North Queensland Conservation Council Incorporated and Queensland Treasury [2016] QICmr 9 (29 February 2016)

REASONS FOR DECISION

Summary

1. North Queensland Conservation Council Incorporated (NQCC) applied to Queensland Treasury (QT) under the Right to Information Act 2009 (Qld) (RTI Act) for access to documents from January to August 2015 relating to the viability and due diligence assessments of the Adani companies’ proposed Queensland projects¹ and any proposed government assistance for these projects.

2. QT refused access to:

• 261 pages on the basis that they comprised exempt information; and
• part of one page on the basis that disclosure of the information would, on balance, be contrary to the public interest.

3. NQCC sought external review of QT’s decision to refuse access on the basis that QT did not apply a prodisclosure bias in its decision and did not correctly apply the relevant refusal provisions.

4. For the reasons set out below, I affirm QT’s decision.

Background

5. NQCC is seeking various documents in relation to QT’s assessment of the viability of the Adani Group’s proposed Carmichael Coal Mine and related infrastructure projects. The documents released by QT in response to this access application indicate that this proposed coal mine will be the largest coal mine in Australia and the proposed project includes investment in railway and port. This project has been recognised as a major project by the Queensland Coordinator General.²

6. Significant procedural steps relating to the application and external review are set out in the Appendix to this decision.

Reviewable decision

7. The decision under review is QT’s decision dated 24 September 2015.

Material considered

8. Evidence, submissions, legislation and other material I have considered in reaching my decision are disclosed in these reasons (including footnotes and appendices).

Information in issue

9. The information in issue in this review comprises

• 261 pages to which access was refused on the basis that it was exempt from disclosure under schedule 3, section 2 of the RTI Act (Cabinet Information); and
• part of one page to which access was refused on the basis that its disclosure would, on balance, contrary to the public interest to disclose (CTPI Information).

10. The Cabinet Information includes Cabinet Budget Review Committee (CBRC)³ submissions and drafts, discussion papers, information prepared for the Treasurer and correspondence between relevant officers within QT, Queensland Treasury Corporation (QTC) and the Department of State Development (Department).

11. The CTPI Information comprises a small part of a one page document recording notes of a meeting between the Queensland Treasurer and the Chairman of the Adani Group on 31 March 2015.⁴

Cabinet Information

Relevant law

12. Under the RTI Act a person has a right to be given access to documents of an agency unless access would, on balance, be contrary to the public interest.⁵ However, this right is subject to other provisions of the RTI Act, including the grounds on which an agency may refuse access to documents. One such ground is that the information comprises exempt information.⁶

13. The following types of Cabinet documents are taken to be comprised exclusively of exempt information⁷ without any further consideration of their contents:

(a) Cabinet submissions
(b) Cabinet briefing notes
(c) Cabinet agendas
(d) notes of discussions in Cabinet;
(e) Cabinet minutes
(f) Cabinet decisions
(g) drafts of documents (a) to (f) above.

14. Information will also be exempt from disclosure if:

• it was brought into existence for the consideration of Cabinet;⁸ or
• its disclosure would reveal any consideration of Cabinet, or would otherwise prejudice the confidentiality of Cabinet considerations or operations.⁹

15. The term ‘consideration’ is defined¹⁰ as including ‘discussion, deliberation, noting (with or without discussion) or decision, and consideration for any purpose, including, for example, for information or to make a decision’.

16. However, there are three exceptions to this exemption:

• if it is more than ten years after the information’s relevant date¹¹
• if the information was brought into existence before 1 July 2009;¹² and
• if the information has been officially published by decision of Cabinet.¹³

Findings

17. I am satisfied that the exceptions to the exemption outlined at paragraph 16 do not apply. The Cabinet Information was created in 2015 and this information has not been officially published by a decision of Cabinet.

18. For the reasons that follow, I consider that the Cabinet Information

• is comprised exclusively of exempt information; or
• if disclosed, is likely to reveal Cabinet considerations and thereby prejudice the confidentiality of Cabinet considerations.

19. The applicant’s submissions¹⁴ question whether the Cabinet Information was definitively created for the consideration of Cabinet. The applicant correctly identifies that for information to be considered exempt under schedule 3, section 2(1)(a) of the RTI Act the decision maker must consider the purpose for bringing the information into existence. However, my finding that the Cabinet Information is exempt from disclosure does not rely on this specific provision.

