Cianfrano v Department of Premier and Cabinet
[2008] NSWADT 141
•16 May 2008
CITATION: Cianfrano v Department of Premier and Cabinet [2008] NSWADT 141 DIVISION: General Division PARTIES: APPLICANT
RESPONDENT
Robert Cianfrano
Department of Premier and CabinetFILE NUMBER: 073358 HEARING DATES: 28 April 2008 SUBMISSIONS CLOSED: 28 April 2008
DATE OF DECISION:
16 May 2008BEFORE: Handley R - Judicial Member CATCHWORDS: Access to documents - cabinet documents - Executive Council documents - legal professional privilege MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989
Interpretation Act 1987CASES CITED: BY v Director General, Attorney General’s Department [2002] NSWADT 79
Cianfrano v Director General of the Premier’s Department [2004] NSWADT 255
Cianfrano v Director General, Premier’s Department [2007] NSWADT 216
General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84
Howell v Macquarie University [2008] NSWCA 26
National Parks Association of NSW Inc v Department of Lands [2005] NSWADT 124
Saggers v Director General, Attorney General’s Department [2005] NSWADT 193
University of NSW v McGuirk (No 2) [2008] NSWADTAP 8
University of NSW v McGuirk [2006] NSWSC 1362REPRESENTATION: APPLICANT
RESPONDENT
C Saggers, agent
G Shirm, solicitorORDERS: The Tribunal varies the decision under review in respect of pages 1 and 2 of document (1), which must be released to the Applicant within 28 days after the date of this decision, but otherwise affirms the decision.
REASONS FOR DECISION
1 This matter involves an application by Robert Cianfrano for the review of a decision of the Director General of the Department of Premier and Cabinet (‘the Department’) dated 5 October 2007 made under the Freedom of Information Act 1989 (‘the FOI Act’) to refuse access to the whole or part of seven documents relating to Sydney markets on the ground that the documents are either wholly or partly ‘exempt’.
Background
2 On 27 August 2007, the Department received Mr Cianfrano’s application (dated 23 August 2007) for access to documents relating to the Governor’s approval of the sale of the Flemington markets site and the transfer of the lease of the Paddy’s market site to Sydney Markets Ltd. The Department conducted a search for the relevant documents. On 17 September 2007, the Deputy Director General of the Department identified seven relevant documents and determined to refuse access to six documents and allow partial access to one document on the ground that the documents were exempt or partially exempt from disclosure because they were Cabinet or Executive Council documents or protected by legal professional privilege. The seven documents are described by the Department as follows:
3 By letter dated 21 September 2007, Mr Cianfrano sought an internal review of this decision. On 5 October 2007, the Director General of the Department decided to confirm the original decision. He noted that “most of the documents requested” were of a kind previously considered by the Tribunal in Cianfrano v Director General of the Premier’s Department [2004] NSWADT 255 (‘ Cianfrano [2004]’) and were held to be exempt on the same grounds as those set out in the original decision. Having determined that there were “proper grounds for claiming the exemptions”, the Director General considered whether there were grounds justifying exercise of the residual discretion to release the documents. He decided that “[g]iven the central importance” of confidentiality to Cabinet and Executive Council processes, it was appropriate to claim the exemptions in this case.
Documents exempt in full
(1) Letter from the Crown Solicitor’s Office to the Premier’s Department forwarding letter to the Treasury providing a draft Executive Council Minute - dated 16 May 2002
(2) Approved Executive Council Minute
(3) Minutes – Cabinet Standing Committee on the Budget – dated 29 November 2001
(4) Cabinet Standing Committee on the Budget – Treasury Paper – Flemington markets
(5) Cabinet Minute SC 2001-49 – Sale of Flemington Markets site and Rail Siding
(6) Agenda for the Executive Council – dated 29 May 2002
Documents exempt in part
(7) Letter from Treasury to Premier’s Department enclosing a letter to the CSO forwarding a copy of the approved Executive Council Minute and extract from the Cabinet Standing Committee on the Budget’s decision. (The Department claimed that pages 2, 3 and 7 were exempt, and released the remainder of the document.)
4 On 5 December 2007, Mr Cianfrano lodged an application for a review of this decision by the Tribunal.
The Relevant Legislation
5 The objects of the FOI Act are stated in section 5, as follows:
6 Pursuant to section 16(1) of the FOI Act, “[a] person has a legally enforceable right to be given access to an agency’s documents”. However, section 25(1)(a) states that an agency “may refuse access to a document” if it is an “exempt document”, the onus being on the agency to establish this. Section 25(4) provides that an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and it appears to the agency that the FOI applicant would wish to be given access to such a copy.
5 Objects
(1) The objects of this Act are to extend, as far as possible, the rights of the public:
(2) The means by which it is intended that these objects are to be achieved are:
(a) to obtain access to information held by the Government, and
(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.
(3) It is the intention of Parliament:
(a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and
(b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and
(c) by enabling each member of the public to apply for the amendment of such of the Government’s records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading.
(4) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records as permitted or required by or under any other Act or law.
(a) that this Act shall be interpreted and applied so as to further the objects of this Act, and
(b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information.
7 Section 6(1) defines ‘agency’ as including a Government Department, and ‘exempt document’ as including a document referred to in any one or more of the provisions of Schedule 1. The exempt documents in Schedule 1 include, relevantly, those specified in clause 1 and clause 2 of “Part 1 – Restricted documents”, and clause 10 of “Part 3 – Other documents”, as follows:
8 Section 57 applies specifically to “restricted documents”, defined in section 6(1) as meaning “a document referred to in any one or more of the provisions of Part 1 of Schedule 1”. Section 57 states:
1 Cabinet documents
(1) A document is an exempt document:
(2) A document is not an exempt document by virtue of this clause:
(a) if it is a document that has been prepared for submission to Cabinet (whether or not it has been so submitted), or
(b) if it is a preliminary draft of a document referred to in paragraph (a), or
(c) if it is a document that is a copy of or of part of, or contains an extract from, a document referred to in paragraph (a) or (b), or
(d) if it is an official record of Cabinet, or
(e) if it contains matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet.
