D'Adam v New South Wales Treasury
[2014] NSWCATAD 68
•21 May 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: D'Adam v New South Wales Treasury [2014] NSWCATAD 68 Hearing dates: 16 April 2014 Decision date: 21 May 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Professor G.D. Walker, Senior Member Decision: The decision under review is affirmed.
Catchwords: Government information - access - Cabinet information - reasonable grounds Legislation Cited: Administrative Decisions Tribunal Act 1997; Civil and Administrative Tribunal Act 2013; Government Information (Public Access) Act 2009 Cases Cited: Baini v R [2012] HCA 59; Bell IXL Investment Ltd v Life Therapeutics Ltd [2008] FCA 1457; Commonwealth v Northern Land Council (1993) 176 CLR 604;
Fisse v Secretary, Department of the Treasury [2008] FCAFC 188; Harris v Australian Broadcasting Corporation (1984) 1 FCR 150; IPART v Services Sydney Pty Ltd (GD) [2009] NSWADTAP 79; Jorgensen v Australian Securities and Investments Commission [2004] FCA143, 208 ALR 73; Kline v Official Secretary to the Governor-General [2013] HCA 52; McKinnon v Secretary, Department of the Treasury (2006) 228 CLR 423; National Parks Association of New South Wales v Department of Lands [2005] NSWADT 124; Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98; Secretary to the Department of Infrasructure v Asher [2007] VSCA 272, 19 VR 17; Secretary to the Department of Treasury and Finance v Dalla Vella [2007] VSCA 11; Re Smith and Aboriginal and Torres Strait Islander Commission [200] AATA 512; Re Toomer and Department of Agriculture, Fisheries and Forestry (2003) 78 ALD 645; Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414.Category: Principal judgment Parties: Anthony D'Adam (Applicant)
New South Wales Treasury (First Respondent)
Premier of New South Wales (Second Respondent)Representation: Counsel
M Izzo (Applicant)
A Mitchelmore (Respondents)
WG McNally Jones (Applicant)
Crown Solicitor's Office (Respondent)
File Number(s): 133209 Publication restriction: Paragraph 58 is not to be published and not available to applicant
reasons for decision
On 21 January 13, the applicant Anthony D'Adam, in his capacity as senior industrial officer with the Public Service Association of New South Wales, applied to the New South Wales Treasury seeking access to information under the Government Information (Public Access) Act 2009 (GIPA Act). Following an exchange of correspondence with Treasury (exhibit R5, tabs 1 to 10), the applicant agreed to limit his application to the following information:
"The Allocation letters and relevant attachments relating to the Labour Expenses Cap and Efficiency Dividend sent in 2012 to the Department of Finance and Services;
All Road Maps in relation to savings measures to meet the Efficiency Dividend and/or the Labour Expenses Cap for the Department of Finance and Services.
On 15 November 2013, Treasury provided access to some of the information sought and refused access to the remainder (exhibit R5, tab 11). By application filed 10 July 2013, the applicant sought review by the Administrative Decisions Tribunal of the Treasury's decision to refuse to provide access to that information. The Premier of New South Wales was joined as a second respondent pursuant to s 106(5) of the GIPA Act.
As the Administrative Decisions Tribunal was superseded on 1 January 2014 by the Civil and Administrative Tribunal, it should be noted that the proceedings continue in the present tribunal and that the law to be applied is that which would have applied but for the enactment of the Civil and Administrative Tribunal Act 2013 (CAT Act): schedule 1, part 2, division 3, subdivision 2, item 7 of the CAT Act.
Applicable legislation
The objects of the GIPA Act as set out in s 3(1) are to advance the system of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access government information and providing that such access is restricted only when there is an overriding public interest against disclosure.
The term "government information" is given a wide meaning by s 4, being defined as "information contained in a record held by an agency". It will be noticed that the Act's focus is "information", rather than the narrower concept of "documents" which was the focus of the previous legislation. "Agency" is also defined in s 4 and includes "(a) a Government Department". It is not disputed that Treasury is such a department and therefore an agency to which the legislation applies.
The Act establishes a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss 11 and 14.
With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s 12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure.
There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure".
