Coughlan v Queensland Police Service [2023] QCATA 112

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Coughlan v Queensland Police Service [2023] QCATA 112 PARTIES: EAMONN CHARLES COUGHLAN (applicant) v QUEENSLAND POLICE SERVICE (respondent) APPLICATION NO/S: APL324-21 MATTER TYPE: Appeals DELIVERED ON: 12 September 2023 HEARING DATE: 2 September 2022 HEARD AT: Brisbane DECISION OF: Hon Colin Forrest SC, Judicial Member ORDERS: The appeal is dismissed. CATCHWORDS: ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – RIGHT OF ACCESS – GROUNDS FOR REFUSAL – where the applicant was concerned that two police officers misused his personal information in a police database – where he sought information on accesses to his personal information in the database under Information Privacy Act 2009 (Qld) (IP Act) – where the respondent and, on external review, the Office of the Information Commissioner (OIC), refused disclosure – where the applicant appealed the OIC’s decision – whether the OIC correctly exempted the information from disclosure as “a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law” under the Right to Information Act 2009 (Qld) – whether the OIC breached natural justice by not going beyond general considerations to determine if the methods or procedures were lawful – whether pro-disclosure bias under the IP Act required a finding that such methods or procedures were lawful Information Privacy Act 2009 (Qld), s 58, s 59, s 132 Right to Information Act 2009 (Qld), Sch 3, s 10(1), s 10(2) Commissioner of the Police Service v Shelton & Anor [2020] QCA 96, followed House v R (1936) 55 CLR 499, cited -- 1 of 16 -- 2 APPEARANCES & REPRESENTATION: Applicant: Hon D Wells, counsel instructed by Robert Bax & Associates Respondent: J Dillon, counsel instructed by the Queensland Police Service Legal Unit REASONS FOR DECISION [1] The applicant appeals against a decision of the Office of the Information Commissioner (“the OIC”) permitting the Queensland Police Service (“the QPS”) to refuse to provide certain documents to him pursuant to the Information Privacy Act 2009 (Qld) (“the IP Act”). FACTUAL BACKGROUND [2] In 2020, the applicant applied to the QPS under the IP Act to access certain information about himself. The QPS did not make a decision within the required statutory timeframe. Accordingly, the legislation deemed that to be a decision refusing access to the requested information.1 The applicant then applied to the OIC for an external review of the deemed decision. In that review, the OIC granted the QPS further time to make a decision in respect of the application. In September 2021, the QPS decided to disclose some of the information requested by the applicant, but refused access to information appearing on two hundred and seventy-two pages of documents. The QPS refused to deal with two parts of the application, for what is said to be “various grounds”.2 [3] The applicant then applied again to the OIC for external review of the QPS decision. During that review, the applicant only sought external review of the QPS refusal to deal with the part of his application which sought information about access to his personal information within the QPS QPRIME system for the period from 18 July 2015 to 1 May 2020. [4] QPRIME is the Queensland Police Records and Information Management Exchange. It has been described in the following way by Daubney J in a previous appeal decision of this Tribunal:- ... a database kept by the…QPS of information obtained by the QPS in its law enforcement functions. It is a dynamic and constantly updated central record for the QPS.3 [5] There, Daubney J went on:- The QPS would describe it as an intelligence tool, which allows police to record information about criminal activity, the circumstances in which criminal activity is likely to occur or has occurred, the identity of those involved or suspected to be involved in criminal activities and the identities of their associates. But it also records information obtained by police officers in the course of their investigations and records criminal intelligence which has been obtained. The 1 Section 66(1) of the IP Act. 2 Decision of the OIC dated 27 October 2021 at [4]. 3 SJN v Office of the Information Commissioner & Anor [2019] QCATA 115 per Daubney J, President, at [1]. -- 2 of 16 -- 3 QPRIME system also maintains activity reports, whereby a record is kept of the access to particular QPRIME records by, amongst others, serving police officers. SOME DEEPER FACTUAL BACKGROUND [6] The applicant was convicted of certain offences relating to an event that occurred in 2015. He appealed against his convictions. On 12 February 2020, the High Court unanimously quashed his convictions and ordered verdicts of acquittal be entered on each count.4 [7] In the decision of the OIC under appeal, it is said that during the review, the applicant confirmed that he is primarily concerned that two officers may have misused his personal information within QPRIME as part of an “unlawful attempt to hurt him by means other than bona fide law enforcement”.5 That this is the applicant’s primary concern was also clear to me after reading the written submissions and hearing his counsel’s oral submissions in this appeal. THE RELEVANT LEGISLATION [8] The OIC, in its decision, set out the relevant law. Provisions of the IP Act, the Human Rights Act 2019 (Qld) (“the HR Act”), and the Right to Information Act 2009 (Qld) (“the RTI Act”) were referred to. I consider it appropriate to set out some of the provisions of those Acts in this decision. [9] Section 3 of the IP Act sets out the Object of that Act. It is as follows:- (1) The primary object of the Act is to provide for – (a) the fair collection and handling in the public sector environment of personal information; and (b) a right of access to, and amendment of, personal information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give the access or allow the information to be amended. (2) The Act must be applied and interpreted to further the primary object. [10] Section 12 of the IP Act defines the term “personal information”. It