Miskelly v Roads and Maritime Services

The Evidence

1. The respondent filed and served the following material: 1. a redacted copy of an affidavit of Peter Cuk, affirmed on 5 December 2018. Peter Cuk is the RMS Program Director for Southern Motorways by Roads and Maritime Services; 2. an affidavit of Sarah Johnson, affirmed on 30 November 2018. Sarah Johnson is the Director, Legal Branch of the Department of Premier and Cabinet (DPC).
2. The respondent also provided the Tribunal, in confidence, pursuant to s 107 of the GIPA Act, with: 1. an un-redacted copy of Peter Cuk's affidavit; 2. an affidavit, sworn on 6 December 2018, of an Associate Director of the Commercial Branch of DPC [CONFIDENTIAL - NOT FOR PUBLICATION]; and 3. a copy of documents S2 and S4 to S21.
3. Peter Cuk and Sarah Johnson gave oral evidence at the hearing and were cross-examined by the applicant. Peter Cuk also gave oral evidence, in confidence, in the absence of the applicant and the public pursuant to s 107 of the GIPA Act.
4. The respondent and the applicant also provided written submissions. I have dealt with these below in so far as they are relevant to the matters in issue.

The Sydney Gateway project

1. In his affidavit, Peter Cuk explained that, since May 2017, he has been responsible for the successful development of the Sydney Gateway and the F6 Extension projects. He said: 8. … [The] Sydney Gateway project will provide a new motorway route to the domestic and international airport terminals of Kingsford Smith Airport from the future WestConnex motorway network at the St Peters Interchange. It will also duplicate a section of the Port Botany freight rail line to increase capacity and improve service reliability of the existing freight line. The road component will be delivered by RMS and the rail component will be delivered by the Australian Rail Track Corporation (ARTC). The project is intended to enhance connections and reduce travel times to Sydney's port, providing improved access to all airport terminals and to cater for increased rail freight. 9. As part of the development of a motorway project certain milestones require the approval of the CIC or ERC. These milestones include the strategic business case and the final business case for the project. …
2. Earlier in his affidavit, Peter Cuk explained that the CIC was a reference to the Cabinet Infrastructure Committee and the ERC was a reference to the Expenditure Review Committee.
3. In his open evidence, in response to questions asked of him by the applicant, Peter Cuk said that access to submissions to Cabinet, committees of Cabinet and decisions of Cabinet and committees of Cabinet were limited. He explained that each copy of such documents were numbered and a register was kept as to who had access to these. In regard to the Risk Registers and Changed Management Plans, the circulation of these were also limited and to his knowledge there had been no public disclosure of any of the documents, or the information contained within them, that are the subject of this application.
4. As noted by the applicant, on 12 September 2018, the Premier, Gladys Berejiklian, and the Minister for Roads, Maritime and Freight, Melinda Pavey issued a joint Media Release, on the Sydney Gateway project in which they announced the following: TOLL FREE GATEWAY LINKING SYDNEY A vital piece of the Sydney motorway network is a step closer with the NSW Government reaching an agreement with the Sydney Airport Corporation, paving the way for the delivery of the Sydney Gateway. … The NSW Government will work closely with Sydney Airport Corporation, the Australian Rail Track Corporation and other key stakeholders to progress Sydney Gateway and minimise impacts on the community during delivery. Sydney Gateway will be subject to comprehensive environmental assessment to secure planning approvals, with the community invited to provide feedback at key stages. Subject to planning approvals the Road components of Sydney Gateway are targeted to be completed in 2023, with an estimated cost between $2.2-$2.6 billion. The investment in Sydney Gateway comes on top of the Government's previous announcements, which confirmed upgrades to the T8 passenger rail line serving Sydney Airport; and the commitment with the Australian Government to deliver the first stage of the North-South rail line linking to Western Sydney Airport.
5. In his oral evidence Peter Cuk said he was unaware of this Media Release. He also said it did not alter his evidence as set out in his affidavit. I have dealt with Peter Cuks open evidence below in so far as it relates to the matters in issue.
6. [CONFIDENTIAL - NOT FOR PUBLICATION].
7. [CONFIDENTIAL - NOT FOR PUBLICATION].

