In pursuit of NSW Police policy on pursuits.

On reading this report by Geesche Jacobsen in the Sydney Morning Herald, I was thinking the NSW Police might have had a point that some information about pursuit policy needed to be withheld under the new GIPA act on grounds that disclosure of eight of nine reasons for terminating a pursuit would compromise a ''lawful method and technique employed by the NSW Police Force … to detect and investigate contraventions of the criminal law.''

Until I googled the subject and found this New Zealand Police Review published two weeks ago Police Pursuits Policy [PDF 588KB] that includes an international literature review, and details of various risk assessment models used around the world, including in Australian states, to guide police decisions on continuation and termination of pursuits. There appear to be plenty of other published details of policy in Australia as well, including the ACT review in 2007 referred to in that article.

There is no hint of anything that needed to be censored in the New Zealand review report, and full details are included about best practice approaches (the SOWETO risk management model) taken in Australia, presumably in NSW, and the US, UK and other comparable countries.

The NSW Police GIPA decision to refuse access to parts of the policy seems unnecessarily cautious and overly defensive in the circumstances.

NSW leaders to go at it, hopefully with a nod to FOI reform

Tomorrow NSW Premier Keneally and Opposition leader O'Farrell are in debate (on Sky) one year out from the NSW election.  I'm hoping the stalled NSW Freedom of Information reforms get a mention. As noted in February the Premier has said nothing on the subject that I'm aware of since she came to office, thereby sending a different message about the pace and scope of anticipated change after predecessor Rees used a megaphone to foreshadow what was to be expected from the commencement of the GIPA act. Nothing along these lines from the minister responsible, the Attorney General either.

Today's Telegraph includes the following Q&A in advance with O'Farrell, but no similar question was put to the Premier.  And yes, we've heard plenty of this from opposition leaders over the years. The new yet to commence law passed by Parliament last June is reasonably good, and the yet to be appointed Information Commissioner that the Government has been searching for since last September hopefully will make some difference before next March:

(Q ) What will you do, immediately, if you are elected in March next year, to gain the trust and respect of the people of NSW?

( A ) I understand the community's loss of confidence in public sector decision making and, if entrusted with the position of premier, I am determined to head an ethical, honest, open and accountable government -- in which decisions are made on the basis of public interest every time. I will put the community first. I have announced a series of measures we will introduce to increase the accountability, honesty and integrity of government, including campaign finance reform, upgrading Freedom of Information and Whistleblower laws, strengthening the Independent Commission Against Corruption and the NSW Audit Office and examining the application to NSW of a recall election mechanism.

Year end downer to positive FOI reform in NSW

Further to where things stand in NSW, I've heard that the recruitment process for Information Commissioner, kicked off with great urgency in September when applicants had only two weeks to apply, ran into the sand somewhere after interviews took place with a panel chaired by Secretary of the Department of Justice and Attorney General, and before any name was put by the Attorney General to the Parliamentary Committee with veto power over an appointment. Headhunters have now been engaged to find someone for the job.

Leaders with, to paraphrase the ad, integrity and commitment to open and accountable government, experienced in government processes, comfortable with the exercise of statutory powers, with expertise in complaint handling and dispute resolution, and who can communicate and deal with a whole raft of stakeholders from general public to the leaders of government, may be harder to find than first thought, even if they don't necessarily have to have a law degree. Or pay and conditions weren't attractive enough? Or this NSW government in the current circumstances is not the employer of choice for some who might be well qualified?

A bit of a downer to end a year of generally positive reform measures, given the announced intention to have someone appointed in November, that implementation guidance from the Office of Information Commissioner is still to materialise, and there has been nothing done to raise public awareness in readiness for a new era of openness. That start date for the new law of "early 2010" might be subject to reinterpretation.

What ever happened to...

In case you were wondering, as the country goes into wind down to the festive season and before summer torpor takes complete hold:

The NSW Information Commissioner

Applications for the advertised job to lead NSW into a new era, with a new open government act closed on 28 September. Not a drum roll since, with the Office's website variously describing the state of play as "the recruitment process is on target with the implementation plan to have a permanent commissioner appointment by November 2009", and that the Commissioner "will take up duties by the end of 2009." The Government Information (Information Commissioner) Act (Section 4) gives the NSW Joint Parliamentary Committee on the Ombudsman and the Police Integrity Commission a right of veto over the appointment and Parliament looks well and truly packed up for the year, if not the holiday season. The first Acting Commissioner Judge Taylor has been on leave since 9 November. Maureen Tangney Assistant Director General Policy and Legal, Department of Justice and Attorney General has been the Acting Information Commissioner (and Privacy Commissioner) since. Start date for the Government Information (Public Access) Act is still listed as "early 2010" but unlikely to be too early I venture.

NSW Law Reform Commission review of privacy laws

The Commission received this reference in April 2006, with terms of reference slightly extended and a related reference given in June 2009. The references contain no report date, and aren't even close to the record- 11 years in total including 4 when the report on surveillance languished in the Attorney General's in-tray before being released, and rejected in its entirety. A report on one aspect of the current references, a cause of action for invasion of privacy, has been released. But as to the rest.....

Federal shield laws for journalists

The Evidence (Journalists' Privilege) Bill passed the House of Representatives in May, but has been on the Business List, without progressing, in the Senate since June 2009.

Federal whistleblowers' protection law

Parliamentary Committee (Dreyfus) Report tabled in February 2009; no formal Government response to the Report other than a commitment to introduce legislation in the life of this Parliament.

Transparency for political donations

The Federal Government's attempt to legislate to reduce the disclosure threshold to $1000 from the current $10000 plus has been stuck in the Senate since March, courtesy of the Opposition.

So a tick for the Government for trying on that one, and a couple of half ticks for getting its Freedom of Information Reform bills into Parliament at the death (but the Information Commissioner and other changes- described for two years as high priority- are way off, with a Senate Committee to inquire and report on the bills in March 2010) and for its phase one response to the Australian Law Reform Commission report on privacy, with legislation to be introduced next year.