means:- ...information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. [11] Section 40(1)(a) of the IP Act provides that, subject to the IP Act, an individual has a right to be given access under the IP Act to documents of an agency to the extent they contain the individual’s personal information. [12] Chapter 3 Part 2 of the IP Act contains the legislative provisions by which an individual can make an access application to an agency, i.e. an application to access a document to the extent it contains the individual’s personal information. Chapter 3 Part 3 of the IP Act sets out the provisions which prescribe procedural matters for dealing with an access application. Chapter 3 Part 4 details circumstances in which an agency may refuse to deal with an access application. Importantly though, Chapter 3 Part 4 4 Coughlan v R (2020) 377 ALR 1 (pp 1–15) per Kiefel CJ, Bell, Gageler, Keane and Edelman JJ. 5 OIC Decision at [8] – quoting from the applicant’s submissions of 11 July 2021. -- 3 of 16 -- 4 commences with an express statement of legislative intent that there be a pro- disclosure bias in dealing with applications. Section 58 is as follows:- Pro-disclosure bias and pro-amendment bias in deciding to deal with applications (1) It is the Parliament’s intention that if an access or amendment application is made to an agency or Minister, the agency or Minister should deal with the application unless this would not be in the public interest. (2) Sections 59, 60 and 62 state the only circumstances in which the Parliament considers it would not be in the public interest to deal with an access application. (3) Section 60 states the only circumstances in which the Parliament considers it would not be in the public interest to deal with an amendment application. (4) However, it is the Parliament’s intention that this Act should be administered with a pro-disclosure bias and pro-amendment bias and an agency or Minister may deal with an access or amendment application even if this Act provides that the agency or Minister may refuse to deal with the application. [13] Section 59 of the IP Act is a key section in terms of this appeal. It refers to “exempt information” and says:- (1) This section applies if – (a) an access application is expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter; and (b) it appears to the agency or Minister that all of the documents to which the application relates are comprised of exempt information. (2) The agency or Minister may refuse to deal with the application without having identified any or all of the documents. [14] Section 64(1) of the IP Act expresses the intent of Parliament that if an access application is made, the relevant agency or Minister “should decide to give access to the document unless giving access would, on balance, be contrary to the public interest”. Section 64(2) then provides:- (2) The purpose of this part is to help the agency or Minister decide whether giving access would, on balance, be contrary to the public interest by – (a) setting out in the Right to Information Act, schedule 3, as applied under this Act, types of information the disclosure of which the Parliament has considered would, on balance, be contrary to the public interest; and (b) setting out in the Right to Information Act, section 49, as applied under this Act, the steps, and in schedule 4 of that Act, as applied under this Act, factors, for deciding, for other types of information, whether disclosure would, on balance, be contrary to the public interest. [15] Section 67 of the IP Act provides grounds on which access to documents may be refused: It says:- -- 4 of 16 -- 5 (1) An agency may refuse access to a document of the agency and a Minister may refuse access to a document of the Minister in the same way and to the same extent the agency or minister could refuse access to the document under the Right to Information Act, section 47 were the document to be the subject of an access application under that Act. Note – See the Right to Information Act, section 47 (Grounds on which access may be refused). Generally, the grounds for refusal relate to issues concerning exempt information, the public interest, a child or applicant’s best interests, documents being non-existent or unable to be located and other availability of access to documents. However, see also section 4 (Act not intended to prevent other accessing or amendment of personal information) of this Act. (2) It is the Parliament’s intention that – (a) the grounds on which access may be refused under the Right to Information Act, as applied under this Act, are to be interpreted narrowly; and (b) an agency or Minister may give access to a document even if a ground on which access may be refused applies. [16] Section 69 of the IP Act then provides:- (1) Nothing in this Act requires an agency or Minister to give information as to the existence or non-existence of a document containing prescribed information. (2) For an access application for a document containing prescribed information, the agency or Minster may give prescribed written notice that does not include the details mentioned in section 199(a) or (b) but, by way of a decision, states that – (a) the agency or Minister neither confirms nor denies the existence of that type of document as a document of the agency or a document of the Minister; but (b) assuming the existence of the document, it would be a document to which access would be refused under section 67 to the extent it comprised prescribed information. (3) To avoid any doubt, it is declared that a decision that states the matters mentioned in subsection (2) is a decision refusing access to a document under section 67. Note – A decision refusing access to a document under section 67 is a reviewable decision – see schedule 5, definition reviewable decision, paragraph (f). [17] A number of provisions of the RTI Act are referred to in the IP Act. The IP Act is the Act that provides individuals with rights to seek access to their personal information. The RTI Act provides applicants with a general right of access to information that is held by government unless it is contrary to the public interest to give that access. [18] Section 