Patrick and Chief Executive Officer, Services Australia (Freedom of information)

This matter concerned an application for freedom of information access to a consultant's report, which had been refused by the Chief Executive Officer of Services Australia. The applicant sought access to the report, but the agency claimed it was exempt under section 34(1)(a)(ii) of the *Freedom of Information Act 1982* (Cth) as a Cabinet document. The Administrative Appeals Tribunal was required to determine whether the report was brought into existence for the dominant purpose of submission for consideration by Cabinet.

The Tribunal considered whether the report, commissioned from KPMG, was created with the primary intention of being presented to Cabinet. Evidence from both KPMG and the Department of Human Services indicated that the report was intended for the dual purposes of informing the Department about the evaluation of a pilot program and forming part of a Cabinet submission seeking approval for ongoing funding. The Tribunal also addressed the applicant's argument that the report should not be considered exempt because it was not marked as required by the Cabinet Handbook.

The Tribunal reasoned that the dominant purpose of a document is a question of fact to be determined at the time of its creation. While the report had a secondary purpose of informing the Department, the evidence strongly suggested that its primary purpose was to improve the evidence base for Cabinet's consideration of a significant change to the Department's operating model. The Tribunal rejected the submission that failure to comply with the Cabinet Handbook's marking requirements automatically disqualified the document from exemption, finding that the Handbook provided guidance on Cabinet processes, not an interpretation of the FOI Act. The Tribunal concluded that there was sufficient probative evidence to establish the dominant purpose of submission to Cabinet, and therefore the report was exempt.

The Tribunal affirmed the decision under review, finding that the report was exempt from disclosure under section 34(1)(a) of the *Freedom of Information Act 1982* (Cth).