Key published decisions applying Section 36 FOI Act

Beanland and Department of Justice and Attorney-General (1995) 3 QAR 26

The relevant documents were Ministerial Briefing Notes prepared by various agencies to brief their respective Ministers for appearances before Budget Estimates Committees of the Queensland Parliament.

The documents were collected and placed before a Cabinet meeting after lodgment of FOI applications requesting access to the documents. Some of the documents had already been provided to one of the applicants outside of the FOI process.

Has the relevant matter been submitted to Cabinet?

The Information Commissioner was satisfied the documents were exempt under section 36(1)(a) of the FOI Act as they had been submitted to Cabinet and had not been officially published by decision of Cabinet (even though some had previously been supplied to one of the applicants). [65]

The Information Commissioner further determined that a tribunal must consider the facts (including whether or not the relevant documents had been submitted to Cabinet) as they stand at the time of its decision, rather than at the time the initial FOI access applications were made. [58]

Little; Cantoni and Department of Natural Resources (1996) 3 QAR 170

The applicants sought access to parts of a valuation report and covering memorandum in respect of their property which the Department of Natural Resources (Department) wanted to acquire in order to build a school. The report contained a valuation and other information relevant to the Crown's assessment of the amount payable for acquiring the land. The Department was involved, at the time of the Information Commissioner's decision, in negotiations with the applicants to agree on a sale price for acquisition of the property by negotiation.

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?

The Information Commissioner considered that some purpose requirement remains active in section 36(1)(c) of the FOI Act due to the verb 'prepared'. He considered the purpose of preparing the relevant matter for briefing, or the use of, a Minister or chief executive must have been the dominant purpose.

The Information Commissioner considered the words 'prepared for' in relation to section 36(1)(c) of the FOI Act and commented on section 36(1)(b) of the FOI Act. In considering the first element 'prepared for submission', the Information Commissioner noted in relation to section 36(1)(c) of the FOI Act, that regard must be had to the purpose of the preparation of the matter. According to the Information Commissioner: [29]

The words following the verb "prepared" in s.36(1)(c)…., attach a purposive requirement to that word. To qualify for exemption, it must be established that the matter in issue was prepared for briefing, or the use of, a prescribed person…

To establish the purpose behind the creation of certain matter, the Information Commissioner outlined two possible tests, the sole purpose or dominant purpose test. The Information Commissioner considered the use of a sole purpose test in relation to section 36(1)(c) of the FOI Act, may produce unintended results. The Information Commissioner considered the dominant purpose test to be appropriate: [34]

…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. I use the adjective 'dominant' in its primary sense…of 'ruling, prevailing, most influential', such that there can be only one of two or more purposes for the preparation of a document which is the dominant of those purposes. In circumstances where there were multiple purposes for the preparation of the matter in issue, not all of which are qualifying purposes under s. 36(1)(c)…the application of those provisions would require a finding on an ultimate question of fact, to be determined by an objective examination of the relevant primary facts and circumstances, as to whether or not the dominant purpose for the preparation of the matter in issue was one of the qualifying purposes for exemption under s. 36(1)(c). Where a specific and direct purpose for the preparation of the matter in issue can be identified from the relevant primary facts and circumstances, that will ordinarily be the most reliable indicator of the dominant purpose for which the matter in issue was prepared.

Here, the Department gave evidence that it obtained the valuation report and put it in the relevant file on the proposed acquisition and that the whole file would, in due course, be sent to the Cabinet Legislation and Liaison unit of the Department for the purpose of briefing the Minister and the Governor in Council on the proposed acquisition. A Briefing Minute would then be prepared for the use of the Minister in Cabinet.

The Department relied on section 36(1)(c)(ii) of the FOI Act on the basis that the valuation report was prepared for briefing, or use of, the Minister in relation to the matter of acquisition of the land which was proposed to be submitted to Cabinet by the Minister. However, there was no evidence to establish the report was prepared for briefing, or the use of, the Minister. The evidence was, at the most, that the file containing it would, in due course, be sent to the Cabinet Legislation and Liaison Unit for the purpose of briefing the Minister.

The Information Commissioner considered the dominant purpose for which the valuation report was prepared was for the purpose of negotiation with the applicant to acquire their property at an agreed fair price (or, failing agreement, for the purpose of establishing a compensation amount payable before the Land Court). Moreover, there was no evidence of any proposal at any time by a Minister to submit the land acquisition issue to Cabinet.

Accordingly, the Information Commissioner considered the relevant matter was not exempt under section 36(1)(c) of the FOI Act.

Olsson and Department of Transport (1995) 3 QAR 149

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?

In relation to section 36(1)(b) and (c) of the FOI Act, the Information Commissioner noted that the best evidence of a Minister's intention to propose, or at some stage propose, that matter be submitted to Cabinet would be sworn evidence from the relevant Minister. In the absence of such direct evidence, the Information Commissioner was satisfied consideration should be given to: [12]

…whether there is sufficient material…from which to infer that a Minister had the requisite intention.

