Park 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. (s 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 s14 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 … 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] 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
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' (Cl 2 of Sch 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. (Emphasis added)
8. Under s 106 (1) if the 'reasonable grounds' argument is upheld, then the decision is affirmed without proceeding to any further steps. If reasonable grounds are not found, then the Tribunal may move to the s 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. (s 106 (3) ). The respondent received instructions on behalf of the Premier's representatives and made submissions under s 106 (4) with standing under s106 (5) of the GIPA Act.
9. Notwithstanding matters relating to the conclusive presumption material under the Sch 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 of 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 1 December 2017. Both parties were represented by Counsel and instructing Solicitors. Three months after the conclusion of the hearing the respondent sought to 're-open' the evidence in the matter by correspondence dated 1 March 2018 concerning the identification of further documents within scope. However I note that the proceedings concern the review of two decisions dated 17 March 2017. For a number of reasons including the fact that these reasons had already been substantially commenced, the lack of any consent from the applicant, and the ultimate conclusion that the Tribunal reached in these reasons, consent to reopen the evidence was refused.
2. In reaching this position the Tribunal observes that the further material has not been explained at this stage, other than the circumstances upon which it was identified, and that the respondent now seeks to adjudicate it adverse to the applicant.
3. As the Tribunal will be reviewing material consistent with the orders arising from these reasons, having regard to the guiding principle under the Civil and Administrative Tribunal Act 2013 in my view that recently identified material should be considered with the outstanding material.

Respondent's evidence

1. By previous consent order of the Tribunal all of the written and other evidence was consolidated into the two proceedings which were heard together due to the relationship between the two decisions under review.
2. The respondent filed the following material:

• Open affidavit of A Jones affirmed 18 August 2017 (Exhibit 'R-1').
• Open affidavit of R Finlay sworn 21 August 2017 (Exhibit 'R-2').
• Open affidavit of M McKibbin affirmed 22 August 2017 (Exhibit 'R-3').
• Open affidavit of D Hayward affirmed 22 August 2017 (Exhibit 'R - 4').
• Open affidavit of M McKibbin affirmed 23 November 2017 (Exhibit 'R-5').

1. The respondent filed an outline of submissions, and an outline of submissions in reply.
2. The respondent also filed confidential versions of 'R-2' 'R-3' and 'R-4' marked as 'RC-1' 'RC-2' and 'RC-3' in the confidential session of the hearing.

Applicant's Evidence

1. The applicant filed their application for administrative review with the following grounds: 2017/00069686 The application from Ryan Park had extended the decision period until Friday 3 March 2017. Multiple extensions of the decision period had been agreed to by the applicant. As of Monday 6 March, no decisions had been made. If an agency does not decide an application within time, the agency is deemed to have decided to refuse to deal with the application, The applicant has a right to appeal a decision to provide access or to refuse to provide access to information in response to an access request considering that the Agency has has [sic] been unable to do so. 2017/00129838 The GIPA application decision received multiple extension.[sic] On the 13th of March a decision was made that the GIPA application would be decided out of time and is therefore a deemed refusal. A subsequent decision was made on 17 March. The agency did not decide the application in time. The decision maker erred in cabinet in confidence provisions. We ask that the tribunal consider the merits of the applicant's request considering that the Agency has been unable to do so.
2. The applicant also filed evidence in the nature of Treasury Policy and Guidelines Paper (TPP) concerning guidelines for capital; business cases ref: 08-5 (authored December 2008) Exhibit 'A-1'.
3. The applicant also filed an outline of submissions and supplementary submissions concerning the final document in the respondent's schedule.

