That doesn’t look like Cabinet information to me

Key Points
  • Findings were made in the matter of Mookhey v Infrastructure NSW [2017] NSWCATAD 345 regarding the valid reasons for withholding documents for being Cabinet in Confidence.
  • Even though a document is used by Cabinet, it may not be considered Cabinet information.

Arguing that a document is Cabinet information is not enough to have the document prohibited from disclosure, under the Government Information (Public Access) Act 2009.

The Government Information (Public Access) Act 2009 (GIPA Act) provides for a presumption in favour of publicly disclosing government information, as well as various reasons against the disclosure of documents. There is a conclusive presumption against disclosure if the information is Cabinet information. Schedule 1 of the GIPA Act prescribes which information qualifies as Cabinet information.

While many government agencies may decide to withhold certain documents as Cabinet information, it doesn’t always mean that they fit the criteria. This was addressed in the matter of Mookhey v Infrastructure NSW [2017] NSWCATAD 345.

Background: Mookhey v Infrastructure NSW [2017] NSWCATAD 345

In this matter, Daniel Mookhey MLC made an access application to Infrastructure NSW, under the GIPA Act. Infrastructure NSW decided to refuse to provide certain documents on the basis that they were Cabinet information.

Dominant purpose of submission to Cabinet: cl 2(1)(b) of the GIPA Act

Among other arguments, Infrastructure NSW and the Premier of NSW submitted that particular documents were prepared for the dominant purpose of being submitted to Cabinet (cl 2(1)(b) Sch 1, GIPA Act).

The documents in question were business cases prepared by RMS and TfNSW for three infrastructure projects proposed to be funded as part of the Housing Acceleration Fund, using Restart NSW funds. The business cases were submitted to Infrastructure NSW as part of the process of securing approval by Cabinet. Infrastructure NSW reviews business cases to make recommendations to the Treasurer to seek funding from Cabinet.

The applicant submitted that these documents were not prepared for the dominant purpose of submission to Cabinet, but rather, for the primary purpose set out in the NSW Treasury “Guidelines for Capital Business Cases: Policy and Guidelines Paper,” December 2008 (Guidelines). These are:

  • Agencies “must prepare business cases to support the mandatory requirements for capital related resource allocation decisions of Government”.
  • "The final business case is used to document a defined project. This includes an updated justification of the service rationale, and demonstration of value for money and the agency’s capability to implement the service.
  • Final business case template and the Business Case Gateway review report must be prepared for proposals submitted to Government for funding approval.”

The respondent submitted that business cases are prepared for the dominant purpose of being considered by Cabinet and, were it not for the requirement to seek funding by Cabinet, they would not be prepared. The Tribunal considered this to be, to some extent, speculative.

In regards to cl 2(1)(b) at Sch 1 of the GIPA Act, the Tribunal highlighted D’Adam v New South Wales Treasury and the Premier of New South Wales at [62] - that an agency must have reasonable grounds to claim that the whole of each document was prepared for submission to Cabinet, not merely part of the information.

The Tribunal found that, as the practice was for submissions to generally contain only extracts from business cases, and for whole business cases only to be submitted to Cabinet “on occasion”, Infrastructure NSW did not have reasonable grounds for its claim under cl 2(1)(b) of Sch 1. The Tribunal rejected the claim.

Documents tending to reveal Cabinet decisions or deliberations (cl 2(1)(d)) of the GIPA Act

The respondents also submitted that some documents contained information that reveal, or tend to reveal, earlier decisions or deliberations about other infrastructure projects (Cl 2(1)(d) Sch 1 GIPA Act).

The Tribunal rejected this claim because there was not enough evidence to substantiate the claim, and the Tribunal was unable to identify the pages on which the information relied upon was located.

Documents revealing the position of a Minister in Cabinet (cl 2(1)(e))

The respondents also submitted that the documents in question reveal the position that the Minister for Planning was considering taking, or had been recommended to take, on a matter in Cabinet (cl 2(1)(e) Sch 1).

However, the Tribunal determined, based on the evidence, that it is Infrastructure NSW which makes recommendations, as to whether a proposal, supported by a business case, should be funded, and whether a business case be submitted to Cabinet.

Therefore, the Tribunal rejected the respondent’s claim because it could not be said that the preparation of a business case, of itself, tends to reveal a recommendation made to the Minister for Planning.

Finding

Dr J Lucy found that Infrastructure NSW did not establish reasonable grounds for its claim that the information in the Documents was Cabinet information, but rather, it was correct to provide the applicant with access to the information sought.

Post by Ramza Martin and John Kell

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