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TEXT OF SECTION

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INTRODUCTION 

The head of a public body can refuse to grant access to a record if that record

(i) was submitted, or is intended to be submitted to Government, or a Government committee, (ii) is a Government record other than a published Government decision, or

(iii) contains information for individuals attending meetings of Government (including committee thereof) for sole use at such meetings. In addition, the head must refuse access if the record concerned relates to all or part of a statement made at a Government meeting.

Material other than that relating to Government deliberations cannot be protected by this exemption if it relates to a Government decision which is more than five years old, or, if it constitutes factual information and the Government decision to which it relates has been published.

If a head wishes to grant access to requests relating to Government memoranda (or drafts) or Government records less that five years old s/he must first consult with the leader of each political party (or any member of the Government who was not a member of a political party) involved in making the decision to which the record relates.

KEY WORDS AND PHRASES

Submitted to Government - Includes bringing the matter to Government meetings, irrespective of the purpose of the matter, how submitted or the position taken by Government. The definition of "Government" includes Government committee.

Decision of the Government - This would appear to capture both formal and informal decisions as well as noting or approval by Government of material considered by it.

Statement made at a meeting of the Government - This constitutes a record which contains the whole or part of comments or exchanges made at a Government meeting, or from which may be inferred such comments or exchanges of the Government. Such material is subject to Cabinet confidentiality.

ELEMENTS OF THE SECTION

Section 19(1)

The head of a public body can refuse to grant access to a record if that record meets any one of the following conditions:

19(1)(a)

A record which was submitted, or is intended to be submitted to Government, or a Government committee. Records in this heading would include final or draft versions of Government Memoranda, Aide Memoire etc. Evidence that a record had been submitted to Government, or is being circulated as a draft memorandum, should suffice to enable decision makers to claim exemption. In the case of material in preparation for Government, the format, structure, and content of the record would normally provide clear indications as to it purpose.

The thrust of legal opinion abroad(1a) is that this is a class exemption, ie. if material falls within the stated definitions, it is exempt, subject only to the exception set out in the Section. There is no need to apply a reasonable expectation, injury or public interest test as is the case in other exemptions. The available opinion(1b), as regards whether documents were submitted to Cabinet, is that it does not matter who prepares the material, as long as it was prepared for purpose of presentation to Government.

In the case of disputed documents, precedent abroad indicates(1c) that a sworn statement by the relevant Minister might be needed to confirm that such a record was indeed destined for Government. The absence of such a statement would oblige the Commissioner to make a decision on the Minister's intentions in this area. OR

The second condition is that the record is a Government record other than a published Government decision. This provision offers protection to material such as an agenda for a Government meeting, informal Government decisions, notations, confidential decisions and the like. OR

19(1)(c)

The record contains information for individuals attending of Government (including committee) meetings for sole use at such meetings. Available legal opinion(1d) on this point is that all the elements of Section 19(1)(c) would have to be met before the exemption could be applied, i.e. the material would have to have been prepared for the person attending a Government meeting, and relate to Government business at a particular Government meeting.

A head is required under subsection (2) to refuse access to a record relating to a meeting of the Government where the record contains all or part of a statement made at a Government meeting and is not a memorandum, aide memoire etc. for Government or related briefing or is not a published Government decision. The underlying purpose of this provision is to maintain convention and constitutional requirement in relation to discussions at Cabinet .

Section 19(3)

The material described in Section 19(1) (i.e memoranda, aide memoire etc,) cannot be protected by this exemption if:

- it relates to a Government decision which is more than five years old, or

- insofar as it constitutes factual information and the Government decision to which it relates has been published.

Therefore, the discretion to refuse to release records under this category lapses 5 years after the Government decision relating to the records in question, or in the case of factual information, as soon as the relevant Government decision is published.

However the separation of factual information and analyses thereof from other material, such as advice is not always readily achieved. Precedent abroad suggest two areas of critical overlap:

(i) Summaries of factual information which are of such a character as to disclose a process of selection involving opinion, advice or recommendation

(ii) Statements of conclusions reached while apparently factually based, may sometimes involve opinions or advice.

Experience abroad confirms that in some circumstances factual material may be "inextricably intertwined" with exempt records. In such cases, where reasonable effort has been made by a public body to separate exempt from other material (consistent with section 13), exemption may be claimed.(2)

Section 19(4)

A head cannot decide to grant FOI requests relating to Government memoranda (or drafts) or Government records (other than a published Government decision) less than five years old unless s/he has consulted with:

- the leader of each political party and

- any member of the Government who was not in a political party

who made the decision to which the requested record relates.

This subsection carries the proviso "in so far as it is practicable to do so". This would appear to be designed to address exceptional situations such as where a non-party member of the Government had died.

Section 19(5)

This subsection provides for the head to refuse to disclose whether or not a particular record or records exist if he or she is satisfied that such disclosure would be contrary to the public interest. This provision is most likely to be appropriately invoked in respect of sensitive records coming within the scope of sections 22 (Legal professional privilege), 23 (Law enforcement) or 24 (Security, defence and international relations). These provisions are necessary because in some instances, merely confirming the existence of information will directly or implicitly disclose sensitive information.

This refusal to confirm or deny provision, which is subject to particular criteria, gives the public body, the option of responding to a request in an equivocal fashion and thus not "giving the game away". By not confirming that a record even exists, a requester can be prevented from drawing inferences which might otherwise be available. Such a response is justifiable in this section on the grounds that disclosure of the existence or non-existence of the record would be contrary to the public interest.

Clearly this provision lessens the duty to provide reasons for the decision to the requester. While the Act requires that reasons for use of the provisions be given to requesters, it excludes the obligation as to findings on material issues of fact and particulars of the public interest (s 8(2)(d)(ii)).

The decision making process described in the earlier part of this manual must also be used here, and the decision to use the provision is reviewable. Decisions to refuse to confirm or deny constitute a refusal to give access to a record under the Act. All the records must be examined by the reviewer (if they exist) to enable him to form his or her own view about whether the application of the provision was appropriate.

Further guidance on the application of the confirm or deny provision is set out in parts 7 and 8 of this manual dealing with Law Enforcement matters (section 23) and Defence / Security matters (section 24).

Section 19(6)

This subsection defines the following terms as used in the section:

"Decision of the Government" includes the noting or approving of the Government of a record submitted to them;

"Record" includes a preliminary or other draft of the whole or part of the material contained in the record; and

"Government" includes a committee of the Government which is defined as a committee appointed by the Government whose membership consists of members of the Government, or members of the Government together with Ministers of State and/or the Attorney General.

THE CPU RECOMMENDS

Department are advised, that:

(1) as a matter of course they should prepare their Memoranda and Aides Memoire for Government in a structure which readily enables access to factual information underlying published decisions,

(2) they should remember that the entire Memoranda etc could, subject to other exemptions, be accessed five years following the relevant Government decision.

(3) each Department should actively seek out, own and deal with FOI requests relating to memoranda, aide memoirs which it has sponsored. Notice to this effect setting out particular access arrangements might be given when publicising a particular Government decision.

(4) Departments abroad issue contextual statements when announcing Government decisions on significant policy issues. These statements set out the detailed pros and cons of the issues considered and are routinely available outside of FOI. Experience suggests that this approach obviates the need for the public to make FOI requests in relation to such decisions.

(a - 1d)Re Little and Ors and Department of Natural Resources (Information Commissioner, Queensland, Decision No.96002, 22 March 1996) (Re Little)

2. Ryan v US Department of Justice 617F 2nd 781 (DC CIR 1980)

Mead Data Central Inc v Department of US Air Force

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