Document 1, 2, 3, S1 and S3 - Cabinet information

1. In support of RMS's claim, RMS and the Premier rely on the material that is before the Tribunal, including that which has been provided in confidence which did not include a copy of Documents 1, 2 3, S1 and S3.

What is Cabinet?

1. As noted above, 'Cabinet' includes a committee of Cabinet and a subcommittee of a committee of Cabinet.
2. In her affidavit, Sarah Johnson explained what constitutes the Cabinet and the Cabinet processes. In this regard she said: 4. The Cabinet is constituted by the Ministers of the State of New South Wales. It is the principal policy-making and administrative institution of the Executive Government of New South Wales. 5. Cabinet involves a pattern of deliberations which forms the process by which the Government makes decisions on major policy issues. The NSW Cabinet Practice Manual describes the processes for the preparation of proposals to Cabinet including 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 Cabinet and the circulation of the Submission to Ministers for consideration and advice. Consultation with relevant agencies on Submissions is conducted in accordance with the NSW Cabinet Practice Manual, whereby agencies provide comments on the adequacy, feasibility and quality of the proposals contained in a Cabinet Submission. 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. … 6. Cabinet conducts proceedings through Cabinet Committees, such as the Cabinet Expenditure Review Committee (ERC) and the Cabinet Infrastructure Committee (CIC). Decisions of Cabinet Committees have the same status as decisions of the full Cabinet, and the same conventions and procedures generally apply to the conduct of Cabinet Committees proceedings. … 7. The ERC, which is chaired by the Treasurer, is the only committee of Cabinet that can recommend any new spending or revenue proposal to Cabinet. The role of ERC is to assist Cabinet and the Treasurer in framing the fiscal strategy and the Budget for Cabinet's consideration, driving expenditure controls and monitoring financial performance … 8. The CIC, which is chaired by the Minister for Transport and Infrastructure, considers matters in relation to major infrastructure projects, and reviews and monitors the implementation of such projects to receive early warning of any emerging issues, and to add act ahead of time to prevent projects failing. 9. Cabinet processes, including Cabinet meetings, constitute a forum for rank and un inhibited discussion, consideration and formulation of significant and sensitive issues of public policy and administration.
3. Sarah Johnson went on to describe the essence of the long established convention of Cabinet confidentiality, namely: 1. the operations of Cabinet are governed by the principle of collective responsibility, in that Ministers are expected to accept and express support for all decisions made by Cabinet; and 2. proceedings of Cabinet are conducted in secret with strict procedures being applied to the handling of Cabinet documents so that confidentiality is maintained.
4. In Ku-ring-gai Council v NSW Department of Premier and Cabinet [2016] NSWCATAD 181, at [7], the Tribunal noted that cabinet has been described as the 'cornerstone of the system of government in NSW': see also D'Adam v New South Wales Treasury [2014] NSWCATAD 68, at [43] and Fisse v Secretary, Department of the Treasury [2008] FCAFC 188, per Flick, at [97].
5. In Ku-ring-gai (supra), at [8], the Tribunal noted that, given the general view that 'collective responsibility could not survive in practical terms if Cabinet deliberations were not kept confidential', it was well understood, in the context of public interest immunity, legal protection must be given to Cabinet decisions and confidential discussions. It has also been accepted that in the context of access to government information, provisions such as cl 12 of Sch 1 of the GIPA Act, provide a similar protection to such decisions and confidential discussions: see D'Adam (supra), at [45] and Fisse (supra), per Flick, at [99].
6. However, in the context of an access request under the GIPA Act, it will always be a question of fact as to whether the information in issue is 'Cabinet information'.

Role of the Tribunal

1. In D'Adam (supra), at [45] and [46], the Tribunal described the Tribunal's role under s 106 as follows: 45 … [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) 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".
2. The onus of establishing that there are reasonable grounds for the 'Cabinet information' claim rests on RMS: see GIPA Act, s 105(1).