Respondent's Evidence

1. M McKibbin gave evidence at the hearing and was taken in evidence-in-chief to Annexure 'A' of Exhibit 'R-5'. Reference was made to an e-mail of 12 November 2014 referring to a date in two weeks when the Minister requires a copy of the minute for review. The subject of the e-mail is 'RE: Erc minute'. The Tribunal understands the reference to mean 'Expenditure Review Committee'.
2. Reference was also made to another e-mail annexed to 'R 5'. 'D.H.' a Treasury officer engages in a dialogue with 'J.G.' a TfNSW officer. Those exchanges concern a Benefit Cost Ratio for the business case of the Light Rail Project. The witness gave evidence that the City South East Light Rail Project (CSELR Project) had sought an updated economic appraisal. This information was generated in the context of the annexed e-mail chain.
3. The witness gave evidence that he was requested to lead the preparation of the Sydney Light Rail Strategic Plan. That Plan was marked 'Cabinet in Confidence'. The process of the updated economic assessment involved a letter being provided by the witness to TfNSW for comment. TfNSW would look into the matter and then respond by returning it to the witness to pass on to the external consultant Price Waterhouse Coopers. However in this instance there were no comments or input from TfNSW.
4. The witness agreed with the proposition that business cases are submitted to Treasury and may be reviewed subject to Treasury comments. The witness believed that all of the aspects of the business case, financial approval, expenditure review and associated matters were all part of the approval process. A clear purpose of the business case was to obtain financial approval for the project. It would achieve this according to the witness by examining sustainability, stakeholder engagement / views, technical aspects and the business (financial) case. The witness was clear that in his opinion, obtaining financial approval was the primary purpose of the entire process outlined in his evidence.
5. The witness was taken Exhibit 'A-1'. Pages: 5, 9, 14, and 32 (which comprises Appendix 2 'Final Business Case Template') which were identified as the key aspects. Page 14 dealt with the key principles in the analysis of the proposal. It was put to the witness that there are a substantial number of matters that a business case needs to consider. The witness agreed with the proposition and added that funding approval is contingent on the business case merit.

