1. The Ombudsman received an application for external review from Mr Patrick.
2. On 22 March 2023, the Ombudsman provided the parties with a provisional determination, and received written submissions in response from both parties.[3]
3. On 5 June 2023, after considering the parties' submissions, the Ombudsman issued a final determination. The Ombudsman varied the agency's determination. The Ombudsman found that:
   • Two documents were wholly exempt (Documents 1 and 2);
   • Nine documents were only exempt in part (Documents 6, 7, 14, 16, 17, 18, 19, 20, and 21); and
   • Ten documents were not exempt (Documents 3, 4, 5, 8, 9, 10, 11, 12, 13, and 15).
4. The agency was dissatisfied with certain aspects of the Ombudsman's determination and sought a review in the Tribunal.

Preliminary issues in relation to an agency's review by the Tribunal

1. Pursuant to s 40(1a) of the FOI Act, an application for review filed by an agency may only be as to a question of law and that question must be referred to a Presidential member of the Tribunal under s 26 of the South Australian Civil and Administrative Tribunal Act 2013 ("SACAT Act").
2. The agency filed grounds of review with the Tribunal, framed as three questions of law. The agency filed amended grounds of review on 9 August 2023, and further advised the Tribunal on 27 September 2023 that it no longer sought to argue the first of the questions it had originally posed.
3. The questions of law remaining for the Tribunal to determine are:

Question 2: Whether, on a proper construction of clause 1(1)(f) of Schedule 1 to the Freedom of Information Act 1991, the notion of "use" of a document is limited to active use and excludes an update or briefing to inform the Minister in relation to a matter submitted, or proposed to be submitted, to Cabinet. > > Question 3: Whether, on a proper construction of section 39 of the Freedom of Information Act 1991, the Ombudsman erred in failing to consult interested parties in respect of Documents 3, 6, 7, 9, 12 and 19 as documents to which Division 2 of Part 3 applies, in circumstances where there has been no prior consultation and the Ombudsman determined to give access to those documents.[4]

4. The effect of the agency's framing of the grounds and questions is that:
   • Documents 1, 2, 4, 5, 8, 10, 11, 15, 17 and 18 are not the subject of this review.
   • Documents 13, 14 and 16 are only affected by the second question concerning clause 1(1)(f);
   • Documents 3, 6, 7, 9 and 12 are only affected by the third question concerning the obligation to consult;
   • Document 19 is affected by both the second and third questions.
5. On 2 August 2023, following a directions hearing, I granted the agency an extension of time for commencing these proceedings pursuant to s 66 of the SACAT Act. The agency's application was one day out of time. Mr Patrick did not oppose the Tribunal granting this extension, and I considered it appropriate to do so.
6. The agency also requires the leave of the Tribunal to bring this review.[5] At the directions hearing, the parties agreed that the question of leave to bring the review should be decided as part of the substantive hearing. The agency proposed a two-step process by which the questions of leave and law are dealt with first, then, depending on the answers, the agency may seek permission to file evidence to enable the Tribunal to determine the correct or preferable decision on the facts. The respondent did not oppose this process.

1. The Tribunal has received and considered the following documents in the course of these proceedings:

• The agency's further amended grounds of review, filed 9 August 2023;
  • The Ombudsman's Section 35 documents, volumes 1 and 2, filed 30 August 2023;
  • The agency's written submissions, filed 5 September 2023;
  • Mr Patrick's written submissions, filed 3 October 2023;
  • Affidavit of Peter Andrew Campbell, sworn 3 October 2023;
  • The agency's book of documents, volumes 1 and 2, filed 9 October 2023;

1. Mr Patrick's book of documents, filed 11 October 2023.[6]

Whether on a proper construction of clause 1(1)(f) of Schedule 1 to the Freedom of Information Act 1991, the notion of "use" of a document is limited to active use and excludes an update or briefing to inform the Minister in relation to a matter submitted, proposed to be submitted, to Cabinet.

2. Question 2 is directed at alleged error by the Ombudsman in the treatment of documents 13, 14, 16 and 19, and in particular his finding that these documents were not exempt by virtue of clause 1(1)(f).
3. The context of this question is that the Ombudsman declined to find that certain documents attracted the operation of clause 1(1)(f) of Schedule 1 to the FOI Act. The Ombudsman stated that he was not satisfied that they had been prepared for the Minister's "active use" and appeared to be for noting only.[7]
4. Clause 1(1)(f) of Schedule 1 provides:

1 - Cabinet documents > > (1) A document is an exempt document - > > ...

(f) if it is a briefing paper specifically prepared for the use of a Minister in relation to a matter submitted, or proposed to be submitted to Cabinet.

