“(1) A document is an exempt document if it is:
(a) a document that has been submitted to the Cabinet for its consideration or is proposed by a Minister to be so submitted, being a document that was brought into existence for the purpose of submission for consideration by the Cabinet;
(b) an official record of the Cabinet;
(c) a document that is a copy of, or of a part of, or contains an extract from, a document referred to in paragraph (a) or (b); or
(d) a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published.”
28. It is possible to say by reference to the “Statement of Work” that preceded the Jackson report that that review was to “...provide a final report to the Minister for Finance and Deregulation (copied to the Prime Minister, Treasurer and relevant Portfolio Ministers) by 30 November 2009.” Reference to confidential exhibit 8, the terms of reference, does not lead us to conclude that any of the three reports were intended to be provided to the Cabinet or the Cabinet Office; in two instances the contrary is demonstrated.
29. It may be accepted that the SPBC commenced the process by which the reports, and the executive summaries, were eventually brought into existence however there is no evidence that the involvement of the SPBC went beyond that decision. Thus, we infer that officials determined the terms of reference for each report, determined an appropriate, and independent, external consultant to lead the process of the review and left to the judgement of the consultant the content of each report.
30. We are then left in the position where we are well short of being satisfied that the Executive Summaries of the three reports and Attachment C of the Johnston report were brought into existence for the purpose of submission for consideration by the Cabinet. There is no direct evidence of that being the purpose for which the documents were brought into existence and such evidence as there is, especially the notion of further consultation with affected agencies, is quite inconsistent with such a purpose.
“(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:
(a) would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and
(b) would be contrary to the public interest.
(5) This section does not apply to a document by reason only of purely factual material contained in the document.
(6) This section does not apply to:
(a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;
(b) reports of a prescribed body or organization established within an agency; or
(c) the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.
- two of the seven reviews that were part of the strategic review initiative were in the public domain,
- disclosure of the reports would “...enhance the democratic process and make the public better informed and promote discussion of public affairs”,
- they were the product of considerable research, produced at a significant cost and address matters of great significance in the field of public administration
39. In our view Mr McKinnon’s submissions ought be accepted; the Department’s submission that disclosure of the reports would breach the convention of Cabinet confidentiality fails to draw the necessary distinction between the subject matter of Cabinet discussions and the discussions themselves...
44. .......Here the consultants prepared reports containing an executive summary. It may be assumed that in each case the executive summary mirrored the contents of the report. In each case the executive summary (and an attachment in the case of the Johnston report) was attached to a Cabinet submission. But is not known how the submission dealt with the report or its executive summary. Disclosure of the report would disclose part of the subject matter of the relevant Cabinet consideration but it would not disclose any deliberations of Cabinet or disclose the views of any member of the Cabinet. Like Buchanan JA, we are unable to see how it is that “the disclosure of a document placed before Cabinet, without any indication that Cabinet even read the document, let alone how Cabinet dealt with the document, could jeopardise any public interest.”
45. The cases relied upon by the Department are, as Mr McKinnon points out, concerned with the disclosure of documents that would disclose the deliberations of the Cabinet. Thus, in Re Toomer and Department of Agriculture, Fisheries and Forestry Deputy President Forgie considered that “...the public interest in Cabinet confidentiality outweighs the interest in [the applicant] finding out what [the Minister] recommended to Cabinet...” And in Fisse the key finding of the Tribunal was that “...the working party report is inextricably involved with the Cabinet submission.” There is no evidence in the present case that would enable us to reach a similar conclusion and we were not invited to do so.
46. Disclosure of the reports would not, in our view, involve any breach of Cabinet confidentiality. Given that the Department’s case was put entirely on that basis and that it seems otherwise to accept there is a public interest in disclosure, we are accordingly not satisfied that disclosure of the reports would be contrary to the public interest. We reject the Department’s claim under s 36 of the FOI Act.