Key published decisions applying Section 41 FOI Act

Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60

The applicant sought access to assessments and advice provided to Queensland Government in relation to the High Court decision in Mabo v Queensland (No 2).20 The Department of Family Services and Aboriginal and Islander Affairs (Department) refused access to some of the relevant matter under section 41 of the FOI Act.

The Information Commissioner considered matter will be exempt under section 41(1) of the FOI Act if two cumulative requirements are satisfied; namely:

  • disclosure would disclose any opinion, advice, or recommendation obtained, prepared or recorded, or 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; and
  • disclosure would, on balance, be contrary to the public interest

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

The Department refused access to seven documents.

As part of the relevant matter in Document 2 consisted merely of facts, the Information Commissioner was satisfied, by virtue of section 41(2) that the matter was not exempt under section 41(1) of the FOI Act.

The Information Commissioner considered that use of the word 'merely' in section 41(2) indicates that if factual or statistical matter is inextricably intertwined with matter expressing an opinion, advice or recommendation obtained for the purposes of a deliberative process then it may still be exempt under section 41, provided that disclosure would also, on balance, be in the public interest. [31]

Disclosing matter of the type listed in section 41(2) of the FOI Act will not compromise the deliberative process of government agency. However, it is possible that factual or statistical information will be exempt under a different exemption. [32]

Once a deliberative process is over and a final decision has been reached, the exemption cannot be relied on. [33]

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

The Information Commissioner was satisfied relevant matter in documents 3-7 was the type of information mentioned in section 41(1)(a) of the FOI Act. [84-92]

However, 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, on balance, be contrary to the public interest under section 41(1)(b) of the FOI Act. [26]

a) Deliberative process

The critical words in section 41(1)(a) of the FOI Act are 'deliberative processes involved in the functions of government'. Relevant matter evidencing communications between a Minister and an official may contain advice, but it will not fall within section 41(1)(a) of the FOI Act unless the advice was obtained, prepared or recorded in the course of, or for the purposes of, the deliberative processes of government. Matter originating outside government, relating to the deliberative process of government, may also fall within this exemption. [27]

The Information Commissioner adopted the Shorter Oxford English Dictionary definition of 'deliberation', which the Commonwealth Administrative Appeals Tribunal relied on in Waterford and Department of Treasury (No. 2).21 Relevantly, 'deliberation' is defined as 'the act of deliberating: careful consideration with a view to decision' and applies in Queensland as correctly defining 'deliberative processes'. [28-29]

The Information Commissioner was satisfied deliberative processes normally occur towards the end stage of a larger process, such as: [30]

  • following investigations of various kinds
  • establishing facts
  • getting inputs from relevant sources
  • obtaining expert opinion or analysis from a technical expert.

b) Opinion, advice, recommendation or consultation

The Information Commissioner considered section 41(1)(a) of the FOI Act only applies to matter that can be properly characterised as opinion, advice, recommendation or consultation that is directed towards the deliberative processes (ie the 'pre-decisional thinking processes', as sometimes referred to in decisions of the Commonwealth AAT). [30]

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

The Department submitted that the public interest considerations favouring nondisclosure in maintaining the effective and proper workings of Government and avoiding confusion and unnecessary concern to the public in respect of the implications of Mabo outweighed the public interest in informed debate and participation in the processes of government, the accountability of government and the public interest in achieving certainty in understanding the High Court decision in Mabo. [146] The Information Commissioner disagreed.

The Department contended that, in the course of development of policy for eventual Cabinet consideration, secrecy is essential at certain phases of the process. [153] However, the Department did not specify the precise phases, in the course of the development of policy for Cabinet consideration, at which secrecy was claimed to be essential. The Information Commissioner rejected the Department's submission that there were certain phases of policy development where secrecy was essential. [145, 173]

Further, the Department submitted that disclosing the relevant matter would inhibit frankness and candour in future exchanges of information between agencies in pre-decisional consultations and therefore the policy development proposals would not be subjected to the fullest possible scrutiny, comment and consideration, to the detriment of the public interest. The Information Commissioner did not accept that disclosing the relevant matter would result in agencies no longer consulting other relevant or interested agencies on the development of Cabinet proposals. Relevantly, he also did not accept that disclosure would result in agency consultation comments on Cabinet proposals becoming less frank and candid. [174-175] Finally, the Department submitted that disclosing an individual agency's comments and opinions may be detrimental to the workings of government as a whole and to the responsibilities of government in the development of policy and legislation. The Information Commissioner found that, on the face of the relevant matter, there was no apparent detriment to the workings of government as a whole. [176]

The Information Commissioner was satisfied that disclosing the relevant matter would not, on balance, be in the public interest under section 41(1)(b) of the FOI Act. [191]

Accordingly, the relevant matter was not exempt under section 41 of the FOI Act.

