge a finding of fact, on the basis that the finding of the Commissioner is mistaken. If the decision of the Commissioner was based on a finding of fact by the Commissioner, it is not open to challenge the decision on the basis that the finding of fact was mistaken. That would mean that the decision, although involving a question of law, was not "on" a question of law. In my opinion in the case of an appeal confined to a question of law, the ground of challenge of mistake of essential facts is available only in a situation where uncontroversial facts were mistaken by the Commissioner. I do not consider that this proposition provides a way of getting around the limitation of the basis of an appeal to a question of law.
[34] The appellant submitted that the Commissioner had mistaken or disregarded five essential questions of fact, which showed that the Commissioner had committed an error or errors of law in making the decision. The first of these was that the Commissioner had rejected the proposition that a relevant factor was that disclosure of the information in contest "could reasonably be expected to reveal or substantiate that an agency or official had engaged in misconduct or negligent, improper or unlawful conduct."[18] In the reasons of the Commissioner, there is the statement:

Based on the information available to me, I afford no weight to the factor concerned with revealing or substantiating misconduct as I do not consider that there is a reasonable expectation of such an outcome through disclosure of the ... information [in contest].

[35] The appellant submitted that the Commissioner, in order to give proper consideration to this factor, was required to consider three factual questions:

(a) Was the respondent's response to the complaint adverse to the applicant?

(b) In attempting to regulate the external political activities of a student were officials acting in connection with a lawful function of the respondent?

(c) Was the conduct of the respondent's officials in handling the complaint prima facie negligent, improper or unlawful, or constitute misconduct?

[36] I do not agree with this analysis. In my opinion, what has occurred here was that the Commissioner was making a finding of fact about the content of the documents in issue, having regard to that content. This was a finding of fact by the Commissioner, that the content of the relevant documents does not engage the factor in Item 6 of Part 2 of the Schedule. That in my opinion is an example of a situation where the appellant is seeking to challenge a finding of fact by the Commissioner, which is not available under the IP Act. It must be remembered that the content of the reasons of the Commissioner in relation to such a finding are constrained by the IP Act s 121(3), which in practice will usually limit them to a statement of a conclusion, as occurred here. I will discuss later the appellant's submissions that some specific findings were not open to the Commissioner.
[37] The next matter challenged was the rejection by the Commissioner of the proposition that disclosure of the information in contest could reasonably be expected to reveal that the information was incorrect, misleading, gratuitous, unfairly subjective or irrelevant.[19] Again, this was rejected on the basis that "based on the information available to me, this factor did not apply."[20] This I consider is another example where the conclusion was stated on the basis of the content of the relevant documents, with the content of the reasons constrained by the terms of the IP Act. Admittedly the ability of the appellant to show that this ground applies is limited by the approach adopted by the legislature, but that is because of the structure the legislature put in place.
[38] It is however unsurprising that such a conclusion should be reached in the present case, where the factual basis for the application was a complaint to the respondent about certain actions of the appellant using social media. What the appellant did appears to have been uncontroversial, as is that certain individuals complained about it, and any comments made by others about the complaint might reasonably be expected to reflect accurately their opinions on the matter.[21] In order to decide whether this Item was engaged, it would not be necessary to consider, as the appellant submitted, whether the response of the respondent to the complaint was adverse to the appellant, or whether the respondent was acting in connection with a lawful function of the respondent. If the respondent really had no valid basis for responding to the complaint as it did, it does not follow that information in the documents in contest will necessarily come within the scope of Item 12.
[39] The appellant submitted that it would be sufficient to engage Item 12 for the subject of the information in issue to be unlikely to be directly relevant to any lawful function of the respondent. Whether or not it was really a matter for the respondent to take any particular action in response to such a complaint, because a complaint had in fact been made it was relevant for the respondent to deal with the complaint in some way. So the information in relation to that process is not irrelevant, and I do not consider that it is correct to reason that, if the respondent made an inappropriate response to the complaint, the information generated by that process then became irrelevant. I agree with the Commissioner that whether the response was appropriate was not a matter to be decided for the purposes of the review. That was not a relevant consideration for the determination of anything the Commissioner had to decide.
[40] It follows that I do not accept the argument of the appellant in relation to this issue, as to whether Item 12 was engaged. The appellant next submitted that the rejection of Item 17, where disclosure "could reasonably be expected to contribute to the administration of justice for a person", was wrong in law. The argument relied on was the same as for Item 6, and, as with that Item, it appears to me that the Commissioner has simply made a finding of fact that the content of the contentious documents could not reasonably be expected to contribute to the administration of justice for the appellant. Whether or not that is so is a finding of fact, and is not subject to appeal to the Tribunal. It has not been shown to be a finding not open as a matter of law.
[41] Apart from that, for reasons I expressed in Deemal-Hall v Office of the Director of Public Prosecutions [2024] QCATA 131, I consider that when Item 17 refers to the administration of justice for a person, it is speaking of the ordinary processes of civil or criminal litigation in a court, not the attainment of "justice" in some wider and more abstract sense. As I said there, Item 17 is concerned with "something which is or might be helpful in conducting the [applicant's] case in litigation, whether civil or criminal."[22] The appellant has not identified any relevant criminal or civil litigation which would engage Item 17. That was an issue on which I consider the appellant had an evidentiary onus, as mentioned earlier, and it has not been discharged. I am not persuaded that any error of law has been shown here.
[42] The next challenge of this kind was to the finding that disclosure of certain information engaged Item 16 in Part 3, on the basis that disclosure "could reasonably be expected to prejudice an agency's ability to obtain confidential information." The RTI Act also deals with confidential information in Schedule 3 Item 8(1), which provides: "Information is exempt information if its disclosure would found an action for breach of confidence." The effect of information being exempt information is that disclosure of it is excluded, without any consideration of the balancing exercise provided for by the RTI Act s 49: s 48(2). It follows that, to the extent that information is exempt on this basis, there is no need for Item 16 to apply to it. I consider that it also follows that the information covered by Item 16 will necessarily be of a wider scope then the information covered by Schedule 3 Item 8(1).
[43] I should add that Item 8(2) goes on to provide that the exclusion does not operate in relation to deliberative process information, which serves to exclude opinions, advice or recommendations by an agency or an officer of an agency. I expect that the effect of that provision is that, if information is provided in circumstances which would engage Item 8 by a member of the public, and an officer then expresses an opinion, or gives advice or makes a recommendation to another officer, the opinion advice or recommendation would not be exempt, except insofar as it would disclose the information provided by the member of the public in confidence. But I do not consider that a communication by an officer which thereby falls outside the scope of Item 8 necessarily falls outside the scope of Item 16 in Schedule 4 Part 3.
[44] The submission of the appellant was that this factor could only have applied to the information supplied by the people who made the complaint about him. This was on the basis that there was no need for any corroboration as to what he had done, because of its public nature. I do not think it follows however that any communication to or from other employees of the respondent, in their capacity as public officials, is outside the scope of Item 16. For example, a comment from an employee might reproduce the substance of the complaint, or might be so mixed up with the substance of the complaint as to be unable to be separated from it.
[45] The appellant referred to the test adopted by the then Commissioner in Re B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at [146], where it was said that "the matter in issue must consist of information of a confidential nature; that was communicated in confidence; and the release of which could reasonably be expected to prejudice the future supply of such information." As to the third limb, that was to be considered not by reference to the particular person supplying the information in confidence, but by reference to whether the supply of such information by sources generally in such circumstances could reasonably be expected to be prejudiced. This is a decision which has been much cited subsequently in decisions of the Commissioner.
[46] The appellant submitted that there was an additional element, that the information must facilitate the effective exercise of the respondent's functions, on the basis of a statement of the elements of a similar provision in New South Wales legislation in the decision of the Tribunal in that state in McMillan v Commissioner of Police [2013] NSWADT 53 at [42]. It is true that in that matter the judicial member identified this as an element of the relevant provision, but that was because of the wording of that provision: "prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions." It will be immediately apparent that the identification of this additional element was based on the wording of that provision, wording which does not appear in the Queensland provision. Item 16 must be applied as it stands, and I do not consider that this part of the decision in McMillan (supra) applies to it. It follows that I do not accept this part of the appellant's argument. I expect that the significance of the availability of such information in the context of the functions of the agency would be a matter which would go to weight, but that was a matter to be assessed by the Commissioner.
[47] It must be remembered that, as explained in B (supra), the issue of prejudice is to be assessed by reference to the potential supply of information in such situations in the future. The appellant submitted that it was no part of the function of the respondent to be regulating the political statements made by the appellant outside the context of the university, but it must be part of the function of a university to deal with a complaint against a student, even if it is dealt with by dismissing it on the basis that the matter complained of has nothing to do with the university. I do not consider that that changes if the university happens to deal with the complaint in an inappropriate way. I consider that it would be likely to prejudice the ability of a university to obtain confidential information in relation to a complaint made to it if the prospects of the disclosure of the information depended on whether or not the complaint was justified.
[48] The assessment of the significance of that, and the weight to be attributed to it, was I consider a matter for the Commissioner.[23] It is sufficient for me to say that I do not consider that it has been shown that this involved any error in the interpretation of Item 16. It follows that I do not accept that it was relevant for the Commissioner to consider whether it was a lawful function of the respondent to regulate what the appellant described as the external political activities of a student. It is not appropriate, when considering the significance of this factor, to focus too closely on the content of this particular case. The relevant issue relates to the ability of the respondent to obtain confidential information in relation to complaints generally, and whether that was likely to be prejudiced by the disclosure of this information. Once one gets to that point, it cannot be said that, as a matter of law, the only finding available to the Commissioner in relation to Item 16 was that it was not engaged, or that it should have no weight.

