McKay v Transport for NSW

ISSUES TO BE DETERMINED BY THE TRIBUNAL

1. In the Decision subject to review, the First Respondent identified each of Documents 24, 25, 30 and 35 as Cabinet information and determined to withhold them on that basis. The respondents no longer maintains that these documents are Cabinet information, but instead submits that there is an overriding public interest against disclosure of these Documents, applying the public interest test in s13 of the GIPA Act. The Respondents also no longer press any claims in relation to Document 2.
2. Accordingly, the issues for the Tribunal to determine on administrative review are: 1. whether there were "reasonable grounds" for the classification of each of Documents 1, 3-10, 12-23, 28-29 and 31-34 as Cabinet information; 2. whether Documents 26 and 27 have properly been classified as documents, the disclosure of which would infringe the privilege of Parliament, such that it is to be conclusively presumed that there is an overriding public interest against disclosure; and 3. whether there is an overriding public interest against disclosure of Documents 11, 24, 25, 30 and 35, applying the s13 public interest test.
3. The Applicant submitted that the Tribunal should inspect documents 1, 3, 6, 7, 8, 9, 10, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 28 and 29 and form its own conclusions in the absence of the applicant's ability to make detailed submissions on those documents.

Relevant Legislation

1. The Tribunal's jurisdiction to conduct this review derives from s100 of the GIPA Act read with s28 of the CAT Act and s9 of the Administrative Decisions Review Act 1997 (NSW) ("ADR Act").
2. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure.
3. Section 13 of the GIPA Act sets out the "public interest test" for determining whether there is an overriding public interest against disclosure of information, as follows: "There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure."
4. Section 12(1) provides that there is a general public interest in favour of the disclosure of government information. Section 12(2) further provides that nothing limits the considerations in favour of disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure. The Note to s12(2) lists examples of the types of considerations in favour of disclosure that may be taken into account.
5. Section 14 prescribes the public interest considerations against disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure. The Table to s14 sets out the only considerations against disclosure that may be taken into account when applying the public interest test in s13 (s14(2)).
6. Under section 14(1) of the GIPA Act, it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 to the GIPA Act.
7. Clause 2 of Schedule 1 provides: 2 Cabinet Information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information (referred to in this Act as "Cabinet Information") contained in any of the following documents: (a) a document that contains an official record of Cabinet, (b) 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), (c) a document prepared for the purpose of its being submitted to Cabinet for Cabinet's approval for the document to be used for the dominant purpose for which it was prepared (whether or not the document is actually submitted to Cabinet and whether or not the approval is actually given), (d) a document prepared after Cabinet's deliberation or decision on a matter that would reveal or tend to reveal information concerning any of those deliberations or decisions, (e) a document prepared before or after Cabinet's deliberation or decision on a matter that reveals or tends to reveal the position that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet, (f) a document that is a preliminary draft of, or a copy of or part of, or contains an extract from, a document referred to in paragraphs (a)-(e). (2) Information contained in a document is not Cabinet Information if: (a) public disclosure of the document has been approved by the Premier or Cabinet, or (b) 10 years have passed since the end of the calendar year in which the document came into existence. (3) Information is not Cabinet Information merely because it is contained in a document attached to a document referred to in subclause (1). (4) Information is not Cabinet Information to the extent that it consists solely of factual material unless the information would: (a) reveal or tend to reveal information concerning any Cabinet decision or determination, or (b) reveal or tend to reveal the position that a particular Minister has taken, is taking or will take on a matter in Cabinet. (5) In this clause, "Cabinet" includes a committee of Cabinet and a subcommittee of a committee of Cabinet.
8. Section 106 of the GIPA Act provides a special procedure for decisions by the Tribunal in respect of Cabinet and Executive Council information, as follows: 106 Decisions about Cabinet and Executive Council information (1) On an NCAT administrative review of a decision by an agency that there is an overriding public interest against disclosure of information because the information is claimed to be Cabinet or Executive Council information (as described in Schedule 1), NCAT is limited to deciding whether there were reasonable grounds for the agency's claim and is not authorised to make a decision as to the correct and preferable decision on the matter. (2) If NCAT is not satisfied, by evidence on affidavit or otherwise, that there were reasonable grounds for the claim, it may require the information to be produced in evidence before it. (3) If NCAT is still not satisfied after considering the evidence produced that there were reasonable grounds for the claim, NCAT is to reject the claim when determining the review application and may then proceed to make a decision as to the correct and preferable decision on the matter. (4) NCAT is not to reject the claim unless it has given the Premier a reasonable opportunity to appear and be heard in relation to the matter. (5) The Premier is a party to any proceedings on an application under this section.
9. As the First and Second Respondents have noted, the procedure established by section 106 of the GIPA Act with respect to Cabinet Information was recognised by the Appeal Panel in D'Adam v New South Wales Treasury [2015] NSWCATAP 61 at [11]- [12]. At first instance in D'Adam v New South Wales [2014] NSWCATAD 68 at paragraphs [45] to [47], Senior Member Walker explained the operation of section 106 as follows: "45 No 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. 46 In performing this limited task, the tribunal is to give the words "reasonable grounds" their ordinary meaning. In McKinnon v Secretary, Department of Treasury [2006] HCA 45; (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". 47 The 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]; [2004] FCA 143; [2004] FCA 143; , 208 ALR 73, 86."
10. Accordingly, pursuant to s106, with respect to documents the First Respondent has identified as containing Cabinet Information, the Tribunal is limited to deciding whether there are reasonable grounds for the claim and is not authorised to make a decision as to the correct and preferable decision.
11. If, on the basis of the Respondents' evidence and submissions, the Tribunal is not satisfied that the First Respondent had reasonable grounds for its claim in relation to any particular document, the Tribunal may review the document in accordance with s106(2) of the GIPA Act.
12. The Premier must be given an opportunity to appear and be heard in relation to the matter, prior to the Tribunal rejecting a claim that information is Cabinet Information: s106(5) GIPA Act.
13. Also relevantly for the purpose of these proceedings, cl. 4 of Sch. 1 provides as follows: "4 Contempt It is to be conclusively presumed that there is an overriding public interest against disclosure of information the public disclosure of which would, but for any immunity of the Crown: … (c) infringe the privilege of Parliament."
14. A person aggrieved by a "reviewable decision" under the GIPA Act may seek review of that decision by the Tribunal, pursuant to s100 of the GIPA Act. The First Respondent bears the onus of establishing that its decision to refuse access to the relevant documents was justified: s105(1) GIPA Act.
15. The usual task of the Tribunal when undertaking administrative review is to determine what is the "correct and preferable decision": s63 of the ADR Act. This will be the task of the Tribunal when determining the administrative review, insofar as it relates to Documents 26 and 27 (documents subject to Parliamentary privilege) and Documents 11, 24, 25, 30 and 35 (documents otherwise subject to an overriding public interest against disclosure).
16. However, the Tribunal's jurisdiction is modified by s106 of the GIPA Act in cases concerning documents withheld on the basis that they contain Cabinet information.