Ainsworth; Ainsworth Nominees Pty Ltd and Criminal Justice Commission; A (Third Party); B (Fourth Party) (1999) 5 QAR 284

The applicants sought access documents relating to a Criminal Justice Commission (CJC) Report on gaming machines. The CJC refused access to the relevant matter and the applicants sought external review.

Following the test in Eccleston,22 the Information Commissioner considered relevant matter will be exempt under section 41(1) of the FOI Act if two cumulative requirements are satisfied; namely: [117]

  • disclosure would disclose any opinion, advice, or recommendation obtained, prepared or recorded, or 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; and
  • disclosure would, on balance, be contrary to the public interest

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

In the Information Commissioner's view, section 41(1)(a) of the FOI Act is not satisfied by the deliberative process involved in selecting information for inclusion in a briefing paper. If this argument was accepted, every document created by a public servant would qualify as a deliberative process document. [119] Similarly, a briefing paper prepared for information purposes only, it may not be possible to identify the deliberative process for which the briefing paper was prepared.

In this case, the relevant briefing paper was prepared not only for informational purposes but also to seek a direction based on recommendations put to the CJC Chairman. The documents therefore consisted of an opinion prepared for the purposes of a deliberative process involved in the functions of the CJC and fell within the ambit of section 41(1)(a) of the FOI Act.

Accordingly, it was then necessary to determine whether disclosing the relevant documents would, on balance, be in the public interest under section 41(1)(b). [120]

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

The Information Commissioner emphasised that the onus of establishing matter is exempt under section 41 rests with the agency and an applicant is not required to demonstrate that disclosing deliberative process matter would be in the public interest. [118]

The CJC submitted there would be public confusion or misunderstanding if the documents were disclosed. However, the documents expressed the opinion of a CJC officer about incidents that occurred 19 years ago. The Information Commissioner considered the information was merely of historical interest and was incapable of causing harm to the public interest. [122]

The CJC also submitted that there would be a lack of candour and frankness from officers, due to fear of public speculation, ridicule or vilification and this would adversely affect the proper and effective conduct of the functions and responsibilities of the CJC. [123] The Information Commissioner rejected this submission, as he considered it related to a class claim for exemption of the opinions, advice and recommendations of officers of the CJC. He cited the Commonwealth Administrative Appeals Tribunal in Re Bartlett and Department of Prime Minister and Cabinet,23 which considered that 'disguised class claims' would not be permitted under the corresponding section of the Freedom of Information Act 1982 (Cth) to section 41 of the FOI Act.

The Information Commissioner considered that disclosing the relevant matter would not, on balance, be contrary to the public interest. Accordingly, the relevant matter was not exempt under section 41 of the FOI Act.

Australian Rainforest Conservation Society Inc. and Treasury Department; (1996) 3 QAR 221

The applicant sought access to documents relating to the proposed corporatisation of the Department of Primary Industry's Forest Service. The Queensland Treasury (Department) refused access to the relevant matter under section 41 of the FOI Act.

Following the test in Eccleston,24 the Information Commissioner considered matter will be exempt under section 41(1) of the FOI Act if two cumulative requirements are satisfied; namely:

  • disclosure would disclose any opinion, advice, or recommendation obtained, prepared or recorded, or 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; and
  • disclosure would, on balance, be contrary to the public interest

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

Here, formal minutes of the meetings recorded deliberations of a Charter Preparation Committee (CPC) established under the Government Owned Corporations Act 1993 (Qld) and the advice and opinions of members working towards the goal of preparing a draft Corporatisation Charter for Ministerial consideration. The Information Commissioner was satisfied that the relevant matter was of the type listed in section 41(1)(a) of the FOI Act. [17]

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

The Information Commissioner adopted the test established in Trustees of the De La Salle Brothers25 that 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.'

The Information Commissioner rejected the Department's submission that disclosing the relevant matter would be detrimental to the 'candor and frankness' of government discussions and recognised a substantial public interest in enhancing the accountability of government and in members of the community having access to minutes of a publicly established committee so that they may be informed about its operations. The Information Commissioner was satisfied that disclosing the relevant matter was, on balance, in the public interest. [29]

Accordingly, the matter was not exempt under section 41(1) of the FOI Act.

Cairns Port Authority and Department of Lands; Cairns Shelf Co No. 16 Pty Ltd (Third Party) (1994) 1 QAR 663

Cairns Port Authority (CPA) objected to the Department of Lands (Department) decision to disclose certain documents comprising valuation reports on a parcel of land, which CPA owned and leased to Cairns Shelfco.