FOI reforms that work in practice central to winning trust

It gets a mention in the small print of some of the analysis (here in The Australian) of the brief but troubled premiership of Nathan Rees, deposed as NSW Premier yesterday, but as acknowledged here in June, a hat tip to Rees for picking up the ball from Ombudsman Bruce Barbour and pushing major Freedom of Information legislative reform through the Parliament. (And for having a crack at the whole political donations mess.) But it wasn't a wise move to pass over responsibility for the new act to the Attorney General's portfolio, FOI having sat for 20 years in Premier's. As a whole of government matter, the much promised new era- Rees said it turned FOI on its head- of proactive publication and pushing the necessary culture change, should have had stayed with the boss. New Premier Kristina Keneally, with an enormous challenge ahead, mentioned almost as a first thought yesterday, her mission to restore trust in government. Sticking to these reforms, and making the extra yards to make them work have to be an essential part of her formula.

Automatic voter enrolment and related issues

The NSW Government's move to legislate for automatic voter enrolment not only attracted the attention of those at the Australian Privacy Foundation's Big Brother Awards, but Stephen Murray in New Matilda, Ben Eltham and Miriam Lyons in the Sydney Morning Herald, William Bowe at The Poll Bludger and others have all added useful and sometimes differing perspectives.

Here are a couple of points that may not have been picked up so far about aspects of the Parliamentary Electorates and Elections Amendment (Automatic Enrolment) Bill 2009. The bill was introduced by Parliamentary Secretary Penny Sharpe on behalf of the Attorney General in the NSW Legislative Council on 12 November. Other than the Second Reading speech, there has been no debate to date.

Was the Privacy Commissioner consulted, and to what effect?

The Second Reading Speech concludes:

"The Government has consulted extensively with the New South Wales Electoral Commission in relation to all aspects of the bill. I place on he record the thanks of the Government to the New South Wales Electoral Commissioner and his staff for their invaluable contribution to the preparation of this bill."

There was no mention of any other consultation including with the Privacy Commissioner. There are no published submissions on the Privacy Commissioner's website since November 2008. A perspective from the Commissioner would be helpful in assessing the claim in the speech that "(t)he provisions of the bill with respect to elector privacy are both fair and balanced..." and that protections will be enhanced by creating a new offence for the misuse of personal information acquired under the Act, carrying a maximum penalty of 50 penalty units, currently $5,500.

From my reading of the Bill, some of the privacy concerns, which need to be balanced against advantages of automatic enrolment are:

that the Electoral Commission(proposed Section 46) can for any purpose relating to the roll demand and must be provided with personal information relating to a person (including a person’s telephone and email contact details and any other information or code used to identify a person) for the purposes of determining whether the address for which the person is enrolled is the person’s real place of living, or if the person is not enrolled—whether the person is entitled to be enrolled for any district. There follows a list of those subject to this obligation including any public servant ( eg those at Births, Deaths and Marriages, the Roads and Traffic Authority, the Department of Health and Area Health Services, Education, Community Services etc,etc), a police officer, local council employee, Sydney Water Corporation, an electricity supplier, the public universities and last but not least, an elector or person entitled to be enrolled;

that regulations yet to be seen may make provision for or with respect to the collection of information by such persons, for example, for the Roads and Traffic Authority in its application forms to collect information such as mobile phone numbers and email addresses for the purposes of notifying electors they will be placed on the roll;

that the NSW Privacy and Personal Information Protection Act does not apply in relation to the disclosure of personal information to the extent that the personal information is provided to the Commission under proposed Section 47 by any of these persons or bodies. Does this mean simply in respect to disclosure or that they also aren't required to give notice of this disclosure at the time of collection? There is no opt out.

that the Electoral Commmission is not subject to the PPIP Act in the collection use and disclosure of information received in this way. It would still seem to be bound by the PPIP Act regarding reasonable safeguards for keeping the information secure.

Political parties and independents entitled to know who voted and where

What is the justification for this provision (proposed Section 138) and is there a precedent?:

(2) After an election, the Commission must ensure that: (a) each registered party that so requests, and (b) each member of Parliament who is not a member of a registered party and who makes a request in respect of the member’s district, is provided with electoral information containing the names and the addresses of electors who voted (other than silent electors and itinerant electors), whether they voted personally or by post and, if they voted at a polling place for the district for which the electors were enrolled, the location of that polling place.

(3) Electoral information provided under subsection (2) must only be used in connection with an election.

(4) A person must not use, or cause or permit the use of, electoral information provided under this section for any purpose other than in connection with an election. Maximum penalty: 1,000 penalty units.

How does the presumption of an overriding public interest against disclosure fit with a discretion to disclose?

Proposed Section 48 creates an offence for a person divulging information other than in the course of duties. With the ink barely dry and the Government Information (Public Access) Act yet to commence, a consequential amendment in Schedule 6 would add Section 48 to Schedule1 of the GIPA Act - creating a presumption of an overriding public interest against disclosure of information under GIPA. Such information is not to be published or disclosed. There is no other test.

Yet Section 48 contains these exceptions:

(2) Despite subsection (1), information may be divulged:(a) to a particular person or persons, if the Electoral Commissioner certifies that it is necessary in the public interest that the information be divulged to the person or persons, or (b) to a person who is expressly or impliedly authorised to obtain it by the person to whom the information relates.

Relationship with Freedom of Information Act

After 20 years and with the FOI Act on its last legs with the GIPA Act to replace it early in 2010, how has the Commission got by so far, and why is this (proposed Section 48) now necessary: (6) Any document that contains information provided to the Electoral Commissioner under this Division, and any database maintained by the Electoral Commissioner for the purposes of this Division, are not subject to the Freedom of Information Act 1989.

NSW Information Commissioner

This answer by Attorney General Hatzistergos in response to a "Dorothy Dix" question in the NSW Legislative Council summarised the state of play on the establishment of the Office of Information Commissioner. "Early 2010" is still the position on a start date for the Government Information (Public Access) Act. No mention of any planned use of regulatory powers, for example to mandate additional categories of information to be published by state government agencies. These requirements (Section 18) are modest extensions of what is currently published and won't on their own deliver the promise of the new "push" model. All a marked contrast to the extensive obligations for online publication imposed on local authorities by Schedule 5 .

Federal Court foray into public interest immunity

(Update: A reader-thanks James- says the Full Court allowed an appeal by the State against this decision last Friday, that reasons have not been published yet, but the orders are available online. They relate only to parts of the decision by Justice Jagot concerning some documents claimed to be subject to legal professional privilege and do not refer to the public interest immunity aspects of the decision. As at 2 November no written judgments have been published but will flag any observations relevant to that issue when they appear. This in the Sydney Morning Herald on 13 November, and today 17 November an analysis of the Full Court decision, particularly relevant to the point in the post below, about privilege and instructions to Parliamentary Counsel.)

