ASD v Office of the Information Commissioner Chief Executive, Office of Liquor and Gaming Regulation

[2013] QCATA 281

CITATION: ASD v Office of the Information Commissioner Chief Executive, Office of Liquor and Gaming Regulation [2013] QCATA 281

PARTIES:	ASD (Appellant)
V
Office of the Information Commissioner Chief Executive, Office of Liquor and Gaming Regulation (Respondents)

APPLICATION NUMBER: APL421-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Hon K Cullinane AM QC, Judicial Member

DELIVERED ON: 4 June 2013

DELIVERED AT: Brisbane

ORDERS MADE:

The decision of the Assistant Information Commissioner of 29 October 2012 be set aside.1.    

The matter is remitted to be dealt with by another Commissioner in accordance with the terms of this judgment.2.    

CATCHWORDS:

APPEAL – QUESTION OF LAW – GENERAL ADMINISTRATIVE REVIEW – RIGHT TO INFORMATION – DISCLOSURE DECISION – where disclosure of documents relating to licensed premises – where appellants seeks to appeal that decision – whether disclosure would be contrary to the public interest – whether appeal should be granted

Liquor Act 1992 (Qld), s 48
Right to Information Act 2009 (Qld), s 6, s 47, s 119, Schedule 4

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. This is an appeal against a decision of the Information Commissioner pursuant to s 119 of the Right to Information Act 2009 (the Act).

1. Such an appeal is limited to a question of law.

1. The respondent Commissioner on external review concluded that certain documents relating to certain licensed premises (one of which is conducted by the Appellant) should be disclosed.

1. The appellant appeals on three grounds:

1.The decision maker erred in law in determining that there was no evidence that the incidents referred to in the “information in issue” was the subject of current disciplinary proceedings.

Particulars: The RTI application was made to the Dept of Justice and Attorney General which is the Department undertaking the disciplinary action.

2. The decision maker erred in law by misinterpreting or misconstruing Section 48 of the Liquor Act 1992.

Particulars: The decision maker applied Section 489(2) as if it related to the gathering of information. The provision relates to the disclosing of information.

3.     The decision maker erred in law in dealing with the question of public interest in accountability of regulatory agencies and the promotion of open discussion of public affairs and debate on matters of serious interest and insufficient weight to the prejudice to the applicant’s business affairs resulting from disclosure.

1. It is convenient if I deal with the second of these grounds first.

1. Section 48 of the Liquor Act 1992 provides:

(1) Subject to subsection (2) a person who is engaged or has been engaged in giving effect to this Act must not make a record of or directly or indirectly disclose information about the affairs of another person gathered in the course of administration of this Act.

(2) Subsection (1) does not apply to–

(a)     disclosing information in compliance with lawful process requiring production or giving of evidence before a court or tribunal; or

(b)     disclosing information in the register; or

(c)     disclosing information about the status of an application required to be advertised under section 118(1); or

(d)     disclosing information about the status of an application to the tribunal or a review and the names of parties to the review; or

(e)     doing anything for the purposes of the Act.

1. Section 47 of the Act provides for the refusal of access to documents where (amongst other grounds) it would be contrary to the public interest to grant access.

1. Section 6 of the Act provides: ‘This Act overrides the provisions of other Acts prohibiting the disclosure of information.’

1. Part 3 of Schedule 4 to the Act sets out the factors favouring non disclosure in the public interest.

1. Item 22 provides: ‘Disclosure of the information is prohibited by an Act.’

1. The Commissioner dealt with an argument concerned with the above provisions in the following way:

I am satisfied that the information in issue was gathered for the purposes of the Liquor Act and therefore the prohibition on disclosure does not apply due to the operation of Section 48(2)(e) of the Liquor Act. Accordingly I find that the public interest factor at (f) above does not apply.

1. The reference to (f) is a reference to item 22.

1. In my view the section cannot be construed in this way. The exceptions in subsection (2) are exceptions to the prohibition on disclosure in subsection (1).

1. In my view such a construction would defeat the purposes of the section.

1. I am satisfied that here has been an error of law. A factor which should have been considered was not.

1. Since the matter is to be reheard it is appropriate to say nothing about the other grounds.

1. I order that the decision of the Assistant Information Commissioner of 29 October 2012 be set aside.

1. The matter is remitted to be dealt with by another Commissioner in accordance with the terms of this judgment.