20. The Cabinet Information includes Cabinet Budget Review Committee (CBRC)¹⁵ submissions and drafts, discussion papers, information prepared for the Treasurer and correspondence between relevant officers within QT, Queensland Treasury Corporation (QTC) and the Department of State Development (Department).

21. Firstly, to the extent that some documents are Cabinet submissions or drafts of such submissions, I am satisfied that these documents are comprised exclusively exempt information under schedule 3, section 2(3) of the RTI Act.

22. Attached to the Cabinet submissions and draft submissions are reports of a factual nature.¹⁶ The applicant submits that reports of a factual or statistical nature are only exempt if the disclosure of these reports would reveal Cabinet considerations. I have carefully considered these documents and I am satisfied that these documents, while they may be factual in nature, were prepared for the purposes of Cabinet consideration and disclosure of this information is likely to reveal a consideration of Cabinet.¹⁷

23. The remaining Cabinet Information includes emails and attachments to emails sent between staff of QT, QTC and the Department. The content of these emails specifically refers to a Cabinet submission by name and these emails directly refer to proposed drafts and notes for that submission.

24. In considering whether the remaining Cabinet Information can be considered exempt, the relevant question is whether disclosure of the documents themselves would reveal a consideration of Cabinet or otherwise prejudice Cabinet confidentiality or operations. It must be shown that any person viewing the documents would have revealed to them a consideration of Cabinet, or that relevant disclosure would otherwise prejudice the confidentiality of Cabinet considerations or operations.¹⁸

25. In this regard, the applicant refers to the Information Commissioner’s previous comments in Hudson¹⁹ and Ryman and Department of Main Roads,²⁰ in relation to similar provisions under the former Freedom of Information Act 1992 (Qld) (FOI Act), that ordinarily, for a document to be exempt because its disclosure would reveal or prejudice a consideration of Cabinet, the document must be created contemporaneously with, or after, the relevant Cabinet consideration – for example, a document that records or minutes the consideration.

26. However, in the subsequent decision of Quandamooka²¹, the Acting Assistant Information Commissioner found that for information to be exempt under schedule 3, section 2(1)(b) of the RTI Act, it is simply necessary to determine whether, if a person viewed the information, a Cabinet consideration would be revealed to them, or the confidentiality of the Cabinet considerations or operations would be prejudiced.

27. On careful consideration of the information before me, I am satisfied that the Cabinet Information, if disclosed to a person, would directly or indirectly reveal the considerations of Cabinet²² to that person. This information directly discusses the contents of Cabinet submissions or the results of Cabinet considerations. I am satisfied that the particular nature of this information could reasonably be expected to reveal the Cabinet’s noting of some information, and the focus of its discussions, deliberations and decisions regarding other information.

28. Further, I am satisfied that disclosure of the Cabinet Information would prejudice the confidentiality of Cabinet considerations, as awareness of their contents would reduce or remove the confidentiality of Cabinet considerations.

Conclusion

29. On the basis of the above, I am satisfied that the 261 pages of Cabinet Information comprise exempt information under schedule 3, section 2(1) of the RTI Act.

30. I have also considered the applicant’s submission of whether any additional information can be disclosed with the deletion of the Cabinet Information. Section 74 of the RTI Act requires an agency to consider whether it is practicable to give access to a copy of document subject to the deletion of exempt information, if the applicant would wish to be given to a copy. Given the terms of the access application and the nature of the Cabinet Information, I do not consider that any deletions can be applied in a practicable way to these documents in order to release parts of these documents to the applicant.

31. The applicant also requests OIC to consider whether the Cabinet Information should be disclosed, notwithstanding that QT was entitled to refuse access to this information under the RTI Act. Section 47(2) of the RTI Act provides that the relevant agency or Minister may decide to grant access to information notwithstanding the application of any ground for refusal. However, on external review, the Information Commissioner does not have the same discretion²³ and is limited to considering whether access can be refused to the information in issue under the relevant provisions of the RTI Act.

CTPI Information

Relevant law

32. An agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest.²⁴ The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual.

33. The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest²⁵ and explains the steps that a decision-maker must take²⁶ in deciding the public interest as follows:

• identify any irrelevant factors and disregard them
• identify relevant public interest factors favouring disclosure and nondisclosure
• balance the relevant factors favouring disclosure and nondisclosure; and
• decide whether disclosure of the information in issue would, on balance, be contrary to the public interest.