Respondent's Oral and written submissions

1. In oral submissions the respondent submitted that consistent with the approach outlined in the case of D'Adam (D'Adam v New South Wales Treasury [2014] NSWCATAD 68) that the approach to the preliminary consideration of reasonable grounds is analogous to that of a judicial review.
2. At paragraphs 45-47 of D'Adam 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.
3. The respondent submitted that document 1.6 from the table of documents agreed between the parties, was a document that was with the Transport Minister the following day. The document is described as 'Sydney Light Rail Update Briefing - Budget (October 2014)'.
4. Reference was made to Exhibit 'R- 4' the Hayward Affidavit. Whilst it is clear that the deponent had no personal prior knowledge of the documents in respect of Sch 1 Cl (2) (b) the respondent submitted that the Tribunal needs to look at the dominant purpose of the documents as a whole.
5. Reference was also made to the recent decision of Mookhey v Infrastructure NSW [2017] NSWCATAD 345) concerning how the 'but for test' cannot replace the words of the statute. At paragraph 38 of Mookhey the Tribunal observed: 38. The respondents submit that, for a purpose to be a dominant purpose, the purpose in question must be "causative in the sense that, but for its presence" the information would not have been prepared: Secretary to the Department of Treasury and Finance v Dalla Vella [2007] VSCA 11 at [13], [24]; D'Adam v New South Wales Treasury [2014] NSWCATAD 68 at [51]. Whilst this test may often indicate that a purpose is dominant, it is important not to substitute this test for the words of the statute. There may be instances where there are two purposes which are causative in this sense. The evidence in this case suggests that, but for the requirement to comply with the Guidelines, the business cases would not have been prepared. There is also evidence supporting the conclusion that, but for the need to obtain Cabinet approval for funding, the business cases would not have been prepared. The "but for" test does not always indicate which of two purposes is dominant.
6. The respondent submitted that the approach was not an enquiry as to what (for example) Mr McKibbin thought the document was for but what it was in essence in the wider corporate governmental purpose. Again the respondent stressed that the dominant purpose of the document needs to be looked at as a whole.
7. Oral submissions also referred to the affidavit of R Jones (Exhibit 'R-1'). Reference was made to the evidence deposed at paragraph 8 referring to a 'template' that was populated and then extracted and sent to Cabinet. 8. As at December 2014, agencies such as TfNSW were required to report to INSW on infrastructure projects with a budget of over $100M on a monthly basis as part of its project assurance function described above at 5c. INSW circulated a Cabinet Submission template document to other government agencies for them to report to INSW on major projects. The information contained in the template was then extracted by INSW and compiled for submission to Cabinet.
8. In written submissions the respondent referred to the evidence of Hayward, Jones, McKibbin and Finlay. In addition they no longer pressed documents 2.2, 2.11, 2.15, 2.16 and 2.17. Concessions were made about document 2.16 and the respondent proposed to make a new document under s 75 (1) of the GIPA Act redacting the attachment titles. Documents 2.19 and 2.19a it was contended were outside of the scope of the second application as on review it was established that the documents were internal TfNSW correspondence only.
9. The respondent set out the legislative provisions in some detail in their written submissions. Reliance was placed on the Cabinet Information Manual. A number of cases were referred to concerning Cabinet Information. Clause 2 (1) (b) refers to a document being prepared for the dominant purpose to Cabinet for Cabinet's consideration whether or not the document is actually submitted. In this regard specific reference was made to D'Adam at [49]- [51] concerning the operation of cl 2 (1) (b). 49. It is common ground that there are three conditions for the operation of this clause. The first is that there be "information". It is not disputed that the data contained in the Roadmaps meet that condition. 50. The second condition for the operation of the provision is that the information be "contained in a document". In this case, the information is contained in the Roadmaps, and also in the quarterly whole-of-government records submitted by the Treasury to ERC, and in the quarterly reports submitted by clusters to ERC. The two kinds of quarterly reports contain information from the Roadmaps after that information has been introduced into the reports by FEO or by the relevant cluster. 51. The third condition for the operation of cl 2(1)(b) is that the relevant documents, in this instance the Roadmaps, and by extension the two sets of quarterly reports, are prepared for the dominant purpose of being submitted to Cabinet for Cabinet's consideration. All parties in this case accept that the words "dominant purpose" have the same meaning as in ss 118 and 119 of the Evidence Act 1995. The purpose in question must be "causative in the sense that, but for its presence " the information would not have been prepared: Secretary to the Department of Treasury and Finance v Dalla Vella [2007] VSCA 11 [13], [24].
