Vogel v Secretary, Department of Education [2024] NSWCATAD 142 | Case summary

Vogel v Secretary, Department of Education [2024] NSWCATAD 142 | Case summary | Zoe

[3]

Background

The Applicant made an application for certain information concerning the policies of the First Respondent applying to schools, addressing the COVID-19 Pandemic. That application was made under the provisions of the GIPA Act on 21 April 2022 (the Access Application). A decision, made under s 60(1) of the GIPA Act by the First Respondent on 16 September 2022, was to refuse to deal with the application. That refusal was based on the ground that it would require an unreasonable and substantial diversion of the agency's resources.
The Applicant applied for administrative review of the decision made on 16 September 2022. The Tribunal, by decision dated 3 August 2023 (Vogel v Department of Education [2023] NSWCATAD 208), determined that the Applicant's access application did not require an unreasonable and substantial diversion of the First Respondent's resources within the meaning of s 60(1) of the GIPA Act. The decision under review was remitted to the First Respondent under s 65 of the ADR Act for reconsideration in accordance with the Tribunal's reasons given on 3 August 2023.
The Respondent made its Decision dated 1 November 2023 to provide the Applicant with access, in part, to the information sought. It decided, however, not to disclose certain information the Decision identified as "Cabinet information". The First Respondent initially determined that there was a conclusive presumption of overriding public interest against disclosure in respect of six documents, on the basis that they contained Cabinet information. Subsequently, the First Respondent withdrew its claim that one of the documents was Cabinet information and indicated that it would release this document to the Applicant. One of the remaining documents was a duplicate of another document. This left four documents in dispute.
That Decision described the relevant information that was withheld in four categories, identified as parts, 11, 14, 17 and 18 of the Applicant's access application. These categories are as follows.
The first category, referred to as part 11, was certain advice provided by "Dr Chant and her team" to the First Respondent, referred to by Minister Sarah Mitchell on 22 March 2022 at a budget estimates hearing. The second category, referred to as part 14, included correspondence, meeting minutes or other documents relating to the approach to using rapid antigen tests for students at schools, to test for COVID-19. The third category, referred to as part 17, related to information concerning polices for ventilation and other measures addressing "COVID-safe return to school planning". The fourth category of information, referred to as part 18, relates to the required number of weekly rapid tests for students.
The Decision the subject of these proceedings, stated as follows: "The information in question was prepared by the department. Various options were reported on over time and the information relevant to your application contains extracts, drafts and proposals prepared for submission to Cabinet……… It is my understanding that there has been no public disclosure of the information and the information was not attached to records submitted to Cabinet. Although some of the information is factual, to release it would still disclose details of a Cabinet decision."
The "acting Director, Crisis Response and Recovery of the Health, Safety and Staff Wellbeing Directorate at the NSW Department of Education", Ms Trish Van Tussenbroek (Director) gave evidence on behalf of the First Respondent. The Director's evidence is set out an affidavit sworn on 4 April 2024. That affidavit was part of the evidence before the Tribunal (Director's Affidavit). Her evidence was that at the relevant time when the information in dispute was created, she was the "acting Director, Covid Response in the Covid-19 Taskforce at the NSW Department of Education" (Director's Affidavit, paragraph 3).
A copy of a redacted version of the Director's Affidavit was served on the Applicant (Redacted Director's Affidavit). The Applicant did not have the unredacted version or a copy of the unredacted version.
The Premier became joined as a party to these proceedings on 21 February 2024, following an application under section 106(5) of the GIPA Act.