Ryman and Department of Main Roads (1996) 3 QAR 416

This case concerned documents, created in or before 1992, relating to preliminary investigations into the feasibility of developing a road that would act as a western bypass road for Brisbane. The Department of Main Roads (Department) refused access on the basis that the documents comprised exempt matter under section 36(1)(c) of the FOI Act.

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?

Here, the Information Commissioner followed the principles identified in Little; Cantoni and Department of Natural Resources,26 that the words following the verb 'prepared' in section 36(1)(c) of the FOI Act attached a 'purposive requirement to that word'. Accordingly, the purpose for preparing the relevant matter must have been for the dominant purpose of briefing, or the use of, a Minister or chief executive.

In relation to the technical report prepared by the Department, the Information Commissioner was not satisfied that the dominant purpose for the preparation of the technical report was for the briefing, or the use, of the Director-General of the Department or the then Minister in relation to a matter which subsequently submitted to Cabinet.

Having regard to the material setting out the history of the preparation of the technical report, the Information Commissioner was satisfied the dominant purpose for the preparation of the report was to provide senior officers of the Department with technical information affording a preliminary assessment of the feasibility of a western bypass of Brisbane so that the steering committee could decide whether to recommend, and the Board of Management could then decide whether to pursue a comprehensive feasibility study of a western bypass including a study of alternative alignments. It was also clear that senior officers contemplated that a submission would go to Cabinet if it was decided to proceed with the comprehensive feasibility study and that the Minister would be briefed in respect of whatever recommendation was formulated in light of the preliminary feasibility assessment.

The Information Commissioner did not consider section 36(1)(c) of the FOI Act was satisfied merely because it was contemplated, in the preparation of the technical report, that it might or probably would, at some stage be briefed to or used by a Minister or Chief Executive in relation to a matter submitted to Cabinet or proposed by a Minister to be submitted to Cabinet. In this instance, the direct and specific purpose for the preparation of the technical report was not for a qualifying purpose under section 36(1)(c) of the FOI Act.

In relation to the interpretation of 'submit', the Information Commissioner considered: [36-37]

The definition is clear and unambiguous ... the wide terms in which the definition is phrased are sufficient to evidence the legislature's intention for 'submit' to be interpreted broadly and to avoid any unnecessary restriction of its meaning (cf. the term 'consideration' in section 28(1)(ba) of the Victorian FOI Act) The Information Commissioner was satisfied that disclosing some of the relevant matter would not involve disclosing any consideration of Cabinet, nor otherwise prejudice the confidentiality of Cabinet considerations or operations. Accordingly, the matter was not exempt under section 36(1)(e) and therefore was not be exempt under section 36(1)(g) of the FOI Act.

Lindeberg and Department of Families, Youth & Community Care (1997) 4 QAR 14

The Information Commissioner considered that a document headed 'Points for Minister' which contained points for an oral Cabinet submission directly related to matter which was submitted to Cabinet and was clearly prepared for the sole purpose of briefing a Minister. The relevant document was addressed to the Minister and directly related to a Cabinet submission which the Commissioner was satisfied went before Cabinet.

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?

The Information Commissioner considered: [15]

Where matter has not been submitted to Cabinet, nor prepared for that purpose, it may qualify for exemption under s.36(1)(c) if it was prepared for briefing, or 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.

Australian Rainforest Conservation Society Inc and Queensland Treasury (1996) 3 QAR 221

The relevant matter related to preparatory work for the proposed corporatisation of the Department of Primary Industry's Forest Service.

Is the relevant matter a draft of matter mentioned in section 36(1)(a) to (e) of the FOI Act?

The Information Commissioner provided guidance on the application of sections 36(1)(f) and 36(1) of the FOI Act generally, and observed: [5]

It is important that agencies state as specifically as possible the exemption provision or provisions under which they determine matter to be exempt. It is often not sufficient merely to identify a section or subsection. For example, section 36(1) consists of seven separate exemption provisions, and decision-makers should clearly identify in their decisions the specific exemption provisions claimed to apply to particular documents, or parts of documents, as well as explaining…the basis on which the exemption provisions are claimed to be applicable. In addition, agencies frequently rely on s. 36(1)(f) or s. 36(1)(g) (which cover drafts, and copies or extracts, respectively, of matter which is exempt under earlier paragraphs of s. 36(1)) without identifying the earlier paragraph of s. 36(1) which is claimed to be relevant and explaining the basis on which the test for exemption under the earlier paragraph is claimed to have been satisfied. This is a prerequisite for a draft, or a copy or extract, of such matter to be exempt under s. 36(1)(f) or s. 36(1)(g), respectively. Also s. 34(2)(f) of the FOI Act requires explanation of the reasons for refusal of access in at least this level of detail.

The Information Commissioner's comments relating to the need to specify particulars and apply the relevant section to the particular facts also applies to section 36(1)(g) of the FOI Act.

26 Little; Cantoni and Department of Natural Resources (1996) 3 QAR 170.

Last updated: April 18, 2012