1. On 9 February 2007, Louise Asher MP, wrote to Melbourne Water seeking access to a copy of -

All briefing notes, reports, memos, correspondence and documents in relation to any presentations made by Mr Bruce Rhodes and/or Mr John Woodland to the Melbourne Water Board in relation to water restrictions. The request applies to documents dated between 1 June 2006 and 31 December 2006.

1. Access was granted to the documents apart from two documents in full and one document in part. Those three documents are the subject of application G320/2007.
2. In the course of that proceeding, access to a further document, a joint Ministerial briefing dated 15 September 2006, was requested. Access was refused and is the subject of application G588/2008.
3. Both applications were heard together. Mr Adams QC represented Ms Asher and Mr Batskos, Melbourne Water. Mr Robert Skinner, the Managing Director and a member of the Board of Melbourne Water had prepared a number of witness statements. He gave evidence and was cross-examined. Both parties made submissions.

1. The background to the request is this.
2. 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.
3. 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.
4. On 11 September 2006, that Drought Taskforce was created as a Cabinet Committee.
5. 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.
6. 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.
7. According to Mr Skinner :

One of the steps I took at this stage was to appoint John Woodland, Manager Water Supply Operations for Melbourne Water, to develop and consider a range of contingency management options which could be put to the Minister and the Government in relation to managing the drought. Those options were to form the basis of any submissions or recommendations that would ultimately be made by Melbourne Water to the Minister given the highest levels of Government dealing with the drought (including the Cabinet Sub-Committee).

On 25 October 2006 Mr Woodland convened a working party which included the retail water companies, and commenced preparing material as requested. I asked him to provide input into a presentation to the Board on 17 November 2006 by way of a summary of the work he was doing in developing possible options for dealing with water supply matters in the short term in response to the drought. The reason for the presentation was so that the Board could be informed of where things were up to on this issue and to gain their feedback and direction, as those options and possibilities were explored and fine-tuned. These were matters that we progressed to the Minister in December 2006.

As part of the work being undertaken by Mr Woodland, it was necessary for there to be input in respect of what might happen to water storage levels given different stream flow scenarios that might eventuate. That work was performed by Mr Bruce Rhodes, Manager Urban Water Planning for Melbourne Water. I am informed by Mr Rhodes and believe that his contribution to this work included using computer modelling software of Melbourne Water to predict water storage levels depending on different stream flow scenarios that could arise.

1. Those officers prepared a summary of the work Melbourne Water was doing to obtain feedback and direction from the Board.
2. In that context Documents 1 and 2 were prepared as part of a presentation to the Board of Melbourne Water on 17 November 2006. Further work was done for the Board, including a Power Point slide presentation dated 11 December 2006, which is Document 3.
3. A further updated briefing was prepared at the request of the Minister for his next briefing on 15 December 2006. This was after the State election on 25 November 2006. After that meeting, Mr Skinner worked with an officer of the Department of Sustainability and Environment to finalise the briefing into a Cabinet submission, in collaboration with the retail water companies.
4. During January and February 2007, a Cabinet submission was finalised before being presented to Cabinet for consideration on 19 February 2007. The Premier announced steps to be taken by the Government in relation to drought contingency plans.
5. In that context, Melbourne Water claims that these documents are exempt from release on one or more of the following grounds :
   • (a) Section 28(1)(ba) - namely the document was prepared for the purpose of briefing a Minister in relation to a matter to be considered by Cabinet or a committee of Cabinet.
   • (b) Section 28(1)(c) - that the document is a copy or draft of, or contains extracts from a document referred to in s 28(1)(a), (b) or (ba).
   • (c) Section 28(1)(d) - disclosure would involve the disclosure of a deliberation or decision of Cabinet or a committee of Cabinet.
   • (d) Section 30(1) - the document is an internal working document and disclosure would be contrary to the public interest.
6. It is convenient to consider whether Document 4 is exempt from release, first, being the earliest document created.

1. This is a joint Ministerial Briefing Note prepared for the Minister on 15 September 2006 by Melbourne Water and the retail water companies.
2. Melbourne water claims that it is exempt from release under s 28(1)(ba) and (d) and s 30(1).

3. Section 28(1)(ba) states that a document is an exempt document if it is

a document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet.

