C2006-13 Review of Cabinet Document Exemption Claims under the Freedom of Information Act

The Administrative Decisions Tribunal and the Ombudsman both have a role in reviewing agencies' decisions under the Freedom of Information Act 1989 (the Act).

Agencies need to consider carefully all exemption claims made under the Act, including whether a document is a Cabinet document. It is important for the integrity of government decision-making that any claim that a Cabinet exemption applies can be supported by clear evidence, and can be clearly justified if required to an external review body.

The purpose of the attached Guidelines is to encourage consistent and accountable decision-making practices across government in relation to Cabinet documents.

The Guidelines also explain that, consistent with the Crown Solicitor's recent advice, I will no longer certify that documents are Cabinet documents (under section 22 of the Ombudsman Act) while an Ombudsman's investigation of an agency's claim is only at a preliminary stage.

Roger B Wilkins
Director-General
The Cabinet Office

_________________________________________________

superseded by M2007-11

__________________________________________________

ANNEXURE

CABINET DOCUMENT CLAIM GUIDELINES

1. Who should the agency decision-maker be for Cabinet document claims?

1.1. Given the importance of the principle of ministerial collective responsibility, the decision-maker for any FOI application involving possible Cabinet documents should be a sufficiently senior and experienced officer of an agency. Senior management also need to be aware of any Cabinet document claims being made given the potential for cross-agency implications.

1.2. Agencies should consider changing their delegations under the FOI Act (the Act) if necessary, to ensure that decisions on Cabinet documents are taken at a sufficiently senior level.

2. When is a document prepared for submission to Cabinet?

2.1. The main external review issue that has arisen lately regarding Cabinet document claims appears to be whether a document falls within Schedule 1 Clause 1(1)(a) or (e) of the Act, or both.

2.2. Clause 1(1)(a) provides that a document may be a Cabinet document if it was prepared for submission to Cabinet, whether or not it was ever submitted.

2.3. This is a question of fact about the purpose of creating the document. A document should not be described as a Cabinet document under this paragraph if a decision was taken to submit it to Cabinet only after it was created. While such a document may well still be exempt because it reveals the deliberations or decisions of Cabinet (see below), it will not be exempt under paragraph (a) if it was not created with the intention of submitting it to Cabinet. Of course, such a document may be exempt under other Clauses in Schedule 1, such as under the internal working document or legal professional privilege exemptions.

2.4. Agencies should ensure, therefore, that there is sufficient supporting evidence available about the provenance of a document before making any claim under paragraph (a). To ensure such evidence is available, agencies should reflect on the purpose of a document whenever they or their consultants are asked to draft papers that contain sensitive information regarding policy and legislative proposals. It may be difficult to support a claim under paragraph (a) if it is unclear whether a document was ever intended to be submitted to Cabinet.

3. Can a document created before a Cabinet meeting be exempt under paragraph (e)?

3.1. Under Clause 1(1)(e) of Schedule 1, a document that was never intended for submission for Cabinet might still be exempt if its release would reveal information concerning the deliberations or decisions of Cabinet.

3.2. The Crown Solicitor has recently confirmed that it is not essential that a document over which a 'deliberations or decisions' claim is made be created after Cabinet's consideration of an issue. While this is contrary to a recent single Member decision of the ADT, the Crown Solicitor advises that there is other judicial authority to suggest that the ADT's approach was not correct.

3.3. Until the law is clarified on this particular point, agencies should follow the Crown Solicitor's advice that a document drafted prior to a Cabinet meeting is not automatically excluded on this basis from the scope of the Cabinet exemption in paragraph (e).

3.4. It remains the Government's position that there are many instances of documents created prior to Cabinet's consideration of an issue that could reveal the deliberations of Cabinet. Mostly such documents would reveal the position taken later in Cabinet by individual Ministers, the disclosure of which could undermine the principles of collective ministerial responsibility. It is also the case that some documents prepared before Cabinet (but not for submission to Cabinet) will fall within this exemption because they are eventually deliberated upon by Cabinet, as opposed to merely their subject matter.

3.5. Simply because the a document deals with a subject which is also considered by Cabinet does not, without more, mean that disclosure of the document would disclose 'information concerning any deliberation or decision of Cabinet'. Whether this test is met will be a question of fact in each case. Decision makers will need to consider the available evidence in order to be satisfied that a document may in fact concern Cabinet's deliberations.

4. Should Cabinet documents be disclosed to a review body?

Ombudsman

4.1. It is important that the Ombudsman is provided with all reasonable assistance in conducting inquiries in relation to FOI Act matters.

4.2. Consistent with the principles of responsible government and the need to maintain Cabinet confidentiality, however, agencies cannot be required to provide Cabinet documents to the Ombudsman. A certificate under section 22 of the Ombudsman Act from the Director-General of The Cabinet Office is conclusive proof of the documents' status as Cabinet documents.

4.3. In the past, agencies were sometimes advised by the Ombudsman's Office to obtain a certificate under section 22 to justify any refusal to provide documents to the Ombudsman's Office during preliminary inquiries on the ground that they are Cabinet documents.

4.4. The Crown Solicitor has advised, however, that there was some doubt as to the effectiveness of such certificates when they were issued in response to an informal request for documents from the Ombudsman in the course of such preliminary inquiries.

4.5. As a result of the Crown Solicitor's advice, it is considered no longer appropriate to issue section 22 certificates in the course of any preliminary inquiry. The Ombudsman has also now ceased the practice of requesting such certificates during preliminary inquiries. This does not mean, however, that agencies should provide Cabinet documents to the Ombudsman's Office during such inquiries. As noted above, the principles of responsible government and Cabinet confidentiality require agencies not to disclose Cabinet documents.

4.6. The Ombudsman has indicated that, in the future, he may move directly to formal investigations where Cabinet document claims are involved. If a preliminary investigation is instigated, however, it will be important to recognise that the Ombudsman's Office will need sufficient information to assess whether a formal investigation is warranted in relation to any claim that a document is a Cabinet document and therefore exempt from disclosure under the Act.

4.7. Agencies should still assist the Ombudsman's Office during any such preliminary inquiry by providing a brief description of the document and the statutory basis on which it is claimed to be a Cabinet document. This descriptive information would be consistent with that which has in the past been provided with section 22 certificates.

ADT and Crown Solicitor representation

4.8. When a Cabinet document claim is challenged in the ADT, the Premier will automatically become a party as Minister administering the Act. The Premier retains the Crown Solicitor to act in relation to any ADT proceedings in which he decides to make submissions on the operation of the Act.

4.9. In the future, agencies should ensure that they also retain the Crown Solicitor to act whenever a Cabinet document claim is being challenged in the ADT. This will ensure that a consistent approach is taken to the management of this issue before the ADT and the courts.

5. When may the advice of The Cabinet Office be sought?

5.1. The Cabinet Office is available to provide advice to agencies in deciding whether to make a Cabinet document claim under the Act. It should be remembered, however, that agencies are often in the best position to understand the origins, purposes and potential impact of a document that has not been formally submitted to Cabinet.

5.2. The Cabinet Office is also available to provide advice to agencies in preparing any descriptive information about Cabinet documents for the Ombudsman's Office during a preliminary investigation.

5.3. In circumstances where the Ombudsman decides to institute a formal investigation and requires the production of documents, agencies should first contact the Policy Manager, Legal Branch of The Cabinet Office to discuss the issue of a certificate under section 22 of the Ombudsman Act in relation to any Cabinet documents that might be covered by the claim.

5.4. Where the Ombudsman requests a section 22 certificate, the agency must immediately contact The Cabinet Office so that consideration can be given to the issue of a certificate.