Cabinet Information - general principles

1. The manner in which the GIPA Act reconciles the attainment of its objectives of access to information, with considerations of maintaining Cabinet confidentiality, was considered by the Tribunal in D'Adam. In particular, the Senior Member discussed the importance of Cabinet confidentiality as a matter of public interest, as follows: "[42]… For some functions of government, 'freedom from interference or scrutiny by members of the public.... is an essential aspect of the making of decisions' (Kline v Official Secretary to the Governor-General [2013] HCA 52 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. 43 The 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]). 44 Flick 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'."
2. The special value that the legislature places on maintaining the confidentiality of Cabinet processes is reflected in the conclusive presumption of an overriding public interest against disclosure for which s14(1) and Sch. 1, cl. 2 of the GIPA Act provides.
3. The defined categories of Cabinet Information under Sch. 1, cl. 2(1) reflect the scope of material to which the long-standing convention of confidentiality applies. The Cabinet process is considered at some length in the Cabinet Manual (particularly at page 7-11). It was also the subject of detailed evidence accepted by the Tribunal in Bennison v Department of Premier and Cabinet [2016] NSWCATAD 101, as reflected in the following passages (at [31]-[32]): "[31] Mr Miller provided an outline of the Cabinet and Cabinet processes. He summarised the process as including many stages: Cabinet involves a pattern of deliberations which forms the process by which the Government makes decisions on major policy issues. It may include the processes under which a Cabinet submission ("Submission") is prepared by an agency for a Minister to submit to Cabinet, the lodgement of the Submission by a Minister to the Cabinet Secretariat, the circulation of the Submission to Ministers for consideration and advice, and the provision of advice on the Submission either to all Ministers or to a particular Minister for use in Cabinet. A Cabinet meeting at which a Cabinet decision is formally taken and recorded may be the culmination of this deliberative process, but the term Cabinet refers to a process that is broader than that particular meeting. ... Decisions of Cabinet are based upon advice it receives from Ministers, government officers and in some cases external consultants. Usually, the main piece of advice to Cabinet is in the form of a Cabinet Submission. A Cabinet Submission is a submission made to Cabinet or a Committee of Cabinet by the Minister responsible for the subject discussed in the Submission. It constitutes the submitting Minister's principal communication with Cabinet to assist its deliberations on the matters before it. The Submission reflects that Minister's views or opinion on the issue he/she presents to Cabinet. A Cabinet Submission is usually prepared by government officers but it is approved and signed by the Minister and represents the Minister's position. In some cases copies of external consultant's reports are annexed to a Cabinet Submission. Cabinet relies significantly on the advice and information it receives from Ministers, government officers and, on occasion, external consultants to make its decisions. As such it is vital to the development of public policy and to the good administration of the affairs of the State that Cabinet be able to receive confidential advice and information on the matters that come before it for consideration. In order to achieve this, it is necessary that Cabinet and its Ministers be able to be confident that advice and information which Ministers put before Cabinet and advice they receive from government officers or external experts will remain confidential. It is also necessary to ensure that the persons preparing the advice for Cabinet and Ministers are confident that any advice and views they seek from other Departmental officers or from external experts will remain confidential. [32] Mr Miller expressed the view that it is vital to the development of public policy and the good administration of the affairs of the State that: (a) Ministers in Cabinet are able to have a free and candid discussion on issues that come before it for determination; (b) Ministers and Cabinet are able to obtain full and frank advice from government officers and external experts on issues that come before a Cabinet for determination; (c) Those advising the Ministers and Cabinet are able to obtain full and frank advice and views of other government officers and external experts on matters in respect of which they are providing advice to a Cabinet."
4. According to D'Adam at [49]-[51], there are three conditions for the operation of clause 2(1)(b): 1. That there is "information"; 2. The information is "contained in a document"; and 3. That document must have been prepared for the dominant purpose of being submitted to Cabinet for Cabinet's consideration.
5. The words "dominant purpose" have the same meaning as in sections 118-119 of the Evidence Act 1995 in relation to legal professional privilege. As noted in D'Adam at [51]: 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]