In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner. Clause 2 of schedule 1, however, establishes a conclusive presumption of an overriding public interest against disclosure of Cabinet information:
2 Cabinet information
(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information (referred to in this Act as Cabinet information) contained in any of the following documents:
(a) a document that contains an official record of Cabinet,
(b) a document prepared for the dominant purpose of its being submitted to Cabinet for Cabinet's consideration (whether or not the document is actually submitted to Cabinet),
(c) a document prepared for the purpose of its being submitted to Cabinet for Cabinet's approval for the document to be used for the dominant purpose for which it was prepared (whether or not the document is actually submitted to Cabinet and whether or not the approval is actually given),
(d) a document prepared after Cabinet's deliberation or decision on a matter that would reveal or tend to reveal information concerning any of those deliberations or decisions,
(e) a document prepared before or after Cabinet's deliberation or decision on a matter that reveals or tends to reveal the position that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet,
(f) a document that is a preliminary draft of, or a copy of or part of, or contains an extract from, a document referred to in paragraphs (a)-(e).
(2) Information contained in a document is not Cabinet information if:
(a) public disclosure of the document has been approved by the Premier or Cabinet, or
(b) 10 years have passed since the end of the calendar year in which the document came into existence.
(3) Information is not Cabinet information merely because it is contained in a document attached to a document referred to in subclause (1).
(4) Information is not Cabinet information to the extent that it consists solely of factual material unless the information would:
(a) reveal or tend to reveal information concerning any Cabinet decision or determination, or
(b) reveal or tend to reveal the position that a particular Minister has taken, is taking or will take on a matter in Cabinet.
(5) In this clause, Cabinet includes a committee of Cabinet and a subcommittee of a committee of Cabinet.
In s 106 the GIPA Act prescribes a special procedure for decisions about Cabinet and Executive Council information:
106 Decisions about Cabinet and Executive Council information
(1) On an NCAT administrative review of a decision by an agency that there is an overriding public interest against disclosure of information because the information is claimed to be Cabinet or Executive Council information (as described in Schedule 1), NCAT is limited to deciding whether there were reasonable grounds for the agency's claim and is not authorised to make a decision as to the correct and preferable decision on the matter.
(2) If NCAT is not satisfied, by evidence on affidavit or otherwise, that there were reasonable grounds for the claim, it may require the information to be produced in evidence before it.
(3) If NCAT is still not satisfied after considering the evidence produced that there were reasonable grounds for the claim, NCAT is to reject the claim when determining the review application and may then proceed to make a decision as to the correct and preferable decision on the matter.
(4) NCAT is not to reject the claim unless it has given the Premier a reasonable opportunity to appear and be heard in relation to the matter.
(5) The Premier is a party to any proceedings on an application under this section.
The evidence
The issues in the present case are: (1) whether there are reasonable grounds for the respondents' claim that the allocation letter attachments and the Roadmaps, or either of them, constitute Cabinet information within the meaning of schedule 1, cl 2, and (2) whether the claimed effects under cl 1 of the Table in s 14 are made out and, if so, outweigh the public interest considerations in favour of disclosure within the test in s 13.
As s 105 of the GIPA Act places the onus of establishing that a decision made under the Act by an agency is justified on the agency in question, the respondents presented their evidence first. The respondents tendered an open affidavit sworn 15 October 2013 by Stephen Ronald Brady (exhibit R1) together with a confidential version of the same affidavit (exhibit CR2). Mr Brady deposed that he is the deputy director-general in charge of the Sector Performance and Coordination Group at the Department of Premier and Cabinet and is familiar with the management of Cabinet processes, having attended meetings of Cabinet and Cabinet committees, including the Cabinet Standing Committee on Expenditure Review (ERC). After detailing the various papers considered by ERC as part of the 2012 -13 budget process, the affidavit outlines the establishment of the Fiscal Effectiveness Office in August 2011.
Mr Brady then stated that in the 12 month period before March 2013, ERC considered quarterly whole-of-government reports, including a Treasury Cabinet paper on 21 February 2012 that contained three attachments. Two were graphic representations of whole of government savings progress and the third provided further cluster-specific advice on the Fiscal Effectiveness Office update on savings (a "cluster" is a group of government agencies within a policy area headed by a department -- for example Corrections and the court system would be part of a cluster headed by the Attorney-General's Department). One paper provided an update on the savings targets for each cluster and attached two graphic representations of whole-of-government savings progress. Another sought ERC's endorsement of new arrangements for reporting savings targets. Various other Cabinet papers submitted to ERC were also itemized.
Since March 2013,a number of Cabinet minutes from the Minister for Finance and Services providing quarterly cluster reports had been submitted to ERC providing advice and updates about the savings measures for the Finance and Services cluster and funding proposals for the 2013 -14 budget. One of those minutes provided significant detail about savings measures and financial positions of the Finance and Services cluster. The accompanying Treasury paper contained additional detailed information of various agencies' capital expenditure and savings projections. Another provided ERC with a quarterly report on the Finance and Services cluster and progress against their savings targets. The accompanying Treasury paper also contained further information on various agencies and the risks in relation to their savings targets. Mr Brady was not required for cross-examination.