1. In summary, the agency contended that:[8]
   1. Documents 13, 14, 16 and 19 are briefings prepared for the Minister for Police, Emergency Services and Correctional Services. The Ombudsman made this finding and it is evident from the face of the documents.[9]
   2. Their content relates to the proposed relocation of the Thebarton Police Barracks.
   3. The proposed relocation of the Thebarton Police Barracks in those documents was in relation to a matter at the time of the creation of the documents, submitted or proposed to be submitted, to Cabinet. The Ombudsman had submissions from the agency that allowed the Ombudsman to find that each of the briefings was in respect of a matter that was before Cabinet or was to be taken to Cabinet, or was an updating briefing on such a matter.
   4. Clause 1(1)(f) is directed at the purpose of the preparation of the documents. The purpose of the preparation of the documents was their use by the Minister. Whether or not they were so used is irrelevant to the application of the exemption.
   5. A document that is specifically prepared as an updating briefing for a Minister in relation to a matter that has been submitted or is proposed to be submitted to Cabinet, is a briefing paper specifically prepared for the use of a Minister in relation to that matter.
   6. The Ombudsman has read into clause 1(1)(f) a further requirement that the document must be for the "active use" of the Minister rather than a "mere update".[10] However, there is no textual or contextual justification for such an additional element and to the extent that it was applied, and found not to have been met, the Ombudsman fell into error.
   7. The Ombudsman's determination discloses that the Ombudsman was in fact satisfied of the criteria in clause 1(1)(f), properly construed, in respect of the documents, and the Ombudsman's satisfaction was soundly reached.
   8. Question 2 is to be answered: No, and on an application of the clause properly construed to the documents in question, the documents are exempt.

1. In relation to the question of law concerning the construction of clause 1(1)(f), the respondent's position may be summarised as follows:
   1. The purpose of clause 1(1)(f) is to support collective responsibility for Cabinet decisions, but not to protect Departmental opinions except insofar as their disclosure would undermine the protection of the Cabinet process.
   2. "Matter" means the proposal and not the whole of the subject matter of the proposal. The matter in respect of each document is whatever was proposed to Cabinet and not the relocation of the barracks generally.
   3. Clause 1(1)(f) is directed at the purpose of the author of the briefing. The purpose of the briefing must be for the Minister to use in relation to the deliberative process that the author anticipates will occur in relation to the matter proposed.
   4. A Minister may put a briefing to various uses, including those to which the exemption is directed, but beyond that as well. The matter to be determined is what the briefing was "specifically prepared" for by the person who prepared it.
   5. No evidence was adduced on the author's purpose to the Ombudsman or the Tribunal and as such purpose, if it is discerned, must be capable of inference from the content of the documents
   6. The agency did not establish to the Ombudsman that the documents were specifically prepared for use by the Minister in relation to a matter submitted or proposed to be submitted to Cabinet. Having failed to establish the factual basis for the application of the clause to the documents, leave should be refused.
   7. The answer to the question posed will not be determinative of whether the documents are exempt because of the agency's failure to establish what they were specifically prepared for.[11] Although question 2 is a question of law, leave should be refused as it will not resolve the controversy.
   8. If leave is granted, the Tribunal will need to consider the documents (being the only source of information) to ascertain whether they can be established as having been specifically prepared for the use of the Minister in respect of the matter. In so doing, "matter" is properly understood in its narrow sense as the matter proposed to Cabinet and not the subject matter more generally.

Consideration of question 2: the proper construction of clause 1(1)(f)

1. The FOI Act authorises an agency to refuse access to a document that is an exempt document.[12] Exemptions are contained in Schedule 1 of the Act. Exemptions are separated into various categories. Clause 1(1)(f) is within a class of exemptions entitled "Restricted Documents". Restricted documents attract the application of particular sections of the Act which are not relevant to this application but which disclose that the Minister responsible for the Act may act to ensure that the documents are not disclosed. Restricted documents are in a class that the Act recognises as having particular sensitivity.
2. The FOI Act does not demand that in the construction of its clauses, a "leaning" towards disclosure is adopted as an object of the Act. The Act provides a scheme for the balancing of competing interests including competing public interests, and public interests that compete with private interests. The Court of Appeal recently described the approach to the construction of the provisions of the Act including the exemptions as follows in JJK v Police:[13]

1. In construing the relevant provisions of the FOI Act and PCD Act, the objective is to give the relevant provisions the meaning the legislature is taken to have intended them to have. It involves consideration of the text of those provisions, but having regard to their context and purpose. 2. In the present case, the applicant relies upon her general right of access to documents under s 12 of the FOI Act. But as she acknowledges, that right is one that is, by the terms of s 12 itself, qualified by the other provisions of the FOI Act. In particular, s 20(1)(a) provides that an agency may refuse access to documents which are exempt documents. The list of exempt documents in schedule 1 of the FOI includes those falling within cl 12 of that schedule, being documents containing matter the disclosure of which would constitute an offence. 3. The applicant emphasises the importance, when construing the provisions of the FOI Act, of having regard to the statement of objects and principles of administration in ss 3 and 3A of that Act. She refers, in this respect, to the following passage from the reasons of the High Court in Victorian Public Service Board v Wright, in relation to similar provisions in the equivalent Victorian legislation:

In the light of these sections it is proper to give to the relevant provisions of the Act a construction which would further, rather than hinder, free access to information. It is, in our view, evidence that such a purpose would not be promoted by adopting a narrow construction of the appellate functions of the County Court under the Act or by imposing any limitation upon the effect of its decisions beyond any limits plainly imposed by the Act itself.