(3) Sub-clause (2)(b) does not apply to a document that came into existence before the commencement of this clause.
(a) if it merely consists of factual or statistical material that does not disclose information concerning any deliberation or decision of Cabinet, or
(b) if 10 years have passed since the end of the calendar year in which the document came into existence.
(4) In this clause, a reference to Cabinet includes a reference to a committee of Cabinet and to a subcommittee of a committee of Cabinet.
2 Executive Council documents
(1) A document is an exempt document:
(2) A document is not an exempt document by virtue of this clause:
(a) if it is a document that has been prepared for submission to the Executive Council (whether or not it has been so submitted), or
(b) if it is a preliminary draft of a document referred to in paragraph (a), or
(c) if it is a document that is a copy of or of part of, or contains an extract from, a document referred to in paragraph (a) or (b), or
(d) if it is an official record of the Executive Council, or
(e) if it contains matter the disclosure of which would disclose information concerning any deliberation or advice of the Executive Council.
(3) Sub-clause (2)(b) does not apply to a document that came into existence before the commencement of this clause.
(a) if it merely consists of:
(i) matter that appears in an instrument that has been made or approved by the Governor and that has been officially published (whether in the Gazette or elsewhere), or
(ii) factual or statistical material that does not disclose information concerning any deliberation or advice of the Executive Council, or
(b) if 10 years have passed since the end of the calendar year in which the document came into existence.
10 Documents subject to legal professional privilege
(1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.
(2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency’s policy document.
Evidence
57 Consideration of restricted documents
(1) The Tribunal may, on the application of the review applicant, consider the grounds on which it is claimed that a document is a restricted document, but only if the document is not subject to a Ministerial certificate.
(2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of:
(3) If the Tribunal is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it.
(a) the public, and
(b) the review applicant, and
(c) if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter the review applicant’s representative.
(4) If, after considering any document produced before it, the Tribunal is still not satisfied that there are reasonable grounds for the claim, the Tribunal is to reject the claim when determining the review application.
(5) The Tribunal is not to reject the claim unless it has given the Minister administering this Act a reasonable opportunity to appear and be heard in relation to the matter.
(6) For the purposes of any proceedings under this section, the Minister administering this Act is a party to the proceedings.
9 Anthony Lean, the Policy Manager of the Department’s Legal Branch, provided a statement dated 28 February 2008 and gave evidence at the hearing. He has held his present position for over five years and said he deals with Cabinet documents daily. Mr Lean’s Branch took over the handling of FOI applications in July 2007 and, during a busy period in August/September 2007, he prepared the draft of the original decision in this matter, which was ultimately made by the Deputy Director General.
10 Mr Lean said four of the seven documents identified in this matter were the subject of the previous determination reviewed in Cianfrano [2004]: documents (1), (2), (3), and (7). However, he acknowledged that because documents (2) and (3) are also included as a part of document (7), of the 42 documents said by Mr Saggers, representing Mr Cianfrano, to have been the subject of the previous determination, only two documents from that determination, documents 22 and 26, are the same as those in the present matter. Document 22 is the same as document (7) in the present matter (which in turn includes document (2), pages 2 and 3, and document (3) as an attachment). Document 26 is the same as document (1) in the present matter. Mr Lean confirmed that documents (4), (5) and (6) in the present matter were not the subject of the decision in Cianfrano [2004].
11 With regard to the exemptions claimed in respect of the seven documents in the present proceedings, Mr Lean made the following comments:
The Department’s submissions
Documents exempt under clause 1 – Cabinet documents
Document (3), Minutes – Cabinet Standing Committee on the Budget – dated 29 November 2001, is an official record of Cabinet, recording its decision in relation to the sale of Sydney Markets.
Document (4), Cabinet Standing Committee on the Budget – Treasury Paper – Flemington markets, dated 28 November 2001, is a confidential minute prepared for submission to Cabinet, the disclosure of which would reveal matters concerning the deliberations or decisions of Cabinet.
Document (5), Cabinet Minute SC 2001-49 – Sale of Flemington Markets site and Rail Siding, is a confidential paper prepared by Treasury for submission to the Cabinet Standing Committee on the Budget.
Document (7), page 7, “is an extract from the Minutes of the meeting of the Cabinet Standing Committee on the Budget held on 29 November 2001 and the disclosure of this document would reveal the deliberations of decisions of Cabinet. It is an official record of Cabinet.”
Documents exempt under clause 2 – Executive Council documents
Document (1) is a letter from the Crown Solicitor’s Office to the Premier’s Department forwarding the letter to the NSW Treasury providing a draft Executive Council Minute dated 16 May 2002. Pages 3 and 4 were prepared for submission to the Executive Council.
Document (2) is a copy of part of an Approved Executive Council Minute. The document was prepared for and submitted to the Executive Council and is an official record of the Council.
Document (6) is an Agenda for the Executive Council dated 29 May 2002, and release of this document would reveal matters considered by the Executive Council. It is also an official record of the Council.
Document (7), pages 2 and 3, are copies of the approved Executive Council Minute and are official records of the Executive Council, which, if disclosed, would reveal the deliberations of the Council.
Documents exempt under clause 10 – legal professional privilege
Document (1) is a letter from the Crown Solicitor’s Office to the Premier’s Department forwarding the letter to the NSW Treasury providing a draft Executive Council Minute dated 16 May 2002. This document provided confidential legal advice to the government agencies (the Department of Public Works, NSW Treasury and Premier’s Department) working together to effect the lease and, subsequently, the sale of Sydney Markets, and includes a draft Executive Council Minute proposed by the Crown Solicitor.
12 Ms Shirm, for the Department, said it was no longer pursuing costs in this matter. She noted that section 57 of the FOI Act applies to ‘restricted documents’ and section 57(3) requires that the Tribunal must first consider whether there are reasonable grounds for claiming the relevant documents are ‘restricted documents’ within Part 1 of Schedule 1: see BY v Director General, Attorney General’s Department [2002] NSWADT 79 (‘BY’) (per O’Connor DCJ, President). She submitted that the Tribunal should be satisfied from Mr Lean’s evidence that there are reasonable grounds for claiming that the documents are restricted documents.
