Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cooper v NSW Ministry of Health [2018] NSWCATAD 37 Hearing dates: 9 November 2016, 2 February 2017 Date of orders: 14 February 2018 Decision date: 14 February 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: D Dinnen, Senior Member Decision: (1) The Respondent's decision with respect to the following documents as "Cabinet Information" is affirmed: (a) HSBI documents: 12, 13, 13A, 16A, 16B, 18, 19, 19(1), 19(1)(A), 19(1)(B), 19(1)(C), 19(2), 20(1), 20(2), 20(3), 20(4), 21(1), 21(2), 21(3), 21(4), 21(5), 21(6), 21(7), 21(8), 21(9), 22, 22(1), 22(1)(A), 22(1)(B), 22(1)(C), 23, 23(1), 23(1)(A), 25, 26(1), 26(2), 29(1), 29(3), 29(5), 30, 31, 32, 33, 34, 35, 37, 38, 39, 40, 42, 43, 46, 49, 51, 52(2), 53, 54, 55, 57, 57A, 58, 59, 60, 61, 62, 64, 65, 66, 67, 70, 70(1)(A), 70(1)(B); (b) BAS Documents: A, B(1), B(2), C, D(2), G; (c) HI Documents: A, B, C. (2) The Respondent is to provide documents 19(1)(D), 41, 50(2), 56, 70(1)(c), and a copy of the February 2016 Cabinet Submission and the November 2015 Cabinet Submission, to the Tribunal in accordance with s106(2) of the GIPA Act, within 7 days. (3) Matter is listed for directions and resumed hearing on 26 February 2018 at 2pm. Catchwords: ADMINISTRATIVE LAW - Government information - access – Cabinet Information – general principles - reasonable grounds – temporal scope – subject matter scope - revealing "the position" of a particular Minister Legislation Cited: Government Information (Public Access) Act 2009 Cases Cited: Bennison v Department of Premier and Cabinet [2016] NSWCATAD 101 D'Adam v New South Wales Treasury [2014] NSWCATAD 68 D'Adam v New South Wales Treasury [2015] NSWCATAP 61 Category: Procedural and other rulings Parties: Bruce Andrew Cooper (Applicant) NSW Ministry of Health (1st Respondent) Premier of NSW (2nd Respondent) Representation: Solicitors: Crown Solicitors Office (Respondents) File Number(s): 2016 / 00378211 Reasons for Decision Background 1. This is an application by Dr Bruce Andrew Cooper ("the Applicant"), for review of the decision of the NSW Ministry of Health ("the First Respondent"), made pursuant to the Government Information (Public Access) Act 2009 ("the GIPA Act"). 2. On 5 February 2016 the Applicant sought access to information from the First Respondent in the following terms: TOPIC: Royal North Shore Hospital Land sale/ Long term lease OTHER KEY WORDS: Southern Campus Zone 8. REQUEST: All documents relating to the above including but not limited to Briefs, correspondence (written/email), meeting agenda/minutes, Reports, EOI documents, diary disclosures, financial, statements etc. LIKELY SOURCES: Ministry of Health, Health Minister, Treasury/Finance, Premier's Office, Department of Education, Northern Sydney Local Health District. 1. On 19 February 2016, the Applicant clarified the scope of his request for documents created on or after 26 March 2011. 2. By determination dated 26 May 2016, the First Respondent identified 27 documents to be released in part or in full to the Applicant ("the decision"). 3. The Applicant then commenced these proceedings on 22 July 2016, on the basis that: This is in the public interest: 2 successive governments (one Labor, one Liberal) in 5 years have tried to sell this public hospital's land. The public who elected these politicians need to know how such flawed decisions are being made and who are advising them. These land sale announcements created major public outcries which included two separate >10,000 signature containing petitions being submitted to the NSW parliament. Having spent 5 years defending the hospital land I find it unbelievable that this is all the documents that have been released; there must be hundreds of documents that have not been released to me which should not be hidden by "cabinet in confidence". 1. The First Respondent subsequently identified a number of additional documents falling within the scope of the access application, which it claimed contained "cabinet information" for the purposes of Clause 2 to Schedule 1 of the GIPA Act, being: 1. A bundle of 71 documents located by Health System Planning and Investment ("the HSBI documents"); 2. A bundle of 8 documents located by Business and Asset services ("the BAS documents"); 3. A bundle of 4 documents located by Health Infrastructure NSW ("the HI documents"). 