Consideration
41Any application of the GIPA Act must start from an awareness of the legislation's object as stated in s 3(1), namely, to maintain and advance a system of responsible and representative democratic government that is open, accountable, fair and effective by opening government information to the public and providing that access to that information is restricted only when there is an overriding public interest against disclosure. In s 3(2) the Legislature expresses its intention that the Act should be interpreted and applied so as to further the object of the legislation.
42That object is to be achieved through a balanced approach that seeks to reconcile the competing values recognized by the Act. As four members of the High Court pointed out in Kline v Official Secretary to the Governor-General [2013] HCA 52, "The FoI Act does not pursue its objects, as legislative purposes, at any cost. The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increase public participation and scrutiny, by making information freely available to persons on request, and in the exempting of other government processes and activities from public participation and scrutiny, in order to secure a competing public interest in non-disclosure". For some functions of government, "freedom from interference or scrutiny by members of the public.... is an essential aspect of the making of decisions" (at [37], also [46] -- [47]). The Court had earlier recognized a manifest public interest in keeping Cabinet deliberative processes confidential in Commonwealth v Northern Land Council (1993) 176 CLR 604, 615-616.
43The full Federal Court case of Fisse v Secretary, Department of the Treasury [2008] FCAFC 188 concerned a freedom of information request for an executive summary of a working party report and for the report itself. The summary had been submitted to Cabinet. In his concurring judgment upholding a claim for Cabinet information exemption, Flick J noted that, "The importance of Cabinet as an institution of Executive Government, and the confidentiality ascribed by convention to its deliberations, has long been recognized. But little is known about its workings". His Honour then quoted from Walter Bagehot's The English Constitution (2nd edn 1909) a passage noting that Cabinet meetings are secret in theory and in reality. Although the most powerful body of the state, it is "a committee wholly secret. No description of it, at once graphic and authentic, has ever been given" (at [97]).
44Flick J then set out with approval Blackburn CJ's description and explanation of Cabinet confidentiality in Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414, 421-22, which concluded with these words: "Cabinet secrecy is an essential part of the structure of government which centuries of political experience have created. To impair it without a very strong reason would be vandalism, the wanton rejection of the fruits of civilisation".
45No doubt in recognition of Cabinet's role and functioning as a collective, indirectly elected executive branch of government, s 106 establishes a special and very different decision-making matrix for claims to the Cabinet information presumption. Not only is the tribunal "limited to deciding whether there were reasonable grounds for the agency's claim", but it is explicitly "not authorised to make a decision as to the correct and preferable decision on the matter" (s 106(1)). The tribunal's task is thus not to investigate the claim de novo or to engage in normal merits review. Its function is more analogous to that of a court undertaking judicial review.
46In performing this limited task, the tribunal is to give the words "reasonable grounds" their ordinary meaning. In McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423, 445, three members of the High Court pointed out that the phrase is not synonymous with "not irrational, absurd or ridiculous". "Of course, absurd, and irrational or ridiculous grounds are not reasonable grounds. But the words "reasonable grounds" do not denote grounds which are "not irrational, absurd or ridiculous". The statutory words are to be given their ordinary meaning. It will seldom be helpful, and it will often be misleading, to adopt some paraphrase of them".
47The respondent bears the onus of establishing that it had reasonable grounds for the claim (s 105(1)) and it must do so on the balance (meaning preponderance) of probabilities: Jorgensen v Australian Securities and Investments Commission [2004] FCA 143, [65], 208 ALR 73, 86.
48The Roadmaps. In relation to the Roadmaps, the respondents rely primarily on cl 2(1)(b) of schedule 1, which provides a conclusive presumption against disclosure of "information... contained in a document prepared for the dominant purpose of its being submitted to Cabinet for Cabinet's consideration (whether or not the document is actually submitted to Cabinet)". "Cabinet" includes a Cabinet committee such as ERC: cl 2(5).
49It is common ground that there are three conditions for the operation of this clause. The first is that there be "information". It is not disputed that the data contained in the Roadmaps meet that condition.
