The decision by the Minister for Transport, the Hon Rita Saffioti MLA, not to provide Parliament with minutes of the METRONET Taskforce meeting held on 27 February 2018 was not reasonable and therefore not appropriate as parts of the minutes were not Cabinet-in-confidence and could have been provided.
In Parliament on 22 March 2018, the Hon Peter Collier MLC asked the Leader of the Government in the Legislative Council, representing the Minister for Transport, for the following information in Question without Notice 120:
I refer to the Metronet task force chaired by the Minister for Transport; Planning; Lands and the meeting on 27 February.
(1) Was the issue of tunnel borer Grace ceasing boring discussed at that meeting?
(2) Were minutes of the meeting taken?
(3) If yes to (2), will the minister table those minutes; and, if not, why not?
On 22 March 2018, the Leader of Government in the Legislative Council, on behalf of the Minister, answered part (1) and (2). However, the Minister declined to give the information requested in part (3), replying:
Again, I thank the Leader of the Opposition for some notice of the question.
(3) The minutes are Cabinet-in-confidence.
On 12 April 2018, the Auditor General received the Minister’s notification of the decision not to provide the requested information in accordance with section 82 of the FM Act.
The decision by the Minister not to provide the requested information was not reasonable and therefore not appropriate.
The Minister properly sought advice from the Department of Transport (Department) before responding to the request. The Department recommended that the Minister decline to provide the information to Parliament because the minutes are Cabinet-in-confidence. The Minister followed the Department’s advice.
In considering the Minister’s decision, we followed the approach laid out in previous Opinions on Ministerial Notifications dealing with Cabinet confidentiality, the core principle of Cabinet confidentiality is to protect information that would reveal deliberations and decisions of Cabinet. We assessed the requested information against the following Cabinet confidentiality considerations:
Is part or all of the information publicly available?
We found a small amount of the information in the 27 February 2018 minutes in publicly available sources at the time the Minister declined to provide it.
We also found the Department did not treat the minutes as Cabinet-in-confidence in accordance with the ‘need to know’ principle outlined in the Department of the Premier and Cabinet’s Cabinet Handbook. The minutes did not have restricted access controls applied and were easily accessible at the METRONET office. We have reminded the Department that access to Cabinet information should be restricted.
Was the information created for the purpose of informing Cabinet or being discussed in Cabinet? Does it include policy options or recommendations prepared for submission to Cabinet?
The minutes were not created solely for the purpose of informing Cabinet or being discussed in Cabinet. They serve a dual purpose. The first is to capture discussions and outcomes of the February METRONET Taskforce meeting. The second is to inform Cabinet on the planning and delivery of the METRONET program.
The Minister regularly reports to Cabinet about the progress of METRONET. We found only a discrete amount of the information in the minutes is likely to be used to support policy options and recommendations to Cabinet.
Does the information contain material that would reveal the deliberations and decisions of Cabinet?
We reviewed the minutes and found only a discrete amount of the information contained in them would likely reveal the deliberations and decisions of Cabinet.
Did the Minister consider providing any sections of the information that would not reveal deliberations and decisions of Cabinet?
The Minister did not consider providing Parliament with those parts of the minutes that were already publicly available or would not reveal deliberations or decisions of Cabinet. Determining whether information is Cabinet-in-confidence is not straight forward. It is good practice for Ministers, their offices and agencies to document an assessment of the component parts of a requested document prior to Ministers declining to provide information to Parliament.
In our view, the minutes could have been provided to Parliament with the discrete amount of Cabinet-in-confidence information redacted.
During the inquiry, the Minister advised us that in her view we did not need to canvass broader issues of Cabinet confidentiality as:
- the narrow purpose of the particular request for the METRONET minutes was to confirm that they did not contain any material relevant to the use of a boring machine
- the requested minutes did not contain such information
- she had accurately informed Parliament that they did not.
We disagree as a discrete part of the question specifically requested the minutes. This was the basis of the section 82 notice tabled by the Minister in Parliament and our assessment.