Frost v Office of the Information Commissioner Queensland

[2021] QCATA 56

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Frost v Office of the Information Commissioner Queensland & Ors [2021] QCATA 56

PARTIES:

JULIE FROST

(applicant/appellant)

v

OFFICE OF THE INFORMATION COMMISSIONER QUEENSLAND

(first respondent)

VETERINARY SURGEONS BOARD OF QUEENSLAND
(second respondent)

ANIMAL WELFARE LEAGUE OF QUEENSLAND
(third respondent)

APPLICATION NO/S:

APL153-20

MATTER TYPE:

Appeals

DELIVERED ON:

4 May 2021 (ex tempore)

HEARING DATE:

4 May 2021

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

ORDERS:

The application for leave to appeal or appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – GENERALLY – where applicant sought access to documents of second respondent pursuant to Information Privacy Act 2009 (Qld) – where second respondent refused access to certain documents – where applicant applied to first respondent for review of second respondent’s decision – where first respondent varied second respondent’s decision – where disclosure could reasonably be expected to result in serious act of harassment or intimidation – where applicant applied for leave to appeal or appeal the decision of first respondent – where appeal may only be on an error of law – where applicant failed to participate in proceedings – where submissions comprise personal attacks on officers of second respondent and others – where submissions fail to identify error of law – whether application for leave to appeal or appeal ought be dismissed

Information Privacy Act 2009 (Qld), s 132

Right to Information Act 2009 (Qld), s 47, s 48, sch 3 s 10

S90 and Veterinary Surgeons Board of Queensland; T38 (Third Party) [2020] QICmr 23

APPEARANCES & REPRESENTATION:

Applicant:

No appearance

First Respondent:

Second Respondent:

Third Respondent:

K McGuire i/b Office of the Information Commissioner

L Nixon (solicitor) i/b Turks Legal

No appearance

REASONS FOR DECISION

1. On about 14 February 2019, the Applicant, Julie Frost, applied to the Veterinary Surgeons Board of Queensland under the Information Privacy Act 2009 (Qld) (“IP Act”) for access to certain documents over a period of about five years with respect to her and her dog, including any complaints made to the Second Respondent, which is the Veterinary Surgeons Board of Queensland.

2. On 26 April 2019, the Second Respondent provided various documents to Ms Frost but refused her access to some nineteen pages of documents on the basis that it was contrary to the public interest to disclose those pages to her.  Ms Frost was ultimately provided access to some 279 pages of material.

3. On 26 April 2019, the Applicant then applied to the First Respondent, the Information Commissioner, for external review of the Second Respondent’s decision. The decision of the First Respondent was issued on 20 April 2020 and is cited as S90 and Veterinary Surgeons Board of Queensland; T38 (Third Party).[1]

   [1][2020] QICmr 23.

4. In short, the decision of the First Respondent was to vary the Second Respondent’s decision by making an express finding that access to the information contained in the nineteen pages which had been excluded may be refused on the ground that it comprised exempt information because its disclosure could reasonably be expected to result in a serious act of harassment or intimidation.

5. On about 21 May 2020, the Applicant filed an application for leave to appeal or appeal against the Information Commissioner’s decision. 

6. Today is the date which has been notified to the parties as the day for the hearing of the Applicant’s application for leave to appeal or appeal.  That notice was forwarded to the parties.  There are appearances today on behalf of the First Respondent and the Second Respondent.  The Applicant, however, is conspicuous by her absence, notwithstanding that this is the nominated date for the hearing of her own application.

7. On 24 April 2021, the Applicant sent an email to the Tribunal’s Deputy Principal Registrar purporting to request that this hearing be “cancelled” and stating that she would not be attending in any form. On 27 April 2021, the Deputy Principal Registrar responded to the Applicant confirming that the hearing would not be cancelled and would be proceeding at the scheduled date and time. 

8. It is clear enough that the Applicant is on notice of today’s hearing and has chosen not to participate in the hearing.  It is, however, both necessary and possible for me to determine the matter on the face of the Applicant’s own application for leave to appeal or appeal.

