National Parks Association of New South Wales Inc v Department of Lands and anor

[2005] NSWADT 124

CITATION:	National Parks Association of New South Wales Inc v Department of Lands and anor [2005] NSWADT 124
DIVISION:	General Division
PARTIES:	APPLICANT National Parks Association of New South Wales FIRST RESPONDENT Department of Lands SECOND RESPONDENT Premier of NSW
FILE NUMBER:	043370
HEARING DATES:	17/02/2005
SUBMISSIONS CLOSED:	02/17/2005
DATE OF DECISION:	06/07/2005
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	access to documents - cabinet documents - access to documents - internal working documents - Freedom of Information Act - access to documents - cabinet documents - Freedom of Information Act - access to documents - internal working documents
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crown Lands Legislation Amendment (Budget) Act 2004 Freedom of Information Act 1989 Interpretation Act 1987
CASES CITED:	Asher MP v Department of Infrastructure (General) [2005] VCAT 410 BY v Director General, Attorney General's Department [2002] NSWADT 79 Cianfrano v Director General, New South Wales Treasury [2005] NSWADT 7 Druett v Director General, Department of Community Services [2004] NSWADT 181 Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60 Egan v Chadwick (1999) 46 NSWLR 563 FA v Commissioner of Police [2003] NSWADT 196 Hawker v Premier’s Department, unreported, District Court, NSW, Urguhart J, 17 December 1990 Kennedy v Commissioner of Police [2001] NSWADT 39 Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 Re Hudson and Department of the Premier, Economic and Trade Development (1993) 1 QAR 123 Rittau v Commissioner for Police [2000] NSWADT 186 Simos v Wilkins, unreported, District Court, NSW, Cooper J, 15 May 1996
REPRESENTATION:	APPLICANT A Cox, agent FIRST RESPONDENT N Perram, counsel SECOND RESPONDENT No appearance
ORDERS:	The decision of the Department to refuse the Applicant access to the Report is set aside; In substitution for that decision a decision is made to grant the Applicant access to the Report.

Introduction

1 The National Parks Association of New South Wales (the Association) says that since 1990 it has been leading efforts among environmental groups to change New South Wales government’s policies relating to the management of Crown lands. The Association applied to the Department of Lands under the Freedom of Information Act 1989 (FOI Act) for a copy of a Report prepared by PricewaterhouseCoopers for the Department. The Report, which was delivered in February 2004, reviewed the current system of Crown land management, Crown land licences, special leases, perpetual leases and rebates as well as the operation of Crown land reserves. The Department of Lands refused to provide a copy of the Report to the Association claiming that it was an exempt document.

2 The Association is a non-government conservation group that seeks to protect the natural areas of NSW. The Association’s focus when making this application under the FOI Act, was mainly on government policy about Crown leases. Over many decades, the Association has been concerned about proposals to convert Crown leasehold land to freehold. In the vicinity of 11,000 blocks of land in NSW, constituting some 3.5 million hectares, are leased to farmers mainly for grazing purposes. About 2,000 of these blocks have what is called “high conservation value.” Since 1990 there has been a moratorium on the conversion of these blocks to freehold title. While that moratorium was in place, lessors needed to obtain permission from the Minister of Lands to clear the land. According to Mr Cox, the executive officer of the Association, land that is the subject of Crown leases is of critical importance to the maintenance of biodiversity and to the preservation of the environment in general.

3 In August 2003 the Minister for Lands, the Hon Tony Kelly, announced a review of “all policies, strategies and legislation to improve the cost-effectiveness and sustainability of Crown land.” The parameters for the review were provided to potential consultants on 15 August 2003. PricewaterhouseCoopers successfully tendered for that contract and, in February 2004, produced the Report which is the subject of these proceedings. The government did not call for submissions from the public at that time.

4 On 6 April 2004, the Government released a mini-budget in which the Minister for Lands announced that the management of Crown lands would be reformed. According to the Treasurer when delivering the mini-budget, the government intended to convert perpetual leases to freehold title and thereby do away with the need for on-going administration. The Association saw this announcement as a lifting of the moratorium on the conversion of leases with high conservation values which had been in place since 1990. Following that announcement there were a number of Cabinet meetings dealing with the subject matter of the Report. On 22 June 2004 the Premier introduced legislation into parliament including the Crown Lands Legislation Amendment (Budget) Bill. That Bill was passed by both houses of parliament and commenced on 1 July 2004.

