Asher v Melbourne Water

[7]

The background to the request is this.
On 7 September 2006, the Premier issued a Media Release announcing the establishment of a Premier's Drought Taskforce, membership of which included, among others, the Minister for Water. The Taskforce was set up to work with Victorian communities coping with the effects of drought. The Taskforce was to :
- Co-ordinate collection of information on current drought conditions across Victoria including long-term forecast data;
- Determine the social, economic and environmental impacts of ongoing drought conditions;
- Identify immediate priority areas for State Government response;
- Identify and co-ordinate State Government resources for response action;
- Co-ordinate the State Government's response to the worsening drought situation across Victoria;
- Consider and agree on whole-of-government policy on, and immediate response to, ongoing drought conditions;
- Consider long-term State Government responses to worsening drought conditions; and
- Consult with relevant stakeholders groups on options and implementation.
On 7 September 2006, the Minister requested Mr Skinner to prepare a Ministerial Briefing on a range of options in relation to drought response contingency plans. According to Mr Skinner, the Minister requested that Melbourne Water and the retail water companies prepare a Ministerial Briefing Note to assist him in relation to drought response contingency plans. Mr Skinner had no doubt that there was a Cabinet Taskforce being established and he was being asked to start working on a joint briefing for that cabinet taskforce.
On 11 September 2006, that Drought Taskforce was created as a Cabinet Committee.
On 15 September 2006, an initial joint briefing note from the retail water companies including Melbourne Water was prepared and sent by email to the Minister's office. This briefing note is the exempt document in the second proceeding, which is referred to in Melbourne Water's material as Document 4.
Work by Melbourne Water continued after that preliminary briefing. A working party, including the retail water companies, was convened to prepare further material. Mr Skinner appointed two officers to develop and consider options to be put to the Minster.
According to Mr Skinner :

[22]

It may well be, as Mr Skinner says, that some of the options were ultimately accepted and adopted by government. Disclosure of this document would not disclose what Cabinet thought of the options or how it deliberated on them or which ones it chose to accept or reject because, as I understand Mr Skinner's evidence, not all the options ever even became part of any Ministerial briefing.
I am not satisfied that the exemption under s 28(1)(d) is made out.
Is Document 1 exempt under s 30(1) of the Act?
To be exempt, I must be satisfied first that release of the document would disclose matters in the nature of opinion, advice or recommendation prepared in the course of the deliberative process and secondly, whether release would be contrary to the public interest.
It is a draft list of options prepared at a very early stage and which was later refined for the Board's consideration in the context of the Board briefing the Minister. The evidence is very clear that release would ultimately disclose matters in the nature of advice and opinion prepared by an officer of Melbourne Water as part of its deliberative processes.
Would release be contrary to the public interest?
I accept the applicant's contentions that any matters to do with our water supply and management are of great importance to the citizens of Victoria, and that in deciding whether release would be contrary to the public interest, one must be mindful of the right of access to documents that the Act gives and balance those matters against what the respondent claims.
The respondent contends that release would be contrary to the public interest for a number of reasons. They are -
- the potentially sensitive nature of the information
- the politically or governmentally controversial nature of the information
- that release would carry a danger that in future officers will shrink from giving full and frank advice
- that release would reveal options that were not settled at the time it was drafted
- that release would reveal recommendation or outline courses of action that were not ultimately taken, having the potential to undermine the Cabinet decision making process where those matters formed the foundation of what went to Cabinet for consideration
- that release has the potential to undermine the public integrity of the Government's decision-making process
- that as the document may not and does not reflect the position ultimately taken by Cabinet.
Weighing those considerations, the balance falls in favour of non-disclosure. This is a draft list of a whole lot of options prepared at a very early stage for the Board's consideration in the process of ultimately preparing briefing material for the Minister for matters to be considered by a Cabinet Committee. They were draft options and not settled at the time and were later refined. It would be mischievous to release them, particular as it is clear the draft was further refined as not all of the options ultimately went any further.
I am satisfied Document 1 is exempt from release under s 30(1) of the Act.

[31]

Whilst Documents 2 and 4 are not subject to "the public interest override", I have found Documents 1 and 3 exempt from release under s 30(1) of the Act. Applying s 50(4) of the Act, does the public interest require that access be granted?
In summary, the following points were made by the applicant as her public interest grounds :
- The provision of water is of the highest possible interest to the public.
- There is a great public interest in openness and accountability in Government and various agencies, particularly in the case of water resources.
- The government has engaged in a costly advertising campaign to inform the public of its achievements and plans in relation to the provision of water services. The public is entitled to information to allow it to measure the accuracy of that advertising
- The community is entitled to the fullest information concerning the state of water resources and plans to ensure the provision of a water service as a life sustaining commodity.
- Without the fullest possible disclosure of information concerning the future delivery of a water service, the public is denied the right properly to engage in and plan every aspect of life, which is reliant on the provision of a water service.
- Members of Parliament have a duty to take all proper steps to ensure that the government is properly accountable in respect of water services and projects.
- It is only where an exception or exemption under the Act is "necessary for the protection of essential public interests" that "access to information in documentary form in the possession of Ministers and agencies" can be sustained.
There is no doubt that the public is interested in these matters.
The general thrust of the applicant's submissions is on the significance of water, and in that context the desirability of full accountability of government, and the right of the public to have access to this information to plan their lives and fully engage in debate.
I agree with the respondent's submissions that the Act itself has struck a balance between the public interest in the maintenance of functionality and operations of government agencies, on the one hand, and the public interest in access to documents relevant to executive decision-making on the other. Mere advancement of accountability or transparency, because of the subject matter, does not satisfy me that there is an overriding public interest that requires the release of the documents.
For completeness, the applicant also raised concerns about questions to the Minister in Parliament directed to the release of a document, Document 1, Mr Woodland's "Draft - Drought Contingency Supply Actions Summary", and his answers. The Minister correctly answered that that document was a Melbourne Water internal working document, as I have found. Release of the document would not reveal if or when it was forwarded to the Minister.
For these reasons, I affirm the decision of the respondent.

Asher v Melbourne Water - [2009] VCAT 1079 - VCAT 2009 case summary — Zoe

At a glance

Court

Decision date

Source

Judgment (32 paragraphs)

Asher v Melbourne Water (General) [2009] VCAT 1079 (30 June 2009)

Parties