Cianfrano v Director General, Department of Commerce and anor

REASONS FOR DECISION 1 This decision deals with the first of two applications for review, heard together, as they concern related determinations of the respondent agency made under the Freedom of Information Act 1989 (the FOI Act or the Act) (file numbers 043884 and 053067). 2 By letter dated 25 September 2003 the applicant made an application for access to the following documents pursuant to the FOI Act, as follows: 'All documents of the Department of Commerce, NSW or Department of Public Works and Services and all other Agencies and or agents etc, in relation to all internal working documents and all factual and statistical material relating to, of the Land Know [sic] as Flemington Markets at time of Sale to a private company known as Sydney Markets Limited. This to include any preparation and finalization of the lease or assets and business interests of the Sydney Market Authority and the entity of Sydney Markets Limited.' 3 This one of a number of requests made by the applicant to various government agencies in connection with the Government's reorganisation of the operation of the Sydney Markets at Flemington; first around 1997 by dissolving the Sydney Market Authority, and leasing the markets to a new operator, Sydney Markets Ltd (SML) and then in 2002 selling the markets' land and facilities to SML. The agency is the first respondent to the application for review; and SML is the second respondent, its application to be joined to the proceedings as an interested party having been granted by the Tribunal. The Department of Commerce is the successor department to the Department of Public Works and Services (DPWS) which had a substantial involvement in the leasing and sale processes. 4 Initially there was a dispute between the applicant and the agency over fees and charges for processing the request. This Tribunal affirmed the agency's decision under s 21 of the FOI Act to require an advance deposit, dismissing the applicant's application: Cianfrano v NSW Department of Commerce [2004] NSWADT 134, decision delivered in July 2004. The applicant and the agency resolved this issue, and the agency proceeded to deal with the substance of the access application. 5 The agency's determination on the substance of the request was made 16 November 2004. It was made by the head of agency (the Director-General) and is, therefore, not subject to internal review. The applicant filed his application for review on 2 December 2004. At an early planning meeting in the Tribunal the agency said that it had initially granted access to 1241 documents affected by the request, but withheld 1066 documents. As these numbers indicate, the request is one of some scale. By letter dated 9 February 2005 additional documents set out in the schedule to that letter were released to the applicant. At hearing the number of documents the subject of a claim to exemption was 322. 6 The Tribunal heard the application on 6 and 7 June 2005. Exempt Document Claims 7 Under the Act, an access applicant has a right to be given access to all documents requested (s 16) subject to certain qualifications. In this instance the agency has exercised its discretion to refuse access to certain documents (s 25(1)) on the ground that they are 'exempt documents' within the meaning of the Act (s 25(1)(a)). Section 6 (the definition section) provides: ' exempt document means: (a) a document referred to in any one or more of the provisions of Schedule 1, or (b) a document that contains matter relating to functions in relation to which a body or office is, by virtue of section 9, exempt from the operation of this Act.' 8 In this instance both aspects of the definition are relevant. The agency has relied on the following exemptions: legal professional privilege (cl 10 of Schedule 1 to the Act); business affairs (cl 7); exempt office (Auditor General) (Schedule 2 to the Act); and Cabinet documents (cl 1 of Schedule 1). 9 The burden of proof lies on the agency. Section 61 provides: ' 61 Burden of proof In any proceedings concerning a determination made under this Act by an agency or Minister, the burden of establishing that the determination is justified lies on the agency or Minister.' Evidence 10 The agency lodged confidentially with the Tribunal four folders of documents to which access had been wholly or partially refused (Confidential Ex B). Of the four folders, two contain documents claimed to be Cabinet documents; and the whole of one other folder and part of the remaining folder contain documents claimed to be protected by legal professional privilege. 11 The Tribunal received affidavit and oral evidence from Mr Jacob Hoogesteger and Mr Phillip Havenstein. 12 Mr Havenstein is the Freedom of Information Co-ordinator, Department of Commerce. This is one of the responsibilities of the position he holds - Senior Project Officer, Compliance. His affidavit sets out the history of the agency's action in relation to the applicant's access application. He refers to the documents under the headings and sub-headings: (a) Legal Professional Privilege - (i) Communications between Departmental officers and legal practitioners external to the Department; (ii) Communications between Departmental officers; (iii) Communications between external legal representatives; (iv) lease, contract and special conditions; (v) Court documents; (vi) other communications. (b) Cabinet Documents (c) Audit Office (d) Documents affecting Business Affairs (e) Public Interest Issues. 13 Mr Hoogesteger is a Senior Development Manager with the respondent agency, the Department of Commerce, and had previously been an officer of DPWS. His responsibilities include managing the disposal of government property. He supplied the Tribunal with two affidavits, one open, the other confidential to the Tribunal (Ex D and Confidential Ex E respectively). In his open affidavit he dealt with the following matters: the background to the lease and sale of the Sydney Markets site; the establishment and role of the Taskforce established by Cabinet in 1999 to advise on the possible sale of the Sydney Markets site; the involvement of DPWS in this process; and the role of the Crown Solicitor. The confidential affidavit is supplementary to paragraph 20 of the open affidavit, and relates to the Cabinet documents exemption. Submissions 14 The respondent agency has made detailed written and oral submissions (the written submissions were filed 19 April 2005). The second respondent, SML, made written submissions (filed 3 June 2005) in support of the applicability of the business affairs exemption to certain documents; and spoke to them briefly at hearing. 15 There were five documents from the applicant containing written submissions: marked A1 to A5 by the Tribunal. Exemptions Relied Upon Legal Professional Privilege 16 Documents 0-120B were the subject of this claim. 