Dawson v Ministry of Transport

REASONS FOR DECISION 1 Mr Dawson made an application under the Freedom of Information Act 1989 ("the FOI Act") for access to a document referred to as 125 page document entitled "Public Transport in the Lower Hunter" prepared by McCormick Rankin Cagney (MRC) dated September 2005 ("the Document") which is held by the Ministry of Transport ("the Ministry"). The document was identified in a separate application brought by Mr Dawson and was the subject of the decision in Dawson v Ministry of Transport [2007] NSWADT 2. 2 Mr Dawson lodged a separate request for the Document following the finalisation of the earlier application. The Ministry determined to refuse Mr Dawson access to the Document for the following reasons: (a) The Document was a Restricted Document under Clause 1, Schedule 1 of the Act. The Document was a draft report prepared for submission to Cabinet. As such, the Document was an exempt document under Clause 1(b), Schedule 1 of the Act. (b) The Document was an internal working document which is also an exempt document in accordance with Clause 9, Schedule 1 of the Act. A document is an internal working document if it contains matter that would disclose: (i) any opinion, advice or recommendation that has been obtained, recorded or prepared; or (ii) any consultation or deliberation that has taken place in the course of or for the purpose of, the decision making functions of the Government, a Minister or an agency, and in light of the content of the Document would, on balance, be contrary to the public interest. 3 The Ministry affirmed the determination on internal review and Mr Dawson has sought an external review through the Tribunal. Relevant Legislation 4 Section 5 of the FOI Act relevantly provides: "5 Objects (1) The objects of this Act are to extend, as far as possible, the rights of the public: (a) to obtain access to information held by the Government, and (b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading. (2) The means by which it is intended that these objects are to be achieved are: (a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and (b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and (c) by enabling each member of the public to apply for the amendment of such of the Government's records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading. (3) It is the intention of Parliament: (a) that this Act shall be interpreted and applied so as to further the objects of this Act, and (b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information." 5 Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act. 6 Section 25(1) of the FOI Act provides that an agency may refuse access to a document if it is an exempt document. 7 Section 61 of the FOI Act provides that the burden of establishing that the determinations are justified lies on the agency. 8 Clause 1 of Schedule 1 of the FOI Act 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. 9 Clause 9 of Schedule 1 of the FOI Act provides: 9 Internal working documents (1) A document is an exempt document if it contains matter the disclosure of which: (a) would disclose: (i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or (ii) any consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, and (b) would, on balance, be contrary to the public interest. (2) A document is not an exempt document by virtue of this clause if it merely consists of: (a) matter that appears in an agency's policy document, or (b) factual or statistical material. The Ministry's case 10 The Ministry submits the determination that the Document is an exempt document under section 25(1)(a) of the FOI Act should be upheld. It asserts that the Document is an exempt document pursuant to Clause (1)(a) and (b) of Schedule 1 of the FOI Act because it is a draft document that was prepared for and with the intention of submission to Cabinet. 11 In support of this submission the Ministry relies on the affidavit of Mr Lyall Kennedy sworn 20 March 2007 and the affidavit of Ms Pauline Ross sworn 19 March 2007. Mr Kennedy is the Ministry's Director Transport Planning and is the author of the Document. In his affidavit he states: 5. In or about March 2005, the Minister for Transport instructed the [Ministry] to prepare a Public Transport Plan for the Lower Hunter to be submitted to Cabinet. The objective of the Plan is to improve public transport services in the Lower Hunter in the short to medium term. 6. As the Director Transport Planning, I was responsible for overseeing and preparing the Public Transport Plan for submission to Cabinet. I prepared a draft Public Transport Plan which is 125 pages long and is titled "Public Transport in the Lower Hunter: A Five-Year Plan" dated September 2005. I continued to work on this document and prepared another draft in November 2005. 7. On or about 25 October 2006 Ms Pauline Ross, an FOI Officer for the [Ministry], arranged to see me. Ms Ross came into my office and handed me a copy of the document dated September 2005 which I have described in paragraph 6 above. She also handed me the FOI request from Mr Dawson dated 20 October 2006 which is annexed and marked "A" to this affidavit. 8. Ms Ross and I then had a conversation in words to the following effect: Ms Ross said: "Is this the document relevant to the FOI request?" I said: "Possibly, however, it was not prepared by consultants. I was the author and McCormick Rankin Cagney was engaged to assist in its preparation. It is still a working document without any endorsement from the Director General. I continued to work on the document past September 2005. " "In any case, as it was being prepared for Cabinet consideration, it should be exempt from disclosure." Ms Ross said: "So it was your understanding that the document was being prepared for Cabinet. " I said: "Yes. Once endorsed by the Director General it is to be submitted to the Minister for Transport to form the basis of a Cabinet Submission." 