Application of Section 35 FOI Act

Relevant considerations

1. Would the relevant document, if it existed, contain matter that would be exempt under section 36, 37, 42 or 42A of the FOI Act?

An agency or Minister may neither confirm nor deny the existence of a document if the document would, if it existed, contain matter that would be exempt under sections 36, 37, 42 or 42A of the FOI Act on the basis that the matter is:

• Cabinet matter;¹¹
• Executive Council matter;¹²
• matter relating to law enforcement or public safety;¹³ or
• matter relating to national or State security.¹⁴

If the relevant documents do exist, the Information Commissioner will call for and examine the documents. Where the documents do not exist, the Information Commissioner will consider the application of the relevant exemption to a 'notional document' of the kind requested.¹⁵

Section 35 of the FOI Act should appropriately be used where there is something about the way in which, whether by accident or design, an FOI access is framed which will mean that response by the agency which acknowledges the existence of the particular kind of information is liable to cause the very kinds of detriment one or more of the exemptions in the FOI Act were designed to avoid.¹⁶ Where an FOI access application is framed in reasonably broad terms, the need to invoke section 35 will not ordinarily arise.¹⁷

¹¹ Section 36 of the FOI Act.
¹² Section 37 of the FOI Act.
¹³ Section 42 of the FOI Act.
¹⁴ Section 42A of the FOI Act.
¹⁵EST and Department of Family Services and Aboriginal and Islander Affairs (1995) 2 QAR 645 at paragraph 20.
¹⁶ (Unpublished OIC Preliminary View).
¹⁷ (Unpublished OIC Preliminary View).