Application of Section 41 FOI Act

Relevant considerations

1. Do any of the exclusions in section 41(2) apply to the relevant matter?

Under section 41(2) matter is not exempt if it merely consists of:

  • matter that appears in an agency's policy document;
  • factual or statistical matter; or
  • expert opinion or analysis by a person recognised as an expert in the field of knowledge to which the opinion or analysis relates.

Disclosing the type of information identified in section 41(2) of the FOI Act will not be exempt under section 41(1) of the FOI Act, because its disclosure will not compromise the deliberative processes of government.1

a) Factual or statistical matter

The word 'merely' in section 41(2) of the FOI Act indicates that if factual or statistical matter is inextricably intertwined with matter expressing opinion, advice or recommendation obtained in the course of, or for the purposes of a deliberative process, it may still be exempt under section 41(1) of the FOI Act.2

In Hudson (as agent for Fencray Pty Ltd) and Department of the Premier, Economic and Trade Development,3 the Information Commissioner observed that a commonsense approach should be taken in characterising matter as factual or otherwise. This characterisation should be made according to the substantive nature of the matter, rather than reference to the particular terms in which it is implied. Matter containing elements of judgment or opinion concerning purely factual matters may also be capable of being characterised as merely factual matter.

A record of an inaccurate factual statement is still considered factual because the statement purports to relay as a statement of fact something that has been said or done.4

b) Expert opinion or analysis by expert in the field of knowledge

A person may be considered an expert in their relevant field if that person would be accepted by a court as qualified to give expert opinion evidence.5In Queensland Community Newspapers Pty Ltd and Redland Shire Council,6 the Information Commissioner considered a firm of geo-technicians, who authored a report and were routinely accepted in the Land Court and other Queensland Courts as qualified to give expert opinion evidence on issues relating to the valuation of real property, were experts in their field of knowledge.

In Johnson and Queensland Transport; Department of Public Works (Third Party),7 the relevant matter comprised an opinion or advice sought from Queensland Transport by Department of Public Works (DPW) for the purposes of DPW's deliberative processes.

However, due to the Director of Transport Planning's expertise in matters of transport infrastructure planning and analysis, the matter was consisted of an expert opinion or analysis and was not exempt under section 41(1) of the FOI Act. However, an expert opinion contributed in the course of or for the purpose of the deliberative process, rather than for evaluation during the deliberative process, may be exempt under section 41 of the FOI Act.8

2. Do any of the exclusions in section 41(3) apply to the relevant matter?

Matter will not be exempt under section 41(1) of the FOI Act, if it consists of:

  • a report of a prescribed body or organisation established within the agency; or
  • the record of, as a formal statement of the reasons for a final decision order or ruling given in the exercise of a power, an adjudicative function, or a statutory function or the administration of a publicly funded scheme.

a) Formal statement of reasons

The record of a final decision, order or ruling made under one of the sources of authority identified in section 41(3)(b) of the FOI Act, will not be exempt under section 41(1) of the FOI Act.9

In Cairns Port Authority and Department of Lands; Cairns Shelf Co No. 16 Pty Ltd (Third Party),10 the Information Commissioner observed, without expressing a view, that final valuation reports could be excluded from the exemption, by virtue of section 41(3)(b) of the FOI Act. He considered that section 41(3)(b) of the FOI Act did not appear to require a decision maker to produce a formal statement of reasons for a document to fall within the terms of section 41(3)(b) of the FOI Act.

3. Would disclosing the relevant matter disclose the type of information mentioned in section 41(1)(a) of the FOI Act?

Matter will be of the type listed in section 41(1)(a) of the FOI Act if disclosing the relevant matter would disclose:11

  • an opinion, advice or recommendation that has been obtained, prepared or recorded in the course of, or for the purposes of, the deliberative processes involved in the functions of government; or
  • a consultation or deliberation that has taken place in the course of, or for the purposes of, the deliberative processes involved in the functions of government

a) Deliberative processes involved in the functions of government

The critical words in section 41(1)(a) of the FOI Act are 'deliberative processes involved in the functions of government'.12 The Information Commissioner considered the following factors relevant to interpreting this phrase:13

