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Application of Section 36 FOI Act

Relevant considerations

1. Does the exception in section 36(2) apply to the relevant matter?

Section 36(2) of the FOI Act provides that section 36(1) of the FOI Act does not apply to matter officially published by a decision of Cabinet. Even if a document has already been disclosed publicly or to a limited audience, the relevant matter may still be exempt under section 36 if it has not been officially published.6

In Olsson and Department of Transport,7 the relevant draft Cabinet submission had been made available for inspection (possibly inadvertently) to the applicant. The Information Commissioner considered that prior publication has no effect on the exempt status of a document under section 36(1) of the FOI Act except in the limited circumstances where it has been 'officially published by decision of Cabinet'.8

2. Is the relevant matter a draft of matter mentioned in section 36(1)(a) to (e) or, a copy or extract of matter mentioned in section 36(1)(a) to (f) of the FOI Act?

Section 36(1)(f) provides that draft copies of matter mentioned in section 36(1)(a)-(e) of the FOI Act may also be exempt matter.

Section 36(1)(g) provides that a copy of or extract, or part of a copy of or extract, from matter mentioned in section 36(1)(a)-(f) may also be exempt matter. Section 36(1)(g) requires consideration of the following factors:9

  • matter cannot be exempt exclusively on the basis of section 36(1)(g) of the FOI Act but must first be exempt under one of the other paragraphs of section 36(1) of the FOI Act. (As is also the case with section 36(1)(f) of the FOI Act).
  • it must then be established that the matter claimed is a copy of or extract from, or part of a copy of or extract from, the matter which has been established to be exempt matter under section 36(1)(a)(b)(c)(d)(e) or (f) of the FOI Act.
  • to be a copy of, or extract from exempt matter, the copied or extract matter claimed to be exempt under section 36(1)(g) of the FOI Act must have come into existence after the creation of the exempt matter.

3. Has the relevant matter been submitted to Cabinet?

Matter will be exempt if it has been submitted to Cabinet.10

a) Submit

Section 36(4) of the FOI Act defines 'submit' for the purpose of the provision:

submit matter to Cabinet includes bring the matter to Cabinet, irrespective of the purpose of submitting the matter to Cabinet, the nature of the matter or the way in which Cabinet deals with the matter.

The purpose behind the submission is not relevant.11 Matter will be exempt if there is proof that the relevant document has been prepared, proposed or at any time proposed, for submission to Cabinet.

In Woodyatt and Minister for Corrective Services,12 the Information Commissioner made the following comments (which remain applicable to section 36(1)(a) in its final form):

  • documents submitted to Cabinet merely to provide background information relevant to a proposal contained in a Cabinet submission, and which do not reflect the views of a Minister on the proposal (but which could be valuable for informing any interested member of the general public) will be exempt, even though not initially prepared for the purpose of submission to Cabinet;
  • an agency or Minister seeking to prevent disclosing an embarrassing or damaging document could avoid disclosure by ensuring it is submitted to Cabinet even though it was not initially prepared for the purpose of submission to Cabinet.

4. Has the matter been prepared for submission to Cabinet and is proposed, or has at any time been proposed, by a Minister to be submitted to Cabinet?

Matter is exempt if it is prepared for submission to Cabinet and is proposed, or has at any time been proposed, by a Minister to be submitted to Cabinet.13

While the purpose behind the submission to Cabinet is not relevant,14 in Little; Cantoni and Department of Natural Resources,15 the Information Commissioner considered that some purposive requirement still remains due to the use of the verb 'prepared':16

the test which is most appropriate to the nature of these exemption provisions, one which places a sensible limit on the breadth of the class of documents eligible for exemption while remaining consistent with the natural sense of the words chosen by the legislature, is a 'dominant purpose' test.

The relevant matter will be exempt if the agency or Minister can show the relevant document:

  • has been prepared, proposed or at any time proposed, for submission to Cabinet;
  • is part of the document which contains a reference to that which is prepared, proposed or at any time proposed, for submission to Cabinet; or
  • provides information about a matter prepared or proposed to be considered by Cabinet.

In Olsson and Department of Transport,17 the Information Commissioner considered that the best evidence of a Minister's intention to propose, or at some stage propose, to submit matter to Cabinet is sworn evidence from the relevant Minister. However, where there is no direct evidence it is necessary to consider whether there is sufficient material from which to infer that a Minister had a requisite intention.

5. Has the relevant matter been prepared for the purpose of briefing or the use of a Minister or chief executive in relation to certain information?

Matter will be exempt under section 36(1)(c) of the FOI Act if two requirements are satisfied.

First, it is necessary to establish the documents were prepared for the purpose of briefing, or for use the use of a Minister or chief executive.18

Secondly, the matter must have been prepared 'in relation to a matter':

  • submitted to Cabinet;
  • proposed to be submitted to Cabinet by a Minister; or
  • proposed to be submitted at any time to Cabinet by a Minister.