Document 1 - draft Cabinet Submission

1. RMS contends that the information in Document 1 falls within cl 2(1)(b), (e) and (f) of Sch 1 of the GIPA Act. In my view, it is only necessary to deal with cl 2(1)(b) and (f).
2. In his evidence, Peter Cuk acknowledged that Document 1 had been prepared before his engagement with RMS in May 2017. However, through his involvement in the preparation of other Cabinet submissions in his current role and having reviewed a Cabinet decision dated [CONFIDENTIAL - NOT FOR PUBLICATION], he considered that Document 1 would have been prepared for the dominant purpose of being submitted to Cabinet for Cabinet's consideration. He said [CONFIDENTIAL - NOT FOR PUBLICATION].
3. [CONFIDENTIAL - NOT FOR PUBLICATION].
4. Based on the evidence of Mr Cuk, I am satisfied that there are reasonable grounds to find that Document 1 is a preliminary draft of a document prepared for 'the dominant purpose' of it being submitted to Cabinet for Cabinet's consideration. The Information Commissioner came to the same conclusion after she had inspected the Document.
5. Hence, I am satisfied that that there are reasonable grounds for the claim of RMS and the Premier that it is to be conclusively presumed that there is an overriding public interest against disclosure of the information in Document 1 on the grounds set out in s 14(1) and cl 2(1)(b) and (f) of Sch 1 of the GIPA Act.

Document 2 - briefing for the RMS Chief Executive

1. RMS contends that the information in Document 2 falls within cl 2(1)(d) of Sch 1 of the GIPA Act in that it is information contained in a document 'prepared after Cabinet's deliberations or decision on a matter that would reveal or tend to reveal information concerning any of those deliberations'.
2. The word 'reveal information' is defined in cl 1 of Sch 4 of the GIPA Act to mean: reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).
3. Peter Cuk was not involved in the preparation of this document. He said he had not seen the document prior to preparing his affidavit. He noted that the document was signed off by the RMS Chief Executive. [CONFIDENTIAL- NOT FOR PUBLICATION].
4. On the basis of the confidential evidence of Peter Cuk, I am satisfied that there are reasonable grounds to find that Document 2 contains information prepared after deliberations and decision of Cabinet 'on a matter that would reveal or tend to reveal information' concerning any of those deliberations and decisions. The Information Commissioner also came to the same conclusion after she had inspected the Document.
5. Hence, I am satisfied that that there are reasonable grounds for the claim of RMS and the Premier that it is to be conclusively presumed that there is an overriding public interest against disclosure of the information in Document 2 on the grounds set out in s 14(1) and cl 2(1)(d) and (f) of Sch 1 of the GIPA Act.

Document 3 - Briefing for Minister for Roads, Maritime and Freight

1. RMS contends that the information in Document 2 falls within cl 2(1)(e) of Sch 1 of the GIPA Act in that it is information contained in a document: 1. prepared before or after Cabinet's deliberation or decision on a matter; 2. that reveals or tends to reveal the position the Minister for Roads Maritime and Freight has taken, is taking, will take, is considering taking, or has been recommended to take; 3. on a matter in Cabinet.
2. Peter Cuk explained that Document 3 was signed by the then RMS Chief Executive on 8 June 2016 and that the document was titled: 'Sydney Gateway - key property issues'. He said he was not involved in the preparation of the document, but has been involved in the preparation of other briefings of this kind in his current role.
3. He said he was of the view that Document 3 was prepared to update the Minister on property issues concerning the Sydney Gateway project and that a disclosure of the information in that document would 'tend to reveal the position that the Minister took, or was recommended to take, on those issues in Cabinet'. It is evident from the 12 September 2018 Media Release of the Premier that an infrastructure project such as the Sydney Gateway is likely to involve property issues.
4. Peter Cuk also said that, in his view, a disclosure of Document 3 would prejudice RMS's financial interests. For the reasons that follow, in my view, other than to note that the information in Document 3 has not been publicly disclosed, this is not a relevant consideration in determining whether the information in the Document falls within cl 2(1)(e) of Sch 1 of the GIPA Act. It is, however, relevant to the respondent's alternative claim which is unnecessary to decided given my findings in regard the 'Cabinet information' claim.
5. [CONFIDENTIAL - NOT FOR PUBLICATION].
6. [CONFIDENTIAL - NOT FOR PUBLICATION].
7. [CONFIDENTIAL - NOT FOR PUBLICATION].
8. I have no reason to doubt the evidence of Peter Cuk (given in confidence and otherwise) and on that basis, for the reasons set out above, I am satisfied that that there are reasonable grounds to find that Document 3 contains information prepared before or after deliberations and decision of Cabinet 'on a matter that would reveal or tend to reveal information' the position the Minister for Roads and Maritime and Freight has taken, is taking, will take, is considering taking, or has been recommended to take, on a matter in Cabinet.
9. Hence, I am satisfied that that there are reasonable grounds for the claim of RMS and the Premier that it is to be conclusively presumed that there is an overriding public interest against disclosure of the information in Document 3 on the grounds set out in s 14(1) and cl 2(1)(e) of Sch 1 of the GIPA Act.