[5]

Director's evidence

In the Director's Affidavit, the Director describes measures within government for ensuring and maintaining confidentiality of cabinet information (paragraphs 20-23 of the Director's Affidavit). The measures reflected practices set out in the "The Cabinet Practice Manual", a copy of which was annexed to the Director's Affidavit. These measures include use of the "e-cabinet system" (paragraph 22 of the Director's Affidavit). E-cabinet is described as a secure document management system that supports the work of Cabinet. It enables secure access to documents prepared as part of the cabinet process, for example as part of the consultation process, for submission and consideration of matters by the Cabinet. Documents will be uploaded to the e-cabinet system. Once a document has been uploaded, it should not be held or retained elsewhere (paragraph 22 of the Director's Affidavit). Access to e-cabinet is limited to certain authorised executives and their officers (paragraph 23 of the Director's Affidavit).
The Director's evidence also describes various policies and steps taken by the First Respondent to address the Covid-19 Pandemic. The then Premier of New South Wales announced the establishment of the "COVID and Economic Recovery Committee" in October 2021 (CERC). CERC was a subcommittee of Cabinet (paragraph 25 of the Director's Affidavit). CERC existed alongside the Strategy Committee (StratCo), another subcommittee of Cabinet, also dealing with the COVID-19 Pandemic (paragraphs 25 and 26 of the Director's Affidavit).
The Director was responsible for preparing potential strategies and responses to brief the Minister with advice and recommendations, to enable the Minster to take the First Respondent's advice and recommendations for discussion in CERC and StratCo (paragraph 27 of the Director's Affidavit). The Director and her team provided information to the COVID-19 taskforce policy team which prepared briefings and documents for consideration by the Secretary and the Minister, to "inform the position that the Minister took on various matters in the CERC and StratCo". These documents were not documents of a kind that were uploaded to e-cabinet (paragraph 28 of the Director's Affidavit). The Director says that the practices employed at the time differed in some respects from the usual practices in bringing a matter to Cabinet. The speed with which changes to conditions arose which required a response, meant that there was a rapid turnaround required with respect to decisions impacting schools. The time frames for material being prepared for Cabinet's consideration was accordingly much shorter than would usually be the case (paragraph 28 of the Director's Affidavit).
The Director's evidence was that notwithstanding the shorter timeframes involved, it was her experience that the conventions regarding confidentiality of cabinet deliberations continued to be maintained, and measures to ensure and preserve the confidentiality of cabinet information continued to be observed (paragraph 30 of the Director's Affidavit).
The evidence of the Director describes the four numbered parts referred to at [10] above. She re-numbers the information in question as Documents 1,2,4 and 5. She also refers to an item identified as "Document 3" (paragraph 44 of the Director's Affidavit), whose status under s 14 of the GIPA Act was no longer in dispute. I will use the Director's numbering from this point onwards to refer to the documents in dispute.
Document 1 consists of an email chain from 17 January 2022 to 18 January 2022 between the First Respondent's employees and an attachment being a PowerPoint slide pack. The email chain sets out an agenda of tasks to be actioned, including material to be provided to the Minister by way of briefing. The Director's understanding was that these briefings took place at least, in part, for the purposes of the Minister formulating a position to take to CERC. The PowerPoint slide pack sets down a proposed response to certain matters relating to the COVID-19 Pandemic. It was registered in the e-cabinet secure document system and given an e-cabinet ID and marked "Cabinet in Confidence" (paragraphs 33 to 35 of the Director's Affidavit).
Document 2 consists of an email chain between the First Respondent's employees from 16 January 2022 to 17 January 2022 and two attachments, both of which are PowerPoint slide packs. The email chain was marked "CABINET IN CONFIDENCE" (paragraphs 36 to 37 of the Director's Affidavit).
The emails attach the first PowerPoint slide pack with a file name including the words "Cabinet in Confidence". The slides contain a header "Official Sensitive NSW Cabinet in Confidence". This document was provided to the Minister by way of a briefing ahead of a meeting of the StratCo.
[NOT TO BE PUBLISHED]
[NOT TO BE PUBLISHED]
The second PowerPoint slide pack identified with Document 2 refers to certain matters of policy which it says had been agreed with the Minister and referred to certain task force actions that had been, and were to be completed, including the briefing of the Minister and the Cabinet about particular matters. The slides outlined the internal steps taken to arrive at a position for the Minister, and set up the associated risks and issues, and the process for deliberations with government (paragraphs 42-43 of the Director's Affidavit).
The First Respondent no longer maintains its claim that Document 3 referred to in the Director's Affidavit is cabinet information and indicates that it will release this record to the Applicant (paragraph 44 of the Director's Affidavit). That document was tendered during the proceedings (marked Exhibit A) and is titled "Australian Health Protection Principal Committee (AHPP) advice in relation to the tasking from the National Cabinet to the First Secretaries Group on schools reopening in terms 1 2022".
Document 4 is a briefing for the Minister.
[NOT TO BE PUBLISHED]
Document 4 was given for the purpose of the Minister formulating a position to take to CERC. This document contains a header "CABINET IN CONFIDENCE" (paragraph 45 of the Director's Affidavit).
[NOT TO BE PUBLISHED]
Document 5 is a slide pack by way of briefing for the Minister (paragraph 49 of the Director's Affidavit).
[NOT TO BE PUBLISHED]
Document 5 contains a marking "CABINET-IN-CONFIDNCE: NSW GOVERNMENT". Document 5 is the attachment to Document 4 (paragraph 50 of the Director's Affidavit).
The Director expressed the belief that the PowerPoint slide pack identified with Document 1 was a document prepared for the dominant purpose of its being submitted to Cabinet for Cabinet's consideration (paragraph 35 of the Director's Affidavit).
The Director expressed the belief that the PowerPoint slide packs identified with Document 2, 4 and 5 were documents prepared before Cabinet's deliberation on a matter that revealed or tended to reveal either the position that the Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet (paragraphs 41, 43, 48 and 51 of the Director's Affidavit). In the case of Document 4, the Director also expressed the belief that it contained extracts from a document prepared for the dominant purpose of its being submitted to cabinet for Cabinet's consideration (paragraph 48 of the Director's Affidavit).
I accept the evidence of the Director set out in paras [21] to [39] above as to the factual matters she sets out. The fact that the Director herself did not prepare the Documents does not prevent me from accepting her evidence. I am satisfied that she was in a position to know the factual circumstances surrounding the preparation of documents and their intended purpose, based on the evidence of her role at the time the information in dispute was created, as set out at [23] above. Evidence of purpose need not be provided by the actual author of documents in question, provided that the evidence is given by someone in a position to have knowledge of the purpose of the preparation of relevant documents (Searle v Transport for NSW [2017] NSWCATAD 256, at [54]). My findings as regards the matters set out in [39] to [41] above are set out above as [97] to [99] below.

