Mookhey v Infrastructure NSW

JURISDICTION

1. The Tribunal has jurisdiction to review the decision of Infrastructure NSW to refuse access to the information in the documents: GIPA Act, ss 80(d), 100; Administrative Decisions Review Act 1997 (NSW), s 9; Civil and Administrative Tribunal Act, ss 28, 30.
2. An order was made by the Tribunal on 17 January 2017, by consent, extending time for the making of the application, to the extent necessary, pursuant to s 101(4) of the GIPA Act.

RELEVANT LEGISLATIVE PROVISIONS

1. Subsection 14(1) of the GIPA Act provides: "14 Public interest considerations against disclosure (1) 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."
2. Clause 2 of Sch 1 to the GIPA Act relevantly 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: … (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), … (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). … (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."
3. Section 106 of the GIPA Act provides: "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."
4. The burden of establishing that the decision to refuse access to information is justified lies on the agency: GIPA Act, s 105(1).

DETERMINATION OF MATTER ON THE PAPERS

1. The Tribunal formed a preliminary view at a case conference that the matter was suitable for determination on the papers (that is, without a hearing). The parties indicated that they were in general agreement but wanted an opportunity to apply for a hearing, should they decide this was necessary after the parties' evidence was filed. Orders were made that the parties make any application for the matter to be heard orally by a date after the filing of evidence. Neither party made such an application.
2. I am satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions and other documents and material lodged with or provided to the Tribunal (NCAT Act, s 50(2)). Accordingly, I make an order dispensing with a hearing.

Were there reasonable grounds for the claim of Transport for NSW that the information is Cabinet information?

1. The first matter the Tribunal needs to determine is whether there are reasonable grounds for the respondents' claim that the information sought is Cabinet information (GIPA Act, s 106(1)). This is to be determined as at the time of the GIPA determination (Searle v Transport for NSW [2017] NSWCATAD 256 at [24]).
2. The Premier was represented in the proceedings, as is the Premier's right as a statutory party under s 106(5) of the GIPA Act. The Premier had the same legal representation as Infrastructure NSW. A reference to "the respondents" in this decision is a reference to Infrastructure NSW and the Premier.
3. The words "reasonable grounds" are to be given their ordinary meaning and paraphrases and adaptations of the phrase (such as "not irrational, absurd or ridiculous") should be avoided (McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 ("McKinnon"), Hayne J at 445 [60], Callinan and Heydon JJ at 468 [131]). As Gleeson CJ and Kirby J observed in McKinnon, a determination of whether there were reasonable grounds for a claim "involves an evaluation of the known facts, circumstances and considerations which may bear rationally upon the issue" (McKinnon, at 430 [11]). Their Honours held (at 431 [13]) that, the reference in the provision in the Freedom of Information Act 1982 (Cth) to "reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest": "raises the question whether, having regard to all the relevant considerations available to the [Administrative Appeals] Tribunal, there are matters that are sufficient to induce in a reasonable person a state of satisfaction that disclosure of a document would be contrary to the public interest. The expression 'reasonable grounds for the claim' means reasonable grounds for contending that the Minister should be so satisfied. That is the nature of the claim."
4. I have thus considered whether, having regard to all the relevant material available to me, there are reasonable grounds for contending that there are matters which are sufficient to induce in a reasonable person a state of satisfaction that the Cabinet information claim, as advanced under cl 2(1)(b), (d) or (f), is well-founded.

