Nicholls v Transport for NSW

Legislation

1. The GIPA Act provides for the informal and formal release of government information. In general terms government information is released to applicants unless it meets the criteria of information particularised in Schedule 1 of the GIPA Act. However in various instances government information not referred to in the Schedule may be withheld from release on the basis that there is an applicable public interest consideration against disclosure sufficient to 'override' the general public interest consideration in favour of disclosure. In all other instances the GIPA Act broadly contemplates release of government information.
2. There is no dispute that the application was filed within the period provided for administrative review under the GIPA Act, nor is there any dispute that the Tribunal has jurisdiction to deal with the matter. (Section 100 GIPA Act).
3. The applicable legislation to the current matter is as follows. Schedule 1 provides the following chapeau and subsection relied upon by the respondent: Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure … 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. … …
4. The respondent relied on the following public interest against disclosure grounds (in the alternative) as set out in paragraph 10 (above). The Table to Section 14 relevantly provides the following: 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) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. … … Table 1. .... 2. … 3 … 4 Business interests of agencies and other persons There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise place an agency at a competitive advantage or disadvantage in any market, (b) reveal commercial-in-confidence provisions of a government contract, (c) diminish the competitive commercial value of any information to any person, (d) prejudice any person's legitimate business, commercial, professional or financial interests, (e) prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). (Emphasis added)
5. Sections 12, 13 (14) and 15 of the GIPA Act set out how public interest considerations are dealt with. The sections provide: Division 2 Public interest considerations 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. (3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies. 13 Public interest test 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. 14 (see paragraph 16 above)
6. The presence of a public interest consideration against disclosure is not a matter that is solely determinative on whether information is withheld from release. The GIPA Act envisages a system whereby evidence is needed to apply to such a consideration, and if the weight of that evidence is sufficient to tip the balance, and in effect 'override' the general presumption in favour of disclosure, then and only then does the provision operate to withhold the release of information.
7. Additionally, in respect of the claimed 'Cabinet exemption' (Clause 2 of Schedule 1), the legislation provides for a preliminary step in the proceedings. Section 106 provides that initially, the Tribunal is limited to deciding whether there were reasonable grounds for the agency's claim that the information is Cabinet or Executive Council information. The section 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.
8. Under section 106 (1) if the 'reasonable grounds' argument is upheld, then that is the end of the matter. If reasonable grounds are not found, then the Tribunal may move to the section 106 (2) provisions and have the 'information' produced before it. Having examined the 'information', the Tribunal either finds that there were reasonable grounds, or in the alternative, proceeds to make a determination as to what is the correct and preferable decision on the matter. (section 106 (3) ). The respondent received instructions on behalf of the Premier's representatives and made submissions under section 106 (4) with standing under section 106 (5) of the GIPA Act.
9. Notwithstanding matters relating to the conclusive presumption material under the Schedule 1, I note that generally the objects of the GIPA Act provide for the broad release of government information (subject to exceptions) as set out in paragraph 13 (above). These objects are set out below: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
10. The objects of the GIPA Act as set out in s 3(1) are to advance the system of responsible and representative democratic government. This object is achieved by authorising and encouraging the public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure.

The Hearing

1. The matter was heard on 22 August 2017. Both parties were represented by Counsel and instructing Solicitors. After the conclusion of the hearing the respondent sought to 're-open' the evidence in the matter ostensibly to correct a factual error. The Tribunal requested through correspondence that the respondent seek the applicant's views and if necessary the matter could be relisted. The respondent served further (proposed) evidence and submissions and the applicant put on further submissions post hearing addressing this issue.
2. Ultimately the applicant (in submissions dated 18 September 2017) consented to the course proposed by the respondent and there was no need to re-list the matter. I also note that the respondent's Supplementary Submissions on 11 September 2017 seek only to re-open the matter to read the second Hayward affidavit (affirmed 11 September 2017) and make the submissions as set out at paragraphs 8-13 inclusive of those Supplementary Submissions. On this basis, and noting the applicant's consent and party correspondence with the Tribunal, I find that there is no basis to reconvene the hearing, and the fresh evidence and submissions will be received and determined on the papers.

