Key published decisions applying Section 37 FOI Act
The applicant sought access to matter concerning property valuations, government contributions and publication of a flyer all relating to the Airport Link and Northern Busway developments.
The relevant matter consisted of 6 categories of folios:
- Folio 1: Sealed copy of Executive Council Minute
- Folio 3-4: Minister's statement re Taking of Land Notice (No. 1027) 2006
- Folio 6: Minister's statement re Taking of Land Notice (No. 1028) 2006
- Folio 9: Minister's statement re Taking of Land Notice (No. 1030) 2006
- Folio 10-14: Explanatory memorandum to Folios 3-4, 6 and 9
- Folio 15-16: Memorandum to the Minister for Main Roads regarding the North South Bypass Tunnel Project
Folio 1: Sealed copy of Executive Council Minute
The Acting Assistant Commissioner found this document was not exempt under section 37(1)(a) of the FOI Act, because the document itself was not submitted to Executive Council.
However, the original document would qualify for exemption under section 37(1)(d) of the FOI Act because an Executive Council Minute is an 'official record of Executive Council'. Here, the relevant matter was a copy of an official record and was therefore exempt from disclosure under section 37(1)(g) of the FOI Act.
Folios 3-4, 6 and 9: Minister's statements concerning Taking of Land Notices
These folios were presented to Executive Council and were therefore exempt matter under section 37(1)(a) of the FOI Act. [31-32]
Folios 10-14: Explanatory Memorandum
These folios were presented to Executive Council with the Minister's statements (folios 3-4, 6 and 9) and were exempt under section 37(1)(a) of the FOI Act. [34]
Folios 15-16: Memorandum concerning North South Bypass Tunnel Project
The Department submitted that these folios were exempt under section 37(1)(c) of the FOI Act. The Acting Assistant Commissioner considered that the words following the verb 'prepared' in section 37(1)(c) of the FOI Act require the document to have been prepared for the dominant purpose of one or more of the purposes identified in the section.17 Here, the Acting Assistant Commissioner was satisfied the memorandum was prepared for the dominant purpose of briefing the Minister for Main Roads.
The Acting Assistant Commissioner considered the term 'in relation to' should be given the meaning outlined by Dawson J in O'Grady v Northern Queensland Company Ltd:18
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 …
The Acting Assistant Commissioner considered that a connection that is more than merely coincidental must be established between the relevant matter and the matter submitted to Executive Council; in this case, the Executive Council Minute.
Here, the connection between the Memorandum and the Executive Council Minute was that they both concerned the acquisition of land for the purpose of the North South Bypass Tunnel Project. This, coupled with the proximity of the dates of the two documents lead the Acting Assistant Commissioner to conclude that the two documents were sufficiently connected and consequently the Memorandum was exempt matter under section 37(1)(c) of the FOI Act. [48]
Little; Cantoni and Department of Natural Resources (1996) 3 QAR 170
The applicants sought access to parts of a valuation report and covering memorandum concerning their property, which the Department of Natural Resources (Department) intended to acquire. The report contained a valuation and other information relevant to the Crown's assessment of the amount payable for acquiring the land. At the time of the external review, the Department was involved in negotiations with the applicants on a sale price for acquisition of the land. The Information Commissioner considered the words 'prepared for' in relation to section 37(1)(c) of the FOI Act and noted the same considerations apply in relation to the words of section 37(1)(b) of the FOI Act.
The Information Commissioner considered the verb 'prepared' in section 37(1)(c) requires consideration of the purpose for preparing the relevant matter be for briefing, or the use of, the Governor, a Minister or chief executive. [29]
To establish the purpose behind the creation of relevant matter, the Information Commissioner outlined two possible tests; the sole purpose test and the dominant purpose test. The Information Commissioner found that use of a sole purpose test in relation to section 37(1)(c) or 37(1)(b) of the FOI Act may produce unintended results. The Information Commissioner was satisfied the dominant purpose test was 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. 37(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. 37(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.
The Department submitted that the valuation report was located on a file that 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. [29] Therefore, the Department submitted 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 or Executive Council.
However, there was no evidence to establish that the report was prepared for briefing, or the use of, the Governor, a Minister or the chief executive. The evidence was, at the most, that the file containing the relevant matter would, in due course, be sent to the Cabinet Legislation and Liaison Unit for the purpose of briefing the Minister. [29]
The Information Commissioner considered that the dominant purpose for which the valuation report was prepared was for negotiation with the applicant regarding the acquisition of the property (or, failing agreement, for the purpose of establishing a compensation amount). Moreover, there was no evidence of any proposal by a Minister to submit the land acquisition issue to Cabinet.
Accordingly, the Information Commissioner considered the relevant matter was not exempt under section 37(1)(c) of the FOI Act. [38]
Lindeberg and Department of Families, Youth & Community Care (1997) 4 QAR 14
The Information Commissioner was critical of the broad reach of section 37 following the amendments to section 36 and 37 of the FOI Act by the Freedom of Information Amendment Act 1993 (Qld) and the Freedom of Information Amendment Act 1995 (Qld).
The application of section 37 of the FOI Act turns on what are essentially questions of fact. The provisions operate so as to confer exemption merely by membership of a defined class or category, irrespective of whether disclosing the relevant matter would have any prejudicial consequences. An agency can establish that matter is exempt under section 37(1) of the FOI Act by merely proving the facts which bring the relevant matter within one of the defined classes that attract exemption. Section 37(1) of the FOI Act is not qualified by a public interest balancing test, which means that no account is to be taken of other public interest considerations which might favour (even overwhelmingly favour) disclosing the relevant matter. [13]
Here, matter submitted to Executive Council and a copy of an official record of Executive Council was found to be exempt under sections 37(1)(a) and 37(1)(g) respectively.
17Little; Cantoni and Department of Natural Resources (1996) 3 QAR 170 at paragraphs 28-34. [up]
18O'Grady v Northern Queensland Company Ltd (1989) 169 CLR 356 at paragraph 367. [up]
Last updated: May 15, 2012