Dominant purpose of submission to Cabinet: cl 2(1)(b)

1. Infrastructure NSW and the Premier submitted that Documents 1, 5 and 11 were prepared for the dominant purpose of being submitted to Cabinet, within cl 2(1)(b) of Sch 1 to the GIPA Act. I will use the term "Cabinet" in these reasons in accordance with its definition in cl 2(5) of Sch 1 to the GIPA Act, to include "a committee of Cabinet and a subcommittee of a committee of Cabinet." The words "dominant purpose" in cl 2(1)(b) have the same meaning as in ss 118 and 119 of the Evidence Act 1995 (NSW): D'Adam v New South Wales Treasury [2014] NSWCATAD 68 at [51].
2. Documents 1, 5 and 11 are business cases prepared by Roads and Maritime Services and Transport for NSW for three separate infrastructure projects which were proposed to be funded as part of the Housing Acceleration Fund, using Restart NSW funds. The business cases were submitted to Infrastructure NSW as part of the process of securing approval by Cabinet for funding under Restart NSW. Infrastructure NSW reviews business cases in order to make a recommendation to the Treasurer to seek funding from Cabinet.
3. Amanda Jones, the Chief Operating Officer and Deputy Chief Executive Officer of Infrastructure NSW was the decision-maker in respect of the applicant's application. Ms Jones's evidence is that a project cannot be recommended by Infrastructure NSW for funding unless it is supported by a business case and goes through an assurance check. I accept that, as a matter of practice, Infrastructure NSW does not recommend a project unless it is supported by a business case and has undergone an assurance check.
4. Once Infrastructure NSW has reviewed a business case, it prepares and submits a written recommendation to the Treasurer for submission to Cabinet based on the content contained in the business case. The submission will typically contain extracts from the business case and, on occasion, the entire business case will be submitted to Cabinet.
5. Ms Jones's evidence, which I accept, is that extracts of each of Documents 1, 5 and 11 were contained in Cabinet submissions. Ms Jones also gave the following evidence: "Having regard to the integral role of business cases in the process of securing approval for funding by Cabinet, and the practice of submitting either part of all of business cases to Cabinet, I determined that each of Documents 1, 5 and 11 was prepared for the dominant purpose of submission to Cabinet for Cabinet's consideration, and that the Cabinet Information Presumption applied having regard to Sch 1 cl 2(1)(b) of the GIPA Act."
6. The applicant submits that Ms Jones's evidence establishes that there are two separate and distinct processes: first, the preparation of business cases by Roads and Maritime Services and Transport for NSW for three separate infrastructure projects and, secondly, the proposal to fund the projects as part of the Housing Acceleration Fund using Restart NSW Funds. The applicant submits that the dominant purpose of preparing the documents is referable to the first of these processes, not to the second.
7. The applicant relies upon the NSW Treasury "Guidelines for Capital Business Cases: Policy and Guidelines Paper," December 2008 ("Guidelines"), which, he says, set out the primary purpose of the Business Cases. The Guidelines provide that public sector agencies "must prepare business cases to support the mandatory requirements for capital related resource allocation decisions of Government (identified in table 1)" (p 5). Table 1 identifies construction projects and property and accommodation projects (among others). Appendix 2 of the Guidelines provides for matters to be included in a business case. It states (at p 32):

• "The final business case is used to document a defined project. This includes an updated justification of the service rationale, and demonstration of value for money and the agency's capability to implement the service.
• Final business case template and the Business Case Gateway review report must be prepared for proposals submitted to Government for funding approval."