12 Ms Ross is the Ministry's Freedom of Information Officer and Director of the Ministerial Coordination Division. In her affidavit Ms Ross states that she located the Document in her role as FOI Officer. She stated: 7. On examination of the Document, my first impression was that it was a draft document. I formed this view because: (a) the Document's title page had not been subject to graphic design layout; (b) the Document appeared to constitute a word document which had not been prepared in desktop publishing style to the standard expected of finalised [Ministry] reports; (c) the contents page did not contain page numbers and was not correctly right/left justified; (d) there were ampersands ("&"s) in the contents page; (e) the Document did not bear the official [Ministry] crest and there was no indication it had been signed off by the [Ministry] Director General; (f) the Document contained clear formatting errors (such as a chart which had printed over itself and over text in the document so that both were illegible; and numerous title headers which were situated at the bottom of pages rather than over the page with the content they referred to); (g) the Document contained pencilled markings indicating possible errors and formatting suggestions; and (h) the Appendices appeared to be incomplete. 8. I also noted the contents of the determination letter which is annexure "B" to this affidavit in relation to the earlier decision not to release the Document. The determination letter indicated that the Document had been declared exempt as it was prepared for submission to Cabinet. 9. The Document indicated that Lyall Kennedy, the then Acting Director, Transport Planning for the [Ministry], was responsible for its creation. I decided that it was best to consult with Mr Kennedy to confirm that the Document was a draft document. 10. On 25 October 2005, I arranged a meeting with Mr Kennedy in his office to discuss the Document requested by Mr Dawson in FOI 06/56. I showed Mr Kennedy a copy of the Document and we had a conversation in words to the following effect: I said: "Lyall, I have received a request under FOI for the release of this document and it has your name on it. Did you write this document?" Mr Kennedy: "Yes." I said: This looks like a draft document to me - is this the final document? Mr Kennedy: "No, it's a draft." I said: "Has the document been finalised?" Mr Kennedy: "No it is still in draft form. " I said: "So it hasn't been signed off by the Director General or the Minister yet?" Mr Kennedy: "No. This document remains in draft form and continues to be worked on. It has not reached the stage of formal endorsement by [Ministry], the Minister for Transport or by the Government." I said: "So there were drafts produced after this draft?" Mr Kennedy: "Yes." Mr Kennedy then showed me a later draft of the Document which was clearly marked "draft." I said: "The release of this report under FOI legislation was refused previously as it was held to be exempt as it was prepared for submission to Cabinet and was subject to Cabinet deliberations. But the document doesn't have 'Cabinet in Confidence marked on it'. Was it prepared for submission to Cabinet?" Mr Kennedy: "Yes it was prepared for submission through the usual Cabinet approval process. It was created with the intention that it would be attached to a Cabinet Minute and submitted for approval to Cabinet through the ordinary approval process." I said: "So when you actually wrote it you understood that it was to be presented to Cabinet in order that Cabinet could make decisions about what's in the report? Mr Kennedy: "Yes." I said: "And has a final decision been made in respect of the contents of the document, and have the issues it concerns been finalised?" Mr Kennedy: "No. The transport planning issues at the heart of the document remain under consideration." 13 The Ministry relies on views expressed by the Tribunal's President in Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 282 at [57] 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'. 14 It says that the Document was prepared for submission to Cabinet to improve public transport services in the upper Hunter in the short to medium term. The Ministry has received a report from MRC. The MRC report is annexed to the Document. A copy of the MRC report has already been provided to Mr Dawson. The Ministry submits that the Document should not be disclosed in order to preserve that constitutional convention. 15 The Ministry further submits that the Document is an exempt document pursuant to Clause 9(1) of Schedule 1 of the FOI Act because it is an internal working document the disclosure of which would be contrary to the public interest. The Ministry also relies on the evidence provided by Mr Kennedy and Ms Ross in support of this submission. The evidence is that the Director General or the Minister for Transport has not endorsed the Document. Therefore, its release could mislead and encourage ill informed speculation by the public about the transport planning issues dealt with in the Document. 