Part B
The applicant applied for documents relating to the cancellation of his visa; the initial decision to detain him and ongoing decisions to continue to detain him; the issue of a Criminal Justice Stay Certificate and/or any associated criminal justice visa in relation to him; the making of a residency determination under the Migration Act regarding him; and communications with other government agencies concerning him.
During the course of the external review, the Department of Police (also known as Queensland Police Service) agreed to release of some information, and the applicant confirmed that he did not pursue some information.
The Part B decision summarised below considers two folios, i.e. folios 147 and 148. (Please see the separate entry for the Part A decision regarding the other information in issue.)
Section 48(1) – disclosure prohibited by a secrey provision listed in schedule 1
The Information Commissioner found that disclosure of information on folio 147 was prohibited by a provision of an enactment listed in schedule 1 to the Freedom of Information Act 1992 (Qld) (FOI Act) and, accordingly, the information was prima facie exempt under section 48(1) of the FOI Act. As the information did not relate to the personal affairs of the applicant only, the exception to the section 48(1) exemption was not activated. Usually, section 48(1) requires consideration of whether there is a compelling reason in the public interest to disclose the information. However, in the circumstances of this review, a Commonwealth counterpart to the relevant secrecy provision listed in schedule 1 also prohibits disclosure of such information. Given the Commonwealth secrecy provision, the Information Commissioner found that section 109 of the Constitution (Cth) prevented her from applying the public interest test in section 48(1), and there was no alternative but to find that the information was exempt under section 48(1).
Section 44(1) – information concerning personal affairs
The Information Commissioner found that the context of two names on folio 148 revealed that one of the persons referred to was discussed in a document of the Department of Immigration and Citizenship, and the other person referred to had been the subject of police surveillance. On this basis, the Information Commissioner was satisfied that the names comprised personal affairs information for the purpose of section 44(1) of the FOI Act. Public interest considerations such as government accountability and transparency were considered – however, the Information Commissioner concluded that public interest in protecting and maintaining the personal privacy of the two persons should be accorded greater weight, and accordingly the information was exempt under section 44(1) of the FOI Act.
In relation to the remaining information in issue on folio 148, the Information Commissioner considered claims that the information was outside the scope of the applicant’s application and/or exempt from disclosure under sections 38(a), 38(b), 41(1), 42(1)(e), 43(1), 46(1)(b) and/or 48(1). However, the Information Commissioner found that none of these claims was satisfied and accordingly the remaining information in issue on folio 148 should be released to the applicant.