10. 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.
11. In submissions in reply the respondent referred to how the Tribunal should approach the question of addressing the concept of 'reasonable grounds' as referred to in s 106 (1) of the GIPA Act. The case of Searle v Transport for NSW [2017] NSWCATAD 256 addresses the correct approach referring to the earlier case of McKinnon v Secretary Department of Treasury (2006) 228 CLR 423. At [36] - [38] of Searle the Tribunal observed: 36. 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] HCA 45; (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." 37. The words "reasonable grounds", in a different statutory context, were recently considered by the High Court in Prior v Mole [2017] HCA 10; (2017) 91 ALJR 441. A Northern Territory statute provided that a member of the police force was entitled to arrest a person if the member had "reasonable grounds" for believing the person was intoxicated in a public place and likely to commit an offence. The appellant, who had been arrested under the provision, argued that the arresting officer did not have reasonable grounds for his belief. Kiefel and Bell JJ held (at 445 [4]) that the provision required that the constable hold the relevant beliefs and that "the facts and circumstances" known to the constable: "constituted objectively reasonable grounds for those beliefs. Proof of the latter requires that those facts and circumstances be sufficient to induce in the mind of a reasonable person a positive inclination towards acceptance of the subject matter of the belief." 38. The statutory phrase differs here, because it is not concerned with reasonable grounds for a belief, but rather with reasonable grounds for a claim (as in McKinnon). Nevertheless, reasonable grounds for a claim may entail facts and circumstances sufficient to induce in the mind of a reasonable person a positive inclination towards acceptance of the claim.
12. The respondent submitted that the applicant's reliance on the reasonable grounds notion from the High Court case of Prior (Prior v Mole [2017] HCA 10) is not on point. The respondent submitted that the matter was not analogous as Prior required a police officer to have reasonable grounds for a belief, whereas GIPA only requires that there be reasonable grounds for the claim for Cabinet information.
13. The respondent submitted that the applicant's arguments positively on the objects (of GIPA) were not applicable in the current matter as those objects also envisaged circumstances where material was of a nature that could not be released by the operation of the GIPA act such as material whereby there was a conclusive presumption against disclosure. (s 3(1) (c) ). Reference was again made to the High Court's observations on the Commonwealth FOI Act and that the legislative purpose is not pursued at any cost (as per Kline v Official Secretary to the Governor General (2013) 249 CLR 645).
14. In respect of the dominant purpose approach the respondent relied on the reasoning in Searle at [47] and submitted that the relevant purpose is first determined by assessing the corporate of government purpose approach. 47. The Documents were prepared by a team of experts, engaged by Infrastructure NSW. Each of those experts presumably had a purpose in preparing the reports, but that is not necessarily the purpose for which they were created. If, as it would appear from the evidence, the experts had either an exclusive or the primary role in the preparation of the Documents, evidence of each expert's subjective purpose in doing so would not necessarily be helpful in establishing the dominant purpose for which the Documents were prepared. This is because the purpose of preparation is best ascertained by reference to the corporate or governmental purpose underlying the commissioning of the reports. The evidence establishes that the expert reviewers were engaged to prepare gateway review and health check reports on behalf of Infrastructure NSW ("Infrastructure Investor Assurance Framework: Gateway Coordination Agency Framework for Capital Projects under the NSW Gateway Policy" ("IIAF Document"), cl 2.7, p 8). The reports remain the property of Infrastructure NSW until finalised (IIAF Document, cl 2.7, p 8). As the reports have been prepared in the context of complex interactions between Cabinet, the State government, government agencies, and private corporations, the purposes of individuals cannot be equated to the corporate or governmental purpose for preparing the reports.
15. Second, the objective purpose of the person who caused the document to be created may be relevant but not determinative. The respondent submitted that there is no requirement to adduce evidence from the person who prepared the document in order to establish what the 'dominant purpose' of the document was. The respondent submitted that consistent with the discussion in Searle at [41] - [54] the purpose can be gleaned from other sources. References were made to Exhibit's R1-R5 the affidavits of Jones, Finlay, McKibbin and Hayward.
16. In respect that no evidence had been adduced by the authors of the documents the respondent submitted that explanations have been provided in the evidence for such matters. Further submissions were made addressing each of the particular documents remaining in dispute.