Respondent's evidence

1. The respondent filed the following material:

• The Agency Response Form including access application, correspondence between parties and 23 February 2017 decision and 7 March 2017 supplementary decision (Exhibit 'R-1').
• Open affidavit of D Hayward affirmed 30 June 2017 (Exhibit 'R-2').
• Open affidavit of A Summers sworn 30 June 2017 (Exhibit 'R-3').
• Second open affidavit of D Hayward affirmed 11 September 2017 (Exhibit 'R - 4')

1. The respondent filed a summary of legal arguments, submissions in reply, and supplementary submissions, in addition to oral submissions at hearing.
2. The respondent also filed confidential versions of 'R-2' and 'R-3' marked as 'RC-1' and 'RC-2' in the confidential session of the hearing.

Applicant's Evidence

1. The applicant filed their application for administrative review (Exhibit 'A-1') with the following grounds: The decision maker misapplied the Government Information (Public Access) Act and made the wrong decision in refusing to release the documents in question.
2. The applicant also filed initial written submissions and submissions in reply to the respondent's further evidence.
3. The Information Commissioner exercised their right to appear and be heard under section 104 (1) of the GIPA Act and made oral submissions at hearing and filed written submissions.

Oral and written submissions

1. The respondent submitted that it no longer pressed the preliminary draft argument under Clause 2 (1) (f) of Schedule 1. (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: … (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). (See paragraph 15 above).
2. The only ground relied upon by the respondent at the time of hearing was the ground under Clause 2 (1) (e) of Schedule 1. (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,
3. The respondent (upon whom the onus rests) submitted that the preliminary task for the Tribunal was to ascertain whether the affidavit evidence establishes that there are reasonable grounds to the respondent's claim that the material in question meets the definition of Cabinet information.
4. The respondent referred to the case of D'Adam v New South Wales [2014] NSWCATAD 68 in respect of the approach that the Tribunal should take in such matters. At paragraphs 45-47 the Tribunal observed: 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) 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; , 208 ALR 73, 86.
5. The respondent relied upon the earlier reasoning of the Tribunal in D'Adam to highlight the importance of prevention of scrutiny of certain decision making such as Cabinet decisions. They submitted that such matters are reconciled by the acknowledgement in the GIPA Act that Cabinet information is withheld by the terms of the GIPA Statute. At paragraphs 42-44 of D'Adam the Tribunal observed: 42. That object is to be achieved through a balanced approach that seeks to reconcile the competing values recognized by the Act. As four members of the High Court pointed out in Kline v Official Secretary to the Governor-General [2013] HCA 52, "The FoI Act does not pursue its objects, as legislative purposes, at any cost. The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increase public participation and scrutiny, by making information freely available to persons on request, and in the exempting of other government processes and activities from public participation and scrutiny, in order to secure a competing public interest in non-disclosure". For some functions of government, "freedom from interference or scrutiny by members of the public.... is an essential aspect of the making of decisions" (at [37], also [46] -- [47]). The Court had earlier recognized a manifest public interest in keeping Cabinet deliberative processes confidential in Commonwealth v Northern Land Council [1993] HCA 24; (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".
6. Submissions were made in respect of the processes set out under the Cabinet Practice Manual which was annexed to Exhibit 'R-2'. The case of Bennison v Department of Premier and Cabinet [2016] NSWCATAD 101 was referenced. At paragraphs 31 and 32 the Tribunal observed: 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.
7. As referred to above, the 'preliminary draft' 2 (1) (f) grounds had fallen away by the time of the hearing, and the relevant submissions focused on the revealing a position that a Minister was taking or proposing to take to Cabinet ground. (Clause 2 (1) (e) ).
8. In the first affidavit of D Hayward, (R-2) reference is made to an e-mail of 9 October 2014 specifically at paragraph 17 stating about the e-mail: 'SLR Briefing being attached to an email to the Minister for Transport's Office' …. 'in which it was stated to be for the purpose of a briefing with the Minister the following day.'
9. The second affidavit (R-4) seeks to correct an error in paragraph 17 of the first affidavit, namely that the 9 October 2014 e-mail was not an e-mail to the Minister's Office but rather an e-mail to employees / public servants based in Transport for New South Wales and one other person whose employment base / location was unknown. The affidavit states: 9. I am now aware that, at the time the email was sent, none of the recipients held a position in the Minister for Transport's Office. ….
10. In addition the deponent states further in paragraph 9 of the second affidavit that: 9. …. I have also undertaken further inquiries and confirmed that none of the recipients of the email are currently employed by TfNSW.