At the hearing Mr Brian John Cheney, director of the Fiscal Effectiveness Office (FEO) within New South Wales Treasury adopted his open affidavit dated 15 October 2013 (exhibit R3) and the confidential version of the same affidavit (exhibit CR4). In it he described how FEO was created to provide structured monitoring and assessment by central government of the implementation of savings reforms by agencies. Before its creation, an agency's inability to meet its budget became known after it was too late to take corrective action. A tender process led to the selection of Boston Consulting Group to prepare methodology and software systems to implement this initiative. Boston presented its Rigorous Program Management (RPM) methodology and worked with the FEO team to implement it so that agencies could report to ERC on a consistent and rigorous basis.
The RPM methodology involves the creation of "Roadmaps" or detailed savings plans that have an "owner" and a "sponsor" and sets out agreed milestones against which progress can be monitored. Agencies are responsible for preparing the Roadmaps to identify savings and to develop them with the assistance of FEO. The RPM methodology was selected for its rigorous and consistent approach, with Roadmaps containing more than merely statistical or factual information. The template comprises four pages, the first requiring specific identification of the particular part or program of an agency that is to be reformed, the owner, approver and sponsor, and an overview that sets out the objectives and key metrics together with the financial background and assumptions. It also requires information about what is in scope and out of scope, details of the implementation team, key stakeholders, critical interdependencies, risks to be managed and mitigation plans. The second page requires details of the impacts of all financial and non-financial milestones. The third page is for the assessed DICE score (duration, team performance integrity, senior management commitment, local commitment and effort). The fourth page is a chart that sets out the total savings profile over time.
All savings Roadmaps prepared by agencies are rigor-tested by FEO before being uploaded into the system by Boston in the United States (see exhibit A1). FEO provides monthly reports on each cluster to facilitate discussion that their senior officers and program management office had with Treasury resource allocation staff and FEO about progress with the allocated savings targets.
FEO prepares two types of quarterly reports. First, reports provided to each cluster to be used as part of their submission to ERC on performance against budget, savings targets and emerging risks and pressures. Secondly, FEO prepares a quarterly report for ERC to identify progress against allocated savings targets at a whole-of-government level, broken down by clusters.
The quarterly reports prepared by clusters for ERC use standard templates and include three attachments designed to report progress with allocated savings targets and to provide visibility of all savings Roadmaps. Attachment B1 is a chart showing total savings targets allocated for each year comprising savings plans locked in, forecast, high level plans and savings with no plans; B2 lists all savings Roadmaps developed by the cluster and identifies projected progress against planned progress: B3 is a detailed template for agencies to report on savings Roadmaps so that discussion can occur on remedial action.
The quarterly whole-of-government reports contain detailed analysis and also highlight key risks and emerging pressures so that ERC can initiate follow-up action. These reports have been made possible by the consistent application of RPM methodology across all clusters. The Committee has expressed satisfaction that for the first time it is able to have high-quality information about the progress of savings targets, an assurance that is necessary to convince the rating agencies that the allocated targets will be achieved on time.
The allocation letter attachments. As the notice of decision stated, access to the allocation letter attachments had been refused insofar as they revealed ERC decisions on the Finance and Services cluster's Labour Expenses Cap limits as part of decisions relating to the development of the 2012 -13 budget. This was approved by ERC as a key additional budget control manager in the 2012-13 budget following a marked downward revision in Commonwealth GST revenues. It limits employee related and contract expenses across general government sector agencies as well as selected public trading enterprises.
The cap requires a reduction in identified labour costs compared with existing forward estimates averaging approximately 1 percent per annum after excluding election commitments relating to teachers in schools, practising nurses and sworn police officers.
The cap limits for the 2012-13 financial year were disclosed to the applicant in the form of the forward estimates detailed report. The data supplied was produced in response to Standing Order 52-2012-13 Budget. That decision was made with knowledge that agency data had already been made publicly available as a result of the 2012-13 budget, including Budget Paper 3, which details information about the results and services and total expenses of each service group. Although that document was already publicly available from the Parliament, Treasury decided to provide a copy to the applicant.
Treasury, in consultation with the Department of Premier and Cabinet, had been producing (in response to Standing Order 52) the end of year projections data and budget year data contained in the budgeted forward estimates detailed report since 2010. The labour expenses cap was included in 2011-12 report and was shown as a line item and not allocated across relevant accounts, due to a decision late in the budget process to introduce this particular saving.
Roadmaps. Roadmaps are created by agencies logging on to the FEO and entering information into the roadmapping template. A Roadmap is created for each savings project and identifies key milestones that need to be completed in order for the savings to be realized. The roadmap owner in the agency updates the milestones in the roadmap each month about progress achieved (or not) and that provides an early warning promoting discussion and action.