13 Ms Shirm submitted that, contrary to the President’s decision in BY, only if the Tribunal finds that the documents are not restricted documents can it require the documents to be produced in evidence before it. The operation of section 58 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’), requiring an administrator to lodge relevant documents within 28 days after receiving notice of an application for review being made to the Tribunal, is excluded from operation in relation to FOI pursuant to section 53(5) of the FOI Act. Ms Shirm noted the distinction drawn between ‘restricted documents’ in Part 1 of Schedule 1 and the other categories of exempt document. There would be little need for that distinction if it were not intended that restricted documents should be treated differently.
14 In written submissions filed on 22 April 2008, the Department noted that the courts have long recognised that a high degree of protection attaches to Cabinet documents pursuant to the need for the uninhibited development of government policy by Cabinet. Weight should be accorded to the long established principle of responsible government that proposals put forward by Ministers in Cabinet and proceedings in Cabinet and the Executive Council should not be the subject of public scrutiny. Thus, an unduly restrictive interpretation of the exemptions to disclosure in clause 1 and clause 2 of Schedule 1 is neither warranted nor appropriate.
15 With regard to the clause 1 exemption for Cabinet documents, the Department submits that pursuant to clause 1(1)(a), a document prepared for submission to Cabinet, or committee of Cabinet (clause 1(4)), need not have been solely created for that purpose – it is sufficient if submission to Cabinet was one of the purposes for which it was prepared. Document (5) is a Minute of the Cabinet Standing Committee on the Budget and document (4) is a confidential paper prepared by Treasury for submission to this Committee. Both were prepared for submission to Cabinet.
16 The Department submits that document (3) and document (7), page 7, being the minutes of a Cabinet Committee meeting and an extract from the minutes of a Cabinet meeting, respectively, are within clause 1(1)(d), as an official record of Cabinet.
17 The Department submits that documents (3), (4), (5) and (7), page 7, contain matter the disclosure of which would disclose information concerning a decision or deliberation of Cabinet, thereby falling within clause 1(1)(e). Document (3) is the minutes of a Cabinet Standing Committee and records a Cabinet decision on the issue discussed. Document (4) is a Cabinet minute containing the Minister’s proposal submitted to Cabinet for consideration. Document (5) is a confidential Treasury paper prepared for submission to a Cabinet Standing Committee and deals with matters considered by Cabinet in reaching its decision. Document (7), page 7, is an extract from the minutes of a Cabinet meeting and discloses what was discussed in that meeting.
18 With regard to the clause 2 exemption for Executive Council documents, the Department claims that documents (1), (2) and (7), pages 2 and 3, are exempt under clause 2 (1)(a): document (1), pages 3 and 4, are draft Executive Council Minutes prepared for submission to the Council; document (2) is part of an approved Council minute and was, therefore, prepared for submission to the Council; document (7), pages 2 and 3, are copies of an approved Council minute and prepared for submission to Cabinet.
19 The Department claims that documents (2) and (7), pages 2 and 3, are official records of the Executive Council, being approved Council minutes, and document (6) is an agenda for the Executive Council and also an official record. All therefore fall within clause 2(1)(d). Further, documents (1), (2), (6) and (7), pages 2 and 3, record actual decisions made by the Executive Council or disclose matters considered for decision by the Council, the disclosure of which “would disclose information concerning any deliberation or advice” of the Council so that clause 2(1)(e) applies.
20 The Department submits that document (1) is exempt because of legal professional privilege. The Department notes recent authorities dealing with this privilege and the rationale behind it, including General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 (‘the WorkCover Authority case’), and Howell v Macquarie University [2008] NSWCA 26 (‘Howell’) (Campbell JA, with whom Spigelman CJ and Bell JA agreed). Legal professional privilege will only apply if the legal practitioner received or created the communication in that capacity for the purpose of the client obtaining professional legal advice. In this context, the description ‘legal practitioner’ can include State Crown Solicitors. The circumstances in which professional legal privilege can arise were set out by O’Connor P in Saggers v Director General, Attorney General’s Department [2005] NSWADT 193 (‘Saggers’).
21 The Department states that document (1) is a letter from the Crown Solicitor to the Premier’s Department, and it is clear from Mr Lean’s statement (paragraph 27) that the Crown Solicitor was retained by the NSW Treasury, the Department of Public Works and the Premier’s Department to provide legal advice on the sale of the Sydney Markets site. The Department submits that the letter was between lawyer and client for the dominant purpose of giving legal advice to the client. Moreover, since the advice relates to an Executive Council Minute, the advice is clearly essential to the administration of the Government.
22 Turning to the residual discretion with which Nicholas J said the Tribunal is endowed by section 63 of the ADT Act in his judgment in McGuirk [2006], the Department submits, firstly, that the decision is incorrect. However, proceeding on the basis that the Tribunal is presently bound by the decision, the Department notes the decision in University of NSW v McGuirk (No 2) [2008] NSWADTAP 8 (‘McGuirk [2008]’), at paragraph 18, where the Appeal Panel held that a relevant consideration when exercising the residual discretion is whether there is a reason, particular to the circumstances of the case, for giving access to documents:
23 These comments were made in the context of a claim for exemption on the ground of legal professional privilege, in respect of which the Appeal Panel recognised, at paragraph 33 that the proper administration of justice requires that agencies should be encouraged to comply with the law. If an agency is confident that its communications with a lawyer will be kept confidential, it is more likely to disclose all relevant information in seeking that advice, thereby enabling the lawyer to provide comprehensive and accurate legal advice, and assisting the agency to comply with its legal obligations.
“That reason needs to be sufficient to displace the assumption that the exemption is reasonably necessary for the proper administration of Government. In that sense, it may be described as special, overriding or strong ...”
24 With regard to the claim that document (1) is exempt for legal professional privilege, the Department submits that the advice provided is “clearly advice essential to the administration of government”.
