Woodyatt and Minister for Corrective Services
(1993 S0223, 10 February 1995)
The applicant was refused access to a report to the respondent on recommended changes to Queensland’s corrective services legislation, the report being claimed to be exempt under s.36(1) of the FOI Act (the Cabinet matter exemption). The relevant FOI access application was lodged, and the respondent’s decision refusing access was made, prior to the amendment of s.36 made by the Freedom of Information Amendment Act 1993 Qld which took effect from 20 November 1993. The application for review by the Information Commissioner was lodged after that date. It was common ground that the whole of the report in issue was exempt matter if s.36 in its post-amendment form was the applicable law. For reasons explained at paragraphs 26-32, the Information Commissioner found that the report was exempt even under s.36 in its pre-amendment form, except for certain segments which comprised merely factual matter. Whether the applicant was entitled to those segments of merely factual matter depended on whether the applicant had a right to have his FOI access application, and his application for review, dealt with on the basis that s.36 in its pre-amendment form was the applicable law.
Section 20(1)(c) of the Acts Interpretation Act 1954 Qld relevantly provides that the amendment of an Act does not affect a right accrued under the Act. At paragraphs 42-54, the Information Commissioner considered the nature of the right conferred by s.21 of the FOI Act. The Information Commissioner found that when a person lodges an application for access to documents of an agency or official documents of a Minister, which application complies with the requirements of the FOI Act, the person has a legally enforceable right to be given access under the FOI Act to the requested documents, other than any of the requested documents to which the relevant agency or Minister is entitled to refuse (or defer) access in accordance with exceptions to be found in the FOI Act itself. A qualified right is nonetheless a right for the purposes of s.20 of the Acts Interpretation Act.
The Information Commissioner found that the applicant, having lodged a valid FOI access application, had an accrued right to be given access under the FOI Act to any matter contained in the report in issue which was not exempt matter, and was entitled to the benefit of s.20 of the Acts Interpretation Act in respect of that accrued right. If an incorrect decision was made by the respondent such that the applicant was wrongly refused access to matter which at that time he had a right to be given access, it would be fundamentally unjust if, after taking action to enforce his right, he was subsequently denied access solely by reason of a subsequent change in the law which had the effect of making exempt from disclosure that which previously was not exempt from disclosure, and to which he should previously have been given access. It was to prevent injustice of this kind that the common law developed the principle that a statute should not be construed as operating retrospectively so as to override accrued rights (unless it was clearly intended to do so) and that provisions like s.20 of the Acts Interpretation Act have been enacted.
The respondent contended that s.28(1) of the FOI Act, and the scheme of the FOI Act generally, manifested a sufficient 'contrary intention' to displace the application of s.20 of the Acts Interpretation Act. The Information Commissioner rejected that contention for reasons explained at paragraphs 59-73, which include an analysis of s.28(1) and s.88(2) of the FOI Act.
The respondent further contended that the amended s.36 of the FOI Act, particularly s.36(4), manifested an intention to displace the operation of s.20 of the Acts Interpretation Act. For reasons explained at paragraphs 77-84, the Information Commissioner rejected this contention. The Information Commissioner also found, for reasons explained at paragraphs 85-100, that the Freedom of Information Amendment Act 1993 Qld, which amended s.36 of the FOI Act, was not a declaratory Act intended to have retrospective effect.
Hence the Information Commissioner found that the applicant had an accrued right to be given access under the FOI Act to those segments of the report in issue comprising merely factual matter which, by virtue of s.36(2) in its pre-amendment form, was not eligible for exemption under s.36(1) in its pre-amendment form.
