The Cabinet Strategic
Priorities and Budget Committee (SPBC) had decided to commission the reviews at meetings in June and July 2009. They were then undertaken each by a different consultant, leading to the final reports in 2010 that were the subject of the FOI application. The executive summaries (and in one case an additional attachment) not the full reports were attached to subsequent cabinet submissions. The Department
contended that the reports were exempt from access by virtue
of either or
both ss 34 (Cabinet documents) and 36 (deliberative documents) as the sections stood prior to November 2010. The Tribunal rejected the cabinet document claim on the basis that the evidence did not show the reports had been prepared for submission to cabinet. The deliberative document claim failed because the only public interest consideration argued against disclosure was a breach of Cabinet
confidentiality, which the Tribunal found would not occur if the reports were released. While precedent was cited in support of the decision on this latter point, the Tribunal gave "cabinet confidentiality" rare, close examination, distinguishing the disclosure of part of the subject matter for Cabinet consideration from a disclosure that would reveal recommendations, deliberations, the views of any member of Cabinet, and conclusions reached.
Cabinet documents
Section 34 as relevant provided:
“(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.”
The Department argued that each report was a part of, or contained an
extract from, a document that had been submitted
to the Cabinet for its
consideration, being a document that was brought into existence for the purpose
of submission for consideration
by the Cabinet. There was a discrepancy regarding some of the department's evidence and McKinnon was able to provide evidence (uncontested and with no objection) from the public record that put the reviews in context as part of a broader public administration initiative driven by the department, casting doubt on the claim the documents had been prepared for submission to cabinet [25-27].
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.
The Tribunal rejected the claim.
Deliberative Documents
Section 36 of the FOI Act, relevantly provided:
“(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.
(2) ...
(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.
The Tribunal, bound by a Federal Court precedent, rejected a submission that each report was a report of a technical expert
and thus excluded from s 36(1) by the operation
of s 36(6) of the FOI Act [32]. As it was accepted that the reports came within the description oin s 36(1)(a), the issue was whether disclosure
of the reports
would be contrary to the public interest.
The Department's case was that disclosure would be contrary to the
public interest for the reason "that disclosure would effectively breach Cabinet
confidentiality since, as the evidence establishes, the reports
the subject of
the application were prepared at the request of the SPBC to inform
Cabinet’s consideration of their respective
subject
matter.” The Tribunal had "rejected the factual premise of that submission however it is the
case that the parts of the three reports were attached to
a submission to
Cabinet. The question then becomes whether disclosure of material, part of which
was before Cabinet, would be contrary
to the public interest". [34]
The Tribunal noted that
- 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
The Department argued these considerations had to be weighed against the fact that “(d)isclosure
would breach the convention of Cabinet
confidentiality...”, a
concept the Tribunal accepted was "pivotal to the proper functioning of the
executive and parliamentary organs of the Commonwealth. But the notion of
“cabinet confidentiality” itself warrants some examination." [37]. The Tribunal went on to make a distinction between disclosure in this case of part of the subject matter for Cabinet consideration and a disclosure that would breach cabinet confidentiality by revealing recommendations, deliberations, the views of any member of Cabinet, and conclusions reached.
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.
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