17 Clause 10 of Schedule 1 provides: ' 10 Documents subject to legal professional privilege (1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege. (2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency's policy document.' 18 The Relevant Law: The Tribunal and Appeal Panel has now dealt in a number of decisions with the content of the relevant principles, including in cases involving the present applicant (or his associate in a number of the cases, Mr Saggers); see most recently, Saggers v Director General, Attorney General's Department [2005] NSWADT 193; also, Cianfrano v Director-General, Premier's Department NSW & anor [2004] NSWADT 255 at [29]-[35]; Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135, and they were also dealt with by the Appeal Panel in Law Society of New South Wales v General Manager, Workcover Authority of New South Wales (GD) [2004] NSWADTAP 40. I adopt the statements of law in those cases. 19 In these reasons, I note again Lockhart J's well-known categorisation of documents affected by legal professional privilege in Trade Practices Commission v Sterling (1979) 36 FLR 244, 245-6, which the agency has used as an organising basis for its submissions: '(a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them. (b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used. (c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance. (d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf. (e) Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. (f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. (g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent.' 20 The agency categorised the documents affected as follows: 21 Group 1A: Communications between Departmental Officers and legal practitioners external to the Department. The agency has accurately described these as documents consisting in correspondence by letter, memorandum or email from the Crown Solicitor's Office (Mr D Wilson, Ms J Anderson or Mr B Rowe) to Mr W Green at Premier's Department, Mr Paul Hucker at Treasury, or Mr Hoogesteger at the agency or DPWS, or the Ministerial Holding Corporation (an entity used in connection with the property sale), giving advice on contracts, and enclosing draft contracts. The agency has accurately stated that included in these documents are copies of legal opinions prepared in respect of the matters involving SML from counsel and solicitors other than the NSW Crown Solicitor, and copies of correspondence from the Crown Solicitor's Office (CSO) to the solicitor for SML (Leon Salkaris, Middletons Moore & Bevins (MM&B)). 22 Assessment: I am satisfied that the exemption has been properly claimed in respect of the documents nominated: Documents 0, 1, 2, 5-12, 16, 18, 20 (page 6), 21-25, 27, 29, 31-38, 41-43, 45, 46, 50B-52, 55-59, 64, 65, 67-73, 78-79, 82-84, 87-108, 110-119, 120A. 23 Group 1B: Memoranda or facsimiles within or between Premier's Department, Treasury or the Department or DPWS in respect of matters involving SML, communications between those Departments enclosing covering letters from CSO to Premier's Department or enclosing draft correspondence with MM&B, for comment or approval, or enclosing draft letters to the CSO for comment or approval. 24 Assessment: I am satisfied that the exemption has been properly claimed in respect of the documents nominated: Documents 00, 3, 4, 13, 15, 17, 26, 28, 30, 40, 44, 47, 48, 49, 50, 50A, 53, 54, 60, 62, 63, 66, 74-77, 80, 81, 85, 86, 109, 120, 120B. 25 Comments: In his written submissions on these claims (submission A1), the applicant notes that some of the officers connected to the documents (Mr Green, Mr Hucker and Mr Hoogesteger) are not legal practitioners or legal officers. It is clear that they are officers of the client, whether that is characterised as being a particular Department or Departments, the Government of New South Wales as a whole or, as Ms Allars put it in her submissions, 'Her Most Gracious Majesty Queen Elizabeth II, in whom is vested the Crown's reversionary interest in the Flemington Markets site'. They are all officers of Departments that belonged to the Taskforce set up by Cabinet to examine a possible sale and superintend the process. 26 The evidence and the documents clearly establish that the CSO was consulted in a professional capacity. Clearly the legal practitioners involved (officers of the CSO and solicitors from MM&B) must deal with their clients' relevant officers. The documents reflect conventional solicitor-client communications in a relatively complex commercial setting. 27 Given the nature of the deal which was the subject of the documents, the documents include non-legal commercial or strategic advice. I am satisfied that the documents remained entitled to the protection of legal professional privilege applying the principle stated by Taylor LJ in Balabel v Air-India [1988] 1 Ch 317 at 330; applied, Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325, DSE (Holdings) Pty Ltd v Intertan Inc (2003) ALR 348, see esp 358-359 per Allsop J, and, in circumstances similar to the present, Cianfrano v Director General, NSW Treasury [2005] NSWADT 7 at [56]-[58]. To similar effect, referring to mixed policy and legal advice, see Waterford v Commonwealth (1987) 163 CLR 54 at 103 per Mason and Wilson JJ. Business Affairs 28 Documents 121-129 were the subject of this claim. SML supports the agency's submission that the documents should be withheld. The agency relies on cl 7(1)(c). Sub-section (2) contains a non-relevant qualification. ' 7 Documents affecting business affairs (1) A document is an exempt document: … (c) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and (ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.' 29 Dealing with the context under notice in this case, I have previously held that the commercial affairs of an agency include transactions such as the leasing and sale of property vested in it, and negotiations: Cianfrano v Director General, NSW Treasury [2005] NSWADT 7 at [63]. I have scrutinised the documents in issue, and they all contain information relating to the commercial affairs of the agency or DPWS as they related to the possible sale of the Sydney Markets site. For similar reasons, that conclusion extends to a person other than the agency, such as SML, which was a negotiating party. Section 7(1)(c)(i) is satisfied both in relation to the agency and SML. 30 The key requirement is (ii). In Vincent Neary v State Rail Authority [1999] NSWADT 107 (Neary) at [35], there referring to the situation of an agency which is seeking the protection of the exemption, I said: '35 An objective view must be brought to bear on an agency's claim that release will have an adverse impact on its financial affairs. The Tribunal should approach issue from the viewpoint of a reasonable administrator. The administrator should have reasonable grounds for his or her perception. There must be more than a mere risk. While the key word used in the relevant provision - 'expect' - carries a firmer connotation than words such as 'anticipates', it is not necessary that the level of risk be such that it be assessed as more probable than not. Nor is it necessary for the administrator to apply a balance of probabilities calculus similar to that used to set the burden of proof in litigation. All relevant factors, including public interest considerations, should be taken into account. The extent and nature of the effect will be relevant, and often decisive. It is necessary to assess what is reasonable in the circumstances. 