25 With regard to the Cabinet and Executive Council documents, the Department submits the residual discretion, if it exists, is incapable of applying to such ‘restricted documents’ because, unlike other exempt documents, the Tribunal’s power to review such documents comes from section 57(1) of the FOI Act and not from section 25(1)(a) of the FOI Act and section 63 of the ADT Act. Since section 57(1) imposes an alternative and inconsistent test, the operation of section 40 of the ADT Act, which states that the provisions of the ADT Act “have effect subject to any contrary provision being made in a relevant enactment (whether expressly or impliedly)”, excludes section 63 as being a source of jurisdiction.
26 The Department submits that if section 57(1) of the FOI Act is the source of the Tribunal’s power, rather than section 25(1)(a) of the FOI Act and section 63 of the ADT Act, then because, unlike section 25(1)(a), section 57(1) confers no discretion on the agency, there is, therefore, also no discretion for the Tribunal to exercise. The Department acknowledges, however, that this interpretation is contrary to that of President O’Connor in BY, at paragraph 70. In the President’s view, it would be expected that if Parliament had intended the Tribunal not to undertake a merits review, it would have legislated expressly to that effect.
27 The Department submits that His Honour failed to take sufficient account of section 40 of the ADT Act, and to the fact that if section 57(1) “is not a strike out mechanism, it has no apparent role to play”. The Department notes that in Cianfrano [2007], at paragraph 41, the President accepted that “the reasoning in BY is not free from doubt”, although he declined to revisit the issues raised because it was not a suitable matter in which to do so. The Department submits that the current matter is an appropriate one in which to do so.
28 Alternatively, if the Tribunal finds that it can apply the residual discretion to restricted documents, the Department submits there are good reasons for it not exercising the discretion. The Department refers to the Premier’s Memorandum No 2006-08 – Maintaining Confidentiality of Cabinet Documents and Other Cabinet Conventions, dated 7 June 2006 (‘the Premier’s Memorandum’), which emphasises the importance of the confidentiality of draft and final Cabinet documents for the convention of the collective responsibility of Ministers for government decisions. The Department submits that pursuant to section 64(1) of the ADT Act, the Tribunal must give effect to the Premier’s Memorandum, being Government policy in effect at the time. This policy prohibits the Tribunal from exercising its discretion to disclose documents (3), (4), (5), and (7).
29 Yet again, in the alternative, the Department submits that the status of a Cabinet document, rather than its content, means that ordinarily such a document should not be disclosed in the interests of the integrity of the Cabinet process and pursuant to the conventions of Cabinet solidarity and secrecy. A blanket protection for Cabinet documents provides the optimum conditions for Cabinet decision-making.
30 In conclusion, the Department submits there is little room for the exercise of the residual discretion, there being no particular public interest arising from the subject matter of the documents supporting their disclosure.
Mr Cianfrano’s Submissions
31 In written submissions dated 15 April 2008, Mr Cianfrano submitted that even if a document has been classified as an exempt document, section 25(1) of the FOI Act confers a discretion on the agency to release the document in response to an FOI request. Cabinet and Executive Council documents are not exclusively exempt. Official records are an integral part of the State itself and a pre-requisite to effective accountability. While previously the Westminster system invoked secrecy for its process of government, such thinking was displaced by the introduction of the FOI Act.
32 Mr Saggers contended that the Department’s submissions fail to respond to Mr Cianfrano’s submissions, but instead focus on section 57(1) of the FOI Act, which can only be considered if an applicant has applied to the Tribunal to consider the grounds on which it is claimed that a document is a restricted document. Mr Cianfrano has made no such application.
33 Mr Saggers noted that because there are two areas in respect of which Cabinet or Executive Council documents are not exempt, the reviewer must satisfy him/herself as to whether the documents in question are exempt. The two areas are where a document merely consists of factual or statistical material that does not disclose information concerning any deliberation or decision of Cabinet or deliberation or advice of the Executive Council (clause 1(2)(a) and clause 2(2)(a)(ii) respectively), and where 10 years have passed since the end of the calendar year in which the document came into existence (clause 1(2)(b) and clause 2(2)(b), respectively). In the case of Executive Council documents, a document is also not exempt if it merely consists of matter that appears in an instrument that has been made or approved by the Governor and that has been officially published (clause 2(2)(a)(i)).
34 Mr Saggers said one cannot make a determination on the content of a document unless there is a sufficiently clear description to guard against some parts of the decision being factual or statistical. Thus, there can be no blanket exclusion from reviewing the relevant documents under section 57 of the FOI Act. Mr Cianfrano contends that even if a document is a restricted document, the Tribunal still has jurisdiction to review it. Mr Saggers noted that section 63(1) of the ADT Act requires that in deciding what is the correct and preferable decision, the Tribunal must have regard to “any relevant factual material”.
35 With regard to Executive Council documents, Mr Saggers referred to Cossins, Annotated Freedom of Information Act NSW (1997), which, at page 256, states, “Executive Council documents are generally not of a sensitive nature”. Thus, it is important for the Tribunal to exercise its jurisdiction to review such documents. In Howell, at paragraph 10, Campbell JA said, “even if a document is an exempt document, an agency still has a residual discretion to release it”.
36 Mr Saggers noted that section 61 of the FOI Act imposes the burden of proof of establishing that the determination under review is justified on the agency. He submitted that this supports the Tribunal’s role in assessing whether the agency has met that requirement – and to do so requires that the Tribunal be familiar with the relevant documents.
37 With regard to the Premier’s Memorandum, Mr Saggers submitted the Department has given the document a meaning broader than its original purpose. The Memorandum is intended to prevent the leak of Cabinet documents, and not to apply to situations where the Governor has made a determination. For example, the Memorandum refers to the “unauthorised and/or premature disclosure of Cabinet documents”, and to “draft Cabinet documents”. He noted that the need for Cabinet confidentiality passes away with time.
