McGuirk v Director General, the Cabinet Office (No.3)

[2008] NSWADT 296

CITATION:	McGuirk v Director General, The Cabinet Office (No.3) [2008] NSWADT 296
DIVISION:	General Division
PARTIES:	APPLICANT Gerard Michael McGuirk RESPONDENT Director General, The Cabinet Office
FILE NUMBER:	063029
HEARING DATES:	14 April 2008
SUBMISSIONS CLOSED:	28 April 2008
DATE OF DECISION:	3 November 2008
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Freedom of Information Act - access to documents - cabinet documents - Freedom of Information Act - access to documents - internal working documents - Freedom of Information Act - access to documents - legal professional privilege
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	BY v Director-General, Attorney General’s Department [2002] NSWADT 79 Cianfrano v Director General, Premier's Department [2007] NSWADT 216 Howell v Macquarie University [2008] NSWCA 26 Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 McGuirk v Director General, The Cabinet Office [2007] NSWADT 9 McGuirk (No. 2) v Deputy Director General, The Cabinet Office, New South Wales [2007] NSWADT 301 Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55 Robertson v Minister for Planning [2008] NSWADT 240 Secretary, Department of Justice v Osland [2007] VSCA 96 University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 Waite v Hornsby Shire Council [2007] NSWADT 265
REPRESENTATION:	APPLICANT In Person RESPONDENT M Dalla-Pozza, solicitor
ORDERS:	1. The Respondent’s decision is affirmed 2. No orders are made pursuant to section 58 of the FOI Act.

1 Mr McGuirk applied under the Freedom of Information Act 1989 (“the FOI Act”) for access to documents held by the Respondent. He was not satisfied with the determination of his application and sought review in this Tribunal. The history of the matter is set out in McGuirk v Director General, The Cabinet Office [2007] NSWADT 9.

2 In that decision I found that the documents in issue are restricted documents falling within the Cabinet documents exemption in Clause 1 of Schedule 1 to the FOI Act. I found that the Respondent had established that documents 1-3, 11, 13, 15-20, 22 and 23 fell within the exemption in clause 1(1)(b) of Schedule 1 and that documents 4-23 fell within the exemption in clause 1(1)(e) of Schedule 1. I made no finding in relation to the other exemptions claimed by the Respondent.

3 However, in light of the decision of Nicholas J in University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362, I determined that the parties should have an opportunity to present further argument. Nicholas J held that section 63 of the Administrative Decisions Tribunal Act 1997 (“the 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 (“the override discretion”).

4 The matter was set down for further hearing with respect to how the Tribunal’s the override discretion should be exercised. However, prior to completion of the hearing Mr McGuirk requested that I make an order that the Crown Solicitor be barred from representing the Respondent in these proceedings. My decision in relation to that issue is recorded as McGuirk (No. 2) v Deputy Director General, The Cabinet Office, New South Wales [2007] NSWADT 301.

5 The matter was subsequently re-listed and the parties have presented argument with respect to the exercise of the override discretion.

The Applicant’s case

6 Mr McGuirk asserted that the correct and preferable decision in this matter is that the documents in issue be released. He referred to a public outcry in relation to a proposal to permit the concurrent holding of the offices of the Ombudsman and the Independent Commission Against Corruption. He contends that the issue was the subject of significant media coverage and became one of public notoriety. He also alleges that the proposed merger of the offices was for an improper purpose.

7 While he concedes that there may be good reason for refusing to release the documents, but he submits that the Respondent must establish that those reasons exist, based on relevant facts.

8 Mr McGuirk also asserted that there was corrupt conduct on the part of the former Premier and that he has raised issues in this regard with the ICAC. He submitted:

“Where the evidence indicates, or give rise to a reasonable suspicion of, improper or corrupt conduct on the part of public officials, then - subject to any overriding interest of national security – the correct and preferable decision by the Tribunal must be to order the release of those documents.

In this case, the evidence of improper and/or corrupt conduct at the most senior levels during the term of the (former) Carr government of New South Wales is overwhelming. …

The only decision open to the Tribunal under such circumstances is to order the release of the documents which will either reveal such improper and/or corrupt conduct, or demonstrate that the Executive Government has acted properly.”

9 Mr McGuirk argues that the documents should be released to clarify the situation. He says that if there is nothing to hide, the documents should be released to show that to be the case. If however, the documents show corrupt conduct, then the individuals concerned can be held accountable.