[49] In connection with this submission the appellant identified five factual findings said to have been erroneous. That in itself was not a sufficient basis to produce a question of law with which the Appeal Tribunal can deal, but I will treat this as a submission that these were findings of fact which were not, as a matter of law, open to the Commissioner, on the material that was available. In the course of the reasons for the decision, the Commissioner stated that "the university decided not to proceed to a formal investigation, and that "no formal findings were made against the applicant."[24] The appellant had submitted to the Commissioner that the Student Misconduct Procedures did not provide for anything identified as a "formal investigation"; rather, after a "preliminary investigation", which he said did occur, the next step was either a meeting with the student or a committee hearing. Further, he argued that he had been warned on behalf of the respondent in a way which under those procedures could only be done if an adverse finding were made, and the warning had been recorded on his student file. It was submitted that, in determining the weight to be attributed to the factors in Items 6, 12 and 17 in Part 2 of Schedule 4, the Commissioner had disregarded an essential fact.
[50] The respondent's Student's Misconduct Procedures were provided to me with the submissions of the appellant, and set out the procedure which it appears the respondent followed in this case. They provide for what is described as a preliminary investigation, after which the decision maker may take no further action, may issue a warning or may issue a misconduct notice.[25] If a misconduct notice is issued, there is then to be a meeting with the student, which may be followed by a decision on whether or not there was misconduct, or by a referral to a Student Misconduct Committee, which holds a hearing and makes a decision. In the present case, the decision maker decided not to proceed to an allegation of misconduct, but to warn the appellant, as contemplated by paragraph 6.2(2) of the Procedures. That requires that the warning letter be placed on the student's file.
[51] There was therefore some error in terminology in the words used by the Commissioner in [38], referring to a formal investigation. Rather, what happened is that after the "preliminary" investigation, the process was terminated by issuing a warning. That meant that the more "formal" process, of issuing a misconduct notice, and having a meeting or a hearing, did not occur. I do not however regard this as a material error, so as to invalidate the findings of fact made by the Commissioner. In my opinion it is clear enough that the Commissioner had a sufficient grasp of what had occurred in the process, even if it was not matched by a complete grasp of the somewhat curious terminology used in the Procedures document.
[52] With regard to the second alleged error, in [40], the reference to the absence of "formal findings" against the appellant was clearly a reference to the absence of any penalty under paragraph 7 of the Policy document. It was not correct for the appellant to claim that there had been an "adverse" finding against him, so as to enable some "penalty" to be imposed. It is clear from paragraph 6.2(2) of the Procedures document that there is a distinction between a "warning" under that subparagraph and a "reprimand" which is a penalty under paragraph 7. The exact nature of the outcome under paragraph 6.2(2) is obscure, and debatable, but it does not lead to the imposition of a penalty under paragraph 7 of the Policy document, or give a right to appeal under paragraph 11, since it does not amount to a finding of misconduct. I therefore consider that the second alleged error was not an error; it was a matter of characterisation of the relevant part of the Procedures document, which was fairly open to the Commissioner, if it were necessary for her to characterise it, which I do not accept. Whether it was the correct characterisation is a question of fact, and not subject to appeal. I do not consider that any material misunderstanding of a matter of fact has been shown here.
[53] The next matter presented as an error of fact was whether the regulation of students' external political activities was a lawful function of the respondent. I have read what the appellant has said about this, but do not consider that any such material error of fact occurred in this way. In the first place, the question is one of law, not of fact. In the second, the Commissioner did not purport to reach any decision on this issue, regarding it as irrelevant to the matter in issue, and I entirely agree. The lawful scope of the respondent's Student Misconduct Policy is not a matter which was relevant for the Commissioner to decide, for the reasons I have already given. Whether or not the matters complained of were within the lawful scope of the Policy, and whether it was open for the decision maker to conclude that the appellant's conduct was "unacceptable", were not matters to be decided in order properly to conduct the review, and it follows that it was necessary not to decide them.[26] The same applies to me. Whether or not the complaint was handled correctly, it was still a legitimate function of the respondent to deal with it.
[54] The next factual challenge raised was as to whether the conduct of the officials handling the complaint was negligent, improper, unlawful or constituted misconduct. I have already mentioned an aspect of this issue in the context of Ground 1. It is necessary here to note that the mere fact that the respondent may have made some error of law as to the scope of the Policy, or made some decision as to the complaint which, if the correctness of it were litigated (if that is possible; it may not be) would be found to be wrong, did not arise for determination in the review, because the mere fact that someone in the position of the respondent's decision maker makes an error does not show, or even necessarily suggest, that in performing that function there was negligence, improper conduct, unlawful conduct, or misconduct. More to the point, the content of the documents in issue does not necessarily show any of those things.
[55] To take the lowest hanging fruit, the proposition that the officer of the respondent, in acting under paragraph 6.2(2) of the Policy, was acting unlawfully because the matter complained of was outside the lawful scope of the Student Misconduct Policy, that would depend on the terms of the relevant legislation, the terms of that Policy, the substance of the complaint, and the outcome. There is no reason to think that anything in any of the contentious documents would be relevant to that question. It follows that the finding by the Commissioner, that there was nothing in the contentious documents which would support a conclusion that the conduct of the respondent was unlawful, is not necessarily wrong. If the decision of the respondent's decision maker was in fact unlawful, that does not make all the documents in contention automatically subject to disclosure; it would be only information relevant to showing that the decision was unlawful. The appellant has not shown that the findings of fact in relation to Items 6 and 17 in Schedule 4 Part 2 were as a matter of law not open to the Commissioner.