47 of the RTI Act sets out the grounds on which access to information may be refused. It says:- (1) This section sets out grounds on which access may be refused. -- 5 of 16 -- 6 (2) It is the Parliament’s intention that – (a) the grounds are to be interpreted narrowly; and (b) an agency or Minister may give access to a document even if a ground on which access may be refused applies. (3) On an application, an agency may refuse access to a document of the agency and a Minister may refuse access to a document of the Minister – (a) to the extent the document comprises exempt information under section 48; or (b) to the extent the document comprises information the disclosure of which would, on balance, be contrary to the public interest under section 49; [19] Under the heading “Exempt information”, section 48 of the RTI Act provides as follows:- (1) If an access application is made to an agency or Minister for a document, the agency or Minister must decide to give access to the document unless disclosure would, on balance, be contrary to the public interest. (2) Schedule 3 sets out the types of information the disclosure of which the Parliament has considered would, on balance, be contrary to the public interest. (3) However, despite an agency or Minister being able, under section 47(3)(a), to refuse access to all or part of a document, the agency or Minister may decide to give access. (4) In this Act – exempt information means the information that is exempt information under schedule 3. [20] Schedule 3 to the RTI Act sets out a list of “exempt information” for the purposes of s 48. Relevant to this appeal is section 10(1)(f) of schedule 3. It says:- 10 Law enforcement or public safety information (1) Information is exempt information if its disclosure could reasonably be expected to – ... (f) prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law (including revenue law); ... [21] Also relevant to this appeal is subsection 2 of schedule 3 section 10 of the RTI Act. It says:- (2) However, information is not exempt information under subsection (1) if it consists of:- (a) matter revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law; or… -- 6 of 16 -- 7 THE REASONING OF THE OIC [22] In her written reasons, the OIC decision maker firstly acknowledged that the agency which made the decision has the onus, on an external review, of establishing that the decision was justified or that the OIC should give a decision adverse to the applicant. [23] She then went on to determine that the first limb of section 59 of the IP Act was met. That was done by examining the terms of the access application. The OIC decision maker said she was satisfied that the part of the application the applicant was pressing related to “all documents that contain information of a stated kind, that is information about access to the applicant’s personal information within the QPRIME database”6 and, therefore, she was satisfied that the first limb of section 59 of the IP Act was satisfied i.e. that the access application was expressed to relate to all documents of a stated class that contain information of a stated kind or that relate to a stated subject matter. [24] The decision then referred to the QPS position that the documents to which the application related are comprised of exempt information under the ‘method or procedure’ exemption provided for in schedule 3 s 10(1)(f) set out above. The OIC decision maker then pointed out that in assessing whether the exemption applies she considered a copy of the documents that had been produced by the QPS in response to the application, though they had not been disclosed to the applicant. Significantly, the OIC decision maker said this is what she was required to do, having regard to the Queensland Court of Appeal’s decision in Commissioner of the Police Service v Shelton & Anor [2020] QCA 96 (“Shelton”). [25] The OIC decision maker confirmed that the documents that had been produced pursuant to the application are all produced from QPRIME. The decision maker confirmed that QPRIME generally reveals the amount of activity and the number of occasions on which QPS officers have accessed QPRIME in relation to an individual (such as the applicant in this appeal), the badge number of the inquiring officer and that it includes a technical log of interactions within the QPRIME database. [26] The decision maker then went on to consider and reject the applicant’s submission that if there is no extant allegation by police against him, then QPRIME is not being used, in such circumstances, as a ‘method or procedure for preventing, detecting, investigating contraventions, or possible contraventions of the law’ such that the statutory exemption is not available to the QPS.7 Instead, the decision maker expressly stated that she remained satisfied that QPRIME is an integral part of QPS’s lawful methods and procedures for preventing, detecting or investigating contraventions, or possible contraventions of the law, even though there had been occasions, in the past, where the QPRIME database has been accessed without authority.8 She also expressed satisfaction that disclosing a QPRIME activity report (including the particular report that responded to this application) “which shows when and how often QPS officers have accessed the QPRIME database in relation to an individual, could reasonably be expected to prejudice these QPS methods and procedures because it would enable an individual (in this case, the applicant) to deduce the level of surveillance or investigation they may, or may not, be under.” 6 OIC Decision at [19]. 7 OIC Decision at [24]–[25]. 