[6]

Law

The GIPA Act gives members of the public an enforceable right to access government information, subject to the provisions of that Act. That right is given for the stated object of maintaining and advancing "a system of responsible and representative democratic Government that is open, accountable, fair and effective" (s 3(1)(b) of the GIPA Act).
A person who makes an access application for government information has a "legally enforceable right to be provided with access to the information" (s 9(1) of the GIPA Act). Access applications are to be dealt with in accordance with Part 4 of the GIPA Act.
There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5 of the GIPA Act). There is a general public interest in favour of the disclosure of government Information (s 12(1) of the GIPA Act). However, the right to access will not be available where "there is an overriding public interest against disclosure of the information" (s 9 of the GIPA Act).
There is an overriding public interest against disclosure of government information for the purposes of the GIPA 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 (s 13 of the GIPA Act). However, 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 of the GIPA Act (s 14(1) of the GIPA Act).
Clause 2 of Schedule 1 of the GIPA Act deals with Cabinet information, which provides as follows: "(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 is contained in a document that, either entirely or in part, 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.
Cabinet confidentiality is accepted as being necessary because the mere threat of disclosure of Cabinet information may impede free deliberation within Cabinet. The purpose Cabinet confidentiality has been described as follows: "[it] has never been doubted that it is in the public interest that the deliberations of Cabinet should remain confidential in order that the members of Cabinet may exchange differing views and at the same time maintain the principle of collective responsibility for any decision which may be made. Although Cabinet deliberations are sometimes disclosed in political memoirs and in unofficial reports on Cabinet meetings, the view has generally been taken that collective responsibility could not survive in practical terms if Cabinet deliberations were not kept confidential. Despite the pressures which modern society places upon the principle of collective responsibility, it remains an important element in our system of government. Moreover, the disclosure of the deliberations of the body responsible for the creation of state policy at the highest level, whether under the Westminster system or otherwise, is liable to subject the members of that body to criticism of a premature, ill-informed or misdirected nature and to divert the process from its proper course. The mere threat of disclosure is likely to be sufficient to impede those deliberations by muting a free and vigorous exchange of views or by encouraging lengthy discourse engaged in with an eye to subsequent public scrutiny. (citations omitted)