Summary information about every roadmap is submitted to the Expenditure Review Committee of Cabinet quarterly so as to provide an assurance to the committee that savings allocated to clusters as part of the annual budget process are supported by detailed and robust savings plans. Mr Cheney deposed that throughout his time as director of FEO, he had understood that the dominant purpose of any savings roadmap was ultimately its submission to the Expenditure Review Committee of Cabinet for its consideration of the progress of reforms, whether they were being achieved and, if not, considering what action to take to ensure that savings targets allocated could still be achieved with the necessary timeframe. Consistently with that belief, FEO had from its commencement in 2011 taken steps to ensure that all information held is managed as Cabinet-in-Confidence documents, with all Roadmaps dealt with appropriately and securely
The fact that for some Roadmaps only a summary of information contained in them is submitted to ERC, or in other cases together with more detailed information, did not alter the fact that, in any case, the dominant purpose for preparing any Roadmap was submission of the information to ERC. The fact that some of the information is not actually submitted to ERC did not alter the fact that the dominant purpose for preparing the Roadmap was submission of any information contained in it to the Cabinet committee for its consideration. (The applicant objected to this evidence on the basis that it constituted comment, but it was admitted on the basis that the objection related to weight.)
The affidavit also contained material relating to the public interest which, for reasons set out below, it is not necessary to consider.
In his oral evidence Mr Cheney explained that three sets of letters were sent to each agency in the course of each year, one after the budget, the second after the adjustments were made and the third as the basis for new programs. Each letter follows a decision of ERC. The allocation letters contain the forward estimates.
In cross-examination Mr Cheney agreed that it was he who had decided not to release the 30 Roadmaps. In response to Mr Izzo's questions the witness explained the process for preparing and approving the Roadmaps, stating that agencies had been given the task of preparing them in a decision in August 2011 to effectuate the role given to FEO. The new government had written to all directors-general declaring that there was a new financial responsibility regime and that directors-general (now called secretaries) would need to administer their budgets. This method would help them to do that and would hold the clusters accountable. The Roadmaps were part of that method. They had a rigorous basis, examining key aspects of progress and asking program owners to explain where they were going. About 50 percent of initiatives failed the rigour test at the first attempt. FEO would then suggest amendments to the agencies so that they could be confident of success. The signature on the Roadmap indicated that it had passed the rigour test. The witness agreed that the Roadmaps were not marked "Cabinet-in-Confidence" but said that was typical of Roadmaps.
On the basis of his experience, Mr Cheney thought that if the Roadmaps were released to the public, their preparation and submission would be delayed as special care would be taken to make them appear appropriate. As it is, some agencies submit internal budget control programs as Roadmaps, but these are less rigorous. The Roadmaps in issue in this case do not include any internal budget control plans of that nature. Release of the information sought would have a detrimental impact as agencies might not supply such detailed information. They would complete the templates, though perhaps in less detail, and some categories might not be complete. Less detailed information would not meet the rigour test and it would be necessary to seek amendments so that it did.
In re-examination Mr Cheney said that internal budget control plans have to be accepted in the spirit of helping managers to manage, but such cases would be identified to ERC. When a lack of transparency has been created in this way, FEO suggests amendments in order to help the agency to comply. Rigor testing derives a score, known as the DICE score.
The applicant did not adduce any oral or affidavit evidence, but tendered a number of documents, some of which have already been referred to. Among the documents tendered was an affidavit used in proceedings in the Industrial Relations Commission (exhibit A3), which included a Roadmap of the kind sought in the present proceedings. Mr Izzo used the document for explanatory and illustrative purposes and made it clear that he did not seek to draw inferences from it about the circumstances and manner of its disclosure.
Applicant's submissions
The applicant relied on his written submissions, which he supplemented orally. As the submissions were quite detailed, what follows can only be a summary of them.
On behalf of the applicant Mr Izzo submitted that it was insufficient for the purposes of schedule 1, cl 2(1)(b) that the information (in this case the Roadmaps) is incorporated in summary form into separate documents (in this case the quarterly whole-of- government reports and cluster reports) which are prepared for the dominant purpose of submission to Cabinet. Rather, the Roadmaps themselves must have been prepared for that dominant purpose. In National Parks Association of New South Wales Inc v Department of Lands [2005] NSWADT 124, the tribunal had rejected the department's claim for Cabinet information exemption for a consultant's report it had commissioned which had been the subject of Cabinet minutes and an executive summary of it which had been submitted to Cabinet. The tribunal held that the report itself had to have been prepared for that purpose, and not for some other purpose, namely as the basis for a Cabinet submission. To the same effect were Secretary to the Department of Infrastructure v Asher [2007] VSCA 272, [2007] 19 VR 17 and IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79.