An unusual intervention in civil proceedings between other parties by the State of NSW/ Attorney General saw Justice Jagot of the Federal Court of Australia give relatively rare consideration to claims of public interest immunity. The decision is of interest also in the context of the NSW Freedom of Information Act, and the Government Information (Public Access) Act to commence next year, and the requirement in both instances, similar to the test in this case, to balance public interest considerations for and against disclosure of deliberative documents.

The substantive matter has been brought by Betfair against a statutory authority, Racing NSW, which is independent of the government and not subject to ministerial direction. Betfair contends that conditions imposed by Racing NSW on its approvals to publish NSW race field information and requiring it to pay 1.5% of turnover are invalid because they contravene the guarantee of free trade between States in s 92 of the Constitution. According to Betfair the standard turnover conditions are discriminatory against an inter-State trader (Betfair) and protectionist in favour of an intra-State trader (TAB Limited).

The documents in dispute in these discovery proceedings concerned matters leading up to the drafting of legislative amendments for these conditions.

Justice Jagot stated [2-5] the general rule that a court will not order the production of a document in legal proceedings, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it; that the public interest has two aspects: the protection of government from the harm which may be caused by disclosure and the interest in ensuring that justice can be effectively administered; that the court must weigh the competing elements of the public interest; and that a claim for immunity for a class of documents as opposed to a claim in relation to individual documents will be upheld only if it is really necessary in the public interest or the proper functioning of the public service.

The documents in question held by Racing NSW related to matters considered and discussed in a working group that included officers of the government agency, the Office of Liquor Gaming and Racing (OLGR ) and representatives of each of the four racing bodies in NSW, convened by OLGR for the purpose of assisting it in developing legislative drafting instructions to be provided to Parliamentary Counsel concerning amendments to the Racing Administration Act and the promulgation of the Racing Administration Amendment (Publication of Race Fields) Regulation.

Some documents were drafts of the Regulation with drafting notes ensuring that Parliamentary Counsel had correctly understood the drafting instructions; a considerable number were reports to board meetings of Racing NSW identifying Racing NSW’s perception of the position of the NSW Government and its own position; some comprised the provision of statistical and other information by Racing NSW to the OLGR; others involved legal advice and communications about legal advice for which there were separate claims for legal professional privilege; none were papers prepared for Cabinet although one document prepared by Racing NSW and submitted to its Board recorded the contents of a proposed minute to Cabinet which must have been disclosed to Racing NSW. There was evidence that the proceedings of the Working Group were confidential.

Justice Jagot rejected the argument, on behalf of Betfair that the immunity claim failed at first instance because it was for a novel class of documents that were not Cabinet documents. She accepted submissions on behalf of the Attorney General that the classes of documents attracting the immunity at least on a prima facie basis involve a spectrum from those at the highest level (Cabinet documents) to those at lower levels (such as reports of junior Departmental officials). The strength or weakness of the public interest protected (or the harm that might result from disclosure) does not affect the existence of the immunity. It affects the balancing exercise between that public interest and the interest of the party seeking access in order to litigate its claim. In any event, it is well-recognised that the classes of immunity are not closed (authorities deleted). She also accepted the doctrine involved three considerations: - (i) the harm that might flow from disclosure, (ii) the material assistance that disclosure might provide to the party seeking access, and (iii) weighing those conflicting interests. [19-20]

The evidence brought to support the claim by an officer of OLGR was that disclosure of documents concerning the deliberation, advice and discussions of the working group could undermine willingness of people and entities to be involved in similar processes in the future and their confidence that they could give frank and fearless advice to government. The officer stated that disclosure of drafting instructions to Parliamentary Counsel and draft legislation, as well as related documents concerning discussions and deliberations of public servants about those matters, could be harmful to the public interest for much the same reasons.[21]

Justice Jagot stated [24]

"Consistent with the submissions of the Attorney-General, I consider that there is a public interest in ensuring that those involved in advising governments about policy issues proposed to be embodied in legislation feel able to give frank and fearless advice uninhibited by concerns about future disclosure. The fact that this interest in candour or lack of inhibition has been subject to a certain degree of judicial scepticism over more recent years does not mean that this aspect of the public interest may be dismissed outright.

However the key issue was the balancing test which involved an assessment of the nature and extent of the harm to the public interest in the proper functioning of the executive and legislative branches of government by reason of disclosure, compared to the nature and extent of the harm to the public interest in the proper functioning of the judicial branch by ensuring that all relevant documents are available to a party seeking to litigate a claim.[24]

After considering the issues and examining the documents Justice Jagot concluded [43]

(1) The public interest affected by disclosure (that is, future candour and lack of inhibition in those advising the NSW Government) exists. Yet, on the facts of this particular case, this is a relatively weak factor. The documents concern legislative amendments to racing legislation discovered by statutory bodies independent of the NSW Government. The bodies in question are bound by their enabling legislation to provide independent advice. Their interests cannot be inferred to be aligned consistently with those of the NSW Government. The nature of their functions makes it inherently unlikely that they will be anything less than candid and uninhibited in their advice. Insofar as the documents disclose drafting queries by Parliamentary Counsel, the nature of that office also indicates that there is no real basis for a concern about future inhibition or lack of candour. Accordingly, the public interest affected by disclosure is a factor of relatively insignificant weight in the present case.

(2) The decision-making process disclosed by the documents is complete. The public interest in question protected by non-disclosure is limited to cases in the future the same as or sufficiently similar to the present case to justify its consideration. In weighing this factor regard must also be had to the bodies in question – Racing NSW and Parliamentary Counsel’s Office – and my satisfaction that their functions are incompatible with any acceptance of a real risk of a future lack of candour or inhibition in their advice to government. Accordingly, this factor is also of relatively insignificant weight in the present case.

(3) The issue in relation to which production is sought does not involve the freedom of an individual from potentially wrongful conviction. But it does involve an alleged breach of a fundamental constitutional guarantee by the bodies which discovered the documents. Accordingly, this is a material factor entitled to weight in the present case.

(4) Given the nature of the issues in dispute in the principal case, there is a real likelihood that production of the documents will affect the outcome. Accordingly, this is a material factor entitled to weight in the present case.