Applicant's Oral and written submissions

1. In oral submissions the applicant's Counsel referred to D'Adam at [60] - [64] concerning an approach to dominant purpose. Primarily the submissions being that the issue concerns the document not the information. 60. Secondly, the applicant argued that the dominant purpose element itself was not satisfied. The dominant purpose is to be ascertained as at the time the information is brought into existence: National Parks Association at [29]. The applicant contended that that the dominant purpose here was to enable FEO to monitor the implementation of savings reforms by agencies. FEO then uses the information in the Roadmaps to provide monthly reports to clusters to facilitate discussion that their senior officers and program management have with Treasury resource allocation staff and FEO about their progress. 61. The evidence, including that set out above, shows, however, that that the Roadmaps are prepared for the dominant purpose of submission to Cabinet. Mr Cheney stated that the documents form part of the system within the New South Wales government whereby agency spending and savings are monitored by the Cabinet committee, ERC. The Roadmaps may serve other management purposes as well, but their primary function is as part of a continuous process of supervision, advice and consultation involving the Cabinet committee, FEO and the agencies. 62. There could hardly be a witness better qualified than Mr Cheney, the foundation director of FEO who has supervised the RPM system, including the Roadmaps, from the outset, to give evidence about the Roadmaps' dominant purpose. This places the respondents' case in a stronger position than, for example, the respondent department in Fisse. There, the evidence of dominant purpose was given by an assistant Cabinet secretary with no direct knowledge of the creation of the document, and who had to rely on her experience of usual practice. No- one from the working party that produced the report or the executive summary was called to give evidence. A majority of the Full Court held, however, that the respondent had discharged the burden of proving dominant purpose. 63. The respondents' alternative submission in relation to the Roadmaps is that there were reasonable grounds for the Treasury's claim that the information is contained in a document prepared after Cabinet's deliberation or decision on the matter that would reveal or tend to reveal information concerning any of those deliberations or decisions. They submit that the Roadmaps "live" documents in the sense that they are subject to continuing amendment. While an agency prepares Roadmaps for submission to ERC, the agency also updates the Roadmaps after their submission, to reflect Cabinet's deliberation and decision on matters concerning its performance and to report on its progress in implementing savings plans consistently with Cabinet's consideration. The parties agree that the phrase "deliberation or decision" to be given the meaning expressed in Re Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301; (2003) 78 ALD 645, 677. 64.The applicant counters that the asserted practice is unsupported by evidence, as Mr Cheney says only that the Roadmaps are updated monthly, but does not say that the updating has any connection with Cabinet deliberations or decisions. Mr Cheney's evidence on this point indeed goes no further than saying that the agency updates the milestones in the Roadmaps about the progress achieved so as to promote discussion and, if needed, action. While the incorporation of the results of Cabinet deliberations at that stage is a reasonable possibility, the evidence does not go so far as to establish it on the preponderance of probabilities. There is a difference between inference and conjecture. "Conjecture may be plausible, but it is effectively still a mere guess": Bell IXL Investment Ltd v Life Therapeutics Ltd [2008] FCA 1457, [14].
2. Reference was also made to Searle at [28] I accept Mr Searle's submission that the original decision-maker erred in the reasoning by which he arrived at the conclusion that the information sought was Cabinet information. Having found that the information was prepared for submission for Cabinet but that the documents containing the information were not, the law then required him to conclude that cl 2(1)(b) of Sch 1 to the GIPA Act did not apply. It followed that, on the information available to the decision-maker, the information was not Cabinet information (see D'Adam v New South Wales Treasury and the Premier of New South Wales [2015] NSWCATAP 61 at [60] to [62]). (Emphasis added).
3. In respect of the cl 2 (1) (e) grounds (the revealing a position / deliberation taken, taking, or intending to take to Cabinet) the applicant submitted that there were four limbs or elements required to be considered. The document needs to be prepared before or after a cabinet deliberation, the document needs to be prepared for a matter 'before' cabinet - that is referrable to a particular matter, the matter needs to be dealt with in Cabinet and finally the document needs to 'reveal'.
4. In respect of documents 1.1 and 2.5 (Draft external Consultants report / note) Mr McKibbin's evidence was that the document was provided for TfNSW approval, not the Minister. The Minister wanted the information prior therefore the documents cannot relate to the Minister.
5. Documents 1.2 and 2.3 are referred to at paragraphs 28-31 of the Hayward affidavit. The applicant submitted that the focus needed to be on the documents not parts of the documents. In respect of document 1.3 (INSW Report) the applicant submitted that the claimed grounds of cl 2 (1) (b) and (f) falls away because it is not a draft but a separate information gathering exercise.
6. Reference was made to the case of Mookhey at [23] concerning document 2.6 (not provided in the Table) which concerns the business case. In addition separate written submissions were made about document 20a, which was reconsidered by Ms Hayward who now believes that in addition to other argued grounds for withholding the material, the material was also Cabinet material - specifically with cl 2 (1) (e).
7. In a closing submission in reply the respondent referred to Robinson v Transport for NSW; Robinson v Roads and Maritime Services [2017] NSWCATAD 353 and Mookhey v Infrastructure NSW [2017] NSWCATAD 345. Reference was made to paragraphs 78-81 from Robinson concerning whether cabinet material can be redacted (the information versus the document argument). Whether Cabinet documents may be redacted 78. Mr Robinson made the submission, in relation to particular documents which were subject to the claim that they contained Cabinet information, that those documents could be released in a redacted form. That is, he submitted that where only some of the information in a document was Cabinet information, he should be given access to the remainder. I note that, in some cases, the respondents have given Mr Robinson access to parts of a document and redacted other parts which are claimed to contain Cabinet information. 79. The GIPA Act, unlike its predecessor the Freedom of Information Act, generally applies to information. This means that, if there is no overriding public interest against disclosure of the information, then an access applicant is entitled to be granted access to it, even if other information in the same document is subject to an overriding public interest against disclosure. The Cabinet information consideration, in cl 2(1) of Sch 1 to the GIPA Act, is different. It applies to information contained in a document meeting the description of any of the paragraphs (a) to (f) of cl 2(1). Thus, if the document meets such a description, all the information in the document is subject to an overriding public interest against disclosure. 80. A possible qualification to this is that, "to the extent that [information] consists solely of factual material," it is not Cabinet information, unless specified circumstances apply (GIPA Act, Sch 1, cl 2(4)). It is unclear whether cl 2(4) is intended to allow for the provision of access to solely factual material in documents meeting a description in cl 2(1), or whether cl 2(4) applies where an entire document (for example one submitted to Cabinet) consists solely of factual material. In any event, Mr Robinson did not seek to rely on cl 2(4) and I do not consider that any of the documents in issue consist solely of factual material. 81. For these reasons, subject to the possible qualification referred to above, I do not consider that the GIPA Act permits the Tribunal, when conducting a review, to make a decision that an applicant be given access to some of the information in a document meeting the description of a paragraph in cl 2(1), and that the applicant be denied access to the remainder of the information. Rather, once the information is found to be contained in a document meeting the description of a paragraph in cl 2(1), the effect of cl 2(1) is that there is an overriding public interest against disclosure of that information.
8. A brief confidential session occurred at the conclusion of the open hearing whereby the three confidential affidavits were received. That confidential hearing took place in accordance with the provisions of s 107 of the GIPA Act. Other than the receipt of the affidavits no evidence was received during this session. I have decided that it is unnecessary to refer to any specific details of the confidential evidence, as its nature was well known to the parties and the specifics do not significantly advance the matters before the Tribunal. Much of the submissions in that session were analogous with the open submissions, other than they built on the open evidence with the benefit of further evidence. For those reasons I have decided that it is unnecessary to prepare separate open and closed reasons.

