RESPONDENT: Department of State & Regional Development

MEDIUM NEUTRAL CITATION: [2002] VCAT 609

Twenty-eight days from this day, access is granted to the figure being the total remuneration package for Ms Lois Appleby and Ms Nicola Watkinson. The respondent's determination is otherwise affirmed.

For the Applicant: Mr Adams QC and Mr Wartski of Counsel

instructed by Mr Bill Zisimopoulos, Legal Branch Department of Innovation, Industry and Regional Development

1. Ms Asher is a member of the Legislative Assembly representing the seat of Brighton. She is the Deputy Leader of the Opposition in the Victorian Parliament. In a letter dated 4 October 2001 addressed to the Freedom of Information Officer of the Department of State and Regional Development (now the Department of Innovation, Industry and Regional Development) she sought access under the Freedom of Information Act 1982 to:

"...current contracts of employment and/or services and, conditions of employment, including key performance indicators, for the following people:

* Mr Neil Edwards, Secretary, Department of State and Regional Development;

* Ms Lois Appleby, Chief Executive, Tourism Victoria;

* Mr James Cain, Executive Director, Major Projects Victoria;

* Ms Nicola Watkinson, Director, Office of Manufacturing".

This request led to the identification of some six documents. The contract of employment for Mr James Cain has been released in full. The contracts of employment for Ms Watkinson, Mr Edwards and Ms Appleby have been released with deletions, and an undated performance plan for Mr Edwards has been released with the section on "key policy deliverables and key operational deliverables" deleted.

2. Ms Asher seeks a review from the Tribunal of the deletions pursuant to section 50 of the Freedom of Information Act 1982.

3. At the hearing Ms Asher, through her senior counsel Mr Adams QC who appeared with Mr Wartski on her behalf, stated that she did not seek access to the private address of any person or to the breakdown of any person's remuneration package. She disclaimed any desire for any access to certain deleted portions of a performance plan for Ms Watkinson.

4. The result then was that what remained in dispute was the amount of the total remuneration packages for Ms Watkinson and Ms Appleby, and the list of "key policy deliverables and key operational deliverables" for Mr Edwards.

5. Mr Edwards is the Secretary of the Department, Ms Appleby is the head of "Tourism Victoria" which was at the time of the request a unit of the department that has since been transferred to the Department of Infrastructure. Ms Watkinson is the Director of the Office of Manufacturing which forms part of the business group of the respondent department. Mr Cain is the Executive Director of Major Projects Victoria.

6. The Department says that the total of the remuneration packages for Ms Watkinson and Ms Appleby are exempt from disclosure under section 33(1) of the Freedom of Information Act 1982 on the basis that their disclosure would entail an unreasonable disclosure of information relating to the personal affairs of these two officers. It says that disclosure of the key policy deliverables and key operational deliverables from Mr Edwards' "performance plan" would be contrary to the exemptions constituted by sections 28(1)(d) of the Freedom of Information Act 1982 as disclosing the deliberations of Cabinet, and section 30(1) on the basis that it would entail disclosure of an internal working document in circumstances where it was contrary to the public interest to do so.

7. Section 33(1) provides "...a document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person)". Section 28(1)(d) renders exempt from disclosure "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."

"...subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act -

(a) would disclose matter in the nature of an opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers, or an officer and a Minister, in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government; and

9. In University of Melbourne v. Robinson [1993] VicRp 67; [1993] 2 VR 177, 187 Eames J said that the exemption from release of material relative to the personal affairs of an individual suggest

"...that a distinction has been drawn by the Legislature between those aspects of an individual's life which might be said to be of a private character and those relating to or arising from any position, office or other public activity with which the person occupies his or her time."