(5) There is a real likelihood of injustice to Betfair if the documents are not produced for a number of reasons. The documents are centrally relevant to its case. The documents are in the possession of the respondents and not sought on subpoena from the State of NSW. As Betfair said, Racing NSW, at least in respect of part of its function, is the industry representative for the NSW racing lobby. The interests of Racing NSW cannot be inferred to align consistently with that of the NSW Government. They certainly cannot be inferred to be consistent with the interests of Betfair. The legislative amendments the subject of the documents enabled Racing NSW to impose the very conditions that Betfair says infringes the constitutional guarantee to its detriment. The fact that the discussions were expressed to be confidential does not alter the significance of these circumstances. All of these circumstances indicate that there would be a substantial injustice to Betfair by reason of non-production.

At law, therefore, frank and candour are alive and well as a public interest consideration, although a claim for nondisclosure of documents or information on this ground will be weak where decisions have been taken, don't disclose information concerning Cabinet deliberations broadly defined, and are outweighed by the public interest considerations that favour disclosure. Other than the administration of justice considerations relevant to this decision, the GIPA Act lists various factors to be taken into account in favour of disclosure including where disclosure could be expected to promote open discussion of public affairs, enhance accountability, or contribute to positive and informed debate

The Attorney Generals intervention seeking to prevent discovery of documents on grounds of legal professional privilege also produced mixed results. While some claims succeeded, those relating to drafting instructions to Parliamentary Counsel were rejected in all but one instance.. Justice Jagot said she did not accept

"that the drafting of legislation pursuant to an instruction to do so, in and of itself, involves a retainer the dominant purpose of which is the giving of legal advice. More is required to attract legal advice privilege than a mere instruction to Parliamentary Counsel to draft legislation and the provision by Parliamentary Counsel of draft legislation (even if clarification is thereafter sought as to the intent of the instructions). In short, there must be some express or implied request for legal advice. In common with the cases referred to by Betfair where questions arose as to whether wills and the legal transaction documents were subject to legal professional privilege, an instruction to draft legislation does not necessarily carry with it an implied request for legal advice. The provision by Parliamentary Counsel of draft legislation is also not necessarily the provision of legal advice. Whether or not legal advice is involved largely depends on the nature and terms of the retainer (in this case, the drafting instructions).[50]

51. I have read the drafting instructions to Parliamentary Counsel. They are pure drafting instructions. They seek the preparation of an exposure draft of legislation for the purpose of consultation with the industry. They do not contain any request for legal advice. I have also considered the draft legislation discovered. Other than in one case, it is simply draft legislation with certain drafting notes and does not contain anything that purports to be legal advice. I am satisfied that, other than in one case explained below, the discovered documents comprising draft instructions to Parliamentary Counsel (both draft and final) and draft legislation were not brought into existence for the dominant purpose of obtaining legal advice. Accordingly, those documents cannot attract legal professional privilege."

"People,not laws block freedom of information"

Matthew Moore in the Sydney Morning Herald gives the recent NSW Deputy Ombudsman's report on the Board of Studies a going over, citing it as providing a "standout example of what is wrong with freedom of information in NSW". The title as above, says it all, although the law does play a part. Moore concludes:

"It was precisely the behaviour of agencies such as Office of the Board of Studies that prompted the Parliament to pass a new freedom-of-information law, the Government Information (Public Access) Act. This act, which comes into force early next year, will be overseen by an Information Commissioner. There is much to like about the new law, especially the principle that all government information is to be made public unless there is an overriding public interest against disclosure. But as the Ombudsman's investigation shows so clearly, it is not the law that will make a difference; it is the attitudes of people who administer it, the Board of Studies bosses and a hundred other agencies. Unless their attitudes change there will be no improvement.."

NSW Information Commissioner hits the web

Judge Ken Taylor AM RFD Acting NSW Information Commissioner

The Office of NSW Information Commissioner is up on the web as of today, with details of preparations for the commencement of the Government Information (Public Access) Act, to replace the Freedom of Information Act in early 2010. Among the materials posted is this plain-English guide to the new act Right to information in NSW which provides an overview including the many significant changes from FOI "pull" to the GIPA Act "push" model with its emphasis on proactive disclosure.

For the record I was engaged by the Office to research and prepare a draft of the Guide .

The Tele on parents (or the Tele's) right to know.

Sydney's Sunday Telegraph took aim yesterday at the NSW Government, asserting parents' right to know details of who is on the s-x offenders register and to access comparative information about school performance. I'm with them on the latter, and on information about how many names are on the register, as any claim that this can't be released for privacy reasons is more than a stretch. However I'm doubtful the good order of society and the well-being of its members- the current standard all-purpose definition of the public interest- would be advanced by disclosure of other details of those who appear on the register. No doubt the Tele is interested, and so are some of the citizenry, but that doesn't mean it's in the public interest for it to be disclosed. The NSW Government clearly made a mess of housing Mr Ferguson, but the mob shouldn't be guarding the barricades in our name, an outcome almost certain to result from disclosure of details of where a person on the register lives.

In any event it's an offence (Section 21E of the NSW Child Protection Offenders Registration Act-CPORA) to disclose information about a registrable person, subject to a number of qualifications listed in the section, notably if disclosure is made "with the consent of the Commissioner of Police given (either generally or in a particular case) for the purposes of ensuring the safety or protection of a child or of children generally", or "is authorised or required by or under this Act or any other law."

Given the nature of the information it would almost certainly be exempt under Clause 12 of Schedule 1 of the Freedom of Information Act- disclosure would constitute an offence against an act other than the FOI Act- despite the qualifiers on disclosure. Under the yet to commence Government Information (Public Access) Act, which will replace the FOI Act early in 2010, the situation will be crystal clear. Section 21E of CPORA is one of 26 overriding secrecy laws listed in Schedule 1 of the GIPA Act for which there will be a conclusive presumption of an overriding public interest against disclosure.The policy debate on that one seems well and truly over. That shouldn't be the case for separate offence provisions that limit newspapers in NSW publishing comparative school performance information drawing from information published by a national public authority.That is plain silly.