  • section 7 of the FOI Act provides a non-exhaustive definition of the word 'government', which includes an agency and Minister
  • matter may fall within the ambit of section 41(1)(a) of the FOI Act even though it originates outside government, provided it relates to the deliberative processes of government. For example, an agency might engage a consultant to provide an opinion about a particular issue and section 41(1)(a) of the FOI Act may then extend to that opinion
  • 'deliberative processes' are not confined to deliberation for policy forming processes, but extends to deliberation for the purposes of any decision making function of an agency. This interpretation is supported by the wording of section 41(3)(b) of the FOI Act, particularly sub-paragraph (iv) relating to the administration of a publicly funded scheme
  • ordinarily, 'deliberative processes' will occur toward the end of a larger process, following investigations, establishing facts, and obtaining inputs from relevant sources.

b) Opinion, advice or recommendation

The relevant opinion, advice or recommendation must relate to the deliberative processes of an agency or Minister.

c) Consultation

The Information Commissioner considered and adopted the definition of the 'consultation' and 'consult' from the new Shorter Oxford English Dictionary, which defines the terms as follows:14

Consultation: 'a meeting in which parties consult together, or one person consults another, spec. on a medical or legal matter'

Consult: 'deliberate, take counsel, confer, (with someone; about, upon a matter)', and 'take into consideration, have consideration for…'

d) Deliberation

In Eccleston and Department of Family Services and Aboriginal and Islander Affairs,15 the Information Commissioner adopted the definition of 'deliberation' from the Shorter Oxford English Dictionary:

Deliberation: 'the action of deliberating: careful consideration with a view to decision'.

 In Waterford and Department of Treasury (No.2)16 the AAT relied on the same definition of 'deliberation'.

The definition has been applied in subsequent decisions of the Information Commissioner in the context of 'deliberative processes'.17

4. Would disclosing the relevant matter, on balance, be contrary to the public interest?

Matter consisting of the type of information mentioned in section 41(1)(a) of the FOI Act is not automatically exempt from disclosure; its disclosure must also satisfy the 'reverse public interest test' set out in the provision, that is, disclosure must, on balance, be contrary to the public interest under section 41(1)(b) of the FOI Act. The onus is on the agency to show that disclosing the relevant matter would be contrary to the public interest.18

In Trustees of the De La Salle Brothers,19 the Information Commissioner considered the agency must establish that 'specific and tangible harm to an identifiable public interest would result from disclosure' and that 'the harm is of sufficient gravity when weighted against competing public interest considerations which favour disclosure of the matter in issue.'

1 Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60 at paragraph 32.
2Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60 at paragraph 31.
3Hudson (as agent for Fencray Pty Ltd) and Department of the Premier, Economic and Trade Development (1993) 1 QAR 123
4 Re Burke and Gold Coast City Council (Unreported, Queensland Information Commissioner, 17 November 1997).
5Cairns Port Authority and Department of Lands (1994) 1 QAR 663 at paragraph 49.
6Queensland Community Newspapers Pty Ltd and Redland Shire Council (1998) 4 QAR 262.
7Johnson and Queensland Transport; Department of Public Works (Third Party) (2004) 6 QAR 307.
8Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60 at paragraph 31.
9Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60 at paragraph 33.
10Cairns Port Authority and Department of Lands; Cairns Shelf Co No. 16 Pty Ltd (Third Party) (1994) 1 QAR 663.
11 Section 41(1)(a) of the FOI Act.
12Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60.
13Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60 at paragraphs 27-33.
14Referred to and adopted by the Information Commissioner in Re Otti and Criminal Justice Commission (Unreported, Queensland Information Commissioner, 21 March 2000) at paragraph 42.
15Eccleston and Department of Family Services and Aboriginal and Islander Affairs (Eccleston) (1993) 1 QAR 60.
16 Waterford and Department of Treasury (No.2) (1984) 5 ALD 588 at paragraph 606.
17 Cairns Port Authority and Department of Lands (1994) 1 QAR 663.
18Ainsworth; Ainsworth Nominees Pty Ltd and Criminal Justice Commission; A (Third Party); B (Fourth Party) (1999) 5 QAR 284 at paragraph 118.
19Trustees of the De La Salle Brothers (1996) 3 QAR 206 at paragraph 14.

Last updated: March 5, 2012