Victorian Civil and Administrative Tribunal|2001-06-30

Birrell v Dept State Dev [2001] VCAT 1258 (30 June 2001)

General list - freedom of information - exempt document - sections 28, 30 and 33

RESPONDENT Department of State and Regional Development

2. Within 28 days from today Document B is to be released in its entirety.

1. By a request dated 12 September 2000 the applicant the Hon Mark Birrell, MP sought access to the following documents:

All letters, notes, diary entries, e-mails, tapes, briefing documents and memoranda held by the Department of State and Regional Development and the Minister for Industrial Relations (including staff) on: (a) the role, budget and functions of the new industrial relations "Strategic Advice Unit", (b) names and remuneration details of each member of the Unit, (c) the advertising, interview process and selection of staff for the Unit (including documents on the number of applicants, number of people interviewed etc) and (d) the C.V. of each of the successful applicants (with private address or telephone number deleted).

2. On 1 November 2000 the Department informed the applicant that partial access would be granted and refused access to the balance of the documents on the basis of various exemptions contained in the Freedom of Information Act 1982. ("the Act').

3. The applicant sought internal review. This occurred and the respondent's acting general counsel confirmed the initial decision. The applicant then sought to review the decision in this Tribunal.

4. By the time the application came on for hearing, exemption was claimed as set out in the following table:

Cabinet submission titled Industrial Relations Strategy, prepared for Monica Gould, Minister for Industrial Relations

Document attached to document 1 labelled Attachment 2

Document headed Strategic Advice Unit - Industrial Relations Branch

Document headed Draft - Industrial Relations Victoria

Document headed Government's Industrial Relations Policies and Practices

Letter from Corrs Schneider Consulting to Geoff Fary, Executive Director, Industrial Relations Victoria, with attached summary

Document head Industrial Relations Victoria Review - Draft Recommendations

Document headed Industrial Relations Victoria Review - draft findings

Letter from Geoff Fary, Executive Director, Industrial Relations Victoria to Neil Foster, Reefton Management Services

*Document number 11 has attached to it a letter of reference headed "Confidential To whom it may concern" signed by Sally O'Loughlin and dated 20 March 2000. This document was not alluded to during the hearing and only came to my attention upon a careful perusal of the exempt documents. Because the document in question does not appear to fall within the ambit of the applicant's request I will make no further mention of it.

The exemptions claimed fall within three classes - cabinet documents, internal working documents and document affecting personal privacy.

5. The Tribunal heard evidence from Mr Brian Francis Corney, the director of the respondent's Policy and Legislative Services division and from Mr Neil Francis Foster the director of the strategic advice unit in Industrial Relations Victoria.

6. Documents 1, 2, 2A, 3, 6, 8 and 9 are documents for which exemption is claimed pursuant to section 28 of the Act. That section exempts from disclosure documents which record the deliberations of decision of Cabinet, documents prepared for submission to Cabinet, documents prepared for the purposes of briefing a Minister about submissions to cabinet and other like documents.

7. I have heard the evidence of Mr Corney in relation to these documents and have perused the documents themselves. I accept Mr Corney's evidence. In addition it is abundantly clear from the content of the documents themselves that they fall squarely within the exemption. In relation to those documents the respondent's exemption is upheld. Indeed it would be difficult to imagine a clearer instance of documents falling within the exemption provided in section 28. It is not necessary for me to consider Ms Hartley's submissions about drafts in relation to documents 2 and 3 because it is clear from the face of each document that each clearly falls within the cabinet document description.

8. The next group of documents is constituted by documents numbered 4, 5, 7, 12, 14 and 15. Exemption is claimed for each of them pursuant to the provisions of section 30(1) of the Act, the internal working documents provision.

(1) 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 opinion, advice or recommendation prepared by an officer of 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

10. Document 4 is an undated document headed Draft, Industrial Relations Victoria and document 5 bears an identical heading. Paragraph 3 of Mr Foster's written statement set out that the documents were "drafts expressing views or recommendation in the development of the structure and arrangement to underpin it within Industrial Relations Victoria. These documents discuss the same subjects but at different stages. I was involved in their preparation and can say that both were drafts, and if released would be likely to mislead or be confusing because several items either did not proceed, or did not proceed in the same form as these documents outline. Further, as these documents are not dated it is confusing as to which came first even between the two, and neither accurately reflects the final structure or arrangements." Mr Foster told the Tribunal he was responsible for overseeing the compilation of these documents with appropriate input from other staff.

11. Document 7 is also undated. Mr Corney told the Tribunal it was a document written by him as part of the process of developing an organizational structure. He stated that it did not reflect the structures which ultimately emerged from the process.

12. Documents 12, 14 and 15 were the subject of evidence from Mr Neil Foster. In explaining the genesis of these three documents (documents 12, 14 and 15) he told the Tribunal that document 15 was the first in time, followed by document 14 and finally document 12. It was also pointed out to the Tribunal the final product (Exhibit 1) had been released in its entirety. The Tribunal was told that the three documents were all part of the process of formulating findings and recommendations following an organizational review of Industrial Relations Victoria and that they did not reflect the final structure adopted.