Business may have missed the boat on FOI reform

The business community has been hard to spot in the debate in recent years about the need for improved transparency and accountability, in particular freedom of information reform. The Federal Government Exposure Draft Freedom of Information Reform Bill released in March drew over 40 submissions but only one identifiably from business, from the Australian Chamber of Commerce and Industry (Submission 28 here). The submission was primarily concerned about the proposal that all information covered by the business affairs exemption should be subject to a public interest test. Here is an extract:

"Under the Bill business information falls into a category of a “conditionally exempt document” (CED) (cl.31A). The key difference proposed under the Bill, is that the Minister/Agency must disclose CED document unless it is contrary to the “public interest” (see cl.11A(5)). This is a significant change to the existing regime. ACCI does not support such measures without clear evidence that its benefits would outweigh its costs or potential prejudice to the business community. Such documents should remain exempt, unless waived voluntarily by the business concerned. These provisions were created to balance the commercial interests of a firm, and are still required for firms to operate on a profitable and viable basis. By shifting such documents into a CED class, now exposes prejudice to a firm which is what the existing provisions are intended to protect and prevent. A CED document will generally be released under the proposed framework unless it is not in the public interest.... A presumption of disclosure is therefore created which will require an affected person or firm to defend. This is unnecessary burdensome and will impose costs and resources on a person or firm, where there does not appear to be any justification. ACCI is not aware of any inherent problem with the current framework or systemic issues identified by Government, the Courts or the community. The PI test also requires Government to decide whether complicated, sensitive and commercial information should be released. Whilst the current laws require an examination and assessment as to whether it is an exempt document, the proposals in the Bill requires the added task of then determining whether it is not in the public interest according to a range of criteria. How will the Government determine whether a document is or isn’t a trade secret and then assess the public interest to determine whether it should not be released?

... ACCI is concerned that trade secrets, by their very nature, are extremely sensitive information. This should remain as exempt information under the Bill. Other documents that could cause potential damage to a person or firm if released should continue to be exempt.

ACCI Recommendation
1. The Government should continue to exempt business documents from FOI regime. They should not be CED documents.

2. Given the potential for damaging a firm’s legitimate interests, the Government should continue to exempt trade secrets (s.43(1)(a)), information having a commercial value that would be, or could reasonably be expected to be destroyed or diminished if the information were disclosed (s.43(1)(b)) and documents which would, or could reasonably be expected to, unreasonably affect that person or business adversely (s 43(1)(c)(i)).

The submission went on to point out other problems with the public interest test in the Exposure Draft, and the proposed slight shift in the consultation requirements for business affairs information prior to disclosure.There was also a strong "don't go there" regarding an announcement by the Minister John Faulkner in March that the Government intended to ask the Australian Law Reform Commission to examine whether the FOI Act should be extended to the private sector- there hasn't been a word from the Government since about that.

On the state FOI reform front, however, the very things ACCI is worried about federally have come to pass, with the Queensland Act in force from 1 July and the NSW Act to commence early in 2010.Publicly at least there wasn't a submission from business on the proposals eventually adopted, or a complaint since about the dire consequences.

Queensland's Right to Information Act requires consideration to be given to the public interest against disclosure in various circumstances including relevantly, where

" Disclosure of the information could reasonably be expected to prejudice trade secrets, business affairs or research of an agency or person."

However this is to be weighed against public interest considerations in favour of disclosure. Of the considerations listed, the following could, in some circumstances, be relevant to disclosure of business affairs information held by a government agency:

" Disclosure of the information could reasonably be expected to promote open discussion of public affairs and enhance the Government’s accountability.

Disclosure of the information could reasonably be expected to contribute to positive and informed debate on important issues or matters of serious interest.

Disclosure of the information could reasonably be expected to reveal the reason for a government decision and any background or contextual information that informed the
decision.

Disclosure of the information could reasonably be expected to contribute to the protection of the environment.

Disclosure of the information could reasonably be expected to reveal environmental or health risks or measures relating to public health and safety.

Disclosure of the information could reasonably be expected to contribute to innovation and the facilitation of research.

The NSW Government Information (Public Access) Act adopts a similar approach. The test in regard to business affairs information involves weighing the public interest against disclosure of information that may be expected to

(c) diminish the competitive commercial value of any information to any person,or

(d) prejudice any person’s legitimate business, commercial, professional or financial interests,

against any relevant public interest considerations that favour disclosure. The starting point is the public interest in disclosure of information held by a government agency generally (Section 5), with examples given(Section 12) of specific pro-disclosure considerations including:

a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

Both Queensland (Section 37) and NSW (Section 54) also shift from the "must consult prior to disclosure of information concerning business affairs" position that the ACCI argues should remain in the Federal Act, to only requiring consultation when there is a reasonable expectation that the third party would be concerned at the prospect of disclosure, the change proposed in the Federal Exposure draft.

If these changes have been introduced into state legislation without fuss, the Federal Government shouldn't be dissuaded by the ACCI from proceeding with its plans.

Complex questions about access to information about a child

New access to government information laws in Queensland and NSW ( yet to commence) include provisions (slight differences in wording) that attach weight to the public interest in non-disclosure of information concerning a child where disclosure would not be in the child's best interests. In both cases this is a consideration to be assessed against any competing public interests in disclosure.

A similar but less conditional provision in the Western Australian Freedom of Information Act was the subject of a decision by Information Commissioner Bluemmel in Re "M" and Child and Adolescent Health Service [2009] WAICmr 16 to refuse access to a father who sought the medical records of his four year old daughter. Section 23(4) of the WA Act provides:

“ If a document contains personal information and the applicant, or the person to whom the information relates, is a child who has not turned 16, the agency may refuse access to the document if it is satisfied that access would not be in the best interests of the child and that the child does not have the capacity to appreciate the circumstances and make a mature judgment as to what might be in his or her best interests.”

Commissioner Bluemmel was satisfied the documents contained personal information about a child and, with regard to the child's best interests said [15]

"I am of the view I should give weight to the professional expertise of the relevant officers of the agency. In this case, I am advised that the decision on internal review was made by an officer who has extensive experience and qualifications in the area of child health and, before making her decision, the decision-maker sought the views of the senior medical officer in charge of the CPU. I am also advised that it is a longstanding policy of the agency to put the interests of the child above the interests of another party, including the parents of the child. This is particularly relevant where the requested documents contain detailed private and sensitive information about a child."

Important considerations in the minds of the officers concerned [16] , supported by the Commissioner, were that disclosure to the applicant was "disclosure to the world" and the inability to attach conditions to disclosure. No special factors or circumstances appear from the decision to have been argued by the applicant and in any event in WA would seem to be irrelevant. In Victoria and NSW case law has ruled that disclosure to the world cannot be automatically assumed.