3. The applicant accepts, however, that the objects and principles of administration do not create any presumption in favour of disclosure in the interpretation of the provisions of the FOI Act which exempt documents from the right of access otherwise provided for under s 12 of that Act. She accepts that what is called for is a consideration of the balance struck between the right of access and the exemptions, having regard to the language of the relevant provisions. As the Full Court of the Federal Court said in relation to the Commonwealth freedom of information legislation in News Corporation Ltd v National Companies & Securities Commission (No 4):

In construing our Act we do not favour the adoption of a leaning position. The rights of access and the exemptions are designed to give a correct balance of the competing public interests involved. Each is to be interpreted according to the words used, bearing in mind the stated object of the Act. > > (footnotes omitted)

1 - Cabinet documents > > (1) A document is an exempt document - > > ...

(f) if it is a briefing paper specifically prepared for the use of a Minister in relation to a matter submitted, or proposed to be submitted, to Cabinet.

1. Whilst there is some degree of difference between the parties' submissions as to the meaning of various components of the clause, the critical issue is what is conveyed by the word "use" in this context.
2. In his provisional determination, the Ombudsman said:

3. As can be seen from the schedule of documents in the agency's determination, each of the documents claimed to be exempt on the basis of clause 1(1)(f) is a 'Commissioner's Briefing Paper'.[14] Clause 1(1)(f) operates to exempt briefing papers prepared for use by a Minister. As the Commissioner is not a Minister, I am not satisfied that the documents meet that criteria.
4. Conversely, although not claimed by the agency, I note that documents 13-16, 18 and 19 appear to be briefings prepared for the Minister for Police, Emergency Services and Correctional Services about matters which were submitted or proposed to be submitted to Cabinet. That said, it is not clear to me that the briefings were prepared for 'use' by the Minister. Rather, they appear to be merely updates.
5. Noting that the agency has not relied upon clause 1(1)(f) in relation to these documents, I have taken this to mean that the agency concedes that the documents were updates only and not prepared for any particular 'use' by the Minister.
6. In the event that the agency is able to establish otherwise, I advise the applicant that I will likely be persuaded to alter my views such that documents 13-16, 18 and 19 are exempt in full on the basis of clause 1(1)(f).
7. In the final determination, the Ombudsman said:
   1. As noted in my provisional determination, it is not clear to me that the briefings were prepared for 'use' by the Minister. Rather, they appear to be merely updates. I advised that the agency would need to establish that these are documents established for use by the Minister in relation to a matter submitted, or proposed to be submitted to Cabinet.
   2. In its submissions the agency responded that it would be willing to make enquiries with Cabinet as 'to the extent to which the documents are considered by Cabinet.'. Given that the agency has already been provided with an opportunity to furnish this information, I do not consider that giving the agency further time to make enquiries with Cabinet is reasonable.
8. The task arising from the question of law is the proper construction of clause 1(1)(f). The principles to be followed in relation to such a task are well-established. In CIC Insurance Ltd v Bankstown Football Club Ltd,[15] the High Court (Brennan CJ, Dawson, Toohey and Gummow JJ) said:[16]

It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. (footnotes omitted)

9. Subsequently, the High Court has emphasised the importance of focussing on the text of the provision itself, including in Saeed v Minister for Immigration and Citizenship[17] in which the majority (Hayne, Heydon, Crennan, Kiefel JJ) said:[18]

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. (footnotes omitted)

10. More recently, in SZTAL v Minister for Immigration and Border Protection,[19] Kiefel CJ, Nettle and Gordon JJ cited the above authorities with approval and summarised the position as follows:[20]

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. (footnotes omitted)

11. In addition to those general principles, the "non-leaning" approach described earlier in this decision must also be respected.
12. Keeping these principles in mind, and the caution that must be adopted in breaking a statutory provision into components lest its context be diluted, it is useful to identify several components of clause 1(1)(f). The first is that the document must be a briefing for a Minister. The second is the clause is directed towards the purpose of the briefing note author. The third is the identification of what constitutes the "matter" referred to. The fourth is what is intended by the term "use". Whilst the last of these issues is that which the Tribunal has been directed to, consideration of the other aspects informs that task.

1. There were no substantive submissions on this issue. The term "briefing" connotes the communication of information in a broader sense than, say, "speaking notes" or "proposal". In the particular context of a briefing to the Minister, the term may be understood to refer to a document in which information is imparted by a Governmental officer to a Minister on a topic of substance rather than a merely administrative communication.
2. It is evident from the Ombudsman's determination that the documents in question allow little doubt that they are "briefings".

The clause is directed at the briefing author's purpose

1. Neither party demurred from the proposition that a briefing might be specifically prepared for, or be put to, several uses and still come within clause 1(1)(f), as long as it was specifically prepared for use of the Minister in relation to a matter proposed to be put to Cabinet.
2. The best evidence about a purposive provision will be the evidence of the person with the purpose. Inferring purpose from the content of the document will often, but not always, be possible and sometimes, but not always, accurate.

