Parnell v Office of the Premier of NSW [2000] WASCA 349 | Case summary

REASONS FOR DECISION 1 On 5 May 2008 the applicant applied under the Freedom of Information Act 1989 (the FOI Act) to the FOI officer, Office of the Premier, for access to "all invitations, official diary entries, briefing notes and correspondence with the Premier and NSW Cabinet Ministers regarding their attendance at the NSW Labor Conference and, specifically, their involvement in the business observers program. This should include, most importantly, details of who paid for a meeting with the Premier and his Cabinet ministers, who might argue they were attending the conference a private or political capacity but were most certainly engaged in the business observers program in a ministerial capacity. I would expect this FOI to be part-transferred to the officers of every other Cabinet minister." 2 On 5 June 2008 Ms Alison McLaren, Freedom of Information Co-ordinator, notified the applicant of her determination that two documents (the Premier's conference speech and a media release) be released in full. Access to a third document, described as "Draft diary entry for the Premier for 3 May) was refused. Ms McLaren stated that this document does not fall within the definition of a "Minister's document" in section 6 and thus is not covered by the scope of the FOI Act. The document does not relate to the affairs of an agency and includes personal affairs, duties as a member of Parliament, duties as a member of a political party and leader of that party. The draft diary is also covered by the exemptions in clause 1 of Schedule 1 to the FOI Act (cabinet documents) and clause 9 of Schedule 1 (internal working document). The notice of determination specified the searches undertaken for documents relevant to the application. 3 The applicant applied to the Tribunal for review of the decision. At a planning meeting a timetable was set for filing and serving of submissions, on the basis that the issue of whether the document in dispute falls within section 6 of the FOI Act should be dealt with as a preliminary question, on the papers. Respondent's submissions 4 The respondent provided an affidavit made by Ms McLaren on 3 September 2008. In her affidavit Ms McLaren states: 6. The Premier's Diary is managed by his Private Secretary. It includes all of his proposed appointments and activities for each day. These include his responsibilities as Premier of New South Wales, as Member for Lakemba, as the Leader of the Australian Labor Party (NSW Branch) and as a private citizen. 7. All invitations and meeting requests in relation to his role as Premier are sent in the first instance to the Assistant Private Secretary. Decisions on the Premier's attendance are made in consultation with relevant staff including the Chief of Staff and the Premier. The appointments are entered into the diary by the Private Secretary. 8. The Premier may instruct the Private Secretary to place other appointments in the diary after consultation with his electorate office, the ALP party office or his family. The diary is managed by one person to avoid conflicts in appointments across the four roles. 9. As Premier of NSW, Mr Iemma obviously ahs an interest in issues across all portfolios. As a result the majority of meetings and events that the Premier attends are not in his capacity as the Minister responsible for the Department of Premier and Cabinet or the Community Relations Commission. 10. The diary is always a draft document. It is a record of meetings and events that it is anticipated that the Premier will attend on a particular day. The nature of his job means that meetings and events are often cancelled or moved at short notice. These changes are not noted in the diary retrospectively. As a result the draft diary is not an accurate record of the premier's activities on any particular day. 11. The Premier's diary for 3 May 2008 does not include any references to appointments which relate to his responsibilities as Premier or Minister for Citizenship. 5 In relation to the NSW Labor Party Conference and Business Observers Program, Ms McLaren states: 12. The NSW Labor Party Conference is an activity organised by the ALP. The Premier generally attends, but does so in his capacity as the Leader of the Australian Labor Party (NSW Branch) and not as Premier of NSW. 13. I understand the Business Observers Program is a program organised and run by the ALP. I understand that NSW Ministers may be involved in that program. However, they do so in their capacity as members of the ALP, not as Ministers responsible for NSW government agencies. 