Freedom of Information and the Cabinet documents exemption - David Davis MP v Department of Justice
Client Newsletter - December 2008
Summary : The Victorian and Civil Administrative Tribunal (VCAT) has affirmed a decision of the Department of Justice in relation to the
application of the Cabinet documents exemption in ss 28(1)(b) and (ba) of the Freedom of Information Act 1982 (the Act).
The decision will be of interest to key government agencies in the context of the decision of the Court of Appeal in Secretary, Department of Infrastructure v Asher1.
The decision demonstrates the importance of agencies clearly identifying, at the time of decision, what evidence is available to substantiate the use of the Cabinet document exemption. Specifically, evidence must be available to substantiate that the purpose for which documents were created was for submission to Cabinet for consideration.
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The applicant, a Member of Parliament, made a FOI application to the Department of Justice (the respondent) for copies of Monthly Activity Reports (the Reports) provided to the Government Communications Review Group (GCRG) from 1 January 2004 to 31 December 2007.
The Reports formed part of a process developed by the GCRG to support the Cabinet Committee in its decision-making role regarding government communications strategies.
The respondent denied access to the Reports, relying on the Cabinet documents exemption in ss 28(1)(b) and 28(1)(ba) of the Act. It determined that the documents were prepared for the purpose of submission to a Committee of Cabinet and for briefing the relevant Minister in relation to matters to be submitted to Cabinet for consideration.
The applicant submitted that the Reports were not exempt documents, as they were the subject of a filtering process by the GCRG, which placed an additional step in the evidentiary chain and which interrupted the sequence of events between their preparation by the Department and submission to Cabinet.
The applicant made several similar requests to nine other government agencies, which were adjourned by consent, pending the outcome of the Department of Justice proceeding.
Following the principles outlined in the decisions of Ryan v Department of Infrastructure2 (Ryan), and the Court of Appeal in Department of Infrastructure v Louise Asher MP (Asher), the Tribunal determined that the Monthly Activity Reports were exempt under sections 28(1)(b) and 28(1)(ba) of the Act.
The key issue considered by the Tribunal was whether the handling of the Reports by the GCRG, prior to their submission to the Cabinet
Committee, severed the nexus between their preparation by the respondent department and submission to the Cabinet Committee as
submitted on behalf of the applicant.
Section 28(1) of the Act provides for an exemption for Cabinet documents. In part, the provision provides that a document will be an exempt document:
- if it has been prepared by a Minister, or on his or her behalf, or by an agency for the purpose of submission for consideration by
Cabinet (s 28(1)(b)); and/or
- if it is prepared for the purpose of briefing a Minister in relation to issues to be considered by Cabinet (s 28(1)(ba)). The definition of ‘Cabinet’ in s 28(7)(b) includes a committee or sub-committee of Cabinet.
Section 28(1)(b)
Relying on the principles outlined in Ryan, the Tribunal concluded that the Reports were exempt documents because the evidence provided by the respondent established that the documents were prepared by the respondent department for the sole or predominant purpose of submission to Cabinet.
The Tribunal accepted, through the evidence of the respondent’s two witnesses, that the Reports were submitted to the Cabinet Committee and were available to be referred to by Cabinet Committee members during Cabinet meetings.The Tribunal was also satisfied on the evidence provided that the handling of the Reports by the GCRG, prior to their submission to the Cabinet Committee, did not severe the nexus between their preparation by the respondent department and submission to the Cabinet Committee.
Given the contention that, if the role of the GCRG was more than a ‘post box’, the Cabinet documents exemption could not apply, the Tribunal placed significant weight on evidence provided by the respondent’s two witnesses. The respondent’s first witness gave evidence in relation to the establishment, operation and functions of the GCRG and was also a former CGRG member and secretariat of the Cabinet Committee. The respondent’s second witness was responsible for preparing and submitting the Reports to the GCRG and also attended GCRG meetings as a rotational member.
In arriving at its decision, the Tribunal placed weight on the following evidence provided by the respondent’s witnesses:
- The GCRG reviewed the Reports and assessed them for compliance against the relevant Government Advertising Guidelines (the Guidelines) prior to submission to the Cabinet Committee. If a proposal did not comply with the Guidelines, the GCRG would inform the relevant department. It would then be a matter for that department to decide, whether to continue with the proposal and have it submitted to the Cabinet Committee, or amend the proposal and resubmit it to the GCRG for review prior to submission to the Cabinet Committee.
- While the GCRG prepared a consolidated report summarising the Reports, which was submitted to the Cabinet Committee, the separate summary document operated as an index for the Reports and accompanied the actual Reports to the Cabinet Committee.