8 OIC Decision at [25]. -- 7 of 16 -- 8 [27] The decision maker then considered a submission made for the applicant that the report will reveal that the activities of police have exceeded the boundaries set by law. She also considered the QPS submission that the information in the report does not contain matter that would reveal that the scope of a law enforcement investigation has exceeded the limits imposed by law. After this, the decision maker specifically observed that she had:- “considered the applicant’s submissions that raise concerns about particular officers, and the misuse of information by specific officers in unrelated matters.” [28] She went on to say:- “I have carefully considered the Report, and I do not consider that it consists of matter revealing that the scope of a law enforcement investigation has exceeded imposed legal limits. … I have considered the Report, and it is not apparent that legitimate investigatory bounds have been exceeded in this case. The Report itself does not consist of matter revealing this. I understand the applicant considers the Report may be comprised of a piece of evidence – when correlated with other evidence – that will show wrongdoing, but this is not the test I am required to apply under the RTI Act.” [29] The decision maker went on to point out and address what she considered was the applicant’s concerns about the OIC’s interpretation of the legislation. She included extracts of the written submissions for the applicant in which it was submitted that the pro-disclosure bias with which an application is to be read necessitates the asking of the question whether there is any evidence that reveals that an investigation has not exceeded imposed legal limits. (my emphasis) The decision maker observed that she did not accept that construction of the legislation, saying:- “The pro-disclosure bias, and the onus on QPS in this matter, does not require QPS to prove that an investigation involving the applicant has not exceeded legal limits. Rather, schedule 3 section 10(2) of the RTI Act requires that I consider whether the Report itself consists of matter revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law. This is a question of fact, which I have determined by independently considering the content of the Report (which was provided to OIC by QPS) together with QPS’ decision, and submissions received from the parties. After considering this information, I consider QPS has met the onus, and I am satisfied that the Report does not consist of matter that reveals that the scope of a law enforcement investigation has exceeded the limits imposed by law.” [30] The decision maker determined “that section 59 of the IP Act applies to Part B of the application, as it is expressed to relate to all documents that contain information of a stated kind and all of the documents to which Part B of the application relates are comprised of exempt information under the Method or Procedure Exemption.” The decision maker used that conclusion to find that the QPS may refuse to deal with Part B of the application under section 59 of the IP Act. So, the applicant’s review of the QPS decision was unsuccessful. -- 8 of 16 -- 9 THE APPLICANT’S APPEAL [31] Appeals against review decisions of the OIC may only be on a question of law.9 This is not a merits review. It is not for this Tribunal to decide that it would, if it was in the QPS’ position or the OIC’s position, release the information to the applicant. The applicant’s appeal is principally based on the ground that the OIC decision maker erred in her interpretation and application of section 59(1)(b) of the IP Act and schedule 3 section 10(1)(f) and section 10(2)(a) of the RTI Act in finding that the documents comprised exempt information that did not have to be disclosed to the applicant. [32] The applicant challenges the OIC decision maker’s decision on several grounds. Those include challenges to the OIC decision maker’s findings that the QPRIME data base “is a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law” (my emphasis) and that disclosing the QPRIME activity report responsive to Part B of the application in this case “could reasonably be expected to prejudice QPS methods and procedures because it would enable an [the applicant] to deduce the level of surveillance or investigation [he] may, or may not, be under”. In respect of the first of those challenges, the applicant submits the decision maker took an irrelevant consideration into account. In respect of the second of those, the submission is that she failed to take relevant considerations into account. Further, in respect of the second of those findings, the applicant submits that the decision maker has applied a general rule without regard to the merits of this particular case. [33] For the QPS, it is submitted that the decision of the Court of Appeal in Shelton is on point in this case and actually dispositive of this appeal against the applicant. In that decision, the Court of Appeal considered and upheld a QPS appeal against a decision of this Tribunal that had upheld an applicant’s appeal from the OIC in not too dissimilar circumstances to the ones in this case. That case authoritatively determined, I am satisfied, the way in which the same relevant statutory provisions that are being considered in this case are to be interpreted and applied. [34] Indeed, as I have observed above, in her reasons, the OIC decision maker in this case referred to, cited and followed the approach that the Court of Appeal had set out was the correct approach in applying the statutory provisions when considering right to information applications just like this one. [35] Courageously, in my respectful view, counsel for the applicant in this appeal submitted that Shelton was a decision “based on very different facts from this matter” and sought to distinguish it. In relation to the relevant facts, I respectfully do not accept that submission. Just like this case, Shelton involved an application by a person for disclosure of a QPRIME activity report that might reveal the identity of police officers who accessed the database in respect of that applicant, as well as the dates and frequency with which they accessed it. I consider that the decision of the Court of Appeal in Shelton is indeed binding on me when I consider whether or not the OIC decision maker in this case interpreted and applied the relevant statutory provisions correctly. [36] In my view, particularly relevant to the determination of the applicant’s arguments as outlined in [32] hereof, is the reasoning of Holmes CJ (with which Fraser JA and Boddice J agreed) at [48] in Shelton, where her Honour said:- 9 The IP Act, s 