[7]

It is not so much a matter of encouraging candour or frankness as of ensuring that decision-making and policy development by Cabinet is uninhibited. The latter may involve the exploration of more than one controversial path even though only one may, despite differing views, prove to be sufficiently acceptable in the end to lead to a decision which all members must then accept and support" (Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604 at 615-616, quoted in Transport for NSW & Ors v Robinson [2018] NSWCATAP 123, at [22]).

In Transport for NSW & Ors v Robinson [2018] NSWCATAP 123, the Appeals Panel of the Tribunal said, at [23]: "It is clear that the exemption in the Act acknowledges the central position of Cabinet in government and gives effect to the need to ensure that decision-making and policy development by Cabinet is uninhibited. For that reason, a particular Minister's view whether actually expressed, or planned to be expressed, or recommended on his or her behalf to be expressed, are all protected".
Clause 2 of Schedule 1 of the GIPA Act comes into operation where information of the kinds it applies to, is contained in a document. When such information is contained in a document, it is to be conclusively presumed that there is an overriding public interest against disclosure of information. It is the information that is not be disclosed, once found in a document described in clause 2(1)(a) to (f) of Schedule 1.
Clause 2(1)(b) brings within clause 2 of Schedule 1 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). The words "dominant purpose" in clause 2(1)(b) have been found to have the same meaning as in ss 118 and 119 of the Evidence Act 1995 (NSW). 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]; D'Adam v New South Wales Treasury [2014] NSWCATAD 68, [51], Searle at [35]. The following requirements must be satisfied in order for clause 2(1)(b) to apply. There must be "information". That information must be contained in a document. The documents must be prepared for the dominant purpose of being submitted to Cabinet for Cabinet's consideration (D'Adam, at [49]-[51]).
Evidence of subjective purpose in preparing documents should not be relevant to determination of purpose. In considering the purpose of certain expert reports, Lucy SM has said that such subjective purpose "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" (Searle, at [47]).
The operation of clause 2(1)(e) of Schedule 1 of the GIPA Act has been described as follows in Transport for NSW & Ors v Robinson [2018] NSWCATAP 123 (24 May 2018), at [19]-[21]. "A plain reading of the provision makes clear that it involves the following steps. (1) there must be a document prepared either before or after Cabinet's deliberation or decision on a matter; (2) it must reveal or tend to reveal a defined position; and (3) the defined position is one that a particular Minister has taken, is taking, or will take, is considering taking, or has been recommended to take on the matter in Cabinet. If the clause is to be limited to information that was actually deliberated upon or went to Cabinet, it will leave no work to do for, or make redundant, the words "will take", "is considering taking", and "has been recommended to take". Consider the example of information prepared for Cabinet under one Government which, because of a change of Government, is never actually considered by Cabinet but was nevertheless actually prepared for the purpose of a Cabinet submission and otherwise fell within the words of the section. Such information would not be protected, whereas it clearly falls within the words of the section. Next, the exemption might depend upon the point in time when the application was determined, which is an approach that gains no support from the section. Thus, if an application under the Act was determined at a time when the information was still intended to go before Cabinet it would be protected. But if on the example postulated the Government had changed and the new Government was not considering the particular topic it would not. That cannot be correct. Rather, the clause is plainly intended to cover material prepared in advance of a potential Cabinet meeting".
What is a "document" for the purposes of clause 2 of Schedule 1 is not defined under the GIPA Act. The Interpretation Act 1987 (NSW) contains the following definition of "document": "document means any record of information, and includes - (a) anything on which there is writing, or (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or (d) a map, plan, drawing or photograph".
In considering whether the information in question is Cabinet information, the Tribunal is limited, to deciding whether there are "reasonable grounds" for the agency's claim that the information is Cabinet information (s 106 GIPA Act). The words "reasonable grounds" are to be given their ordinary meaning and it will usually not be helpful to paraphrase the term (McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423). 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; Lock the Gate Alliance v Department of Planning and Environment & Department of Premier and Cabinet [2019] NSWCATAD 6, at [26]).
The operation of s 106 was considered in D'Adam. Walker SM said at [45] and [46]: "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. 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".
The decision of Walker SM was upheld on appeal ([2015] NSWCATAP 61) and the reasoning followed in Bennison v NSW Department of Premier and Cabinet [2016] NSWCATAD 101, at [9], [18]-[19] and Ku-ring-gai Council v NSW Department of Premier and Cabinet [2016] NSWCATAD 181, at [11].
In determining whether there are reasonable grounds for the Respondents' claim that the undisclosed information is Cabinet information, the Tribunal is not limited to consideration of the original reasons for the decision, or to the material alone which the decision maker relied (Searle, at [32]; Primrose v NSW Department of Premier and Cabinet [2017] NSWCATAD 366, at [54]).
If a document contains government information that is Cabinet information and government information that is not, the document cannot be redacted so that access is given to the information that is not Cabinet information. If a document meets the description of any of the paragraphs (a) to (f) of clause 2(1), all the information in the document is subject to an overriding public interest against disclosure (Robinson v Transport for NSW; Robinson v Roads and Maritime Services [2017] NSWCATAD 353; Lock the Gate Alliance; Australian Education Union, NSW Teachers Federation Branch v New South Wales Department of Education [2022] NSWCATAD 97, at [50]).
In a relevant review concerning a decision made under the GIPA Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by section 105 (s 105(1)). It must do so on the balance of probabilities (D'Adam at [47], Bennison at [19]). If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review (s 105(2)).
The Tribunal is not bound by the rules of evidence. It may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice (s 38(2) of Civil and Administrative Tribunal Act 2013 (NSW)).