Mr Cheney's evidence that the dominant purpose of any savings Roadmap was ultimately its submission to ERC also made clear that only a summary of the information in the Roadmaps is submitted to the Cabinet committee. The fact that there was no evidence of Roadmaps themselves ever having been submitted to ERC was strong evidence that they were not intended for submission to Cabinet. Further, Mr Cheney's evidence suggested that the dominant purpose of the Roadmaps at the time of their preparation was to enable FEO to monitor the implementation of savings reforms by agencies. The respondent's position would mean that if the information was contained in a document, the whole document, or parts of it, would be exempt.
The claim that the Roadmaps were updated after their submission to Cabinet to reflect Cabinet's deliberation and decision on matters concerning an agency's performance was not supported by evidence. For the purposes of cl 2(1)(d) it was not enough to show a general practice of updating Roadmaps in response to deliberation or decisions of Cabinet, as the clause refers to information contained in particular documents.
In relation to the claim that the allocation letter attachments fell within the conclusive presumption by reason of cl 2(1)(b), the evidence nowhere suggested that the attachments were the source of the forward estimates that eventually find their way into the budget documents. At best, the attachments provided the basis for, or assisted with, the preparation of other documents for submission to Cabinet. They were not themselves prepared for submission to Cabinet. The respondent's position would lead to the absurd result that the incorporation of forward estimates would exempt the entire allocation letter.
Nor could the attachments fall within cl 2(1)(d). Treasury had already disclosed the Labour Expenses Cap for 2012-13 for each agency. What the respondents were seeking to withhold was the allocation of that limit "between accounts". For that purpose they would need to demonstrate reasonable grounds for claiming that disclosure of the allocation "between accounts" would reveal, or tend to reveal, information concerning Cabinet's deliberations or decisions, and therefore that Cabinet had deliberated or decided upon those matters. Mr Cheney's evidence did not show that Cabinet had deliberated or decided upon the Cap limits to that level of detail. Consequently, there were no reasonable grounds for concluding that the attachments would "reveal or tend to reveal information concerning [Cabinet's] deliberations or decisions". As IPART showed, the reasonable grounds test is an exacting one.
Further, the information in the Roadmaps and the allocation letter attachments could not constitute Cabinet information as it was of a purely factual nature and therefore excluded by cl 2(4): Harris v Australian Broadcasting Corporation (1984) 1 FCR 150, 155; Re Smith and Aboriginal and Torres Strait Islander Commission [2000] AATA 512, [67]. The Roadmaps simply recorded savings targets and whether those targets had been met. Presumably the information contained in them was largely numerical and not in the nature of opinion, advice or recommendation. The allocation letter attachments simply recorded the Labour Expenses Cap limits for each agency and "between accounts". While those limits when first proposed might have been characterized as opinions, advice or recommendations, following their adoption by the relevant decision-makers, they became matters of fact.
The applicant also made submissions on the application of the public interest test which, for the reasons set out below, it is not necessary to reproduce at this point.
Consideration
Any application of the GIPA Act must start from an awareness of the legislation's object as stated in s 3(1), namely, to maintain and advance a system of responsible and representative democratic government that is open, accountable, fair and effective by opening government information to the public and providing that access to that information is restricted only when there is an overriding public interest against disclosure. In s 3(2) the Legislature expresses its intention that the Act should be interpreted and applied so as to further the object of the legislation.
That object is to be achieved through a balanced approach that seeks to reconcile the competing values recognized by the Act. As four members of the High Court pointed out in Kline v Official Secretary to the Governor-General [2013] HCA 52, "The FoI Act does not pursue its objects, as legislative purposes, at any cost. The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increase public participation and scrutiny, by making information freely available to persons on request, and in the exempting of other government processes and activities from public participation and scrutiny, in order to secure a competing public interest in non-disclosure". For some functions of government, "freedom from interference or scrutiny by members of the public.... is an essential aspect of the making of decisions" (at [37], also [46] -- [47]). The Court had earlier recognized a manifest public interest in keeping Cabinet deliberative processes confidential in Commonwealth v Northern Land Council (1993) 176 CLR 604, 615-616.
