CITATION: Cianfrano v New South Wales Treasury [2008] NSWADT 182 DIVISION: General Division APPLICANT Robert Cianfrano PARTIES: RESPONDENT New South Wales Treasury FILE NUMBER: 073352 HEARING DATES: 5 June 2008 SUBMISSIONS CLOSED: 5 June 2008 DATE OF DECISION: 24 June 2008 BEFORE: Handley R - Deputy President CATCHWORDS: Access to documents – cabinet documents - executive council documents - legal professional privilege MATTER FOR DECISION: Principal matter Freedom of Information 1989 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Crown Lands Act 1989 Interpretation Act 1987 Cianfrano v Department of Premier and Cabinet [2008] NSWADT 141 CASES CITED: University of NSW v McGuirk (No 2) [2008] NSWADTAP 8 BY v Director General, Attorney General's Department [2005] NSWADT 79 APPLICANT C Saggers, agent REPRESENTATION: RESPONDENT A Johnson, solicitor ORDERS: The Tribunal affirms the Respondent's decision to refuse access to document 9 and the attachment to document 2, and to only provide partial access to document 6. REASONS FOR DECISION 1 This matter involves an application by Robert Cianfrano for the review of a decision of the New South Wales Treasury ('the Respondent') dated 22 October 2007 made under the Freedom of Information Act 1989 ('the FOI Act') to refuse access to the whole or part of eleven documents on the ground that the documents are either wholly or partly 'exempt'. Background 2 By letter dated 23 August 2007, Mr Cianfrano sought access to documents relating to "the sale of the Flemington markets property and the Paddy's Market lease to Sydney Markets Ltd", including documentation relating to the Governor's approval of the sale. 3 By letter dated 2 October 2007, Susan Power, the Director of Property and Planning in the New South Wales Treasury, identified 12 relevant documents as within the scope of the application. She determined that one document would be released in full, two documents would be released in part and that the remaining nine documents would not be released on the grounds that the documents were partially or wholly exempt, respectively. Mr Cianfrano sought an internal review of this decision and, on 22 October 2007, the Deputy Secretary of the Respondent confirmed the decision after conducting an internal review. On 27 November 2007, Mr Cianfrano lodged an application for a review of this decision with the Tribunal. 4 At a Planning Meeting with the parties on 12 February 2008, and with the agreement of the parties, I remitted the decision to the Respondent for reconsideration pursuant to section 65(1) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). By letter dated 22 February 2008, having reconsidered the matter, the Respondent determined that three documents were wholly exempt and two documents were partially exempt, and that the remaining documents could be released in full. 5 At the date of the hearing, the release of only three documents remained in issue between the parties, described in the Respondent's Schedule as follows: Document 9 : "Cabinet Standing Committee on the Budget – Minutes of Meeting approving the sale of Flemington Markets" - exempt in full, relying, first, on clause 1(1)(a) of Schedule 1, on the ground that it is a document prepared for submission to Cabinet, and, second, on clause 1(1)(e) on the ground that its release would disclose information concerning a deliberation or decision of Cabinet. Attachment to Document 2: an Executive Council Minute, approved by the Governor, authorising the sale of the Flemington Markets – exempt in full, relying on clause 2(1)(a) of Schedule 1, on the ground that that it is a document prepared for submission to the Executive Council. Document 6: "Submission to the Treasurer seeking his signature on the Cabinet Minute regarding the sale of the Flemington Markets and rail siding. The Cabinet Minute includes advice on the background to the sale, comparison of offers, sale agreement with Sydney Markets Limited and direct dealing with proponents. Attachments to the submission are a copy of a previous advice to the Treasurer (24 October 2001), a site valuation (prepared by Phillip Bennett and Associates), legal opinion on lease issues, sale of the rail siding to the then State Rail Authority, probity report and special conditions of the sale." Exempt in respect of those parts in respect of which the Respondent relies, first, on clause 1(1)(a) of Schedule 1, on the ground that a document is one prepared for submission to Cabinet and contains information on commercial and business arrangements and negotiations, second, on clause 1(1)(e), on the ground that the release of a document would disclose information concerning a deliberation or decision of Cabinet, and, third, on the ground that a document contains information that is privileged from production on the grounds of legal professional privilege in that the advice was provided in a professional capacity. The Respondent also noted that part of document 6 was outside the scope of Mr Cianfrano's FOI application. The Relevant Legislation 6 The objects of the FOI Act are stated in section 5, as follows: 5 Objects (1) The objects of this Act are to extend, as far as possible, the rights of the public: (a) to obtain access to information held by the Government, and (b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading. (2) The means by which it is intended that these objects are to be achieved are: (a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and (b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and (c) by enabling each member of the public to apply for the amendment of such of the Government's records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading. (3) It is the intention of Parliament: (a) that this Act shall be interpreted and applied so as to further the objects of this Act, and (b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information. (4) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records as permitted or required by or under any other Act or law. 7 Pursuant to section 16(1) of the FOI Act , "[a] person has a legally enforceable right to be given access to an agency's documents". However, section 25(1)(a) states that an agency "may refuse access to a document" if it is an "exempt document", the onus being on the agency to establish this. Section 25(4) provides that an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and it appears to the agency that the FOI applicant would wish to be given access to such a copy. 8 Section 6(1) defines 'agency' as including a Government Department, and 'exempt document' as including a document referred to in any one or more of the provisions of Schedule 1. The exempt documents in Schedule 1 include, relevantly, those specified in clause 1 and clause 2 of "Part 1 – Restricted documents", and clause 10 of "Part 3 – Other documents", as follows: 1 Cabinet documents (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 (b) if it is a preliminary draft of a document referred to in paragraph (a), or (c) if it is a document that is a copy of or of part of, or contains an extract from, a document referred to in paragraph (a) or (b), or (d) if it is an official record of Cabinet, or (e) if it contains matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet. (2) A document is not an exempt document by virtue of this clause: (a) if it merely consists of factual or statistical material that does not disclose information concerning any deliberation or decision of Cabinet, or (b) if 10 years have passed since the end of the calendar year in which the document came into existence. (3) Sub-clause (2)(b) does not apply to a document that came into existence before the commencement of this clause. (4) In this clause, a reference to Cabinet includes a reference to a committee of Cabinet and to a subcommittee of a committee of Cabinet. 2 Executive Council documents (1) A document is an exempt document: (a) if it is a document that has been prepared for submission to the Executive Council (whether or not it has been so submitted), or (b) if it is a preliminary draft of a document referred to in paragraph (a), or (c) if it is a document that is a copy of or of part of, or contains an extract from, a document referred to in paragraph (a) or (b), or (d) if it is an official record of the Executive Council, or (e) if it contains matter the disclosure of which would disclose information concerning any deliberation or advice of the Executive Council. (2) A document is not an exempt document by virtue of this clause: (a) if it merely consists of: (i) matter that appears in an instrument that has been made or approved by the Governor and that has been officially published (whether in the Gazette or elsewhere), or (ii) factual or statistical material that does not disclose information concerning any deliberation or advice of the Executive Council, or (b) if 10 years have passed since the end of the calendar year in which the document came into existence. (3) Sub-clause (2)(b) does not apply to a document that came into existence before the commencement of this clause. 10 Documents subject to legal professional privilege (1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege. (2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency's policy document. 9 Section 57 applies specifically to "restricted documents", defined in section 6(1) as meaning "a document referred to in any one or more of the provisions of Part 1 of Schedule 1". Section 57 states: 57 Consideration of restricted documents (1) The Tribunal may, on the application of the review applicant, consider the grounds on which it is claimed that a document is a restricted document, but only if the document is not subject to a Ministerial certificate. (2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of: (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. Evidence 10 Susan Power, the Director of Property and Planning in the New South Wales Treasury, provided a statement dated 16 May 2008 and gave evidence at the hearing. She has served in her current position for the past nine years. She stated that she had peripheral involvement with the sale of the Sydney Markets property, her main involvement being to review briefing notes and submissions. 11 Ms Power stated the Sydney markets site on Parramatta Road, which was owned by the Crown, was leased to Sydney Markets Ltd. Following a dispute between SML and the Government over the terms of the lease, the Government decided to sell the Sydney Markets site and the sale was ultimately approved by Cabinet on 1 July 2002. 12 Ms Power said the attachment to document 2 is an Executive Council Minute, signed by the Treasurer, which would have been submitted to a meeting of the Executive Council for approval by the Governor. 