36 That approach emerges from a consideration of the Federal Court cases which examined this issue in the context of the early Commonwealth FOI cases concerned with the interpretation of the similar Commonwealth exemption ( Freedom of Information Act 1982 (Cth) s 43). See News Corporation v National Companies and Securities Commission (1984) 5 FCR 88 and Attorney-General's Dept v Cockcroft (1986) 64 ALR 97; Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111 at 120-1, 123-4; Searle Australia v PIAC (1992) 108 ALR 163, 178 and generally, Cossins, Annotated Freedom of Information Act New South Wales (1997) [107.15]-[107.18].' 31 The same reasoning is applicable to the situation of a third party such as SML. 32 In the case of Documents 122, 123, 125, 126, 127, 128 and 129, it is the possible harm to SML's interests which is the issue. Document 122 contains an offer to purchase from SML. It clearly belongs to the private negotiation phase ahead of the ultimate sale. Document 123 refers to advice given by a firm of valuation consultants explaining how they reached the price reflected by the offer. It contains detailed reference to their reasoning processes. Document 125 has three components, the first being Document 122, the second being Document 123 and the third being a new document being the valuation by the same firm of valuation consultants of the amount to be allowed for a railway siding. Document 126 is a new letter of offer from SML addressed to Mr Max Bowen, who was engaged by the Government as a consultant to assist it in the negotiations; plus draft comments prepared by Mr Bowen. Document 127 comprises the documents making up Document 125 with some handwritten annotations. Document 128 comprises the same documents as Document 125. Document 129 comprises the same documents as Document 125 with handwritten annotations plus a facsimile cover sheet to the letter of offer, containing text and with various handwritten annotations on it. 33 The applicant, not surprisingly as a strong critic of the Government's actions in relation to the Sydney Markets, wants to see all the information held in its agencies relating to the ultimate sale. 34 The agency notes Mr Hoogesteger's evidence that the Auditor General reported to Parliament in 2002 on the sale, and that includes reference to the negotiated selling price, $83.5m, based on an independent valuation obtained by Crown Property Portfolio of $87.7m, less $4.2m at the agreed settlement of all claims by the lessee (SML) against the lessor (the Queen). 35 SML similarly notes that it was involved in a very substantial commercial transaction; and that the essential terms of the sale (such as title, parties and price) are not subject to confidentiality. 36 SML notes that it has confined its objection to certain confidential documents which passed between itself and the Government concerning the terms of SML's offer to the Government. SML submits that such documents if made public would provide an insight into SML's methodology for the valuation of its principal asset, namely the land on which Sydney Markets conducts its business. It submitted that the making available of the detailed terms of SML's offer to the Government and the manner of negotiation, will release confidential information of SML concerning its valuation of the site. This will, it was submitted, prejudice SML's interest in any future sale of the site. 37 SML does not wish to have revealed to the outside world its offers and their foundation. It was involved in a confidential negotiating process. The ultimate outcome is known. 38 There would, I consider, be an adverse effect on the affairs of private bidders as well as on the agencies with which they deal if details of unsuccessful offers and their foundation were to be revealed. It is generally not desirable that a negotiation process be held out later to public view especially if the final outcome is known. I am satisfied that disclosure: could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency. 39 The two documents that remain to considered are Documents 121 and 124. These documents relate to the engagement of a valuation consultant by the Taskforce. The documents are communications from Mr Bennett to a senior officer of the Taskforce (Mr R Calligeros). Document 121 is headed 'draft' and contains some instructions as to the scope of the engagement and his fees. Document 124 is the second page of the same document with some handwritten annotations alongside the fee information. 40 It is apparent from the documents that they belong to the period when the scope of the engagement and the fees were under discussion. Mr Havenstein's evidence is that Mr Bennett has been consulted and opposes their release on the grounds it would breach confidentiality between him and his client. 41 These are matters involving the financial affairs of the agency: see Neary at [33]. As to the information in dispute in that case, I said: '40 As to the information in relation to expenditure on services provided by the Crown Solicitor's Office, release of information as the total amounts paid does not, I consider, place at risk in any meaningful way the nature of the arrangements that might exist between the agency and that Office. The only information shown in the invoices which might, arguably, fall within the protection of the exemption is the reference (found in hand-writing on two of the invoices) showing a multiple of a number (the hours of service rendered) and an hourly rate. 41 That information does, I consider, bear on the contractual relationship between the agency and the Office. It gives an insight into what rate the Office charges for a certain class of work. That information, if known to others with whom the agency deals in relation to the provision of legal services, might give an advantage to those third parties in negotiation of rates. Consequently, applying the tests referred to, I consider that the hand-written references to the hours and hourly rates should be exempted from disclosure.' 