Fagan and Minister for Justice and Attorney-General and Minister for the Arts
(1993 S0064, 26 May 1995)
This was the first case involving review of the grounds for issue of a ‘Ministerial Certificate’ under s.42(3) of the FOI Act. In this case, the Minister had issued a certificate in relation to four documents comprising reports to the Premier by the Criminal Justice Commission on the extent and effect of Japanese organised crime in Queensland.
At paragraphs 26-28, the Information Commissioner referred to the formal requirements for a valid Ministerial Certificate, following decided authority from the Federal Court of Australia.
At paragraphs 29-30, the Information Commissioner held that the Office's jurisdiction was confined to considering the reasonableness of the grounds on which a Ministerial certificate was given, rather than assessing the reasonableness of a course of conduct adopted by the Minister culminating in the issue of a Ministerial Certificate.
At paragraphs 36-43, the Information Commissioner rejected a contention by the respondent that the documents in issue should be treated as entire documents, since it would not be appropriate to sever each document and consider the status of each subdivided portion (as contended by the applicant). In other words, the Information Commissioner was being asked to overlook any portions of matter contained in the documents that were not exempt matter, because the documents considered as a whole were clearly exempt. The Information Commissioner considered that this was not a permissible approach for reasons explained at paragraphs 36-39, in which the Information Commissioner addressed the significance of the framing of exemption provisions in terms which refer to exempt matter rather than exempt documents.
The respondent also submitted that in reviewing whether matter was exempt, the process of review should not be conducted on a sentence by sentence, line by line, or piecemeal approach. At paragraph 43, the Information Commissioner said that the Office had general sympathy for such an approach, but the Commissioner cautioned against the application of any fixed rule. A common sense judgment must be made in the circumstances of each case, in light of the amount and nature of the information in issue, as to what constitutes an intelligible segment of matter, to which the particular applicant would wish to be given access. It is not difficult to envisage situations where a single word, or a few words, may constitute an intelligible segment of matter to which the applicant would wish to be given access, e.g. a name, or the title of an Office, or the title of a source document.
At paragraph 46, the Information Commissioner attempted to explain and illustrate the nature of the difference between review of the merits of a decision (which the Information Commissioner ordinarily undertakes) and the more limited form of review permitted by s.84 of the FOI Act, when a Ministerial certificate has been issued.
For reasons explained at paragraphs 47-50, the Information Commissioner was satisfied that there were reasonable grounds for the Minister to certify that all of the matter in issue was exempt matter under s.42(1)(a) of the FOI Act.