[56] As to the submission based on the disclosure of an email described as B11, disclosed but with the identity of the recipients redacted, the submission was based on the proposition that the recipients included the complainants (or one of them). If that were true, there might be some substance in the proposition that sending this email to them or any of them involved an unlawful disclosure of personal information of the appellant.[27] But this depends on the identity of the recipients, which was of course known to the Commissioner. The appellant's argument was based on this assumption, and built to the proposition that it followed that the Commissioner has suppressed evidence of an unlawful action on the part of the respondent, which in turn was said to show favouritism and hence apparent bias on the part of the Commissioner. The problem with this argument is that the first step is speculative, in that it depends on the actual content of the redacted information.
[57] Under the IP Act the Commissioner was constrained, in giving reasons for the decision, not to say anything which would have the effect of disclosing the information to which access was refused.[28] I consider I am in the same position. It is sufficient for me to say that I have carefully considered the submissions made by the appellant, both orally and in writing, and am not persuaded that this argument shows either that the finding as to the inapplicability of this Item was not open as a matter of law, or that the making of that finding is evidence of apparent bias on the part of the Commissioner. The argument in support of the latter proposition involves assessing the reasoning of the Commissioner and the outcome on the assumption of bias on the part of the Commissioner, which is not the correct approach.
[58] The next question of fact challenged by the appellant was whether the complainants could have had a reasonable expectation that their personal information would not be disclosed to the subject of their complaint. This was a challenge to the statement by the Commissioner at [47] that source complaint information is generally provided by complainants on the understanding that it will be used exclusively for investigations and proceedings under the Policy. Reference was also made to the proposition that the information in issue was provided in confidence. The appellant submitted that at the relevant time there were two avenues by which a complaint could be made to the respondent, under the Students Complaints Policy and under the Student Misconduct Policy, and that the former provided for complaints to be lodged anonymously,[29] whereas the latter required the decision maker to give the subject of the complaint a copy of, or the opportunity to inspect, all relevant documents held by the decision maker.[30] The latter Policy does provide this, but only at the stage where the decision maker has decided to proceed against the student in question, by giving an allegation notice. Although the terminology of the procedural provisions of this Policy do not appear to align precisely with those in the Student Misconduct Procedures,[31] this appears to be a reference to the misconduct allegation notice referred to in paragraph 6.3 of the Procedures. This was something that did not occur in the present case, because the decision maker acted under paragraph 6.2(2) rather than under 6.2(3).
[59] Further, paragraph 4.2 of the Procedures, headed "Principle of Confidentiality", stated that: "Details of an allegation and information about the complainant, the student, the investigation, the committee deliberations and the correspondence should be restricted to persons who have a need to know in order to carry out their role in the process." This does seem to me to hold out that the procedure will offer a degree of confidentiality to complainants, even if, if the procedure reaches a particular stage (not reached in this matter) there will be full disclosure to the student the subject of the complaint. Far from showing that persons complaining under the Student Misconduct Policy must do so openly, I consider that these provisions mean that otherwise the personal information of the complainants will be treated as confidential. Apart from that, I regard the proposition, that people in general will be more forthcoming with information about any matter if it is provided on the basis that the information is to be treated as confidential, as self-evident, as an aspect of human nature. In the circumstances, I do not consider that it has been shown that the findings of the Commissioner in respect to Items 16 and 19 of Part 3 of Schedule 4 were as a matter of law not open to the Commissioner.
[60] I should say that, as I mentioned earlier, there is a distinction between information which is confidential in the sense that it would sustain an action for breach of confidence, which is a ground on which information is exempt from disclosure, and information which, although not falling into that category, could still be information which the supplier of the information would want to be kept confidential in a popular sense.[32] The fact that in a particular case information does not fall into the former, exempt, category does not mean that it will necessarily not be relevant for the purposes of Item 16 of Part 3 of Schedule 4.
[61] The appellant also submitted that the Commissioner had failed to take into account the reasonable expectations of the individual complainants in relation to confidentiality; but Items 16 and 19 relate to the effect on future conduct rather than the expectations of the individuals involved, and it follows that the attitudes of the complainants, far from being an essential fact, was actually irrelevant.[33]
[62] The final challenge to the findings of fact was to the applicability of Item 19, that disclosure of the information could reasonably be expected to prejudice the management function of an agency. As the appellant conceded, this involves the third limb of the test in Re B (supra), but I do not consider that it would generally engage the factor relied on there, of wanting to obtain some benefit from the government. Although this could apply to persons making a complaint of some kind, who presumably seek the "benefit" of having what they complain about stopped,[34] there is no particular reason to think that others contacted in the investigation process would be obtaining any "benefit" from the process of providing information or other assistance. Again, it is not appropriate to focus too closely on the particular circumstances of this complaint. If, as I consider, the Commissioner regarded dealing with complaints as part of the management functions of the respondent, a view which (as discussed later) I regard as open as a matter of law, I certainly consider that the process of obtaining information in connection with the investigation of complaints generally would be something which would be assisted by the availability of confidentiality, as I have said already.
[63] In connection with this the appellant repeated the error that the Student Misconduct Procedures obliged the respondent to disclose all the information from the complainants to the appellant at the time of the investigation. The Procedures document, like the Policy document, refers to disclosure if and when the matter proceeds to a misconduct allegation notice. Since that did not occur in this case, there was no obligation on the respondent under the Policy or the Procedures to disclose additional information as claimed by the appellant. It is therefore not open for the appellant to rely on this consideration in support of a challenge to the finding of fact. There was no disregard of an essential fact in this respect by the Commissioner. Overall, Ground 3 of the Grounds relied on is rejected.