42 I have the same view in this instance. In this instance the references in the two letters to the proposed rate, the reference to the number of hours and the grossed-up rate proposed should be protected, along with the hand-written notations. To be more precise, the whole of the last substantive paragraphs of Documents 121 and 124 should be protected, along with the handwritten notations on Document 124. I should indicate that I can see no basis for protecting the grossed-up rate finally paid. I am proceeding on the assumption in making these observations that the final agreed grossed-up amount has not been concealed in the case of any document in which that appears. 43 I do not think that an unreasonable adverse effect on the financial affairs of the Government or Mr Bennett or prejudice for Government to the future supply of the kind of information contained in Mr Bennett's communications would arise from release of the remainder of Documents 121 and 124. They contain statements as to the scope of the engagement which are, in my view, unproblematic; and would, I think, not be unusual. 44 The applicant contends, in my view unpersuasively, that the documents discussed do not involve commercial or financial affairs of the Government or of the third parties (SML and Mr Bennett) within s 7(1)(c). As to the issue of adverse impact or future prejudice, he argues that there can be none, as I understand him, on the basis that the Sydney Markets site is a 'one-off' transaction with SML always having been the most likely purchaser. This submission is also unpersuasive. 45 Governments may well in the future decide to dispose of a major asset that has had a defined community use in circumstances where, if the use is to be maintained, the field of potential purchasers may well be quite limited. The scale of the disposal even if not surrounded by special limitations relating to future use may itself limit the field of potential purchasers. The sale of Sydney Markets was only unique in the sense that there could never be another sale involving this particular activity in future, as the Government has left the field of operating markets of that kind. The protection afforded by s 7(1)(c) is expressed in generic terms; and must be applied to any particular case in that way. The statements in Neary deal with the question of the general approach to be taken. As it happens, that case did involve a question about disclosure of fee information; and, as my reasons indicate, I see it as relevant. Exempt Office 46 Documents 130-139 were the subject of this claim 47 Section 9 provides: ' 9 Certain bodies etc exempt from operation of Act Any body or office specified or described in Schedule 2 is, in relation to such of the functions of the body or office as are so specified or described, exempt from the operation of this Act.' 48 Schedule 2 provides relevantly: ' Schedule 2 Exempt bodies and offices (Section 9) The office of Auditor-General - investigative, audit and report functions.' 49 The evidence is that all the documents are concerned with the Auditor-General's audit in 2001 of the Crown Property Portfolio (CPP): see further Mr Hoogesteger's affidavit. The agency notes accurately that the documents consist in drafts of the Auditor General's report to Parliament, 2001 and comments received by the Auditor-General from the Taskforce in relation to that part of the report dealing with the Flemington Markets site. The final report of the Auditor-General to Parliament is a public document. The submission is that the documents contain matter relating to the reporting functions of the Auditor-General in relation to the Auditor General's office and are therefore exempt under s 9 and Schedule 2. 50 The relevant statutory responsibilities of the Auditor-General are set out in the Public Finance and Audit Act 1983 (PFA Act). 51 The office of Auditor-General is a key office in ensuring that the finances of the State are managed in a prudent way. The role of the Auditor-General, the office's powers and responsibilities and its relationship to the Government and the Parliament are dealt with by Part 3 of the PFA Act (ss 27B-52F). The functions of the Auditor-General are set out in s 27B of the PFA Act: ' 27B The Auditor-General (1) There is to be an Auditor-General for the State. (2) The Auditor-General has the functions conferred or imposed on the Auditor-General by law. (3) The Auditor-General's functions include the following: (a) to audit the Total State Sector Accounts and any other accounts that the Auditor-General is required or authorised to audit by law, (b) to provide any particular audit or audit-related service to Parliament at the joint request of both Houses of Parliament, (c) to provide any particular audit or audit-related service to the Treasurer at the request of the Treasurer or to any other Minister at the request of that other Minister, (d) to report to Parliament as required or authorised by law, (e) to do anything that is incidental to the exercise of the Auditor-General's functions. (4) The Auditor-General may exercise his or her functions in such manner as the Auditor-General thinks fit. However, the Auditor-General is required: (a) to have regard to recognised professional standards and practices, and (b) to comply with any relevant requirements imposed by law. (5) The Auditor-General may, in the exercise of his or her functions, have regard to whether there has been: (a) any wastage of public resources, or (b) any lack of probity or financial prudence in the management or application of public resources. (6) Nothing in this Act entitles the Auditor-General to question the merits of policy objectives of the Government, including: (a) any policy objective of the Government contained in a record of a policy decision of Cabinet, and (b) a policy direction of a Minister, and (c) a policy statement in any Budget Paper or other document evidencing a policy direction of the Cabinet or a Minister. (7) In this section, by law means by or under this or any other Act or law.' 52 The documents are accurately described by Mr Havenstein in his affidavit as follows: 'Document 130 sets out a recommended amendment to an Amended Audit Report prepared by the Auditor-General and attaches a draft version of the Auditor-General's Report to Parliament 2001 Volume Five. Document 137 is a duplicate, with hand written notations. Document 131 notes all information on the attached sheet is to be treated as confidential and attaches page 2 of Document 130. Document 132 has been released with the exception of page 4 of the document. Page 4 details a draft update on the Flemington Markets Property, for report to Parliament. Documents 134 and 138 are duplicates of Document 132. Document 133 is a fax to the Treasurer from the Audit Office and attaches a draft version of the Auditor-General's Report to Parliament 1998 Volume One. Document 135 is a duplicate of page 2 of Document 4 (with additional documents). Document 136 contains an email suggesting a rewording of an audit report to Parliament. It also contains a duplicate of Document 3 and a document obtained from the Audit Office. Document 139 is the first page 1 of the draft version of the Auditor-General's Report to Parliament 2001 Volume Five, with additional hand written notations.' 