NSW ADT rules government policy subject to objectives of FOI Act

In the latest decision in a long running battle over access to documents about the sale of the Sydney markets, the NSW Administrative Decisions Tribunal has upheld a decision by the Department of Premier and Cabinet to refuse access to documents, based on cabinet documents, executive council documents, and legal professional privilege exemptions. The decision addresses several matters of broader interest.

The Tribunal again rejected submissions that in respect of cabinet and executive council documents (restricted documents under Section 57 of the Freedom of Information Act), it did not have powers to undertake normal merits review of the agency determination(at 41-46).

The Tribunal also rejected an argument by the Department that government policy as set out in a memorandum issued to agencies about cabinet documents imposed a blanket prohibition on the exercise of its discretion to release such documents found to be exempt. In comments that would apply as well to the exercise of the discretion by a government agency, the Tribunal said:

80 I am satisfied that the Premier’s Memorandum satisfies the definition of ‘Government policy’ in section 64(5). I have reviewed this policy. While recognising that the proper administration of the Government requires a degree of confidentiality for Cabinet documents, and that the unauthorised and/or premature disclosure of Government documents undermines the process of government, policy must be read subject to the provisions of the law, in this instance the provisions of the FOI Act. The objects of the Act, quoted above, provide a legally enforceable public right of access to information held by the Government, “subject only to such restrictions as are reasonably necessary for the proper administration of the Government” (section 5(2)(b)).

81 In the light of the provisions of the FOI Act, the Premier’s Memorandum does not, in my view, impose a blanket prohibition on the Tribunal exercising its residual discretion in relation to documents (3), (4), (5) and (7), as claimed by the Department. However, the Tribunal should, where appropriate, give effect to that policy in exercising its powers. For example, in determining what restrictions are reasonably necessary for the proper administration of the Government?

The Tribunal was not satisfied that the evidence warranted exercise of the discretion to require disclosure in this case.