Overview of Section 37 FOI Act

Section Summary

Matter will be exempt matter if:

• it has been submitted to Executive Council;
• it was prepared for submission to Executive Council and is proposed, or has been proposed, by a Minister to be submitted to Executive Council;
• it was prepared for briefing, or for the use of the Governor, a Minister or a chief executive in relation to a matter submitted to Executive Council or proposed to be submitted to Executive Council by a Minister;
• it is, or forms part of an official record of Executive Council;
• its disclosure would disclose any consideration of Executive Council or could otherwise prejudice the confidentiality of Executive Council 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 the Governor in Council is not exempt under section 37 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 37(3) of the FOI Act.

Background

The rationale for the existence of the Executive Council exemption is the need to ensure the confidentiality of Executive Council decision-making.¹

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 37 of the FOI Act.

¹ C Gilbert and W Lane, Queensland Administrative Law, ‘Queensland Administrative Law Loose leaf Service’, Lawbook Co (2002).