It seems to be generally accepted that the quantum of remuneration received by an officer for his or her discharge of government duties is information relating to that officer's personal affairs: Ricketson v. Royal Women's Hospital (1989) 4 VAR 10, 12 per Judge Hanlon, Milthorpe v. Mt Alexander Shire Council (1997) 12 VAR 105, 110. Nevertheless the total figures for the remuneration packages of officers have been disclosed by this Tribunal and its predecessor The Administrative Appeals Tribunal on a number of occasions on the basis that whilst the information may relate to the officer's personal affairs, in the circumstances the disclosure would not be regarded as unreasonable. In Forbes v. Department of Premier and Cabinet (1993) 6 VAR 53, Mr Ball, a Deputy President of the Administrative Appeals Tribunal ordered the release of the total remuneration package of the Secretary of the Department of Premier and Cabinet. In Ricketson's case, Judge Hanlon ordered the disclosure of the total of the remuneration package of the Chief Executive of the Royal Women's Hospital. In Milthorpe's case, I granted access to the total remuneration package of the Chief Executive of the Shire Council and its Tourism Office. By way of contrast in O'Sullivan v. Department of Health and Community Services (No. 2) (1995) 9 VAR 1, 20-21 I declined to order the release of the total remuneration package for two officers involved in the "Children of God" case on the basis that, unlike the Chief Executive of the Royal Women's Hospital, those officers could not be regarded as "high flyers".

10. Determining whether release of information relating to the personal affairs of an individual would be "unreasonable or not" requires a balancing of interests and a consideration of all the circumstances including the interests that the applicant had in the information, the nature of the information, the circumstances in which the information was obtained and the likelihood of the information being information that the person concerned would not wish to have disclosed: Page v. Metropolitan Transit Authority (1988) 2 VAR 243 per Judge Jones. In Thwaites v. Department of Premier and Cabinet (1996) 10 VAR 437 Mrs Megay, Deputy President of the Administrative Appeals Tribunal considered a request for access under the Freedom of Information Act to all documents relating to performance bonuses payable to secretaries of government departments, including the performance ratings of the secretaries. She declined to release that material and stated inter alia:

"...the Tribunal does not regard the cases cited by Mr Ball as standing for an immutable principle that precise information relating to salaries and benefits should be disclosed. In Forbes' case, Mr Ball held that reporting in bands of $62,500.00 militated against sensible analysis. This is not the case here as the reporting requirements demand disclosure in bands of $10,000.00." (1996) 10 VAR 437, 451."

11. Ms Richards who appeared on behalf of the respondent conceded on the basis of these authorities that there is a legitimate public interest in taxpayers being able to ascertain how tax money is spent. Nevertheless, officers are entitled to reasonable protection of their privacy. She said the Thwaites case indicated that there are alternative modes of accountability and one of the officers involved here is like the officers in O'Sullivans case, not a "high flyer".

12. In Mildenhall v. Department of Premier and Cabinet (No.1) (1995) 8 VAR 284, 298 I held in the context of a proviso to subsection (3) of section 28 (the subsection which excludes from the Cabinet exemption purely statistical, technical or scientific material) that a document which merely disclosed subject matters which were before Cabinet could be regarded as disclosing Cabinet's deliberations because this would show what the ministers "had on their minds". I took the same approach in Wilson v. Department of Premier [2001] VCAT 663; (2001) 16 VAR 455, 459.

13. In Birrell v. Department of Premier and Cabinet [Nos 1 and 2] (1986) 1 VAR 230, 239 the Tribunal consisting of Judge Rowlands, then President of the Administrative Appeals Tribunal and Mrs Rosen said that the word "deliberation" meant more than mere receipt of material in the Cabinet room, but rather denoted "careful consideration with a view to the making of a decision".

14. In the view which I take it is unnecessary to say more about the exemption claimed under section 30(1) of the Freedom of Information Act.

15. Since the "public interest override" power under section 50(4) of the Freedom of Information Act is not available in relation to exemptions under sections 33 or 28 of the Act, the personal affairs in Cabinet exemption, it is unnecessary to say anything as to these general matters of public interest.

16. Mr Edwards, the Departmental Secretary, says that in answer to a request by Ms Appleby he assured her that the remuneration packages which she was negotiating with him would be treated as a matter of confidentiality. Ms Appleby said that she regarded her remuneration as a personal and private matter which it was inappropriate to disclose. She said that there would be "no value" in making it known to her colleagues. In her written statement she queried the purpose for which her total remuneration figure was sought, indicating that she might modify her view if a particular purpose were indicated. Mr Adams QC, on behalf of Ms Asher, said that his client wished to make the figure public as a part of the debate on State politics. Ms Appleby maintained her opposition to release of the figure in light of that explanation.