Accordingly, even if matter has not been submitted or prepared for submission to Cabinet, it may be exempt if it was prepared for briefing or for the use of a Minister or chief executive 'in relation to a matter' submitted to Cabinet, or proposed by a Minister to be submitted to Cabinet.19

In considering the term 'in relation to' in the context of section 37 of the FOI Act, the Acting Assistant Commissioner referred to the High Court decision in O'Grady v Northern Queensland Company Ltd:20

The words 'in relation to', read out of context are wide enough to cover every conceivable connexion. But those words should not be read out of context, which in this case is provided by the [relevant legislation]. What is required is a relevant relationship, having regard to the scope of the Act. Where jurisdiction is dependent upon a relation with some matter or thing, something more than a coincidental or mere connexion – something in the nature of a relevant relationship is necessary …

A sufficient connection or 'relevant relationship' between the relevant matter and the subject matter submitted, or proposed to be submitted, to Cabinet must be established.21

6. Is the relevant matter an official record, or part of an official record, of Cabinet?

Matter will be exempt if is an official record, or forms part of an official record, of Cabinet.22

a) Official record

Section 36(4) of the FOI Act defines 'official record' as follows:

official record, of Cabinet, includes an official record of matters submitted to Cabinet.

This section concerns documents which are or have been created as part of the recording of the business of Cabinet. It will include such matter as Cabinet submissions and decision numbers, as well as the collective minutes of Cabinet.

Collective minutes recorded by the Cabinet Secretary provide a record of:

  • Ministers' attendance and apologies
  • a summary of Cabinet submissions considered
  • confirmation or otherwise of the Minutes of the previous meeting
  • elements of discussion on issues not covered in the text of submissions
  • oral submissions
  • Ministers attending Executive Council
  • confirmation of the next Cabinet meeting and its location
  • a schedule of Cabinet decisions made.

7. Would disclosing the relevant matter disclose any considerations of Cabinet or otherwise prejudice the confidentiality of Cabinet considerations or operations?

Matter will be exempt if disclosing the relevant matter would disclose any considerations of Cabinet or otherwise prejudice the confidentiality of Cabinet considerations or operations.23

a) Consideration

Section 36(4) of the FOI Act relevantly defines 'consideration' to include:

(a) discussion, deliberation, noting (with or without discussion) or decision; and

(b) consideration for any purpose, including, for example, for information or to make a decision.

Section 36(1)(e) of the FOI Act will not apply to a document, the creation of which preceded discussion, deliberation or noting in Cabinet. Matter claimed to be exempt under section 36(1)(e) of the FOI Act must be created contemporaneously with, or subsequent to, active discussion and debate within Cabinet.24

The Information Commissioner considered the following type of matter to be exempt under the current section 36(1)(e) of the FOI Act:25

  • records of general matters;
  • minutes of briefings by a Minister to Departmental officials on a Cabinet decision, which the Minister has to implement that record the substance of deliberations and decisions in order to inform the officials of what they need to know to implement the government's decision;
  • minutes taken by Departmental officers (allowed to attend Cabinet Committee meetings) that record the substance of deliberations and decisions on matters for which they have responsibility to implement

8. Has the Minister signed a certificate stating the relevant matter, if it existed, would be exempt?

Section 36(3) of the FOI Act provides a Minister may sign a certificate to the effect that the relevant matter, if it existed, would be exempt matter under section 36. Reliance of section 36(3) is subject to external review by the Information Commissioner under Part 5 of the FOI Act.

6Beanland and Department of Justice and Attorney-General (1995) 3 QAR 26 at paragraph 65. See also comments about public disclosure in Woodyatt and Minister for Corrective Services (1995) 2 QAR 383 at paragraph 12.
7 Olsson and Department of Transport (1995) 3 QAR 149.
8 Olsson and Department of Transport (1995) 3 QAR 149 at paragraphs 24 - 27.
9 Ryman and Department of Main Roads (1996) 3 QAR 416 at paragraph 5.
10 Section 36(1)(a) of the FOI Act.
11 The decision in Hudson (as agent for Fencray Pty Ltd) and Department of the Premier, Economic and Trade Development (1993) 1 QAR 123, requiring evidence of intention of purpose is now incorrect, see Beanland and Department of Justice and Attorney-General (1995) 3 QAR 26 at paragraph 65.
12 Woodyatt and Minister for Corrective Services (1995) 2 QAR 383 at paragraph 12.
13 Section 36(1)(b) of the FOI Act.
14 Section 36(1)(4) of the FOI Act provides that the purpose of submission is irrelevant.
15Little; Cantoni and Department of Natural Resources (1996) 3 QAR 170.
16 Little; Cantoni and Department of Natural Resources (1996) 3 QAR 170 at paragraph 34.
17 Olsson and Department of Transport (1995) 3 QAR 149, at paragraph 12.
18Little; Cantoni and Department of Natural Resources (1996) 3 QAR 170 at paragraph 28.
19 Lindeberg and Department of Families, Youth & Community Care (1997) 4 QAR 14.
20O'Grady v Northern Queensland Company Ltd (1989) 169 CLR 356 at paragraph 1, referred to in Kelsall and Department of Main Roads (Unreported, Queensland Information Commissioner, 21 August 2008).
21O'Grady v Northern Queensland Company Ltd (1990) 92 ALR 213 at paragraphs 1.
22 Section 36(1)(d) of the FOI Act.
23 Section 36(1)(e) of the FOI Act.
24Ryman and Department of Main Roads (1996) 3 QAR 416 at paragraphs 39 - 40.
25Hudson (as agent for Fencray Pty Ltd) and Department of the Premier, Economic and Trade Development (1993) 1 QAR 123 at paragraph 44.

Last updated: April 18, 2012