Part 1: Implementing Your Ambition for Canberra
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From: To: ACT Health FOI; CMTEDD FOI; CSD FOI; EDU Legal Liaison; EPSDFOI; JACS FOI; TCCS FreedomOfInformation Subject: FOI Request - Incoming Minister Briefs Date: Wednesday, 11 November 2020 10:06:50 AM Attachments: image002.png Good Afternoon, RE: FREEDOM OF INFORMATION REQUEST – INCOMING MINISTER BRIEFS I write to request under the Freedom of Information Act 2016 the final copies of the incoming minister briefs following the 2020 ACT Election. This request includes, but is not limited to, briefs prepared for potential Liberal ministers. I ask that this request be forwarded to any other government entity that would have prepared such briefs. Should you require any further information or clarification about my request, please contact my office on Thank you, 7. I have decided to grant access in full to two documents, partial access to 50 documents and refuse access to 48 documents as I consider they contain information that would, on balance, be contrary to the public interest to disclose under Schedule 1 of the Act or under the test set out in section 17 of the Act. 8. My access decisions are detailed further in the following statement of reasons and the documents released to you are provided as Attachment B to this letter. 9. In accordance with section 54(2) of the Act a statement of reasons outlining my decisions is below. Statement of Reasons 10. In reaching my access decisions, I have taken the following into account: • the Act; • the content of the documents that fall within the scope of your request; • ACT Ombudsman’s Office Freedom of Information Guidelines; • Relevant case law precedents; and • the Human Rights Act 2004. Exemption claimed 11. My reasons for deciding not to grant access to the identified documents and components of these documents are as follows: Contrary to the public interest information under schedule 1 section 1.6 of the Act (Cabinet Information) 12. Documents 51 and 52 contain information about election commitments made during the election campaign. These documents were included as part of the incoming government brief provided to the Chief Minister and therefore fall within the scope of your request. In reviewing these documents, I consider they contain information which is contrary to the public interest under Schedule 1, section 1.6 of the Act as this information was provided with the intention it would be presented to Cabinet. Section 1.6 of Schedule 1 of the Act allows material prepared for consideration by Cabinet at a later date to be withheld from release. 13. The purpose of the Cabinet exemption is to maintain the confidentiality of the cabinet process and to uphold the principle of collective ministerial responsibility. This exemption was discussed in The Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604 (21 April 1993). Paragraph 6 of the decision, states that: … it has never been doubted that it is in the public interest that the deliberations of Cabinet should remain confidential in order that the members of Cabinet may exchange differing views and at the same time maintain the principle of collective responsibility for any decision which may be made. 14. While commitments made during the election are publicly available, documents 51 and 52 contain additional information about each commitment including costs, risks, budget and implementation options which is not publicly known. Release of this information would therefore impact the deliberative functions of Cabinet. 15. In reviewing these documents, I note the requirements of schedule 1 section 1.6(2) of the Act which states that the exemption for Cabinet Information does not apply to ‘purely factual information’ unless the disclosure of the information would involve the disclosure of a deliberation or decision of Cabinet and the fact of the deliberation or decision has not been officially published. In the case of Parnell & Dreyfus and Attorney-General's Department [2014] AICmr 71, the Australian Information Commissioner stated that the term ‘purely factual material’ does not extend to factual material that is an integral part of the deliberative content and purpose of a document, or is embedded in or intertwined with the deliberative content in such a manner that it is impractical to separate it from the other content. 16. Having reviewed the documents, I consider that the purely factual information within the documents identified is an integral part of the deliberative content and as stated by the Commissioner, the analysis and views in the documents would be robbed of their essential meaning without incorporation of this material. I am satisfied that disclosure of this purely factual information would involve the disclosure of future deliberations and decisions of Cabinet. 