3.11 Access to Cabinet documents
The Cabinet Secretary is the custodian of the Cabinet records for the present and all previous governments. Access to the Cabinet record and associated Cabinet documents is governed by strict protocols to protect the confidentiality and security of information, and the interests of current and previous governments and the Ministers involved in Cabinet decision-making, regardless of political party.
Access may only be granted by the Cabinet Secretary based on the approved protocols, and where appropriate, an official Cabinet Secretariat copy may be produced and issued. All agency requests for access to the Cabinet record must be referred to the Cabinet Secretary in writing through the relevant CLLO. The CLLO is authorised to seek access to Cabinet documents on behalf of their Minister or Chief Executive Officer.
Access to Cabinet documents held on departmental files is subject to the same protocols as the official Cabinet record maintained by the Cabinet Secretary. Chief Executive Officers have an obligation to ensure the security of Cabinet documents held in their care and that access is strictly enforced in accordance with the governing protocols. Under no circumstances should copying of Cabinet documents be countenanced. Should there be any doubt regarding access, the Cabinet Secretary should be contacted for advice.
The TCIS is the primary information system used to record historical and proposed Cabinet business of the government. Access to the system by departments is administered by the Cabinet Secretariat. The system operates within a whole-of-government security framework including encryption technology to protect the confidentiality of information.
Departmental access to the system is restricted to CLLOs and their assistants who require access to Cabinet information as a normal part of their prescribed Cabinet business support role to their Minister(s).
Access to the system must be requested from the Cabinet Secretary in writing. The request must be authorised by the CLLO where the nominated user is employed in that office, or in the case of a new CLLO requiring access, the authority of the Chief Executive Officer or delegate is required.
Prior to accessing the TCIS, the user must certify that they are aware of and understand their accountabilities to the Premier, Minister and Chief Executive Officer in ensuring security of Cabinet-in-Confidence information, the relevant protocols and security provisions, and penalties for misuse as prescribed in this handbook.
It is the responsibility of the CLLO to monitor administration of the TCIS within their department, and to ensure that access for a user is disabled by the Cabinet Secretariat in the event of the following:
- when the officer ceases duties that require access to the TCIS
- where an officer is implicated in a security breach associated with Cabinet-in-Confidence information
- in any circumstance where it is deemed prudent that an officer should not continue to have access to Cabinet-in-Confidence information.
Access to the TCIS in departments can be withdrawn at any stage without prior notification to a user.
All requests for access to Cabinet documents by past government members must be referred to the Cabinet Secretary.
Former Ministers are entitled to access copies of Cabinet documents, which they dealt with personally while in office, but they may not retain such documents. The Cabinet Secretary must advise the present leader of the party that formed the government in office during the period the records were created of the intention to provide access to records to former Ministers.
Access to hardcopy departmental Cabinet files must be administered closely, with access being granted only on the authority of the CLLO or other designated delegate(s) of the Minister and Chief Executive Officer. Requests for access to these files need not be referred to the Cabinet Secretary.
Where authorised officers are permitted to remove a hardcopy file from the secure storage area, departments must ensure that there are policies and procedures in place to govern handling of the file, including its use and secure storage, to reduce the risk of unauthorised access to the information.
A register must be maintained to record access and movement of hardcopy Cabinet files with the following detail recorded:
- file details
- details of the officer accessing the file
- reason for access
- the interim location of the file.
Where appropriate, Chief Executive Officers may authorise certain senior officers including the CLLO to have unrestricted access to all Cabinet documents. It is not necessary to record access to individual files by these officers.
In the event of a breach in security being detected or suspected in relation to Cabinet documents, the Cabinet Secretary may seek information from departments about the movement and access given to files, and of the policies and procedures that govern their use. Information contained in the access register must be provided to the Cabinet Secretary on request in these circumstances.
Current Ministers may not have access to Cabinet documents produced by a past government of a different political party. Such documents are held in trust by the Cabinet Secretary, with regard to the official record of official Cabinet documents, and the Chief Executive Officer of each department, with regard to originals of submissions prepared by the department and working papers.
Current Ministers may also not see other papers giving the unpublished views or comments by Ministers of a former government of a different political party or the advices submitted to them, except in the following instances:
- papers which, even if not publicly available can be deemed to be in the public domain, for example, letters sent by former Ministers to trade associations, trade unions, etc, or to Members of Parliament about constituency cases, or to members of the public
- papers other than genuinely personal messages, dealing with matters which are known to foreign governments, for example, messages about inter-governmental negotiations
- written opinions of the law officers, which are essentially legal rather than political documents.
In providing advice to the current government, where continuity of administration requires reference to Cabinet documents of previous governments, it may be appropriate for Chief Executive Officers to paraphrase the contents of those Cabinet documents subject to the following conditions:
- paraphrasing the documents of past governments should only apply where it is essential to explain a point of policy affecting the future operations of the department
- it is not appropriate to paraphrase documents concerning matters that no longer have an impact on policy or operations in the department
- the extent of paraphrasing should be consistent with the principle of maintaining confidentiality of matters considered by the past government. The personal views or comments of previous Ministers or advices submitted directly to them should not be disclosed.
Chief Executive Officers are accountable for ensuring that Cabinet information of a previous government of a different political party is used in strict accordance with the provisions of this handbook.
Current Ministers may normally see the papers of former Ministers of the same political party provided the need to do so arises in the course of their current Ministerial duties. There may be exceptional circumstances in which it might be appropriate first to seek the agreement of the former Premier concerned, which will be undertaken at the discretion of the Cabinet Secretary.