[64] Ground 4 was that the Commissioner erred in taking into account two irrelevant considerations, that the documents in issue were "administrative in nature" and "non-routine work information." The former relates to something said in the Reasons [35] where the context was the rejection of the submission of the appellant that Item 2 of Part 2 of Schedule 4 was engaged, in that the documents could reasonably be expected to contribute to positive and informed debate on an important issue or a matter of serious interest, namely continuing threats to viewpoint diversity at Australian universities. This was rejected by the Commissioner, who said at [35]: "As the CTPI information primarily relates to the University's management of the complaint and is administrative in nature, I am not persuaded that disclosure of this information would contribute to, or further, [such] debate ... ."[35] This was clearly a finding about the content of the documents in issue.
[65] It could I expect be said that disclosure of the substance of the complaint, and of the outcome in the form of the letter to the appellant, would be relevant to positive and informed debate in relation to viewpoint diversity, or indeed freedom of speech, in universities, but it does not follow that all of the documents relating to the complaint and the investigation fall into that category. When properly analysed, the expression used, "administrative in nature", was not in itself a consideration in deciding whether Item 2 was engaged, but simply a suitable general description of the content of the documents in issue in the course of a finding of fact about the content of them. I consider that no error of law was shown, and that the finding was not one shown to have been in law not open to the Commissioner.
[66] The second expression was used in the Reasons [50], in relation to documents containing "opinions of University staff about the complaint, discussions around potential outcomes, and analysis of advice about dealing with the complaint." Opinions or advice provided by staff members in such a situation, and the names of such staff members, constitute personal information of those staff members as well as, in the in the case of opinions about the appellant, personal information of the appellant,[36] which means that it is relevant to consider the extent to which the personal information of such people is properly disclosed under the IP Act or the RTI Act. The disclosure of personal information of other people is taken seriously by the RTI Act,[37] but there is a line of authority that the personal information of a particular officer of an agency is not to be given great weight if the information consists of "routine work information" of that officer. The point the Commissioner was making here was that that line of authority did not apply here. I considered the point myself in Parsons v OIC [2021] QCATA 75 at [6], [7].[38]
[67] The point here is that the disclosure of personal information of another person is by the RTI Act s 49(4) made a factor where disclosure could reasonably be considered to cause a public interest harm. The starting point is that this is a significant factor against disclosing the identify of people other than the applicant; but it has been said that harm arising from the disclosure of routine personal work information of public servants is said to be generally low. What the Commissioner was saying in this passage was that that factor did not apply in the case of the personal information of other people in the contentious documents, so as to reduce the weight to be attributed to this factor. Such a conclusion involved a finding of fact, and I consider that that finding was open to the Commissioner as a matter of law. It did not involve taking into account an irrelevant factor.
[68] The appellant submitted that it could not be said that dealing with complaints was not the routine work of university managers; but that is a generalisation, and it cannot be assumed to apply to the information in issue here. The Misconduct Procedures document identifies people in particular positions who deal with certain categories of complaint,[39] so for them dealing with complaints of their category may well be routine work. It probably follows however that dealing with a complaint in that category would not be routine work for anyone else. There is no reason to doubt that the Commissioner took into account such matters in making this evaluation. It has not been shown that any error of law was made in respect of the matters covered by this Ground.

