Overview of Section 46 FOI Act

Section summary

Matter will be exempt if its disclosure would found an action for breach of confidence. This exemption is subject to section 46(2) of the FOI Act.

Background

Section 46(2) of the FOI Act was amended in 2005 to give independent operation to section 46(1)(b) of the FOI Act. Prior to its amendment, section 46(2) of the FOI Act included the words ‘would found an action for breach of confidence’.

The Information Commissioner in B and Brisbane North Regional Health Authority,¹ considered that if disclosure would found an action for breach of confidence, then section 46(1)(a) would always apply and section 46(1)(b) of the FOI Act would be rendered largely redundant.

Other relevant FOI Act sections

Section 41 FOI Act
Under section 41(1) of the FOI Act, matter is exempt if its disclosure would disclose matter relating to the deliberative processes of government and, on balance, be contrary to the public interest. Section 46(2) excludes the type of information mentioned in section 41(1) from exemption under section 46, unless it consists of matter communicated by certain persons or bodies other than those listed in section 46(2).

¹B and Brisbane North Regional Health Authority 1 QAR 279 at paragraphs 35-36.