The full Federal Court case of Fisse v Secretary, Department of the Treasury [2008] FCAFC 188 concerned a freedom of information request for an executive summary of a working party report and for the report itself. The summary had been submitted to Cabinet. In his concurring judgment upholding a claim for Cabinet information exemption, Flick J noted that, "The importance of Cabinet as an institution of Executive Government, and the confidentiality ascribed by convention to its deliberations, has long been recognized. But little is known about its workings". His Honour then quoted from Walter Bagehot's The English Constitution (2nd edn 1909) a passage noting that Cabinet meetings are secret in theory and in reality. Although the most powerful body of the state, it is "a committee wholly secret. No description of it, at once graphic and authentic, has ever been given" (at [97]).
Flick J then set out with approval Blackburn CJ's description and explanation of Cabinet confidentiality in Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414, 421-22, which concluded with these words: "Cabinet secrecy is an essential part of the structure of government which centuries of political experience have created. To impair it without a very strong reason would be vandalism, the wanton rejection of the fruits of civilisation".
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 respondent bears the onus of establishing that it had reasonable grounds for the claim (s 105(1)) and it must do so on the balance (meaning preponderance) of probabilities: Jorgensen v Australian Securities and Investments Commission [2004] FCA 143, [65], 208 ALR 73, 86.
The Roadmaps. In relation to the Roadmaps, the respondents rely primarily on cl 2(1)(b) of schedule 1, which provides a conclusive presumption against disclosure of "information... contained in 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)". "Cabinet" includes a Cabinet committee such as ERC: cl 2(5).
It is common ground that there are three conditions for the operation of this clause. The first is that there be "information". It is not disputed that the data contained in the Roadmaps meet that condition.
The second condition for the operation of the provision is that the information be "contained in a document". In this case, the information is contained in the Roadmaps, and also in the quarterly whole-of-government records submitted by the Treasury to ERC, and in the quarterly reports submitted by clusters to ERC. The two kinds of quarterly reports contain information from the Roadmaps after that information has been introduced into the reports by FEO or by the relevant cluster.
The third condition for the operation of cl 2(1)(b) is that the relevant documents, in this instance the Roadmaps, and by extension the two sets of quarterly reports, are prepared for the dominant purpose of being submitted to Cabinet for Cabinet's consideration. All parties in this case accept that the words "dominant purpose" have the same meaning as in ss 118 and 119 of the Evidence Act 1995. The purpose in question must be "causative in the sense that, but for its presence " the information would not have been prepared: Secretary to the Department of Treasury and Finance v Dalla Vella [2007] VSCA 11 [13], [24].
The respondents maintain that Mr Cheney's evidence indicates that the Roadmaps are prepared for the dominant purpose of submission to ERC, whether or not they are actually so submitted. In some instances the Roadmap documents are included in the quarterly cluster reports, but they are also incorporated in the quarterly whole-of-government reports in summary form. The quarterly whole-of-government and cluster reports are prepared for the dominant purpose of being submitted to ERC for its consideration, according to the evidence of Mr Cheney and Mr Brady (exhibit R3 at [12]-[14], [17]; exhibit R1 at [9]-[10]). The respondent further submits that the quarterly whole-of-government reports are prepared by FEO for ERC (exhibit R3, [12]). The cluster quarterly reports are "prepared by clusters to [sic] the Expenditure Review Committee "(exhibit R3, [13]). That purpose has been accomplished each quarter (exhibit R1, [9]-[10]).
The applicant challenges that line of reasoning on two grounds. First, he disputes that the information is "contained in a document". It is insufficient for the purposes of cl 2(1)(b), he argues, that the information in the Roadmaps is incorporated, not verbatim, but by way of extract or summary into separate documents (the quarterly reports). The Roadmaps themselves would have to be prepared for the dominant purpose of submission to Cabinet. In support of that proposition he relies on Asher, National Parks Association and a number of similar cases. The reference to "information" in the introductory language (the "chapeau") to cl 2(1), in the applicant's submission, is a matter of relatively little moment.
The introduction of the word "information" marked a change from the orientation of the Freedom of Information Act 1989, in which the focus was documents, to a new approach of creating a right of access to information. That basic change was recognized in Richards v Commissioner, Department of Corrective Services) [2011] NSWADT 98, [40]: "It is important to note that the definitions of "government information"..... operate[s] on information alone, not, as was the case under the [ FoI Act], with respect to documents". The applicant's position is that information falls within Cabinet information principles only if it is initially recorded in a document that itself was prepared for the purpose of being submitted to Cabinet. As the respondent put it, this amounts to saying that information is forever infected by the purpose of the preparation of the document in which it was initially recorded. The essential feature is that the information in the Roadmaps is the same as the information contained in the quarterly reports. Differences in expression or form do not mean that what is being communicated is no longer the same knowledge concerning the same fact, subject matter or event. That would be to allow form to prevail over substance.