38 Mr Saggers submitted the object of the FOI Act is to allow public access to documents unless they are sensitive. Section 5(1)(a) extends “as far as possible”, the rights of the public to obtain access to information held by the Government. Section 5(3)(a) states that it is the intention of Parliament that the Act “shall be interpreted and applied so as to further the objects of this Act”. Since Executive Council documents are not generally of a sensitive nature, the public should generally have a right of access under the FOI Act. Moreover, with the passage of time, documents loose their sensitivity. Mr Saggers submitted that this is the case here since the documents are about six years old. The Tribunal should examine the documents and assess their sensitivity.
Discussion
(1) Section 57 of the FOI Act
39 The first issue for the Tribunal to determine is the effect of the application of section 57 of the FOI Act. As stated above, section 57(1) provides that where a document is not the subject of a Ministerial certificate, as is the case here, the Tribunal “may, on the application of a review applicant, consider the grounds on which it is claimed that a document is a restricted document”.
40 Mr Saggers contended that there had been no such application by Mr Cianfrano and so section 57 is not applicable. I disagree. Mr Cianfrano sought a review of the Department’s decision to refuse access to the whole or part of seven documents on the ground that they are exempt or partially exempt pursuant to the FOI Act. In my view, since the exemptions claimed fall largely within the ‘restricted documents’ subcategory (Part 1) of the exempt documents set out in Schedule 1, the review sought by Mr Cianfrano clearly encompasses the grounds on which the Department claims that the documents are restricted documents. I note the President’s discussion of this issue in BY (see especially his conclusion at paragraph 60 to paragraph 61) and agree with his interpretation that it is the review applicant’s original application which is relevant in the context of section 57(1). I therefore do not accept that there needs be any special application under section 57 to give the Tribunal jurisdiction to review a claimed ‘restricted documents’ exemption. (See also, for example, National Parks Association of NSW Inc v Department of Lands [2005] NSWADT 124, at par 24 (Hennessy DP).)
41 In BY, at paragraph 61, the President recognised that “section 57 does lay down a special rule in relation to all restricted document claims, save for those involving a Ministerial certificate”. However, while he considered that section 57 “operates as a pre-condition to jurisdiction in relation to claims for restricted document status” (paragraph 68), he found, at paragraph 70, that section 57 does not act as a ‘contrary provision’ impliedly displacing the Tribunal’s review jurisdiction in accordance with section 40(1) of the ADT Act:
42 Section 57(3) provides that “[i]f the Tribunal is satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it”. The first step for the Tribunal in a restricted documents claim is, therefore, to consider whether there are reasonable grounds for the claim. However, even if the Tribunal finds that there are reasonable grounds for the claim, its jurisdiction to proceed to the second step remains unaffected and it should ascertain whether the decision to claim a restricted document exemption is the correct and preferable decision.
“70. It is not clear that section 57 constitutes a ‘contrary provision’. One would expect that a provision ousting or limiting the jurisdiction of the Tribunal would be expressed in clear terms, not found by implication. The FOI Act is an Act designed to promote openness in government and enable citizens to understand better the basis for government actions and decisions. It is often described as promoting the democratic objective. The substantial system for review of negative agency determinations reflects the concern that such determinations be sound. There are mechanisms for internal review, review by the Ombudsman and review by the Tribunal. In the case of review by the Ombudsman there is an express limitation on the power of that office to review Ministerial certificate cases. There is no limitation on its power of review in respect of non-Ministerial certificate restricted document cases. These are all reasons for expecting that had the Parliament intended to deprive the Tribunal of its ordinary merits review powers in these cases, it would have said so expressly.”
43 For the reasons stated by the President in BY, I do not accept the Department’s submission that the source of the Tribunal’s jurisdiction to review restricted documents comes from section 57(1). In my view, section 57 must be interpreted in the overall context of the Act and, in particular, its object of extending, as far as possible, the rights of the public to obtain access to information held by the Government (section 5(1)), and Parliament’s stated intention (section 5(3)) of interpreting and applying the Act so as to further the objects of the Act. That context includes providing members of the public who are aggrieved by a determination by an agency with rights of review, both internal and external.
44 Such an interpretation also accords with section 33 of the Interpretation Act 1987, which requires that “in the interpretation of a provision of an Act ... a construction that would promote the purpose or object underlying the Act ... shall be preferred to a construction that would not promote that purpose or object”.
45 Thus, I agree with the President in BY that it is unlikely that Parliament would have intended to deprive the Tribunal of its ordinary review power in restricted document cases without expressly stating this in the FOI Act.
46 The Department also referred me to the President’s decision in Cianfrano [2007], at paragraph 41, where he accepted that “the reasoning in BY is not free from doubt”, although declining to revisit the interpretation of section 57 in that case because it was not a suitable matter in which to do so. While I also accept that, inevitably, because there is no clear provision in the Act to which recourse can be made to resolve this issue, an element of doubt will remain about the Tribunal’s interpretation, nevertheless, in my view, the President’s reasoning in BY is sound and his interpretation of section 57 should be applied.
(2) Are there reasonable grounds for the restricted documents claim?
47 Turning to the application of section 57(3) and whether there are reasonable grounds for the Department’s claim that the documents are restricted documents under clause 1 and clause 2 of Schedule 1, I note Mr Lean’s evidence and the Department’s submissions in relation to the individual documents. There are seven documents in issue. The Department provided the Tribunal with a confidential copy of the documents. However, it submitted that the Tribunal should not examine those documents until the second step of the approach prescribed by section 57, and having first determined, at the first step, that there are no reasonable grounds for claiming the exemption.
48 Ms Shirm noted that section 58 of the ADT Act, requiring an administrator to lodge relevant documents within 28 days after receiving notice of an application for review being made to the Tribunal, is excluded from operation in relation to FOI pursuant to section 53(5) of the FOI Act. She also noted the distinction drawn between ‘restricted documents’ in Part 1 of Schedule 1 and the other categories of exempt document, and commented that there would be little need for that distinction if it were not intended that restricted documents should be treated differently.
49 In my view, I should be guided by the President’s comments about the role of section 57 in BY, at paragraph 64. He said that in his view it was likely that Parliament would have intended that in all cases where a claim for an exemption in respect of restricted documents is made, the documents said to be restricted must be handled carefully by reference to the procedural rules in section 57. These rules include ensuring that the Minister administering the FOI Act has the status of a party in such proceedings and can make submissions.