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

The Information Commissioner found parts of the relevant matter would be excluded from exemption by virtue of section 41(2)(c) of the FOI Act, because they merely consisted of opinion or analysis by expert valuers. [48]

The Information Commissioner considered a person would be an 'expert' where that person is accepted by a court as qualified to give expert opinion evidence in their relevant field of knowledge on an issue requiring resolution by the court. Here, the valuers on the staff of the Valuer-General 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 and accordingly, would be considered 'experts'. [49]

The Information Commissioner was satisfied the remaining matter was factual and therefore, by virtue of section 41(2)(b), was not exempt under section 41(1) of the FOI Act. [52]

Even though the relevant matter was created in the course of the deliberative processes involved in the functions of government, the relevant matter was not exempt under section 41 because exclusions in section 41(2) of the FOI Act applied. [43]

Metcalf and Maroochy Shire Council (Unreported, Queensland Information Commissioner, 19 December 2007)

The applicant sought access to various documents relating to the Maroochy Shire Council's (Council) construction of a bioreactor landfill, including an 'Environmental Impact Statement' created by Council and a list of investigated construction sites for the bioreactor. Council refused access to relevant matter under section 41(1) of the FOI Act.

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

The relevant deliberative process was the choice of a suitable site for the Council's proposed bioreactor landfill. The Information Commissioner considered the relevant matter satisfied section 41(1)(a) of the FOI Act. Therefore, it was necessary to consider whether disclosing the relevant matter would, on balance, be contrary to the public interest. [30]

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

The Information Commissioner was satisfied that, on balance, the public interest favouring nondisclosure of the relevant matter constituted a specific and real harm (of sufficient gravity) to an identifiable public interest by prejudicing Council's ongoing decision making process, divulging confidential information and inflicting unnecessary financial and emotional harm on the public. [59]

Accordingly, the relevant matter was exempt under section 41(1) of the FOI Act. [60]

Trustees of the De La Salle Brothers and Queensland Corrective Services Commission (1996) 3 QAR 206

The applicants operated a community corrections centre, owned by Queensland Corrective Services (Department), and sought access to documents concerning the community corrections centre. The Department refused access to the relevant matter under section 41 of the FOI Act.

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

The Information Commissioner found that some relevant documents comprised merely factual information and accordingly, by virtue of section 41(2)(b), were not exempt under section 41 of the FOI Act. [29]

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

The remaining matter satisfied section 41(1)(a) of the FOI Act. Accordingly, it was necessary to consider whether disclosing the relevant matter would, on balance, be contrary to the public interest. [32]

The Information Commissioner considered the agency or Minister must establish that a specific and tangible harm to an identifiable public interest would result from disclosing the relevant matter. Further, the agency or Minister must establish that the harm is of sufficient gravity that, when weighed against competing public interest considerations favouring disclosure, disclosure would, on balance, be contrary to the public interest. [34]

The Department submitted that disclosing the relevant matter would impede the proper flow of information between public servants and the Minister. [32] However, the Information Commissioner found the Department's submissions vague and unsubstantiated. While there was certainly a public interest in the effective working of government, the Department didn't explain precisely how disclosing the relevant matter would harm that public interest. The Information Commissioner considered the suggestion that disclosure 'would impede the proper flow of information between public servants and the Minister', to be an attempt to restate the 'candour and frankness argument', which was rejected in Eccleston.26

Here, the relevant matter did not contain particularly sensitive information the disclosure of which could harm the public interest. Further, the punishment and rehabilitation of criminal offenders, the effectiveness of the administration of systems established for that purpose, and their cost to the public, were matters of real public interest favouring disclosure. In the Information Commissioner's view, there were genuine public interest considerations in favour of disclosing the relevant matter for the purpose of enhancing the accountability of the Department and for the purpose of informing the public generally about the operations of systems for the punishment and rehabilitation of offenders. [37]

Accordingly, the relevant matter was not exempt under section 41(1) of the FOI Act. [38]

20Mabo v Queensland (No 2) (Mabo) (1992) 175 CLR 1.
21Waterford and Department of Treasury (No. 2) (1984) 5 ALD 588 at paragraph 60.
22Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60 at paragraphs 21-22.
23Re Bartlett and Department of Prime Minister and Cabinet (1987) 12 ALD 659 at page 662.
24Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60 at paragraphs 21-22.
25Trustees of the De La Salle Brothers (1996) 3 QAR 206 at paragraph 14.
26Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60 at paragraphs 132-134.

Last updated: March 5, 2012