Bennison v NSW Department of Premier and Cabinet [2016] NSWCATAD 101

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bennison v NSW Department of Premier and Cabinet [2016] NSWCATAD 101 Hearing dates: 18 May 2016 Date of orders: 23 May 2016 Decision date: 23 May 2016 Before: S Montgomery, Senior Member Decision: 1. The decision under review is affirmed. insofar as it relates to Records 1-4, and 6-63. 2. The matter is listed for further directions on Tuesday 24 May 2016 at 10 am Catchwords: Government information - access - Cabinet information - reasonable grounds Legislation Cited: Civil and Administrative Tribunal Act 2013; Government Information (Public Access) Act 2009 Cases Cited: D'Adam v New South Wales Treasury [2014] NSWCATAD 68 D'Adam v New South Wales Treasury [2015] NSWCATAP 61 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 Category: Principal judgment Parties: Scott Bennison (Applicant) NSW Department of Premier and Cabinet (Respondent) Representation: Counsel: B Kaplan (Applicant) A Mitchelmore (Respondent)

Solicitors: Leslie Hargrave Lawyers (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 1610124

Reasons for decision

Background 1. This is an application by Mr Scott Bennison, seeking review of a decision of the Respondent, the New South Wales Department of Premier and Cabinet, made pursuant to section 58(1)(d) of the Government Information (Public Access) Act 2009 (NSW) ("the GIPA Act"). 2. In 2015 the New South Wales Government engaged KPMG to provide certain advice on local government reform across the State. The Respondent was responsible for instructing KPMG. KMPG was instructed that the documents it was preparing were for submission to Cabinet or were inputs for Cabinet documents. 3. The Respondent commissioned KPMG to prepare the following reports: a. Business Case and accompanying methodology paper outlining a cost benefit analysis of mergers b. Options analysis documents that informed the business case c. Merger proposals and drafts d. A macro-level report outlining the high-level benefits of mergers, titled "Local Government Reform Mergers - Impact and Analysis" e. A technical paper outlining the assumptions used to model benefits entitled Outline of Financial Modelling and Assumptions for Local Government Merger 1. In December 2015, the NSW Government announced local government reforms including 35 proposed mergers of local councils. 2. In his access application Mr Bennison ("the Applicant") requested access to the following: 1) Any and all copy(s) of all briefs, file notes, emails and other documents prepared by any minister and/or their representative/employee(s) that was provided to KPMG. 2) Any and all copy(s) of all versions of reports prepared by KPMG including the final report that forms the basis of the document prepared by KPMG 'Local Government Reform Mergers impacts and analysis'. 3) Any and all reports/documents provided by KPMG to Minister(s) and/or their representatives/employee(s) that is considered supporting and/or cooperating evidence in support of the assertion that mergers will produce financial benefits to the Local Government Sector. 4) Copy of all assumptions/qualifications provided to Minister(s) and/or their representatives/employee(s) by KPMG relating to conclusions that form part of the report prepared by KPMG as referred to on page 2 in the report, "Local Government Reform Mergers impacts and analysis". 5) Copy of all file notes, emails and other documents between Minister(s) and/or their representatives/employee(s) with KPMG. 6) With respect to Cabinet meetings, copies of all presentations/documents provided to Minister(s) and in particular any and all documents provided to Ministers for the Cabinet meeting held on or about the 17 December 2015 that formed the basis for the merger recommendations that were announced on December 18 2015 by the Premier and Minister for Local Government, Paul Toole. 1. In response to the access application the Respondent identified 109 documents which, according to the Respondent, fell within the scope of paragraphs 2 and 6 of the Access Application. The documents were identified in a schedule to the determination and each was allocated a number from 1 to 109. The Respondent determined that it did not hold some of the information that was requested. In regard to the information which it holds, the Respondent determined to release some of the information requested and to refuse access to other information on the basis that there is an overriding public interest against disclosure of that information. 2. The Respondent has not released the information in records 1-63 and records 100-109 on the basis that the information is "Cabinet information" within the meaning of clause 2(1) of Schedule 1 to the GIPA Act. The Applicant indicated that he only seeks access to the documents numbered 1-4, and 6-63. The Respondent agreed to provide access to the documents numbered 5, 84 and 99. 3. The matter was listed for urgent hearing in relation to those documents which the Respondent asserts contain is "Cabinet information". The remaining aspects of the determination are to be the subject of further hearing in the Tribunal at a time yet to be determined. 4. The parties are in general agreement with respect to the applicable provisions in the GIPA Act. These have been considered in numerous decisions of this Tribunal. Senior Member Walker considered the Cabinet Information provisions in D'Adam v New South Wales Treasury [2014] NSWCATAD 68 and he also summarised the other relevant GIPA Act provisions. 5. The objects of the GIPA Act as set out in section 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. 6. The term "government information" is given a wide meaning by section 4, being defined as "information contained in a record held by an agency". The GIPA Act's focus is on "information", rather than the narrower concept of "documents" which was the focus of the previous legislation. "Agency" is also defined in section 4 and includes "(a) a Government Department". It is not disputed that the Respondent is such a department and therefore an agency to which the legislation applies. 7. The GIPA Act establishes a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure: section 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: section 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: sections 11 and 14. 8. With respect to government information not covered by overriding secrecy laws, the GIPA Act establishes a principle that there is a public interest in favour of disclosure: section 12(1). The category of public interest considerations in favour of disclosure is not limited: section 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure. 9. There can be an overriding public interest against disclosure only when the public interest test in section 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". 10. In considering whether there is an overriding public interest against disclosure, the Tribunal is to be guided by section 15, which provides 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. 11. Clause 2 of schedule 1, however, establishes a conclusive presumption of an overriding public interest against disclosure of Cabinet information. Clause 2 provides: 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. 1. Section 106 of the GIPA Act provides a special procedure for decisions by the Tribunal in respect of Cabinet and Executive Council information, as follows: 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.