Documents prepared for the dominant purpose of being submitted to Cabinet for Cabinet's consideration

1. The Respondents identified the following documents as Cabinet information, on the basis that they were documents prepared for the dominant purpose of submission to Cabinet for Cabinet's consideration, or were preliminary drafts of such documents, and thus fell within the terms of Sch. 1, cl. 2(1)(b) and (f); 1. Cabinet submissions, drafts thereof and attachments to submissions - being the documents identified as Documents 15, 16, 21, 22, 29 and 34 in these proceedings; 2. Documents produced by the "Transport for NSW: Infrastructure Value Capture Model" and the Mecone report "Parramatta Light Rail, Preliminary Value Uplift and Sharing Analysis" - being the documents identified as Documents 4, 5 and 12 in these proceedings; 3. Hill PDA report "Value Sharing Contributions, Policy Framework and Implementation Advice" - being the document identified as Document 13 in these proceedings; 4. Attachment E to the Strategic Merit Test ("SMT") Report and documents produced by the Parramatta Light Rail Value Add Model (which formed part of the SMT analysis) - being the documents identified as Documents 31-34 in these proceedings.
2. Wayne Kosh and Matthew McKibbin provided affidavits for the First Respondent to support the classification of those documents as cabinet information. Mr Kosh was not involved in the preparation of the documents, but provided his opinion on their classification in the context of being Manager, Information and Privacy for the First Respondent and the authorised delegate to determine applications made to the First Respondent under the GIPA Act, having reviewed certain documents, and been advised and informed as to their creation, purpose and use. Mr McKibbin works substantively as the Director, Transit Network Strategy for the First Respondent, involving long term planning for bus, ferry and light rail transport. He was a member of the working party responsible for preparing a submission for the Expenditure Review Committee (ERC), for the purpose of submission to Cabinet for its consideration in September 2015, and again in December 2015 by way of update. He also directed the work undertaken by the consultant advisors engaged by the First Respondent, Mecone and Hill PDA Consulting. His role and involvement in the consultation process with the ERC meant that he was able to identify which documents had been involved in that process.
3. The Applicant made submissions about the weight the Tribunal should afford to the evidence of Mr Kosh and Mr McKibbin. I accept that where a deponent has no first-hand knowledge of the document in question, the weight I would ascribe to the veracity of the content of that evidence in relation to that document should be reduced. However in these circumstances I am tasked, pursuant to s106(1) of the GIPA Act, with deciding whether there were reasonable grounds for the agency's claim, not whether the Agency's claim is to be upheld as the correct and preferable decision. Mr Kosh's evidence is useful to the extent that it explains how the First Respondent reached its conclusions in assessing the documents sought in the access application, which is the basis for their "reasonable grounds" in determining certain documents were Cabinet Information within the meaning of the GIPA Act. Mr McKibbin's evidence regarding documents up until and including the December ERC meeting in 2015 involves his specific involvement with the relevant documents, which supports the Agency's "reasonable grounds" for determining that those documents are Cabinet Information. I accept the Applicant's submission that in relation to documents 31 to 34, the Tribunal should give Mr McKibbin's evidence little weight as he had "no direct involvement" in the work relating to those documents.
4. The Applicant obtained a number of records via summons in relation to Mecone, which prepared Documents 4, 5 and 12, and HillPDA, which prepared Document 13. The summonsed records were annexed to the affidavit of Ms Parker. On the basis of the records produced under summons, the Applicant submitted that whilst it was clear that providing input into cabinet documents was a purpose for which the Mecone and HillPDA documents were prepared, it was clear from the terms of the consultants' engagement that the documents were prepared for a number of purposes, including research; modelling; the development of a policy proposal; and multiple implementation issues. The Applicant submitted that the Tribunal should find that these documents were therefore not produced for the sole, or even dominant, purpose of submission to Cabinet.
5. I disagree with the Applicant's characterisation of the terms of the consultants' engagement. On my reading of the engagement documents, and as submitted by the First Respondent at hearing, the tasks listed under "Scope of Services" don't express the purpose for the service provider's engagement, but rather, what they required to do once they are engaged. The purpose for the service providers' engagement is identified in "Project Description" as: Following direction from the NSW Government, Transport for NSW will commence work on a Preliminary and Final Business case for the Parramatta Light Rail Project. This work includes the investigation into potential non-tradition (value capture) funding mechanisms. This Service Brief describes the work required to complete a Value Capture Uplift and Revenue Analysis for the Parramatta Light Rail Project.
6. This is supported by the evidence of Mr McKibbon, who explained: Following the ERC meeting on 9 September 2015, I was responsible for overseeing further work for TfNSW regarding value capture, with an update regarding this work to be provided to Cabinet in December 2015. This additional work was directed to providing further information on possible value capture options. In order to provide this additional information to cabinet, TfNSW engaged consultant advisors, Mecone and Hill PDA Consulting, to assist in the preparation of a further submission to Cabinet.
7. In relation to each of the reports produced by the service providers, Mr McKibbon stated: The sole purpose for which this material was prepared was to provide additional information to Cabinet.
8. The truncated timing of the service providers' engagement in late September 2015, as outlined in the documents produced under summons to the First Respondent, also supports Mr McKibbon's evidence that the purpose of their engagement was to provide additional information to Cabinet. The emails produced under summons provide further support, with references to timeframes dictated by Cabinet, preparation of Cabinet Minutes and Cabinet Submissions, and a request to include "Cabinet in Confidence" on documents.
9. My review of the subject documents confirms this conclusion. Documents 4 and 5 contained detailed table and graph analysis of information, some of which is then produced in Document 12, which is marked "Cabinet in Confidence" and responds to the service providers' terms of engagement. Document 13 is similarly marked "Cabinet in Confidence" and responds to the scope identified in the service providers' terms of engagement, for consideration by Cabinet. I therefore find that there were reasonable grounds to support the First Respondent's claim that Documents 4, 5, 12 and 13 were prepared for the dominant purpose of submission to Cabinet for Cabinet's consideration.
10. On my review of Documents 15, 16, 21, 22, and 29, I find that on their face they support the First Respondent's evidence and submissions that they are Cabinet submissions, attachments to Cabinet submissions, and draft Cabinet submissions. I therefore find that there were reasonable grounds to support the First Respondent's claim they were prepared for the dominant purpose of submission to Cabinet for Cabinet's consideration.
11. Regarding documents 31 to 34 inclusive, Mr Kosh's evidence is that these documents were attachments to the "Strategic Merit Test Report", containing affordability and value modelling which was extracted from the attachments and summarised in the report itself, which was prepared for the purpose of Cabinet's consideration of alignment choices for the PLR project. Mr McKibbin's evidence in relation to these documents is corroborative, and although I place little weight on that evidence because he did not have direct involvement with the project at the time those documents were created, what weight remains is supportive of Mr Kosh's statement. Mr Poole has additionally given evidence in relation to documents 31 to 34 which is corroborative of Mr Kosh's statement. On the basis that Mr Poole's evidence was provided to the applicant and the Tribunal rather late in the proceedings, and he was not available for cross examination, I reduce the weight I would otherwise give his evidence but, similar to my assessment of Mr McKibbon's evidence in this respect, would consider that any weight remaining with Mr Poole's evidence would support the statement made by Mr Kosh regarding those documents. I accept that evidence as confirmed by my review of those documents, and therefore find that there are reasonable grounds to support the First Respondent's claim they were prepared for the dominant purpose of submission to Cabinet for Cabinet's consideration.

