Sandy and Brisbane City Council
(210797, 18 September 2009)
Section 46(1)(a) matter communicated in confidence
Section 46(2) non application to matter of a kind mentioned section 41(1)(a)
41(1)(a) matter relating to deliberative process
The applicant applied to Brisbane City Council (BCC) for documents or reports since 1 January 2007 relating to ‘the parity factor concerning Community Title Scheme (CTS) units’. BCC refused the applicant access to the documents under section 46(1)(a) of the FOI Act.
The matter in issue comprised a variety of documents ranging from PowerPoint presentations to Minutes of the Lord Mayor’s Expenditure Review Committee (LMERC).
Assistant Commissioner Henry’s preliminary view was that the matter in issue did not qualify for exemption under section 46(1)(a) of the FOI Act because it fell within section 46(2) and it did not qualify for exemption under section 41(1).
Section 46(2) of the FOI Act operates so that matter relating to the ‘deliberative processes’ of government cannot be exempt under section 46(1) of the FOI Act unless its disclosure would found an action for breach of a confidence owed to a person or body other than the State of Queensland, an agency or relevant official. Accordingly intra-agency and inter-agency communications of deliberative process matter cannot qualify for exemption under section 46(1) of the FOI Act.
BCC submitted in response that:
· LMERC was not an agency for the purposes of the FOI Act
· LMERC was similar in function to the Executive Council and Expenditure Review Committee of the State Government
· the matter in issue did not form part of the ‘deliberative processes of government’
· the documents were part of an investigatory mechanism set up to present options to the Lord Mayor for inclusion in his budget
· section 41(1) of the FOI Act applied only to protect documents that record the process of deliberation
· section 41(1) of the FOI Act did not apply to documents containing expert opinion or analysis
· release of the material would be contrary to the public interest in that it would prejudice the provision of budget material to the Lord Mayor.
In response to BCC’s submissions the Information Commissioner considered:
· the Executive Council and Expenditure Review Committee fell within the ambit of the FOI Act
· while there are exemption provisions applicable to the Executive Council and Cabinet, there were no equivalent references to Council’s committees
· section 8(2)(b) of the FOI Act contemplated that a body comprised within an agency constituted the agency
· LMERC is a committee established by the Lord Mayor to perform functions connected to Council
· The documents were prepared by Council officers in the course of their duties and could not be considered as experts retained for this purpose
· Section 41(1)(a) encompasses both documents prepared for the purposes of the deliberative processes of government as well as documents recording the deliberative processes of government
· documents concerning the pre-decisional thinking processes of government were valuable in furthering accountability and public understanding of the operations of government agencies and accordingly, there was public interest in the public being able to access these types of documents.
In Summary the Information Commissioner found that as the documents related to the deliberative processes of government and prepared by Council Officers, the documents were not exempt under s46(1)(a).