53 All documents relate to the Auditor-General's reporting activity. Though there is no direct evidence from the Auditor-General on the point, the Tribunal recognises that it is a usual aspect of the reporting function of oversight bodies such as the Auditor-General to consult agencies in the course of drafting reports, and to have regard to comments on draft texts, before finalising those texts and publishing them to the world through report to Parliament. 54 The documents are exempt by virtue of s 9. Cabinet Documents 55 Documents 140-322 were the subject of this claim. 56 Clause 1 of Schedule 1 provides: ' 1 Cabinet documents (1) A document is an exempt document: (a) if it is a document that has been prepared for submission to Cabinet (whether or not it has been so submitted), or (b) if it is a preliminary draft of a document referred to in paragraph (a), or (c) if it is a document that is a copy of or of part of, or contains an extract from, a document referred to in paragraph (a) or (b), or (d) if it is an official record of Cabinet, or (e) if it contains matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet. (2) A document is not an exempt document by virtue of this clause: (a) if it merely consists of factual or statistical material that does not disclose information concerning any deliberation or decision of Cabinet, or (b) if 10 years have passed since the end of the calendar year in which the document came into existence. (3) Subclause (2) (b) does not apply to a document that came into existence before the commencement of this clause. (4) In this clause, a reference to Cabinet includes a reference to a committee of Cabinet and to a subcommittee of a committee of Cabinet.' 57 This exemption finds its justification in the primacy of Cabinet in the Westminster system of democratic government. It preserves the constitutional convention of collective ministerial responsibility. It seeks to ensure that what is said in Cabinet remains in Cabinet. As with any committee process, there will often be a range of views and a wide range of material canvassed before a final decision is reached. Under the Westminster system all Ministers are bound by the final decision, and must speak with one voice in relation to it. The same is true of other decisions taken on the way to the final decision. These principles are well-known, and they find their expression in such terms as 'Cabinet solidarity'. 58 It will be seen that cl 1(4) defines 'Cabinet' so as to cover three organs of Cabinet - Cabinet itself, a Committee of Cabinet and a Subcommittee of Cabinet. 59 While, in my view, it is clear from their contents that a number of the documents in the group under consideration would fall within the terms of this exemption, there are many that appear simply to be the internal working documents of a high level committee of public servants, albeit a committee constituted by resolution of a Committee of the Cabinet. 60 The agency in its submissions categorised its documents by reference to various topical groupings. The agency's categorisation of the documents was not helpful to the task required of the Tribunal in applying cl 1. In the course of submissions I asked counsel for the agency to link the groupings contained in her submissions to the specific headings, (a) to (e), found in cl 1. 61 In light of her answers, I have organised the agency's groupings in the following way. It will be seen that there is a large bundle at the end of this list where it was simply submitted that one or more of categories (a) to (e) of cl 1 applied. I begin by listing those documents that were said to belong exclusively to a particular category. In the case of the remainder, either there is an undifferentiated claim that they fall into one of the categories; or there is a claim nominating precisely two or more applicable categories. (1) Documents belonging only to one category Category (a): a document that has been prepared for submission to Cabinet (whether or not it has been so submitted) Documents 163, 164, 165, 166, 174, 175, 220, 242, 244, 246 (in part), 248, 249, 250, 294 (pp 1-2), 295, 305 (p 5) [described in the submissions as Group 4A(i) and referred to as Cabinet papers and minutes, Budget Committee papers and minutes] Category (b): a preliminary draft of a document referred to in paragraph (a) Documents 176, 177, 178, 180, 181, 221, 237, 238 (p 2 in part), 239, 251, 252, 253, 254, 255 [described in the submissions as Group 4A(ii) and referred to as Documents which are, or are preparatory to, draft and final Cabinet papers, Cabinet agendas, Cabinet minutes, or Budget Committee papers and extracts from such documents] Documents 143, 148 [described in the submissions as Group 4E and referred to as Documents that are Drafts, working papers, preparatory work and procedural decisions undertaken for the purpose of creating documents falling within Group C] Category (c): a document that is a copy of or of part of, or contains an extract from, a document referred to in paragraph (a) or (b) None. Category (d): an official record of Cabinet None. Category (e): matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet Documents 140 (p 1), 141, 185, 186, 189, 210, 214 (p 1), 215 (p 1), 224, 233, 234, 238, 241 (p 1), 261, 263, 269, 273 [described in the submissions as Group 4D and referred to as covering emails and covering letters for documents falling within Group C, sent between members of the Taskforce, or the Working Group of the Taskforce] Documents 146, 162, 187, 191, 194, 211, 215 (except p 1), 246, 259, 274, 275, 276, 277, 278, 279, 280, 281, 286, 307, 309 [described in the submissions as Group 4G and referred to as Correspondence or draft correspondence between the Taskforce and third parties (ie other than Department, DPWS, Premiers or Treasury] (2) Documents belonging to more than one category Categories (a) and (e): Documents 149, 152, 159, 176, 217, 218, 2321, 243, 247, 264, 265, 266, 267, 268, 270, 311 [described in the submissions as Group 4B and referred to as Ministerial briefing notes for Budget Committee or for Cabinet, file notes on contents of, comments in preparation of, or amendments to, or communication of, such documents] Categories (b) and (e): Documents 144, 147, 169, 170, 184, 197, 207, 208, 209, 222, 225, 229, 256, 305 [described in the submissions as Group 4F and referred to as Instruction briefs given to experts; expert reports (draft and final) by parties other than Department, DPWS or Premiers or Treasury, commissioned by the Taskforce for the purpose of giving advice to the Budget Committee] Categories (a), or (b), or (c), or (d) or (e) (the submissions did not differentiate): Documents 140 (except p 1), 145, 151, 153, 154, 155, 156, 157, 158, 160, 161, 167, 168, 173, 179, 182, 183, 189, 190, 192, 195, 196, 198, 199, 200, 201, 202, 203, 204, 206, 212, 213, 214 (except p 1), 216, 219, 223, 226, 227, 228, 230, 232, 235, 241, 245, 260, 262, 271, 272, 282, 283, 284, 285, 287, 288, 289, 290, 291, 292, 293, 294 (except p 1-2), 296, 297, 298, 299, 300, 301, 302, 303, 304, 306, 308, 310, 312, 313, 314, 315, 316, 317, 318, 319, 320, 321, 322 [described in the submissions as Group 4C and referred to as Agenda items, papers, departmental and Taskforce members' reports prepared for, minutes and meeting notes of, Flemington Markets Taskforce ('the Taskforce') of the Standing Committee on Budget (the Budget Committee) and the Taskforce's Working Party] 62 The agency also noted that some of the above documents were the subject of claims under other headings. It is not necessary to set out the document numbers here, as I have already found all documents so affected to be protected under the other exemptions. 