Documents revealing information concerning deliberations or decisions

1. The First Respondent identified the following documents as Cabinet information on the basis that they reveal deliberations or decisions of Cabinet pursuant to Schedule 1, Clause 2(1)(d) of the GIPA Act: 1. Cabinet submissions or drafts thereof - being the documents identified as Documents 15, 21 and 29 in these proceedings, already considered above; 2. Documents associated with Cabinet submissions - being the documents identified as Documents 17, 18 and 23 in these proceedings; 3. Briefing to the Secretary of TfNSW - being the document identified as Document 19 in these proceedings; 4. Presentations - being the documents identified as Documents 6, 8, 9, 10, 20 and 28 in these proceedings; and 5. Agendas - being the documents identified as Documents 2 and 3 in these proceedings.
2. Having already found that Documents 15, 21 and 29 are Cabinet information, there is no need for the Tribunal to consider them under this category as well.
3. Documents 17, 18 and 23 are submitted by the First Respondent to be associated with Cabinet submissions, and thereby reveal deliberations or decisions of Cabinet. Having reviewed the documents, I accept Mr Kosh's evidence that Document 17 is speaking notes regarding a Cabinet submission being Document 15, and Documents 18 and 23 are ministerial briefings referring to and regarding a Cabinet Submission being document 21. The First Respondent's basis for claiming them as Cabinet Information is therefore reasonably held.
4. Document 19 is submitted to be a briefing to the Secretary of TfNSW. Having reviewed the document, I accept Mr Kosh's evidence and the First Respondent's submissions that it contains details of submissions made to Cabinet, infers recommendations, and thereby reveals information concerning Cabinet deliberations and decisions. The First Respondent's basis for claiming it as Cabinet Information is therefore reasonably held.
5. Documents 6, 8, 9, 10, 20 and 28 are submitted by the First Respondent to be presentations associated with Cabinet submissions and consideration, and thereby reveal Cabinet's deliberations or decisions. Having reviewed those documents, I agree with those submissions and the evidence of Mr Kosh to that effect. Except for Document 20, each of the documents is marked as "Draft - cabinet in confidence". Each of the documents is clearly identifiable from its content and date to include Cabinet information being details of cabinet deliberations and decisions including reports of Cabinet submissions, steps taken or planned in Cabinet deliberations, summaries of Cabinet submissions and findings presented to Cabinet. The First Respondent's basis for claiming each of those documents as Cabinet Information is therefore reasonably held.
6. Document 2 was released to the Applicant. Document 3 was submitted by the First Respondent to be an Agenda titled "Parramatta Light Rail Value Sharing - Resolution of Identified Issues", dated 19 November 2015. Having reviewed that document, I agree with the First Respondent's submissions and the evidence of Mr Kosh that it contains the positions of various agencies in relation to drafting Cabinet submissions, and refers to previous Cabinet deliberations and decisions. The First Respondent's basis for claiming this document as Cabinet Information is therefore reasonably held.