16 The Ministry further submits that an internal document should not be released to the public if release of the Document would impact on the deliberative and policy making process within the government, and inhibit the free exchange of ideas, unless this is outweighed by the public interest. In support of that submission it relies on views expressed by the President of the Victorian Civil and Administrative Tribunal in Re Coleman and Director-General, Local Government Department, Pentland (1985) 1 VAR 9 at 11. 17 The Ministry submits that the public interest in releasing the Document is not sufficient to warrant the release of the Document. That is, the public interest in releasing the Document does not outweigh the public interest in refusing to release the Document. Furthermore, release of the Document would be contrary to the public interest because the object of the public interest protection is to ensure the proper working of government. The Ministry submits that it "is inherent in the nature of things that government at a high level cannot function without some degree of secrecy. No Minister or senior public servant can effectively discharge the responsibilities of his office if every document prepared to enable policies to be formulated was liable to be made public" (see Sankey v Whitlam (1978) 21 ALR 508 at 527-528). Disclosure of the Document should not be afforded where public interest does not require it. 18 The Ministry acknowledges that the Document does contain information that is factual and statistical in its nature, but relies on the decision in National Parks Assoc. of NSW v Department of Lands [2005] NSWADT 124 as support for its submission that factual and statistical material that is inextricably mixed with exempt material will result in the whole of the material being exempt. The Ministry again submits that because of this, Mr Dawson should be refused access to the Document. Mr Dawson's case 19 Mr Dawson argues that the Ministry has not discharged the burden of proving that the exemptions apply and therefore he should be given access to the Document. 20 He contends that the Document is part of an integrated transport plan to be produced by the Department of Planning, for which a consultant was paid $125,000 in 2005. The Department of Planning's broader transport plan has not been released. The Ministry's public transport plan was to be a component of the broader transport plan. He says that the Document is a draft of the Ministry's plan. 21 Mr Dawson argues that it is unlikely that this document was prepared for the purpose of submitting it to Cabinet, or is a draft of such a document. He refers to comments by the Tribunal's President in Cianfrano v Director General, New South Wales Treasury [2005] NSWADT 7 where he stated at 32: 32 In the Tribunal's view, the normal approach to ascertaining whether one of the Cabinet documents exemptions applies is to seek to find indicia in the document under notice which show that it is a document of the kind specified by the particular sub-category of cl 1(1) relied upon. It may also be necessary to have regard to any evidence tendered by the agency or Minister. 22 He points to protocols for Cabinet submissions and in particular the training manual prepared by the Cabinet Office for agencies Writing Cabinet Minutes, Institute of Public Administration Australia NSW Division, 12 December 2000, which states: Minutes should be as concise as possible. … relevant supporting or background information is stated as concisely as possible consistent with clarity and with the need to provide ministers with the facts on which to make an informed decision. ... 'Attachments and Appendices: These are listed, eg: Financial Impact Statement; .Explanatory Note of a Bill (4 pages); .Appendix A (2 pages); .Appendix B (1 page)...'. 23 Mr Dawson argues that given the protocols for Cabinet submissions, it is implausible that such a detailed report was prepared for the purpose of submitting it to Cabinet. It is more likely that it was prepared for the purpose of advising the Minister on the policy choices involved. He submits that this is the tenor of a number of statements by the Transport Minister. 24 He further argues that the fact that the Document was not marked 'Cabinet in Confidence' also casts doubt on the idea that it was prepared for submission to Cabinet. 25 Mr Dawson referred to a number of press reports of comments made by the Minister for Transport. In one such article the Minister is reported to have said: "I've made it clear I want the Newcastle Transport Plan finished quickly. And once it's completed, I'll be running it by the ultimate authority -the travelling public of Newcastle" (Newcastle Herald 9/3/2005). 26 Mr Dawson referred to the following exchange between the NSW Legislative Council Member Ms Sylvia Hale and the Minister for Transport in September 2005 the Minister: Mrs Sylvia Hale: Am I to take it from that that no move will be made to close the line until such time as the public transport plan has been developed and made available for public discussion? The Hon. John Watkins: Yes... I told the communities up there we would have a comprehensive integrated public transport plan and that work has been ongoing through the Ministry of Transport, and that about the third quarter of the year, the last quarter of the year, it would be revealed... (NSW Parliamentary Hansard, General Purpose Standing Committee No.4, 20/9/05 p15.) 27 Mr Dawson argues that it appears that at the relevant times the Minister did not envisage that the plan would be confidential. Since it is customary for Cabinet documents to be confidential, there is an inference that the Minister did not envisage that the plan would be a Cabinet document. He says that the evidence that the Document was prepared for submission to Cabinet is weak. The evidence lies in a single conversation in October 2006; i.e. over 18 months after the plan was commissioned. There is no evidence to confirm the reliability of Mr Kennedy's recollection of what the purpose of the plan was supposed to be in early 2005. 