Findings

Irrelevant factors

34. QT’s decision indicates that disclosure of the CTPI Information:

… at this point in time could reasonably be expected to harm the public interest by giving a misleading view of the government’s current position on a major infrastructure project …

35. Under schedule 4, part 1, item 2 of the RTI Act, the question of whether disclosure of the information in issue could result in a misinterpretation of the relevant document is an irrelevant factor. I have disregarded this factor in making my decision.

36. The applicant’s submissions also question whether other irrelevant factors have been considered in this matter.

37. I am satisfied that no other irrelevant factors are raised in this case.

Factors favouring disclosure

38. The applicant has provided extensive submissions in relation to why it considers disclosure of the CTPI Information would be in the public interest. In summary, the applicant contends that the relevant mining projects are highly controversial at state, federal and international level and raise significant environmental and economic concerns. In support of these submissions the applicant refers to the extensive media coverage and community interest in relation to the proposed Adani mining projects.²⁷

39. I agree that the proposed Adani mining projects broadly attract significant public and media interest.²⁸ However, in this external review I am limited to considering the factors which relate to the disclosure of the CTPI Information only. The CTPI Information comprises a small part of one page and records a discussion between the Treasurer and the Chairman of Adani.

40. The RTI Act recognises the following factors favouring disclosure of information, where disclosure of it could reasonably be expected to:

• promote open discussion of public affairs and enhance the Government’s accountability²⁹
• contribute to positive and informed debate on important issues or matters of serious interest³⁰
• inform the community of the Government’s operations;³¹
• ensure effective oversight of expenditure of public funds;³² and
• reveal the reason for a government decision and any background or contextual information that informed the decision.³³

41. I consider that given the significance of the proposed mining projects to the Queensland and Australian economy and community the above factors carry some weight in this case. In particular, I am satisfied that releasing the CTPI Information could reasonably be expected to:

• enhance the accountability of QT and inform the community of QT’s operations in relation to the proposed mining projects
• inform the community of government considerations in relation to the expenditure of public funds
• contribute to positive and informed debate about these matters within the community; and
• provide the community with any background or contextual information in relation to the proposed mining projects.

42. For these reasons, I afford the above listed public interest factors in favour of disclosure moderate weight. I have not given these factors a high weight as the CTPI Information itself is limited in the level of detail it provides and is unlikely to significantly contribute to the advancement of these factors.

43. The applicant submits³⁴ that because there are numerous factors in favour of disclosure, these factors should be given greater weight. I do not accept these submissions. I consider that given the nature of the CTPI Information, these factors together only carry moderate weight in favour of disclosure.

44. The applicant also contends that disclosure of the CTPI Information could reasonably be expected to:

• allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official³⁵
• advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies³⁶
• reveal the information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant;³⁷ and
• contribute to the protection of the environment.³⁸

45. While these public interest factors are listed in the RTI Act, I am satisfied that these factors do not apply to disclosure of the specific CTPI Information. While I cannot disclose the content of the CTPI Information or provide a further description of it,³⁹ I consider that disclosure of this information could not reasonably be considered to further any of the public interest factors identified by the applicant at paragraph 44 above.

Factors favouring nondisclosure

46. QT’s decided that disclosure of the CTPI Information:

… would prematurely reveal the government’s considerations regarding a particular infrastructure project which has yet to be finalised …

47. The RTI Act recognises that a public interest factor favouring nondisclosure will arise where disclosing information could reasonably be expected to prejudice a deliberative process of government (Nondisclosure Factor).⁴⁰

48. The RTI Act also provides that disclosing information could reasonably be expected to cause a public interest harm through disclosure of an opinion, advice or recommendation that has been obtained, prepared or recorded or a consultation or deliberation that has taken place in the course of, or for, the deliberative processes involved in the functions of government (Harm Factor).⁴¹

49. Once it is established that the information in issue is deliberative process information, the Harm Factor will apply. It is then relevant to consider the nature and extent of the public interest harm that may result through disclosure.⁴² For the Nondisclosure Factor to apply, a reasonable expectation of prejudice to the relevant deliberative process must be established. In this case, I am satisfied that both factors apply.

50. The Information Commissioner has previously referred with approval to the following comments in considering the meaning of ‘deliberative processes’ involved in the functions of an agency:⁴³

The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action …

51. I am satisfied that the CTPI Information is deliberative process information as it was prepared during consultations undertaken by the Treasurer in deliberating on and evaluating matters in relation to proposed mining projects. The applicant submits that some of the government’s deliberations in relation to the relevant Adani mining project are complete. I have carefully considered the CTPI Information and I am satisfied that the specific government deliberations discussed in the CTPI Information are ongoing.⁴⁴

52. NQCC questions whether any of the exceptions to the Harm Factor apply in this case. I am satisfied that these exceptions do not apply as there has been no public consultation in relation to the CTPI Information and it does not comprise the types of information described in the exceptions to the Harm Factor.⁴⁵

53. As I am satisfied that the CTPI Information is deliberative process information, and that the exceptions to the Harm Factor to not apply, I must now consider the level of harm that is likely to result from the disclosure of the CTPI Information.