Documents revealing the position a Minister has, will, will consider or is recommended to take

1. The First Respondent identified the following documents as Cabinet information, on the basis that they reveal the position that a particular Minister has taken, is taking, will take, is considering taking or has been recommended to take on a matter in Cabinet, pursuant to Schedule 1, Clause 2(1)(e) of the GIPA Act: 1. Cabinet submissions or drafts thereof and attachments to submissions - being the documents identified as Documents 15, 16, 21, 22 and 29 in these proceedings, already considered above; 2. Documents associated with Cabinet submissions - being the documents identified as Documents 14, 17, 18 and 23 in these proceedings. Documents 17, 18 and 23 were already considered above; 3. Presentations - being the documents identified as Documents 1 and 7 in these proceedings; and 4. Agenda being Document 3 in these proceedings, already considered above.
2. Having already found that Documents 3, 15, 16, 17, 18, 21, 22, 23, and 29 are Cabinet information, there is no need for the Tribunal to consider them under this category as well.
3. Document 1 was submitted by the First Respondent to have been prepared for the purpose of briefing the Minister for Transport's advisors on the content of the forthcoming submission which was ultimately considered by Cabinet in December 2015. The First Respondent submitted that it was evident on its face to reveal the Minister's position regarding feasibility and that it contained information regarding a number of positions the Minister was being asked to take. Having reviewed the document, I accept the First Respondent's evidence and submissions regarding its contents and the context of its preparation and find that the First Respondent's basis for claiming this document as Cabinet Information is reasonably held.
4. Document 7 is submitted by the First Respondent to reveal, or tend to reveal, the position that the Minister was considering taking on the basis that the document was presented to the Minister's advisors to brief them on the forthcoming Cabinet Submission. Having reviewed the document I accept the First Respondent's evidence and submissions regarding its contents and the context of its preparation and find that the First Respondent's basis for claiming this document as Cabinet Information is reasonably held. In my view the document would also fall within the parameters of Schedule 1, Clause 2(1)(d) for the same reasons as Documents 6, 8, 9, 10, and 28 above.
5. Document 14 is submitted by the First Respondent to be a Ministerial briefing containing recommendations for approval of the Cabinet Submission to be lodged in eCabinet. Having reviewed the document I accept the First Respondent's evidence and submissions regarding its contents and the context of its preparation and find that the First Respondent's basis for claiming this document as Cabinet Information is reasonably held.

PRIVILEGED DOCUMENTS

1. The First Respondent submitted that Documents 26 and 27 should be withheld from the Applicant on the basis that they would infringe the privilege of Parliament, and there was therefore an overriding public interest against disclosure in accordance with Schedule 1, Clause 4(1)(c) of the GIPA Act.
2. Mr Kosh gives evidence that Documents 26 and 27 appear to be speaking notes drafted to brief the Minister regarding a Question on Notice in the Legislative Assembly. On my review of those documents, I agree with his characterisation of those documents. There doesn't seem to be any difference between Document 26 and Document 27.
3. The doctrine of parliamentary privilege was considered in some detail by the Tribunal in Tebutt v Minister for Lands and Water [2015] NSWCATAD 95. In that case, Senior Member Lucy considered and, ultimately, accepted the respondent's submission that the disclosure of "House notes" would infringe the parliamentary privilege, as follows: The respondent submitted that the principles underlying both s 16(2) of the Parliamentary Privileges Act 1987 and the common law include ensuring that officers preparing briefings and draft briefings to Parliamentarians are not impeded in their preparation and that the quality of information available to Parliament is not compromised. In support of these propositions, they relied upon Re OPEL Networks Pty Ltd (in liq) (2010) 77 NSWLR 128, a case concerning the application of the Parliamentary Privileges Act 1987. In that case, Austin J said at 134 [118]: "It seems to me necessarily true, and not dependent upon the evidence of the particular case, that if briefings and draft briefings to Parliamentarians for Question Time and other Parliamentary debate are amenable to subpoenas and other orders for production, the Commonwealth officers whose task it is to prepare those documents will be impeded in their preparation, by the knowledge that the documents may be used in legal proceedings and for investigatory purposes that might well affect the quality of information available to Parliament. To take a step that would have that consequence would, I think, derogate from the force of the Bill of Rights and run contrary to the historical justification for that legislation, so ably sketched by McPherson JA [in Rowley v O'Chee [2000] 1 Qd R 207] (and see Mees v Roads Corporation (2003) 128 FCR 418 at 442 [75]-[79] per Gray J)." In Tziolas v NSW Department of Education and Communities [2012] NSWADT 69 at [37], the Administrative Decisions Tribunal (Isenberg JM) considered the principles Austin J referred to above in Re OPEL Networks Pty Ltd to be "relevant to the scope and application of clause 4(c) of schedule 1 of the GlPA Act". The respondent also referred to Sportsbet Pty Limited v State of New South Wales (No 3) [2009] FCA 1283 at [21], in which Jagot J held that a document described as "House Notes," created by a public servant for a Minister's use in Parliament, was subject to Parliamentary privilege. The information in issue in these proceedings is contained in documents which were prepared for the Deputy Premier's use when appearing before a Legislative Council Standing Committee. In my view, the proceedings of the Legislative Council Standing Committee entail "debates or proceedings in Parliament" within article 9 of the Bill of Rights 1688. It was accepted in R v Murphy (1986) 5 NSWLR 18 that the proceedings of a Senate Select Committee are included within the phrase "proceedings in parliament". In Prebble v Television New Zealand Ltd [1994] 3 All ER 407, in a passage cited with approval by Hodgson JA in Stewart v Ronalds (2009) 76 NSWLR 99, Lord Browne-Wilkinson described the "basic concept underlying art 9" as being "the need to ensure so far as possible that a member of the legislature and witnesses before committees of the House can speak freely without fear that what they say will later be held against them in the courts." This is also consistent with Austin J's remarks in Re OPEL Networks Pty Ltd (in liq) (2010) 77 NSWLR 128, which are cited above."
4. The doctrine has been considered again, recently in the decision of Gold and Copper Resource Pty Limited v NSW Trade and Investment [2016] NSWCATAD 267, in which the Tribunal accepted that party room briefings were subject to the conclusive presumption as documents falling within the terms of Sch. 1, cl. 4(1)(c).
5. Applying the analysis adopted in Tebutt, I am satisfied that the disclosure of Documents 26 and 27 would infringe the privilege of Parliament, as the preparation of briefings to Parliamentarians for question time fall within the scope of the privilege. Access to these documents is therefore refused pursuant to Sch. 1, cl. 4(1)(c) of the GIPA Act.