5 Since the passage of the legislation, the Association and other environmental groups have met with the Minister of Lands and members of his staff to express their concerns about how environmental values will be safeguarded prior to the conversion of a Crown lease and what criteria will be used to determine whether a lease will be converted to freehold title. On 13 October 2004 a further minute was presented to Cabinet containing a summary of previous Cabinet minutes on the subject of Crown land reforms and annexing a copy of the executive summary of the Report. The Association maintains that the inclusion of the executive summary of the Report was a tactic by the Department to bolster its submission that the Report falls within the “Cabinet documents” exemption under the FOI Act.

6 During the course of confidential evidence, the Applicant was excluded from the Tribunal pursuant to s 57(2) of the FOI Act. I note that the Premier is a party pursuant to s 57(6) and was invited to appear. He declined to do so.

Issues

7 There are three issues:

a) Whether Andrew Cox, the executive director of the Association, applied to the Tribunal for a review of the Department’s decision or whether that application was made by the Association. If it was made by Mr Cox personally, the question is whether he had standing to apply since the original application to the Department was made by the Association.

b) If the applicant has standing:

(i) whether the document is exempt because it is an “internal working document”?

(ii) if not whether the document is exempt either because it was prepared for submission to Cabinet or it contains matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet?

c) whether, if the document is exempt, the Tribunal has, and should exercise, an overriding discretion to release the document?

8 Both parties agree that the “person aggrieved” by the Department’s decision to refuse access to the documents, is the Association, rather than Mr Cox. Both the application under the FOI Act and the application for internal review identify the Association as the applicant. The application to the Tribunal begins with the question “Who are you?” Space is then provided for the applicant to fill in their “Family Name”, their “Given Name” and their contact details. Mr Cox wrote his own name and the contact details of the Association in these spaces. He says that he believed he was required to fill in his own name because there was no provision on the form for him to write the name of the Association. According to Mr Cox, that does not change the fact that he was acting on behalf of the Association when he made the application. The Department submitted that Mr Cox is the applicant and since he is not “a person who is aggrieved” within the meaning of that phrase in s53(3) of the FOI Act the Tribunal has no jurisdiction to hear the application.

9 Section 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act) gives the Tribunal jurisdiction to review a decision if an enactment provides that an application may be made to it for a review of any such decision. In this case the enactment is the FOI Act. Section 53(1) of the FOI Act provides that a person “who is aggrieved by a determination. . . may apply to the Tribunal for a review of the determination.” Section 53(3) sets out what is meant by a person who is aggrieved by a determination. That definition includes a “person” who has applied under s 17 for access to an agency’s document and the determination is to the effect that the agency refuses to give the person access to a document. Under s 21 of the Interpretation Act 1987, the word “person” “includes an individual, a corporation and a body corporate or politic.” The “person” who applied for access under s 17 was the Association, not Mr Cox in his personal capacity.

10 Section 73(3) of the ADT Act requires the Tribunal to look to the “substantial merits of the case without regard to technicalities or legal forms.” In my view, as a matter of substance rather than form, the Association made the application to the Tribunal. Mr Cox merely followed the directions on the form and filled in his own name under the heading “Who are you?” That heading does not ask the question “Who is the applicant?” It merely asks the person filling in the form to identify him or herself. Because the vast majority of applications for review of reviewable decisions are made by individuals, the form does not provide space for inserting the name of an applicant who is not an individual. The form is deficient in that respect, but that deficiency should not lead to the conclusion that Mr Cox has applied for a review in his personal capacity. It is clear from the fact that he identifies himself as the Executive Officer of the Association and the fact that he wrote the address and contact details of the Association on the form that he intended to lodge the application on behalf of the Association. As the application was made by the Association, the Tribunal has jurisdiction to review the decision not to provide the Association with access to the Report.

Internal working document?