The NSW Government Information (Public Access) Act when in force will not allow conditions to be attached to an FOI disclosure, but will provide that conditions can be attached to informal disclosure in response to an informal application (Section 8). Section 54 also will entitle an agency, in responding to an application under the Act, to take into account, for or against disclosure, the applicant's identity and relationship with any other person, the applicant's motives for making the application and any other factors particular to the applicant, to the extent the applicant chooses to make them known to the agency.I can't see anything similar in Queensland's Right to Information Act, but glad to hear from anyone if I missed it. The Federal Government's Exposure Draft wasn't clear about whether any change to "disclosure to the world" or the irrelevance of special applicant factors was contemplated (Submission 21 page 13).

The take from the WA decision is that when it comes to review of decisions about the best interests of a child, the views of the experts will loom large, and won't be lightly dismissed.In NSW at least the new Act specifically will provide for consideration of special factors that may justify disclosure to a particular applicant, but possibly not to others. This may or may not have changed anything in the West, if it had been a relevant consideration, but its a good move by mine.

NSWLRC calls for input on personal information issues

Had some experience, on either side of the desk, regarding access applications for information under the NSW Freedom of Information Act, that raised issues about personal information of someone other than the applicant, and have a view about the law, policies and procedures that were applied in handling the matter? The NSW Law Reform Commission is interested in hearing from you on its blog, in connection with an additional reference from the Attorney General that forms part of its broader privacy law inquiry.

I'm not sure what prompted the reference - the Attorney asked the Commission to look at the matter at the time Parliament was debating the Government Information (Public Access) Act in June, after the Ombudsman spent a year looking at the Freedom of Information Act, including investigation of the practices of 18 agencies, and this was followed by further work by the Department of Premier and Cabinet before the legislation was introduced into Parliament. In all this it seems, some issues concerning access to personal information were or may have been missed, although the Commission's Points for Discussion seems to be searching for problems rather than laying them out. In any event the Commission would welcome before the end of the month any input on past experience or the likely effect of the new legislation on applications for this type of information.

FOI reforms the real thing, even to Michael McKinnon

After two days at different conferences in Canberra where Freedom of Information was a lively topic, a few reflections.

David Solomon and Michael McKinnon in addressing the National Administrative Law Forum on the topic "FOI reform or political window dressing?" both agreed its serious and far beyond window dressing thus far in all the jurisdictions that are on the move. Premier Bligh received special acknowledgement from both for the priority she gave to change from day one in office, her willingness to go with root and branch reform and the skin she has put on the line to make this work in Queensland.

Solomon said the common element everywhere was that new political leadership had seen more open government as a virtue, with FOI part of a bigger reform picture to improve integrity, accountability and public trust and confidence in government. McKinnon not surprisingly thought that the media had played a key role in getting the issue on the agenda through highlighting how FOI was not working, gave some telling examples of the high cost of government secrecy in terms of impact on citizens, and suggested the need for constant vigilance by the media and others to hold onto the gains, given what he sees as the underlying resistance by ministers and public servants to openness.

Cabinet Secretary and Special Minister of State Senator Joe Ludwig gave an outline of the new scheme in the Federal Exposure Draft released by his predecessor in March, but no advance on that, although in this first speech on the topic since his appointment, he put on the record his strong commitment to the change proposals. The Minister gave no indication of what influence on thinking the 46 submissions in response to the Draft bills have had, and left straight after, without taking questions, on the note that having considered them, the bills will now be introduced into Parliament.

One welcome comment by the Minister was on frank and fearless advice- those who still mumble (you know some of the names) that the potential for advice to be open to later scrutiny will mean it is not written down should note:

"I know that some in the Australian Public Service feel that FOI reforms may inhibit their ability to provide frank and fearless advice. But I believe that the tradition of frank and fearless advice is more robust than that. I believe that our public servants will work professionally within the new FOI framework as they do within other accountability mechanisms. It is beyond dispute that it is in the public interest for ministers to receive written advice on matters relating to their administrative and policy responsibilities. In any given case, whether or not the exemption may be sustained will depend on the subject matter of the document and the circumstances around the Government’s consideration of the document, including whether a Government position has been announced. Political sensitivity will not be an argument against disclosure."

Professor Bill Lane and Eleanor Dickens of Clayton Utz Brisbane ran a concurrent session at the Forum providing a detailed run-through of Queensland's Right to Information Act. It provided a sharp contrast for me between the fundamental shift in Queensland (and NSW) reflected in completely new legislation and the Federal proposals which graft onto the existing 27 year old act some extensive changes that deliver on the Government's pre-election commitments. While 21 months on, now is long past the time to get on with it, the opportunity has been missed this time round for a bigger step by Canberra in the best practice direction.

At the Walkley Foundation Public Affairs in the Nation's Capital Conference on Wednesday one issue I spoke about was the looming management challenge posed by the new forms of access to information legislation, with the emphasis on publication and pro-active disclosure. Public affairs functions within government agencies will need to be directly involved, as will IT, the web people and records management. Existing models where in some agencies FOI has primarily been law influenced work often in a legal branch won't fit the new world. Neither will the current attachment in ministers' offices, including that of the Prime Minister, to attempt to micromanage and control information flows to the outside world -something will have to give.

Nicholas Gruen of the Federal Government 2.0 Task Force sparked a lot of interest in outlining the Task Force agenda, and says so far - early days - he, with Minister Tanner ( and Ludwig) behind him, is encountering enthusiasm from those in government who hear about the open government possibilities. Public affairs staff at the conference were also positive but indicated Gruen needs to get to senior management who they told him are risk-averse when it comes to getting information out there.

I understand the issue of how best to organise and manage the new era is already exercising minds in Queensland government agencies, with deputy heads designated Right to Information champions and responsible for making this new idea, something close to the Premier's heart and political fortunes to some extent, work in practice. The issue doesn't seem to have hit the intray in Canberra or Sydney as yet.In NSW existing structures where FOI responsibilities in some agencies are in a ministerial liason unit will also not sit comfortably with the Government Information (Public Access) Act which provides that an agency is not subject to the direction or control of any minister in dealing with applications for agency information, and separately contains four offence provisions including one concerning improperly influencing a decision.