50 Thus, the first step in this matter is for the Tribunal to determine whether there are reasonable grounds for the claimed exemptions. Having undertaken this step, the Tribunal should proceed to the second step - to consider whether the decision made was the correct and preferable decision. In my view, there are two parts to this second step: (1) is the agency able to justify its decision to claim an exemption in respect of the documents; and, (2) if the agency is able to justify the exemption, should the agency, nevertheless, have exercised its residual discretion to release the document to the applicant?
51 I note that, pursuant to section 61 of the FOI Act, the burden of proof for establishing that the determination made is justified lies on the agency. If the Tribunal has found no reasonable grounds on its consideration pursuant to section 57(3), then it may require the documents at issue to be produced in evidence before it. There is apparently no such power where the Tribunal finds there to be reasonable grounds, and it seems likely that in many instances a Tribunal which finds reasonable grounds, will also find the agency is justified in claiming the exemption.
52 There remains, however, the exercise of the residual discretion, discussed below. Given, first, the requirement in section 55(a) of the FOI Act that the Tribunal not disclose any exempt matter where reviewing such a claim, second, the power of the Tribunal to close a hearing where necessary to prevent the disclosure of exempt matter (section 55(b)), and, third, the Tribunal’s powers under section 75 of the ADT Act to prohibit or restrict disclosure of evidence, one might anticipate that, even in cases where the Tribunal has found reasonable grounds under section 57(3), the agency would still be prepared to provide documents claimed to be exempt to the Tribunal in confidence in order to establish that the determination made was justified, as required by the burden of proof imposed on the agency by section 61. Mr Saggers referred to section 63(1) of the ADT Act, which requires that the Tribunal, in deciding what is the correct and preferable decision, is to have regard to any material before it, including relevant factual material. This, of course, raises the question of what is before it.
53 Returning to the question of whether there are reasonable grounds for claiming that the documents in question are restricted documents, I will examine each documents in turn.
54 Document (1). The Department claims that pages 3 and 4 of this document were prepared for submission to the Executive Council and comprise draft Council Minutes, thereby recording Council decisions or matters considered by the Council. Thus, the Department claims pages 3 and 4 are exempt pursuant to clause 2(1)(a) (prepared for submission to the Executive Council) and (e) (information concerning any deliberation or advice of the Council). From the description of the document provided by Mr Lean and set out in paragraph 11 above, I am satisfied that there are reasonable grounds for the claim.
55 Document (2). The Department claims that this document, an approved Executive Council Minute, was prepared for submission to the Executive Council (so that clause 2(1)(a) applies), is an official record of the Council (so that clause 2(1)(d) applies), and that release of the document would reveal the deliberations or decisions of the Council (so that clause 2(1)(e) applies). I am satisfied from the description of the document that there are reasonable grounds for the claim.
56 Document (3). The Department claims that this document, the Minutes of the Standing Committee on the Budget dated 29 November 2001, is an official record of Cabinet (so that clause 1(1)(d) applies), and that release of the document would reveal the deliberations or decisions of the Cabinet (so that clause 1(1)(e) applies). I am satisfied from the description of the document that there are reasonable grounds for the claim, noting that clause 1(4) states that a reference to the Cabinet includes a reference to a committee of the Cabinet.
57 Document (4). The Department claims that this document is a confidential paper prepared by Treasury for submission to the Cabinet Standing Committee on the Budget. Thus, the Department claims the document is exempt pursuant to clause 1(1)(a) (prepared for submission to Cabinet) and that release of the document would reveal the deliberations or decisions of the Cabinet (so that clause 1(1)(e) applies). I am satisfied from the description of the document that there are reasonable grounds for the claim.
58 Document (5). The Department claims that this document is a Minute of the Cabinet Standing Committee on the Budget. Thus, the Department claims the document is exempt pursuant to clause 1(1)(a) (prepared for submission to Cabinet) and that release of the document would reveal the deliberations or decisions of the Cabinet (so that clause 1(1)(e) applies). I am satisfied from the description of the document that there are reasonable grounds for the claim.
59 Document (6). The Department claims that this document, an Agenda for the Executive Council meeting on 29 May 2002, is an official record of the Council (so that clause 2(1)(d) applies), and that release of the document would reveal the deliberations or decisions of the Council (so that clause 2(1)(e) applies). I am satisfied from the description of the document that there are reasonable grounds for the claim.
60 Document (7). The Department claims that this document, a letter from Treasury to the Premier’s Department enclosing a letter to the Crown Solicitor’s Office forwarding a copy of the approved Executive Council Minute and extract from the Cabinet Standing Committee on the Budget’s decision, is (partially) exempt as to pages 2, 3 and 7. The Department claims page 7 is exempt because it is an official record of Cabinet (so that clause 1(1)(d) applies), and release of that page would reveal the deliberations or decisions of the Cabinet (so that clause 1(1)(e) applies). The Department claims that pages 2 and 3 are exempt because they were documents prepared for submission to the Executive Council (so that clause 2(1)(a) applies) and release of those pages would disclose its deliberations (so that clause 2(1)(e) applies). I am satisfied from the description of the document that there are reasonable grounds for the claim. The Department notes that pages 1, 4, 5 and 6, the deed and covering letter were held by the Tribunal not to be exempt documents in Cianfrano [2004].
61 Thus, I am satisfied that the Department has reasonable grounds for its restricted documents claim in respect of all seven documents.
(3) Is the Department able to justify its decision to rely on the exemptions claimed?
62 As stated above, the burden of proof lies on the Department to justify its determination to claim the exemptions in respect of the seven documents. While the description of the documents provided by the Department is sufficient to satisfy me that there are reasonable grounds for its claim to exemptions for the documents under clause 1 and 2 of Schedule 1, I note, as Mr Saggers pointed out, that there are two areas in respect of which Cabinet or Executive Council documents are not exempt.