54. I am satisfied that the CTPI Information is not publicly available and its disclosure at this stage, when the government is still considering its options, could have a negative impact on the decision making and consultation process. The CTPI Information summarises discussions between the government and Adani in relation to commercial aspects of the proposed projects. The government has not reached its final position on this particular issue and remains engaged in internal deliberations and consultation with Adani.

55. I am satisfied that the disclosure of the CTPI Information prior to the government’s finalisation of its deliberative process on this particular issue is likely to have a detrimental impact on the government’s ability to continue considering its options and engage in open and frank negotiations with third parties.

56. I am therefore satisfied that disclosure of the CTPI Information is likely to prejudice the deliberative process of government and cause significant public interest harm in prejudicing these processes. For this reason, I have attributed both the Nondisclosure Factor and Harm Factor significant weight.

Balancing the public interest factors

57. I am satisfied that, in addition to the general prodisclosure bias,⁴⁶ there are a number of public interest considerations favouring disclosure of the CTPI information which, for the reasons discussed above, are deserving of moderate weight.

58. I agree with the applicant that the subject matter of the CTPI Information, being the proposed Adani mining projects, are matters of significant public interest. However, I have noted above that the CTPI Information provides limited details on the proposed projects and therefore only moderately promotes these public interest factors favouring the accountability and transparency of government.

59. However, on the other hand, the Nondisclosure Factor and Harm Factor relevant to the deliberative processes of government carry significant and determinative weight in this case. I am satisfied that disclosure of the CTPI Information is likely to cause a significant public interest harm by interfering in the government’s deliberative process and prejudicing the government’s ability to conduct this deliberative process. The significant weight that I have attributed to these factors outweighs the weight I have given to the factors favouring disclosure.

Conclusion

60. Accordingly, I consider disclosure of the CTPI Information would, on balance, be contrary to the public interest and access can therefore be refused under section 47(3)(b) of the RTI Act.

61. The applicant has requested me to exercise a discretion to disclose the CTPI information, notwithstanding that QT was entitled to refuse access to this information under the RTI Act. However, as I have noted previously, the Information Commissioner does not have the discretion⁴⁷ to disclose documents to which an agency is entitled to refuse access and is limited to considering whether access can be refused to the information in issue under the relevant provisions of the RTI Act.

DECISION

62. For the reasons set out above, I affirm the decision under review and find that access to the:

• Cabinet Information may be refused under section 47(3)(a) and 48 of the RTI Act on the basis that it comprises exempt information under schedule 3, section 2 of the RTI Act; and
• CTPI Information may be refused under section 47(3)(b) and 49 of the RTI Act on the basis that disclosure of this information would, on balance, be contrary to the public interest.

63. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.