DOCUMENTS SUBJECT TO AN OVERRIDING PUBLIC INTEREST AGAINST DISCLOSURE

1. The First Respondent submits that there is an overriding public interest against the disclosure of documents 11, 24, 25, 30 and 35 applying the public interest test under s 13 of the GIPA Act.
2. The First Respondent submitted that in addition to the general public interest in favour of disclosure of government information as expressed in s12(1) of the GIPA Act, the following considerations in favour of disclosure applied to each of the documents pursuant to s12(2) of the GIPA Act, on the basis that the documents sought were part of the PLR project, being a large infrastructure undertaking by the NSW Government: 1. promoting open discussion of public affairs, enhancing Government accountability or contributing to positive and informed debate on issues of public importance; and 2. ensuring effective oversight of the expenditure of public funds.
3. It is the Tribunal's task in relation to these documents (as opposed to the documents subject to claims of Cabinet information pursuant to Schedule 1 Clause 2) to identify the correct and preferable decision on the basis of the material before it, including both evidence and submissions, having regard to the balancing exercise anticipated by s13 of the GIPA Act.

Document 11

1. Document 11 is a report entitled "Value Sharing for Stage 1 Western Sydney Light Rail" prepared by consultants AECOM for Parramatta City Council (the Council).
2. The First Respondent's evidence, given on the basis of information and belief by Mr Kosh, was that third party consultation with the Council occurred, and the Council objected to the release of the information. In particular, the Council is said to have advised that Document 11 contains information that is at a preliminary stage, is a draft which is yet to be finalised and that release of the document may undermine the effectiveness and integrity of preliminary suggestions set out in the document.
3. Mr McKibbin gave evidence that he attended a presentation on 29 September 2015 during which the confidentiality of Document 11 was discussed, "in particular, the fact that the report had not been provided to Councillors of Parramatta City Council". Having regard to those matters the First Respondent submitted that the public interest consideration at cl. 1(g) of the Table to s 14 applied. That is, disclosure of Document 11 could reasonably be expected to: "found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence".
4. It was submitted that such consideration should be given considerable weight in circumstances where: 1. the document in issue is a report prepared for the information of a body other than the respondent agency; 2. the Council has objected to the release of the information in issue, and has outlined concerns that suggest that there would be prejudice to its deliberative processes and functions were the report to be released; and 3. where disclosure of such information in these circumstances could serve as a deterrent to agencies providing information to the Respondent in future.
5. The Applicant obtained a redacted version of the report via summons, and submitted that other material it obtained via summons, which it annexed to the affidavit of Ms Parker, demonstrated that Document 11 was not provided to the First Respondent in confidence by the Council. Specifically: 1. In around July 2015, the Council engaged AECOM to prepare a detailed report studying value capture in relation to the 'Stage 1' of the Western Sydney light rail, which was the section from Westmead to Carlingford. The Council wished to use the report to present to the NSW Government, in order to obtain its support for the proposal for value capture and 'stage 1' of the light rail. More specifically to "[d]istribute study and seek support from Treasury, Transport and Planning as well as the Greater Sydney Commission. Initiate program/business case and inform and assist government in the necessary legislative changes." 2. The Council considered having part or all of the AECOM Report prepared in "a more illustrative, graphically enhanced version" for "wider distribution". 3. In or about 29 September 2015, the Council met the then Transport Minister, Andrew Constance and presented to him on the AECOM report. In relation to the AECOM report, Minister Constance communicated to the Council that "he wants this piece of work to be kept confidential". 4. The redacted copy of the AECOM Report obtained by the Applicant from the Council under summons was not marked as 'confidential'. 5. On 30 September 2015, Ms Concato of the Council emailed Matthew McKibbin asking him if it would be 'ok' if she sent the AECOM report to officers at the Department of Planning and Environment. Mr McKibbin replied the same day giving his agreement for the AECOM report to be shared with the Planning Department, and indicating that he planned to circulate the report to a working group of Treasury, Planning and the First Respondent.
6. The Applicant submitted that when the Council provided the AECOM Report to the First Respondent, in around late September 2015, it was not provided on a confidential basis. Minister Constance later requested that the report be kept confidential, and the First Respondent managed and approved its distribution within NSW Government departments. The fact that the Council acquiesced in this approach cannot retrospectively transform information that was originally provided without any restriction into confidential information. Release of document 11 would therefore not found an action for breach of confidence against the First Respondent. I accept that submission.
7. The Applicant submitted that the Tribunal should not accept Mr Kosh's statement that the Council had objected to the release of Document 11 because "the document contains information that is at a preliminary stage, which is yet to be finalised and that release of the document may undermine the effectiveness and integrity of preliminary suggestions set out in the document", for the following reasons: 1. The report was described as a "final report" and was the product of over 230 hours' work by 8 consultants, the revision of 2 or 3 earlier draft reports, and the incorporation of the Council's comments and feedback. 2. The report was finalized by AECOM to the point that the Council was content to present it to the Transport Minister, the First Respondent and provide it to other NSW Government departments. 3. The report was always intended to be a "high level" "estimate" and the commencement of an ongoing process which recommended "next steps". 4. No justification was provided of the manner in which the release of the report could "undermine the effectiveness and integrity" of suggestions in the document. 5. There is no special protection under the GIPA Act preventing the release of documents which are created early in the process of policy development or infrastructure planning. If later changes in policy or infrastructure proposals make earlier reports out-of-date, the relevant department or council should simply explain those changes to the public.
8. I accept the Applicant's submissions, as supported by the evidence it obtained via summons. In contrast, the First Respondent has not provided sufficient evidentiary basis to support its assertions regarding its third party consultations with the Council or their purported confidentiality concerns, nor has it refuted the Applicant's submissions with reference specifically to the redacted material.
9. In the circumstances, I can afford little weight to the First Respondent's assertions regarding the confidentiality of the redacted parts of Document 11. The public interests in favour of disclosure thereby outweigh the public interests against disclosure. The correct and preferable decision is for Document 11 to be released to the Applicant in its entirety.