1. The Tribunal accepts that the matter as referred to in clause 1(1)(f) is the specific proposal or issue being put to Cabinet and not the whole of the subject matter touching upon the proposal. However, the Tribunal observes that it is difficult to illuminate the definition any further because of the extent of the range of things that may constitute a "matter". The diversity of broad and narrow proposals that may be contained in Cabinet submissions, including those where the recommendation is that the content of the submission is noted and, on the other hand, those which may make very specific recommendations for action, is such that the set of things that may constitute a "matter" is very broad.
2. The Tribunal also observes that the author of a briefing may not be aware of the specific wording of the Cabinet submission with which a briefing is associated but may nevertheless be tasked with preparing a briefing. For example, the "matter" may involve a recommendation about the construction of a building. The author may be asked to brief the Minister for Environment about the impact of construction on the local environment. The author may not be aware of the specific proposal regarding the construction but the briefing will nevertheless be specifically prepared for the Minister for Environment to use in Cabinet to make a contribution to the debate as to the "matter" proposed in the submission.

1. Given the context of the function of Cabinet deliberation, "use" in clause 1(1)(f) means to assist the Minister to perform the deliberative function required by Cabinet debate.
2. The phrase "use of a Minister" in clause 1(1)(f) encompasses direct use such as taking the briefing into Cabinet and reading from the briefing or referring to its content in debate, but also arming the Minister with information without any expectation that the document will be read from or referred to in Cabinet. "Use" refers to being deployed to the exercise of the Minister's function which is to bring portfolio-specific and whole-of-Government views to the matter under consideration.
3. There is no textual or contextual basis to constrain the word with a requirement that the use be "active", or that an update on the matter cannot constitute a briefing in relation to a matter.

Question 2: Whether, on a proper construction of clause 1(1)(f) of Schedule 1 to the Freedom of Information Act 1991, the notion of "use" of a document is limited to active use and excludes an update or briefing to inform the Minister in relation to a matter submitted, or proposed to be submitted, to Cabinet.

Answer: Clause 1(1)(f) of Schedule 1 does not evince an intention to confine the word "use" with the qualifier "active" and is capable of being met by a document that was specifically prepared to update a Minister or inform a Minister in relation to a matter submitted, or proposed to be submitted, to Cabinet.

Application of the answer to question 2 to the documents

1. It follows from the answer to question 2 that the Ombudsman erred when considering the application of clause 1(1)(f) to documents 13, 14, 16 and 19. Nevertheless, it may be that leave should be refused if it is not possible to substitute a decision without further evidence, given that the agency had an opportunity to provide such evidence and did not. However, the Tribunal has formed the view that the exempt status of these documents can be ascertained without the need for further evidence.
2. The Tribunal has reviewed the documents in question. The Tribunal is mindful that the respondent relies upon the Tribunal's application of the legal principles to the documents in question because the respondent has not been permitted to view them. The Tribunal is also mindful of the need to consider whether, if a document contains exempt matter, such mater can be excised such that the document can be provided in a redacted form to the respondent in accordance with s 20(4) of the FOI Act. That task entails some evaluation of the document, if it were to be redacted, for its residual "worth".
3. The Tribunal will not include in this decision information that would damage the protected quality of the information in the documents. Therefore, it is necessary to state certain conclusions without the same detailed justification for them that would otherwise be provided. Such is the necessary consequence of assessing a challenge to a refusal on an FOI application.
4. Having reviewed the documents, the Tribunal is satisfied that documents 13, 14, 16 and 19 have the qualities that lead to the conclusion that they are briefings, and that they were prepared for the Minister for Police, Emergency Services and Correctional Services.
5. These conclusions have been reached from a consideration of the content of the documents. Given that an element of the exemption is the author's purpose, it would be preferable to have more direct evidence about this in the form of affidavit evidence, but it is possible to safely reach the conclusion from the face of the documents.
6. In relation to document 13, the respondent maintains that the date of this document is 19 October 2022 and that the Bill referred to in the descriptor of the document was introduced in the Legislative Council on 20 October 2022. The respondent says that this information may indicate that the briefing was specifically prepared for use by the Minister in Parliament, rather than for the Minister in Cabinet.
7. The respondent has not had the opportunity to view the document and the submission is necessarily speculative.
8. The agency says that document 13 attracts the application of clause 1(1)(f). The agency's submissions to the Ombudsman in response to the provisional determination assert that it is a briefing for a Minister in relation to a matter to be submitted to Cabinet.[21]
9. The Tribunal has viewed the document. Having done so, I am satisfied from its content that it is a briefing for the Minister for Police in relation to a matter to be considered by Cabinet. The content of the briefing leads to that conclusion. It is, in the Tribunal's view, the most likely conclusion from the face of the document. The respondent's contention that the agency did not establish that document 13 was specifically prepared for the use of a Minister in relation to a matter that was proposed for Cabinet is not made out. The agency made the claim to the Ombudsman and the document itself allowed the conclusion to be drawn.
10. In relation to document 13, I am satisfied that it is a briefing for the Minister for Police in relation to a matter proposed to be submitted to Cabinet. I am so satisfied because of the manner in which the document is styled, the reference it contains to the proposal that is to be put to Cabinet, the date of the Cabinet meeting, and the content of the document including its treatment of the proposal.
11. It would be an error of law if the Ombudsman did not make a factual finding that was necessary to his determination.[22] However, I consider that he did make a factual finding that the document was a briefing to a Minister. The Ombudsman proceeded to conclude that the document was not exempt because it was not for the Minister's use in relation to a matter to be submitted to Cabinet. This, in my view, was the result of the assumption that "use" entails some action or treatment greater than or other than the provision of updating information. I see no reason to impose this restriction on the word "use".
12. The Ombudsman's determination should be set aside in respect of this document and substituted with the determination that document 13 is exempt.
13. The agency asserted that document 14 was a minute providing a briefing to the Minister in relation to a matter to be submitted to Cabinet and claimed exemption under clause 1(1)(f) after receipt of the provisional determination.[23]
14. In relation to document 14, I am satisfied that it is a briefing for the Minister for Police in relation to a matter proposed to be submitted to Cabinet. I am so satisfied because of the manner in which the document is styled, and the reference it contains to an attached draft Cabinet document proposed for the Minister's consideration. The content of the document refers to a proposal to Cabinet that constitutes the "matter". I am satisfied that document 14 is exempt as claimed pursuant to clause 1(1)(f).
15. In relation to document 16, it is not evident on the face of the document that there is a "matter" to be decided or debated by Cabinet that is the subject of the briefing. The briefing concerns a proposal in relation to a Bill that is before the Parliament. Mr Wait SC submitted that the content of the submission is necessarily a "matter" because the proposal could only be approved by Cabinet. On that basis, the document is an exempt document pursuant to clause 1(1)(f).
16. In relation to document 19, I am satisfied that it is a briefing for the Minister for Police and I am satisfied that the briefing is in relation to a matter proposed to be submitted to Cabinet. I am so satisfied because it is styled as a briefing and it attaches a document intended for Cabinet and its content is treatment of the proposal to be submitted. It is evident from an examination of the document that it meets the criteria in clause 1(1)(f).
17. I grant permission in respect of the second question posed by the agency. It raises a question of general importance regarding the interpretation of clause 1(1)(f) and its answer indicates an error by the Ombudsman. When clause 1(1)(f) is applied to the documents, it is possible to draw a conclusion as to their exempt status from their content alone.
18. I set aside the determination to that extent and substitute it with a determination to the effect that the documents are exempt.