11. At paragraph 10. the second Hayward affidavit goes on to state: 10. Notwithstanding the new information I have received about the recipients of the e-mail dated 9 October 2014, I am still of the view that the SLR Briefing was likely provided to the Minister because the e-mail states that the SLR Briefing was attached for the purpose of a briefing with the Minister the following day. 11. I remain of the view that providing access to pages 24 and 25 of the SLR Briefing would reveal the position that the Minister for Transport was considering taking, or was recommended to take to Cabinet.
12. The respondent in their Supplementary submissions put forth the position that the Minister was briefed on 10 October 2014 with the SLR Briefing. This it was submitted could be inferred from the terms of the e-mail itself as set out in paragraph 10 of the second Hayward affidavit. Whilst I agree that such an inference arises, there is no evidence that such a briefing actually ultimately occurred.
13. The respondent submitted at paragraph 12 of their 11 September 2017 submissions that if the inference is draw / accepted by the Tribunal, … Then the substance of that argument put in writing and orally on 22 August 2017 by the respondents can stand; although the SLR Briefing was not emailed to the Minister's office on 9 October 2014, it was briefed to the Minister on 10 October 2014. The respondents therefore continue to rely on the evidence and submission already made to the effect that the SLR Briefing reveals or tends to reveal the position that the Minister was considering taking or was recommended to take on a matter in cabinet. Ms Hayward remains of this view: [12].
14. The applicant submitted that minimal weight should attach to the Hayward evidence (R2 and R 4). The applicant submitted that consistent with the case of McKay v Transport for NSW [2017] NSWCATAD 212 little weight should be attached to that evidence, due to the deponent's lack of direct or personal involvement in the matter (preparation of the document). At paragraph 38 of McKay the Tribunal observed: 38. 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.
15. The applicant also submitted in final submissions that the second Hayward affidavit identifies gaps in the reasoning process, in that (a) there was an error in the first affidavit, (b) the incorrect information was as a result of information provided by a third party, (c) no effort had been made to verify that the information (in error) was correct by checking the e-mail addresses and (d) by reason of the error the deponent is now only able to conclude as a matter of opinion, that it was 'likely' that the document was provided to the Minister.
16. The applicant submitted that these are not factual matters and as a result less weight should be attributed to them. Reliance was placed on the position as set out in Searle v Transport for NSW [2017] NSWCATAD 256 in respect of 'second hand' evidence concerning the dominant purpose for which documents were created. At Paragraph 45 of Searle the Tribunal observed: 45. Mr Searle has not clearly explained what proposition he seeks to draw from Fisse. It provides some support for his contention that second-hand evidence of the dominant purpose for which documents were created may properly be given little weight. It is best understood as providing guidance as to how to approach the evidence in a case such as this.
17. The applicant submitted that based on the correction evidence (R-4) as the deponent cannot now assert with certainty that the document did in fact go to the Minister, this undermines the weight which can be given to the respondent's conclusion. In addition the applicant submitted that even if the Cabinet Minute mirrored what was in the document, that situation does not in and of itself support a contention that the document reveals the position that the Minister was considering taking or was recommended to take.
18. The respondent made the following final submissions as a result of the receipt of the fresh evidence on 11 September 2017. 10. The email states that the SLR Briefing was attached for the purpose of a briefing with the Minister the next day: at [10]. 11. An inference arises from the terms of the email itself (irrespective of its recipients) that the Minister was in fact briefed on 10 October 2014 with the SLR Briefing. 12. If the Tribunal draws that inference, then the substance of the argument put in writing and orally on 22 August 2017 by the respondents can stand: although the SLR Briefing was not emailed to the Minister's office on 9 October 2014, it was briefed to the Minister on 10 October 2014. The respondents therefore continue to rely on the evidence and submissions already made to the effect that the SLR Briefing reveals or tends to reveal the position that the Minister was considering taking or was recommended to take on a matter in Cabinet. Ms Hayward remains of this view: [12]. 13. If the Tribunal declines to draw the inference that the SLR Briefing was briefed to the Minister on 10 October 2014, then the respondents submit that there are nonetheless, reasonable grounds for Ms Hayward's conclusion, to which she adheres, that the SLR Briefing is Cabinet information. Even if the document was not in fact briefed to the Minister, the relationship which Ms Hayward describes between it and the Cabinet Submission, combined with the fact that it was provided to senior officers in TfNSW concurrently with the drafting of the Cabinet Submissions, supports the conclusion that the SLR Briefing is Cabinet Information.