11 Statutory provision. The Department’s first submission is that the Report is exempt under Cl 9 of Schedule 1 to the FOI Act because it is an internal working document. That provisions states that:

(1) A document is an exempt document if it contains matter the disclosure of which:

(a) would disclose:

(i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or

(ii) any consultation or deliberation that has taken place,

in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, and

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

(2) A document is not an exempt document by virtue of this cl if it merely consists of:

(a) matter that appears in an agency’s policy document, or

(b) factual or statistical material.

12 Issue. The Association conceded that the Report contains matter the disclosure of which would disclose an opinion, advice or recommendation that has been obtained, prepared or recorded for the purpose of the decision making functions of Government. I agree with that concession. The remaining question is whether disclosure would, on balance, be contrary to the public interest. The Association says if the Tribunal does not accept the public interest argument in relation to the entire document, then at least those parts of the Report which contain “factual or statistical material” should be released under Cl 9(2)(b). I deal first with the exception in relation to “factual or statistical material”.

13 Factual or statistical material? Under Cl 9(2)(b) a document is not an exempt document if it “merely consists of factual or statistical material.” The Department submitted that that phrase does not mean any sentence within a report which makes a statement of fact. It means “slabs” of material which could be extracted from a larger document for example, tables, appendices or the like. The Association said that the Report was likely to contain factual information including conservation values of Crown leasehold and details of the processes the Department had engaged in which led them to come to various conclusions. The Association urged the Tribunal to go through the Report line by line and delete material which could not be categorised as “factual or statistical” and disclose the remainder.

14 I am satisfied, having perused the Report, that it does not consist of merely factual or statistical material. While there is some factual information in the report, the majority of the report contains analysis and recommendations. The word “merely” in Cl 9(2) applies not only to documents which contain “only” factual or statistical material, but also to documents where factual or statistical material and allegedly exempt material are is inextricably bound together as they are in the Report. (See Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs 1 QAR 60 at [31].) Alternatively, even if the Report does contain “merely” factual or statistical material, s 25(4)(a) 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. In this case it is not practicable because the report consists of statements of fact, statements of opinion, arguments, options and recommendations. While it may be theoretically possible to extract the factual material, it is not practicable to do so because the factual and non-factual material is interwoven.

15 Public interest? The onus is on the Department to establish that its determination is justified: s 61 FOI Act. A detailed analysis of the public interest test in this context was undertaken by the Queensland Information Commissioner in Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60. I have adopted the principles in that case in relation to these proceedings. The public interest of members of the public being informed about the decision making processes of government must be weighed against any adverse effect the disclosure of the document would have on those decision making processes. The Department submitted that the nature of the documents, the need to maintain cabinet confidentiality and the fact that the government’s decision making processes on this issue have not finished were all factors which made it contrary to the public interest to disclose the information. According to the Association it is in the public interest for government to consult with interested parties prior to enacting legislation which has an impact on the environment. Members of the public were not invited to provide their views prior to the parliament enacting the legislation in June 2004.

16 Nature of the document. The Department submitted that because the subject matter of the Report was considered in at least three Cabinet minutes the content of the documents is of such a high level that disclosure would be contrary to the public interest. I am not persuaded by this argument. The public interest is not to be determined by reference to the content of the document, but rather by reference to the effect of disclosure on the decision making processes of government.

17 Cabinet confidentiality. According to the Department, there could be little more deleterious to the process of Cabinet decision making than to have advice obtained for it for that purpose publicly disclosed before Cabinet had completed the process of decision-making. The Department relied on a passage from Egan v Chadwick (1999) 46 NSWLR 563 where Spigelman CJ said at 574 - 575

When the issue of access to Cabinet documents has arisen in the context of claims for public interest immunity in the course of litigation, the Courts have recognised the significance of Cabinet confidentiality as an application of the principle of collective responsibility. However, a distinction has been made between documents which disclose the actual deliberations within Cabinet and those which are described as “Cabinet documents”, but which are in the nature of reports or submissions prepared for the assistance of Cabinet. With respect to the former the High Court has said:
"It has never been doubted that it is in the public interest that deliberations of Cabinet should remain confidential in order that the Members of Cabinet may exchange differing views and at the same time maintain the principle of collective responsibility for any decision which may be made ... Despite the pressures which modern society places upon the principle of collective responsibility, it remains an important element in our system of government.” ( The Commonwealth v Northern Land Council (1992-93) 176 CLR 604 at 615).
The documents in issue in that case were in fact documents which recorded the actual deliberations of Cabinet. The revelation of such material is inconsistent with the doctrine of collective responsibility. Documents prepared outside Cabinet for submission to Cabinet may, or may not, depending on their content, manifest a similar inconsistency: see also Attorney-General v Jonathan Cape Ltd [1976] 1 QB 752 at 770 ; Air Canada v Secretary of State for Trade [No 2] [1983] 2 AC 394 at 432-433.

