OFFICIAL DPC20/0706 GPO Box 2343 Adelaide SA 5001 DX 56201 Tel 08 8226 3500 Fax 08 8226 3535 08 October 2020 www.dpc.sa.gov.au Chris Picton MP Shop 9, 760 Grand Boulevard SEAFORD MEADOWS SA 5169 Sent by email to: [email protected] Dear Mr Picton I refer to your application received on 16 June 2020 seeking an internal review of a determination made by the Department of the Premier and Cabinet (DPC) under the Freedom of Information Act 1991 (the Act). The purpose of this letter is to advise you of the outcome of my review. Your initial application Your initial application sought access to: All agenda papers, minutes of meetings, meeting papers, attachments to papers, presentations and notes from meetings of the ‘Transition Committee’. Date Range – 15/4/20 – 15/6/20 Determination under review DPC was unable to make a determination within the required timeframe of 30 days. Under the Act, DPC is deemed to have refused access to any and all documents captured within this request. Outcome of internal review DPC identified 69 documents within the scope of your request and I have determined to release as follows: • I grant you access to 32 documents in full, copies of which are attached; and • I refuse access to 37 documents. Please refer to the attached schedule that describes each document and sets out my determination and reasons in summary form. OFFICIAL OFFICIAL Documents released in full Documents 1, 5 – 7, 9, 13 – 16, 20, 21, 23, 26 – 28, 33, 35, 36, 42 – 44, 48, 49, 51, 58 – 63 and 69 Documents refused in full Documents 2 – 4, 8, 10 – 12, 17 – 19, 22, 24, 29 – 32, 34, 37 – 41, 45 – 47, 50, 53 – 57, 64 – 68 Documents 2 – 4, 10 – 12, 18, 19, 22, 25, 29 – 32, 34, 37 – 41, 45 – 47, 50, 53 – 56, 66 – 68 These documents are papers presented to the Transition Committee for the purposes of stimulating discussion and debate. Under clause 9(1)(a)(ii) of Schedule 1 to the Act, documents are exempt from disclosure if they relate to any consultation or deliberation that has taken place in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, the disclosure of which would be contrary to the public interest. These documents were largely not created by the decision making members of the Transition Committee. They do not represent positions arrived at by the Committee, which are in each case reflected in the meeting minutes, which are being released in full. Nor do the papers reflect positions taken by individual members of the Committee. These documents are solely starting points to generate deliberation. I recognise that release of these documents may go some way to informing the public about the information the Transition Committee was presented with and relied on in making its decisions. However, I do not consider that release would do that in a way not already served by the release of the minutes. Further, there is a significant risk of these documents being misinterpreted, misrepresented or presented in isolation. This in turn could compromise the Government’s ability to manage the pandemic, as it is reasonable to contemplate that the isolated presentation of any of these documents without the context of other risk management considerations and factors at the time the papers were presented could affect community confidence in and compliance with government directives. Taking all of this into account, I have determined that these documents are exempt from disclosure pursuant to clause 9(1)(a)(ii). Document 8 This document was specifically prepared for submission to Cabinet. I have therefore determined to refuse access to this document in full pursuant to clause 1(1)(a). Documents 24 and 25 Under clause 13 of Schedule 1 to the Act, information is exempt from disclosure if it was obtained in confidence and if disclosure may prejudice the future supply of such information to the Government or an agency. These documents concern the AFL’s draft proposals for return to play, and relate to information shared with the South Australian government on a confidential basis. OFFICIAL OFFICIAL In favour of release, these documents would go some way toward enhancing the public understanding of how the AFL sought to meet its obligations toward public health in managing a return to play, and the Transition Committee’s response to this. Against this, if this information is released, there is a significant risk that the AFL or organisations of its ilk would not share its plans in future at the level of detail herein, which is vital to facilitating government decision making. Again, I have also taken into account that the minutes of the relevant meeting reflect decisions that contribute toward the public understanding of the issues presented. I have therefore determined to exempt