6 In written submissions, the respondent's representative accepted that the draft diary is a document held by the Minister. The issue is whether it "relates to" the affairs of an agency. The tribunal has held that this term in other parts of the FOI Act should be broadly interpreted (N (No 2) v Director General, Attorney General's Department [2002] NSWADT 33, an approach endorsed by the Appeal Panel in relation to a similarly worded provision of the Privacy and Personal Information Protection Act 1998). The respondent submitted that an ordinary meaning of the definition in section 6 is that a document is a Minister's document for the purposes of the FOI Act if it is held by a Minister, has a connection with the affairs of an agency, and is not an "agency's document". The respondent referred to decisions of the Administrative Appeals Tribunal (Re Said and John Dawkins MP (1993) 30 ALD 242); the Supreme Court of Western Australia (Minister for Planning v Taweel unreported, 13 November 1996; and Minister for Transport v Edwards [2000] WASCA 349), which addressed differently worded legislative provisions; and a decision of the Victorian Civil and Administrative Tribunal (Re Schubert and the Department of Premier and Cabinet [2001] 19 VAR 35). The respondent submitted that the ordinary meaning of the words in section 6 of the FOI Act should be applied. The Premier's diary is only a "Minister's document" to the extent that the entries relate to information in relation to the Premier's appointments as Minister responsible for the Department of Premier and Cabinet and the Community Relations Commission and Premier of NSW, and not as member for Lakemba, Leader of the ALP (NSW Branch), or as a private citizen. 7 A copy of the draft diary for 3 May 2008 was provided to the Tribunal on a confidential basis. Applicant's submissions 8 The applicant agreed with the respondent that the relevant question for the tribunal is whether the document "relates to the affairs of an agency". In response to statements made by Ms McLaren in her affidavit, the applicant submitted: - the role of Premier is broad and difficult to define; the head of executive government with at least an interest in, if not an overarching responsibility for, the affairs of every government agency and the quality of services provided to taxpayers - the FOI Manual (August 2007) states that "the reference to 'affairs of an agency' may include any agency, not only an agency for which the Minister has responsibility" - if some meetings listed in the draft diary were not relevant and others may not have taken place, it remains possible to at least partially release the draft diary and if necessary advise the applicant where meetings have not been held - in relation to the business observers program, it is irrelevant who organises an event, as premiers, chief ministers and ministers attend any number of events organised by any number of parties; the pivotal issue is the capacity in which a Premier of Minister attends, and the Premier attended the business observers program in his capacity as Premier and Minister for Citizenship - those who paid to meet the Premier through the business observers program did so because he was Premier, not because he was Labor leader or an ordinary MP; brochures for the business observers program clearly identify the Premier as "Premier, Minister for Citizenship" - while maintaining that the Premier's involvement in the business observers program related to his official capacity as Premier, if there was any crossover to his other roles this did not necessarily preclude release of the documents - there is a public interest in determining who ahs circumvented the normal process for seeking a meeting with a minister by paying the ALP for a confidential meeting at eh conference. 9 The applicant relied on responses to similar applications made to governments in Western Australia and Queensland, and provided copies of some of the responses. In Western Australia at least seven of the 14 Ministers and their FOI officers had accepted that details of their involvement in WA Labor's business observers program were accessible under the WA FOI Act. In Queensland one Minister had released details of meetings held through Queensland Labor's business observers program. The applicant submitted: Political parties in most states have, for some years, sold access to premiers, chief ministers and ministers through a business observers program at their annual party conference, as can be seen in the attached examples from WA and Queensland. The attendance of a Premier or Minister is confirmed by their office, using taxpayer funds, time and resources, and invariably involves briefings and preparation by ministerial and departmental staff. Consideration 10 Section 35 of the FOI Act provides that a person has a legally enforceable right to be given access to a Minister's document in accordance with the Act. A Minister's document is defined in section 6(1) of the FOI Act: Minister's document means a document: (a) that is held by a Minister, and (b) that relates to the affairs of an agency, but does not include an agency's document. 11 An "agency's document" is defined in section 6(1) to mean "a document that is held by the agency". 12 Section 6(2)(f) of the FOI Act provides: In this Act: … (f) a reference to a document held by a Minister includes a reference to a document to which that Minister has an immediate right of access and a document that is in the possession, or under the control, of a person in his or her capacity as a member of that Minister's staff. 13 The Freedom of Information Co-ordinator identified three documents in response to the application made by the applicant. While there is no express reference to section 28 in the notice of determination dated 5 June 2008, the inclusion of the statement of the searches conducted for documents relevant to the application, and the identification of three documents (two of which were released in full), can best be read as a statement that no other documents were located considered to be within the terms of the request for access. 