Consideration

1. The position that the SLR Briefing was prepared at 'around the same time' as the Cabinet Minute had been prepared is not supported by any other evidence before the Tribunal, other than paragraph 18 of Exhibit 'R-2'.
2. In this matter the respondent (upon whom the onus rests) has provided affidavit evidence of one person, and a further affidavit seeking to correct errors in the earlier affidavit. The respondent has for inferred reasons (relevant persons no longer employed in the sector), been unable to produce witnesses capable of giving first hand evidence as to the matters in Clause 2 subclause (4) of Schedule 1 of the GIPA Act, upon which their claim rests.
3. In the case of Searle when dealing with a related ground under Clause 2, the Tribunal observed the following concerning the strength and manner of the evidence submitted by that respondent. At Paragraph 54 the Tribunal observed: 54. Resolution of this issue depends upon whether the respondents have persuaded the Tribunal that Ms Levy is in a position to have knowledge of the purpose of the preparation of the Documents. When asked in cross examination why she said that the Documents were prepared on the basis that they could be submitted to Cabinet, she said she could not answer without referring to the confidential evidence. For reasons given confidentially below, although the confidential evidence provides some support for the claim, it does not, of itself, persuade me that a purpose of preparing the Documents was their submission to Cabinet. However, I accept Ms Levy's evidence that she had "first-hand knowledge" of the Documents and that one of her "direct reports" dealt directly with them. I also accept that her role involved reporting to and advising the Government and Cabinet on the State's infrastructure program, including monitoring and conducting gateway reviews and health checks. I find, on the basis of this evidence, that Ms Levy is probably in a position to know the purpose of preparing the Documents. I consider that, Ms Levy's open evidence, taken with the confidential and documentary evidence, provides reasonable grounds for the claim of Transport for NSW that a purpose of their preparation was their submission to Cabinet.
4. Later in Searle after confidential session the Tribunal went on to make further observations and findings at paragraphs 57 to 60 on these grounds. Are there reasonable grounds for the respondent's claim as to dominant purpose? 57. Transport for NSW does not have reasonable grounds for its claim that a dominant purpose of preparing the documents was their submission to Cabinet, for Cabinet's consideration, or to a committee of Cabinet, for its consideration. The respondents have not established that, but for this purpose, the Documents would not have been prepared (Secretary to the Department of Treasury and Finance v Dalla Vella [2007] VSCA 11 at [13], [24]). On the contrary, the evidence strongly indicates that the Documents would have been prepared, irrespective of whether there was any intention to submit the Documents to Cabinet. Information from gateway reviews and health check reports has routinely been submitted to Cabinet for some time, without submitting the entire reports. Gateway reviews and health check reports are prepared for a variety of purposes, as outlined above, including, significantly, to enable the government to monitor infrastructure projects effectively. I find that the purpose of submitting the Documents to Cabinet was a subsidiary purpose for preparing them. The main purposes of preparing the Documents were to monitor the Sydney Light Rail project effectively and to provide summaries of the findings and recommendations of the reviews to Government, including Cabinet. 58. There are no reasonable grounds for the claim that the dominant purpose of preparing the Documents was their being submitted to Cabinet or a Cabinet committee for Cabinet's consideration. Ms Levy did not say in her affidavit or in oral evidence that this was the dominant purpose of preparation. She said in oral evidence that the reports were there in case Cabinet wants to see them but that the full documents do not usually go to Cabinet. This falls well short of establishing that the dominant purpose is as claimed. 59. For these reasons, Transport for NSW has not discharged its onus of establishing that there are reasonable grounds for its claim that there is a conclusive presumption of an overriding public interest against disclosure of the information contained in the Documents on the basis that it is Cabinet information (GIPA Act, s 14(1), Sch 1, cl 2). 60. It remains to consider the other public interest considerations against disclosure relied upon by the respondent.
5. The respondent's case appears from the evidence before the Tribunal, to be predicated on a number of claims ultimately asserted as factual.