Document S1 - Risk Register

1. RMS contends that the information in Document S1 falls within cl 2(1)(b), (d), (e) and (f) of Sch 1 of the GIPA Act.
2. Peter Cuk explained that Document S1 is a document that records a number of qualitative risks, which based on his experience, are used to prepare a contingent risk budget allowance when preparing a Cabinet submission. He said that in this case, he was of the view that disclosing the information in Document S1 would reveal information concerning deliberations or decisions of Cabinet.
3. Peter Cuk went on to say that a number of the risks identified in the document were still current risks for the Sydney Gateway project and were being managed by RMS, including through negotiations with various stakeholders. He said a disclosure of the information would reveal sensitive information which could prejudice RMS's position in those negotiations and ultimately impact the scope and budget of the Sydney Gateway project and potentially affect RMS's ability to obtain planning approvals on favourable terms. For the reasons set out above, in my view, other than to note that the information in this Document has not been publicly disclosed, this is not a matter relevant to the consideration as to whether the information is 'Cabinet information'.
4. [CONFIDENTIAL - NOT FOR PUBLICATION].
5. On the basis of the evidence of Peter Cuk and for the reasons set out above, I am satisfied that that there are reasonable grounds to find that Document S1 contains information prepared after the deliberations and decision of Cabinet 'on a matter that would reveal or tend to reveal information concerning those deliberations or decisions'.
6. Hence, I am satisfied that that there are reasonable grounds for the claim of RMS and the Premier that it is to be conclusively presumed that there is an overriding public interest against disclosure of the information in Document 1 on the grounds set out in s 14(1) and cl 2(1)(d) of Sch 1 of the GIPA Act. On this basis it is unnecessary for me to consider any other grounds.

Document S3 - Risk Register (2)

1. RMS contends that the information in Document S3 falls within cl 2(1)(b), (d), (e) and (f) of Sch 1 of the GIPA Act.
2. Peter Cuk, explained that the information in this document was similar to that contained in Document S1 in that it records a number of qualitative risks, which based on his experience, are used to prepare a contingent risk budget allowance when preparing Cabinet submissions like Document 1. He said in his opinion the document was 'an early draft' of the more extensive risk register which was attached to the final business case for the Sydney Gateway project. He said that there were aspects of row 1 and 2 of Document S3, if disclosed would reveal the position that the Minister took on the matters in Cabinet. He said that given the document was dated 24 April 2017, it appeared to have been prepared after the Cabinet meeting and disclosing it would reveal information concerning Cabinet's deliberation or decision of that meeting. In addition he said disclosing the information in Document S3 would prejudice future negotiations of RMS with tenderers for Sydney Gateway project.
3. Again, I accept, on the evidence of Peter Cuk, that there has been no public disclosure of the information in this document.
4. [CONFIDENTIAL - NOT FOR PUBLICATION].
5. [CONFIDENTIAL - NOT FOR PUBLICATION].
6. On the basis of the evidence of Peter Cuk and for the reasons set out above, I am satisfied that that there are reasonable grounds to find that Document S3 contains information prepared after the deliberations and decision of Cabinet 'on a matter that would reveal or tend to reveal information concerning those deliberation or decisions'.
7. Hence, I am satisfied that that there are reasonable grounds for the claim of RMS and the Premier that it is to be conclusively presumed that there is an overriding public interest against disclosure of the information in Document 1 on the grounds set out in s 14(1) and cl 2(1)(d) of Sch 1 of the GIPA Act. On this basis it is also unnecessary for me to consider any other grounds.