1. The Tribunal has also been asked to determine whether, on a proper construction of s 39 of the FOI Act, the Ombudsman had an obligation to consult various persons before reversing the agency's determination, the effect of which was that the documents were determined not to be exempt.
2. Section 39 sets out the manner in which the Ombudsman must conduct an external review. It relevantly provides:

39 - External review > > ... > > (5) In conducting a review under this section, the relevant review authority -

(a) may carry out an investigation into the subject matter of the application (and for the purposes of such an investigation may exercise the same investigative powers as are conferred on the Ombudsman by the Ombudsman Act 1972 in relation to an investigation duly initiated under that Act, including the powers of a commission as defined in the Royal Commissions Act 1917); and

(b) may, if it appears to the relevant review authority that the agency has failed to properly sort or compile documents relevant to the review or to undertake consultations relevant to the review that should have been undertaken by the agency -

(i) require the agency to sort or compile the documents or undertake the consultations; or

(ii) require officers of the agency to attend at a time and place specified by the relevant review authority for the purpose of sorting and compiling the documents or undertaking the consultations; and

(c) may -

(i) try to effect a settlement between the participants to a review at any time during the review; and

(ii) at the request of the agency, suspend proceedings under this section at any time to allow an opportunity for a settlement to be negotiated.

...

(10) A relevant review authority must not make a determination to the effect that access is to be given to a document to which Division 2 of Part 3 applies unless the relevant review authority has taken steps as are reasonably practicable to obtain the views of any interested person as to whether or not the document is an exempt document under a provision of Part 2 of Schedule 1.

1. It may immediately be seen that whilst s 39(5) empowers the review authority to do certain things in its discretion, s 39(10) contains a mandatory prohibition against making a determination to release documents in certain circumstances.
2. The words "a document to which Division 2 of Part 3 applies" in s 39(10) refer to a document in relation to which consultation with an interested party is required. Division 2 of Part 3 of the FOI Act contains ss 25-27 inclusive which impose on an agency an obligation not to give access to certain types of documents without undertaking consultation with interested parties as to whether the document might be an exempt document. For the purposes of these proceedings, it was not in dispute that the relevant provisions are ss 25 and 27.
3. Section 25 provides as follows:

25 - Documents affecting inter-governmental or local governmental relations > > (1) This section applies to a document that contains matter concerning the affairs of - > > (a) the Government of the Commonwealth or of another State; or > > (b) a council (including a council constituted under a law of another State). > > (2) An agency must not give access under this Act to a document to which this section applies unless the agency has taken such steps as are reasonably practicable to obtain the views of the Government or council concerned as to whether or not the document is an exempt document by virtue of clause 5 of Schedule 1. > > (2a) However, if the agency is a council, subsection (2) does not apply in relation to documents that only contain matter concerning the affairs of that council. > > (3) If -

(a) an agency determines, after having sought the views of the Government or council concerned, that access to a document to which this section applies is to be given; and

(b) the views of the Government or council concerned are that the document is an exempt document by virtue of clause 5 of Schedule 1,

the agency must -

(c) forthwith give written notice to the Government or council concerned -

(i) that the agency has determined that access to the document is to be given; and

(ii) of the rights of review conferred by this Act in relation to the determination; and

(iii) of the procedures to be followed for the purpose of exercising those rights; and

(d) defer giving access to the document until after the expiration of the period within which an application for a review under this Act may be made or, if such an application is made, until after the application has been finally disposed of.