1. The Premier of New South Wales was joined as a party to the proceedings as the Second Respondent. At hearing on 9 November 2016, the matter was adjourned to allow the Second Respondent additional time to file evidence in support of the claims that information being sought was Cabinet Information, having regard to cl 2(1)(b) and (c) of Schedule 1 to the GIPA Act. 2. By consent, the Tribunal made orders on 27 March 2017 as follows: 1. That the First Respondent's decision be varied, pursuant to s63(3)(b) of the Administrative Decisions review Act 1997, so as to provide the applicant with access to documents 14, 19(1)(E), 29(2), 29(4), 29(6), 50(1), 52(1), 63, 68, and 69 of the HSBI documents and documents D(1), (E) and (F) of the BAS documents; 2. That documents 1-11, 15, 17, 24, 27, 28, 36, 44, 45, 47, and 71(1) of the HSBI documents and document D of the HI documents fall outside the scope of the application and the respondents are not required to provide those documents to the applicant. 1. The application filed 22 July 2016 expressed the Applicant's belief that he had not been provided with all the documents falling within the parameters of his access application to the Respondent: I find it unbelievable that this is all the documents that have been released; there must be hundreds of documents that have not been released to me which should not be hidden by "cabinet in confidence". 1. The Applicant filed material on 30 January 2017 supporting his claim regarding the adequacy of searches conducted by the respondent. On 19 July 2017 the Tribunal remitted that issue to the Respondent, and the Respondent subsequently issued a determination regarding that part of the Applicant's access application on 9 August 2017, identifying additional documents which it withheld for varying reasons. 2. As a result of the consequential case management process, the Tribunal is to determine whether the respondent had "reasonable grounds" as required by s106(2) of the GIPA Act to withhold the following 87 documents identified prior to the 9 August 2017 determination, being: 1. HSBI documents: 12, 13, 13A, 16A, 16B, 18, 19, 19(1), 19(1)(A), 19(1)(B), 19(1)(C), 19(1)(D), 19(2), 20(1), 20(2), 20(3), 20(4), 21(1), 21(2), 21(3), 21(4), 21(5), 21(6), 21(7), 21(8), 21(9), 22, 22(1), 22(1)(A), 22(1)(B), 22(1)(C), 23, 23(1), 23(1)(A), 25, 26(1), 26(2), 29(1), 29(3), 29(5), 30, 31, 32, 33, 34, 35, 37, 38, 39, 40, 41, 42, 43, 46, 48, 49, 50(2), 51, 52(2), 53, 54, 55, 56, 57, 57A, 58, 59, 60, 61, 62, 64, 65, 66, 67, 70, 70(1)(A), 70(1)(B), 70(1)(C); 2. BAS Documents: A, B(1), B(2), C, D(2), G; 3. HI Documents: A, B, C. 1. The Respondents relied on: 1. an open affidavit of Jan Schmidt dated 21 October 2016; 2. an open affidavit of Vincent McTaggart dated 21 October 2016; 3. an open affidavit of Nicholas Skulander dated 21 October 2016; 4. an open affidavit of Eleanor Ritchie dated 9 November 2016; 5. an open affidavit of Karen Anne Smith dated 8 December 2016; 6. an open affidavit of Vincent McTaggart dated 9 December 2016; 7. an open affidavit of Nicholas Skulander dated 9 December 2016; 8. an open affidavit of Jan Schmidt dated 12 December 2016; 9. a closed affidavit of Vincent McTaggart dated 12 October 2016; 10. a closed affidavit of Nicholas Skulander dated 9 December 2016; 11. a closed affidavit of Vincent McTaggart dated 9 December 2016; 12. a closed affidavit of Jan Schmidt dated 12 December 2016; 13. Submissions dated 24 October 2016; 14. Supplementary submissions dated 23 December 2016 which include a table of the evidence and claim with respect to each document for determination. 1. The Applicant relied on: 1. Application dated 22 July 2016; 2. Documents and submissions filed 30 January 2017. Relevant Legislation 1. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure. 2. Under section 14(1) of the GIPA Act, it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 to the GIPA Act. 3. Clause 2 of Schedule 1 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. 1. As the Respondent has noted, the procedure established by section 106 of the GIPA Act with respect to Cabinet Information was recognised by the Appeal Panel in D'Adam v New South Wales Treasury [2015] NSWCATAP 61 at [11]- [12]. At first instance in D'Adam v New South Wales [2014] NSWCATAD 68 at paragraphs [45] to [47], Senior Member Walker explained the operation of section 106 as follows: "45 No doubt in recognition of Cabinet's role and functioning as a collective, indirectly elected executive branch of government, s 106 establishes a special and very different decision-making matrix for claims to the Cabinet Information presumption. Not only is the tribunal "limited to deciding whether there were reasonable grounds for the agency's claim", but it is explicitly "not authorised to make a decision as to the correct and preferable decision on the matter" (s 106(1)). The tribunal's task is thus not to investigate the claim de novo or to engage in normal merits review. Its function is more analogous to that of a court undertaking judicial review. 