14 The issue for determination in this matter is whether the draft diary for 3 May 2008 is a "Minister's document". 15 The scope of the definition of this term in section 6(1) has not yet been considered by this Tribunal. The NSW FOI Manual (published by the Department of Premier and Cabinet and the NSW Ombudsman in August 2007) relevantly states: 3.6 Documents "held" by Ministers 3.6.1 A Minister's document means: "a document which is held by a Minister and … that relates to the affairs of an agency, but does not include an agency's document" (s.6) The reference to "affairs of an agency" may include any agency, and not only the agency for which the Minister ahs responsibility. 3.6.2 Because a "Minister's document" must relate to the "affairs of an agency", they do not include documents which relate only to: - the Minister's capacity as an elected representative; - a Minister's membership of a political party; - a Minister's personal affairs, unless they are related to the affairs of an agency. 3.6.3 The definition of a Minister's document also excludes an agency's document where the document is also "held" by an agency - see [3.5] above. 3.6.4 It is sometimes the case that a request is received by a Minister for access to a document which is temporarily held by him or her, but which is normally held by an agency. In those circumstances, if the agency has an "immediate right of access" to the document the document will also be taken to be held by the agency, and so be an "agency's document" (s.6(2)(e)). If that is the case, then the document is not a "Minister's document", and the FOI application ought properly to be redirected or transferred to the agency (see [3.7.15-3.7.17 and 3.11]). Where there is doubt as to whether the agency has an "immediate right of access" to the document, the Minister should consider whether the document should nevertheless be returned to the agency so that it is unambiguously an agency's document. Given that an applicant has superior rights of review in respect of an application made to an agency rather than a Minister, where possible, preference should be given to ensuring that documents are properly categorised as an agency's documents rather than a Minister's documents. 16 As this statement of policy acknowledges, a Minister's constitutional responsibility for administration of executive government is but one part of his or her role. A Minister's other roles would include his or her electorate responsibilities as an elected member of Parliament, responsibilities and commitments as a member of a political party, and personal or family commitments. 17 The NSW FOI Act is similar to the legislation in other States in its inclusion of provisions enabling access to documents held by Ministers as well as those held by government agencies. The precise way in which the legislation makes such provision, however, varies between jurisdictions. In Western Australia and South Australia, the legislation includes a Minister within the definition of an "agency", and then makes special provision where an agency is a Minister. Clause 4(2) of the Glossary to the WA Freedom of Information Act 1992 provides: (2) Where the agency is a Minister a reference to a document of an agency is a reference to a document that - (a) is in the possession or under the control of the Minister in the Minister's official capacity; and (b) relates to the affairs of another agency (not being another Minister), and includes a document to which the Minister is entitled to access and a document in the possession or under the control of a member of the staff of the Minister as such a member, but does not include a document of an agency for which the Minister is responsible. 18 Section 4(3) of the South Australian Freedom of Information Act 1991 provides: A reference in this Act to documents held by or in the possession of an agency is, where the agency is a Minister, a reference only to such of those documents as relate to agencies for which the Minister is responsible. 19 The Commonwealth, Victorian, and Queensland legislation refer to "official" documents of a Minister. Section 5 of the Victorian Freedom of Information Act 1982 defines an "official document" of a Minister to mean: official document of a Minister or official document of the Minister means a document in the possession of a Minister, or in the possession of the Minister concerned, as the case requires, that relates to the affairs of an agency, and, for the purposes of this interpretation, a Minister shall be deemed to be in possession of a document that has passed from his possession if he is entitled to access to the document and the document is not a document of an agency. 20 Section 4 of the Commonwealth Freedom of Information Act 1982 defines an "official document" to mean: "official document of a Minister or official document of the Minister" means a document that is in the possession of a Minister, or that is in the possession of the Minister concerned, as the case requires, in his or her capacity as a Minister, being a document that relates to the affairs of an agency or of a Department of State and, for the purposes of this definition, a Minister shall be deemed to be in possession of a document that has passed from his or her possession if he or she is entitled to access to the document and the document is not a document of an agency. 