1. The applicant submits that, because Roads and Maritime Services and Transport for NSW were required to prepare the business cases, and would have prepared them for a purpose separate to the Housing Acceleration Fund or any other Cabinet process: 1. there were no reasonable grounds for Infrastructure NSW to say that the business cases fell within the scope of Sch 1, cl 2(1)(b) of the GIPA Act; and 2. the business cases do not fall within the scope of Sch 1, cl 2(1)(b) of the GIPA Act.
2. The applicant submits that, while Infrastructure NSW was required to consider the business cases when making its recommendation to Cabinet for funding, the business cases were created for the separate and primary purpose set out in the Guidelines. The applicant also submits that the practice of submitting part or all of a document to Cabinet does not form a reasonable basis for the claim that the document was prepared for the dominant purpose of submission to Cabinet.
3. Ms Jones made a further affidavit, responding to the applicant's submissions set out above. In that affidavit, she stated that, where the Guidelines required agencies to prepare business cases to support mandatory requirements for capital related "resource allocation decisions of Government," this referred to decisions made by Cabinet as to whether or not to fund a project or program. She also explained that the requirement to prepare a final business case template "for proposals submitted to Government for funding approval" referred to proposals submitted to Cabinet for its consideration as to whether a proposal should be funded.
4. Ms Jones attests to having knowledge as to the circumstances in which business cases are prepared and the manner in which they inform decision-making by the NSW Government more generally, as a result of her role in Infrastructure NSW and due to her previous experience in executive management roles in NSW government businesses and State Owned Corporations.
5. Ms Jones expresses the view in her further affidavit that business cases are prepared for the dominant purpose of being considered by Cabinet because, were it not for the requirement to seek funding by Cabinet, they would not be prepared. Any other purpose served by the business case is, in Ms Jones's opinion, secondary to the purpose of securing an allocation of funds. Ms Jones was of the view that, when an agency was preparing a business case for a project, it would be understood that the purpose of the business case was to support the request for funding for the project. It would also be understood, in Ms Jones's view, that, at the very least, extracts from the business case would be submitted for its consideration and that the entire business case may be submitted.
6. I accept the applicant's submission that the Guidelines required the business cases to be prepared. This is not in dispute.
7. There is no evidence from the agencies which prepared those documents as to the purpose for which they were prepared. Ms Jones's evidence that they were prepared for the dominant purpose of submission to Cabinet is, to some extent, speculative. It is opinion evidence, based upon her experience working in NSW Government. She does not claim to have worked within Roads and Maritime Services or Transport for NSW. Her evidence is an opinion as to the likely understanding of persons within two government agencies in which she has not worked. The understanding she imputes to the officers who prepared the business cases is that the references in the Guidelines to "resource allocation decisions" refers to decisions made by Cabinet. There is no direct evidence that the officers concerned had that understanding. Ms Jones also imputes to them a dominant purpose of preparing the documents for Cabinet submission for funding approval, when it is equally open, on a reading of the Guidelines, to conclude that they were prepared to comply with Government requirements and because, if they were not prepared, the projects could not proceed.

Documents tending to reveal Cabinet decisions or deliberations (cl 2(1)(d))

1. The respondents also submitted that Documents 1 and 11 contain information that reveals, or tends to reveal, earlier decisions or deliberations about other infrastructure projects, and that cl 2(1)(d) of Sch 1 to the GIPA Act applies to the information in those documents. I accept the respondents' submission that a broad construction should be given to the terms "decisions" and "deliberations": Re Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301; 78 ALD 645.
2. Ms Jones gave evidence that Documents 1 and 11 reveal decisions made by Cabinet regarding the allocation and distribution of funds from the Housing Acceleration Fund. To "reveal information" is "to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)" (GIPA Act, Sch 4, cl 1).
3. I am not satisfied that Infrastructure NSW has reasonable grounds for its claim under cl 2(1)(d) on the basis of Ms Jones's opinion alone. In McKinnon, as indicated above, Gleeson CJ and Kirby J were of the view that it was necessary to undertake "an evaluation of the known facts, circumstances and considerations which may bear rationally upon the issue" in order to determine whether there were reasonable grounds. Section 106(2) contemplates that the Tribunal may be satisfied that an agency has reasonable grounds for its claim by affidavit evidence, without examining the documents themselves. The Tribunal is likely to be able to be so satisfied if, for example, a claim under cl 2(1)(a) or (b) is made. Where the claim is about the contents of a document (as is this claim under cl 2(1)(d)), it is more likely that the Tribunal will need to look at the documents, as contemplated by s 106(3). This may be necessary to be satisfied that there are reasonable grounds for contending that there are matters sufficient to induce in a reasonable person a state of satisfaction that the claim is well-founded.
4. The respondents have not pointed to the parts of Documents 1 and 11 which are said to reveal the Cabinet decisions referred to above. Document 1 is a document of 58 pages and Document 11 is a document of 57 pages. It would have been of assistance for Infrastructure NSW to clearly identify the pages in those documents on which the information it relies upon is located. If necessary, it could have provided confidential evidence explaining what part of the document reveals or tends to reveal Cabinet decisions or deliberations about other infrastructure projects and why this is so. Without the provision of such assistance, it is more difficult for Infrastructure NSW to discharge its onus.
5. The Tribunal has identified some material in each document under the heading "Housing Acceleration Fund (HAF)" which may be the material relied upon by the respondents (Document 1, p 13; Document 11, p 13). There is one sentence (the same in each document) which refers to an amount of funding which was "recently approved". There is no reference to a Cabinet decision or deliberation.
6. On balance, I do not consider that the respondents have established reasonable grounds for the claim that cl 2(1)(d) applies to Documents 1 and 11. Whilst it may be that the sentence I have identified above reveals a Cabinet decision, Infrastructure NSW has not discharged the burden of establishing that this is the case. The sentence does not clearly indicate that it was Cabinet (or a Cabinet committee) which approved the stated amount, and it is not clear whether Ms Jones's evidence that "this information is not, as far as I am aware, in the public domain" refers to the information about an amount of funding which was recently approved. I am not even sure if the sentence I have identified is the sentence on which Infrastructure NSW relies for the claim under cl 2(1)(d).
7. For these reasons, the claim under cl 2(1)(d) is not substantiated.

