Olsson and Department of Transport
(1993 S0204, 19 December 1995)
This case involved a consideration of the Cabinet matter exemption, in particular, s.36(1)(b) and s.36(1)(f). The matter in issue was portions of a draft Cabinet submission relating to Russell Island. The draft was prepared in 1989 and sent to the Commissioner for Main Roads for comment. As matters transpired, no final submission was presented to Cabinet.
Section 36 was amended during the course of this review, and the Information Commissioner decided (as the Commissioner had in Beanland and Department of Justice and Attorney-General (1995) 3 QAR 26) that the amending legislation was so worded that the amended s.36 had retrospective effect. It was therefore necessary for the Information Commissioner to apply the law as it stood at the time the Commissioner came to make the decision, even though the initial FOI access application had been made prior to the amendment. The Information Commissioner found that a Minister had, at one time, intended that a submission based on the draft submission be put to Cabinet. The Information Commissioner therefore determined that the document was a draft of matter mentioned in s.36(1)(b), and that the parts still in issue were exempt under s.36(1)(f).
An unusual aspect of the case was the fact that the applicant had previously been given access to the document by way of inspection. The Department contended that this was done inadvertently in the course of the inspection by the applicant of a large number of documents. The applicant argued that by disclosing the document the Department had waived its right to claim that the document was exempt. The Information Commissioner indicated that for many exemptions (eg, exemptions containing a public interest test or those where the confidential nature of information is a requirement), prior publication or grant of access would be relevant in determining the status of the document. However, the Information Commissioner indicated that s.36(1) was not a provision of this type, and that, except in the limited circumstances set out in s.36(2), prior publication or grant of access would not be relevant.
The applicant also argued that once it had given access in one form, the Department could not deny further access in that form or any other form, and further that he had a contractual right to access. In response, the Information Commissioner referred to s.88(2), which bars the Commissioner from directing that access be given to exempt matter. The Information Commissioner indicated that once the Commissioner has determined that matter is exempt, the Information Commissioner is not in a position to direct an agency to give access to it. In relation to both claims, the Information Commissioner explained that the Commissioner's review powers are limited to those spelled out in the FOI Act, and that if he wished to pursue the claims he would have to do so in another forum, as the issues raised were beyond the Information Commissioner's power to determine.
Finally, the Information Commissioner referred to the discretion which agencies hold to give access to matter which is technically exempt (see s.28(1)). The Information Commissioner ventured the opinion that this was an appropriate case for the Department to exercise its discretion in favour of disclosure.