Application of Section 37 FOI Act

Relevant considerations

1. Does the exception in section 37(2) apply to the relevant matter?

Section 37(2) of the FOI Act provides that section 37(1) of the FOI Act does not apply to matter officially published by a decision of Executive Council. In Lindeberg and Department of Families, Youth & Community Care,2 the Information Commissioner considered that the application of both sections 36 and 37 of the FOI Act can lead to the anomalous result of access being refused to matter that has already been provided to the applicant or publicly disclosed.

2. Is the relevant matter a draft of matter mentioned in section 37(1)(a) to (e) or, a copy or extract of matter mentioned in section 37(1)(a) to (f) of the FOI Act?

Section 37(1)(f) provides that drafts of matter mentioned in section 37(1)(a)-(e) of the FOI Act may also be exempt matter.

Section 37(1)(g) provides that a copy or extract from, or part of a copy or extract from matter mentioned in section 37(1)(a)-(f) may also be exempt matter. Section 37(1)(g) requires consideration of the following factors:3

  • matter cannot be exempt exclusively on the basis of section 37(1)(g) of the FOI Act but must first be exempt under one of the other subsections of section 37(1) of the FOI Act. This also applies to section 37(1)(f) of the FOI Act.
  • it follows then, that the relevant matter must be a copy of or extract from, or part of a copy of or extract from, matter which is established to be exempt matter under section 37(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 37(1)(g) of the FOI Act must have come into existence after the exempt matter.

3. Has the relevant matter been submitted to Executive Council?

Matter will be exempt if it has been submitted to Executive Council.4

a) Submitted

Relevantly, section 37(4) of the FOI Act states:

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

[Emphasis added]

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

Matter is exempt if prepared for submission to Executive Council and is proposed, or has at any time been proposed, by a Minister to be submitted to Executive Council.5

While the purpose behind the submission to Executive Council is not relevant,6 the purpose of the matter's creation is relevant. The Information Commissioner in Little; Cantoni and Department of Natural Resources7 explained that use of the verb 'prepared' implies a dominant purpose test:8 Accordingly, the document must have been prepared for the dominant purpose of submission to the Executive Council.

5. Has the relevant matter been prepared for briefing or the use of the Governor, a Minister or a chief executive in relation to certain information?9

Matter will be exempt under section 37(1)(c) of the FOI Act if two requirements are satisfied.

First, it is necessary to establish that the documents were prepared for the purpose of briefing, or for the use of the Governor, a Minister or chief executive.10

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

  • submitted to Executive Council;
  • proposed to be submitted to Executive Council by a Minister;
  • proposed to be submitted at any time to the to Executive Council by a Minister.

Therefore, even if matter has not been submitted or prepared for submission to Executive Council, it may be exempt if it was prepared for briefing, or the use of, the Governor, a Minister or chief executive 'in relation to a matter' submitted to Executive Council, or proposed by a Minister to be submitted to Executive Council.11

The Acting Assistant Commissioner in Kelsall and Department of Main Roads,12 considered that the term 'in relation to' should be given the meaning outlined by Dawson J in O'Grady v Northern Queensland Company Ltd:13

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 …

Therefore, a connection that is more than merely coincidental must be established between the relevant matter and the matter submitted to Executive Council.14

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

Matter will be exempt if is an official record, or forms part of an official record, of Executive Council.15

a) Official record

Section 37(4) of the FOI Act defines 'official record' to include 'an official record of matters submitted to Executive Council'.

This section concerns documents which are, or have been, created as part of the recording of the business of Executive Councils, including Executive Council submissions and decision numbers as well as the collective minutes of Executive Council.

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

Matter will be exempt if disclosing the relevant matter would disclose any considerations of Executive Council or otherwise prejudice the confidentiality of Executive Council considerations or operations.16

a) Consideration

Section 37(4) of the FOI Act 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.

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

Section 37(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 37. Reliance on section 37(3) is subject to external review by the Information Commissioner under Part 5 of the FOI Act.

2 Lindeberg and Department of Families, Youth & Community Care (1997) 4 QAR 14 at paragraph 26.
3Ryman and Department of Main Roads (1996) 3 QAR 416 at paragraph 5.
4 Section 37(1)(a) of the FOI Act.
5 Section 37(1)(b) of the FOI Act.
6 Section 37(4) of the FOI Act provides that the purpose of submission irrelevant.
7 Little; Cantoni and Department of Natural Resources (1996) 3 QAR 170.
8Little; Cantoni and Department of Natural Resources (1996) 3 QAR 170, at paragraph 34.
9 Section 37(1)(c) of the FOI Act.
10 Little; Cantoni and Department of Natural Resources (1996) 3 QAR 170 at paragraph 28.
11 Lindeberg and Department of Families, Youth & Community Care (1997) 4 QAR 14.
12 Kelsall and Department of Main Roads (Unreported, Queensland Information Commissioner, 21 August 2008).
13 O'Grady v Northern Queensland Company Ltd (1989) 169 CLR 356 at paragraph 367.
14 Kelsall and Department of Main Roads (Unreported, Queensland Information Commissioner, 21 August 2008) at paragraph 28.
15 Section 37(1)(d) of the FOI Act.
16 Section 37(1)(e) of the FOI Act.

Last updated: May 15, 2012