Documents 24, 30 and 35

1. Document 24 is a report prepared by SGS Economics and Planning entitled "Parramatta Transport Corridor Strategy: Uplift Estimates", dated November 2014. Document 30 is a report prepared by Mecone entitled "Parramatta Light Rail, Land Use Analysis Report", dated April 2016. Document 35 is a presentation entitled "Parramatta Light Rail Land Use Analysis" which presents the outcomes of Document 30.
2. The First Respondent submits that there are a number of public interest considerations against the disclosure of these documents in the Table at s14 of the GIPA Act, if disclosure could reasonably be expected to: 1. "prejudice collective Ministerial responsibility": cl. 1(a) of the Table to s14; 2. "reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency": cl. 1(e) of the Table to s14; 3. "found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to the agency in confidence": Cl. 1(g) to the table to s14 in relation to Documents 30 and 35; 4. "prejudice any person's legitimate business, commercial, professional or financial interests": cl. 4(d) to the Table to s14; 5. "expose any person to an unfair advantage or disadvantage as a result of the premature disclosure of information concerning any proposed action or inaction of the Government or agency": cl. 5(e) of the Table to s14.
3. The public interest consideration at cl. 1(a) of the Table to s 14 can apply where information may not necessarily fall within the terms of the definition of "Cabinet information" in Sch. 1 cl. 2(1), but nevertheless gives rise to the same concerns about undermining the deliberative processes of Cabinet as were reflected in the Tribunal's discussion of Cabinet confidentiality in D'Adam. The First Respondent submitted that its evidence demonstrated that Documents 24, 30 and 35 contain information that was prepared for the purpose of assisting Cabinet in its deliberations, that those deliberations remained on foot, and that premature disclosure would prejudice those deliberations and potentially prejudice future deliberations of Cabinet if the release of information in this case were to inhibit the provision of full and frank advice on matters coming before Cabinet for determination.
4. The First Respondent submitted that Documents 30 and 35 reflected information provided in confidence from a number of stakeholders, including the Department of Planning and Environment, so disclosure would reveal information provided in confidence (Cl. 1(g) of the table to s14).
5. Mr McKibbin and Mr Kosh gave evidence that the disclosure of certain information within Documents 24, 30 and 35 could encourage land speculation based on the scenarios being considered, which could impact land values in the area. The First Respondent submitted that this might compromise the Government's commercial position, in particular with respect to the development of existing public sites, and premature release of this information could allow certain persons to obtain an unfair advantage relative to others in their property dealings (Cl. 4(d) and 5(e) of the Table to s14).
6. The Applicant submitted that the main reason for the decision maker refusing to release Documents 24, 30 and 35, being the potential for land speculation, no longer existed because the NSW Government had decided upon and announced the proposed route for the PLR on 17 February 2017. While the evidence and submissions at hearing supported the proposed route for Stage 1 having been announced, the extent to which the route for Stage 2 had been released was not so clear. However, even if the preferred route had not been announced by the Government, the Applicant submitted that the concern for possible land speculation would not necessitate the withholding of the document under cl 4(d) because that provision could cut both ways. If the documents were not disclosed in a timely fashion, there could also be a danger that the owners of land near the contemplated routes and stops of the PLR may sell their properties for less than the true value of the properties if that information were public.
7. Similarly, the Applicant submitted that the release of documents 30 and 35 'could' prejudice Cabinet's deliberations because they contain alignment and stop location information that is not in the public domain and is the subject of active consideration by Cabinet, but it was equally possible that public disclosure of documents 30 and 35 could enhance Cabinet's deliberations by allowing public discussion and feedback about the advantages and disadvantages of various possible routes and stop locations.
8. On balance, I agree with the First Respondent's submissions. In circumstances where the Second Stage of the route and stops has not yet been announced, I place more weight on: 1. the fact that these documents contain information regarding matters currently being determined by Cabinet, and that premature disclosure could prejudice such deliberations; 2. that there is evidence of the potential damage to the Government's commercial interests occasioned by the premature release of confidential information within these documents; and 3. that there is evidence of the potential for persons to enjoy an unfair advantage relative to others in their property dealings, should this information be released at this time.
9. I therefore find that, at this time, the public interest in favour of disclosure is outweighed by the public interest considerations against disclosure, and that the correct and preferable decision is to refuse access to Documents 24, 30 and 35.