17. Having considered the information contained in the documents, I am satisfied that disclosure of such information contained in documents 51 and 52 would be contrary to public interest pursuant to schedule 1 section 1.6 of the Act. Contrary to the public interest information under schedule 1 section 1.14(a),(g) and (i) of the Act (Law enforcement and public safety) 18. Page 845 contains information about an ongoing investigation and possible contravention of the laws of the Territory. Release of this information at this time would prejudice the ongoing investigation of this matter. I am satisfied that release of the details of this investigation as included in page 845 would be contrary to the public interest in accordance with Schedule 1 section 1.14(a) of the Act. 19. Schedule 1, section 1.14(g) of the Act allows for the non-disclosure of information that may prejudice the maintenance and enforcement of a lawful method or procedure for protecting public safety and is intended to be used to protect documents which outline the method or process for protecting public safety. Schedule 1, section 1.14(i) provides similar protection against the release of information that may prejudice a system or procedure for the protection of people, property or the environment. 20. Page 633 contains briefs from the ACT Justice, and Community Safety Directorate (JACS). These briefs contain information furnished by the Australian Federal Police (AFP) who provide services to the Australian Capital Territory. Some of the information on this page contains details of current initiatives and programs being undertaken by the AFP. As part of the consultation process undertaken in the processing of this request, CMTEDD was advised by JACS and AFP is that release of this information is reasonably likely to prejudice these initiatives and their effectiveness. In considering the information provided by JACS and AFP on the release of this information, I am cognizant of the decision in Attorney-General’s Department and Australian Iron and Steel Pty Ltd v Cockcroft (1986) 10 FCR 180 which it held that in relation to the term ‘reasonably be expected to’ that there must be ‘real’ and ‘substantial’ grounds for expecting the damage to occur which can be supported by evidence or reasoning. Having considered the submissions made by JACS and AFP, I am satisfied there is a real and substantial ground for withholding release of this information as I am satisfied its release would impact these initiatives and would in turn prejudice the effectiveness of systems and procedures put in place to protect people and property. Release of this information would be contrary to the public interest. Contrary to the public interest information under schedule 1 section 1.13 of the Act (National, Territory or State security information) 21. Schedule 1, section 1.13(2)(b) of the Act allows for the non-disclosure of information that may damage the security of the Commonwealth, State or Territory communications system that is used for the defence of the Commonwealth or a country allied or associated with the Commonwealth. Page 633 contains information from JACS and the AFP about ICT systems. As outlined in paragraph 20, I have also considered the information on page 633 and the concerns about the release of this information provided by JACS and. Taking into account this information I am satisfied there is a reasonable expectation that release of this material may impact the use of these ICT systems. As a result, I am satisfied that this information is not in the public interest to release. Public Interest Act under Schedule 2 of the Act 22. The Act has a presumption in favour of disclosure. As a decision maker I am required to decide where, on balance, public interest lies. As part of this process I must consider factors favouring disclosure and non-disclosure. 23. In Hogan v Hinch (2011) 243 CLR 506, [31] French CJ stated that when ‘used in a statute, the term [public interest] derives its content from “the subject matter and the scope and purpose” of the enactment in which it appears’. Section 17(1) of the Act sets out the test, to be applied to determine whether disclosure of information would be contrary to the public interest. These factors are found in subsection 17(2) and Schedule 2 of the Act. I have also noted the irrelevant factors listed in s 17(2) and am satisfied that I have not considered any irrelevant factors in this case. Factors favouring disclosure (Schedule 2.1): 24. Taking into consideration the information contained in the documents found to be within the scope of your request, I have identified that the following public interest factors are relevant to determine if release of the information contained within these documents is within the ‘public interest’: • Promote open discussion of public affairs and enhance the government’s accountability (s 2.1(a)(i) of Schedule 2); • Contribute to the positive and informed debate on important issues or matters of public interest (s 2.1(a)(ii) of Schedule 2); and • Ensure effective oversight of expenditure of public funds (s 2.1(a)(iv) of Schedule 2).