Consideration of Evidence and Findings

1. 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 [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.
2. I note that in McKay the Tribunal had the benefit of the documents before it. In the current matter, in determining the reasonable grounds for the 'cabinet' claim, I am constrained by the nature of the evidence filed by the respondent.
3. I have carefully reviewed all of the evidence and material submitted by the parties both at hearing and as filed. 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 cl 2 of Sch 1 of the GIPA Act.

Jones evidence 'R-1' and findings

1. Ms Jones affidavit ('R-1') is concerned with her knowledge of the matter as it relates to Infrastructure NSW (INSW). Her evidence mainly concerns document 1.3 and also sets out the relevant context and structure of Infrastructure NSW. Ms Jones gives evidence about INSW's reporting requirements and the fact that at December 2014 INSW circulated a: 8. '….Cabinet Submission template document to other government agencies for them to report to INSW on major projects. The information contained in the template was then extracted by INSW and compiled for submission to Cabinet.' 9. Document 1.3 is an INSW Cabinet Submission template document that has been populated with comments from TfNSW. 10. For the purpose of preparing this affidavit, I have also reviewed the final version of the Submission that INSW submitted to Cabinet on 17 December 2014, and I am satisfied that Document 1.3 is an earlier iteration of that final Submission.
2. Having considered that evidence I am satisfied that there are reasonable grounds for the claim that document 1.3 is Cabinet information as defined in the GIPA Act

Finlay Evidence 'R-2' and 'RC-1' and findings

1. Mr Finlay's affidavit ('R-2') provides a context and relationship of the SLR Advisory Board to Cabinet. The relationship to TfNSW is also referenced. Mr Finlay's evidence is that all papers of the Advisory Board were marked ''Cabinet in Confidence'. In respect of the evidence given in the open affidavit at paragraphs 31, 36, and 38. I find that little weight can be attributed to them. This is because the evidence is based on an inference, gleaned from an understanding, having been advised, or being informed.
2. The language of the affidavit indicates that the deponent whilst believing those things to be the case, does not know. Whilst there is clearly nothing disingenuous in the evidence, the witness is in my view too removed from the pertinent matters (even having regard to the wide scope of cl 2 of Sch 1 of the GIPA Act), to satisfy me that reasonable grounds have been established. This observation (of being too removed) is made notwithstanding his senior and central position as the Independent Chair of the SLR Advisory Board. However, it follows that the Tribunal will need to decide the nature of the information in respect of documents 2.7, 2.8, 2.9, 2.11a, 2.11b, 2.11c, 2.12 and 2.14.
3. In respect of paragraph 39 of the affidavit, and having regard to the confidential evidence in the paragraph as detailed in Exhibit ('RC1') I am satisfied as to the deponent's knowledge of factual content. As a result I am satisfied that there are reasonable grounds for the claim that documents 2.10 and 2.13 is Cabinet information as defined in the GIPA Act.

Hayward evidence 'R-4' and 'RC-3' and findings.