The cases cited by the applicant on this point are thus of limited assistance, as they interpret the document-based earlier New South Wales legislation or similarly structured statutes from other jurisdictions. The changed wording of cl 2(1) cannot be treated as a mere stylistic variation. It is repeated several times in s 3, the object section of the Act. Such changes in an Act are "essential features of its legislative design":Baini v R [2012] HCA 59, at [45] per Gageler J.
The then Premier, the Hon. Nathan Rees MLA, in his second reading speech to the Legislative Assembly on the GIPA Bill, made it clear that the new legislation was comprehensively adopting most of the recommendations in a special report to Parliament by the New South Wales Ombudsman under s 31(1) of the Ombudsman Act 1974 on the subject of freedom of information legislation and its reform. The report noted that access schemes in all Australian jurisdictions, the United States and the United Kingdom were about documents. The Ombudsman's community consultations had revealed a widespread view that the legislation needed updating to reflect the increasing use of electronic rather than paper-based record management systems. The report even considered, but rejected, the New Zealand approach of covering information in the minds of public officials that may not have been recorded at all (New South Wales Ombudsman, Opening up Government: Review of the Freedom of Information that Act 1989-- a special report to Parliament under s 31 of the Ombudsman Act 1974 (February 2009), Chapter 4). The report cannot, of course, be used to qualify the language of the legislation, but in this case it confirms the proper interpretation of the Act and emphasizes that the change of focus was intentional and its implications understood.
I am satisfied that the information in the Roadmaps is contained in documents prepared for the dominant purpose of submission to Cabinet. Mr Cheney's evidence was that "summary information about every Roadmap is submitted to the Expenditure Review Committee on a quarterly basis" and that information from the Roadmaps is incorporated in attachments to cluster quarterly reports, which are submitted to ERC. Every Roadmap is prepared on the same basis. It is not essential to identify whether a particular document is the source of information contained in documents prepared for Cabinet. The question is whether information is contained in a document prepared for submission to Cabinet, not whether there is a relationship of source and end-product between the two documents
Not for publication.
As Mr Izzo pointed out, the Roadmaps were not marked "Cabinet-in-Confidence", but that is not decisive, as Vincent JA (Buchanan and Redlich JJA agreeing) noted in Asher (at [19], n 12). Mr Cheney in his oral evidence stated that Roadmaps and the information contained in them were in fact consistently handled on a Cabinet confidentiality basis.
Secondly, the applicant argued that the dominant purpose element itself was not satisfied. The dominant purpose is to be ascertained as at the time the information is brought into existence: National Parks Association at [29]. The applicant contended that that the dominant purpose here was to enable FEO to monitor the implementation of savings reforms by agencies. FEO then uses the information in the Roadmaps to provide monthly reports to clusters to facilitate discussion that their senior officers and program management have with Treasury resource allocation staff and FEO about their progress.
The evidence, including that set out above, shows, however, that that the Roadmaps are prepared for the dominant purpose of submission to Cabinet. Mr Cheney stated that the documents form part of the system within the New South Wales government whereby agency spending and savings are monitored by the Cabinet committee, ERC. The Roadmaps may serve other management purposes as well, but their primary function is as part of a continuous process of supervision, advice and consultation involving the Cabinet committee, FEO and the agencies.
There could hardly be a witness better qualified than Mr Cheney, the foundation director of FEO who has supervised the RPM system, including the Roadmaps, from the outset, to give evidence about the Roadmaps' dominant purpose. This places the respondents' case in a stronger position than, for example, the respondent department in Fisse. There, the evidence of dominant purpose was given by an assistant Cabinet secretary with no direct knowledge of the creation of the document, and who had to rely on her experience of usual practice. No- one from the working party that produced the report or the executive summary was called to give evidence. A majority of the Full Court held, however, that the respondent had discharged the burden of proving dominant purpose.
The respondents' alternative submission in relation to the Roadmaps is that there were reasonable grounds for the Treasury's claim that the information is contained in a document prepared after Cabinet's deliberation or decision on the matter that would reveal or tend to reveal information concerning any of those deliberations or decisions. They submit that the Roadmaps "live" documents in the sense that they are subject to continuing amendment. While an agency prepares Roadmaps for submission to ERC, the agency also updates the Roadmaps after their submission, to reflect Cabinet's deliberation and decision on matters concerning its performance and to report on its progress in implementing savings plans consistently with Cabinet's consideration. The parties agree that the phrase "deliberation or decision" to be given the meaning expressed in Re Toomer and Department of Agriculture, Fisheries and Forestry (2003) 78 ALD 645, 677.
