Watson v Office of Information Commissioner Qld
[2015] QCATA 95
•26 June 2015
| CITATION: | Watson v Office of Information Commissioner Qld & Ors [2015] QCATA 95 |
| PARTIES: | Alexander Watson (Applicant/Appellant) | |
| v | ||
| Office Of Information Commissioner QLD (First Respondent) Noosa Shire Council (Second Respondent) David Madden (Third Respondent) | ||
| APPLICATION NUMBER: | APL416-14 | |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President |
| DELIVERED ON: | 26 June 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The appeal is dismissed. |
| CATCHWORDS: | APPEAL – QUESTION OF LAW – RIGHT TO INFORMATION – DISCLOSURE – where Office of the Information Commissioner allowed access to documents – where application to appeal decision of Office of Information Commissioner for failing to consider documents as exempt under schedule 3, section 10(1)(d) of the Right to Information Act 2009 – whether disclosure of information could reasonably be expected to result in serious acts of intimidation and harassment – whether the Office of the Information Commissioner erred in law Information Privacy Act 2009 (Qld) s 132 Madden and Noosa Shire Council; Third Party [2014] QICmr 36 (26 August 2014) |
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 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
Mr Alexander Watson is seeking to appeal the decision of the Office of the Information Commissioner[1] to release documents held by Noosa Shire Council to a Mr David Madden under the Right to Information Act 2009 (Qld) (‘RTI Act’).
[1]Madden and Noosa Shire Council; Third Party [2014] QICmr 36 (26 August 2014).
Mr Watson submits that the Information Commissioner’s decision contains an error of law, as the Information Commissioner failed to adequately consider that the release of the documents to Mr Madden could result in a serious act of harassment or intimidation against him, his wife and his business.
Background
This matter is the culmination of a long running dispute between Mr Watson and Mr Madden. The following facts are not in dispute.
Mr Watson owns a horse riding business known as Equathon Horse Riding in Noosa. Mr Madden also operated a camel and horse riding business in competition with Mr Watson’s, called Camel Company. Mr Madden operated the Camel Company against Council regulations by failing to have a permit to occupy the site of business. The Camel Company was evicted by the Council.
Mr Madden applied under the RTI Act to the Sunshine Coast Regional Council for a range of information relating to his businesses and related dealings with the Council. The Council decided to release the majority of the documents it located in response to the application. However, in view of objections to disclosure raised by Mr Watson, the Council refused Mr Madden access to certain information (the “information in issue”) on the basis that it was exempt or that its disclosure would, on balance, be contrary to the public interest.
The information in issue is 26 pages of correspondence between Mr Watson, the Council and other external parties that, generally speaking, relates to complaints made by Mr Watson as to Mr Madden’s business operations and some of the actions taken by Council in response to the complaints.
Mr Madden sought external review by the Information Commissioner of the Council’s decision to refuse him access to the information in issue.
Decision of the Information Commissioner on external review
Mr Watson raised the following four grounds to Council, and then to the Information Commissioner during external review, as a basis for refusing Mr Madden’s access to the information in issue:
1. disclosure would found an action in breach of confidence,[2]
2. disclosure could reasonably be expected to enable the existence or identity of a confidential source of information, in relation to enforcement or administration of the law, to be ascertained,[3]
3. disclosure could reasonably be expected to result in a serious act of harassment or intimidation,[4] and/or
4.disclosure of the information would, on balance, be contrary to the public interest.[5]
[2]Right to Information Act 2009 (Qld) (‘RTI Act’) ss 47(3)(a), 48 and schedule 3, s 8(1).
[3]RTI Act ss 47, 48 and schedule 3, s 10(1)(b).
[4]RTI Act ss 47, 48 and schedule 3, s 10(1)(d).
[5]RTI Act ss 47(3)(b) and 49.
The Information Commissioner found that all four grounds were not established[6] and set aside the Council’s decision to refuse access to the information in issue on those grounds.[7]
[6]Madden and Noosa Shire Council; Third Party [2014] QICmr 36 (26 August 2014) at 24, 30, 44 and 56.
[7]Ibid at 57.
Mr Watson now seeks to appeal this decision.
Right of appeal of a decision of the Information Commissioner
There is a limited right to appeal a decision of the Information Commissioner to the Tribunal. This must be on a question of law and may only be by way of a rehearing.[8]
[8]RTI Act s 119; Information Privacy Act 2009 (Qld) s 132.