1. Section 25 contains a step that an agency must take to make a decision as to whether clause 5 of Schedule 1 applies to the document such that it might be exempt. It is couched in mandatory terms but is only enlivened where an agency is inclined, subject to undertaking the mandated consultation, to give access to the document.
2. Section 25 relates to clause 5 of Schedule 1 which provides:

5 - Documents affecting inter-governmental or local governmental relations > > (1) A document is an exempt document if it contains matter - > > (a) the disclosure of which -

(i) could reasonably be expected to cause damage to intergovernmental relations; or

(ii) would divulge information from a confidential intergovernmental communication; and

(b) the disclosure of which would, on balance, be contrary to the public interest.

Division 2 - Consultation > > 27 - Documents affecting business affairs > > (1) This section applies to a document that contains - > > (a) information concerning the trade secrets of any person; or > > (b) information (other than trade secrets) that has a commercial value to any person; or > > (c) any other information concerning the business, professional, commercial or financial affairs of any person. > > (2) An agency must not give access under this Act to a document to which this section applies (except to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 7 of Schedule 1. > > (3) If - > > (a) an agency determines, after seeking the views of the person concerned, that access to a document to which this section applies is to be given; and > > (b) the views of the person concerned are that the document is an exempt document by virtue of clause 7 of Schedule 1, > > the agency must - > > (c) forthwith give written notice to the person concerned - > > (i) that the agency has determined that access to the document is to be given; and > > (ii) of the rights of review conferred by this Act in relation to the determination; and > > (iii) of the procedures to be followed for the purpose of exercising those rights; and > > (d) defer giving access to the document until after the expiration of the period within which an application for a review under this Act may be made or, if such an application is made, until after the application has been finally disposed of.

2. Section 27 establishes a step that an agency must take to make a decision as to whether clause 7 of Schedule 1 applies to the document such that it might be exempt. It is couched in mandatory terms but is only enlivened where an agency is inclined, subject to undertaking the mandated consultation, to give access to the document.
3. Clause 7 of Schedule 1 provides:

7 - Documents affecting business affairs > > (1) A document is an exempt document - > > (a) if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person; or > > (b) if it contains matter -

(i) consisting of information (other than trade secrets) that has a commercial value to any agency or any other person; and

(ii) the disclosure of which -

(A) could reasonably be expected to destroy or diminish the commercial value of the information; and

(B) would, on balance, be contrary to the public interest; or

(c) if it contains matter -

(i) consisting of information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person; and

(ii) the disclosure of which -

(A) could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency; and

(B) would, on balance, be contrary to the public interest.

(2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is made.

(3) A document is not an exempt document by virtue of this clause if it is a contract entered into by the Crown or an agency after the commencement of this subclause.

1. The agency submitted to the Tribunal that documents 3, 6, 7, 9, 12 and 19 enliven consideration of clause 7. They do so because they contain information that has a commercial value to a person.
2. The agency submitted that each of the documents contains reference to one or more sites owned by private owners or governmental institutions assessed as potential sites for the relocation of the barracks.[24] Further, that such information, insofar as it relates to a private owner, is information that is or was commercially valuable to a person who was the owner of such a site (an interested person) for the purposes of s 27. Also, that such information insofar as it relates to a governmental institution or agency is information that concerns the affairs of that institution or agency for the purposes of s 25.
3. These assertions were not made to the Ombudsman because the agency considered that the documents were exempt on other bases. The agency did not consult because it did not propose to give access to the documents. However, Mr Wait SC submitted that when the Ombudsman rejected those other grounds of exemption and formed the view that the documents were not exempt, s 39(10) imposed a distinct and independent statutory obligation him to consult with the interested person(s) or institutions.
4. On the face of the Ombudsman's determination, there was no consultation with the interested person(s) or institutions. There is no reference to ss 25 or 27 or clauses 5 or 7 in his decision.
5. The agency contends that the Ombudsman's failure to consult interested parties in respect of documents 3, 6, 7, 9, 12, and 19 constituted an error of law, in the broader sense contemplated by Department of Treasury and Finance v Mullighan.[25]

1. The respondent contended that question 3 is more accurately identified as a complaint that a factual finding necessary for the reaching of a legal conclusion has not been disclosed in the determination. Mr McDonald SC contended that it was not possible to ascertain whether there has been an error of process by the Ombudsman. Mr McDonald SC submitted that it is not evident from the determination why the Ombudsman made no mention of consultation with third parties, but that it was consistent with the Ombudsman finding that the documents did not engage the consultation obligation.
2. In those circumstances, the respondent submitted that permission should not be granted to the agency to proceed with the review. If it is granted, then it would be necessary for the Tribunal to substitute its own factual finding in order to reach a conclusion as contemplated by the FOI Act. Approached in that way, the respondent submitted that the question was not properly characterised as a question of law. The obligation contained in s 39(10) is unambiguous and the uncertainty attaches only to the reasoning undertaken by the Ombudsman. It was submitted that this takes the complaint outside the range of those which the Tribunal should determine on an agency review and that leave should be refused.
3. To highlight the problem with an alternative approach, Mr McDonald SC observed that if the Tribunal were to embark on the task of ascertaining whether the documents enlivened the operation of s 39(10), it would be necessary to undertake that task on the basis of whether the circumstances enlivened the obligation both at the time that the Ombudsman was required to undertake the consultation, but also whether such an obligation is now enlivened. This is because, it was submitted, the commercial value of any such information may have since diminished to zero because the location of the barracks has now been settled.