63 The two areas are where a document merely consists of factual or statistical material that does not disclose information concerning any deliberation or decision of Cabinet or deliberation or advice of the Executive Council (clause 1(2)(a) and clause 2(2)(a)(ii) respectively), and where 10 years have passed since the end of the calendar year in which the document came into existence (clause 1(2)(b) and clause 2(2)(b), respectively). In the case of Executive Council documents, a document is also not exempt if it merely consists of matter that appears in an instrument that has been made or approved by the Governor and that has been officially published (clause 2(2)(a)(i)). Mr Saggers submitted that the reviewer should satisfy him/herself that these provisions do not apply.
64 I agree that it is appropriate for the Tribunal to review the documents in order to determine whether the Department’s claim to exemptions in respect of the documents is justified. With regard to the claimed exemptions under clause 1 and clause 2 of Schedule 1, I am satisfied, having reviewed the documents that they accord with the descriptions provided by the Department. I am also satisfied that they do not contain material of a kind referred to in clause 1(2)(a) and (b), and clause 2(2)(a) and (b). Thus, in my view, the Department is justified in claiming these exemptions.
65 The Department has also claimed an exemption in respect of document (1) for legal professional privilege pursuant to Schedule 1, clause 10.
66 Document (1) is a letter from the Crown Solicitor’s Office to the Premier’s Department forwarding the letter to the NSW Treasury providing a draft Executive Council Minute dated 16 May 2002. Mr Lean stated that this document provided confidential legal advice to the government agencies (the Department of Public Works, NSW Treasury and Premier’s Department) working together to effect the lease and, subsequently, the sale of Sydney Markets, and includes a draft Executive Council Minute proposed by the Crown Solicitor. The Department submits the letter was between lawyer and client for the dominant purpose of giving legal advice to the client.
67 The NSW Court of Appeal considered the application of clause 10 in the WorkCover Authority case. McColl JA, with whom Handley and Hodgson JJA agreed, explained:
68 That case, like the claim made in the current matter in respect of document (1), concerned the first head of legal professional privilege, legal advice privilege, the other head being litigation privilege. McColl JA, at paragraph 76, stated: “Legal advice privilege attaches to confidential communications between lawyers and their clients seeking or giving legal advice.” In Saggers , at paragraph 21, the President of the Tribunal, O’Connor DCJ, relied on Lockhart J’s “well-known statement describing the various types of documents that can be the subject of a claim for legal professional privilege” in Trade Practices Commission v Sterling (1979) 36 FLR 244, at 245-6. The categories include that of communications between a legal adviser and his or her client.
“67. Legal professional privilege is a rule of substantive law which enables a person to resist the giving of information or the production of documents to a third party which would reveal confidential communications between the person and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings: Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission (at [9]) per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Esso Australia Resources Ltd v Commissioner of Taxation .
68. The rationale of legal professional privilege is “that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline”: Grant v Downs (at 685); Attorney-General (NT) v Maurice (at 487); see also Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 per Mason J (at 74), per Deane J (at 114), per Dawson J (at 128).
69. Waterford v The Commonwealth of Australia confirmed that legal professional privilege extends to confidential professional communications between government agencies and their legal representatives if made with the requisite purpose ...
73. Once it is established that the legal practitioner was acting in the requisite capacity, a confidential communication will attract privilege even if it contains extraneous matter as long as it was prepared for the dominant purpose of giving legal advice.”
69 I note that in Howell, at paragraph 48, the Court of Appeal (Campbell JA with whom Spigelman CJ and Bell JA agreed) endorsed the comments made by McColl JA in the WorkCover Authority case, at paragraph 150, disapproving of a ‘leaning approach’ – that is leaning towards a narrow interpretation of exemptions in the FOI Act, and, at paragraph 151, stating that the right to public access to documents held by the Government, “is subject to such restrictions as are reasonably necessary for the proper administration of the Government: section 5(2)(a) and (b). Determining whether documents should be disclosed involves balancing those two matters”. Campbell JA said the clause 10 exemption “should be construed without any prior inclination to construe it narrowly, nor any prior inclination to pursue it broadly”.
70 I have reviewed document (1). I have stated above that I am satisfied that the Department has made out its claims to exemption under clause 2 in respect of pages 3 and 4 of this document. Page 1 comprises a two line letter from the Assistant Crown Solicitor to an officer of the Premier’s Department. It does not contain any legal advice. Essentially, it is merely a letter accompanying the other documents enclosed with it. In my view, this page does not attract the exemption in clause 10. Page 2 is a copy of a letter from the Assistant Crown Solicitor to an officer of the NSW Treasury, comprising three lines. It contains no legal advice, but merely states that a draft Executive Council Minute is enclosed for execution by the Treasurer and subsequent approval by the Governor in Executive Council. Again, in my view, this page does not attract the exemption in clause 10. Thus, pages 1 and 2 of document (1) must be released to Mr Cianfrano. However, I agree that pages 3 and 4, if not excluded from disclosure by clause 2, would attract the exemption in clause 10, being legal advice provided by the Assistant Crown Solicitor to a client.
(4) Should the residual discretion be exercised?
71 While contending that the decision of Nicholas J in McGuirk [2006] is incorrect, the Department recognises that the Tribunal is bound by that decision. His Honour held at paragraph 102:
72 Thus, by virtue of sector 63(2) of the ADT Act and sector 25(1)(a) of the FOI Act, the Tribunal has a residual discretion to release documents otherwise found to be exempt pursuant to Schedule 1 of the FOI Act, and, in such a case, must consider whether to exercise its discretion to do so.
“section 63 ADT Act provides the Tribunal with the discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it.”
73 In Cianfrano [2007], at paragraph 24, O’Connor P said:
74 The President noted that the objects clause of the Act (section 5) now has a greater degree of prominence than previously in Tribunal decisions. He said, at paragraph 27:
“the following principles to guide the exercise of the discretion have emerged:
(1) The Tribunal must first ascertain whether the matter is exempt matter.
(2) The Tribunal should only exercise the power to decline to refuse disclosing exempt matter where there are strong grounds justifying the overriding of the exemption.