28 Mr Dawson also argues that draft Cabinet documents should be marked as confidential, stored securely, and access should be on a need to know basis. He says that the Ministry should show that normal practices for safeguarding Cabinet confidentiality were carried out in respect of the Document from the time it was commissioned. 29 He says that the Tribunal should prefer Mr Kennedy's recollection to that of Ms Ross. Mr Kennedy's evidence is that "Once endorsed by the Director General [the Document] it is to be submitted to the Minister for Transport to form the basis of a Cabinet submission." He relies on views expressed in National Parks Association of NSW Inc. v Department of Lands and anor [2005] NSWADT 124 at 34 for support for his submission that a document prepared for a Minister as the basis of a submission to Cabinet is not exempt. Deputy President Hennessy stated: 34 The Department's alternative submission appears to be that the Report was prepared as the basis of a submission to Cabinet. … I do not accept that submission because the ordinary meaning of a document "prepared for submission to Cabinet" is that the document itself has been prepared for that purpose, not that it has been prepared for some other purpose, namely as the basis for such a submission. 30 Mr Dawson contends that these factors support the inference that the Document was not prepared for the purpose of submitting it to Cabinet. There is no evidence that the Document has connection with Cabinet deliberations in any other way. He further submits that there is no evidence that the Document has been submitted to Cabinet or that there is now any intention ever to do so. He says that the Tribunal should demand a reasonably high standard of evidence that documents were prepared for submission to Cabinet. This is consistent with the approach the Tribunal took in the similar case of National Parks Association of NSW Inc. He submit that a similar level of scepticism in this case should cause the Tribunal to find that it is not proven that the Document was prepared for the purpose of submission to Cabinet. 31 Mr Dawson concedes that the Document is a document of the kind described by clause 9(1)(a) of Schedule 1 of the FOI Act. However, he submits that the onus is on the Ministry to prove that, on balance, release would be contrary to the public interest. He argues that there is a general presumption that the public interest favours disclosure. The FOI Act operates on the premise that there is a public interest in the public having access to Government information to facilitate the public's ability to discuss, review and criticize government action: Kerr v Roads and Traffic Authority [2006] NSWADT 145 at 8. 32 He says that the application is not just matter of curiosity. For several years there has been a strong public interest in Lower Hunter transport planning issues, mostly driven by the debate over the proposal to close the Newcastle City train line. He says that the Government commissioned the public transport plan in response to strong public interest; that this interest continues and that information in the Document will inform public debate on these matters. He contends that most of the Ministry's submissions are statements of principle, some of which are wrong and that no adequate argument is made showing how the claimed principles apply to the circumstances of the case to make this document exempt. 33 Mr Dawson argues that the Ministry's submission that the Document should not be released to the public so as to protect the deliberative and policy-making process within the government should be rejected. He points to the discussion in Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60 where Commissioner Albietz stated at 124: 124 The third of the five Howard criteria, the "candour and frankness" argument has been viewed with a healthy scepticism by most presiding members of the Commonwealth AAT. Indeed some have made remarks which suggest that inhibition of candour and frankness is unlikely ever to suffice as a ground of injury to the public interest that would justify non-disclosure of documents under FOI legislation (see for example Re VXF and Human Rights and Equal Opportunity Commission (1989) 17 ALD 491 at p.504-5, paragraphs 48 and 52; Re Sunderland and Department of Defence (1986) 11 ALD 258 at p.263). 34 He submits that in any case, the Ministry's submission does not show how 'frankness and candour concerns' apply in the circumstances of this case to make this document exempt. 35 He further submits that the Ministry has made no adequate argument showing why releasing this document could 'mislead and encourage ill-informed speculation'. He says that Ms Ross's evidence is that the Document has the appearance of a draft and the Government has said publicly that the Document has been superseded by other work. There is little chance that it will confuse the public about its status. 