1. The issues required to be considered are:
   • When does s 39(10) require the Ombudsman to consult?
   • Was there an error?
   • In light of the answers to the above, is this a matter in relation to which leave should be granted?

When does s 39(10) require the Ombudsman to consult?

1. In Department of Treasury and Finance v Mullighan,[26] the Tribunal observed that an allegation of a failure to afford procedural fairness did not constitute a question of law.[27] However, as to what is entailed in a particular statutory decision-making process is a question that the Tribunal may properly entertain.
2. Section 39(10) mandates consultation on a finding that the document in question is one to which Division 2 of Part 3 applies. There is no other qualification to its application, and in particular there is no qualification that the agency or an interested person must have asserted or established that Division 2 of Part 3 applies.
3. That the Ombudsman must undertake the consultation upon finding that the documents are ones to which Division 2 of Part 3 applies is consistent with the construction of the Ombudsman's function under s 39 as one that establishes a power, if not a duty, to determine whether the requested documents are exempt, irrespective of the submissions of the parties. Notwithstanding the obiter statements of Hinton J in Anangu Pitjantjatjara Yankunytjatjara v Ombudsman & Anor,[28] it is the Tribunal's view that such an approach can co-exist with s 48 which imposes upon the agency the burden of justifying a determination "in any proceedings". Whilst it is likely a matter best explored on another occasion when its consequence is more central to the outcome, and may require determination by a court, it is the Tribunal's view that an Ombudsman's external review is not "proceedings" for the purposes of s 48.[29]
4. The Tribunal has also been asked to determine whether, on a proper construction of s 39 of the FOI Act, the Ombudsman had an obligation to consult various persons before reversing the agency's determination, the effect of which was that the documents were determined not to be exempt.
5. The third question is answered as follows:

Question 3: Whether, on a proper construction of section 39 of the Freedom of Information Act 1991, the Ombudsman erred in failing to consult interested parties in respect of Documents 3, 6, 7, 9, 12 and 19 as documents to which Division 2 of Part 3 applies, in circumstances where there has been no prior consultation and the Ombudsman determined to give access to those documents?

Answer: Yes, if the documents contained information that enlivened the obligation.

1. An error cannot be discerned without considering the documents. Unlike the analysis undertaken in relation to question 2, the Ombudsman's reasoning is not evidenced in the determination. There may or may not have been an error.
2. The determination contains no finding that the document is or is not one that enlivens the obligation for consultation. It is not possible to infer, from the determination, why this was the case. It is consistent with a consideration and rejection of the need to consult, either on factual or legal grounds (the latter of which would be erroneous), or an oversight.
3. The only way in which the Tribunal can determine the issue is to consider the documents. In the circumstances, it is appropriate to do so, because that exercise may disclose an error or alternatively, may disclose that the Ombudsman's determination is consistent with a finding that the documents did not enliven the obligation to consult.
4. In undertaking the exercise, the Tribunal has borne in mind that the respondent did not contend that information disclosing that a particular person or governmental body was the owner of land that was the subject of consideration for relocation of the barracks was, at a particular point in time, information of commercial value to that person or information that might be the basis of a finding that it could reasonably be expected to cause damage to intergovernmental relations, respectively.

Application of the answer to question 3 to the documents

1. Documents 3, 6, 7, 9, 12 and 19 are affected by this question.
2. Document 3 is a briefing to the Commissioner of Police referring to an attached Cabinet Note updating Cabinet as to SAPOL's progress in the relocation project. The agency submits that document 3 enlivened the Ombudsman's obligation to consult.
3. It is apparent from an examination of the document that only one paragraph of the 16 paragraph document enlivens the obligation. However, that paragraph meets squarely the agency's descriptor of information that identifies the owner of a site under consideration for relocation of the barracks. The site is privately owned and s 27 and clause 7 were, at the time the document was written, engaged.
4. Document 6 is a briefing addressed to the Commissioner of Police and Minister for Police, Emergency Services and Correctional Services regarding the implementation of the relocation project. It contains multiple references to potential sites that are not owned by Government. The sites are both privately owned and owned by a council. Sections 25 and 27 and clauses 5 and 7 were, at the time of the preparation of the document, engaged.
5. Document 7 is described as a briefing addressed to the Commissioner of Police and Minister for Police, Emergency Services and Correctional Services regarding the implementation of the relocation project. It contains multiple references to potential sites that are not owned by the State Government. The sites are both privately owned and owned by a council. Sections 25 and 27 and clauses 5 and 7 were, at the time of the preparation of the document, engaged.
6. Document 9 is a Commissioner's briefing paper that contains multiple references to a proposed site for the relocation of the barracks. That site is a privately owned site and s 27 and clause 7 were, at the time the document was created, engaged.
7. Document 12 is a document of multiple pages. Approximately half the pages contain references to a proposed site or sites for the relocation of the barracks. Sections 25 and 27 and clauses 5 and 7 were, at the time of the preparation of the document, engaged.
8. Document 19 is a minute from the Commissioner of Police to the Minister for Police, Emergency Services and Correctional Services. It identifies two potential commercial arrangements with private owners. The sites are privately owned and s 27 and clause 7 were, at the time the document was written, engaged.
9. The Tribunal considers that documents 3, 6, 7, 9, 12 and 19 enlivened an obligation to consult, subject to whether the information was at the time of the decision commercially valuable and continues to have that value.
10. No evidence was provided as to when the decision was made as to the relocation and whether that diminished the value of the information in the documents. In order to determine the question, evidence would be required. The agency foreshadowed a wish to file evidence if the answers to the questions had the effect that the documents were potentially exempt.

