The Commissioner varied the decision of the College and directed the release of certain records. She found that Section 23(1)(aa) of the FOI Act, which provides for refusal of access if such access could reasonably be expected to endanger the life or safety of any person applies only to parts of the records and that redacted versions of these records should be released.

Case Summary

Whether the College's decision to refuse access to records comprising the applicant's third year English examination scripts was justified under Section 23 of the FOI Act.

Date of Decision: 18.12.2009

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner

Background:

In the applicant's FOI request to the College of 3 December 2008, he sought the following:

''(1) Access to my third year English Examinations

(2) The names of the individual members of staff or employees[ .............]has alleged in correspondence, that I have upset, abused, or libelled".

In its decision of 22 December 2008, the College refused access to all the records on the basis of Section 23(1)(aa) of the FOI Act.  The applicant then sought, on 2 January 2009, an internal review of the decision in relation to the first part of his request. In its internal review decision, the College affirmed the original decision.  Subsequently, in a letter of 26 January 2009, received by the College on 29 January 2009, the applicant sought an internal review in relation to the second part of his request.  As this request for an internal review was made outside of the statutory timeframe, the College did not accept it.

The applicant applied to my Office for a review in relation to his entire request by email of 4 March 2009. The application for review was accepted in relation to the first part of the request only. Since the request for internal review was made outside the required timeframe and was not accepted by the College, it was not a decision which I  have jurisdiction to review under section 34 of the FOI Act.

In carrying out my review, I have had regard to the following:

• the College's decisions on the matter;
• communications between the applicant and the College ;
• communications between the College and the Investigator, Ms. Brenda Lynch of my Office;
• communications between my Office and the applicant;
• the content of the records and
• the provisions of the FOI Act.

Ms. Lynch wrote to the applicant 8 September 2009 and again on 13 October 2009 setting out her views on the case and inviting submissions from him. As my Office has no record of receiving any response or subsequent contact, I have decided to bring the review to a conclusion by issuing a formal, binding decision.

Conducted in accordance with section 34(2) of the FOI Act by the Information Commissioner (the Commissioner)

Scope of Review

The College identified nine records as being within the scope of the review. Of these, records 1-5 are the applicant's English examination scripts completed in January 2008 and records 6 - 9 are his English examination scripts completed in August 2008.  According to the College's submission, the College would not normally refuse an FOI request for a copy of examination scripts.

Submissions

.

Findings

Preliminary Issues

Section 34(12)(b) of the FOI Act provides that, where a decision to refuse a request is being reviewed by the Information Commissioner, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Thus, in this case, the onus is on the College to satisfy me that its decision is justified.

Furthermore, I wish to make it clear that I am unable to give  particularly informative descriptions of the content of parts of the records at issue or of submissions made. The provision of more detail could be in breach of section 43(3) of the FOI Act, which provides that I must take reasonable precautions to prevent disclosure of information in an exempt record or information that, if it were included in a record, would cause the record to be exempt.

Section 23(1)(aa)

The College has refused access to the records sought on the basis of Section 23(1)(aa) of the FOI Act which was inserted into the 1997 Act by the 2003 Amendment Act. This provides that a public body may refuse access if access to the records concerned "could, in the opinion of the head, reasonably be expected to...  endanger the life or safety of any person."

In his submissions to the College, the applicant stated that he was not a danger to himself or to any other human being. He alleged impropriety on the part of the college. The applicant's submissions to my Office, referred, inter alia, to various alleged improprieties and to a [  ] grade for one of the examinations in which he claimed that the paper was validly answered with course texts. He said that the college had declined to comment on who gave this grade and referred to an appeal he had made. He enclosed copies of his correspondence with various parties, including [....].

I should say first in relation to this exemption that it is not one which is commonly used; neither, in my view, is it an exemption which should be applied without careful consideration having been given to whether the expectation set out in the subsection is a reasonable one in all of the circumstances. I consider that the test to be met in regard to this exemption is such that it should only be invoked in circumstances of the most serious nature. What is required is an assessment of the expected consequences of releasing particular records in terms of endangering life or safety. It is not necessary or indeed possible to establish that such physical harm will occur but that there is reasonable expectation of this.

In this regard I refer to the analysis of the phrase "could reasonably be expected to" carried out by the Queensland Information Commissioner in "Re "B" and Brisbane North Regional Health Authority" (1994) 1 Q.A.R 279 in which he said:

"The words call for the decision- maker ... to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative /conjectural ''expectations'')  and expectations for the occurrence of which real and substantial grounds exist."

I am satisfied that my consideration of this exemption must be concerned only with whether or not the expectation of endangerment to life or safety to persons is reasonable.  I am also of the view that, in order for the exemption to be upheld, it should be possible to clearly link the expectation of serious harm arising to the content and context of the records. 