[69] Ground 5 related to the interpretation of the expression "management function" in Schedule 4 Part 3 Item 19. It was based on the fact that the Commissioner said that this was a factor to which was attributed significant weight: [50]. The appellant submitted that "management" should not be taken to include all forms of administration and control, since this would cover virtually all activities of government. It was submitted that, in view of the connection in the Item with industrial relations, it was appropriate to confine it to the process of human resource management, such as performance reports between a manager and one of the managed.[40]
[70] I do not consider that it is appropriate to attempt to formulate the limits of the concept of "management functions", which I suspect would vary from agency to agency, and perhaps within different parts of a particular agency. The relevant issue is whether the expression would include, in the case of a university, the process of dealing with student complaints, and in my opinion it does. I am not aware of any authority on the point, but given the range of complaints which could have to be dealt with by a university, including complaints about staff behaviour, as well as student behaviour, there does seem to me to be a fairly close analogy with industrial relations issues, if that is of any significance. In saying this, I am conscious of the guidance provided in the RTI Act s 47(2)(a), but do not consider that that requires the exclusion from the scope of Item 19 of something which would be regarded as an ordinary management function of the agency concerned. I do not consider that there was any error in the interpretation of this provision by the Commissioner.

Ground 6: Reasons concerning deliberative process.

[71] This ground was based on the proposition that, to some extent, the respondent in the decision under review relied on Items 12 in Part 3 and 4 in Part 4 of Schedule, which concern the deliberative processes of government.[41] In the reasons of the Commissioner no mention was made of these matters, and the appellant submitted that that meant that the Commissioner had affirmed the relevance of these factors without giving reasons for doing so, which was an error of law.
[72] There was certainly no mention of these Items in the reasons of the Commissioner, but what I take from that is that these Items were not relied on. In those circumstances, there was no cause for giving reasons about them. The approach of the Commissioner, as required by the IP Act, as discussed earlier, was to consider afresh the extent to which the respondent was entitled to refuse to disclose certain information to the appellant. The Commissioner decided this part of the review on a different basis from the way it was decided by the respondent. There was no reason for the performance of that function to involve any consideration of whether or not there was any error in the reasons given by the respondent, at least in the absence of any attempt by the respondent to justify the applicability of those Items in submissions before the Commissioner. There is no substance to this Ground.
[73] The appellant argued that, unless reliance on these Items was taken into account, there was insufficient substance in the factors identified by the Commissioner as factors favouring non-disclosure to justify the conclusion that the Commissioner came to. That is certainly an attempt to challenge a finding of fact of the Commissioner, which is not open on the appeal to the Tribunal.

[74] The remaining four grounds relate to the decision of the Commissioner on the other review of the appellant, relating to the documents produced in connection with the respondent's processing of the first request for access under the IP Act. This review was resolved by the Commissioner on the basis that the information was not subject to disclosure under the IP Act, as being information connected with the exercise of the quasi-judicial functions of the OIC. The OIC is a quasi-judicial body and its review functions are quasi-judicial functions, so in performing those functions it is not an entity to which the IP Act applies. This follows from the terms of the RTI Act s 17, and Schedule 2 Part 2 Item 6. As well, Item 7 in that Schedule provides: "a member of, or the holder of an office connected with, a quasi-judicial entity, in relation to the entity's quasi-judicial functions."
[75] The question of the scope of the expression "connected with" was considered by Hoeben J in Carmody v Information Commissioner (No 3) [2018] QCATA 18 at [35] - [54].[42] His Honour expressed the opinion, in dicta, that the decision maker within the respondent whose decision was subject to review by the OIC was a person in an office or position "connected with" the OIC in relation to its quasi-judicial functions, so that, if it were necessary to do so, he would have held that the decision maker was an "entity to which [the RTI Act did] not apply", so that documents created or obtained by her in the performance of her function as decision maker were not subject to disclosure under the RTI Act. His Honour's reasoning is too long to quote in full, but one factor supporting his conclusion was that the OIC itself was within the scope of Item 6, its members were within the scope of Item 7 anyway, and its staff were within the scope of Item 8 in relation to the performance of its quasi-judicial functions. In those circumstances, it was not easy to see who would be covered by the expression unless it extended to decision makers whose decisions on applications for disclosure under the RTI Act were reviewable by the OIC.
[76] The reasoning in Carmody was adopted by a delegate of the Commissioner in T71 and Queensland Police Service [2022] QICmr 10, where it was held that an application to access documents concerning that respondent's processing of an earlier access application was outside the scope of the RTI Act, as it requested documents of an entity to which that Act did not apply. That delegate essentially adopted the reasons of Hoeben J, and noted that Cairns Port Authority v Albietz [1995] 2 Qd R 470 at 479 was authority for the proposition that the Information Commissioner was performing a quasi-judicial role when conducting a review under the RTI Act. I note the finding in that decision that, in conducting a review under the RTI Act or under the IP Act, the Information Commissioner was a quasi-judicial entity.
[77] These decisions were followed and applied in terms by the Commissioner in the review under appeal. I note that both of those decisions related to applications for disclosure under the RTI Act, whereas in the present case the appellant's application was made under the IP Act. In T71 the applicant had argued that the documents were a functional record capable of being amended under the IP Act s 72: page 4.
[78] The crucial part of the reasoning in Carmody was that the decision maker whose decision was able to be reviewed by the OIC was not an entity to which the RTI Act applied. The RTI Act provides in s 14 for the meaning of "agency", and provides in s 14(2) that "agency" does not include an entity to which that Act does not apply. It follows that that decision maker was also not an agency for the purposes of the RTI Act. The IP Act s 17 provides that, for the purposes of Chapter 3 of that Act (which is the relevant part for present purposes, being the Chapter which deals with disclosure of information) "agency" means anything that is an agency under the RTI Act. It follows that, for the purposes of Chapter 3 of the IP Act, the decision maker on an application under the IP Act reviewable by the OIC is not an agency, since the decision maker would not be an agency for the purposes of the RTI Act.