63 In its written submissions the agency deals with the status of the committee of public servants to which I have referred - the Taskforce, and then deals with the general principles relating to the Cabinet Documents exemption, the case-law in relation to each of the categories of cl 1, most particularly (a) and (e). The submissions then deal with the effect of the qualification found in cl 1(2)(a). They then deal with the application of the principles to groups of documents. 64 The applicant merely notes these submissions, without making any reply until he reaches the qualifications found in cl 1(2)(a). There are brief submissions on this point simply emphasising the importance of this protection against the undue operation of the Cabinet documents exemption. 65 These are categorical exemptions. Consequently if the documents fall into one or more of the categories, the agency's case is made out. It is then a private matter for the agency whether it choses nonetheless to exercise its discretion in favour of release: see generally, Neary v The Treasurer, New South Wales [2002] NSWADT 261 at [30] ff. As already noted, cl 1(4) includes within the meaning of the word 'Cabinet' 'a reference to a committee of Cabinet and to a subcommittee of a committee of Cabinet'. The agency's submissions do not go so far as to contend that the Taskforce was a Committee or Subcommittee of Cabinet. In my view these expressions are referring to entities whose membership is made up of Cabinet Ministers or at least Ministers if there is a structure which differentiates Cabinet from the outer Ministry. Importantly, there is no reference in cl 1(4) to bodies that fall below the level of Cabinet. 66 The evidence of Mr Hoogesteger refers to the grant of a lease over the land at Flemington to SML in 1997. There was continuing dispute over aspects of the terms of the lease, and their interpretation (calculation of annual rent increases, and liability for maintenance and repairs). By November 2001 SML had made significant claims against the Government as lessor, amounting to $28m. 67 This conflict, it is said by Mr Hoogesteger, motivated the Government to consider the possible sale of the property to SML. On 21 September 1999 the Cabinet Standing Committee on Budget established the Flemington Markets Taskforce (the Taskforce) chaired by the Director General of the Premier's Department. The relevant Cabinet Committee paper is among the documents for which exemption is claimed (Document 294) and the basis on which the Taskforce was created and its functions are the subject of the Confidential Statement to the Tribunal. 68 Mr Hoogesteger states the Taskforce was comprised of 'very senior representatives of Premier's Department, NSW Treasury and DPWS'. His evidence is that these representatives co-ordinated expert information provided by their Departments, at the request of the Cabinet Standing Committee, to enable the Committee to make decisions in respect of matters pertaining to litigation between SML and the State of New South Wales, and in respect of whether the site should be sold and on what terms. 69 Mr Hoogesteger's evidence then goes on to deal with the involvement of DPWS (now the Department of Commerce) in the process. He says that its role was to negotiate a fair settlement of the disputed claims under the lease and the pursuit of the direct sale of the Flemington Markets site and the Rail Siding to SML in accordance with approved Property Disposal Guidelines, under instructions from the Taskforce. 70 He then refers to the outcome of that process, and the officers of the DPWS who took an active role in the sale in the relevant period: Ms Burlew, Messrs Simpson, Anthonisz, Calligeros, Tubier, Mitchell, Marrable and Henwood. Of these, a central figure seems to the Tribunal to have been, based on its scrutiny of the documents, Mr Calligeros, who is described by Mr Hoogesteger as 'Senior Portfolio Manager, Asset Management Services; Flemington Markets Taskforce'. Based on scrutiny of the documents, the most significant officer was the Director General, Premier's Department, Dr C Gellatly, who chaired the Taskforce. 71 Mr Hoogesteger refers finally to approval of the sale by Cabinet on 29 November 2001 following approval by the Budget Committee of Cabinet. In his affidavit he describes this committee, interestingly, not as a committee of Cabinet but as a 'subcommittee of Cabinet'. Document 165 is the Cabinet Minute for the sale of the site. The land was sold on 1 July 2002. The Auditor General reported to Parliament in 2002 that the negotiated selling price of $83.5m was based on an independent valuation of $87.7m less $4.2m as the agreed settlement of all claims by the SML against the lessor. 72 The Cabinet documents exemption is a blanket exemption, surrounded by special provisions and procedures under the Act. (It is an exemption that falls into the 'restricted documents' group of exemptions, for which there are special provisions in the Act beyond those that apply to the other exemptions - see, for example, s 57 and s 58C. The agency did not ask for the s 57 procedure to be adopted in this case.) 73 The agency's submissions assert: 'The Taskforce was a factfinding and negotiating arm of the Budget Committee. While comprised of senior public servants from various departments, it was not an interdepartmental committee. It owed its existence to the Budget Committee, was authorised by the Budget Committee rather than any individual Minister to carry out its functions, and it reported to the Budget Committee. It was authorised by the Budget Committee to negotiate directly with SML and present to the Budget Committee the optimum solution for government.' 