Section 28 – Cabinet documents or information

Section 28(1) of the Freedom of Information Act 1982 (Vic) (the Act) exempts five types of cabinet documents from disclosure.

This Exemption Practice Note sets out the exemption, summarises the steps to take when applying it, and then discusses each element in detail. All legislative references are to the Act unless otherwise stated.

THE EXEMPTION

Under section 28(1), the following information is exempt:

• the official record of any deliberation or decision of the Cabinet;
• a document that prepared by a Minister, or prepared by an agency on behalf of a Minster, for the purpose of submission for consideration by the Cabinet;
• a document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet;
• a document that is a copy or draft of, or contains extracts from, a document referred to above; or
• a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published.

APPLYING THE EXEMPTION – A SUMMARY

1. Confirm the documents are not expressly excluded by the section. Section 28(1) does not apply to:
   1. a document more than 10 years old – section 28(2); or
   2. a document that contains purely statistical, technical, or scientific material, unless it would disclose any deliberation or decision of Cabinet – section 28(3).
2. Consider which stream of section 28(1) applies to the document or information.
3. Ensure each element of the relevant stream (discussed below) is satisfied.
4. If the exemption is made out, consider whether to exercise the discretion in section 16(2) to provide access to the information or document despite an exemption applying.

KEY PRINCIPLES

Documents more than 10 years old

Section 28(2) states that section 28(1) does not apply to a document ‘10 years from the last day of the year in which the document came into existence’. For example, a document created before, or during 2009, is not exempt from 1 January 2020.

Purely statistical, technical, or scientific information

Under section 28(3), purely statistical, technical, or scientific information contained in a document is not exempt unless it discloses deliberations or a decision of Cabinet. This also extends to matters relating to social sciences.¹ It should be noted this concept is different from ‘purely factual information’ under section 30, which is a broader concept.²

However, when applying this exception, consider whether disclosure of the information would nonetheless reveal deliberations or a decision of Cabinet. For example, results of a questionnaire contained in a document put to Cabinet were found to be exempt as the questions were extensively deliberated by Ministers and disclosure would reveal the nature of the deliberations.³

Cabinet, Cabinet Committee, or Cabinet Sub-committee

Cabinet is a forum of Ministers chaired by the Premier which decides major policy for the Victorian Government. It comprises all Ministers and considers questions of policy, administration, and legislation.⁴

Section 28(7) notes that Cabinet includes a Committee or Sub-committee.

Cabinet is supported by a range of committees that focus on specific subject matter or functions. The Committee structure comprises three types:

• Standing Committees: ongoing committees that report directly to Cabinet and support it in its decision-making role and provide oversight of Sub-Committees and Taskforces;
• Sub-Committees: ongoing committees that support a specific whole of government policy area, allow for broad Ministerial representation and support standing Committees; and
• Taskforces: time-limited committees that are used to develop, implement and oversee the delivery of a specific policy, or related set of policies. Cabinet taskforces should not be confused with taskforces that are led by a Minister.

One of the five subsections must apply

A document must fit squarely within one of the streams in section 28(1).⁵ It is not sufficient for the document to be indirectly connected to Cabinet. For example, in respect of section 28(1)(b) a document must be prepared for actual consideration by Cabinet, not merely to be physically placed before Cabinet.⁶

SECTION 28(1)(A) – OFFICIAL RECORDS OF DELIBERATIONS OR DECISIONS

Section 28(1)(a) exempts a document that is the official record of any deliberation or decision of Cabinet. This is usually evident on the face of the document. It is enough for the document to only record either deliberations or decisions; it does not need to do both.

SECTION 28(1)(B) – PREPARED FOR THE PURPOSE OF SUBMITTING TO CABINET FOR CONSIDERATION

Section 28(1)(b) exempts a document that has been prepared by a Minister, on behalf of a Minister, or by an agency, for the purpose of submitting it to Cabinet for consideration.

The document is likely to relate to an issue over which the Minister has responsibility as part of his or her ministerial portfolio. For example, the Treasurer, or the Department of Treasury and Finance, may prepare a submission about a financial matter (the sale of a public asset) that requires Cabinet approval.