13 Ms Power said document 6 is a submission to the Treasurer from the New South Wales Treasury to approve the Cabinet Minute that forms part of the submission. The document has been released in part. Those parts not released reflect the content of the Cabinet Minute, concern the business affairs of Sydney Markets Ltd (which are outside the scope of the FOI application), or the instructions given to the Crown Solicitor by the New South Wales Treasury in relation to the sale. 14 Ms Power said document 9 is an extract from the official minutes of the Cabinet Standing Committee on the Budget, and is, therefore, an official record of a Cabinet Budget Subcommittee. The Respondent's Submissions 15 The Respondent filed written submissions on 19 May 2008 and Ms Johnson made oral submissions on its behalf at the hearing. The Respondent submitted that document 9, an extract from the official minutes of the meeting of the Cabinet Standing Committee on the Budget, is exempt under Schedule 1, clause 1(1)(d) because it is an official record of Cabinet. A claim for this exemption was upheld in Cianfrano v Department of Premier and Cabinet [2008] NSWADT 141 ('Cianfrano 141'), at paragraph 56. 16 The attachment to document 2 is a briefing note for the Treasurer to be used in preparation for the Treasurer's attendance at the Executive Council. It is exempt under clause 2(1)(d), as the Tribunal found in Cianfrano 141, at paragraph 55. 17 Document 6 is a submission to the Treasurer from the New South Wales Treasury to approve the attached Cabinet Minute. The attached Cabinet Minute and the submission to the Treasurer are exempt under clause 1(1)(a). Document 6 also refers to instructions given to the Crown Solicitor in relation to the sale of the Sydney Markets site in respect of which the legal professional privilege exemption in clause 10 applies. 18 With regard to the exercise of the residual discretion, and referring to the Appeal Panel decision in University of NSW v McGuirk (No 2) [2008] NSWADTAP 8, the Respondent submitted, in relation to the claimed exemption for legal professional privilege, that the advice was essential to the proper administration of government. The Respondent submitted that the residual discretion is incapable of applying to 'restricted documents', that is those falling within Part 1 of Schedule 1. 19 Alternatively, if the Tribunal finds that the residual discretion can apply, the Respondent submits there is government policy that prevents the Tribunal from exercising this power, namely the Premier's Memorandum No 2006-08 – Maintaining Confidentiality of Cabinet Documents and Other Cabinet Conventions, dated 7 June 2006 ('the Premier's Memorandum'). The Respondent submits the Tribunal is prohibited by section 64 of the ADT Act and the Premier's Memorandum from exercising its discretion to disclose document 9 and the relevant parts of document 6. Furthermore, the status of Cabinet and Executive Council documents means that ordinarily they should not be disclosed. 20 Finally, the Respondent submits there is no particular public interest in disclosure of the documents, as the Tribunal found in Cianfrano 141, at paragraph 84. 21 With regard to Mr Saggers' submissions in relation to the application of the exception in clause 2(2)(a)(i) (referred to below), Ms Johnson said the exception only applies to instruments that have been "officially published". This indicates publication in the Government Gazette or some similar official publication. There is no evidence of that happening here. Mr Cianfrano's Submissions 22 Mr Cianfrano filed written submissions on 24 April 2008 and Mr Saggers made oral submissions on his behalf at the hearing. Mr Cianfrano emphasised that, pursuant to section 61 of the FOI Act, the Respondent bears the burden of proof in justifying its determination. He said it is to the official instrument of the Governor's approval of the sale of the Sydney Markets site that this FOI application is primarily directed. Mr Saggers confirmed that it is the attachment to document 2 that is the principal focus of this application. Mr Saggers said that if the whole of the document cannot be disclosed, Mr Cianfrano would accept access to at least part of the document, if practicable (section 25(4) of the FOI Act). 23 Mr Saggers noted a discrepancy between the exemptions claimed in Ms Power's affidavit and those relied on by the Respondent in these proceedings. With regard to the claimed exemption for the attachment under clause 2(1)(a), Mr Saggers submitted that the exception in clause 2(2)(a)(i) should apply to the document, presuming it is an 'instrument' made or approved by the Governor. He noted that the Sydney Markets site is likely to be Crown land, so that the provisions of the Crown Lands Act 1989 apply and special conditions attach to the sale of the land: for example, requiring the sale to be in the best interests of the State (section 11(f)), and as to the giving of notice of intention of a proposed sale (section 34(3)). Discussion 24 The issues in this case are similar to those determined by me in Cianfrano 141, and there is no utility in repeating here my analysis of the relevant law. In that decision, at paragraph 50, I expressed my view, consistent with that of the President of the Tribunal in BY v Director General, Attorney General's Department [2005] NSWADT 79, that the first step in respect of a claim that documents are 'restricted documents' under clause 1 or clause 2 of Schedule 1 is for the Tribunal to determine whether there are reasonable grounds for the claimed exemptions. Having undertaken this step, and assuming that there are reasonable grounds, the second step requires the Tribunal to consider whether the decision made was the correct and preferable decision. There are two parts to this second step: (1) is the agency able to justify its decision to claim an exemption in respect of the documents; and, (2) if the agency is able to justify the exemption, should the agency, nevertheless, have exercised its residual discretion to release the document to the applicant? 