21 Section 7 of the Queensland Freedom of Information Act 1992 defines "official documents of a Minister" to mean: official document of a Minister or official document of the Minister means a document, other than a document of an agency, in the possession or under the control of a Minister, or the Minister concerned, that relates to the affairs of an agency, and includes - (a) a document to which the Minister is entitled to access; and (b) a document in the possession or under the control of a member of the staff of, or a consultant to, the Minister in the person's capacity as such a member or consultant. 22 The Tasmanian Freedom of Information Act 1991 is drafted differently. The right conferred by section 7 is a right of access to " information contained in records in the possession of an agency or a Minister unless the information is exempt information". Section 25 exempts certain information in a Minister's records as follows: Information contained in a record in the possession of a Minister is exempt information if it does not relate to the affairs of any agency or to the Minister's official business. 23 There are a number of common elements in these definitions. The legislation distinguishes between documents held by a Minister and documents of an agency, so that a document of an agency cannot be a document of a Minister (or "official" document of a Minister). In McGuirk v Attorney General of New South Wales [2007] NSWADT 280 Higgins JM accepted that the two are mutually exclusive. As the NSW FOI Manual makes clear, the distinction assists in clarifying responsibility for dealing with a request for access, and may also affect appeal or review rights. There is no suggestion in this matter that the document in dispute is an "agency's document". 24 The second point to note is that more is required than that a particular document is held by or in the possession of a Minister: all jurisdictions require that the document relate to the affairs of an agency (in the case of South Australia, agencies for which the Minister is responsible). Tasmania adds an additional reference to a Minister's "official business"; the Commonwealth adds a requirement that the document be held by the Minister "in his or her capacity as Minister". 25 While there are some common elements, none of these provisions are in the same terms as section 6 of the NSW FOI Act, which limits the assistance which can be drawn from the decisions in other jurisdictions. The decision most directly in point is that of the Victorian Civil and Administrative Tribunal in Re Schubert and Department of Premier and Cabinet (2001) 19 VAR 35. That matter was a review of a request for access to a full copy of the Victorian Premier's "diary and schedule of events". As noted in the respondent's submissions, the discussion of whether this document was an "official document of a Minister" was obiter; however, the Senior Member noted at [37] that there was no doubt that the Premier's diary was an official document of a Minister, and expressed the issue for determination as whether there was contained in that document "some matter that does not relate to the affairs of an agency or of a department". It needs to be noted, however, that the legislation applicable at the time did not include the phrase "that relates to the affairs of an agency" in the definition of "official document of a Minister", and the sole issue was whether the document was in the possession of the Minister. 26 In Re Said and John Dawkins MP (1993) 30 ALD 242 the Administrative Appeals Tribunal considered an application for access by a constituent to documents held by a member of Parliament who was a Minister. The AAT held that the documents were held by the respondent in his capacity as a member of parliament, and not as a minister, and that there was no right of access to them under section 11 of the Freedom of Information Act 1982. 27 Minister for Planning v Taweel (Supreme Court of Western Australia, unreported, 13 November 1996) concerned an application for access to documents held by the Minister relating to an appeal against a decision by the City of Canning to refuse planning approval. Parker J held that the documents related to the affairs of the City, and applying the specific provision in clause 4(2) of the Glossary (see [17] above), were documents of "another agency". In the course of this decision, Parker J noted that the provisions for access to documents held by a Minister were exceptional, and that the legislature could not have intended a wide understanding of "relates to" or "affairs" in clause 4(2)(b). Parker J noted that a document might contain material relating tot eh affairs of a umber of agencies, including agencies within the ministerial responsibility of other Ministers. Parker J held: From what I can discern of the clause, it seems most likely that it was assumed that a process of categorisation which identified the essential nature of the document was to be undertaken, according to which the issue posed by clause 4(2)(b) would be answered. A variety of considerations might need to be considered to determine the essential nature of the document such as its primary purpose, its author, its intended addressee, its subject matter and, where more than one subject is covered, whether one or more was the primary subject and others merely incidental. Where it is a document required or envisaged by a statute, the statutory scheme might well be relevant to, or determinative of the question. 