Where Chief Executive Officers require information for continuity of administration purposes, that has been the subject of Cabinet consideration by a past government of a different political party, application may be made to access the information from the official Cabinet record which is held in trust by the Cabinet Secretary. Continuity of administration consideration would apply where access is required in respect of an issue, policy or otherwise, that has continued and remained binding through successive government administrations, and where access to information from the official Cabinet record is required to continue, amend, or otherwise deal with that issue.
Applications to access information from the official Cabinet record must be made to the Cabinet Secretary in writing and stipulate detailed reasons supporting the need for access. As custodian of the official Cabinet record, the Cabinet Secretary may only provide paraphrased information or supervised access to the document with a bona fide continuity of administration case, or where unrestricted access is required under legislation or by courts and investigatory bodies. Refer also to 3.11.6 Access required under legislation or by courts and investigatory bodies for further information.
An official copy of a document or release of information for other than continuity of administration, can only be granted with the consent of the former Premier or the current leader of the party concerned. Where the Cabinet Secretary seeks this consent, the reasons provided in the written application from Chief Executive Officers will form the basis of the request to be prepared by the Cabinet Secretary. The former Premier or the present leader of the party has the right to grant or deny access.
Where access is granted, the Cabinet Secretary will make the necessary administrative arrangements with the CLLO of the department concerned. Where access is denied, a written advice will be provided.
Ministers and Chief Executive Officers must consult with the Cabinet Secretary where a Cabinet document, as defined in 1.5 Definition of Cabinet documents , is sought by a court, a tribunal, or an investigatory body or, in any event, under:
- the Crime and Corruption Act 2001
- the Judicial Review Act 1991
- the Right to Information Act 2009
- the Commissions of Inquiry Act 1950
- the Royal Commissions Act 1902 (Commonwealth)
- the Auditor-General Act 2009
- the Ombudsman Act 2001
The Cabinet Secretary will seek legal advice if appropriate, in particular regarding any possible claim of public interest immunity in relation to public release of official Cabinet record documents.
The doctrine of public interest immunity, or Crown privilege, is a rule of evidence which maintains that the production of a document will not be ordered if disclosure would be injurious to the public interest. Cabinet documents fall within a class of document privileged against disclosure, subject only to exceptional circumstances.
Departments must not photocopy official Cabinet record documents in response to requests for the production of documents arising from court, tribunal or inquiry proceedings or from the Information Commissioner. When a request is received for the production of official Cabinet record documents, departments must inform the Cabinet Secretary, who will provide an authorised copy of the document.
Where the request is for Cabinet working paper documents, Chief Executive Officers must consult with the Cabinet Secretary and if appropriate seek legal advice from the Crown Solicitor, in particular regarding any possible claim of public interest immunity, before copies of such documents are provided.
Where documents from a past government are concerned, the Cabinet Secretary will advise the present leader of the party which formed the government during the period concerned, of the request. However, the Cabinet Secretary is authorised to release records to the courts prior to informing the present leader if the matter is urgent.
The Right to Information Act 2009 provides that information created after the commencement of the Act on 1 July 2009 is exempt from release if:
- it was created for the consideration of Cabinet or
- releasing it would reveal any consideration of Cabinet or otherwise prejudice the confidentiality of Cabinet considerations or operations
- it was created in the course of the State's budgetary processes.
The exemption specifically applies to a number of documents directly related to Cabinet's considerations or deliberations. These include:
- Cabinet submissions
- Cabinet briefing notes
- Cabinet agendas
- notes of discussions in Cabinet
- Cabinet minutes
- Cabinet decisions
- a draft of any of the above documents.
A report of factual or statistical information attached to any of the above documents would be considered to be exempt information if its disclosure would reveal any consideration of Cabinet or it was created for Cabinet consideration or for the State's budgetary processes.
This exemption will lapse after 10 years. After that time, release of Cabinet material will be subject to the provisions of the Right to Information Act 2009 and the public interest test (including assessment of whether disclosure of the information could reasonably be expected to prejudice the collective responsibility of Cabinet).
Cabinet material created before 1 July 2009 retains its exemption from the repealed Freedom of Information Act 1992. The exemption applies to all documents submitted to Cabinet, as well as documents prepared for Cabinet's consideration, and documents that may disclose Cabinet considerations. There is no time limit on the exemption.
Under section 100 of the Right to Information Act 2009, if an application for external review of an information access decision is made, the Information Commissioner is entitled to full and free access at all reasonable times to the documents of the agency or Minister concerned. This includes Cabinet documents.
Access to Cabinet documents less than 30 years old, or 20 years for documents considered after 1 July 2009, may be granted to various persons under special conditions, for example, scholars working on projects of recognised State importance, such as biographies. Requests for access to these documents must be referred to the Cabinet Secretary who will liaise with the current leader of the political party that formed the government at the relevant time prior to coming to a decision about whether access should be granted.
Cabinet documents in the State Archives, upon reaching 30 years of age, or 20 years for documents considered after 1 July 2009, may be released publicly subject to the approval of the Cabinet Secretary. Refer to 3.10.7 Queensland State Archives.
From time-to-time, requests for Cabinet documents will come directly to agency staff.
Role of government employees other than CLLO staff
Upon receiving a request for access to Cabinet information, departmental officers must immediately consult with their agency CLLO. The CLLO is to provide advice on how to action the request and will liaise with the Cabinet Secretary to ensure that proper protocols are followed.
Role of CLLO staff
The CLLO must notify the Cabinet Secretary of any request for access to Cabinet material including:
- who is requesting the documents and for what purpose
- when the response is due
- details on action that has been taken to clarify with requestor any elements of the request that may be ambiguous
- proposed timeframe of provision of any relevant documents held by the agency to the Cabinet Secretary for consideration.