74 The submissions then go on to contend that Cabinet and its committees have the power to authorise another appropriate person to undertake functions on its behalf. The submissions refer to leading cases on delegation in government such as Carltona Ltd v Commissioners of Works [1943] 2 All ER 560; and O'Reilly v Commissioner of the State Bank of Victoria (1982) 153 CLR 1, 11, 20. At hearing, counsel for the agency referred to dicta in State of New South Wales v Austeel Pty Ltd (SCNSW, Brownie AJA, unreported, 9 March 2004), (a case which considered various issues to do with the scope of summonses). There was evidence given and observations made by the judge as to how the State goes about the performance of its responsibilities and functions including reference to the functioning of Cabinet committees and the use of delegated structures by those committees. It is not, in my view, an authority of any great assistance in interpreting cl 1(1). 75 The submissions continue: 'The establishment of the Taskforce reflects a practical approach of the Budget Committee to its resolution of the issue of the sale of the Flemington Markets site. That approach was properly based on the common law principle [delegation] … since the Taskforce was authorised by the Budget Committee itself to undertake the functions of the Budget Committee, the Taskforce was the subject of cabinet confidentiality.' 76 The submissions that appear at 5.37-5.42 build on this submission. For example the submission at 5.39 is that: 'Documents in Group 4E are preliminary drafts of documents prepared by the Taskforce. Since the Taskforce is authorised by the Budget Committee, these documents fall within cl 1(1)(b).' 77 At 5.40 it is: 'Documents in Group 4D contain matter the disclosure of which would disclose information concerning deliberations of the Taskforce and/or the Budget Committee. They fall within cl 1(1)(e).' 78 At 5.41 it is: 'Documents in Group F were prepared for the purpose of obtaining expert reports for the Taskforce, most intended for submission to the Budget Committee in the form in which they were received by the Taskforce. Others were used to enable the Taskforce to make its reports to the Budget Committee as authorised by the Budget Committee. For the reasons set out in the paragraph above, and on the authority in Simos v Wilkins , the documents in Group F fall within cl 1(1)(a), (b) or (c).' 79 It will be seen that the last submission makes assertions that depend on evidence ('most intended for submission' etc). There was no evidence going to these matters, other than what can be gleaned from the documents themselves. 80 The appointment of high level officers of the public service to assist Cabinet in its decision-making is, in my view, a well-established aspect of the operation of the Westminster system of government. The Parliament would have been aware of these practices at the time it made its decision to confine the institutional scope of the Cabinet documents exemption to Cabinet itself, its Committees and their Subcommittees. 81 Consequently, in my view, the exemption should not be permitted to apply if the only basis is that the Taskforce or one of its members is the author of the documents. There must be a link established to the Cabinet process (either the process, in this instance, of the Budget Committee or the full Cabinet) of a kind to which paragraphs (a) to (e) of cl 1(1) refer. 82 These submissions represent in my view a new departure in FOI law in Australia. It is noteworthy that not one case from any Australian jurisdiction was cited in support of the proposition that a committee created by a Cabinet Committee comprised entirely of public servants is in respect of its processes shielded by Cabinet confidentiality. The role of delegation in government is well understood: see, for example, Dighton v South Australia (2000) 78 SASR 1 at [113]-[114]. Had the Parliament intended bodies and officers to which functions are 'delegated' to be protected by the Cabinet documents exemption, it would, I believe, have expressly addressed the point. The exemption clearly confines its protections to the principal organ of Government decision-making and Ministerial deliberation (the Cabinet) as well as its immediate subordinate institutions. In my view, there is no warrant for interpreting the exemption to extend to the bodies that are below the bodies identified by the exemption. 83 This view is consistent with the general case-law. In cases dealing with the Cabinet documents exemption in other jurisdictions, the relevant body is almost invariably the Cabinet itself or, sometimes, a Committee or Subcommittee. See these recent cases: Re McKinnon and Secretary, Department of Health and Ageing (2004) 85 ALD 699; Re Toomer and Department of Agriculture, Fisheries and Forestry (2003) 78 ALD 645; [2003] AATA 1301; Re Sutherland Shire Council and Department of Industry, Science and Resources (2001) 33 AAR 508); and Ipex Information Technology Group Pty Ltd v Department of Information Technology Services [1997] SADC 3618; 192 LSJS 54. 84 There is nothing especially unusual about Cabinet Committees giving important tasks of government to a committee of senior public servants to handle; and giving them wide authority to make final decisions. To take up one of the submissions, it is not at all obvious to me why this committee could not be described as an 'interdepartmental committee'. 'Taskforce' is, to me, simply a new-fangled term for an interdepartmental committee, with the connotation provided by the label 'taskforce' that it has a specific end in view. That distinction was often captured in the past by using terms such as 'ad hoc' or 'special' in comparison to 'standing' to describe committees. This was basically an ad hoc or special interdepartmental committee with quite wide authority comprising Premier's, Treasury and DPWS that had a high-level, direct reporting relationship to the chair and members of the Budget Committee. The head of the committee, as head of Premier's, had, in any case, a direct reporting relationship to the Premier. The fact that it had a very wide authority to commit the Government does not make it part of Cabinet. Assessment 85 I have had regard to interpretations such as those found in Simos v Wilkins (DC, Cooper J, 15 May 1996) that to satisfy category (a) or (b) it is not necessary for the document to be exclusively for the purpose of submission to Cabinet. 86 The most generally expressed category of exemption is category (e): matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet. 87 This exemption is directed to securing the maintenance of Cabinet confidentiality, and goes beyond seeking simply to secure the protection of the formal documentation of Cabinet (which is the concern of exemptions (a), (b), (c) and (d)). It is, perhaps, the most important exemption in terms of maintaining the traditional convention. 