[9]

Documents

The documents described in the evidence included documents identified as PowerPoint slide packs, briefs and certain emails. To the extent that such documents were uploaded onto e-cabinet, the procedures described in the evidence of the Director at [21] above indicate that they may have been held in electronic form. Whether they were held in electronic form or paper copy form, that the records the subject of these proceedings were "documents" was not disputed. No was it disputed that the information they held was "government information".
Where there was a difference between the parties was on the question of whether PowerPoint slide decks and briefs included in the Documents comprised a single document or multiple documents. If a single document, that document taken in its entirety would need to be tested as such, under clause 2 of Schedule 1 of the GIPA Act. If on the other hand, the relevant PowerPoint slide decks or briefs each comprised multiple documents, each such document would need to be evaluated against the criteria set out in clause 2.
The Respondents submitted that the PowerPoint slide packs answered the description of a "document". As a result, each PowerPoint slide pack needed to be dealt with in its entirety under clause 2 of Schedule 1 of the GIPA Act. In other words what comprised of a document in the requisite sense was the entirety rather than particular parts of what the Respondents stated was a document. The Respondents relied, among other things, on the wide definition of "document" in the Interpretation Act 1987 (NSW).
The Applicant's submission is that it is wrong to consider a PowerPoint slide pack as necessarily comprising a single document. A pack of slides is, in the Applicant's view, typically a collection of many documents. He compared a pack of slides to a Lever Arch folder containing numerous documents. The Applicant argued that it was likely that each such slide pack would include, for example, information provided to the Department of Education by the Department of Health plus, possibly, a conclusion or recommendation as to the policy the Department of Education proposed that the Minister ratify. In such a case, the Applicant argues that advice from Health "merely informs another document which is considered cabinet information". His claim was that each slide should be "considered individually and access should be refused to only those meeting the definition of Cabinet information" (paragraph of 14 of the Applicant's Submissions).
The Applicant also submitted that it would defeat the purpose of the GIPA Act if a government authority could simply put all the documents concerning a topic into a box, also containing a summary of them, all of which was prepared predominantly for cabinet and claim exemption for all the documents (paragraph of 14 of the Applicant's Submissions).