50The second condition for the operation of the provision is that the information be "contained in a document". In this case, the information is contained in the Roadmaps, and also in the quarterly whole-of-government records submitted by the Treasury to ERC, and in the quarterly reports submitted by clusters to ERC. The two kinds of quarterly reports contain information from the Roadmaps after that information has been introduced into the reports by FEO or by the relevant cluster.
51The third condition for the operation of cl 2(1)(b) is that the relevant documents, in this instance the Roadmaps, and by extension the two sets of quarterly reports, are prepared for the dominant purpose of being submitted to Cabinet for Cabinet's consideration. All parties in this case accept that the words "dominant purpose" have the same meaning as in ss 118 and 119 of the Evidence Act 1995. The purpose in question must be "causative in the sense that, but for its presence " the information would not have been prepared: Secretary to the Department of Treasury and Finance v Dalla Vella [2007] VSCA 11 [13], [24].
52The respondents maintain that Mr Cheney's evidence indicates that the Roadmaps are prepared for the dominant purpose of submission to ERC, whether or not they are actually so submitted. In some instances the Roadmap documents are included in the quarterly cluster reports, but they are also incorporated in the quarterly whole-of-government reports in summary form. The quarterly whole-of-government and cluster reports are prepared for the dominant purpose of being submitted to ERC for its consideration, according to the evidence of Mr Cheney and Mr Brady (exhibit R3 at [12]-[14], [17]; exhibit R1 at [9]-[10]). The respondent further submits that the quarterly whole-of-government reports are prepared by FEO for ERC (exhibit R3, [12]). The cluster quarterly reports are "prepared by clusters to [sic] the Expenditure Review Committee "(exhibit R3, [13]). That purpose has been accomplished each quarter (exhibit R1, [9]-[10]).
53The applicant challenges that line of reasoning on two grounds. First, he disputes that the information is "contained in a document". It is insufficient for the purposes of cl 2(1)(b), he argues, that the information in the Roadmaps is incorporated, not verbatim, but by way of extract or summary into separate documents (the quarterly reports). The Roadmaps themselves would have to be prepared for the dominant purpose of submission to Cabinet. In support of that proposition he relies on Asher, National Parks Association and a number of similar cases. The reference to "information" in the introductory language (the "chapeau") to cl 2(1), in the applicant's submission, is a matter of relatively little moment.
54The introduction of the word "information" marked a change from the orientation of the Freedom of Information Act 1989, in which the focus was documents, to a new approach of creating a right of access to information. That basic change was recognized in Richards v Commissioner, Department of Corrective Services) [2011] NSWADT 98, [40]: "It is important to note that the definitions of "government information"..... operate[s] on information alone, not, as was the case under the [ FoI Act], with respect to documents". The applicant's position is that information falls within Cabinet information principles only if it is initially recorded in a document that itself was prepared for the purpose of being submitted to Cabinet. As the respondent put it, this amounts to saying that information is forever infected by the purpose of the preparation of the document in which it was initially recorded. The essential feature is that the information in the Roadmaps is the same as the information contained in the quarterly reports. Differences in expression or form do not mean that what is being communicated is no longer the same knowledge concerning the same fact, subject matter or event. That would be to allow form to prevail over substance.
55The cases cited by the applicant on this point are thus of limited assistance, as they interpret the document-based earlier New South Wales legislation or similarly structured statutes from other jurisdictions. The changed wording of cl 2(1) cannot be treated as a mere stylistic variation. It is repeated several times in s 3, the object section of the Act. Such changes in an Act are "essential features of its legislative design":Baini v R [2012] HCA 59, at [45] per Gageler J.
56The then Premier, the Hon. Nathan Rees MLA, in his second reading speech to the Legislative Assembly on the GIPA Bill, made it clear that the new legislation was comprehensively adopting most of the recommendations in a special report to Parliament by the New South Wales Ombudsman under s 31(1) of the Ombudsman Act 1974 on the subject of freedom of information legislation and its reform. The report noted that access schemes in all Australian jurisdictions, the United States and the United Kingdom were about documents. The Ombudsman's community consultations had revealed a widespread view that the legislation needed updating to reflect the increasing use of electronic rather than paper-based record management systems. The report even considered, but rejected, the New Zealand approach of covering information in the minds of public officials that may not have been recorded at all (New South Wales Ombudsman, Opening up Government: Review of the Freedom of Information that Act 1989-- a special report to Parliament under s 31 of the Ombudsman Act 1974 (February 2009), Chapter 4). The report cannot, of course, be used to qualify the language of the legislation, but in this case it confirms the proper interpretation of the Act and emphasizes that the change of focus was intentional and its implications understood.