(3) The question of whether there are strong grounds should take account of the objects of the FOI Act as expressed in section 5.
(4) Even in the case of matter that falls within one of the ‘restricted documents’ categories of exemption (see clauses 1 (Cabinet documents), 2 (Executive Council documents) and 4 (Documents affecting Law Enforcement and Public Safety) of Schedule 1) the only absolute exemption arises where the Minister has granted a certificate pursuant to section 59.
(5) In the case of restricted documents, particular account should be taken of the concern addressed by section 5(2)(b), that is, whether or not a restriction of access is ‘reasonably necessary for the proper administration of government’.”
75 The Department referred to the recent decision in McGuirk [2008], where the Appeal Panel stated that there needs to be a reason for giving access to documents, particular to the circumstances of the case, sufficient to displace the assumption that the exemption is reasonably necessary for the proper administration of the Government (see section 5(2)(b)). I note that, at paragraph 18, the Appeal Panel recognised that the proper administration of justice requires that agencies should be encouraged to comply with the law. If an agency is confident that its communications with a lawyer will be kept confidential, it is more likely to disclose all relevant information in seeking that advice, thereby enabling the lawyer to provide comprehensive and accurate legal advice, and assisting the agency to comply with its legal obligations.
“Practical circumstances that might influence the Tribunal to exercise the discretion include:
- whether the exempt matter was, by other means, in the public domain
- whether the circumstances that had made the exempt matter sensitive at the time it was refused remain current or significant
- the nature of the government activity under scrutiny, and the extent of public or community concern or interest in having a fuller knowledge of that activity
- the public interest in an informed debate on issues of significance to the community
- whether there were adverse consequences for the proper administration of government, and their extent
- whether any adverse consequence is remote or innocuous.”
76 With regard to the Department’s submission that the residual discretion does not apply to restricted documents, as I have stated above, I do not agree that the Tribunal’s jurisdiction to review a decision concerning restricted documents comes from section 57(1) of the FOI Act. I agree with the President’s decision in BY, that section 57 does not act as a ‘contrary provision’ displacing the Tribunal’s review jurisdiction by reason of section 40(1) of the ADT Act.
77 The Department submits that if the Tribunal finds that it can apply the residual discretion to restricted documents, then there are good reasons for it not exercising the power. The Department submits that, being Government policy, the Tribunal must give effect to the Premier’s Memorandum as required by section 64(1) of the ADT Act. The Department contends that this policy prohibits the Tribunal from exercising its discretion to disclose documents (3), (4), (5) and (7). Alternatively, the status of a Cabinet document means that, ordinarily, such a document should not be disclosed in the interests of the integrity of the Cabinet process and pursuant to the conventions of Cabinet solidarity and secrecy.
78 Mr Saggers submitted that while previously the Westminster system invoked secrecy for its process of government, such thinking was displaced by the introduction of the FOI Act. He submitted that the Department has given the Premier’s Memorandum a meaning broader than its original purpose, which was to prevent the leak of Cabinet documents, rather than applying in situations where the Government has made a determination. Mr Saggers submitted that the object of the FOI Act is to allow public access to documents unless they are sensitive. Executive Council documents are generally not of a sensitive nature. Moreover, documents loose their sensitivity with the passage of time.
79 First, with regard to policy, I note that section 64(1) of the ADT Act provides:
80 I am satisfied that the Premier’s Memorandum satisfies the definition of ‘Government policy’ in section 64(5). I have reviewed this policy. While recognising that the proper administration of the Government requires a degree of confidentiality for Cabinet documents, and that the unauthorised and/or premature disclosure of Government documents undermines the process of government, policy must be read subject to the provisions of the law, in this instance the provisions of the FOI Act. The objects of the Act, quoted above, provide a legally enforceable public right of access to information held by the Government, “subject only to such restrictions as are reasonably necessary for the proper administration of the Government” (section 5(2)(b)).
“In determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.”
81 In the light of the provisions of the FOI Act, the Premier’s Memorandum does not, in my view, impose a blanket prohibition on the Tribunal exercising its residual discretion in relation to documents (3), (4), (5) and (7), as claimed by the Department. However, the Tribunal should, where appropriate, give effect to that policy in exercising its powers. For example, in determining what restrictions are reasonably necessary for the proper administration of the Government?
82 I note that as the Appeal Panel stated in McGuirk [2008], discussed above, there need to be what have been described as special, overriding or strong reasons for giving access to exempt documents. Those reasons, which will be particular to the circumstances of the case, must be sufficient to displace the assumption that the exemption is reasonably necessary for the proper administration of the Government (see section 5(2)(b)). In Cianfrano [2007], the President gave examples of practical circumstances that might influence the Tribunal in deciding whether to exercise the discretion, quoted above.
83 While, as the President recognised in Cianfrano [2007], at paragraph 33, the decision to sell the Sydney Markets was clearly one of public importance, I am not satisfied by Mr Cianfrano’s submissions that there are special, overriding or strong reasons sufficient to displace the assumption that the exemptions which I have found to be justified are reasonably necessary for the proper administration of the Government. Mr Saggers submitted that because Executive Council documents are not, he claimed, generally of a sensitive nature, the public should generally have a right of access under the FOI Act. In my view, such a broad generalisation is unhelpful.
84 The Act has provided certain exemptions. A specific limitation of 10 years has been imposed on exemptions claimed for Cabinet and Executive Council documents. The role of the Tribunal is to review the justification claimed for the exemption in respect of the relevant documents and apply the provisions of the law. However, in deciding whether to exercise the residual discretion, the Tribunal may consider whether the circumstances that made the exempt matter sensitive at the time it was refused remain current or significant (Cianfrano [2007], quoted above). In the current matter, I am not satisfied on the evidence before me or from Mr Cianfrano’s submissions, that the documents in respect of which the exemptions are claimed have become any less sensitive so as to warrant exercise of the residual discretion.
Order
The Tribunal varies the decision under review in respect of pages 1 and 2 of document (1), which must be released to the Applicant within 28 days after the date of this decision, but otherwise affirms the decision.
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