9. The decision made by the Information Commissioner which is the subject of the Applicant’s application, concerned whether the relevant nineteen pages comprised exempt information for the purposes of ss 47 and 48 of the Right to Information Act 2009 (Qld) (“RTI Act”). If information is exempt information for the purposes of those sections under the RTI Act, then there is exemption under the IP Act from an Applicant gaining access under the provisions of that Act to that exempt information.

10. An examination of whether information is exempt calls up the provisions contained in sch 3 of the RTI Act. In this case, the Information Commissioner’s decision relied on section 10(1)(d) of schedule 3, which relevantly provides that information is exempt information if its disclosure could reasonably be expected to “result in a person being subjected to a serious act of harassment or intimidation.”

11. In the Information Commissioner’s decision, the Information Commissioner undertook a close analysis of the history of dealings by the Applicant with a number of parties including the Information Commissioner and officers of the Second Respondent, and came to the conclusion that disclosure of the information contained in the subject nineteen pages could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation.  That squarely was the basis for the Information Commissioner’s decision.

12. There is a right of appeal against the Information Commissioner’s decision conferred by s 132 of the IP Act. Importantly, however, section 132(2) prescribes that such an appeal “may only be on a question of law.”

13. Turning then to the application for leave to appeal or appeal, it is appropriate to observe that the handwritten document filed by the Applicant does not even go close to identifying or articulating the error of law which the Applicant would argue has infected the First Respondent’s decision in this case. 

14. Rather, the “Grounds of Appeal” enumerated in her application for leave to appeal or appeal, constitute what might colloquially be described as a general spray alleging a variety of criminal and corrupt conduct.  For example, the document under the heading “Grounds of Appeal” simply commences:

    Error of law, criminal conduct by all respondent participants involved including AD Act offences of victimisation & PID reprisals, cover up of crime and misconduct, fraud, procedural unfairness, maladministration, bad faith, unilateral biased “consultation” …

    The document goes on to allege harassment by officers of the Second Respondent and alleged recriminatory conduct against the Applicant.  What it conspicuously does not do is identify an error of law committed by the First Respondent in reaching the subject decision.

15. It is also notable that the relief sought by the Applicant in the application for leave to appeal or appeal is quite simply beyond the jurisdiction of the Tribunal.  The orders sought are for:

    Release all data withheld & not collected.  Release all communication records involved in this matter by participants involved.  Damages, compensation, referral to crime and misconduct proceedings and/or any orders the Tribunal sees fit.

16. In other words, not only does the application for leave to appeal or appeal not identify the proper basis on which an appeal to this Tribunal must be brought under s 132 of the IP Act, it seeks relief which is simply not available as a matter of law. On those bases alone, it is clear that the application for leave to appeal or appeal has no merit whatsoever and ought be dismissed.

17. I should note that it is quite clear that the Information Commissioner had a sound basis for reaching the decision as to the characterisation of the exempt material, and indeed so much was reinforced in the emailed submissions which were forwarded to the Tribunal by the Applicant on 28 September 2020, by way of submissions in support of her application.

18. Much of those submissions is irrelevant narrative which range across a variety of complaints that the Applicant has about her treatment at the hands of the justice system.  Concerningly, however, those submissions also include personal attacks on an officer of the Second Respondent, which in many ways amplifies the concerns that had agitated the Information Commissioner in the course of their decision-making process.  The submissions also contain a variety of allegations against judicial officers generally – one in particular is now a judicial member of this Tribunal – and makes all sorts of allegations about impropriety, lack of probity and lack of impartiality.

19. Again, for all of the pages of commentary which the Applicant provided to the Tribunal by way of submissions, there is a conspicuous failure on her part in the course of those submissions to identify the error of law which she says infected the Information Commissioner’s decision.  On the face of the application for leave to appeal or appeal, and indeed on the face of the Applicant’s own submissions in support of that application, there is no proper basis disclosed for her application. 

20. Accordingly, the Tribunal orders that the application for leave to appeal or appeal be dismissed.