[10]

Clause 2 of Schedule 1 criteria

The Respondents argued that the exceptions set out in cause 2(1)(b) of Schedule 1 applied to documents uploaded to e-cabinet and it "could be inferred were discussed in cabinet" (paragraph 9 of the Respondent's Submissions).
The Respondents further argued that other withheld documents were prepared before Cabinet's deliberation or decision and reveal or tend to reveal the position that the Minister has taken, is taking, will take, is considering taking, or has been recommended to take on the matter in Cabinet. That exception as set out in clause 2(1)(e), as argued by the Respondents, applied to those documents (paragraph 9 of the Respondent's Submissions).
The Respondent made specific arguments in respect of the each of the Documents as follows.
The Respondents argued that there are reasonable grounds for concluding that the PowerPoint slide pack identified with Document 1 was a document prepared for the dominant purpose of submission to Cabinet and thus falls within the scope of clause 2(1)(b) of Schedule 1 (paragraph 43 of the Respondent's Submissions). The Respondent relies on the evidence that the pack was marked as confidential, the pack was registered in the e-cabinet secure document system and given an e-cabinet ID. The pack was provided to Cabinet and the text of the covering email confirmed that the pack was prepared for the purpose of submission to Cabinet (paragraph 43 of the Respondent's Submissions). The text of the covering email was not in evidence.
The Respondents argued that Document 1 and the remaining documents in dispute fell within clause 2(1)(e) of Schedule 1. The argument was that it was reasonable to conclude that Document 1, firstly, was prepared for Cabinet's deliberation or otherwise on a matter that reveals or tends to reveal the position that that the Minister has taken, is taking, will take, is considering taking or has been recommended to take, on the matter to Cabinet (paragraph 43 of the Respondent's Submissions).
Document 2 contained a cover email which attached presentations that were used to brief the Minister on matters in advance of those matters being taken to Cabinet. The email chain itself is expressly marked "Cabinet in Confidence" and referred to a specific matter debated in Cabinet. Each page of the first slide pack attached contained a header with the words "OFFICIAL: Sensitive - NSW Cabinet in Confidence". It was provided to the Minister to brief her in preparation for attending a StratCo meeting. The other slide pack referred to the Minister's position in respect of various policy matters and various actions that had been and were to be completed including briefing the Minister and Cabinet (paragraph 45 of the Respondent's Submissions).
Documents 4 and 5 were documents used to brief the Minister on matters subsequently deliberated on by CERC. Document 6 was a duplicate of Document 4. Documents 4 and 6 contained markings "CABINET-IN-CONFIDENCE". Document 5 was an attachment to Document 4 and 6, containing a marking CABINET-IN-CONFIDENCE: NSW GOVERNMENT". These three documents informed the position taken by the Minster to Cabinet (paragraph 45 of the Respondent's Submissions).
There would therefore be reasonable grounds, in the view of the Respondents, to conclude that the documents referred at [72] to [74] above were prepared before Cabinet's deliberation or decision on a matter that reveals or tends to reveal the position the Minister has taken, is taking, will take, is considering taking or has had recommended to take on the matter in Cabinet.
The Applicant accepts that some documents within the scope of his request fall within Schedule 1 clause 2 of the GIPA Act. However, the Applicant states that "it is not possible that the Department has no documents responsive to the request which were not prepared for the dominant purpose of submission to Cabinet or reveal the position of a minister" (paragraph 7 of the Applicant's Submissions).
The Applicant further submits that the documents to which the Applicant sought access are not limited to those used to brief the Minister. They "include advice provided to the Department from the Department of Health and others as well as internal discussion of COVID-19 policy formulation" (paragraph 9 of the Applicant's Submissions). The Applicant states that because there were no other documents within the scope of parts 11, 14, 17 and 18 of his access application or released or refused on some other ground, "these documents refused as being cabinet information are likely to include the advice received by the Department from Kerry Chant and other sources, as well as the recommendations as to the position the minister should adopt. That is, the refused documents must erroneously include those prepared for the dominant purpose of informing the Department of Education, based on which the Department then produced other documents for the dominant purpose of submission to Cabinet" (paragraph 11 of the Applicant's Submissions).
The Applicant asserts that the First Respondent "is clearly bundling all the relevant documents together and claiming that they are all "Cabinet". This is the wrong approach. It is not sufficient to attract the definition of Cabinet information that a document merely informs another document which is considered Cabinet information" (paragraph 13 of the Applicant's Submissions).
Furthermore, the Applicant argues that under clause 2(4) of Schedule 1, information is not Cabinet information to the extent that it consists solely of factual material. It is almost certain, in the Applicant's view, that any material put to cabinet would contain "factual documents such as Health Department advice) which would not qualify as Cabinet information" (paragraph 16 of the Applicant's Submissions).
The Applicant also argues that marking a document "Cabinet in Confidence" has no bearing on whether the test and the factors are met and should be given no weight. The Applicant also argues that merely registering relevant documents in the cabinet secure document system and giving it an e-cabinet ID says nothing about whether the document falls within clause 2 (paragraph 17 of the Applicant's Submissions).
The Applicant makes certain arguments in respect PowerPoint slide packs. He argues that a PowerPoint slide pack is likely to contain slides which do not "individually reveal" a Minister's position or may be purely information. Relevantly, he argues that each slide may need to be considered on its merits (paragraph 17 of the Applicant's Submissions)