57I am satisfied that the information in the Roadmaps is contained in documents prepared for the dominant purpose of submission to Cabinet. Mr Cheney's evidence was that "summary information about every Roadmap is submitted to the Expenditure Review Committee on a quarterly basis" and that information from the Roadmaps is incorporated in attachments to cluster quarterly reports, which are submitted to ERC. Every Roadmap is prepared on the same basis. It is not essential to identify whether a particular document is the source of information contained in documents prepared for Cabinet. The question is whether information is contained in a document prepared for submission to Cabinet, not whether there is a relationship of source and end-product between the two documents
58Not for publication.
59As Mr Izzo pointed out, the Roadmaps were not marked "Cabinet-in-Confidence", but that is not decisive, as Vincent JA (Buchanan and Redlich JJA agreeing) noted in Asher (at [19], n 12). Mr Cheney in his oral evidence stated that Roadmaps and the information contained in them were in fact consistently handled on a Cabinet confidentiality basis.
60Secondly, the applicant argued that the dominant purpose element itself was not satisfied. The dominant purpose is to be ascertained as at the time the information is brought into existence: National Parks Association at [29]. The applicant contended that that the dominant purpose here was to enable FEO to monitor the implementation of savings reforms by agencies. FEO then uses the information in the Roadmaps to provide monthly reports to clusters to facilitate discussion that their senior officers and program management have with Treasury resource allocation staff and FEO about their progress.
61The evidence, including that set out above, shows, however, that that the Roadmaps are prepared for the dominant purpose of submission to Cabinet. Mr Cheney stated that the documents form part of the system within the New South Wales government whereby agency spending and savings are monitored by the Cabinet committee, ERC. The Roadmaps may serve other management purposes as well, but their primary function is as part of a continuous process of supervision, advice and consultation involving the Cabinet committee, FEO and the agencies.
62There could hardly be a witness better qualified than Mr Cheney, the foundation director of FEO who has supervised the RPM system, including the Roadmaps, from the outset, to give evidence about the Roadmaps' dominant purpose. This places the respondents' case in a stronger position than, for example, the respondent department in Fisse. There, the evidence of dominant purpose was given by an assistant Cabinet secretary with no direct knowledge of the creation of the document, and who had to rely on her experience of usual practice. No- one from the working party that produced the report or the executive summary was called to give evidence. A majority of the Full Court held, however, that the respondent had discharged the burden of proving dominant purpose.
63The respondents' alternative submission in relation to the Roadmaps is that there were reasonable grounds for the Treasury's claim that the information is contained in a document prepared after Cabinet's deliberation or decision on the matter that would reveal or tend to reveal information concerning any of those deliberations or decisions. They submit that the Roadmaps "live" documents in the sense that they are subject to continuing amendment. While an agency prepares Roadmaps for submission to ERC, the agency also updates the Roadmaps after their submission, to reflect Cabinet's deliberation and decision on matters concerning its performance and to report on its progress in implementing savings plans consistently with Cabinet's consideration. The parties agree that the phrase "deliberation or decision" to be given the meaning expressed in Re Toomer and Department of Agriculture, Fisheries and Forestry (2003) 78 ALD 645, 677.
64The applicant counters that the asserted practice is unsupported by evidence, as Mr Cheney says only that the Roadmaps are updated monthly, but does not say that the updating has any connection with Cabinet deliberations or decisions. Mr Cheney's evidence on this point indeed goes no further than saying that the agency updates the milestones in the Roadmaps about the progress achieved so as to promote discussion and, if needed, action. While the incorporation of the results of Cabinet deliberations at that stage is a reasonable possibility, the evidence does not go so far as to establish it on the preponderance of probabilities. There is a difference between inference and conjecture. "Conjecture may be plausible, but it is effectively still a mere guess": Bell IXL Investment Ltd v Life Therapeutics Ltd [2008] FCA 1457, [14].