10 Mr McGuirk further submits that the documents in issue date back to 1999 and therefore Clause 1 of Schedule 1 to the FOI Act will have no application from 2009. Accordingly, the documents will be available from 2010. He submits that there is therefore little to be gained by not releasing the documents now.

The Respondent’s case

11 The Respondent formally submitted that the Tribunal does not have power to order the release of documents that are exempt under the FOI Act. That is, the Respondent submits that Nicholas J's decision in University of New South Wales v McGuirk is incorrect. However, for practical purposes, the Respondent proceeded on the basis that the Tribunal is presently bound by his Honour's reasoning.

12 The Respondent submits that if the override discretion does exist, it does not apply to documents that are exempt pursuant to Clause 1 of Schedule 1 to the FOI Act. The Respondent argues that, in the case of restricted documents, the jurisdiction of the Tribunal does not arise from section 63 of the ADT Act, but arises instead from section 57 of the FOI Act. It says that section 57 of the FOI Act imposed an alternative and inconsistent test of jurisdiction to that in section 63 of the ADT Act. Section 40(2) of the ADT Act provides that in the event of inconsistency between the ADT Act and any contrary provision (whether express or implied) in another relevant enactment, priority should be given to the provisions in that other relevant enactment. Therefore, it is submitted, section 57 of the FOI Act should be given priority over section 63 of the ADT Act.

13 The Respondent further argues that decisions of the Tribunal that found contrary to that submission, such as BY v Director-General, Attorney General’s Department [2002] NSWADT 79, have been wrongly decided. The Respondent submits that the decision of BY should be reconsidered.

14 In the alternative, the Respondent submits that the present case is not an appropriate case for the exercise of the override discretion.

15 The Respondent submits that in exercising the override discretion, the Tribunal should be aware that Parliament intended there be a balance struck between the right of the public to access documents and the sometimes competing consideration of "the proper administration of the Government". It argues that Parliament has already struck this balance by enacting a number of detailed statutory exemptions to the general right of access. In these exemptions, Parliament has set out in some detail the considerations that the agency (and, therefore, the Tribunal) should take into account in evaluating these competing considerations. This leaves little room, as a matter of practicality, for the exercise of the override discretion. However, it is submitted, if the override discretion exists, then this must be because there is considered to be a possibility that, on the facts of a particular case, the balance has not been struck and the override discretion should apply.

16 For guidance in relation to the issue of the approach to be taken in the exercise of the override discretion the Respondent points to views expressed by Smith JM in Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 ("Mangoplah"). At paragraph [90]-[91] of Mangoplah Smith JM expressed the test in the following way:

"90 In general, whether there is occasion to exercise the override discretion must depend upon the particular exemption and the circumstances of the case. The statutory criteria for some exemptions themselves bring into balance all public interest considerations, which could favour release or justify withholding. Other exemptions have more limited criteria. For these, satisfaction of the criteria provides a justification for withholding the document, but does not complete the decision-making. The decision-maker must decide whether there is something about the information itself or the surrounding circumstances, which, bearing in mind the objects of the FOI Act and the rationale for any exemption which has been satisfied, persuades him or her that the exemption should not be claimed. The touchstone is whether withholding the document is “reasonably necessary for the proper administration of the Government” (section 5(2)(b)).

91 Framing the question in this way produces a need to locate special or overriding circumstances or interests before an exempt document is released, but only in the sense that some reason particular to the circumstances should be found for not claiming the exemption. I would not see the question as necessarily suggesting that such a release would be rare, unusual or exceptional. In some areas of government, there may be many documents which fall within an exemption but, for example, whose public interest in release is overwhelming, or whose potential for relevant damage is so obviously remote as to leave disclosure totally innocuous."

17 With some reservations, the Respondent accepts that the test advanced by Smith JM in Mangoplah sufficiently reflects the necessary balance between the right of access and the proper administration of government. The Respondent submits that any release ordered in situations where the statutory exemption has been made out would almost certainly be ‘rare, unusual or exceptional’. It submits that Mr McGuirk would have to show that, despite the express language of Parliament (in the form of the exemption which has been made out), Parliament intended the documents be released.