132(2). -- 9 of 16 -- 10 ... the inference I draw from s 59(2) [of the IP Act] is that it is permissible (but not obligatory), in considering sch 3 s 10(1) factors, to draw conclusions as to the effects of disclosure by reference to the nature of information that documents of the kind to which access is sought usually contain, without reference to the particular content of the documents in question. [37] Following on from that, her Honour went on to say, in [50]:- ... it was not incumbent on the [OIC decision maker], in considering whether the information sought fell within sch 3 s 10(1), to address the actual content of the document in which it was to be found … If the Commissioner was satisfied that disclosure of the kind of information ordinarily to be found in activity reports could reasonably be expected to prejudice lawful police methods, she was entitled to take that view in relation to the information which the first respondent’s application related, to be found in the activity report concerning her. Her finding, which was made in respect of that activity report, indicates that she did. [38] I respectfully accept that the OIC decision maker’s finding in this case, in respect of the QPRIME activity report produced by QPS in response to the applicant’s application, indicates that she did in this case, as well. [39] For the applicant, much was made of the fact that the OIC decision maker found that the QPRIME database “is a lawful method or procedure for preventing, detecting investigating or dealing with a contravention or possible contravention of the law.” [40] In her decision, the OIC decision maker referred to and accepted what the QPS had said in its decision under review. That was:- “When dealing with contraventions, or possible contraventions, of the law, QPS officers record information about individuals on QPRIME, and such information may relate to intelligence or surveillance operations, or other investigations. Further, QPS officers also access information recorded in QPRIME both during and after such activities, for example, to obtain background information and inform decisions.” (my emphasis) [41] The OIC decision maker observed, in coming to her finding, that even though there have been instances where QPRIME has been “accessed without authority,” she was nonetheless satisfied that the QPRIME database “is a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law.” [42] Against that, the applicant submitted that a database cannot be a “method or procedure.” That might be correct, and perhaps that precise use of language by the OIC decision maker was infelicitous, but I am satisfied that what she clearly found was that the use of the database, by data entry into it, by accessing and considering that data, by reviewing it and updating that data, is a “method or a procedure” of the QPS used in “preventing, detecting, investigating or dealing with a contravention or possible contravention of the law.” [43] I do not accept the applicant’s submission that the way in which the OIC decision maker referred to QPRIME as a “method or procedure” demonstrates error by taking an irrelevant consideration into account. I do not consider that the applicant has successfully challenged this part of the OIC decision maker’s findings. [44] The applicant’s next challenge, as outlined in [32] above, asserted that the OIC decision maker had not taken relevant considerations into account when finding that -- 10 of 16 -- 11 the documents were comprised of exempt information falling within Sch 3, s 10(1)(f) of the RTI Act. It was effectively submitted that the OIC decision maker was required by the legislation to make findings, in the very particular circumstances of this case, of actual prejudice, that the “method or procedure” was being used lawfully, and that it was being used to address a contravention or possible contravention of the law by the applicant in order to be satisfied that the documents were comprised of exempt information within Sch 3, s 10(1)(f). [45] However, I respectfully reject that submission as being contrary to authority, namely the Court of Appeal’s decision in Shelton. In particular, I refer again to the passage from [48] of the judgment of the former Chief Justice quoted in [36] above, in which her Honour specifically said it is permissible to draw conclusions as to the effects of disclosure by reference to the nature of information that documents of the kind sought usually contain. Her Honour expressly eschewed the necessity (though she did not say it must be avoided) to refer to and make findings about the particular content of the documents in question in determining the Sch 3, s 10(1)(f) part of the process. Again, her Honour confirmed that when she later said, in [53]:- “The Commissioner, was in my view, entitled to apply general considerations in considering whether the information sought by the first respondent’s application fell within sch 3 s 10(1)(f), and there was no error of law in that approach.” [46] The OIC decision maker found that using the QPRIME database is a “lawful method or procedure.” I do not find that she was required to look through every document of the type sought to satisfy herself that each entry to the database evidenced in that bundle of documents was lawful. She said she was satisfied that disclosing the Report that was responsive to the relevant part of this application could “reasonably be expected to prejudice these QPS methods and procedures because it would enable [the applicant] to deduce the level of surveillance or investigation [he] may, or may not, be under.”10 Clearly, she considered this question in the general sense, but also in the circumstances of this particular case. She then identified the prejudice that she considered could “reasonably be expected” to be caused. In my view, she also correctly dealt with the submission that she had to satisfy herself that all entries in the database related to an extant allegation of a contravention or possible contravention of the law against the applicant. With respect to counsel for the applicant, I do not accept that is what the legislation requires of a decision