18 At [39] I conclude that the Report does not record the actual deliberations of Cabinet, nor was it prepared for submission to Cabinet. Those conclusions make the remarks by the High Court in Egan v Chadwick set out above, of little assistance. In those circumstances I am not satisfied that either its status or its content makes its disclosure deleterious to the process of Cabinet decision-making.

19 Continuing process. Mr Cox gave evidence that in a meeting in September 2004, Mr Fenn, an advisor to the Minister of Lands, told him that further legislative changes being considered at that time would not deal with Crown leases. Mr Cox said that his understanding from that conversation was that while government may re-consider issues relating to Crown leases arising from concerns raised by members of the public, its consideration of issues relating to Crown leases arising from the Report had finished. That evidence is first hand hearsay and while it was admitted, I acknowledge that it is not of the most reliable kind. Robert Brodie, Senior Project Management Officer with the Department of Lands, gave confidential evidence in relation to this issue. Having taken into account all the evidence I find that that the issues relating to Crown leases arising from the Report were dealt with in the Crown Lands Legislation Amendment (Budget) Bill. Further issues have arisen as a result of consultations with other Ministers and members of the public and while the process of reviewing the policy relating to Crown leases is not yet complete, the consideration of issues relating to Crown leases arising from the Report is, in all likelihood, finished. The fact that some evidence was given confidentially prevents me from expanding on the reasons for this conclusion.

20 Conclusion. The Department has not satisfied me that disclosure of the document would be contrary to the public interest. The nature of the document itself is not relevant. I am not satisfied that either the status or the content of the document make its disclosure deleterious to the process of Cabinet decision-making. The likelihood is that that process has finished as far as the content of the Report is concerned. On the other hand, there is a clear public interest in the government being accountable for its decisions and for promoting public participation in the processes of government decision-making. The disclosure of the document would promote those interests.

Exempt as a cabinet document?

21 The Department submitted that the Report was exempt because it comes within the definition of a cabinet document in cl 1(1) to Schedule 1 of the FOI Act. Cabinet documents are one category of “restricted documents”. Section 57 sets out the procedure which the Tribunal must follow when considering restricted documents. Section 57 states that:

(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:

(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.

(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.

(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.

22 The Tribunal has previously considered the meaning of this provision. Several decisions indicate that s 57 applies to all cases concerning restricted documents and that the “application” referred to in s 57(1) and (4) is the entire application before the Tribunal. On that view, there is no need for an applicant to apply separately under s 57(1) for s 57 to be applicable. (See BY -v- Director General, Attorney General's Department [2002] NSWADT 79 at [61] to [67] per O’Connor P, FA v Commissioner of Police [2003] NSWADT 196 at [9] per O’Connor P; Druett v Director General, Department of Community Services [2004] NSWADT 181 at [45] to [46] per Higgins JM, Cianfrano V Director General, New South Wales Treasury [2005] NSWADT 7 at [29] per O’Connor P.)

23 Contrary to these decisions are the decisions in Rittau v Commissioner for Police [2000] NSWADT 186 at [38] per Robinson JM and Kennedy v Commissioner of Police [2001] NSWADT 39 at [34] and [36] per Hennessy DP which hold that s 57 is not activated unless the Applicant makes a separate application under that section. No Appeal Panel has considered the question directly.

24 The Department submitted that the approach in BY is the preferable approach and that it has been followed on more occasions than Rittau or Kennedy. It also submitted that while the language of s 57(1) suggests that a separate application is required, the better view is that the application referred to in that sub-section is the same application as is referred to in sub-section (4). I agree with this submission and that the procedure to be adopted is that expressed by O’Connor P in BY. In this case the Association did make a separate application under s 57, so the question did not arise directly.