[12]

What is a "document"?

The initial question for consideration is what comprises a "document" within the meaning paragraphs (b) and (e) of clause 2(1). The particular question is whether the Documents were single documents falling in their entirety within clause 2 or comprised of more than one document, each of which separately required to be subjected to the tests required under clause 2. The question arises in the context of the PowerPoint slides and briefs referred to above.
The Interpretation Act 1987 (NSW) defines a "document" in wide terms to include "anything on which there is writing". The reach of such a definition is, in my opinion, sufficiently wide to include an email chain, a PowerPoint slide pack, a brief or where put together, a combination of these things, where containing writing. However, the question at hand is not whether items of these kinds in generic terms can be "documents". The question is whether the specific material before the Tribunal falls within the definition of "document".
In technical terms, a Powerpoint presentation takes the form of a single electronic object or if printed in hard copy, generally as a single document held together in some form, whether by means of stapling of otherwise. These matters of themselves, however, are not determinative of the question. I accept the Applicant's argument that a PowerPoint slide pack or other type of electronic item could, in particular cases, comprise multiple documents. Whether this is the case or not, must turn on the particular facts.
What therefore requires determination is whether each of the PowerPoint slide packs and briefs in question, taken as a single item, answers the description set out in one or more of the paragraphs of clause 2 of Schedule 1. In other words, did the particular item as a whole, amount to a "document" within clause 2 of Schedule 1?
The evidence is that each Document covered a particular named subject matter. The PowerPoint slide deck identified with Document 1, dealt with "a proposed response" to certain matters relating to the COVID-19 pandemic.
Document 2 contained a PowerPoint slide deck also dealing with a named subject.
[NOT TO BE PUBLISHED]
Document 2 also contained a second PowerPoint slide pack, dealing with another subject matter, namely "internal steps taken to arrive at the position for the Minister to take to Cabinet, and sets out the associated risks and issues, and the process for deliberations with government".
[NOT TO BE PUBLSIHED]
[NOT TO BE PUBLISHED]
In each case, there was also a given purpose or function for the Document as a whole, as opposed to distinct purposes or functions for particular parts of each Document. The evidence is that Document 1 was created for the purposes of the Minister formulating a position to take to CERC. The function of Document 2 was, according to the evidence, provision to the Minister of a briefing ahead of a meeting of the StratCo on a named subject. Documents 4 and 5 were also briefings for the Minister on named subjects.
The above circumstances, in particular, the conclusions that each such document, on its face, dealt with a coherent subject matter, and the use of each as a whole for a given purpose or function, are sufficient grounds to allow me to find that each relevant PowerPoint slide pack and each brief included in the Documents assumed the character of a "document", rather than that of an agglomeration of multiple documents, even if each document may have contained material sourced from other documents.