The applicant counters that the asserted practice is unsupported by evidence, as Mr Cheney says only that the Roadmaps are updated monthly, but does not say that the updating has any connection with Cabinet deliberations or decisions. Mr Cheney's evidence on this point indeed goes no further than saying that the agency updates the milestones in the Roadmaps about the progress achieved so as to promote discussion and, if needed, action. While the incorporation of the results of Cabinet deliberations at that stage is a reasonable possibility, the evidence does not go so far as to establish it on the preponderance of probabilities. There is a difference between inference and conjecture. "Conjecture may be plausible, but it is effectively still a mere guess": Bell IXL Investment Ltd v Life Therapeutics Ltd [2008] FCA 1457, [14].
The allocation letter attachments. The respondents claim, first, that the attachments qualify under cl 2(1)(d) as they were prepared after ERC's deliberation and decision of the Labour Expenses Cap for the Finance and Services cluster and how that was to be allocated between accounts. They were also prepared after full Cabinet's deliberation and decision on the Cap (exhibit R3, [25], exhibit CR4, [28]). The attachments set out, for the forward estimates, the allocation of labour cost adjustments across relevant accounts, consequentially on the Cap (exhibit CR4,[44]). Those attachments reflect the final budget decision agreed by ERC in respect of each agency within the Department of Finance and Services cluster. The information in them is precisely what ERC decided in respect of that cluster. The disclosure of the attachments would therefore necessarily reveal the ERC's deliberations and decisions. The difference between the attachments and the information already disclosed to the applicant is that the attachments show the allocation of expense reductions across accounts, information that has not been publicly revealed (exhibit R3, [32]). Disclosure would thus tend to reveal information concerning deliberations or decisions of ERC and full Cabinet on the allocation of labour cost adjustments between different accounts.
In the applicant's submission, that claim cannot succeed unless the evidence shows that Cabinet deliberated or decided in detail on the allocation of expenses across accounts. There is no evidence that Cabinet deliberated or decided on the Cap limits to the level of detail.
It may indeed be improbable that full Cabinet would consider such detailed matters, but it is far from improbable that a specialist Cabinet committee such as ERC would do so. Further, Mr Cheney's evidence is that disclosure of the information would "reveal decisions of the Expenditure Review Committee... as part of decisions relating to the development of the 2012-13 Budget": exhibit R3, [25]. It seems unlikely that the committee would approve the cap but not the allocation of the cap across accounts.
The respondents also submit that the attachments qualify under cl 2(1)(b). The applicant disputes that, on the basis that the evidence does not show that the attachments are the source of the forward estimates that eventually find their way into the budget documents. Further, it is not enough that the attachments assist in preparing other documents; they must themselves have been prepared for submission to Cabinet.
For the reasons set out above, is irrelevant if the attachments are the source of the forward estimates. The question is whether the information in the attachments is contained in documents prepared for the dominant purpose of submission to Cabinet. Again, Mr Cheney's evidence is that the overall cap was approved by ERC (exhibit R3, [26]), and it is unlikely that the committee would have approved the cap but not considered its distribution across accounts.
The applicant also contends that both the Roadmaps and the allocation letter attachments cannot be treated as Cabinet information because cl 2(4) excludes from that category information "to the extent that it consists solely of factual material" unless it would, relevantly, " reveal or tend to reveal information concerning any Cabinet decision or determination". The applicant contends that the Roadmaps simply record numerical savings targets and whether they have been met, and the attachments simply record the cap limits for each agency and "between accounts". While the limits when first proposed might have been characterized as opinions, advice or recommendations rather than as facts, following their adoption by the relevant decision-makers, they became matters of fact.
The statutory test, however, is whether the information consists solely of factual material, not whether it contains factual material as well as other material of a non-factual nature. In this case the information, whether in the Roadmaps or the attachments, consists to a great extent of targets, projections and estimates. While the setting of targets and the making of projections and estimates is in one sense a fact, the information itself consists also of opinions or recommendations about the desirability, likelihood and attainability of certain outcomes. It is not solely factual material. Nor does it lose that character because of the largely in numerical form. The same would be true of the budget documents themselves.
I therefore find that the respondents have discharged the onus of proving on the balance of probabilities that the respondents had reasonable grounds for their claim that the Roadmaps (under cl 2(1)(b)) and the allocation letter attachments (under cll 2 (1)(b) and 2(1)(d)) are Cabinet information and the subject of an overriding public interest against disclosure of information.
Having found that there were "reasonable grounds" in respect of both sets of information, the tribunal's jurisdiction is exhausted: IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79, [42]-[44]. It is thus not necessary to consider the application of the public interest test within ss 12 to 15 of the GIPA Act.
The decision under review is affirmed.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 21 May 2014
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