18 In response to Mr McGuirk’s arguments in support of release of the documents, Mr Dalla-Pozza submits that the fact that there may have been a public outcry in relation to the proposal to merge the ICAC and Ombudsman roles, or policy considerations such as the desirability of greater transparency in decision making by the executive, are not a basis for exercising the override discretion. In support of that submission Mr Dalla-Pozza points to the decision in Waite v Hornsby Shire Council [2007] NSWADT 265. In that matter Higgins JM discussed these issues in the context of applying the judgement in Secretary, Department of Justice v Osland [2007] VSCA 96. She also discussed a number of matters in which this Tribunal had applied the reasoning of that case.

19 Mr Dalla-Pozza also submits that the fact that the 10-year time limit has almost expired does not assist Mr McGuirk. He argues that the Tribunal has been left little room for the exercise of the override discretion because the FOI Act expresses the time as a precise limit.

20 Mr Dalla-Pozza further argues that Mr McGuirk has the burden of producing evidence in support of his assertion that the proposed merger of the Ombudsman and the ICAC offices was for an improper purpose. He submits that Mr McGuirk has not discharged that burden. While he concedes that there may be some public interest in clearing the air in regard to the alleged corruption and improper purpose, Mr Dalla-Pozza says that any such public interest is outweighed by the public interest in ensuring cabinet confidentiality.

Discussion

21 I note the Respondent submission that on the basis of Nicholas J's reasoning in University of New South Wales v McGuirk the Tribunal is unable to release a document if it is satisfied that the document is exempt pursuant to Clause 1 of Schedule 1 to the FOI Act. There is some uncertainty as to whether the Tribunal’s jurisdiction is limited by section 57 of the FOI Act. If that is the case, the Tribunal cannot make an order to release an exempt document pursuant to section 63 of the ADT Act.

22 In BY v Director-General, Attorney General’s Department the Tribunal’s President held that the Tribunal was not limited to satisfying itself that there were reasonable grounds for the decision that a document was restricted, but instead had power to conduct a full merits review of the agency’s decision.

23 Acting Deputy President Handley disagreed with the approach urged by the Respondent in Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55 where he stated at paragraph [51]:

51 Ms Johnson suggested that the residual discretion might not apply in the case of documents found to be exempt under clause 1 because they are Cabinet documents. In my view, such an absolute exemption only applies in the case of a Cabinet document in respect of which the Minister, pursuant to section 59 of the FOI Act, has signed a certificate stating that the document is a restricted document. Otherwise, a document found to be exempt under clause 1 is subject to the residual discretion. However, in considering the exercise of the residual discretion in respect of such a document, account must be taken of section 5(2)(b) and whether or not such a restriction is reasonably necessary for the proper administration of government.

24 The Tribunal’s President has subsequently indicated that the issue is still alive. In Cianfrano v Director General, Premier's Department [2007] NSWADT 216 (“Cianfrano”) he stated at paragraph [40] -[41]:

“40 The agency’s contention is that the Tribunal’s jurisdiction in respect of restricted documents is exhausted once it is demonstrated that there are reasonable grounds demonstrated for asserting the exemption. The agency has taken the opportunity of this case to ask me to revisit views I expressed in the case of BY v Director General, Attorney General’s Department [2002] NSWADT 79 as to the relationship between section 57 of the FOI Act and the ordinary review jurisdiction of the Tribunal in FOI matters. There I held that section 57 did not have the effect of precluding the Tribunal to go on, where reasonable grounds existed, and decide whether the exemption was made out. My reasons parallel to some degree the kind of reasoning that prevailed in the Supreme Court in the UNSW case, in that I referred to the role of the Tribunal under section 63 (in this instance section 63(1) not section 63(2), and saw as significant the absence of any express ouster provision.

41 Careful and detailed arguments were put as to why my reasons in BY were wrong. I accept that the reasoning in BY is not free from doubt. While accepting that there is a desire that the question be revisited, I am reluctant to do that on this occasion. The Tribunal has before it a straightforward and narrow circumstance – the official record of a Cabinet deliberation.”

25 In my view, there is merit in the argument presented by the Respondent. However, as was the case in Cianfrano, I do not consider that the present matter provides the necessary opportunity for the question to be revisited. I propose to proceed on the assumption that a document found to be exempt under clause 1 of Schedule 1 to the FOI Act is subject to the override discretion. I must therefore consider the approach to be taken in exercising that discretion.