Mr Watson mistakenly filed a Form 23 Application to Review a Decision, rather than a Form 39 Application for leave to appeal or appeal. In accordance with the power under s 61(1)(c) of the QCAT Act, I waive compliance with rule 95 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) and accept the application to appeal even though it is not made in the approved form.
Grounds of appeal of the decision of the Information Commissioner
Mr Watson appeals the decision on the basis that the Information Commissioner made an error in law in failing to give adequate weight to the issue that the release of the information could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation.
Mr Watson relies on submissions he made before the Information Commissioner and has filed no further submissions.
Mr Watson sets out “evidence of [a] campaign of intimidation and harassment by Mr Madden” and associates of Mr Madden’s company. This includes incidences of:[9]
[9]Applicant’s submissions of 6 August 2014.
·verbal abuse and indecent gestures,
·blocking the path of horse riding groups and holding “a mobile phone to our face”,
·jumping in front of a vehicle,
·intimidating gestures,
·the tailgating of a vehicle,
·a false allegation of trying to run a vehicle off the road,
·vehicles and horse floats being covered in dirt, sand and horse manure, and
·locks going missing and then reappearing
against Mr Watson, his wife, their staff and guests.
This information was before the Information Commissioner.
Discussion
The RTI Act – serious act of harassment or intimidation.
Under the RTI Act, 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.[10] An agency may refuse access to a document of the agency to the extent the document comprises exempt information.
[10]RTI Act Schedule 3, s 10(1)(d).
As the Information Commissioner correctly outlined in its decision, the RTI Act adopts a pro-disclosure bias in deciding access to information.[11] Therefore, even if a document does contain exempt information, it may still be released.[12] This is in line with the object of the RTI Act, which is to give a right of access to information in the government’s possession or under the government’s control.[13]
[11]RTI Act s 44; Madden and Noosa Shire Council; Third Party [2014] QICmr 36 (26 August 2014) at 50.
[12]RTI Act ss 47(2)(b) and 48(3).
[13]RTI Act s 3.
For the exemption to apply, it must be reasonably expected that a person would be subject to a serious act or harassment or intimidation as a result of the disclosure of the information, rather than independently or from any other circumstance.
The Information Commissioner made the following observations as to the relationship between Mr Watson and Mr Madden:[14]
“It is clear that [Mr Watson] and [Mr Madden] are well known to one another and the relationship between them has deteriorated over the past five years. It is also evident from the material that the deterioration was caused by a long-running dispute about the operation of their respective businesses…there would be no nexus between the release of the information in issue and the actions of the parties.”
[14]Madden and Noosa Shire Council; Third Party [2014] QICmr 36 (26 August 2014) at 39-40.
The Commissioner found that the relationship between the two parties was antagonistic for some time and the alleged past behaviour attributed to Mr Madden by Mr Watson had not been triggered by disclosure of information.[15] Similarly, Mr Watson stated that he was aware Mr Madden knew he had complained to the Council about their illegal operations.[16]
[15]Ibid at 41.
[16]Ibid at 42.
The decision of the Information Commissioner was not made on the view that the harassment or intimidation would not re-occur, but on the basis that there was no correlation between the information being disclosed and the re-occurrence of any such harassment or intimidation. Mr Watson may, unfortunately, be subject to intimidation and harassment, but this possibility remains regardless of whether or not the information in issue is disclosed.
The Information Commission also considered there to be insufficient evidence to determine if the act of harassment or intimidation would be ‘serious’ according to the ordinary meaning of the word. However, given that there would be no nexus between releasing the information in issue and the actions of the parties, nothing hinged on this question.[17]
[17]Ibid at 35 and 40.
Mr Watson has provided no further evidence or submissions to the Tribunal other than what was before the Information Commissioner. As the Council no longer objects to disclosure of the information in issue, the onus is on Mr Watson to establish the information should not be disclosed under the RTI Act.[18]
[18]RTI Act s 87.
The Information Commissioner considered the evidence and came to conclusions about the relationship between Mr Madden and Mr Watson, and whether the disclosure of the information could reasonably be expected to result in a serious act of harassment or intimidation. The Information Commissioner correctly applied the principles to the facts.
None of Mr Watson’s submissions demonstrate that the Information Commissioner has made an error of law or that the Information Commissioner acted on a wrong principle, failed to consider relevant material or considered irrelevant material.
Therefore, the appeal is dismissed.
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