28 Parker J referred to judicial considerations of the term "relates to", noting that these words depend heavily on their subject, their immediate context and object to determine their scope and reach. 29 In Minister for Transport v Edwards [2000] WASCA 349 Hasluck J noted that Taweel was limited to a ruling on clause 4(2)(a) and (b) and in its context could not be regarded as a decisive ruling on the issue before him, namely whether the documents in issue were documents "of an agency for which the Minister is responsible" as required by the final words of clause 4(2). 30 The practice adopted in other jurisdictions is also of limited assistance. Section 3(3) of the Western Australian Freedom of Information Act 1992 and s14 of the Queensland Freedom of Information Act 1992 contain statements in similar form to section 5(4) of the NSW FOI Act, that the legislation is not intended to prevent or discourage agencies from providing access to documents otherwise than in accordance with the legislation. The fact that documents have been provided in response to requests made in other jurisdictions does not govern the interpretation of the NSW FOI Act. 31 Section 6 requires that the document "relates to" the "affairs" of an agency. This is not qualified by a requirement that it be, or not be, an agency for which the Minister carries ministerial responsibility. The term "relates to" is one which appears in other contexts in the FOI Act. While acknowledging that it needs to be interpreted in its context, in my view the NSW FOI Act does not indicate an intention that it be interpreted narrowly in section 6. Section 5(3) states that it "is the intention of Parliament that this Act shall be interpreted and applied so as to further the objects of this Act"; and that includes in section 5(1) (a) extending as far as possible the rights of the public to obtain access to information held by the Government. To that extent, I agree with the respondent's submission that the document must have some connection with the affairs of an agency to fall within the definition of a Minister's document in section 6. As the policy expressed in the FOI Manual indicates, that would exclude a document that relates to the Minister as a member of Parliament, as a member of a political party, or in his or her private capacity. Ms McLaren notes in paragraph 9 of her affidavit that the Premier has an interest in issues across all portfolios, and that as a result "the majority of meetings and events that the Premier attends are not in his capacity as the Minister responsible for the Department of Premier and Cabinet or the Community Relations Commission". In my view the wording of section 6, particularly when contrasted with that in the Western Australian and South Australian legislation, is sufficiently broad to include documents relating to any agency: and in the context of the Premier, that would include all government agencies. 32 The evidence of Ms McLaren is that the Premier's diary is managed by his Private Secretary, and includes all his appointments, including those as a member of parliament, as member of a political party, and as a private citizen. It is possible, therefore, that on any one day the Premier's diary may include appointments in all capacities; in some; or, for example when on leave, only one. One approach may be to adopt the analysis of Parker J in Taweel and consider what is the essential nature of the document by reference to its primary purpose, author, intended addressee and its subject matter. Adopting that approach, in my view the primary purpose of the Premier's diary for any particular day is to co-ordinate and manage the Premier's diverse commitments for that day. On Ms McLaren's evidence, while managed by the Premier's Private Secretary, it is compiled with input from a number of people, including the Premier; and it is a prospective document which does not necessarily reflect the actual activities of the Premier for that day. The Premier's diary for any one day may contain entries relating to the affairs of one or more government agencies, including an agency for which he or she has ministerial responsibility. To the extent that it does, it would be a "Minister's document" as defined in section 6 of the FOI Act. 33 The Premier's diary for 3 May 2008 appears on its face to include entries relating only to the Premier's appointments in his capacity as a member of the ALP. I am not satisfied that the document "relates to" the affairs of any agency. It is, therefore, not a "Minister's document" as defined in section 6 of the FOI Act, and there is no right to be given access to it under section 35 of the FOI Act. This being the only document at issue in these proceedings, the appropriate course is to dismiss the application for review. Order 34 Application for review dismissed.

Parnell v Office of the Premier of NSW

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