1. In light of the above analysis, the question of whether it is appropriate to grant leave in respect of question 3 can be revisited.
2. It is not entirely clear whether an error of law occurred. It would appear, however, that an error in the construction of s 39(10) occurred and it led to the Ombudsman deciding that no consultation was required when in fact it was.
3. It is likely that the effluxion of time has affected whether the documents sought are now exempt. The matters which engaged the need for consultation are now dated and subsequent events may have rendered them less significant to those whose rights are sought to be protected by the need to consult.
4. Because of the likely error, I will hear the parties further in relation to whether leave should be granted to the agency to proceed in relation to question 3 including the steps that would be required to dispose of the matter if leave were granted.

Question 2: Whether, on a proper construction of clause 1(1)(f) of Schedule 1 to the Freedom of Information Act 1991, the notion of "use" of a document is limited to active use and excludes an update or briefing to inform the Minister in relation to a matter submitted, or proposed to be submitted, to Cabinet.

Answer: Clause 1(1)(f) of Schedule 1 does not evince an intention to confine the word "use" with the qualifier "active" and is capable of being met by a document that was specifically prepared to update a Minister or inform a Minister in relation to a matter submitted, or proposed to be submitted, to Cabinet.

Question 3: Whether, on a proper construction of section 39 of the Freedom of Information Act 1991, the Ombudsman erred in failing to consult interested parties in respect of Documents 3, 6, 7, 9, 12 and 19 as documents to which Division 2 of Part 3 applies, in circumstances where there has been no prior consultation and the Ombudsman determined to give access to those documents?

Answer: Yes, if the documents contained information that enlivened the obligation. Documents 3, 6, 7, 9, 12 and 19 enlivened an obligation to consult, subject to whether the information was at the time of the decision commercially valuable and continues to have that value.

1. The matter is adjourned to a further directions hearing on a date to be fixed.

[1] Section 35 Documents Vol 2, p 15.

[2] Section 35 Documents Vol 2, p 15.

[3] Section 35 Documents Vol 2, p 16.

[4] Documents 16 and 17 were initially included in this question of law, however the agency advised the Tribunal at the hearing that it no longer pressed consideration of these as parts of the documents were determined to be exempt on different grounds.

1. [6] Mr Patrick requested to file his own book of documents on the basis that his submissions refer to some documents which are not the subject of the review, and that he considers that the initial determinations from the agency bear some relevance to one of the questions of law.

[7] Ombudsman's Final Determination, para [52].

[8] Amended Grounds of Review dated 9 August 2023, p 2.

[9] Ombudsman's Final Determination, para [51].

[10] Ombudsman's Final Determination, para [52].

[11] Respondent's written submissions at [26].

[13] JJK v Police [2023] SASCA 73, per Lovell, Doyle and David JJA at [85].

[14] These documents were 3, 4, 5, 6, 7, 8, 9 and 11.

[15] (1997) 187 CLR 384; [1997] HCA 2.

[17] (2010) 241 CLR 252; [2010] HCA 23, at [33]-[34].

[19] (2017) 262 CLR 362; [2017] HCA 34.

[21] Section 35 Documents Vol 1, pp 117, 118, 125.

[22] Department of the Premier and Cabinet v van Holst Pellekaan [2018] SACAT 56 at [64].

[23] Section 35 Documents Vol 1, pp 117, 118, 125.

[25] [2021] SACAT 28.

[26] [2021] SACAT 28.

[28] [2019] SASC 162.

[29] In Anangu Pitjantjatjara Yankunytjatjara v Ombudsman & Anor [2019] SASC 162, Hinton J does not provide an analysis for the conclusion that the Ombudsman's review constitutes "proceedings". There are textual indicators in both directions. On the one hand, s 48 is not confined to the Division setting out the review by the Tribunal. On the other, the Ombudsman's review has few characteristics of a proceeding, and nothing in the text of s 39 discloses an intent that the external review is to be understood as a proceeding. Every reference to the review is as such, and as a process, without any reference to proceedings, in contrast with s 40 which refers to proceedings throughout.