[79] It follows that the reasoning in Carmody and T71 applies also to an application under the IP Act. That suggests that the Commissioner was right to follow the same approach when dealing with the review of the second application for disclosure by the appellant, since it concerned documents relating to the consideration of the decision maker of the respondent on the first application for access under the IP Act. The appellant advanced four grounds as to why the Commissioner had erred in doing so. The first was that the IP Act s 52 applies to applications, not to documents, and that neither the respondent nor the Commissioner sought to characterise his second application for access in this way. He further submitted that, since the respondent had not taken this point, it was not open to the Commissioner, since, given the IP Act's pro-disclosure bias, s 118(1)(b) does not contemplate the OIC taking a more restrictive line than the agency itself. It was submitted that, if the respondent did not reject the second access application under s 52, this can be seen as its releasing documents which it was not obliged to release under the IP Act s 67(2), and it followed that it was not open to the Commissioner to adopt a more restrictive approach.
[80] The IP Act provides in s 52:

Application outside scope of Act

(1) This section applies if -

(a) a person purports to make an application under this chapter to an entity for access to or to amend a document; and

(b) the entity decides the application is outside the scope of this Act for 1 or more of the following reasons -

(i) the document is not a document of an agency, or a document of a Minister, for this chapter;

(ii) the entity is not an agency for this chapter;

(iii) the application is made to the information commissioner, RTI commissioner or privacy commissioner.

(2) Within 10 business days after the purported application is received, the entity must give prescribed written notice to the applicant of the decision

[81] As the appellant pointed out in oral submissions, the Commissioner, when referring to disclosure of the information being refused under s 52 in Reasons [21], erred because the effect of the reasoning in Carmody is that the decision maker is not an agency subject to the IP Act, but that depends on other provisions. Section 52 is a machinery provision dealing with the consequences of the agency deciding that one of the situations in s 52(1)(b) applies. This may reflect some misunderstanding of the effect of that reasoning, or simply an error of expression by the Commissioner, but if the reasoning is correct and applicable the result arrived at by the Commissioner was in law correct.[43]
[82] I do not consider that it follows from the IP Act s 118 that the Commissioner was excluded from deciding the review in a way which was different from the way the application for access was dealt with by the respondent. If that meant that some documents were disclosed which the respondent was not obliged to disclose, that was fortunate for the appellant, but it does not constrain the powers of the Commissioner to decide again how the application for access is to be dealt with.[44] Section 118(1) is expressed in quite general terms, and the only qualification, in subsection (2), is one which limits the power of the Commissioner on a review by excluding the power to decide to release information which the agency is entitled to refuse to release. There is otherwise no constraint on the power of the Commissioner to decide something which was not decided by the agency, or in a way different from how it was decided by the agency, even if the result is that access to the disputed information is refused on a basis that can be seen as more restrictive than, or perhaps logically prior to, the approach of the agency.
[83] This is not inconsistent with the pro-disclosure bias in the IP Act s 64(4), because, if the decision maker on the application for access under the IP Act is not included in the agency for the purposes of Chapter 3 of the IP Act, it follows that s 64(4) does not apply. In any case, that provision is concerned with the approach to determining if the information is exempt information, or information access to which is on balance not in the public interest. But if Chapter 3 does not apply to the decision maker, it follows that these issues do not apply to the information in issue, so there is no relevant pro-disclosure bias. There is nothing to indicate that the scope of the Items in Schedule 2 to the RTI Act is to be interpreted in a narrow or restrictive way, or with a pro-disclosure bias.
[84] There is nothing in the IP Act s 52 which has the effect that, if the agency does not take the point that the application for access is outside the scope of the IP Act because the relevant entity is not an agency for Chapter 3, so that it does not give the notice contemplated by s 52(2), that in some way prevents the Commissioner on review from taking the point. Such an approach would be contrary to s 118(1). On its face s 52 does not apply to the Commissioner at all.

[85] The next Ground argued by the appellant was that, the second access application having been lodged on 9 December 2022, the time limit imposed by s 52(2) expired well before the decision on the review, and hence the opportunity to invoke s 52. It was submitted that the OIC did not get another opportunity to rely on s 52, and even if it did, the time limit of ten days expired before its decision was delivered.
[86] There are two problems with this submission. In the first place, s 52 does not apply unless and until the entity decides that the application is outside the scope of the IP Act, which did not occur in the case of the respondent. In those circumstances, there was never an obligation on the respondent to give the notice under s 52(2). Second, the section does not provide that, if the notice is not given within time, an application outside the scope of the Act becomes one inside the scope of the Act. Indeed, the IP Act provides no consequences for the failure to give the notice, within the time limit or at all. The position is simply that, if an entity gets a notice which it considers is outside the scope of the Act, it is supposed to tell the applicant that promptly. Evidently the possibility that the entity might not work out that that was the case within the ten day period did not occur to the legislature.
[87] There is at least one drafting anomaly in this section. It is located in Chapter 3 of the IP Act, and if an entity is not an "agency" for that Chapter, it follows that none of the Chapter applies to it, including s 52(2). Yet s 52(1)(b) is drafted in a way that shows that the intention was that it would apply to such an agency. It ought to have been incorporated in the IP Act outside Chapter 3 in order to be operative.
[88] The appellant's argument depends on the proposition that s 52 needs to be invoked for it to be relied on. But that is not how the analysis in Carmody operates. The effect of that analysis is that Chapter 3 of the IP Act does not apply to information produced by processing a request for access to information under the IP Act. The person making the decision on the earlier application is regarded as excluded from the respondent agency, so information generated or gathered by that person is information outside the scope of the information of the respondent for the purposes of Chapter 3. That was what the Commissioner decided, even if the process was wrongly attributed to s 52. It was necessary for the Commissioner to find that the documents in question fell within the scope of that exclusion, but the Commissioner has obviously done so, probably by considering the content of those documents.

Ground 9: Effect of concession by the respondent.

[89] By his second access application, the appellant sought "all information and opinions, whether true or not, about me, other than information and opinions within the scope of my application dated 27 September 2022, created by, received by and/or sent by any of the following members of the university community", followed by seven names.[45] Clearly it was not in terms confined or directed specifically to the processing of the first access application, but it was wide enough to cover any information covered by it in connection with the processing of the first access application. Some documents were disclosed, some with redactions, and some were not disclosed at all. The appellant submitted that, in the reasons given for the respondent's decision, it was said that "the information in these documents does not concern the University's handling of your previous IP Act application in itself, but only relates to personal opinions of staff."[46]
[90] This passage must be considered in context. What the Document S12 said about the documents the decision maker had decided to withhold was:

The documents that I have decided to withhold comprise email correspondence between University staff regarding your previous application dated 27 September 2022. I have decided to withhold the documents because disclosure would, on balance, be contrary to the public interest.