At paragraph 58, the Information Commissioner explained that all authorised decision-makers under the FOI Act (whether at the level of primary decision, internal review, or external review) must ordinarily have regard to the relevant facts and circumstances as they stand at the date a decision is given, and ordinarily apply the law in force at the date a decision is given. However, if a change in relevant statute law between the date of lodgement of a valid FOI access application and the date of a decision would affect the applicant’s accrued right to be given access to non-exempt matter (not otherwise subject to an exception provided for in the FOI Act) falling within the terms of the FOI access application, then the decision-maker must have regard to s.20 of the Acts Interpretation Act. If the application of s.20 is not displaced by a contrary intention in a relevant Act, the decision-maker must give a decision in response to the FOI access application on the basis that the applicant’s accrued right is not to be affected by the change in the law. An applicant will ordinarily be entitled to any benefit from a change in the law (unless the statute effecting the amendment makes provision to the contrary), but by virtue of s.20 of the Acts Interpretation Act (unless its application is displaced) an applicant’s accrued right is not to be prejudiced by a subsequent change in relevant statute law. The material facts and circumstances would still have to be assessed as at the time of making a decision, but in light of the law in force before the change in the law took effect. A significant change in material facts or circumstances may still mean that a requested document which was not exempt at the time of lodgement of an FOI access application, has become exempt by the time of making a decision in response to the application (and vice versa), but that is simply a risk which an applicant must bear given the nature of many of the exemption provisions. Section 20 of the Acts Interpretation Act only operates in respect of changes in the statutory law; it does not operate to preserve a state of facts, a material alteration in which might affect an applicant’s right of access.
At paragraphs 11-17, the Information Commissioner expressed views that were critical of the unnecessarily broad scope of the amendments to s.36 made in November 1993 by the Freedom of Information Amendment Act 1993. The original s.36 was predominantly designed to permit secrecy for proceedings within Cabinet and for the contributions of individual Ministers to Cabinet deliberations and decision-making (being the extent of protection necessary, according to the traditional understanding of its scope, for the convention of collective Ministerial responsibility - see Hudson and Department of the Premier, Economic and Trade Development (1993) 1 QAR 123, at paragraphs 13-21). The 1993 amendments, however, seemed designed to extend unqualified protection to the contributions of those who brief Ministers on issues that are to come or may come before Cabinet (amended s.36(1)(c)), any document submitted to Cabinet, whether or not the document was initially prepared for submission to Cabinet (amended s.36(1)(a)), and any document which a Minister has at some time proposed for submission to Cabinet, irrespective of whether that proposal was subsequently abandoned (amended s.36(1)(b)). Documents of this kind would formerly have fallen under the deliberative process exemption (s.41) and would have been exempt only if the disclosure of their contents would be contrary to the public interest.
The requirement under the former s.36(1)(a) that the matter in issue must have been brought into existence for the purpose of submission for consideration by Cabinet, which had placed sensible limits on the scope of the exemption, was dispensed with in the amended s.36(1)(a). Thus, documents submitted to Cabinet merely to provide background information relevant to a proposal contained in a Cabinet submission, and which do not reflect the views of a Minister on the proposal (but which could be valuable for informing the general public, or any interested member thereof) will be exempt, even though not initially prepared for the purpose of submission to Cabinet. The amended s.36(1)(a) was so wide that it would apply to a document submitted to Cabinet which has previously been released in the public domain, such as a Green Paper. It also permitted an avenue for potential abuse of the accountability objects of the FOI Act by enabling an agency or Minister to prevent disclosure of an embarrassing or damaging document, merely by ensuring that it is submitted to Cabinet for its consideration (even though the document was not initially prepared for the purpose of submission to Cabinet). The Information Commissioner expressed hope that the government would issue guidelines to FOI decision-makers encouraging the appropriate exercise of the discretion conferred by s.28(1) of the FOI Act in respect of documents technically exempt under the amended s.36(1)(a), but the disclosure of which could do no harm to the effective working of the Cabinet process.
Shortly after the Information Commissioner released the decision in this case, s.36 was again amended so as to broaden it considerably beyond the scope of the November 1993 amendments. The Information Commissioner commented on the March 1995 amendments to s.36 and s.37 in Chapter 3 of this report. The Queensland government appears to have noted the Information Commissioner's comments in Woodyatt, in relation to retrospectivity of amending legislation, and there appears to be no doubt that the 1995 amendments to s.36 and s.37 were intended to be retrospective in operation.