Are there reasonable grounds for the exemption?

25 Section 57(3) requires the Tribunal to determine whether there are reasonable grounds for the claim that the Report is a restricted document. The Department submitted that there are such grounds because the document falls within Cl 1(a) and (e) of Schedule 1. The Department provided a confidential copy of the document to the Tribunal notwithstanding that a determination had not been made under s 57(3) at that stage. The relevant provisions of cl 1(1) and (2) are set out below:

(1) A document is an exempt document:

(a) if it is a document that has been prepared for submission to Cabinet (whether or not it has been so submitted), or

. . .

(e) if it contains matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet.

(2) A document is not an exempt document by virtue of this cl:

(a) if it merely consists of factual or statistical material that does not disclose information concerning any deliberation or decision of Cabinet, or

. . .

26 The Department rightly pointed out that it is not necessary for a claim under cl 1(1)(a) that the document go before Cabinet. It is sufficient if it was prepared for that purpose. We also agree that the document does not have to be prepared for the sole purpose of going before Cabinet. It is enough if submission to Cabinet is one of the purposes for which it was prepared. (Hawker v Premier’s Department unreported, District Court, NSW, Urguhart J, 17 December 1990; Simos v Wilkins District Court, NSW, Cooper J, 15 May 1996 at 10); Cianfrano v Director General, New South Wales Treasury [2005] NSWADT 7 at [35] per O’Connor P.)

27 In Re Hudson and Department of the Premier, Economic and Trade Development (1993) 1 QAR 123 at 134-135, Albietz J was considering s 36(1) of the Freedom of Information Act 1992 (Qld) (since amended) which stated that:

36.(1) Matter is exempt matter if -

a) it has been submitted, or is proposed by a Minister to be submitted, to Cabinet for its consideration and was brought into existence for the purpose of submission for consideration by Cabinet;

28 When examining the requirement that the document was “brought into existence for the purpose of submission for consideration by Cabinet” Albietz J said at [26]:

The time of the creation of the document is the time at which the purpose for its creation is to be ascertained. The fact that it was subsequently decided to annex to a Cabinet submission, a document that was brought into existence for a purpose other than submission to Cabinet for Cabinet consideration, will not bring the document within s.36(1)(a). A document which is created for the purpose of assisting in the preparation of a draft or final Cabinet submission (or some other kind of document that is being created for the purpose of submission to Cabinet) would not itself have been brought into existence for the purpose of submission for consideration by Cabinet.

29 The second part of the test in cl 36(1)(a) of the Queensland FOI Act is similar, but not identical to the test in cl 1(1)(a) of the NSW Act. While not all of the comments of Albietz J are apposite, in my view, the question this Tribunal has to answer is the question of fact as to whether the Report was prepared for submission to Cabinet. That is a question which must be determined as at the time the document was prepared.

30 A similar provision to cl 1(1)(a) was recently considered by the Victorian Civil and Administrative Tribunal (VCAT) in Asher MP v Department of Infrastructure (General) [2005] VCAT 410. Section 28(1) of the Victorian Freedom of Information Act provides:

(1) A document is an exempt document if it is-

…

(b) a document that has been prepared by a Minister or on his or her behalf or by an agency for the purpose of submission for consideration by the Cabinet;

….. or

(d) a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published.

31 Asher’s case concerned a report which the relevant agency said was to be used for the purpose of informing the Treasurer and a Minister in the preparation of a submission to Cabinet. Parts of the report were directly referred to in a cabinet submission, and the entire report was attached to another Cabinet submission. The applicant argued that the report was to provide information which the Treasurer and Minister could decide whether to use for the purposes of preparing submissions to Cabinet. Judge Bowman VP held that the purpose of the report was to provide information to the Treasurer and relevant Minister and the requirements of s 28(1)(b) and (d) had not been satisfied.