maker in order to determine whether the documents sought comprise “exempt information.” [47] The applicant’s third challenge set out in [32] above is, in my view, disposed of in the same way as the challenge just dealt with. The submission that the OIC decision maker applied a rule or policy without regard to the merits of the particular case can be rejected for the reasons I have already given. As observed, the application of general considerations in determining whether the information sought fell within Sch 3, s 10(1)(f) was unanimously approved by the Court of Appeal in Shelton. In any event, as I have already pointed out, the OIC decision maker went further and expressly stated that her findings were made after considering the information sought in this particular case, as well. [48] The applicant makes another challenge to the OIC decision maker’s decision. He effectively submits that the finding that disclosing the QPRIME activity report in this case would enable the applicant to deduce the level of surveillance or investigation 10 OIC Decision at [26]. -- 11 of 16 -- 12 that he may or may not be under, thus constituting the requisite prejudice that might reasonably be expected to be caused to QPS methods or procedures, is not a reasonable one, not being based on logically probative material. As such, he submits, it cannot stand. [49] The submission, as I understand it, seems to be founded on an assertion that it is a fact that police have unlawfully, and for inappropriate purposes, accessed QPRIME in the past, indeed, even in respect of the applicant’s wife in connection with this matter. The submission is made that as the applicant seeks the information he does, so that he might determine by whom and when QPRIME has been unlawfully accessed in respect of him, it is illogical and unreasonable to deny him that opportunity by finding that lawful police methods might reasonably be expected to be prejudiced because disclosure might reveal to him the level of surveillance or investigation that he may or may not be under. With respect. I do not accept that such a finding of potential prejudice is illogical and unreasonable, such as to constitute an obvious appealable error in the exercise of discretion on the part of the OIC decision maker, as is required.11 The OIC decision maker considered what the QPRIME database is used for and how it used. She made findings of the prejudice that might be reasonably expected to be caused from disclosure of the type of documents generally and also, after considering them, from the particular documents sought in this case. As was submitted for the respondent, I am satisfied that the OIC decision maker’s decision was not infected with unreasonableness. Consequently, this particular challenge also fails. [50] A further challenge by the applicant is directed at some action of the OIC in the lead up to the decision. The applicant asserts he was denied natural justice. [51] Relevantly, in progressing the applicant’s review application towards conclusion, an officer of the OIC wrote an email to the QPS on 15 April, 2021, asking for QPS assistance in “progressing 3 external reviews” in which the OIC had been waiting for some QPS responses for “several months.” One of the three matters was this one. Specifically included in that email was a request for the following in respect of this matter:- • A copy of the requested QPRIME Activity Report; and • A submission addressing the applicant’s contention that schedule 3, section 10(2)(a) of the RTI Act applies to information within that report [52] QPS wrote back on 10 May 2021, relevantly saying:- I have uploaded the QPRIME activity report today via Quatrix. In regard to submissions on whether schedule 3, section 10(2)(a) of the RTI Act applies to information within that report, I respectfully submit that the information in the activity report does not contain matter that would reveal that the scope of a law enforcement investigation has exceeded the limits imposed by law. I understand that the applicant had his conviction overturned by the High Court, but to the best of my knowledge that result was not due to the investigation exceeding any limits imposed by law. [53] As simple and, quite frankly, banal as that submission clearly is, for a reason not known to me, an actual copy of the email “submission” was not immediately made available to the applicant. Nevertheless, when the OIC wrote to the applicant just a 11 House v R (1936) 55 CLR 499. -- 12 of 16 -- 13 few weeks later, on 31 May 2021, expressing a preliminary view of the matter (as the OIC did as part of the informal resolution process), the applicant was informed that the QPS RTI Unit had made a direct submission to OIC “specifically confirming that the information in the activity report does not contain matter that would reveal that the scope of a law enforcement investigation has exceeded the limits imposed by law.” [54] In addition to that, the OIC’s letter to the applicant also referred to the applicant’s submission in respect of the Sch 3, s 10(2)(a) point, namely:- …you submit that: • the report, when read as a whole “will indicate that the activities of police have exceeded the boundaries set by law, including but not confined to matters set out in section 92A of the Criminal Code,” and • you have concerns that a particular officer has used QPRIME as a mechanism ‘to maintain police interest in [you] long after [you were] acquitted, and in circumstances in which [you] have never in [your] life been convicted of a criminal offence’. [55] The OIC preliminary view conveyed to the applicant was the same as the final decision. In that preliminary view, the applicant was informed that the OIC had “carefully considered the QPRIME Activity Report responsive to [his] application in conjunction with [the applicant’s] submissions.” The applicant was informed that the OIC did not consider that the contents of the Activity Report “reveals that the scope of a law enforcement investigation has exceeded imposed legal limits.” In other words, the exception provided for in Sch 3, s 10(2)(a) was not activated. [56] The applicant contested that preliminary