65The allocation letter attachments. The respondents claim, first, that the attachments qualify under cl 2(1)(d) as they were prepared after ERC's deliberation and decision of the Labour Expenses Cap for the Finance and Services cluster and how that was to be allocated between accounts. They were also prepared after full Cabinet's deliberation and decision on the Cap (exhibit R3, [25], exhibit CR4, [28]). The attachments set out, for the forward estimates, the allocation of labour cost adjustments across relevant accounts, consequentially on the Cap (exhibit CR4,[44]). Those attachments reflect the final budget decision agreed by ERC in respect of each agency within the Department of Finance and Services cluster. The information in them is precisely what ERC decided in respect of that cluster. The disclosure of the attachments would therefore necessarily reveal the ERC's deliberations and decisions. The difference between the attachments and the information already disclosed to the applicant is that the attachments show the allocation of expense reductions across accounts, information that has not been publicly revealed (exhibit R3, [32]). Disclosure would thus tend to reveal information concerning deliberations or decisions of ERC and full Cabinet on the allocation of labour cost adjustments between different accounts.
66In the applicant's submission, that claim cannot succeed unless the evidence shows that Cabinet deliberated or decided in detail on the allocation of expenses across accounts. There is no evidence that Cabinet deliberated or decided on the Cap limits to the level of detail.
67It may indeed be improbable that full Cabinet would consider such detailed matters, but it is far from improbable that a specialist Cabinet committee such as ERC would do so. Further, Mr Cheney's evidence is that disclosure of the information would "reveal decisions of the Expenditure Review Committee... as part of decisions relating to the development of the 2012-13 Budget": exhibit R3, [25]. It seems unlikely that the committee would approve the cap but not the allocation of the cap across accounts.
68The respondents also submit that the attachments qualify under cl 2(1)(b). The applicant disputes that, on the basis that the evidence does not show that the attachments are the source of the forward estimates that eventually find their way into the budget documents. Further, it is not enough that the attachments assist in preparing other documents; they must themselves have been prepared for submission to Cabinet.
69For the reasons set out above, is irrelevant if the attachments are the source of the forward estimates. The question is whether the information in the attachments is contained in documents prepared for the dominant purpose of submission to Cabinet. Again, Mr Cheney's evidence is that the overall cap was approved by ERC (exhibit R3, [26]), and it is unlikely that the committee would have approved the cap but not considered its distribution across accounts.
70The applicant also contends that both the Roadmaps and the allocation letter attachments cannot be treated as Cabinet information because cl 2(4) excludes from that category information "to the extent that it consists solely of factual material" unless it would, relevantly, " reveal or tend to reveal information concerning any Cabinet decision or determination". The applicant contends that the Roadmaps simply record numerical savings targets and whether they have been met, and the attachments simply record the cap limits for each agency and "between accounts". While the limits when first proposed might have been characterized as opinions, advice or recommendations rather than as facts, following their adoption by the relevant decision-makers, they became matters of fact.
71The statutory test, however, is whether the information consists solely of factual material, not whether it contains factual material as well as other material of a non-factual nature. In this case the information, whether in the Roadmaps or the attachments, consists to a great extent of targets, projections and estimates. While the setting of targets and the making of projections and estimates is in one sense a fact, the information itself consists also of opinions or recommendations about the desirability, likelihood and attainability of certain outcomes. It is not solely factual material. Nor does it lose that character because of the largely in numerical form. The same would be true of the budget documents themselves.
72I therefore find that the respondents have discharged the onus of proving on the balance of probabilities that the respondents had reasonable grounds for their claim that the Roadmaps (under cl 2(1)(b)) and the allocation letter attachments (under cll 2 (1)(b) and 2(1)(d)) are Cabinet information and the subject of an overriding public interest against disclosure of information.
73Having found that there were "reasonable grounds" in respect of both sets of information, the tribunal's jurisdiction is exhausted: IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79, [42]-[44]. It is thus not necessary to consider the application of the public interest test within ss 12 to 15 of the GIPA Act.
74The decision under review is affirmed.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 21 May 2014