....

The documents also contain information regarding the University's internal process in respect of administering applications for access under the IP Act. It is important that staff cooperate with these processes as the collection of documents from staff is an important way in which the to ensure that the University's obligations under this legislation can be met. [sic]

A factor favouring disclosure is that the correspondence might go towards enhancing accountability and transparency in how the University handles IP Act applications. However, I am satisfied that the information in these documents does not concern the University's handling of your previous IP Act application in itself, but only relates to personal opinions of staff. I therefore afford these factors only low weight.

[91] Despite some inconsistency, overall those passages suggest that the documents withheld on that basis were processing documents relating to the first access application, and would appear to justify the factual finding made by the Commissioner. Even if there had been something said by the respondent which was helpful to the appellant on the review, the Commission was not bound by it on a full merits review, and was entitled to come to a fresh decision about the characterisation of the information in contest.
[92] During oral submissions, the appellant withdrew Ground 9 from the appeal.

[93] The final Ground of appeal challenged the reasoning of Hoeben J, noting that it did not represent a matter ultimately relied on in the decision, which was correct; as I have said; it was a precautionary finding. This was characterised by the appellant as equivocal support for the submission on the point advanced by the appellant,[47] but as I read the reasons it was a precautionary finding. Submissions were made in Carmody on behalf of the OIC in response to the submissions on behalf of the appellant in that matter, although apparently not on behalf of the original applicant for the information.
[94] It was submitted by the appellant that the IP Act does not require the OIC to conduct reviews in a quasi-judicial manner, but the wording of Item 7 is concerned with the nature of the entity, and the nature of the functions of the entity concerned. The steps involve the characterisation of the nature of the entity, and the characterisation of its functions, by reference to their nature and content, not by reference to the manner in which the entity chooses to proceed on a particular occasion. A court is no less performing a judicial function because many of its judgments are given in default, so that there is no active dispute to the claim of the plaintiff to be resolved inter partes. The proposition that the OIC is a quasi-judicial body is supported by authority, and in any case strikes me as obvious enough. If so, it is performing quasi-judicial functions when conducting reviews. This part of the appellant's argument is rejected.
[95] It was also submitted that the absence of any meaningful discovery process in a review by the OIC meant that the applicant for a review was in such a disadvantaged position that there was no meaningful adversarial process. I do not accept this either. The legislature evidently considered that, when dealing with a dispute about the disclosure of information, the effect of disclosing the information for the purposes of the dispute would necessarily render any continuing dispute pointless. The legislature intended that persons refused access to information should not be able to obtain access to the information in contention simply by seeking to exercise rights of review of the decision. As I said earlier, the Acts provide an opportunity to have a person who is independent of the body in possession of the information look at the request for access and decide that request afresh. It does not provide a mechanism whereby access to the desired information will always be obtained.
[96] The appellant also argued that the OIC was excluded from scope of the IP Act by s 46, which prevented applications being made to it other than in relation to personal information of its staff. But it does not follow that the OIC is excluded from the scope of a quasi-judicial entity. When the RTI Act s 123(3) continued in existence the Information Commissioner established under the Freedom of Information Act 1992 there had been a decision that the Commissioner had a quasi-judicial nature,[48] and if the legislature had intended to change that for the purposes of the RTI Act and the IP Act it would have said so. Yet there is no such provision. The fact that a number of specific entities are identified in Schedule 2 Part 2 does not mean that other specific entities are excluded. I expect the intention in naming those entities was to avoid argument about whether or not they were quasi-judicial.
[97] It was submitted that the 1992 Act was amended in 2005 in a way which involved similar wording in the context of a number of the bodies identified specifically which had the capacity to appoint temporary officers who were neither employees or members, and that that usage was the likely origin of the wording in Item 7, since the identification of such bodies was not carried over to the new Act.[49] That history suggested that the legislative intention behind this usage in Item 7 was to include such people as people "connected with" a quasi-judicial entity. The proposition that such people would be included as those holding offices "connected with" such bodies is plausible enough, but it does not follow that that is the limit of the meaning of people connected with such a body. It was not necessary in Carmody to define the limits of the expression, just to decide whether a decision maker under the RTI Act was so "connected with" the OIC.
[98] It is true that there would not necessarily have to be some "office connected with" the OIC, but this does not weaken the general proposition that such a description suggests that what is contemplated was something broader than members and staff of the OIC, even temporary ones. There was no reason to doubt that his Honour was conscious of this proposition. The appellant also challenged the second proposition in support of the analysis in Carmody, that the exclusion of information relating to the processing of a prior access application would avoid a situation where there could be potentially an endless series of applications for access in respect of each prior request for access. It may be that such applications could eventually be dealt with as vexatious applications, but there would be the difficulty that technically each would relate to different information.
[99] Apart from that, under the IP Act s 37 a decision maker is required to obtain the views of a relevant third party before giving access to information that may be of concern to that third party. If the third party objects to disclosure, access must be deferred until the third party has had the opportunity to apply to have that issue reviewed. It is quite understandable that the legislative intention would exclude the process of obtaining the views of such third parties, in the interests of obtaining cooperation of such third parties, even if on the review the third party would be required to disclose any submissions made to the review. The appellant sought to counter such an approach by reference to the proposition that public officials should be expected to be able to respond to consultation in a way which will not give rise to concern on their part about exposure of their views. That may be so, but the third parties to be consulted are not necessarily public officials, and the process of consulting with private individuals about the disclosure of their personal information is not really in the same category. I do not find this submission convincing.
[100] The analysis by Hoeben J in Carmody was technically dicta, but as the clearly considered view of a Supreme Court Judge sitting as the Appeal Tribunal it is certainly persuasive. In the circumstances I consider that I should follow it unless persuaded that it is wrong. I am not so persuaded by any of the submissions of the appellant. On the contrary, I find his Honour's reasoning persuasive, and agree with it. It follows that I am not persuaded that the Commissioner made any error of law in applying it in the present matter.
[101] In the written submissions in reply the appellant made some comments on the approach of the respondent to the appeal, which were generally irrelevant to anything I have to consider, and at times descended to gratuitous disparagement of the respondent. I do not need to address them further.