_______________________
Jenny Mead
Right to Information Commissioner

Date: 29 February 2016

APPENDIX

Significant procedural steps

1 The documents released by QT pursuant to this application explain that the Adani Group is a group of companies that are seeking to develop the largest coal mine in Australia, the Carmichael Coal Mine in Northern Queensland.
2 Further details of this project are published on the Coordinator General’s website at http://www.statedevelopment.qld.gov.au/assessments-and-approvals/carmichael-coal-mine-and-rail-project.html (accessed on 25 February 2016).
3 Schedule 3, section 2(5) of the RTI Act provides that ‘Cabinet’ includes a Cabinet committee or subcommittee. CBRC is a Cabinet committee for this purpose.
4 The remainder of this document is available on QT’s disclosure log at: https://www.treasury.qld.gov.au/about-us/right-to-information/previous-disclosure-log.php (accessed on 25 February 2016)
5 Section 44(1) of the RTI Act.
6 Sections 47(3)(a) and 48 of the RTI Act.
7 Schedule 3, section 2(3) of the RTI Act.
8 Schedule 3, section 2(1)(a) of the RTI Act.
9 Schedule 3, section 2(1)(b) of the RTI Act.
10 Schedule 3, section 2(5) of the RTI Act.
11 Schedule 3, section 2(1) of the RTI Act. For information considered by Cabinet, the ‘relevant date’ is the date the information was most recently considered by Cabinet; otherwise, ‘relevant date’ is the date the information was brought into existence – see definition of ‘relevant date’ in schedule 3, section 2(5) of the RTI Act.
12 The date on which schedule 3, section 2 commenced – schedule 3, section 2(2)(a) of the RTI Act.
13 Schedule 3, section 2(2)(b) of the RTI Act.
14 Dated 15 January 2016.
15 Schedule 3, section 2(5) of the RTI Act provides that ‘Cabinet’ includes a Cabinet committee or subcommittee. CBRC is a Cabinet committee for this purpose.
16 Under schedule 3, section 2(4) of the RTI Act provides that a report of a factual or statistical information attached to a document identified in schedule 3, section 2(3) of the RTI Act is only exempt if it was brought into existence for the consideration of Cabinet or its disclosure would disclose a consideration of Cabinet.
17 Schedule 3, section 2(4)(a) of the RTI Act.
18 As discussed by the Acting Assistant Information Commissioner in Quandamooka Yoolooburrabee Aboriginal Corporation and Department of Natural Resources and Mines; Sibelco Australia Ltd (Third Party) [2014] QICmr [47] (19 November 2014) (Quandamooka)
19 Hudson, as agent for Fencray Pty Ltd, and the Department of the Premier, Economic and Trade Development (1993) 1 QAR 123 at [39]-[44] (Hudson).
20 (1996) QAR 416 (Ryman) at [39]-[40].
21 Quandamooka at paragraphs [57]-[59].
22 Given section 108(3) of the RTI Act, which provides that a decision must not include information that is claimed to be exempt information, I am prevented from disclosing any more details regarding the nature of this information.
23 Section 105(2) of the RTI Act.
24 Sections 47(3)(b) and 49 of the RTI Act.
25 Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest.  However, this list of factors is not exhaustive.  In other words, factors that are not listed may also be relevant in a particular case.
26 Section 49(3) of the RTI Act.
27 Applicant’s submissions dated 15 January 2016.
28 The documents released by QT in response to this application indicate that the proposed mining project will be Australia’s largest coal mine, when operational, and has associated rail and port infrastructure developments that have already cost over three billion dollars in investment.
29 Schedule 4, part 2, item 1 of the RTI Act.
30 Schedule 4, part 2, item 2 of the RTI Act.
31 Schedule 4, part 2, item 3 of the RTI Act.
32 Schedule 4, part 2, item 4 of the RTI Act.
33 Schedule 4, part 2, item 11 of the RTI Act.
34 Applicant’s submissions to OIC dated 15 January 2016.
35 Schedule 4, part 2, item 5 of the RTI Act.
36 Schedule 4, part 2, item 10 of the RTI Act.
37 Schedule 4, part 2, item 12 of the RTI Act.
38 Schedule 4, part 2, item 13 of the RTI Act.
39 Under section 108(3) the Information Commissioner must not disclose the information in issue in an external review decision.
40 Schedule 4, part 3, item 20 of the RTI Act.
41 Schedule 4, part 4, item 4 of the RTI Act.
42 In Trustees of the De La Salle Brothers and Queensland Corrective Services Commission (1996) 3 QAR 206 at [34] the Information Commissioner considered, in the context of the provision relating to deliberative process information in the repealed Freedom of Information Act 1992 (Qld), that ‘specific and tangible harm to an identifiable public interest (or interests) would result from disclosure’.  I consider that this is a relevant consideration when applying the Harm Factor under the RTI Act.
43 Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60 at paragraphs [28]-[30] citing with approval the definition given in Re Waterford and Department of Treasury (No.2) (1984) 5 ALD 588 at 606. The Information Commissioner’s decision involved the repealed FOI Act but the comments are relevant to the application of these factors under the RTI Act.
44 This was confirmed in the Department’s submissions to OIC dated 24 February 2016.
45 Schedule 4, part 4, item 4(2) provides that the deliberative processes considered in this harm factor apply only until public consultation start. There have been no public consultations in relation to the CTPI Information and therefore this exception does not apply. Schedule 4, part 4, section 3 provides that the Harm Factor does not apply to information that appears in an agency’s policy document, factual or statistical information, or expert opinion or analysis. I am satisfied that the CTPI Information does not comprise of any of these categories of information.
46 Under section 44 of the RTI Act, as noted in the applicant’s submissions dated 15 January 2016.
47 Section 105(2) of the RTI Act.