1. There is no dispute that the Premier's Drought Taskforce was constituted as a Committee of Cabinet. Mr Skinner gave evidence, which I accept, that this 11 September 2006 briefing note was an initial response of a general nature to a request by the Minister for a joint briefing note for the Cabinet Committee. Attached to his second witness statement are copies of emails sent on 7 September 2006 which confirm the request for a Ministerial briefing and discussions with the Minister on that day. In his oral evidence Mr Skinner said he had a discussion with the Minister on that day about immediately starting work on a brief for a Cabinet Taskforce. He said there was no doubt in his mind that the Minister wanted the briefing for a Cabinet Committee.
2. Given that evidence, which I accept, I am satisfied that Document 4 was prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet. Document 4 is therefore exempt from release under s 28(1)(ba) of the Act.

1. Document 1 is a table headed "Draft" and is titled "Drought Contingency Supply Actions - Summary". Mr Skinner gave evidence, which I accept, that it was prepared by Mr Woodland and distributed at the Board meeting on 17 November 2006. It was provided as part of a presentation made by Mr Rhodes to the Board at Mr Skinner's request. It covers a range of options developed by Mr Woodland that could be applied to manage issues relating to water supply, flow and quality.
2. Mr Skinner gave evidence, which I accept, that these options in this document were later further analysed and refined and a range of final options was subsequently included in advice to the Minister, on the understanding that the Minister was to provide a report on drought contingency measures to the Cabinet Committee.
3. Mr Skinner referred to a media release dated 25 January 2007 by the Premier, which announced the drought contingency measures which were ultimately adopted by the Government. Some of the suggestions raised in the draft were ultimately accepted and adopted by the Government. This is confirmed when one compares the media release with the draft options.
4. Melbourne Water claims Document 1 is exempt from release under s 28(1)(c), (d) and s 30(1).
5. In the scheme of things, this document was an early draft of a whole range of options and was prepared for the Board for its consideration in ultimately briefing the Minister.
6. To be exempt under s 28(1)(c) of the Act, the document has to be a copy or draft of or contain extracts from

- the official record of any deliberation or decision of Cabinet

- a document prepared 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.

1. The document clearly does not contain extracts from the official record of deliberations or decisions of Cabinet. It is preliminary work done for the purposes of providing a list of options to the Board, for the Board to prepare another document to brief the Minister. Thus the document itself does not reveal a subject matter considered by the Cabinet Committee. It is difficult to see that it is a document or even a draft of a document prepared for the purpose of submission for consideration by the Cabinet. Given its context and when it was prepared, in the whole chain of material, it was prepared for the Board's consideration for it to consider when preparing its briefing. It was clearly not prepared for the purpose of briefing the Minister.
2. I am not satisfied it is exempt under s 28(1)(c) of the Act.
3. Under s 28(1)(d), a document is an exempt document if its disclosure would involve the disclosure of any deliberation or decision of Cabinet, other than one by which a Cabinet decision was officially published.
4. There is no evidence the document itself was ever placed before the Cabinet Committee, nor would it be expected that it would, given its nature.
5. As I understand how the case for Melbourne Water is put, it is that if one compares
   • (a) the documents used to brief the Minister in relation to matters to be considered by Cabinet, and
   • (b) the documents submitted to Cabinet, and
   • (c) the public documents announcing the adopted steps to be taken by the Government.

this makes it clear that disclosure of this options brief would involve disclosure of what the Cabinet committee were deliberating upon and ultimately make a decision about.

1. 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.
2. I am not satisfied that the exemption under s 28(1)(d) is made out.
3. Is Document 1 exempt under s 30(1) of the Act?
4. 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.
5. 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.
6. Would release be contrary to the public interest?
7. 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.
8. 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.
9. 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.
10. I am satisfied Document 1 is exempt from release under s 30(1) of the Act.