1. In respect of the Hayward affidavits ('R-4' and 'R-5') - Ms Hayward being the nominated decision maker in respect of the applications, I observe the following. At paragraph 22. the following is deposed: 22'…. Neither I, nor my colleague Sue Chew, who assisted me, was able to speak with any person who had been directly involved in the creation or presentation of the documents. The documents were created before the establishment of the SLRDO and, generally speaking, their authors were no longer with TfNSW. Accordingly, it was necessary for me to consider and rely on extrinsic information, and any assistance the SLDRO was able to provide, to gain an understanding of the circumstances in which they had been created and how they related to the Cabinet process.'
2. The affidavit moves through various documents and notes consecutive markings on the documents of 'Cabinet in Confidence'. I note that many of these documents are generated outside of the government sector. Each relevant paragraph contains similar phrases such as: 25. …Having regard to the markings on the document, the content of the document, and that the document was prepared for submission to Cabinet in December 2014, I was satisfied that submission to Cabinet was the dominant purpose of its creation. 30. …Having regard to the markings on the document, the content of the document, I was satisfied that submission to Cabinet was the dominant purpose of its creation. 33. … a. I noted that the SLR Briefing dealt with issues that were put to Cabinet in the Cabinet Minute. …
3. I note the evidence concerning document 1.2 / 2.3. I am not satisfied that reasonable grounds have been established in respect of document 1.2/ 2.3. I determine that it is necessary for the Tribunal to examine that document.
4. In respect of document 1.6 there is no evidence of any briefing in either the open or closed affidavit. However there is evidence of the document being submitted to Cabinet. (Par [33] 'RC-3'). I am satisfied based on the evidence at that paragraph that there are reasonable grounds for the claim that document 1.6 falls within cl 2 of Sch 1 of the GIPA Act in that it meets the definition of Cabinet information.
5. I note the deponent at [36] in respect of document 2.1 compares and contrasts this documents to Cabinet Minute SC471-2014. I am satisfied based on the evidence at that paragraph that there are reasonable grounds for the claim that document 2.1 falls within cl 2 of Sch 1 of the GIPA Act in that it meets the definition of Cabinet information.
6. In respect of document 2.4 I note that Ms Hayward concludes that: 39. … the e-mail itself was a document that was prepared before Cabinet's deliberation on the matters contained in the draft Cabinet Minute and reveal the position that the particular Minister would take, or was considering taking, or had been recommended to take, on the matter in Cabinet, being that contained in the draft Cabinet Minute and noted in the body of the email. That is because I understand that the only basis upon which the email has been determined to be responsive to the Second Access Application is the information contained in the draft Cabinet Minute, and that disclosure of the email would accordingly reveal particular contents of the draft Cabinet Minute. (Emphasis added)
7. I am not satisfied that reasonable grounds have been established in respect of document 2.4. I determine that it is necessary for the Tribunal to examine that document.
8. In respect of documents 2.15a and 2.16a (being email attachments) it is difficult to make out the reasonable grounds claim, in the absence of the Cabinet Minute (which is not a document in issue in these proceedings). In my view it is necessary for the Tribunal to conduct its own comparison.
9. Ms Hayward addresses documents 2.20 and 2.20a in her affidavit. She refers to the initial s14 grounds but at [55] states: 55. On further consideration of these documents for the purposes of these proceedings, I am now also satisfied that Document 2.20a was created before Cabinet's deliberation on the matters contained therein and that they reveal, or tend to reveal, the position that a particular Minister has taken, or has been recommended to take on the matter in Cabinet.
10. I note in particular the further explanations and analysis contained in the confidential version of Ms Hayward's Affidavit ('RC-3'). In my view (in particular noting the change in assessment of this material), I am not satisfied that the reasonable grounds claim has been made out, and I as result I will need access to the documents on a confidential basis.

McKibbin evidence 'R-3' 'R-5' and 'RC-2' and findings

1. In open evidence Mr McKibbin prepared a complete affidavit ('R-5') and a redacted affidavit ('R-3'). His evidence mainly concerns document 1.1 (aka 2.5, and document 2.6.
2. Having regard to the evidence that the updated assessment was obtained for the Expenditure Review Committee and the Hayward evidence (concerning the material and relationship to a Cabinet minute) - 'RC-3' [27] I am satisfied that there are reasonable grounds for the claim that documents 1.1 / 2.5 is Cabinet information as defined in the GIPA Act.
3. In respect of document 2.6 I am satisfied from the evidence in paragraphs [8], [9] and [12] that there are reasonable grounds for the claim that document 2.6 is Cabinet information as defined in the GIPA Act.