view and that led to the OIC decision that is now under challenge. The QPS submission was again referred to in the OIC decision maker’s decision, with the second part of the first sentence of the second paragraph quoted in [52] above being quoted. The applicant’s submissions referred to in [54] above were also referred to. [57] The applicant submits that in these circumstances just outlined, he was “not able to make submissions with respect to whatever, the submission contains.” He points out, and no issue is taken with this, that after he became aware of the fact that a “submission” existed, he requested a copy of it, but his request was refused. He submits that the failure to make him aware of the submission and provide him with it before the OIC decided the matter was a breach of natural justice and, to the extent that she relied on it, the OIC decision maker “evinced manifest bias.” [58] For the respondent, it is submitted that as the substance of the QPS submission was conveyed to the applicant by the OIC in the letter containing the preliminary view, the applicant has not been “materially disadvantaged in any significant way” nor been denied natural justice. [59] Whilst I consider that ‘best practice’ on the part of the OIC would be to have provided the applicant with an actual copy of that email that contained the QPS “submission” on the point and invited him to comment thereon before forming the preliminary view, I accept that the applicant was indeed appropriately informed of the substance of that QPS submission, as banal as it was, in that preliminary view. That was well before the final decision was made. In my view, it cannot really be argued that he was not informed of the argument or point made against him by the QPS on that point, simple as it was, or that he was not given an appropriate opportunity to answer it, most -- 13 of 16 -- 14 importantly, before the OIC final decision was made. He clearly made submissions contrary to the QPS submission both before the preliminary view and the making of the final decision. [60] In addition, the OIC did, as Shelton confirmed she was required to do, independently consider the content of the QPRIME Activity Report produced to her by the QPS and determined for herself that the Report “does not consist of matter that reveals the scope of a law enforcement investigation has exceeded the limits imposed by law.”12 That was a finding of fact. The appellant has not demonstrated that the finding was not open to her, though I acknowledge the difficulty of him doing that when he is not given the same access to the very documents the OIC decision maker considered to form that opinion. Nevertheless, his submissions on the point no doubt alerted the OIC decision maker to the sort of things to be alert for and to consider. She said she looked at and considered the documents. She then made her finding. I cannot go behind her finding of fact on that. I do not consider that the applicant succeeds on this natural justice challenge. [61] Further, on this point, the applicant submits that “to the extent that [the OIC decision maker] relied on the part of the police submission which she did disclose…. She evinced manifest bias and breached the nemo debet judex in propria sua causa rule.” [62] In [27] of the OIC decision, when turning to consider Sch 3, s 10(2)(a), the OIC decision maker referred to and set out the applicant’s concerns and his submissions, quoting extensively from them, including, particularly, the submission:- A refusal to disclose runs the risk of covering up (possibly unobvious) unlawful conduct by persons who have a record for precisely such conduct. [63] In [28], the OIC decision maker set out the simple “submission” of the QPS that is the subject of this part of the applicant’s challenge. She then went on to point out that she had considered the Activity Report, particularly in the light of a passage from Shelton which she quoted. It was:- … it may well be apparent to the Queensland Police Service on the face of an activity report, from the identities of those who have been obtaining access or the frequency of access, that legitimate investigatory bounds have been exceeded. (I would note, however, that it does not follow that every instance of unauthorised access will be evidence that a law enforcement investigation has gone beyond legal limits, as opposed to being the improper conduct of an individual.)13 [64] The OIC decision maker did not say that she accepted the submission of the QPS, nor did she say what weight, if any, she gave it. What is clear from her reasons, is that, acutely conscious of the applicant’s concerns and submissions, aware of the QPS submission and having regard to those quoted words from Shelton, she considered the QPRIME Activity Report in question to determine the issue. That is what she was required to do, in accord with Shelton. The OIC decision maker then said she could not see anything in the Activity Report that revealed that “legitimate investigatory bounds have been exceeded in this case.”14 She even went on to point out that the test is not met if, by putting the material that does not itself demonstrate those bounds have 12 OIC Decision at [31]. 13 Shelton per Holmes CJ at [46]. 