26 The Appeal Panel examined the nature and extent of the override discretion in the decision in University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8. The Appeal Panel stated at paragraph [18]:

“18 [T]he Supreme Court in University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 … provide useful guidance as to the nature and extent of the Tribunal’s powers. As with most discretionary powers, the decision maker must identify and weigh relevant considerations before making a decision. The FOI Act requires discretions be exercised, as far as possible, so as to facilitate the disclosure of information: section 5(3)(b). Consistently with the objects of the FOI Act, and the means by which those objects are to be achieved, it can be assumed that the exemptions were included because parliament considered that they were “reasonably necessary for the proper administration of the Government”. In that sense, the balancing exercise between competing public interest considerations has already been undertaken. Nevertheless, a relevant consideration when exercising the discretion is whether there is a reason, particular to the circumstances of the case, for giving access to such documents. 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: See Department of Premier and Cabinet v Hulls [1999] VSCA 117; Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55.”

27 A differently constituted Appeal Panel again considered the issue of the discretion in McGuirk v University of New South Wales (GD) [2008] NSWADTAP 17. In relation to the onus of proof the Appeal Panel stated at paragraph [40]:

"40 The onus of establishing that the documents should not be released is on the University: FOI Act, section 61. Contrary to Mr Singleton’s submission, that means that even if Mr McGuirk has not put forward a sufficient reason for releasing the document, the Tribunal may nevertheless come to the view that the University should have exercised its discretion to give access to the document.”

28 I agree with the Respondent that a high degree of protection attaches itself to Cabinet documents. Any release of an official record of Cabinet, other than by decision of the Premier or the Cabinet, is at odds with the long established conventions surrounding the operation of the Cabinet in the Westminster system of Government. I discussed those conventions to some extent in Robertson v Minister for Planning [2008] NSWADT 240. I will not repeat the discussion here.

29 There must be special, overriding or strong reason to override that protection. There is no doubt that it is in the public interest that genuine public participation in the processes of government decision-making be promoted or that it is in the public interest that government decision-making is transparent and accountable.

30 I note that Mr McGuirk asserted improper or corrupt conduct on the part of public officials. The burden falls upon him to provide prima facie evidence to support that allegation. In Howell v Macquarie University [2008] NSWCA 26 Campbell JA, with whom Spigelman CJ and Bell JA agreed, stated at paragraph [88]

88 In the particular context of this case, section 61 imposes on the University the burden of establishing that the documents in question were the subject of legal professional privilege. ... If someone opposing the claim of privilege presents some prima facie evidence that the allegation of improper purpose has a foundation in fact, the burden of establishing that there is no improper purpose then falls on the University. However, there needs to be the prima facie evidence that the allegation of improper purpose has a foundation in fact before the overall burden of proof that the University bears requires it to rebut the allegation of improper purpose.

31 Applying that reasoning to the circumstances of this matter requires that Mr McGuirk present prima facie evidence that the allegation of improper purpose has a foundation in fact. Mere assertion is not sufficient.

32 In the present case I am not satisfied that Mr McGuirk has put forward sufficient reason to displace the assumption that the nondisclosure is reasonably necessary for the proper administration of Government. However, applying the reasoning in McGuirk v University of New South Wales (GD) [2008] NSWADTAP 17 to the present case, it is still open to me to find that Mr McGuirk should be given access to the documents. In order for me to reach that conclusion, I would need to be satisfied that there were special, overriding or strong reasons for doing so. In some circumstances a tribunal could form the view that such reasons existed after reviewing the documents themselves. I have not had the opportunity to review the documents in this matter, however I note that there is no material before me that leads me to the conclusion that the Respondent should have exercised its discretion to give Mr McGuirk access to the documents.

33 If the Tribunal does have the power to order release of a document found to be exempt under clause 1 of Schedule 1 to the FOI Act, I would not exercise it on this occasion. That being the case, it is my view that the correct and preferable decision is that the documents should not be released to Mr McGuirk.

34 I note that Mr McGuirk has also sought a report under section 58 of the FOI Act to bring matters to the attention of the responsible Minister. In my view, a finding that an officer failed to exercise in good faith a function conferred or imposed by the FOI Act is not open on the evidence before me. I am not satisfied that any officer of the Respondent engaged in any conduct falling within section 58 and therefore I make no orders under this section.

Order

1. The Respondent’s decision is affirmed

2. No orders are made pursuant to section 58 of the FOI Act.