Document 25

1. Document 25 is a draft report prepared for UrbanGrowth by Hill PDA Consulting titled "Parramatta Road Urban Transformation Programme, Value Capture Assessment" dated August 2015.
2. The First Respondents submitted that information in document 25 was subject to the public interest considerations against disclosure at Clauses 1(d), 1(e), 1(f), and 1(g) of the table to section 14 of the GIPA Act, and relied on correspondence from UrbanGrowth to support those claims, with reference to authority in Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5 ("Singh") at [37]-[45] in relation to claims of confidentiality.
3. The Applicant submitted that little weight should be afforded to the correspondence from UrbanGrowth because there was no useful explanation or detail provided as to why Document 25 should be withheld on confidentiality grounds, and no supporting documents provided for their claims. The Applicant drew a distinction with the principles espoused in Singh because UrbanGrowth, as the third party, is a government agency, so disclosure of the information was unlikely to deter them from cooperating or exchanging information with other agencies in the future. .
4. The correspondence from UrbanGrowth contained explanations of how the public interest considerations against disclosure in the Table to s14 at clauses 1(c), 1(d), 1(e), 1(f), 3(a), 3(b), 4(a), 4(c), and 4(d) could apply to Document 25 in a broad manner, but failed to address which specific parts of Document 25 would relate to which specific considerations, why, or what weight should be afforded to those considerations.
5. In the circumstances I accept the Applicant's submission that the correspondence from UrbanGrowth should be afforded little weight. There not being any other evidence submitted in support of the First Respondent's claims with respect to Document 25, I find that the public interest considerations in favour of disclosure outweigh those against its disclosure. The correct and preferable decision therefore is for Document 25 to be released to the Applicant as requested.

Other Issues

1. In cross examination of the First Respondent's witnesses at hearing, it became apparent for the first time that the Applicant wished to raise the issue of the reasonableness or sufficiency of the First Respondent's searches in response to the access application. This issue had not previously been addressed in the case management of the matter, in submissions or otherwise in evidence the proceedings.
2. The Applicant submitted that remittal of the matter to the First Respondent for additional searches and/or to put on evidence of the nature and extent of the searches conducted in response to the access application, prior to the determination of the Tribunal regarding the current 35 documents identified, would create significant prejudice to the Applicant. I agree and have therefore considered those documents which were identified to date as being responsive to the access application. The evidence from the First Respondent's witnesses in cross examination would suggest that further documents relevant to the access application might be located following additional searches, taking into account the material obtained by the Applicant under summons which was produced as evidence in these proceedings.
3. I therefore consider that the correct and preferable decision is to remit the matter in part to the First Respondent, for it to reconsider the reasonableness and sufficiency of the searches conducted and information identified in response to the Applicant's access application.

ORDERS In accordance with these reasons for decision I make the following orders: 1. I affirm the reviewable decision in relation to the classification of each of Documents 1, 3-10, 12-23, 28-29 and 31-34 as Cabinet information; 2. I affirm the reviewable decision in relation to the classification of Documents 26 and 27 as subject to parliamentary privilege and a conclusive presumption that there is an overriding public interest against disclosure, and refuse access to those documents; 3. I set aside the First Respondent's reviewable decision in relation to Documents 11, 24, 25, 30 and 35, and substitute my decision in relation to those documents, granting access to Documents 11 and 25, and refusing access to Documents 24, 30 and 35 at this time; 4. I set aside the balance of the reviewable decision and remit the matter back to the First Respondent in accordance with s63(3)(d) of the ADR Act in accordance with the following directions: 1. First Respondent to reconsider its reviewable decision with specific reference to the requirements of s53 of the GIPA Act, conducting additional searches and identifying the nature and extent of the searches it has conducted in response to the Applicant's access application, by 31 July 2017. 2. Matter is listed for directions Tuesday 15 August 2017 at 9:30am.

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 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. Decision last updated: 30 June 2017