• 'R-2' provides evidence of familiarity with the Cabinet process.
• 'R-2' provides evidence of experience in drafting a Cabinet Submission.
• 'R-2' also puts into evidence the NSW Cabinet Practice Manual as evidence of the current government policy document in respect of preparation, development, submissions, handling and other issues relating to the processing of Cabinet material. None of these issues appear contentious between the parties.
• 'R-2' provides evidence of a position that pages 24 and 25 of the SLR Briefing - as they 'concerned a cost increase' and that the deponent relied on 'extrinsic information to gain an understanding of the circumstances in which it had been created and how it related to the Cabinet process.'
• 'R-4' provides evidence that the SLR Briefing was attached to an email sent to officers in a division of TfNSW. 'R-2' provides evidence of some content of the 9 October 2014 email. Specifically, that in the email it was 'stated to be for the purpose of a briefing with the Minister the following day.'
• 'R-2' goes on to state the deponent's awareness that 'a Cabinet Minute had been prepared by TfNSW on behalf of the Minister for Transport, for submission to a committee of Cabinet at around the same time as the SLR Briefing'. (Emphasis added).

1. 'R-2' also provides evidence of a conclusion of the deponent, namely that the disclosure of the material would reveal a position that the Minster was considering taking, or was recommending to take in Cabinet. It appears that this conclusion is reached solely on two points: 1. the timing of the SLR Briefing, shortly in advance of the Cabinet Minute being submitted to Cabinet for its consideration; and 2. the close connection in form and content between the matters dealt with in SLR Briefing and the Cabinet Minute.
2. I note in particular that this claim concerns a preliminary step as to whether there are reasonable grounds for the agency's claim that the material is captured by the definitions in Clause 2 of Schedule 1 of the GIPA Act.
3. The respondent submits that the ordinary and natural meaning of the relevant statutory language: 'reveals or tends to reveal the position that a particular Minister …. Is considering taking, or has been recommended to take, on the matter in Cabinet'. The respondent further submitted that it is the position itself that attracts the protection, not only the fact that it is a position that the Minister is considering taking or has been recommended to take.
4. In the case of McKay the Tribunal amongst other issues, considered the issue of whether a document was prepared for the purpose of a briefing to TfNSW's advisors and whether such a document would ultimately reveal the Ministers position (which was taken or was considered to be taken, or will be taken) to Cabinet. At paragraphs 55 - 57 the Tribunal observed the following: 55. 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. 56. 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. 57. 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.

Conclusion

1. Based on a consideration of all of the evidence and material before the Tribunal as at 10 October 2017, I am not satisfied that there were reasonable grounds for the respondents' claim that the material was Cabinet material, and I so find. I make this funding pursuant to section 106 (1) of the GIPA Act.
2. Pursuant to section 106 (2) of the GIPA Act I require the respondent to produce the information for which the claim is made, and also to produce any document that the information was assessed against in making a finding that the information was Cabinet information. Such material is to be filed and received under the provisions of section 107 (2) of the GIPA Act.
3. I note that section 106 provides for a potentially three-stage process in matters such as this, where there is an initial reliance on the reasonable grounds argument. The section 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. I note that any consideration under section 106 (2) must (out of practical necessity) occur in camera. I also note that section 106 (3) arguments have been prepared by the parties should the conclusive presumption (Cabinet) argument fail. I note from written submissions, and on the question of any redactions to release material having regard to public interest consideration against disclosure, that both parties wish to be heard further.
5. Having regard to the guiding principle of the Tribunal under section 36 (1) of the Civil and Administrative Tribunal Act 2013 I propose to deal with the residue of the matter in the following manner: 1. The respondent will file the material referred to in paragraph 64 within a short period following publication of these orders. 2. If the Tribunal finds that the information material constitutes Cabinet information (upon examination) then the decision will be affirmed and the proceedings concluded. 3. If the Tribunal finds that the information is not Cabinet information, the Tribunal will proceed to consider the matter under section 106(3) of the GIPA Act and set a timetable for any further submissions that the parties may wish to make.

Orders 1. Pursuant to section 106 (2) of the GIPA Act the respondent is to produce the information for which the Schedule 1 Clause (2) claim is made, and also to produce any document that the information was assessed against in making a finding that the information was Cabinet information. Such material is to be filed and received under the provisions of section 107 (2) of the GIPA Act within 14 days of publication of these reasons. 2. The respondent is to file and serve further open written submissions (if any) in support of the material filed in conformity with Order 1 within 14 days of publication of these reasons. 3. The applicant is to file and serve any further submissions (if any) on or before 22 January 2018. 4. The Information Commissioner is to file and serve submissions (if any) on or before 29 January 2018. 5. The respondent is to file confidential submissions (if any) in support of the submissions in order (2) on or before 29 January 2018. 6. The matter is listed for directions on 30 January 2018 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: 08 December 2017