The purpose of the document’s creation

The document must have been created for the sole, substantial or dominant purpose of submission to Cabinet for its consideration. It is useful to ask whether the document would have been created if not for that purpose.⁷

The purpose of the document’s creation is the key consideration – the document need not have actually been considered by, or submitted to, Cabinet. Where there is no evidence of the purpose of the document’s creation, the actual use of the document can assist to determine the purpose of its creation.⁸

Consideration by Cabinet

The documents must be prepared to be considered by Cabinet, not just placed before Cabinet. It is helpful to consider the principles outlined in case law when determining this factor:

• Documents ‘for information’ or voluminous ‘raw information’ and ‘primary documents’ are not likely to be directly considered in Cabinet.⁹
• Preliminary or preparatory documents used for Cabinet submissions, such as briefs from one department to another to assist preparing a submission, are not meant for Cabinet to consider.¹⁰
• If a summary or executive summary is submitted, the full report can be exempt.¹¹
• A report prepared by an external consultant can be ‘prepared by an agency’ and can be captured even if the consultant did not know the document would go to Cabinet when created.¹²
• Where Cabinet specifically asks for a document to be prepared, that document is exempt.¹³
• Blue or Red Book documents to brief an incoming government previously in opposition are exempt.¹⁴

SECTION 28(1)(BA) – PREPARED FOR THE PURPOSE OF BRIEFING A MINISTER ABOUT ISSUES TO BE CONSIDERED BY THE CABINET

Section 28(1)(ba) exempts a document that prepared for a Minister to brief them about an issue to be considered by Cabinet.

The brief would usually relate to an issue within that Minister’s portfolio but may occasionally relate to another Minister’s portfolio – where a Minister needs advice about an issue to be deliberated in Cabinet. For example, the Department of Treasury and Finance may brief the Treasurer on financial issues concerning the purchase of land by the Department of Health and Human Services to build a new hospital.

While the Ministerial brief itself need not be submitted to Cabinet, the subject issue of the Ministerial brief must be something to be considered by Cabinet.

The purpose of the document’s creation

The document must have been created for the sole, substantial or dominant purpose to brief the Minister about issues to be considered by Cabinet. Again, it is useful to ask whether the document would have been created if not for that purpose.¹⁵

The purpose of briefing a Minister must be ‘immediately contemplated’ when the document is created. The exemption cannot apply merely because Cabinet ultimately considers the issue.¹⁶ The document need not have actually been provided to the Minister, so long as it was prepared to brief the Minister. Where there is no evidence of the purpose of the document’s creation, the actual use of the document can assist to determine the purpose of its creation.¹⁷

Briefing

A briefing is a short accurate summary of the details of a plan, operation, or policy. The purpose of a briefing is to ‘inform’, and it will generally contain information or advice prepared for the purpose of being read by, or explained to, a Minister.¹⁸ Covering letters and facsimile cover sheets are not part of a brief, however, attached documents may form part of the brief.¹⁹

Issues to be considered by Cabinet

It must be more than just ‘likely’ that Cabinet will consider the issues outlined in the briefing. There must be an intention or expectation that the issue will be considered by Cabinet (even if not ultimately considered). Evidence that the issue was included in the Cabinet agenda will meet this test.

SECTION 28(1)(C) – COPY, DRAFT, OR EXTRACTS OF A DOCUMENT REFERRED TO IN SUBSECTIONS (A), (B) OR (BA)

Section 28(1)(c) exempts a document that is a copy or draft of, or contains extracts from, a document referred to in sections 28(1)(a), 28(1)(b) or 28(1)(ba), as discussed above.

Copy, draft or extract

A copy is a reproduction or duplicate of the document, for example a photocopy or printed copy.

A draft is a preliminary version of the document. It should be the actual document, preferably marked as draft. A ‘draft’ does not extend to source documents that were created for other purposes before the relevant submission or briefing, and where they contain information subsequently reproduced in the submission or brief.²⁰

An extract usually contains a reproduction of part of the text or material such as a quote, paraphrase, or summary. Simply referring to a Cabinet document is not sufficient.²¹ Consider whether there is a footnote or other attribution in the text to show that the information came from an official record, Cabinet submission or relevant Ministerial brief.