Lawyers back in the driving seat on access to information in NSW

The new face of government in NSW on access to information-Attorney General John Hatzistergos.

The NSW Government, having done well with generally good reforms in the yet to commence Government Information (Public Access) Act has now dampened hopes ( well at least mine) by giving the Attorney General responsibility for this and related acts. There has been no announcement other than the publication of a notice in last Friday's Government Gazette ( Page 4110).

This is a whole of government administrative reform, not a primarily legal issue that fits with the responsibilities of the First Law Officer of NSW. The reform initiative has had up until now leadership from the top, with the Premier announcing the commitment to turn past practices of secrecy on their head, and with he and his department with all its clout shepherding the legislation through to finalisation. Now the Government has passed the parcel to the minister with a legal perspective to manage implementation from here on, with the major task the oft-spoken culture change. The Premier should be standing behind the Information Commissioner, particularly when other ministers will need to be required to toe the line.

The Freedom of Information Act which the new legislation replaces has been the responsibility of the Premier since commencement in 1989 because it was seen from the start as primarily a matter of public management, with administrative law implications, not the other way round-one of the reasons NSW earned a reputation until recent years for being less legalistic in this area than other jurisdictions. The new act-with emphasis on pro-active disclosure and formal applications for information only required as a last resort- properly moves even further in this direction, just as as more open government becomes part of the Government 2.0 discussion about changing the relationship between government and the citizenry. It's not primarily lawyer turf, as we see elsewhere.

For example, the Federal Government moved responsibility for Freedom of Information, and the proposed Office of Information Commissioner (incorporating the Privacy Commission) from Attorney General's to Prime Minister and Cabinet under the Special Minister of State. In Queensland the same shift of responsibilities to the Premier has taken place as a result of the passage of the Right to Information and Information Privacy acts. The recognition that less legalisms and more emphasis on citizen rights and public participation is behind these changes. NSW appears to be going in the opposite direction.

On the day that responsibility for the new legislation was given to him, the Attorney General appointed the NSW Privacy Commissioner Judge Ken Taylor Acting Information Commissioner to begin the process of setting up the new office. According to the announcement, "the appointment is being made as a transitional measure only. The Government will shortly commence the public advertisement and selection process for the appointment of a permanent Information Commissioner, with a view to having a permanent officeholder appointed upon commencement of the new legislation in early 2010."

Judge Taylor is a former District Court Judge, for two years NSW Health Care Complaints Commissioner, and sometime Director General Naval reserves. He'll need all the public administration experience he can muster to deal with the tough issues flagged in this letter about his appointment to the Joint Parliamentary Committee on the Ombudsman and Police Integrity Commission. Getting the public service ready for the change doesn't seem to be part of his responsibilities as training isn't mentioned. (Correction-it does include preparing draft guidelines and training materials). Nor are any initiatives to inform and educate the public about what are major generally positive changes in their rights. But I'll bet no fine legal point escapes attention.

Information Commissioner challenges

As NSW goes about setting up the Office of Information Commissioner and finding someone to fill the job, the Acting Information Commissioner in Queensland comes to grips with new legislative responsibilities, the new West Australian Information Commissioner Sven Bluemell settles in, and the Federal Government continues to mull over legislation to establish its Office of Information Commissioner, a timely reminder from the UK that more than good intentions are needed to make this kind of set up work:

"Long delays by the Information Commissioner’s Office (ICO) in investigating freedom of information complaints are undermining the effectiveness of the FOI Act, according to a new report by the Campaign for Freedom of Information.

The report analyses nearly 500 formal decision notices issued by the ICO in the 18 months to 31 March 2009. The decisions were made under the FOI Act and the associated Environmental Information Regulations. It finds that -

• on average it took 19.7 months from the date of a complaint to the ICO to the date on which the ICO’s decision on the complaint was issued

• in 46% of cases it took between 1 and 2 years from complaint to decision

• a quarter of formal decisions took between 2 and 3 years while 5% of cases (23 complaints) took more than 3 years

• the longest case took 3 years and 10 and a half months

• only 24% of decisions were issued within 12 months of the complaint.

The report also found that on average the ICO’s investigation into a complaint did not begin until 8 months after the complaint had been received. In 28% of cases, there was a delay of more than a year before the investigation began and 19 cases waited more than 18 months. One complaint had been with the ICO for 22 months before the investigation began."

NSW Government Information Act now law waiting for commencement

The NSW Legislative Assembly yesterday accepted the minor amendments to the Government Information (Public Access) Bill passed by the Legislative Council, so the new law is done and dusted, save for a commencement date. The Act as passed by Parliament is the Bill as introduced with the amendments referred to in this Hansard extract of Assembly debate:

Consideration of the Legislative Council amendments.

Schedule of amendments referred to in message of Thursday 25 June 2009

No. 1 Page 26, clause 53 (2), line 10. Insert "The agency's searches must be conducted using the most efficient means reasonably available to the agency." after "received.".

No. 2 Page 33, clause 64 (2), line 17. Insert "that is necessary" after "amount of time".

No. 3 Page 33, clause 64 (2) (a), line 19. Insert "efficiently" after "dealing".

Mr BARRY COLLIER (Miranda—Parliamentary Secretary) [10.50 a.m.], on behalf of the Hon. Nathan Rees: I move:

That the House agree to the Legislative Council amendments.

Mr CHRIS HARTCHER (Terrigal) [10.50 a.m.]: The Government Information (Public Access) Bill 2009 was introduced by the Premier earlier this week. It was forwarded to the Legislative Council last night where a series of amendments were moved by the Greens and carried by that House. It is not without significance that the bill is being considered in this place today when the news media carries a story that for the first time a report by the Bureau of Crime Statistics and Research prepared by Dr Don Weatherburn has been suppressed by the Government as it relates to juvenile crime figures. The extraordinary situation we have is that, on the one hand, the Premier tells Parliament that he will widen the areas the public are entitled to access to obtain government information and, on the other hand, his Cabinet suppresses for the first time since the bureau was established in 1988 a report on juvenile crime. Dr Weatherburn is quoted in the newspaper this morning as saying, "This is the first time this has ever happened."