46 In performing this limited task, the tribunal is to give the words "reasonable grounds" their ordinary meaning. In McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423, 445, three members of the High Court pointed out that the phrase is not synonymous with "not irrational, absurd or ridiculous". "Of course, absurd, and irrational or ridiculous grounds are not reasonable grounds. But the words "reasonable grounds" do not denote grounds which are "not irrational, absurd or ridiculous". The statutory words are to be given their ordinary meaning. It will seldom be helpful, and it will often be misleading, to adopt some paraphrase of them". 47 The respondent bears the onus of establishing that it had reasonable grounds for the claim (s 105(1)) and it must do so on the balance (meaning preponderance) of probabilities: Jorgensen v Australian Securities and Investments Commission [2004] FCA 143, [65]; [2004] FCA 143; [2004] FCA 143; , 208 ALR 73, 86." 1. Accordingly, pursuant to section 106, with respect to documents the Respondent has identified as containing Cabinet Information, the Tribunal is limited to deciding whether there are reasonable grounds for the claim and is not authorised to make a decision as to the correct and preferable decision. 2. If, on the basis of the Respondent's evidence and submissions, the Tribunal is not satisfied that the Respondent had reasonable grounds for its claim in relation to any particular document, the Tribunal may request to review the document in accordance with section 106(2) of the GIPA Act. 3. The Premier must be given an opportunity to appear and be heard in relation to the matter, prior to the Tribunal rejecting a claim that information is Cabinet Information: s106(5) GIPA Act. 4. The First Respondent bears the onus of establishing that its decision to refuse access to the relevant documents was justified: s 105(1) GIPA Act. Cabinet Information – general principles 1. The Respondent provided detailed submissions on principles involved in considering Cabinet Information, which the Applicant did not dispute and which I accept. 2. The manner in which the GIPA Act reconciles the attainment of its objectives of access to information, with considerations of maintaining Cabinet confidentiality, was considered by the Tribunal in D'Adam. In particular, the Senior Member discussed the importance of Cabinet confidentiality as a matter of public interest, as follows: "[42]… For some functions of government, 'freedom from interference or scrutiny by members of the public.... is an essential aspect of the making of decisions' (Kline v Official Secretary to the Governor-General [2013] HCA 52 at [37], also [46] - [47]). The Court had earlier recognized a manifest public interest in keeping Cabinet deliberative processes confidential in Commonwealth v Northern Land Council (1993) 176 CLR 604, 615-616. 43 The full Federal Court case of Fisse v Secretary, Department of the Treasury [2008] FCAFC 188 concerned a freedom of information request for an executive summary of a working party report and for the report itself. The summary had been submitted to Cabinet. In his concurring judgment upholding a claim for Cabinet Information exemption, Flick J noted that, 'The importance of Cabinet as an institution of Executive Government, and the confidentiality ascribed by convention to its deliberations, has long been recognized. But little is known about its workings'. His Honour then quoted from Walter Bagehot's The English Constitution (2nd edn 1909) a passage noting that Cabinet meetings are secret in theory and in reality. Although the most powerful body of the state, it is 'a committee wholly secret. No description of it, at once graphic and authentic, has ever been given' (at [97]). 44 Flick J then set out with approval Blackburn CJ's description and explanation of Cabinet confidentiality in Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414, 421-22, which concluded with these words: 'Cabinet secrecy is an essential part of the structure of government which centuries of political experience have created. To impair it without a very strong reason would be vandalism, the wanton rejection of the fruits of civilisation'." 1. The special value that the legislature places on maintaining the confidentiality of Cabinet processes is reflected in the conclusive presumption of an overriding public interest against disclosure for which s. 14(1) and Sch. 1, cl. 2 of the GIPA Act provides. 