- The GCRG did not approve, make determinations, or express views regarding the merits of the Reports. Nor did it break the sequence of events from the preparation of the Reports to their submissions to the Cabinet Committee. Its role was to assist the Cabinet Committee in ensuring that the Reports complied with the Guidelines. Its so-called ‘recommendations’, referred to (and relied upon by the applicant) in an Auditor-General’s report on Government advertising3 were in fact merely an assessment of whether a particular proposal complied with the Guidelines and did not constitute a decision of the GCRG as to whether or not a proposal was approved.
- The Reports were prepared by the respondent for submission to the Cabinet Committee for approval. The GCRG did not have authority to decide whether a particular activity would be approved. This authority lay solely with the Cabinet Committee and was required before any of the proposed activities could be undertaken.
- Two copies of the Reports, along with the summary report, were submitted to the Cabinet Committee meeting and were available for the viewing by Ministers as the need arose at the meeting. For example, where further detail about a proposal was required.
- The Reports were treated as Cabinet documents in that they were handled and stored by the respondent in accordance with strict procedures required for the handling and security of Cabinet
documents.
Section 28(1)(ba)
Further, the Tribunal held that the Reports were also prepared for the purpose of briefing a Minister in relation to issues to be considered by Cabinet. In this case, evidence was provided by the first witness that another purpose for the preparation of the Reports was to brief the relevant Minister. The first witness gave evidence that it was he who was charged with the responsibility of briefing the relevant Minister prior to the Cabinet Committee meeting. This evidence was accepted by the Tribunal.
Accordingly, the Tribunal held that the Reports were also exempt under s 28(1)(ba) of the Act.
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Implications for Government
The decision highlights the established principle, which has been consistently upheld in numerous decisions with respect to Cabinet documents that whether a document falls within the Cabinet document exemption will depend on the purpose for which a document has been prepared.
In particular, with respect to s 28(1)(b), the purpose for which a document has been prepared is crucial: a document will only be exempt if the sole purpose, or one of the substantial purposes, for which the document was prepared was an exempt purpose.
While it is not necessary to prove that a document was actually submitted to Cabinet or to a Minister, the actual use made of a document may be relevant in ascertaining the purpose for which a document has been prepared, but is not determinative of this issue.
The Davis decision demonstrates the importance of agencies clearly identifying, at the time of decision, what evidence is available to substantiate the use of the Cabinet document exemption. Specifically, evidence must be available as to the purpose for which the actual documents submitted to Cabinet were created.
The Tribunal in Davis also affirms the Court of Appeal decision in Asher, and emphasised the importance of supporting evidence regarding the
purpose for which a document is prepared. In doing so, it noted the views expressed by Strong J, (in a 2002 Asher decision by VCAT) that unless “the evidence is inherently improbable and/or the witnesses demonstrably unreliable, the Tribunal will usually accept the assertions made”.4
We suggest that the key differences between this decision and that of Asher, in which the Court of Appeal last year held that quarterly asset performance reports (the Quarterly Reports) did not fall within the scope of the Cabinet document exemption, is that there was no evidence that the Quarterly Reports were not brought into existence for the sole or dominant purpose of being included in, or being attached to a submission to Cabinet. Rather, the Court held that the Quarterly Reports were ‘prepared in order to enable the creation of another and quite separate document’, which was to be submitted to Cabinet for its consideration.
In the Davis decision, the evidence of the respondent’s witnesses clearly demonstrated that not only were the Reports prepared for the
purpose of submission to Cabinet for consideration and for the purpose of briefing a Minister, they were also physically submitted to Cabinet and available for reference by Ministers attending the Cabinet meeting.
Further, the fact that the Reports were provided to the GCRG prior to the Cabinet Committee did not detract from the purpose for which they were prepared, given that the GCRG reviewed the reports to ensure their compliance with the Guidelines. This is factually a different situation to that of Asher in which the Court considered evidence given on behalf of the Department that a separate report was prepared using the contents of the Quarterly Report which was then submitted to Cabinet.
Accordingly, the factual circumstances of a request for documents, which a government agency considers may fall within the Cabinet document exemption, require close analysis and consideration before such exemptions are applied.
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For further information
For further information or legal advice on any issues raised in this newsletter contact:
James Ruddle on 8684 0470
Deputy Victorian Government Solicitor
Jonathan Smithers on 8684 0411
Assistant Victorian Government Solicitor
Joanne Kummrow on 8684 0479
Managing Principal Solicitor
Michele Rowland on 8684 0463
Senior Solicitor
The VGSO is the primary source of legal services to the Victorian State Government and its statutory authorities, providing strategic advice and practical legal solutions.
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1 [2007] VSCA 272.
2 (2004) VCAT 2346.
3 Victorian Auditor General, Government advertising,
PP No 232, Session 2003-06.(2006:10).
4 Louise Asher MP v Department of Premier and
Cabinet [2002] VCAT 499.