Further observations concerning the 'reasonable grounds approach

1. In my view other than the matters positively found above, for the remainder of the material the evidence, for the reasons set out and in the absence of the documents withheld, is insufficient to make a finding to the requisite standard. This is in part due to the inferences, second hand knowledge as to purpose and basis for the material, and a lack of certainty (on the current evidence) to the proximity (if any) between the documents and any Minutes. An example of Mr Finlay's evidence at [38] of 'R-2' is that: 'I am informed … and believe that both endorsements were subsequently submitted to the secretary for his endorsement, to the Minister for her approval and ultimately to the ERC for approval.
2. There is nothing in the confidential evidence of this witness (Mr Finlay) that in my view explains the position further. As a result these factors limit the weight that I can place on the evidence submitted by the respondent, and as such the ability to make any further positive findings on the reasonable grounds argument.
3. As in similar matters I observe that contributing to all of these arguments is the absence of the contentious documents, so that the Tribunal can conduct its own assessment.
4. Whilst I note that three confidential affidavits were tendered in confidential session, and some information describing the details of the withheld information as deposed in those affidavits, the lack of any 'confidential' documents and further detailed first hand or otherwise cogent evidence about what occurred, rather than an inference, further constrains the Tribunal's assessment. In making that observation I note (as previously observed) that the matter is currently being considered solely on the 'reasonable grounds' argument. There remain some minor residual s14 grounds or considerations that cannot be addressed in any manner in the absence of reviewing the documents.
5. By way of observation in some aspects the tiered approach that the GIPA Act provides for determining Cabinet exemptions departs from the guiding principle of the Tribunal under s 36 of the Civil and Administrative Tribunal Act 2013. 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules.
6. In matters where this process ultimately finds that some of the respondent agency's claims are not made out, the consideration of the matters before the Tribunal extends from a single process to potentially a three stage process.

Conclusion

1. Based on a consideration of all of the evidence and material before the Tribunal, I am not satisfied that there were reasonable grounds for the respondents claim that the material was Cabinet material in respect of the following documents:

• 1.2 / 2.3, 2.7, 2.8, 2.9, 2.11a, 2.11b, 2.11c, 2.12, 2.14, 2.15a, 2.16a, 2.20 and 2.20a, and I so find. I make this finding pursuant to s 106 (1) of the GIPA Act.

1. Pursuant to s 106 (2) of the GIPA Act I require the respondent to produce the information for which the claim is made as referred to in paragraph 89 (above). In addition I require the respondent to produce any document that the information was assessed against in making a finding that the information was Cabinet information. In this regard a confidential copy of the relevant Cabinet Minute would assist the Tribunal in this process. Such material is to be filed and received under the provisions of s 107 (2) of the GIPA Act.
2. I return to the approach contemplated by s 106 of the GIPA Act. (The potentially three-stage process in matters such as this, where there is an initial reliance on the reasonable grounds argument). For clarity I note that 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.
3. I note that any consideration under section 106 (2) must (out of practical necessity) occur in camera. I also note that in respect of a small portion of the remaining documents section 106 (3) arguments have been prepared by the parties should the conclusive presumption (Cabinet) argument fail. I note from a request for further directions at the conclusion of the initial hearing, that both parties wish to be heard further.
4. Having regard to the guiding principle of the Tribunal under section 36 (1) of the NCAT Act, I propose to deal with the residue of the matter in the following manner: 1. The respondent will file the material referred to in paragraphs 89 and 90 within a short period following publication of these reasons. 2. The matter will be listed for directions. Following those directions the Tribunal will determine if the remaining material constitutes Cabinet information. 3. If the Tribunal finds that any of 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 2017/00069686 1. The decision of the respondent is set aside in respect of documents: 1.2 / 2.3, 2.7, 2.8, 2.9, 2.11a, 2.11b, 2.11c, 2.12, and 2.14. 2. The decision of the respondent is otherwise affirmed. 3. Pursuant to s 106 (2) of the GIPA Act the respondent is to produce the information for which the remaining Sch 1 Cl (2) claim is made, including any other documents identified since the hearing, 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 s 107 (2) of the GIPA Act within 21 days of publication of these reasons. 4. The matter is listed for directions before the Tribunal constituted by myself at 9:30am on 1 May 2018. 2017/00129838 1. The decision of the respondent is set aside in respect of documents: 2.15a, 2.16a, 2.20 and 2.20a. 2. The decision of the respondent is otherwise affirmed. 3. Pursuant to s 106 (2) of the GIPA Act the respondent is to produce the information for which the remaining Sch 1 Cl (2) claim is made, including any other documents identified since the conclusion of the hearing, 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 s 107 (2) of the GIPA Act within 21 days of publication of these reasons. 4. The matter is listed for directions before the Tribunal constituted by myself at 9:30am on 1 May 2018.

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: 12 April 2018