17. Mr Edwards conceded that until the relatively recent past public servants, both at the highest and lowest levels, were regarded not as employees but as office holders. As such, their remuneration was a matter of public record. This consideration in itself did not to his mind render it reasonable for the total remuneration packages of the present officers to be disclosed. Since the days just described, the standing and relationship with the Government of public servants has been transformed. They were now rather more like employees than office holders. They do not enjoy the security of tenure which they once enjoyed. Given that the status now bore a far greater resemblance to private sector employees than office holders, it was proper, he said, that they should have the advantage of the same sort of confidentiality as a private sector employee would expect. Mr Adams put it to Mr Edwards in cross-examination that the following passage from the policy platform upon which the present Australian Labor Party was elected to office stated:

* Senior Executive appointments and promotions are on the basis of merit,

* Senior Executive salary packages are transparent in aggregate with performance bonus payments criteria publicly disclosed,

* Women are encouraged to apply for Senior Executive positions, and

* A rigorous test is applied to contain overall increases in senior executive numbers:

* Labor will ensure senior public sector appointments are made on merit, not political favouritism".

Mr Edwards said that the approach he was taking was in conformity with this policy, though he said that ultimately a departmental secretary must be governed by the law and cannot give effect to policy in a way that is inconsistent with the law. He said that the processes of engagement, negotiation of remuneration packages and so forth for the senior executive officers were conducted so far as he could see in the same manner under the present Labor government as they had been under the previous coalition government.

18. The total remuneration paid to senior public officers has been, and continues to be, a matter of public concern and public debate. The authorities referred to above indicate the fact that the taxpayers ultimately meet the remuneration gives them a legitimate interest in this matter, even although it is one that it is clearly a matter relative to the personal affairs to the officers themselves. As Mr Edwards notes, his actions as Secretary must ultimately be regulated by the law which must take precedence over any government policy, or one might say any private assurance that he might give to a particular officer. The existence of authorities such Forbes and Milthorpe indicates that conformably with the Freedom of Information Act no officer, certainly no senior officer could legally obtain an absolute guarantee of confidentiality of his or her total remuneration package figure without some special enabling legislation. The many proceedings in this Tribunal and its predecessor the Administrative Appeals Tribunal relative to "commercial in confidence" contracts between government agencies and private business undertakings show that no private arrangement entered into between government officers or an agency and a private person or body can modify the operation of the Freedom of Information legislation, though the existence of such arrangements may be a relevant consideration.

19. When in O'Sullivan's case I distinguished between "high flyers" and other government officers, I posited a criterion that was easy to state but may be difficult to apply in practice. Ms Richards conceded that Ms Appleby was amongst the most senior officers in the Department. Whatever criterion one applied to interpret the concept "high flyer" within the Government of Victoria, Ms Appleby is one of them. The applicant's apparent purpose, namely to use this remuneration package figure as part of the public debate as to remuneration levels and appointment policies of the senior executive levels of the Victorian Public Service, seems to be a proper and reasonable one for a State politician. Ms Appleby holds a significant office under the State Government and as one of the Government's more highly paid officers the expenditure on her remuneration is a matter of some significance to the taxpayers. In my view, disclosure of her total remuneration package would not be unreasonable.

20. I should also note that according to the evidence the report of Tourism Victoria will disclose within a band of $10,000.00 per annum the remuneration of the Chief Executive of Tourism Victoria. Generally disclosure of remuneration by "bands" does not identify the officers involved, however in the case of the Chief Executive Officer, given that he or she will be the highest paid executive, it is easy to infer which band he or she is to be found in. This consideration might be regarded as cutting two ways. On the one hand it might be said that there is already sufficient information on the public record to provide the basis for a proper public debate on these matters. On the other hand, it might be thought that the disclosure already made amounts to swallowing an elephant and to resist disclosure of the precise figure amounts to straining on a gnat. On balance, I regard the existence of such significant disclosure with regard to Ms Appleby's package as a consideration pointing against disclosure of her total remuneration package in this proceeding. Nevertheless, on balance it seems to me that it does not outweigh the other factors which to my mind favour disclosure.