Document S2 and S4 to S21 - Out of scope

1. Every Government agency today has some form of a computerised Records Management System (e.g. TRIM) that captures and manages all paper documents and electronic documents held by the agency. Section 53(2) of the GIPA Act recognises this by requiring an agency to undertake reasonable searches 'as may be necessary to find any of the government information applied for that was held by the agency when the application was received'. Section 53(3) provides that this obligation 'extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically'.
2. Hence, it is not unusual that when conducting an initial search using these computerised systems to locate information held by the agency relevant to a specific access request, that the search will locate documents which, on inspection, are found do not contain any information relevant to the access request. Such documents are commonly identified as containing 'out of scope' information.
3. In this case, I note that RMS, in its original decision, said searches for the information sought by the applicant had been conducted in its Motorways Division and Stakeholder and Community Engagement - Briefings. In its subsequent decision of 15 March 2018, RMS noted that there had been 'protracted negotiations' with the applicant about the wording of the new search terms. These were identified as: 1. Program Controls Manager, Southern Motorways; and 2. Senior Project Officer, Motorway.
4. It was during this subsequent search that documents S1 to S21 were located. As I have noted above, the applicant had specifically limited his revised scope to electronic records only.
5. In regard to these documents, RMS determined, on reconsideration, following the recommendations of the Information Commissioner, that only S1 and S3 contained information falling within the scope of the applicant's access request. The remainder was found to be 'out of scope'.
6. For the reasons that follow, I agree with the contention of RMS that the Tribunal has no jurisdiction to review the 'out of scope' decision.
7. Section 9 of the Administrative Decision Review Act 1997 (NSW) (ADR Act) prescribes the circumstances in which the Tribunal is conferred with administrative review jurisdiction. That section relevantly provides as follows: 9 When administrative review jurisdiction is conferred (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation.
8. That is, a decision of an administrator is reviewable by the Tribunal where the 'enabling legislation' (i.e. legislation other than the ADR Act) provides for applications to be made to the Tribunal in respect of that decision (see s 4(1) of the GIPA Act).
9. As I have noted above, s 100 of the GIPA Act provides that a 'reviewable decision' of an agency under the GIPA Act are reviewable by the Tribunal. What amounts to a 'reviewable decision' is prescribed in s 80 of the GIPA Act as follows: 80 Which decisions are reviewable decisions The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part: (a) a decision that an application is not a valid access application, (b) a decision to transfer an access application to another agency, as an agency-initiated transfer, (c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made), (d) a decision to provide access or to refuse to provide access to information in response to an access application, (e) a decision that government information is not held by the agency, (f) a decision that information applied for is already available to the applicant, (g) a decision to refuse to confirm or deny that information is held by the agency, (h) a decision to defer the provision of access to information in response to an access application, (i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant), (j) a decision to impose a processing charge or to require an advance deposit, (k) a decision to refuse a reduction in a processing charge, (l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment, (m) a decision to include information in a disclosure log despite an objection by an authorised objector (or a decision that an authorised objector was not entitled to object).
10. As can be seen, this does not include a decision of an agency that the information is 'out of scope'. Hence, the Tribunal has no jurisdiction to review such decisions.
11. While the Tribunal does not have jurisdiction to review RMS's 'out of scope' decision, I note that there are only five documents which fall within the time frame of the applicant's initial access request (i.e. 13 November 2016 and 13 June 2017). The remainder fall outside that time frame and are therefore 'out of scope' in that they are documents that do not fall within his access request.
12. The documents that do fall within the time frame of the applicant's access request are Document S2, S4, S5, S19 and S20. For completeness, I have examined these and I am satisfied that, as explained by Peter Cuk, the information in these documents is technical in nature and do not fall within the description of the kind of information the applicant was seeking access to. That is, they are not a report and/or analysis and/or advice, pertaining to the actual and/or possible and/or future costs and budget estimates on the Sydney Gateway project.

Conclusion

1. For the reasons set out above I am satisfied that that there are reasonable grounds for the claim of RMS and the Premier that it is to be conclusively presumed that there is an overriding public interest against disclosure of the information in Document, 2, 3, S1 and S3 on the grounds set out in s 14(1) and cl 2(1) of Sch 1 of the GIPA Act. Hence, it is appropriate to make an order affirming that decision.
2. I have also found that the Tribunal has no jurisdiction to review the decision of RMS that the remainder of the Documents are 'out of scope'. Hence, it is appropriate to dismiss that aspect of the applicant's application.
3. Orders 1. The decision of the respondent in regard to Documents 1, 2, 3, S1 and S3 is affirmed. 2. The applicant's application is otherwise dismissed.

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: 10 July 2019