2. The defined categories of Cabinet Information under Sch. 1, cl. 2(1) reflect the scope of material to which the long-standing convention of confidentiality applies. The Cabinet process is considered at some length in the Cabinet Manual, which was filed with the evidence of Karen Anne Smith by the Respondents. It was also the subject of detailed evidence accepted by the Tribunal in Bennison v Department of Premier and Cabinet [2016] NSWCATAD 101, as reflected in the following passages (at [31]-[32]): "[31] Mr Miller provided an outline of the Cabinet and Cabinet processes. He summarised the process as including many stages: Cabinet involves a pattern of deliberations which forms the process by which the Government makes decisions on major policy issues. It may include the processes under which a Cabinet submission ("Submission") is prepared by an agency for a Minister to submit to Cabinet, the lodgement of the Submission by a Minister to the Cabinet Secretariat, the circulation of the Submission to Ministers for consideration and advice, and the provision of advice on the Submission either to all Ministers or to a particular Minister for use in Cabinet. A Cabinet meeting at which a Cabinet decision is formally taken and recorded may be the culmination of this deliberative process, but the term Cabinet refers to a process that is broader than that particular meeting. ... Decisions of Cabinet are based upon advice it receives from Ministers, government officers and in some cases external consultants. Usually, the main piece of advice to Cabinet is in the form of a Cabinet Submission. A Cabinet Submission is a submission made to Cabinet or a Committee of Cabinet by the Minister responsible for the subject discussed in the Submission. It constitutes the submitting Minister's principal communication with Cabinet to assist its deliberations on the matters before it. The Submission reflects that Minister's views or opinion on the issue he/she presents to Cabinet. A Cabinet Submission is usually prepared by government officers but it is approved and signed by the Minister and represents the Minister's position. In some cases copies of external consultant's reports are annexed to a Cabinet Submission. Cabinet relies significantly on the advice and information it receives from Ministers, government officers and, on occasion, external consultants to make its decisions. As such it is vital to the development of public policy and to the good administration of the affairs of the State that Cabinet be able to receive confidential advice and information on the matters that come before it for consideration. In order to achieve this, it is necessary that Cabinet and its Ministers be able to be confident that advice and information which Ministers put before Cabinet and advice they receive from government officers or external experts will remain confidential. It is also necessary to ensure that the persons preparing the advice for Cabinet and Ministers are confident that any advice and views they seek from other Departmental officers or from external experts will remain confidential. [32] Mr Miller expressed the view that it is vital to the development of public policy and the good administration of the affairs of the State that: (a) Ministers in Cabinet are able to have a free and candid discussion on issues that come before it for determination; (b) Ministers and Cabinet are able to obtain full and frank advice from government officers and external experts on issues that come before a Cabinet for determination; (c) Those advising the Ministers and Cabinet are able to obtain full and frank advice and views of other government officers and external experts on matters in respect of which they are providing advice to a Cabinet." 1. According to D'Adam at [49]-[51], there are three conditions for the operation of clause 2(1)(b): 1. That there is "information"; 2. The information is "contained in a document"; and 3. That document must have been prepared for the dominant purpose of being submitted to Cabinet for Cabinet's consideration. 1. As noted in D'Adam at [51], the words "dominant purpose" require: The purpose in question must be "causative in the sense that, but for its presence" the information would not have been prepared: Secretary to the Department of Treasury and Finance v Dalla Vella [2007] VSCA 11, [13], [24] 1. The Respondents relied on subclauses 2(1)(a), (b), (d), (e) or (f) of Schedule 1, or a combination of those subclauses, to support their claims that each individual document sought was properly categorised as Cabinet Information on reasonable grounds. Consideration 1. The Respondent submitted that Cabinet minutes and official records of Cabinet deliberations would fall within Clause 2(1)(a) of Schedule 1 to the GIPA Act, being official records of cabinet, and I accept that submission. 