32 Similarly, evidence in this case was that the subject matter of the Report was the subject of Cabinet minutes dated 22 April 2004, 4 May 2004 and 11 May 2004. However, only the minute dated 11 May 2004 even referred to the Report. Ms King gave evidence that reforms proposed in those Cabinet minutes were endorsed by Cabinet and eventually incorporated into the Crown Lands Legislation Amendment (Budget) Act 2004 assented to on 6 July 2004. The Association has some concern that it was not until after it applied for access to the Report under the FOI Act that the executive summary of the Report was extracted and went before Cabinet. That occurred on 13 October 2004. Restricting the exemption to documents prepared for submission to Cabinet, regardless of whether or not they are submitted, ensures that “agencies can not abuse the exemption by attaching documents to Cabinet submissions merely to avoid disclosure under the FOI Act.” (See Australian Law Reform Commission and Administrative Review Council, Open Government: A Review of the Federal Freedom of Information Act 1982, Report No 77 and Report No 40 (1995) at p 110.) In this case, the fact that the Report itself did not go before Cabinet is not determinative but it does support a conclusion that it was not prepared for that purpose.

33 Evidence that the document was prepared for submission to Cabinet is contained in a confidential affidavit of the Director General of the Department, Mr Warwick Watkins dated 7 February 2005 and in an open affidavit of Ms Julie King, a senior policy officer employed by the Department. At paragraph 8 of the confidential affidavit Mr Watkins provides hearsay evidence of a conversation between two other people as the basis for his understanding of the purpose for which the Report was prepared. That evidence is second hand hearsay evidence and even though it was admitted, it is extremely unreliable. In her affidavit, Ms King said that “By around May 2000 further draft Cabinet minutes on the review had been produced by the Department and by June 2003 the Department had decided to commission external consultants to draft a report for submission to Cabinet.” While this evidence is more reliable, it does not specify the basis of her understanding that the report was for submission to Cabinet at the time the document was created. There was no first hand evidence from anyone at PricewaterhouseCoopers as to his or her understanding of the purpose for which the Report was prepared. In addition, the Disclaimer at the front of the Report does not indicate that it was prepared for submission to Cabinet. In those circumstances I am not satisfied that the Report was prepared for submission to Cabinet.

34 The Department’s alternative submission appears to be that the Report was prepared as the basis of a submission to Cabinet. (See also paragraph 11 of the Mr Watkins’ confidential affidavit dated 7 February 2005.) I do not accept that submission because the ordinary meaning of a document “prepared for submission to Cabinet” is that the document itself has been prepared for that purpose, not that it has been prepared for some other purpose, namely as the basis for such a submission.

Contains information concerning Cabinet decisions or deliberations

35 The Department also submitted that the Report is exempt under cl 1(1)(e) which provides that a document is exempt if it contains matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet. Even though the Report itself does not contain any deliberations or decision of Cabinet, the relevant question is whether the contents of the Report contains information “concerning” any such deliberations or decisions. The executive summary of the Report went before Cabinet and the Director General of the Department, Warwick Watkins, gave evidence at paragraphs 11 and 12 of his confidential affidavit about the consideration of the executive summary of the Report by Cabinet. The Department submitted that it is clear from this evidence that the subject matter of the Report appears to have been deliberated in Cabinet. The Department did not submit that the Report contained a recommendation which was adopted by Cabinet. The Department relied on the following passages in Cianfrano v Director General, New South Wales Treasury [2005] NSWADT 7 at [44] and [46] to [47]:

Ms Allars drew attention to varying views found in the case-law as to the interpretation to be given to the words ‘deliberation’ and ‘deliberative processes’. She contrasted what she saw as a narrower approach in cases such as Re Birrell and the Department of Premier and Cabinet (Nos 1 and 2) (1986) 1 VAR 230, Re Mildenhall and Department of Premier and Cabinet (1995) 8 VAR 284, Re Porter and Department of Community Services and Health (1988) 14 ALD 403 and Re Hudson and Department of the Premier, Economic and Trade Development (1993) 1 QAR 123 with the broader - and she submitted more realistic approach - reflected in the decision in the Commonwealth AAT decision of 2003, Re Toomer , previously cited. [ Re Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301] The main difference in the two approaches has to do with the extent to which it is necessary to prove in order to establish the exemption that Cabinet actually deliberated or made a decision in relation to the information which is the subject of the claim for exemption.