14 OIC Decision at [30]. -- 14 of 16 -- 15 been exceeded together with other material in the possession of the applicant already, the applicant might potentially prove those bounds have been exceeded. [65] In these circumstances, I do not accept the applicant has successfully demonstrated that the OIC decision maker has evinced manifest bias or breached the nemo debet rule or that she did not decide the point on its merits. [66] The applicant makes a further challenge to the decision under appeal. He submits that in determining the point just discussed, namely that there was nothing in the QPRIME Activity Report from which it was apparent that the scope of a law enforcement investigation has exceeded the limits imposed by law, the OIC decision maker failed to proceed according to law, that is according to the pro-disclosure bias spelled out in the relevant legislative scheme. [67] For the applicant, it is submitted that the OIC decision maker has erred in finding that access to the documents can be refused in this case relying on Sch 3, s 10(1)(f) because it is not “apparent to the decision maker that legitimate investigatory boundaries have been exceeded.” The applicant submitted that the test requires more than that, namely that it must be “affirmatively apparent” those boundaries have not been exceeded (my emphasis). The submission goes further. It is submitted that the requirement for it to be “affirmatively apparent” that the boundaries have not been exceeded requires the decision maker to “actively” enquire into the matter. [68] It is further submitted that because there is no finding that the conduct of police who accessed the QPRIME database was lawful or that they were “at all points dealing with a contravention or possible contravention of the law” then, prima facie, the pro- disclosure bias of the scheme was not observed. [69] In response, for the respondent, it is submitted that such an interpretation of the relevant statutory provisions is not consistent with the interpretation set out by the Court of Appeal in Shelton. In [39] of Shelton, her Honour Holmes CJ pointed out the significance of the manifested legislative intent to carve out public interest exceptions to the scheme, one of which is the exception for “exempt information”. Her Honour also pointed out that the pro-disclosure bias relates to the exercise of a choice to disclose, notwithstanding an entitlement to refuse to deal with an application. Her Honour said:- It does not bear directly on whether the entitlement exists in the first instance, and the mechanics of how that is determined. [70] In my respectful view, expecting the OIC decision maker to do more than she did in considering the content of the documents contained in the Activity Report as to whether that content revealed that the scope of a law enforcement investigation has exceeded the limits imposed by law such as to take it outside the definition of “exempt information” would be putting a gloss on the legislative provisions that the Court of Appeal did not consider should be there. In accord with what was said in [51] of Shelton, the OIC decision maker had to consider the material herself, which she did in this case, and was entitled to make the finding of fact that it did not disclose that any law enforcement investigation had exceeded proper bounds. That was the statutory remit. No more was required. The applicant’s challenge on this ground is also unsuccessful. -- 15 of 16 -- 16 [71] The applicant makes one final challenge to the OIC decision. He refers specifically to the following passage at [31] of the decision (already set out in these reasons at [29] above) and submits it demonstrates an error of law. The OIC decision maker said:- The pro-disclosure bias, and the onus on QPS in this matter, does not require QPS to prove that an investigation involving the applicant has not exceeded legal limits. Rather, schedule 3, section 10(2) of the RTI Act requires that I consider whether the Report itself consists of matter revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law. This is a question of fact … [72] Her decision reveals that this was written directly after referring to a submission made by the applicant before her determination, but clearly after she had sent the applicant her preliminary view. That submission was:- We very respectfully indeed submit that you are not asking yourself the correct statutory question. We very respectfully submit that the pro disclosure bias with which your Act … requires you to read an application, necessitated a different question: namely whether there is any evidence before you that reveals that an investigation has not exceeded imposed legal limits. And we submit that you are statutorily obliged to ask yourself that question, and to do so in the context of the very unusual circumstances of this case. [73] As the respondent pointed out in submissions, in [17] of the decision, the OIC decision maker correctly set out the onus that was on the QPS on the external review. I have already mentioned that in [22] above. Indeed, the OIC decision maker referred correctly to s 100 of the IP Act, the section the applicant submits she has failed to apply properly in [31] of her decision. She also determined, in the last part of [31], that the QPS had met the onus, after having said she had considered the contents of the Activity Report the applicant wants disclosed. [74] The part of [31] that the applicant is challenging in this last point is, I am satisfied, effectively the same challenge as the last one I dealt with, namely, that the OIC decision maker erred in her determination that the information was not exempt pursuant to the second part of the Sch 3, s 10 determination by not satisfying herself that there is evidence that reveals that an investigation has not exceeded limits imposed by law (my emphasis). The applicant seeks the same outcome as he did in that challenge by submitting that the onus that s 100 of the IP Act puts on the QPS amounts to an onus to prove that an investigation has not exceeded those limits. Again, interpreting the legislation that way would, in my respectful view, be putting a gloss on it that it has not been found to contain. Following Shelton, the onus is simply on the QPS to establish that the decision that the Activity Report comprised “exempt information” was correct. That onus is met, in so far as the Sch 3, s 10(2)(a) part of the test is concerned, by providing the information to the OIC that satisfies or persuades the OIC decision maker that it does not reveal that the scope of a law enforcement investigation has exceeded the limits imposed by law. That is the onus the OIC decision maker said she was satisfied had been met. I do not accept that she asked herself the wrong question such that she erred in law in doing so. [75] Having found that the applicant has been unsuccessful in all of his challenges to the decision, it follows that the appeal must be dismissed and I do so dismiss it, making the Order set out at the outset of these written reasons. -- 16 of 16 --