What's a Cabinet document?

The NSW Cabinet Office has issued guidelines regarding aspects of the Cabinet document exemption (Clause 1 Schedule 1) of the NSW FOI Act. The guidelines address what constitutes a document “prepared for submission to Cabinet” and some of the circumstances in which a claim can be made for exemption on the grounds that disclosure would reveal information “concerning any deliberation or decision of Cabinet”. Guidance offered on the latter point is complex and contentious. The argument that a document prepared before Cabinet consideration of an issue would, if disclosed after the event, reveal a deliberation of the Cabinet is open to question and although supported by the Crown Solicitor is not the view taken in some ADT (and Queensland Information Commission) decisions.

The guidelines indicate a serious attempt to get some consistency in matters where the Cabinet exemption is being argued before the Administrative Decisions Tribunal - all state government agencies are to “ensure that they also retain the Crown Solicitor to act” whenever a Cabinet document claim is being challenged.

The guidance also refers to circumstances in which the Cabinet Office will issue a certificate under Section 22 of the Ombudsman Act that a document is a Cabinet document and therefore not subject to disclosure to the Ombudsman where a formal investigation under that Act is underway.

I can’t recall the last formal guidance offered by the Premier’s Department or the Cabinet Office on the interpretation of the FOI Act. As the Ombudsman’s last Annual Report (Chapter 10 page 127) noted, that office has been in dialogue with Premier’s since 1999 on updating the FOI Procedures Manual (last published in 1994) and hopelessly out of date in many respects. The Annual Report said that it had been agreed that the Cabinet Office would take responsibility for the update to be completed by the end of 2005 – another deadline that came and went.

Is this circular is a sign of things still to come?

Thanks to yesterday's item in the Stay in Touch column in the Sydney Morning Herald for this lead.

Meanwhile over at the ICAC they have uncovered who leaked draft Cabinet documents but couldn't reach a conclusion about the effects or corrupt conduct.