46 Under the broader approach Ms Allars submitted that it is enough to obtain the benefit of sub-category (e) to show that the information related to a matter of concern to Cabinet, even if neither the information nor the matter was ultimately the subject of discussion, careful consideration or decision-making. Ms Allars referred to the passage in Re Toomer where the Tribunal described the deliberations of Cabinet as ‘its thinking processes be they directed to gathering information, analysing information or discussing strategies’ at [88].

47 On this occasion it is not, the Tribunal considers, necessary to form a concluded view on the difference in the approaches found in the case-law of other jurisdictions with exemptions equivalent to sub-category (e).

36 A narrower view was taken by the District Court in Simos v Wilkins (unreported, District Court, NSW, Cooper J, 15 May 1996.) Cooper J discussed the relationship of Cl 1(a) with Cl(1)(e) at p 17:

It seems to me that in most circumstances cl (1)(a) is mutually exclusive with cl 1(1)(e). The former refers to the preparation of the document and requires consideration of the facts and circumstances and purposes of the preparation which by definition must take place before a Cabinet meeting. Such a document, therefore, would not normally contain matters the disclosure of which would disclose information concerning any deliberation or decision of Cabinet.

On the other hand, cl 1(1)(e) appears to refer to a document which contains matter which came into existence either during or after a meeting of Cabinet so that it can disclose the information referred to therein.

37 In my view the mere fact that a document, or part of a document, went before Cabinet or was considered by Cabinet when deliberating or reaching a decision, does not make the information in that document, information “concerning” any deliberation or decision of Cabinet. I agree with the comment of Albietz J in Re Hudson and Department of the Premier, Economic and Trade Development (1993) 1 QAR 123 at 141, where the Commissioner said “only documents created contemporaneously with, or subsequent to, active discussion and debate within Cabinet . . are capable of disclosing” Cabinet deliberations. A broader interpretation is not consistent with the ordinary meaning of the words and would allow agencies to abuse the exemption by attaching documents to Cabinet submissions in an effort to avoid disclosure under the FOI Act.

Factual or statistical material

38 Clause 1(2)(a) provides that a document is not exempt under that clause if it “merely consists of factual or statistical material that does not disclose information concerning any deliberation or decision of Cabinet.” The Report does not consist “merely” of factual or statistical material. (See [14] above.) In relation to the application of s 25(4), Cooper J said in Simos v Baxter, (District Court, unreported, 7 May 1996) at p 3 that because the exemption in cl 1 is based on the purpose for which the document was prepared, the discretion under s 25(4) does not apply. Once that purpose has been established, the totality of the document is exempt.

Conclusion

39 Taking into account all the evidence, I am not satisfied that there are reasonable grounds for either of the exemptions. That is the case despite the fact that the Report was produced confidentially to the Tribunal. Section 57(4) says that where the Tribunal is not satisfied that there are reasonable grounds for the claim, it is to reject the claim when determining the review application. The Tribunal has decided that its general review power under s 63 of the ADT Act is not excluded by the fact that the documents involved are restricted documents. (See BY v Director General of the Attorney General’s Department [2002] NSWADT 79 per O’Connor P). The Department submitted that the Tribunal should not follow BY on this point. I am not persuaded by anything put forward by the Department that I should not follow the Tribunal’s view in BY on this issue and I find that the Department has not discharged its onus of satisfying the Tribunal that the document is exempt under cl 1(1)(a) or cl 1(e).

Override discretion?

40 The Department submitted that, if the report is exempt, the Tribunal does not have any discretion under s 25(1)(a) of the FOI Act to release it. Section 25(1)(a) of the FOI Act provides that an agency may refuse access to a document if it is an exempt document. The Department said that, while this section gives the agency a discretion to release an exempt document, the Tribunal is not exercising power under s 25 when it is reviewing an agency’s decision. (See Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 at 88 per Smith JM.)

41 As the Tribunal has concluded that the document is not exempt, the question of whether it should grant access to the document notwithstanding a finding that it is exempt, does not arise.

Orders

The decision of the Department to refuse the Applicant access to the Report is set aside.

In substitution for that decision a decision is made to grant the Applicant access to the Report.