Overview of Section 36 FOI Act
Matter will be exempt matter if:
- it has been submitted to Cabinet;
- it was prepared for submission to cabinet and is proposed, or has been proposed, by a Minister to be submitted to Cabinet;
- it was prepared for briefing, or the use of a Minister or chief executive in relation to a matter that was submitted to Cabinet or is proposed to be submitted to Cabinet;
- it is, or forms part of an official record of Cabinet;
- its disclosure would disclose any consideration of Cabinet or could otherwise prejudice the confidentiality of Cabinet considerations or operations;
- it is a draft of matter mentioned above; or
- it is a copy or extract from matter mentioned above.
However, matter officially published by decision of Cabinet is not exempt under section 36 of the FOI Act.
A certificate signed by a Minister stating the relevant matter would, if it existed, be exempt matter, is sufficient under section 36(3) of the FOI Act.
'Cabinet' is defined in section 36(4) to include a Cabinet committee or subcommittee.
Section 36 of the FOI Act was amended by the Freedom of Information Amendment Act 1993 (Qld) in response to the Information Commissioner's decision in Hudson (as agent for Fencray Pty Ltd) and Department of the Premier, Economic and Trade Development.1 The explanatory notes to the bill2 explain that section 36 was amended in two ways.
Firstly, the amendments ensure all documents that actually come before Cabinet automatically fall within the exemption, and it is not necessary to establish that the documents were created for the sole purpose of submission to Cabinet. This means that the purposive test is not required in relation to documents that are actually submitted to cabinet. Further, a document created for the purpose for submission to Cabinet and is, or was, proposed to be submitted to Cabinet will fall within the exemption. The amendments also extended the exemption to include briefing notes that were prepared to brief a Minister about an issue proposed to be considered by cabinet.
Secondly, the 1993 amendments replace the words 'factual or statistical' with 'statistical, scientific or technical' in the exception in section 36(2). The words narrow the scope of the exception to cover only purely technical material in a Cabinet document. The amendment was made in response to the broad interpretation of the word 'factual' to include expressions and opinions.
Section 36 was amended again by the Freedom of Information and Amendment Act 1995 (Qld). The explanatory notes to the bill3 explain that the word 'submit' was defined to remove any requirement to consider the purpose behind the submission of matter to Cabinet. Further, briefing material on Cabinet matter is exempt for chief executives as well as Ministers. The amendments extend the exemption to matter that would prejudice the confidentiality to Cabinet considerations or operations.
The first occasion in which the Information Commissioner considered the broad effect of the changes to section 36 of the FOI Act was in Woodyatt and Minister for Corrective Services.4 The Information Commissioner expressed the view that the new amendments provide:5
…an avenue for potential abuse of the accountability objects of the FOI Act by enabling an agency or Minister to prevent disclosure of an embarrassing or damaging document, merely by ensuring that it is submitted to Cabinet for its consideration (even though the document was not initially prepared for the purpose of submission to Cabinet).
Other relevant FOI Act sections
Section 35 FOI Act
Section 35 of the FOI Act allows an agency or Minister to neither confirm nor deny the existence of requested documents where the document, if it existed, would contain exempt matter under section 36 of the FOI Act.
1 Hudson (as agent for Fencray Pty Ltd) and Department of the Premier, Economic and Trade Development (1993) 1 QAR 123.
2 Explanatory notes to Freedom of Information and Amendment Bill 1993 (Qld).
3 Explanatory notes to Freedom of Information and Amendment Bill 1995 (Qld).
4 Woodyatt and Minister for Corrective Services (1995) 2 QAR 383.
5 Woodyatt and Minister for Corrective Services (1995) 2 QAR 383 at paragraph 12.
Last updated: April 18, 2012