[17]

Document 2

Document 2 consists of an email chain and two attached PowerPoint slide packs. The email chain is marked "Cabinet in Confidence". It attaches a PowerPoint slide pack with the file name of "CABINET-IN-CONFIDENCE". The slides themselves contain a header "OFFICIAL: Sensitive NSW Cabinet in Confidence". The evidence of the Director was that this document was provided to the Minister by way of a briefing ahead of a meeting of the Stratco, a subcommittee of cabinet.
[NOT TO BE PUBLISHED]
The combined weight of the above factors, leads me to the conclusion that, the first PowerPoint slide pack identified with Document 2 can be accepted as a document that reveals or tends to reveal the position a particular Minister has taken, was considering taking or had been recommended to take on a matter in Cabinet within the meaning of clause 2(1)(e). I attach particular weight to the evidence that it was provided to the Minister by way of a briefing ahead of a meeting of the Stratco. I also take account of the markings on the PowerPoint slide pack in reaching my conclusions.
The second PowerPoint slide pack refers to certain matters of policy which it said have been "agreed with the Minister" and certain task force actions including "briefing of the Minister and Cabinet" about particular matters. It outlines internal steps taken to arrive at the position for the Minister to take to Cabinet. These matters allow me to conclude that the second PowerPoint slide pack falls within clause 2.1(e) as a document that reveals or tends to reveal the position a particular Minister had been recommended to take within the meaning of the paragraph.
Document 2, if taken as a single document, in my opinion, having regard to the weight of the matters set out at [108] and [109] above, falls within clause 2(1)(e), having been provided to the Minster by way of a briefing ahead of a meeting of StratCo or dealing with matters agreed with the Minister. The email in question, if required to be treated as a separate document, also falls within 2(1)(e), in my opinion, taking into account its markings and the context of the two attachments to the emails as set out above at [108] and [109].
Dealings by Cabinet with Document 2 outside the e-cabinet system do not affect my conclusion. The weight of the evidence is otherwise sufficient to lead me to my conclusion that Document 2, whether taken as three documents or a single document 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.

[22]

Applicant's further submissions

The Applicant has made particular submissions on other matters which I will now address. He submits that the Documents must erroneously include documents prepared for the dominant purpose of informing the Department of Education, based on which the Department then produced other documents for the dominant purpose of submission to Cabinet. In the Applicant's submission, the First Defendant "is clearly bundling all the relevant documents together and claiming that they are all "Cabinet"". He refers, for example, to information provided to the Department of Education by the Department of Health. The Applicant states that, in his view, it is "impossible" that no such documents exist.
To the extent that the slide decks in question do contain information from various sources that are not Cabinet information, the obligation to redact such information for the provision to an Applicant, is not something provided for or otherwise within the scheme of the GIPA Act. If a document contains government information that is Cabinet information and government information that is not, the document cannot be redacted so that access is given to the information that is not Cabinet information ([59] above).
I do, however, accept the Applicant's argument that bundling documents together and making a claim that they are all "Cabinet" documents does not end the matter. When what was formerly a standalone document is included in and becomes part of Cabinet information, any such document that has had a separate existence from Cabinet information and remains in existence, may, continue to answer the description of a "document" in itself. It does not necessarily lose its character as such, when included in another document that is Cabinet information. The GIPA Act may apply, in accordance with its terms, to any document of this kind having an independent existence, whether before or after its inclusion in some other document that falls within clause 2.
To the extent that any advices given by Dr Kerry Chant, for example, that the Applicant sought, are documents that have an independent existence other than as Cabinet information before being included in whole or part in Cabinet information, rights of access under the GIPA Act may apply to those documents. In other words, if such documents exist and are not within the reach of clause 2 of Schedule 1, the Applicant rights of access in respect of such documents remain, subject to the provisions of the remainder of the GIPA Act. I note in this regard that orders were made in previous proceedings that determined that the Applicant's access application dated 21 April 2022 was not disallowed on the basis asserted by the First Respondent.

Vogel v Secretary, Department of Education

At a glance

Court

Decision date

Source

Judgment (25 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (16)