25 Turning to the three remaining documents in issue in this matter, all involve a claim under either clause 1 or clause 2 of Schedule 1. With regard to document 9, the Respondent submits this is exempt under clause 1(1)(d) because it is an official record of Cabinet. In Cianfrano 141, at paragraph 56, I found from the description of the same document, the Minutes of the Standing Committee on the Budget dated 29 November 2001, that there were reasonable grounds for the claim. I am not satisfied that there is any basis for me to differ from that finding, which I therefore confirm. For the reasons stated in that decision, which apply equally here, I am also satisfied that the Respondent's claim in respect of this document is justified. 26 With regard to the attachment to document 2, which the Respondent submits is exempt under clause 2(1)(d) because it is an official record of the Executive Council, in Cianfrano 141, at paragraph 55, I found from the description of the same document, an approved Executive Council Minute authorising the sale of the Flemington Markets, that there were reasonable grounds for the claim. I am not satisfied that there is any basis for me to differ from that finding, which I therefore confirm. For the reasons stated in that decision, which apply equally here, I am also satisfied that the Respondent's claim in respect of this document is justified. 27 I note Mr Saggers' submission in these proceedings concerning the possible application of the exception in clause 2(2)(a)(i) in respect of an 'instrument' made or approved by the Governor that has been officially published. While there is no dispute that the Executive Council Minute was approved by the Governor, I am not satisfied that the Minute constitutes an 'instrument'. For example, the word 'instrument' is defined in section 3 of the Interpretation Act 1987 as follows: instrument means an instrument (including a statutory rule or an environmental planning instrument) made under an Act, and includes an instrument made under any such instrument. 28 Essentially, an instrument is a form of secondary or delegated legislation. In my view, the Executive Council Minute in issue is not such an instrument, and there is also no evidence that it was officially published as required by clause 2(2)(a)(i). 29 In respect of document 6, a submission to the Treasurer seeking his signature on the Cabinet Minute authorising the sale of the Flemington Markets and rail siding, the Respondent submits that the attached Cabinet Minute and the submission to the Treasurer are exempt under clause 1(1)(a) on the basis that the document has been prepared for submission to Cabinet. I am satisfied from the description of the document that there are reasonable grounds for the claim. With regard to the second step outlined above, having reviewed the documents, I am satisfied that the partial exemption claimed is justified both in terms of the submission itself and the attachments. 30 The Respondent also submits that the legal professional privilege exemption in Schedule 1, clause 10 applies to parts of document 6. I discussed the relevant law concerning the application of the clause 10 exemption in Cianfrano 141, at paragraphs 67 to 69. I note that the submission to the Treasurer refers to advice given by the Crown Solicitor in relation to the sale of the Sydney Markets site, and two of the attachments to the submission are of a specifically legal character, one a legal advice and the other draft terms and conditions of sale. I am satisfied that these attachments attract the legal professional privilege exemption in so far as they were prepared for the dominant purpose of giving legal advice in relation to the sale of the Sydney Markets site. Thus, the clause 10 exemption applies to these attachments. 31 With regard to the exercise of the residual discretion, I set out the relevant law in Cianfrano 141, at paragraphs 71ff, noting that in my view, the Premier's Memorandum, about which the Respondent made submissions in this matter, does not impose a blanket prohibition on the Tribunal exercising its residual discretion in relation to Cabinet documents. In relation to the documents in issue in these proceedings, I considered the exercise of the residual discretion in relation to document 9 and the attachment to document 2 in Cianfrano 141, and concluded that I was not satisfied that there were special, overriding or strong reasons sufficient to displace the assumption that the exemptions which I found to be justified were reasonably necessary for the proper administration of the Government. In the present proceedings, nothing has persuaded me that I should change my view. In relation to document 6, I am also not satisfied of the existence of such reasons. Orders The Tribunal affirms the Respondent's decision to refuse access to document 9 and the attachment to document 2, and to only provide partial access to document 6. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.