In its submissions, the College identified excerpts from the records which it regarded as particularly relevant to its decision to refuse access to the entire records.  I am satisfied that this is a case where refusal of access to all of the records sought is not justified and my Office put it to the parties in the course of this review that consideration was being given to part release of the records.

Having examined the records,  I can see nothing in records 1 to 5 which would justify refusing access to them and I note that the results and comments on these scripts are generally positive.  I also note that examples of content from these five records were not included in the College's submissions as a basis for refusal of access.  I find that the refusal of  access to records 1-5 is not justified and that they should be released.  The College has, in submissions to my Office, accepted this position.

Section 13 - part release

Before I go further, I think I should explain my approach to the granting of access to parts of records. Section 2 of the Act defines "record" as including "anything that is a part or a copy" of a record. Section 13(1) of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed, where it is practicable to do so. However, section 13(2) provides that subsection (1) shall not apply in relation to a record if the copy provided for thereby would be misleading. In the light of the approach set out in the following paragraph, I have decided that section 13(1) applies in this case but that 13(2) does not. I consider that, in this case, it is feasible to consider part release of those portions of the records which do not qualify for exemption.

In relation to records 6 to 9, my view is that it is not appropriate to refuse access to the records in their entirety. Much of the content was created by the applicant himself when sitting the examination. I can see no reason not to release the material submitted by him as part of the examination process. Although there are some references to individuals (other than the authors referred to in the answers), I am not convinced that the section 23(1)(aa) exemption or any other exemption is justified in relation to these.

I now turn to the small amount of material remaining which comprises the comments made on the examination papers by identifiable members of the College's staff . In its submissions to my Office, the College advised that it had sought to apply the exemption on the basis of the applicant's alleged involvement in a number of serious incidents in the College [................ ]  It said that since the review process had begun, further incidents had occurred. It seems to me from the submissions made that the behaviour involved was not confined to verbal or email communication and that individuals felt under threat of violence.  I note that these points were put to the applicant by the Investigator, and that he did not respond. I note however that he made reference in his earlier submission to certain incidents which were evidently connected with his dispute with the College and/or its English Department.  I am making no judgement on the reasons for the applicant's behaviour or on his state of mind at the time; however, I am satisfied that there is evidence of behaviour about which the College is extremely concerned.

In assessing whether there is evidence here of actual risk and whether, on balance, the College's expectation is reasonable, I have found the Queensland Information Commissioner's treatment of a similar exemption to be helpful. In particular, I agree with his view that evidence of verbal abuse would not be sufficient to justify the application of this exemption

(Re: Murphy and Queensland Treasury (1995) 2 Q.A.R. 744).

I accept that the College has legitimate concerns about the release of those parts of the records which, by reason of their identification of staff and their assessment of some the applicant's examinations, are linked to the danger apprehended.  I find that the parts of the records which contain the examiners' signatures, initials and comments qualify for exemption under section 23(1)(aa) in the particular circumstances of this case.

The Public Interest

Section 23(1)(aa) is subject to section 23(3) which provides that consideration must be given to the possibility that the public interest would be better served by the release of the information, rather than by the records being withheld, in the event that one of three conditions is fulfilled.

The first condition is that the record under consideration "discloses that an investigation for the purpose of the enforcement of any law...is not authorised by law or contravenes any law". I do not consider this to be the case. The second condition is that the record contains information concerning "the performance of the functions of a public body whose functions include functions relating to the enforcement of law" and the third condition is that it contains information concerning "the merits or otherwise or the success or otherwise of any programme, scheme or policy of a public body for preventing, detecting or investigating contraventions of the law". The records concerned here do not contain any information that satisfies these conditions. Accordingly, I am satisfied that section 23(3) does not apply to those records.

Section 21(1)(b)

During the course of the review, the College made submissions to this Office claiming exemption from release of the records under Section 21(1)(b) of the FOI Act.  This section provides for the refusal of a record where its release could reasonably be expected to "have a significant, adverse effect on the performance by a public body of any of its functions relating to management (including industrial relations and management of its staff)".  Having considered the matter I am of the view that Section 23(1)(aa) is the most appropriate section of the FOI Act in the circumstances of this review and that it is not necessary for me to consider Section 21(1)(b) further.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the decision of the College and direct the release of records 1 to 5 in full. I find that Section 23(1)(aa) applies to exempt the signatures, initials and comments of the examiners in records 6 to 9 and that redacted versions of these records should be released.  For clarity, the post-it note attached to the front of record 6  is exempt and should not be released; the applicant's examination scripts and the table of marks for each question should be released. 

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such a review must be initiated not later than eight weeks from the date of this letter.

Emily O'Reilly

Information Commissioner

18 December 2009