Documents revealing the position of a Minister in Cabinet (cl 2(1)(e))

1. The respondents submitted that Documents 1, 5 and 11 reveal the position that the Minister for Planning was considering taking, or had been recommended to take, on a matter in Cabinet, such that cl 2(1)(e) of Sch 1 to the GIPA Act applies to the information.
2. Ms Jones's evidence is that Documents 1, 5 and 11 reveal the position that the Minister for Planning was considering taking, or had been recommended to take, on a matter in Cabinet. Ms Jones stated that, as the Minister responsible for the Housing Acceleration Fund, the Minister for Planning takes a position in Cabinet as to how the Fund's resources should be allocated, and which projects should be progressed and funded. I accept this evidence. Further, Ms Jones gave evidence that each of the documents request allocations from the Housing Acceleration Fund for particular projects and, in doing so, make recommendations as to which projects should be funded, and in what amount. Ms Jones says that these are matters that are ultimately taken by the Minister to Cabinet for its deliberation and determination.
3. I do not consider that Ms Jones's evidence alone provides reasonable grounds for the claim that cl 2(1)(e) applies to the information in Documents 1, 5 and 11. It is necessary to examine the documents themselves. Again, the respondents have not provided any guidance as to what parts of the documents are said to contain the relevant recommendations.
4. The applicant submits that business cases must be prepared by all NSW Government agencies for significant capital projects, irrespective of funding source. He says that, as a result, the existence of a business case does not reveal that a matter was submitted for consideration by Cabinet. The only clear inference which can be drawn from the business case is that the agency preparing it has prepared an appraisal of taking a certain course of action set out in the business case and the results of that appraisal. Accordingly, the applicant says that the decision maker could not have been of a reasonable belief that Documents 1, 5 and 11 reveal the position that the Minister for Planning was considering taking, or had been recommended to take, on a matter in Cabinet.
5. The question for the Tribunal is not the decision-maker's reasonable belief at the time of making the decision. It is rather whether there were reasonable grounds for the claim at the time. Thus, a decision-maker may decide an access application on a basis which is misguided, but still have reasonable grounds for a Cabinet information claim (see Searle v Transport for NSW [2017] NSWCATAD 256 at [32]).
6. I accept, however, the applicant's submission that the respondents have not established reasonable grounds for the claim that Documents 1, 5 and 11 tend to reveal the position that the Minister for Planning was considering taking, or had been recommended to take, on a matter in Cabinet. The business case was prepared for submission to Infrastructure NSW. Ms Jones's evidence, which I accept, is that Infrastructure NSW reviews business cases for Housing Acceleration Fund proposals and makes decisions with respect to which projects it will recommend to Cabinet should be funded by the Restart NSW Fund. Infrastructure NSW also makes recommendations to the Treasurer for funding under the Restart NSW Fund Act. Ms Jones states that those recommendations "are then formally made to the Expenditure Review Committee (ERC) of Cabinet". Presumably, the Treasurer may decide not to make those recommendations to the ERC, but this is not clear from the evidence.
7. In the process described above, it is Infrastructure NSW which makes a recommendation to the Treasurer for funding. It further appears from the evidence that Infrastructure NSW may determine not to recommend a proposal for funding. It is unclear from the evidence at what point the Minister for Planning has an opportunity to participate in a Cabinet decision about the proposal. However, the evidence does not establish that there are reasonable grounds for the claim that the business cases reveal the position that the Minister for Planning was considering taking, or had been recommended to take, on a matter in Cabinet. The evidence indicates that a business case may not be submitted to Cabinet, should Infrastructure NSW so decide. The evidence also indicates that it is Infrastructure NSW which makes recommendations, in its submission, as to whether a proposal, supported by a business case, should be funded. In these circumstances, it could not be said that the preparation of a business case, of itself, tends to reveal a recommendation made to the Minister for Planning.
8. Accordingly, I reject the respondents' claim under cl 2(1)(e).