That juxtaposition must be considered a test of the Government's sincerity. Notwithstanding that and the comments of the Leader of the Opposition, who led for the New South Wales Liberals-Nationals in debate on the bill, the Coalition accepts and supports these amendments. The amendments are designed partially to try to obtain some degree of coherence and efficiency in the extraordinary billing system that government departments use to respond to freedom of information requests. Requests for information are repeatedly responded to with a letter stating that the information will take so many hundreds of hours to collect and will cost so much per hour, and therefore the applicant can forward thousands of dollars on account—and if more money is required the department will debit the applicant further. In many cases there is every reason to suspect that the response is sent simply because freedom of information officers are looking for a means to frustrate the application. Being unable to frustrate the request on statutory grounds, as outlined in the Freedom of Information Act, the officers seek to frustrate the process by making it cost prohibitive. The amendments moved by the Greens are an attempt to remove as far as possible the tactic of making applications cost prohibitive. The first amendment is to clause 53 (2), line 10 on page 26 of the bill. The amendment states:

Insert "The agency's searches must be conducted using the most efficient means reasonably available to the agency." after "received.

This amendment requires the agency to provide the information efficiently. If the agency's files are structured so that certain words can be entered into the computer system and the files are located, it should take 10 to 15 minutes. It should not require a manual search of the entire filing system. Yet many agency billing accounts refer to an exhaustive manual search of an entire filing system, not just the specialised system relating to the application. The second amendment is to clause 64 (2), line 17 on page 33 of the bill. It states:

Insert "that is necessary" after "amount of time".

With respect to this amendment, the officer cannot just say that the search will take a certain amount of time; he or she must be able to establish that the time frame is necessary. The onus is on the officer to demonstrate a pre-requisite reason for the time taken. The officer cannot just assert that it will take a certain amount of time and therefore demand a large payment, at $30 or $35 an hour. The third amendment is to clause 64 (2) (a), line 19 on page 33. It states:

Insert "efficiently" after "dealing".

Again, this amendment goes to the crux of the matter. Clause 64 refers to an officer in an agency dealing with the application. The specific purpose of this amendment is to insert the word "efficiently". The officer must deal with the request efficiently, not in a long, drawn-out, lackadaisical manner that, once again, sends costs soaring. Over the past 15 years of this Government applications for freedom of information have repeatedly been met with not a denial but a huge account bill. The process of freedom of information requests has been frustrated and distorted by enormous billing accounts. Certain news media organisations may be able to afford to pay tens of thousands of dollars for freedom of information requests, but of course ordinary citizens cannot afford to pay those amounts—and nor can the New South Wales Liberals-Nationals. The Opposition and the citizenry are stymied by the current process. Perhaps news media organisations are not stymied, but even they complain validly about the costs of freedom of information applications. At last we have an attempt to bring the freedom of information application costing system under control. Accordingly, the New South Wales Liberals-Nationals support the amendments. As the Leader of the Opposition outlined in the agreement in principle debate, further matters about accessing government information need to be addressed, but now is not the appropriate time to do so.

Mr BARRY COLLIER (Miranda—Parliamentary Secretary) [10.57 a.m.], in reply: The Government agrees with the amendments. Despite the rant by the Leader of the Opposition in this House during the debate on the Government Information (Public Access) Bill 2009, the amendments were moved by the Greens and not the Opposition. The whole purpose of his rant was to tell us that he "expects to win the 2011 election"—he probably expected to win the 2007 election, but that did not happen. Such is the arrogance of the Leader of the Opposition and also the member for Terrigal, judging from his recent outburst in the House. This is landmark legislation. The upper House in performing its scrutiny function has arrived at amendments that are acceptable to the Government. I commend the amendments to the House.

Question—That the motion be agreed to—put and resolved in the affirmative.

Motion agreed to.

Legislative Council amendments agreed to.

Message sent to the Legislative Council advising it of the resolution

Federal MPs travel details on-line.

Special Minister of State Joe Ludwig yesterday tabled in Federal Parliament the six monthly reports on travel and related expenses paid by the Department of Finance and Deregulation for members of parliament and former members, and overseas study travel reports submitted by members.

Two welcome firsts: for the first time information about airline loyalty points and their use is included. And the reports are also posted on the Department's website.

The information on parliamentarians (537 pages!!) and former parliamentarians comprises: aggregate information on travel entitlements for all Senators and Members; summary information particular to each Senator and Member on costs incurred and any repayments to Finance in the various categories of travel entitlements for two seperate reporting periods:travel paid between 1 July and 31 December 2008 and undertaken on or after 1 July 2008; travel paid between 1 July and 31 December 2008 and undertaken prior to 1 July 2008; and details of payments of Travelling Allowance made by Finance and of any repayments.

Some Fairfax newspapers yesterday reported on the latest details from the Register of Interests for senators and members of Federal Parliament also just tabled, (touching off this debate in the Senate) but we haven't got to the point yet where that sort of information in searchable form is posted on Parliament's website, although hat tip to Open Australia for their manual attempts to publish an "unofficial" version. And also alas, nothing on the web about the significant payments and expenditure of money to and for parliamentarians, including electorate and other allowances administered not by Finance but by Parliament itself.

So at the Federal level some welcome progress. In NSW as we heard from the Attorney General during debate the other night on an unsuccessful move to have the Government Information legislation extend to Parliament itself, those interested in this stuff must be voyeurs.

NSW Government Information Bill debate in all the gory detail.

Just on the off-chance that you have a little time on your hands or an overwhelming thirst for the detail, I've put together here the various extracts from Hansard of debate in both Houses of NSW Parliament on the Government Information (Public Access) Bill and related legislation. It runs to 90 pages, starting with the Premier's statement on 17 June, two hours of speeches in the Legislative Assembly on 23 June, and three separate discussions in the Legislative Council on 24 June including consideration of The Greens' amendments around the witching hour. Some of the point-scoring dismissive rejection by the Attorney General of sensible amendments doesn't instil confidence that there was an interest in the best possible outcome.

The two relatively minor amendments accepted by the Government and passed by the Council need to be run by the Assembly of course. That will be routine, today or tomorrow, before Parliament rises to return in September. Haven't seen anything regarding commencement date.

It wasn't a good look on the day of this generally great leap forward to have a report from the Bureau of Crime Statistics suppressed from publication on "Cabinet-in Confidence" grounds. The Attorney General says it will be released in two weeks. By the way under neither the existing FOI Act nor new legislation is there a "Cabinet-in Confidence" exemption that would apply to a report such as this unless it could be shown it was prepared for the purpose of submission to Cabinet ("dominant purpose" in the new world).