SECTION 28(1)(D) – DISCLOSE ANY DELIBERATION OR DECISION OF CABINET

Section 28(1)(d) exempts a document that would disclose any deliberation or decision of Cabinet, other than a document by which a decision of Cabinet was officially published.

This means that the exemption will apply to a document that conveys any matter which, it is clear from the document, conveys details about a deliberation or decision of Cabinet.

Where the decision or recommendation of Cabinet has been made public already, releasing information is unlikely to ‘disclose’ the Cabinet decision or deliberation.²²

Deliberation

Deliberation means the actual debate that took place, and not just the subject of the debate. In other words, how the subject matter was treated (how arguments were weighed up and evaluated) by Cabinet, not just the subject matter itself.²³

If the information itself discloses what is to be deliberated or a document is key to Cabinet deciding an issue, such as a statistic or advice, it could also reveal the deliberations of Cabinet.²⁴

Decision

Decision means any conclusions as to the courses of action the Cabinet adopts, whether they are conclusions as to final strategy on a matter or conclusions about how a matter should proceed.²⁵

NEITHER CONFIRMING NOR DENYING THE EXISTENCE OF A DOCUMENT

In some cases, merely acknowledging that a document does, or does not exist, can cause harm or be prejudicial. Section 27(2)(b) permits an agency to make a decision and express it in terms that neither confirms nor denies the existence of the requested document.

An agency can neither confirm nor deny that a document exists pursuant to section 27(2)(b) where a document is exempt under section 28, or if it did exist, would be exempt under section 28.

DISCRETION TO DISCLOSE EXEMPT DOCUMENTS

Nothing in the Act prevents an agency from providing access to information where an exemption applies. Section 16(2) acknowledges that decision makers can release exempt information as long as they are not legally prevented from doing so. Nevertheless, while section 20(2) notes that an agency is not required to provide access to an exempt document, the High Court of Australia²⁶ has interpreted this as not preventing an agency from providing access to an exempt document.

Disclaimer: The information on this page is general in nature and does not constitute legal advice.

Version: June 2020 – D20/5664

1. Mildenhall v Department of Premier and Cabinet (No 1) (1995) 8 VAR 284.
2. Pullen v Alpine Resorts Commission (unreported, AAT Macnamara DP).
3. Pullen v Alpine Resorts Commission (unreported, AAT Macnamara DP).
4. See the Victorian Government ‘Cabinet Handbook’, available https://www.vic.gov.au/cabinet-handbook.
5. Birnbauer v Department of Industry Technology and Resources (1986) 1 VR 279 at 286.
6. Peter Ryan MP v Department of Infrastructure [2004] VCAT 2346 at [34]-[36].
7. Herald & Weekly Times v Victorian Curriculum & Assessment Authority [2004] VCAT 924 at [73]; DTF v Dalla-Riva [2007] VSCA 11 at [13].
8. Ryan v DoI [2004] VCAT 2346 at [34].
9. Ryan v DoI [2004] VCAT 2346 at [34].
10. DoI v Asher [2007] VSCA 272.
11. DoI v Asher [2007] VSCA 272.
12. Smith v DSE [2006] VCAT 1228 at [17].
13. Smith v DSE [2006] VCAT 1228 at [17].
14. Fyfe v DSE [2012] VCAT 222.
15. Herald & Weekly Times v Victorian Curriculum & Assessment Authority [2004] VCAT 924 at [73]; DTF v Dalla-Riva [2007] VSCA 11 at [13].
16. Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission [2013] VCAT 822 .
17. Ryan v DoI [2004] VCAT 2346 at [34].
18. Ryan v DoI [2004] VCAT 2346 at [41].
19. Department of Premier and Cabinet v Hulls [1999] VSCA 117.
20. Asher v DoI (2006) 25 VAR 143 at [42]-[43].
21. Mildenhall v DoE (unreported, VCAT, Glover M, 16 April 1999).
22. Honeywood v DIIRD [2004] VCAT 1657 at [26].
23. DoI v Asher [2007] VSCA 27 at [58].
24. DoI v Asher [2007] VSCA 27.
25. Dalla-Riva v Department of Treasury and Finance [2005] VCAT 2083 at [27].
26. Victorian Public Service Board v Wright (1986) 160 CLR 145 at [3].