Whether business cases contain solely factual information

1. In light of my findings above, it is not necessary for me to consider the applicant's claim that the business cases "consist solely of factual material" within cl 2(4) of Sch 1 to the GIPA Act.

Whether matter should be remitted to Infrastructure NSW

1. Infrastructure NSW submitted that, in the event the Tribunal was not satisfied that there were reasonable grounds for its claim that the documents in issue contain Cabinet information, the Tribunal should set aside its decision with respect to those documents and remit it to Infrastructure NSW for reconsideration. It says that there may be alternative grounds for finding that there is an overriding public interest against disclosure of the information.
2. Infrastructure NSW consented to orders that it file and serve its evidence and submissions by certain dates. It did not, at that time, ask that the proceedings be determined in two stages: the first stage dealing with the Cabinet information claims, and the second stage dealing with any other claims. There may, in certain circumstances, be value in determining proceedings under the GIPA Act in two stages, particularly when there is a large volume of documents. However, where such orders have not been sought at an early stage, an agency needs persuasive reasons to support a request, made in submissions, for a second opportunity to put forward arguments in favour of non-disclosure of information.
3. Where the Tribunal has conducted a review, it generally seeks to finalise that review at the time of its decision. This is consistent with an object of the Civil and Administrative Tribunal Act to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and with the guiding principle in s 36(1) of that Act. The power to remit a matter is generally not exercised so as to enable a respondent to make another decision, if the Tribunal finds that the respondent's first decision is not justified.
4. The appropriate course, where an agency anticipates that the primary grounds on which it relies may not succeed, is to make submissions as to the application of alternative grounds or, as indicated above, to seek orders at an early stage that the matter be determined in two stages. Had Infrastructure NSW wished to rely upon considerations in the table to s 14, it could have done so, as an alternative basis to its primary submissions that the information was Cabinet information.
5. I do not consider that it would be appropriate to remit the matter to Infrastructure NSW now. It has the onus of persuading the Tribunal that there were reasonable grounds for its Cabinet information claims and has not discharged that onus. It follows that the applicant should be granted access to the information in Documents 1, 5 and 11.

Orders The Tribunal makes the following orders: 1. A hearing is dispensed with and the matter is to be determined on the papers. 2. The decision of Infrastructure NSW in respect of the information in Documents 1, 5 and 11 is set aside and, in substitution for that decision, Infrastructure NSW is to provide the applicant with access to that information within 28 days of the date of this decision. 3. The remainder of the application is dismissed on the basis that it has been withdrawn.

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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: 29 November 2017