21. Ms Watkinson is an Executive Officer Level 3 and holds the office of Director of the Office of Manufacturing. She is one of twelve to fifteen officers reporting to Mr Andrew Polmear, the Head of the Business Group, who in turn reports to the Departmental Secretary. Like Ms Appleby, she said that she was given to understand that her remuneration package was confidential. She said "I would regard disclosure of my remuneration details as a breach of confidence". She said that she is one of forty officers at her level in the Department and she did not perceive her "role [has] such public notoriety or importance that there is a strong public interest in my remuneration package to be opened to public scrutiny. I am frequently involved with negotiations with staff at CEO level in manufacturing companies, and it is necessary for me to bring a degree of authority to those negotiations...I am concerned that my authority will be undermined if my remuneration details were to become a matter of public knowledge." Ms Watkinson confirmed in cross-examination that by this she meant that if her total remuneration were known she would be regarded as an insignificant rather than an authoritative figure in negotiation.

22. Ms Richards submitted that on no view could Ms Watkinson be regarded as a "high flyer".

23. The decision as to whether release of Ms Watkinson's total remuneration package would be unreasonable in terms of the section 33 exemption is far more difficult than the decision with respect to Ms Appleby. It perhaps underlines the imprecision of the concept "high flyer". The present public service arrangements divide the service between the executive and non-executive grades. One view might be that any officer in the executive grades is for that reason alone a "high flyer". Another view is that its description applies to the most significant officers within a department. This was the submission made by Ms Richards.

24. In my view both approaches are too absolute. The office which Ms Watkinson holds is a significant one. Certainly its title suggests its significance. The work of which Ms Watkinson says she undertakes also marks out her role as one of significance. In those circumstances, and with some hesitation I conclude that her office is of such significance that she should be regarded in the "high flyer" category rather than a member of the mass of more or less anonymous State public officers.

25. With regard to remuneration packages of both officers, it is of some significance that both Mr Cain and, reluctantly, Mr Edwards have consented to the disclosure of their total remuneration packages. The fact that these officers have consented is a factor bearing on the question of the reasonableness or otherwise of disclosure of these matters. cf Medical Practitioners Board v. Sifredi [2000] VSC 33; (2000) 16 VAR 347, 355.

26. I should also note a further argument put by Ms Richards in opposition to the disclosure of these officers' total remuneration. She says that whilst these figures remain unknown to the public and to other officers, the position of the Departmental Secretary is strengthened in negotiating packages with individual officers. Human experience might make one sceptical as to the possibility of maintaining that level of confidentiality within a department or one of its units. More significantly I do not believe that the section 33 exemption is intended to protect an agency's commercial interests in negotiation. Rather it is aimed at protecting the privacy of individuals whose personal affairs are the subject of the relevant document.

MR EDWARDS KEY POLICY AND OPERATIONAL DELIVERABLES

27. Mr Edward's performance plan has been released with the deletion of all but one of the dot points under the heading "key development deliverables" and with the deletion of two of the four "key operational deliverables". Mr Edward's evidence was that each of these matters had been the subject of consideration by Cabinet. Ms Richards submitted that these matters touched a number of things that had been the subject of Cabinet decision, which decisions have not yet been publicised. I do not recall that Mr Edward's evidence ran specifically to this point. As I look at the various items there seem to be descriptions of subject matter and policies at a fairly high level of generality. Moreover, the fact that these matters have been the subject of Cabinet consideration is something that emerged only because Mr Edwards said so in evidence. In those circumstances I have a certain reluctance to uphold the Cabinet exemption claim.

28. Nevertheless, with some hesitation and conformably with the approach I took in Mildenhall's case and Wilson's case, it seems to me that even without Mr Edward's evidence one might infer that the reference to various policies and strategies in these policy and operational deliverables in itself suggests that these matters are or were the subject of Cabinet consideration. Once one makes such a finding it follows that the disclosure would indicate what the Cabinet ministers had "on their minds" and therefore, would amount to a disclosure of the deliberations of Cabinet.

29. In my view the exemption under section 28(1)(d) has been made out.