36 He further submits that the Tribunal should also reject the Ministry's submission that it is necessary to withhold the Document to protect the secrecy of sensitive high-level communications. He says that the Document is far from being at the level of high-level sensitivity that should bring this argument into play. 37 He points to the discussion in Law Society of New South Wales v General Manager, WorkCover Authority of New South Wales (No 2) (GD) [2005] NSWADTAP 33 of circumstances in which the public interest requires documents to be kept confidential because deliberations are incomplete. At paragraph [82] the Appeal Panel observed that whether deliberations can be regarded as finalised is a question of degree and that the public interest against disclosure dissipated over time as events had moved on. Mr Dawson argues that some matters to do with transport planning in Newcastle are still under consideration in government. However, he contends that there is strong evidence that the public transport plan represented by the Document has been shelved and the government has no intention of taking it further. He says that the Transport Minister's promise to release the draft plan for public consultation suggests that deliberations would not be prejudiced by release of the Document. No argument is made showing how disclosure would be contrary to the public interest in this case. 38 The onus is not on the applicant to prove that the public is interested or that the public interest 'requires' disclosure. The onus is on the Ministry to prove that, on balance, release would be contrary to the public interest. 39 Mr Dawson referred to the following item published in Legislative Council Questions and Answers No. 36 - Tuesday 2 January 2007: 0431 TRANSPORT - LOWER HUNTER INTEGRATED TRANSPORT PLAN - Ms Rhiannon asked the Minister for Roads, and Minister Assisting the Minister for Transport representing the Deputy Premier, Minister for Transport, and Minister for Police - (1) What pieces of work were consultants McCormick Rankin Cagney contracted to do on the Lower Hunter Integrated Transport Plan in 2005? (2) Did the consultants complete the work they were contracted to do? (3) Did this work include producing a report on the Lower Hunter Integrated Transport Plan? (4) If so, was this written or oral advice? (5) Will the Minister publicly release the advice received by McCormick Rankin Cagney? (a) If so, when? (b) If not, why not? Answer - (1) to (5) McCormick Rankin Cagney were contracted to assist in the preparation of the proposed Lower Hunter Integrated Transport Plan which was superseded by the Premier's Hunter Taskforce. The recommendations of this taskforce were announced by the Premier in February 2006.' 40 He submits that in this situation there is unlikely to be any public interest argument against disclosure which outweighs the public interest in disclosure because the Document is no longer relevant to any current negotiation: Simpson -v- Director General, Department of Education and Training [2000] NSWADT 134 at [87] -[88]. Findings 41 The Ministry has asserted two grounds for refusing to grant Mr Dawson's request for release of the Document. Mr Dawson disputes both of those grounds. Clause 1 - Cabinet documents exemption 42 Pursuant to Clause 1(1)(a) a document is an exempt document if it is a document that has been prepared for submission to Cabinet. The use of the word "for" in Clause 1(1)(a) requires application of a purpose test. In previous decisions, the Tribunal has held that the relevant test is not a "sole purpose" test. Instead, it is sufficient that a submission to Cabinet is one of the purposes for which it was prepared: National Parks Association of New South Wales Inc. v Department of Lands and anor. 43 As long as one of the purposes for creating a document is for making a submission to Cabinet and as long as that purpose is something more than a "peripheral" purpose, the exemption will operate: Herald & Weekly Times v Victorian Curriculum & Assessment Authority [2004] VCAT 924. 44 I accept Mr Dawson's arguments in relation to this claimed exemption. I agree that it necessary to determine the relevant purpose for which the Document was created and this is determined by reference to the time the Document was prepared. The totality of the evidence suggests that the Document was probably prepared as the basis of a submission to be made to Cabinet. I do not accept that it was intended that the Document would be submitted to Cabinet. 45 I agree with the views expressed by Deputy President Hennessy in National Parks Association of NSW Inc. v Department of Lands and anor that a document prepared as the basis of a submission to Cabinet is not exempt. Accordingly, it is my view that this claimed exemption is not made out. Clause 9 - Internal working documents 46 I also agree with Mr Dawson's arguments in relation to this claimed exemption. I am satisfied that the release of the Document would disclose advice prepared for the purpose of the decision-making functions of the Government and accordingly, the first arm of Clause 9 is satisfied. However, for the reasons argued by Mr Dawson, I am not satisfied that the release of the Document would be contrary to the public interest. I accept that the evidence suggests that the Premier's Hunter Taskforce has superseded the public transport plan represented by the Document. I am satisfied that these deliberations can be regarded as finalised and that the public interest against disclosure has dissipated. 47 In the circumstances of this matter I am not satisfied that the agency has discharged its onus of proving that the exemptions claimed are justified. It follows in my view that the correct and preferable decision is that the Document should be released. Order The decision under review is set aside. In its place the decision is made that the document referred to as 125 page document entitled "Public Transport in the Lower Hunter" is to be released in full within 28 days.

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Judgment (10 paragraphs)

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Cases Cited (1)