[102] That deals with the Grounds of appeal of the appellant. I have not upheld any of them, and it follows that the appeal is dismissed. I do not need to consider the further submissions of the appellant, directed to a de novo consideration of the merits of the review if the appeal had been allowed. I should add however that if I had upheld any of the Grounds of appeal, the result would not have been a de novo hearing of the merits of the review by me. It is quite clear that in such circumstances, in an appeal limited to a question or questions of law, if the appeal is allowed the appropriate outcome is to remit the matter to the Information Commissioner for reconsideration in the light of the correction of the error of law. The Tribunal will substitute its own decision for that of the Commissioner only if it concludes that, as a matter of law, only one decision was in the circumstances open. This is made clear by a decision of the High Court,[50] which has been treated as applying in such matters by the Court of Appeal.[51]
[103] The decision of the Appeal Tribunal, made pursuant to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 194A, is that the appeal is dismissed, and the decision of the Commissioner is confirmed. I will give directions for any application for costs, and for written submissions in relation to any such application.

[1] For convenience I shall refer to Mr Stella as the appellant and to Griffith University as the respondent. The decision the subject of the appeal was made by a delegate of the Information Commissioner, but for convenience I shall generally refer to the decision maker as the Commissioner.

[3] Allen v Queensland Building and Construction Commission [2024] QCA 24 at [19], [52]; see also Powell v Queensland University of Technology [2017] QCA 200; [2018] 2 Qd R 234 at [44], [55].

[4] Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [2], [117].

[5] Written submissions in support of the appeal para [30].

[6] For the test for apparent bias, see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344, 5; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [31]. See also the discussion in Oakey Coal Alliance Inc v New Acland Coal Pty Ltd [2019] QCA 184; (2019) 2 QR 271.

[7] Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 271-2; Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1995] QCA 187; [1996] 2 Qd R 462 at 485; Ergon Energy Corporation Ltd v Rice-McDonald [2009] QSC 213 at [11] - 17].

[8] There is authority that an allegation of apparent bias on the basis of circumstances in existence prior to the decision cannot be raised on appeal if it was not raised before the court at the time; but this was not relied on by the respondent.

[9] There is no relevant provision for referral in the RTI Act either.

[11] IP Act s 118(2), referring to the power in s 67(2)(b).

[13] This was made express in oral submissions.

[15] And dealing with privacy complaints under the IP Act Chapter 5.

[16] Marshall-Holst v OIC [2017] QCATA 28 was an example of such a case, where a particular point in contention by the unsuccessful party had not been mentioned in the reasons.

[17] See the classic statement in House v R (1936) 55 CLR 499 at 504, 5. See also Sutton v Hunter [2022] QCA 208, 102 MVR 343 at [51] discussing evaluative judgments, which are very like discretionary decisions, and Morant v Ryan [2023] QCA 109 at [40].

[19] RTI Act Schedule 4 Part 2 Item 12.

[21] Whether those opinions were appropriate may be another matter, but such an issue would not engage Item 12.

[23] Marshall-Holst (supra) at [34], [35].

[25] Student Misconduct Procedures para 6. I suppose that conceptually the complaint becomes a proceeding by the university alleging misconduct if the third course is taken.

[26] I believe this is referred to as the Falkland Principle.

[27] That would involve conduct which was unlawful for a different reason.

[29] Referenced to the Student Complaints Policy Clause 2.2.

[30] Referenced to the Student Misconduct Policy Clause 4.3.2.

[31] At least so far as the copies of these documents provided on appeal by the appellant go. It is possible that they have been aligned at some time, and that any drafting deficiencies are only apparent.

[32] In oral submissions the respondent disavowed reliance on the information in contest being exempt as confidential information in the former sense.

[33] See the discussion of Re B above. In theory it might be some evidence of the likely future conduct of persons in a similar position, but in itself it would be likely to carry very little weight.

[34] Not, I think, the sort of benefit the then Commissioner had in mind in Re B.

[38] See also Carmody v Information Commissioner [2018] QCATA 14 at [176] - [178]. The passage quoted from the decision of the then Information Commissioner cited by the appellant, Eccleston and Department of Family Services etc [1993] QICmr 2; (1993) 1 QAR 60, was directed not to the issue of whether the personal information of officers of agencies should be disclosed, but to a different issue.

[40] The decisions on Item 19 are concerned with information about industrial relations.

[41] It is not clear whether this was said to have been done expressly, or by implication from the language used.

[42] Hoeben J, a Justice of the Supreme Court of New South Wales from 2004 to 2021, acting temporarily as a judicial member of the Tribunal, heard this matter because at the time the appellant was a Justice of the Supreme Court of Queensland sitting regularly as a judicial member of the Tribunal.

[43] It is not a material error, sufficient to justify setting aside the decision of the Commissioner. As to the requirement that the error be material, see Minister for Aboriginal Affairs v Peco-Wallsend Ltd (1986) 162 CLR 24 at 40, Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [31].

[44] The consideration on a review at the instance of an applicant for access will be limited to that information not already disclosed by the agency, unless the scope of the review is narrowed further by the applicant.

[45] Quoted by the appellant in his submissions on appeal para 7.

[46] Quoted by the appellant in his written submissions on appeal para 133, referencing letter from Bryant (the decision maker) to the appellant of 25 January 2023 attached to the submissions, as Document S12, and repeated in the written reply para 61.

[47] Submissions in writing on appeal para 139.

[48] Cairns Port Authority v Albietz [1995] 2 Qd R 470 at 479.

[49] Although there were a number of other bodies identified specifically in Schedule 2 Part 2.

[50] Osland v Secretary, Department of Justice [2010] HCA 24; (2010) 241 CLR 320 at [18] - [20].

[51] Powell v Queensland University of Technology [2017] QCA 200; [2018] 2 Qd R 234; Pivovarova v Michelson [2019] QCA 256; (2019) 2 QR 508 at [9].

At a glance

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Judgment (104 paragraphs)

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Legislation Cited (1)

Cases Cited (8)