this information in full pursuant to clause 13(1) of the Act. Documents 64 and 65 These documents were prepared specifically for National Cabinet. Under clause 5 of Schedule 1 to the Act, information is exempt from disclosure if it contains matter the disclosure of which would divulge information from a confidential intergovernmental communication, and which on balance would be contrary to the public interest. These documents contain matter recorded in the course of the nationally coordinated response to the COVID-19 pandemic. The directive to state participants in National Cabinet to treat these papers in confidence is clearly recorded, as is the principle of solidarity in respect of National Cabinet’s role in managing the pandemic. I recognise the public interest in accessing this information to generate informed debate. However, this is outweighed by the need to maintain confidentiality in this instance, as it is not the South Australian government’s place to determine how and when information produced by this forum is released. I have therefore determined to refuse access to these documents pursuant to clause 5 of the Act. Exemptions Clause 1 – Cabinet documents (1) A document is an exempt document – (a) if it is a document that has been specifically prepared for submission to Cabinet (whether or not it has been so submitted); Clause 5 – Documents affecting inter-governmental or local governmental relations (1) A document is an exempt document if it contains matter— (a) the disclosure of which— … (ii) would divulge information from a confidential intergovernmental communication; and (b) the disclosure of which would, on balance, be contrary to the public interest. Clause 9 – Internal working documents (1) A document is an exempt document if it contains matter— OFFICIAL OFFICIAL (a) that relates to— … (ii) any consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency; and (b) the disclosure of which would, on balance, be contrary to the public interest. Clause 10 – Legal Professional Privilege (1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege. Clause 13 – Documents containing confidential material (1) A document is an exempt document – (a) if it contains matter the disclosure of which would found an action for breach of confidence; or (b) if it contains matter obtained in confidence the disclosure of which— (i) might reasonably be expected to prejudice the future supply of such information to the Government or to an agency; and (ii) would, on balance, be contrary to the public interest. Disclosure Logs In compliance with Premier and Cabinet Circular PC045 - Disclosure Logs for Non- Personal Information Released through Freedom of Information (PC045), DPC is now required to publish a log of all non-personal information released under the Freedom of Information Act 1991. In accordance with this Circular, any non-personal information determined for release as part of this application, may be published on the DPC website. A copy of PC045 can be found at the following address: http://dpc.sa.gov.au/what-we-do/services-for- government/premier-and-cabinet-circulars Please visit the website for further information. External review If you remain dissatisfied with this determination, you have the right to apply to the Ombudsman for external review under section 39 of the Act. You have 30 days from the date on which you receive this letter to apply for an external review. If you have any questions about an application to the Ombudsman, please contact their office on (08) 8226 8699. OFFICIAL OFFICIAL If you have any questions in relation to this matter, please contact Eamonn Maloney, Manager, Freedom of Information, on telephone 0466 936 225 or via email at [email protected]. Yours sincerely Jim McDowell Principal FOI Officer Chief Executive Department of the Premier and Cabinet Attachment(s): • Schedule of documents • Documents for release OFFICIAL OFFICIAL SCHEDULE OF DOCUMENTS—DPC20/0706 Freedom of information application from Chris Picton MP seeking access to: All agenda papers, minutes of meetings, meeting papers, attachments to papers, presentations and notes from meetings of the ‘Transition Committee’. Date Range – 15/4/20 – 15/6/20 No. Document description Exemption Released (part/full/refused) clauses 1. 2020428 - Agenda - COVID-19 Restoration Committee - Meeting 1 Nil Release in full 2. COVID19 Restoration Committee DRAFT TOR 9(1)(a)(ii) Refuse in full 3. DRAFT - Risk Indicators Matrix 9(1)(a)(ii) Refuse in full 4. DRAFT Roadmap 27 April 2020 9(1)(a)(ii) Refuse in full 5. SA COVID-19 Transition Committee - Minutes - 1 - 28 April 2020 Nil Release in full 6. SA COVID-19 Transition Committee - Minutes - 2 - 29 April 2020 Nil Release in full 7.