2. The Respondent submitted that Clause 2(1)(d) of Schedule 1 to the GIPA Act was deliberately drafted broadly to give effect to the importance of preserving collective Cabinet responsibility. The words "tends to" and "any information" indicated that documents which are closely connected with, but separate from, the Cabinet processes may be included in this category. I agree with that submission but note that the subclause is temporally confined to documents prepared after Cabinet's deliberation or decision. 3. The respondent submitted that Clause 2(1)(e) is even more broadly drafted than clause 2(1)(d), not being confined to documents prepared after Cabinet's deliberations or decision, or information about that deliberation or decision. I agree that temporally the scope of clause 2(1)(e) is broader than clause 2(1)(d), however it is narrower in the scope of its subject matter. In my view, clause 2(1)(e) concerns "the position" the Minister is taking (or has taken, or will take) on a matter in Cabinet. It does not necessarily apply to a document which reveals or tends to reveal all or several of the options or positions in question. 4. Of the 87 remaining documents produced by the Respondent prior to 9 August 2017, I am required to determine whether, on the material before the Tribunal, there are reasonable grounds for the Respondent's claims that they contain Cabinet Information within the meaning of s106 of the GIPA Act. 5. Document 48, on my review of the Respondent's submissions and evidence, is not pressed and is the same as documents 14, 7, 8, 29(2), 29(4) and 29(6), which are also not pressed. 6. There appear to be multiple copies and multiple drafts of the same documents contained in the list of 86 remaining documents. This is confirmed in the evidence and submissions. 7. I am concerned that a few of those documents which rely on clause 2(1)(e) of Schedule 1 may not necessarily, on the evidence, disclose the position as opposed to a 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". In the circumstances, I find that the evidence does not provide sufficient basis for me to conclude that there are "reasonable grounds" for the claims that documents 19(1)(D), 41, 50(2), 56, 70(1)(c) (which seems to be the same document as 19(1)(D)) are "Cabinet information", and so I request that these documents, together with a copy of the February 2016 Cabinet Submission and the November 2015 Cabinet Submission, be provided to the Tribunal in accordance with s106(2) of the GIPA Act for further consideration. 8. I find that there are reasonable grounds contained in the evidence filed by the Respondents, as identified in the table to the submissions dated 23 December 2017, for the claims of "cabinet information" regarding each of the documents remaining from those identified at paragraph 11 above. As noted by Senior Member Walker in D'Adam v New South Wales Treasury at paragraph [73], the Tribunal's jurisdiction in relation to those documents is thereby exhausted: Having found that there were "reasonable grounds" in respect of both sets of information, the tribunal's jurisdiction is exhausted: IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79, [42]-[44]. It is thus not necessary to consider the application of the public interest test within ss 12 to 15 of the GIPA Act. Orders 1. The Respondent's decision with respect to the following documents as "Cabinet Information" is affirmed: 1. HSBI documents: 12, 13, 13A, 16A, 16B, 18, 19, 19(1), 19(1)(A), 19(1)(B), 19(1)(C), 19(2), 20(1), 20(2), 20(3), 20(4), 21(1), 21(2), 21(3), 21(4), 21(5), 21(6), 21(7), 21(8), 21(9), 22, 22(1), 22(1)(A), 22(1)(B), 22(1)(C), 23, 23(1), 23(1)(A), 25, 26(1), 26(2), 29(1), 29(3), 29(5), 30, 31, 32, 33, 34, 35, 37, 38, 39, 40, 42, 43, 46, 49, 51, 52(2), 53, 54, 55, 57, 57A, 58, 59, 60, 61, 62, 64, 65, 66, 67, 70, 70(1)(A), 70(1)(B); 2. BAS Documents: A, B(1), B(2), C, D(2), G; 3. HI Documents: A, B, C. 1. The Respondent is to provide documents 19(1)(D), 41, 50(2), 56, 70(1)(c), and a copy of the February 2016 Cabinet Submission and the November 2015 Cabinet Submission, to the Tribunal in accordance with s106(2) of the GIPA Act, within 7 days. 2. Matter is listed for directions and resumed hearing on 26 February 2018 at 2pm. ******** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 14 February 2018