Cooper and Department of Police

Application number:
1994 S0148
Decision date:
Tuesday, Nov 14, 1995
(1995) 3 QAR 26

Beanland and Department of Justice and Attorney-General
(1994 S0129, 14 November 1995)

Gilmore and Department of Minerals and Energy
(1994 S0137, 14 November 1995)

Borbidge and Department of the Premier, Economic and Trade Development
(1994 S0138, 14 November 1995)

Fagan and Department of Family Services and Aboriginal and Islander Affairs
(1994 S0139, 14 November 1995)

Cooper and Queensland Police Service
(1994 S0148, 14 November 1995)

Cooper and Queensland Corrective Services Commission
(1994 S0153, 14 November 1995)

This decision was made in relation to six applications for external review.  The documents in issue were many hundreds of pages of ministerial briefing notes prepared prior to the hearings of Budget Estimates Committees of the Queensland Parliament in 1994.  Each applicant sought access to briefing notes for a different department or organisation.  Shortly after some of the initial FOI access applications had been made, all ministerial briefing notes for the 1994 hearings of Budget Estimates Committees were collected and placed before a Cabinet meeting.

The cases involved consideration of s.36(1) (the Cabinet matter exemption).  The section was amended during the course of the external review and the amendments were expressed to have retrospective effect.  The Information Commissioner found that the amending legislation made it clear that the Information Commissioner must consider the law as it stood at the time of the decision.  The Information Commissioner further determined that the Information Commissioner must consider the facts (including whether or not the documents in issue had been submitted to Cabinet) as they stood at the time of the decision, rather than at the time the initial FOI access applications were made.

A number of issues raised by the applicants, which were arguable on the wording of the s.36(1) exemption provision as it stood prior to amendment, were clearly disposed of by the amendments.  The Information Commissioner determined that all documents in issue were exempt under s.36(1)(a), as they had been 'submitted' (as that term is defined in the amended s.36(4)) to Cabinet.  As none of the documents had been "officially published by decision of Cabinet" (see s.36(2)), the Information Commissioner found that even documents which had previously been supplied to one of the applicants were exempt matter.

The Information Commissioner criticised the unnecessarily wide scope of the s.36 and s.37 exemptions, following the amendments made to those provisions in November 1993 and March 1995.  The Information Commissioner stated that, in my opinion, these provisions could no longer be said to represent an appropriate balance between competing public interests favouring disclosure and non-disclosure of government information, and that they exceeded the bounds of what was necessary to protect the traditional concept of collective Ministerial responsibility (and its corresponding need for Cabinet secrecy) to such an extent that they were antithetical to the achievement of the professed objects of the FOI Act.  The Information Commissioner also discussed the potential for abuse of the accountability objects of the FOI Act inherent in the amended provisions.