1. Mr Rhodes made his presentation to the Board to explain to the Board and to give an update on progress in relation to the drought and its impact on Melbourne Water and its functions. I accept Mr Skinner's evidence that the presentation was made to outline the severity of the drought, to assess stream flow conditions and various storage scenarios. It also explained how any risk exposure from a corporate perspective had shifted over time.
2. It was a Power Point presentation and all but one slide has been released. Document 2 is the unreleased slide. It is headed "Streamflow Scenarios for 2008 (no contingency actions)". It presents potential scenarios about what the state of water storage could be in Victoria, depending on various conditions such as repeats of previous stream flows in other years.
3. Mr Skinner gave evidence, which I accept, that this slide formed part of the detailed briefing given to the Minister on this matter in December 2006, and was part of the information that the Minister considered as part of his briefing of Cabinet. A similarly formatted graphical forecast appears in Document 4, which I have already found to be exempt from release under s 28(1)(ba).
4. Under s 28(1)(c), a document which contains extracts from a document referred to, in this case paragraph (ba), is exempt from release. I am satisfied this slide is an extract from the earlier exempt document
5. I am therefore satisfied Document 2 is exempt from release.

1. Document 3 is a Power Point slide presentation dated 11 December 2006 which was presented to the Board on 15 December 2006. As Mr Skinner explains in his statement :

Mr Woodland was the author and presenter of part of that presentation. Mr Rhodes was the author and presenter of the remaining parts of the presentation.

Mr Woodland was responsible for 4 pages of the slide presentation, namely those entitled :

The slide presentation represents a refined list of options. The remaining parts of this presentation included an update of the scenarios dealt with in Mr Rhodes' presentation, which is document 2, ... based on availability of one more month of data being included in the modelling process to give rise to different scenarios.

1. No part of this document has been released. Melbourne Water claims it is exempt from release under s 28(1)(c), (d) and s 30(1).
2. As I understand Mr Skinner's evidence, he had asked Mr Woodland and Mr Rhodes to present the Board an update on where their work was in relation to contingency options, work being developed to enable Mr Skinner to provide material to and consult with the Minister prior to the matter being considered by the Cabinet Committee.
3. Mr Skinner expressed the following concerns if this document, and the other documents the subject of this application, were released. He says :

... that would have the effect of disclosing what Cabinet (or at least a Sub-Committee of Cabinet) had on its mind and was deliberating upon in that relevant December/January period being making a decision. The information in the submission that went to the Cabinet Sub-Committee was so closely connected to the information presented to the Board that disclosure would involve the disclosure of the deliberations of the Cabinet. This extremely close connection arises because of the origins of the information (ie the information came from the same officers of Melbourne Water who presented to the Board (which included me) and at my request) and the proximity in time to the material presented to the Cabinet Sub-Committee at a time when it was known by Melbourne Water that the matter was to be considered by Cabinet. The content of the documents is sufficiently close to the content of the submissions to reveal what Cabinet had on its mind. There would be disclosure of the deliberations of Cabinet.

1. I accept that some of the information in the document made its way in some form into the Ministerial Briefing and ultimately the Cabinet submission[1].
2. I am not satisfied the release of Document 3 would involve the disclosure of any deliberation or decision of Cabinet such as to attract the exemption in s 28(1)(d).
3. It was a document prepared for the purposes of briefing the Board in the whole process. It is generally in a slide presentation form and quite different from the Cabinet submission.
4. Whilst ultimately the data in it may have found its way into a Ministerial Briefing material or the Cabinet submission, it is not a copy of draft of, nor does it contain extracts from such documents, so that it attracts the exemption under s 28(1)(c) of the Act.
5. I am however satisfied it is an internal working document under s 30(1). The evidence is very clear that it was prepared at high levels for the Board's consideration.
6. I refer to what has been put earlier in relation to the considerations relevant to determining whether disclosure would be contrary to the public interest.
7. Given the high level of this advice and Mr Skinner's evidence that the information in the submission that went to the Cabinet Committee was closely connected to the information presented to the Board, I am satisfied release would be contrary to the public interest. I accept the contention of the respondent, in relation to this document, that release would have the potential to reveal recommendations or outline courses of action that might or might not have been taken, having the potential to undermine the Cabinet decision making process.

1. 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?
2. 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.
3. There is no doubt that the public is interested in these matters.
4. 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.
5. 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.
6. 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.
7. For these reasons, I affirm the decision of the respondent.

[1] Submission to Cabinet is confidential Attachment 13 to Mr Skinner's third witness statement