88 The focus of this exemption is the Cabinet discussion environment. The concept of 'deliberations' is a wide one. As Forgie DP noted Re Toomer and Department of Agriculture, Fisheries and Forestry (2003) 78 ALD 645 at [88]: '[Cabinet's] deliberations are its thinking processes be they directed to gathering information, analysing information or discussing strategies. They remain its deliberations whether or not a decision is reached. Its decisions are its conclusions as to course of action that it adopts be they conclusions as to its final strategy on a matter or its conclusions as to the manner in which a matter is to proceed.' 89 The Queensland Information Commissioner has said: '[Only documents created contemporaneously with, or subsequent to active discussion and debate within Cabinet … are capable of disclosing Cabinet deliberations': Re Hudson and Department of the Premier, Economic and Trade Development (1993) 1 QAR 123 at 141. That view was criticised, because of its focus on 'decisions' by the Commonwealth Administrative Appeals Tribunal in Re Toomer at [96] where Forgie DP said: '… the principles to be applied in answering that question are the same in both. The documents must be examined to determine whether they do in fact disclose deliberations or decisions of Cabinet. Whether they were prepared before or after the meeting of Cabinet at which they were discussed is not determinative of the issue. The whole of the evidence, of which the disclosures are only part, must be examined to make that determination.' 90 I agree with the determination in relation to the following documents, with the category noted in brackets: Document 141 (only as to cover page/email) ((b), (e)), 163 ((a)), 164 ((a)), 165 ((a)), 172 (as to page 011) ((e)), 174 ((a)), 175 ((a)), 176 ((a)), 177 ((b) and (e)), 180 ((b)), 182 (as to page 011 ((e)), 183 (only as to item 1, page 012 (e)), 203 (only as to page 062) ((e)), 205 (only as to the text under item 1) ((e)), 214 (as for Document 140), 220 ((a) or (b)), 221 (only as to page 186) ((b)), 237 ((b)), 239 ((b)), 240 ((e)), 242 ((a)), 244 ((a)), 246 ((b)), 247 ((e)), 248 ((a) or (b)), 249 ((a) or (b)), 250 ((a) or (b)), 251 ((b)), 252 ((b)), 253 (only as to page 120) ((e)), 255 ((a) or (b)), 264 (only as to Background section at page 074) ((e)), 294 (the whole except for pages 332 and 333) ((a) or (b)), 295 ((e)), 296 (only as to page 348, text under item 1) ((e)), 297 (as for Document 296), 298 (as for Document 296), 299 (as for Document 296), 305 (only as to 008) ((b)). 91 In my view the remaining documents do not qualify under any of these categories. Most of the documents are records of the activities of the Taskforce, and include references at various points to what the 'Government' would agree to or not agree to. It can, I think, be presumed that the frequent references in the documents to the 'Government's' position are references either to the views of the relevant Ministers that constitute the Budget Committee or at least the Premier or Treasurer, conveyed to the Taskforce usually by its head, Dr Gellatly, the head of Premier's Department. But there is a paucity of direct evidence as to what interactions occurred between the Budget Committee and the Taskforce. 92 In the case of many of the documents it is not possible to conclude on the available evidence that they were prepared for submission to the Budget Committee or Cabinet itself, or that they were preliminary drafts of such documents, or copies or extracts from such documents (the matters covered by categories (a), (b) and (c)). The onus lies on the agency: FOI Act, s 61. 93 I reject the claim for exemption made in respect of the following documents: Documents 141, 142, 143, 144, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 167, 168, 169, 170, 173, 179, 184, 185, 186, 188, 189, 190, 191, 192, 193, 195, 196, 197, 198, 199, 200, 201, 202, 204, 206, 207, 208, 209, 210, 211, 212, 213, 215, 216, 217, 218, 219, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 238, 241, 243, 245, 254, 256, 259, 260, 261, 262, 263, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 300, 301, 302, 303, 304, 306, 307, 308, 309, 310, 311, 312, 313, 314, 315, 316, 317, 318, 319, 320, 321, 322. 94 There are a number of documents in this group where a passing reference was made to the Budget Committee or the Cabinet. I considered whether any deliberations of Cabinet (as defined in cl 1(4)) might have been disclosed. Examples of documents with passing references include: 162, 167, 191, 195, 243, 261, 305, 318. 95 There is also some misfiling, I think, in the folders of documents. The document description given at 159 appears to relate to 158, similarly the description at 160 appears to relate to 159, and the description at 161 appears to relate to 160. As the claim in respect of these numbers was rejected, no problem arises. Document 171 is missing from the folder, thus there is no decision on it. Document 172 did not appear to have been listed under any category in the submissions, but the Tribunal has dealt with it (partial exemption granted). The same applies to Document 239 and that has been dealt with (exemption granted). Document 246 has been found to be exempt, though the Tribunal should note that there is no headings of the usual kind in this document which might lead to the conclusion that most of its contents constitute a draft Cabinet minute. The Tribunal has reached the conclusion that the text is from such a document, having regard to its internal contents, and the Tribunal's understanding of the context. 96 The Cabinet documents exemption could, as I have already stated, only apply to many of the documents in this case if the radical proposition is accepted that a committee of public servants appointed by a Cabinet Committee itself forms part of the Committee while it is engaged in a task given to it by the Cabinet Committee. The submission is, in my view, without precedent. It is inimical to the objectives of freedom of information legislation. 97 I have also had regard in assessing the documents to the qualification contained in cl 1(2) to which the applicant drew attention. None of the documents which I regard as exempt simply comprised factual or statistical material. Sufficiency of Search 98 The applicant has made objections on this basis to the agency's determination. There is an objection by the Department to this objection being further considered. There were brief submissions on this matter at the hearing. The Tribunal will hold a planning meeting before considering that issue any further. Orders 1. The application for review is allowed in part. 2. The first respondent's determination is set aside in relation to the documents referred to in para [93] of these reasons. 3. The first respondent's determination is otherwise affirmed subject to the variations made in para [90] (Cabinet documents) and para [42] (Business Affairs) of these reasons. 4. The Tribunal's orders are to take effect 28 clear days after the publication of its decision. 5. The application is to be listed for a planning meeting in relation to the sufficiency of search issue.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.