13. In its public interest contentions the respondent submitted that release of the draft documents would be likely to be misleading or confusing and unfair because they did not reflect the final arrangements adopted or implemented.

14. Counsel referred me to a decision of Deputy President Macnamara in Wilson v Department of Premier and Cabinet 18 December 2000 and to the cases set out at paragraph 18 of the Deputy President' s decision

15. I am satisfied that each of the six documents in question satisfies the requirement of section 30(1)(a) of the Act. I am equally satisfied that the release of each would be contrary to the public interest. In accepting the submission that release would be contrary to public interest I am following a long line of authority in this Tribunal that the release of documents reflecting possibilities considered but not eventually adopted is contrary to public interest as tending towards confusion.

16. Ms Hartley submitted that the exemption had not been made out because of what she saw as a fundamental failure by the respondent to balance the considerations between disclosure and non-disclosure. In particular she submitted that the respondent had failed to give proper consideration to the balance between, on the one hand, the public interest in persons having access to documents which concern them and, on the other hand the public interest in the efficiency and economical conduct of the agency. (See Hulls v Victorian Casino & Gaming Authority (1997) 12 VAR 484, 487.)

17. Certainly no evidence was led before me to suggest that the department contemplated the necessary balancing act but in this application de novo I think little turns on the argument. I say this because it is clear that the final product of the deliberative process has been released in full. It seems to me to be of no use at all to expose the initial thought processes, the initial drafts, the subsequent alterations and omissions, the ongoing corrections and the editorial gloss which evolved prior to finalisation when the end product of the deliberative process has been made available.

18. Documents numbered 10, 11 and 13 may be conveniently grouped together as each is a curriculum vitae. The applicable exemption is section 33(1) which provides -

(1) 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).

(9) In this section "information relating to the personal affairs of any person" includes information-

(a) that identifies any person or discloses their address or location; or

(b) from which any person's identity, address or location can reasonably be determined.

20. The Tribunal was informed that each of Messrs Ronald Luckman, John Stapleton and Peter Bruce was given notice of this application and advised of the procedure available to them under the relevant legislation. Mr Foster told the Tribunal that he had spoken with each of the three officers and each had informed him that he regarded the contents of the curriculum vitae as personal information and did not wish it to be released publicly. In the case of Mr Luckman he told Mr Foster he regarded the document as personal information "conveyed to the Respondent on a confidential basis." (Coincidentally I note that the resume of John Stapleton is marked "Confidential").

21. None of the three gentlemen appeared on the day of the hearing and none applied to intervene.

22. During cross-examination of Mr Foster, Ms Hartley asked a range of questions which elicited the information that-

* Mr Bruce was a former secretary of the Hospital Employees Federation No. 2 Branch;

* Mr Stapleton was formerly a national industrial officer with the Community and Public Sector Union; and

* Mr Luckman had formerly held some trade union position.

23. Although I have no evidence from the applicant I infer from the line of Ms Hartley's questioning that part of his rationale for seeking this documentation might be to ascertain whether or not the people concerned were suitable candidates for the non-executive position each now holds having regard to the important place occupied by the unit in the State's industrial relations hierarchy.

24. And that of course gives rise to a further inference that the applicant's interest and the purpose behind his request arises out of the importance of the strategic advice branch itself, the importance of the advice it offers government and the place it occupies in the industrial relations structure. Again I infer this from the questions asked by Ms Hartley and from the submissions she made to the Tribunal.

25. Inasmuch as he might have sought to establish the union connection of each applicant that fact is now in the public arena due to the evidence given by Mr Foster.

26. Deputy President Macnamara considered the release of curriculum vitae in Re Pinder and Medical Practitioners Board (1996) 10 VAR 75 and in so doing considered the point relating to an applicant's reason for seeking the document in question.. At p.90, prior to upholding the exemption regarding the document, he stated:

Finally I turn to the curriculum vitae. The authorities which I have already cited establish that this is personal information. Would its disclosure be unreasonable? In accordance with the formulation in Page's case, I consider the identity of the applicant and the purpose for which he seeks the information.

27. Page's case to which he referred was a decision of His Honour Judge Jones who was at the time the President of the forerunner of this Tribunal. (See Phillip Page v Metropolitan Transit Authority (1988) 2 VAR 243) At p.245 His Honour stated -

I first turn to the exemption claimed under s33(1) of the Act............What therefore has to be decided is whether disclosure of this information would be unreasonable. This requires a balancing of interests: the right to personal privacy of an individual whose personal affairs may be unreasonably disclosed by granting access to the information and the object of the Act to extend as far as possible the right of the community to access to information in the possession of the Government or Agencies: Penhalluriack v Department of Labour and Industry (County Cr, Lazarus J, 19 December 1983, p45, unreported); Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN 257 at 259. More particularly, this balancing of interests requires a consideration of all the circumstances, including the interest that the applicant has in the information in question, the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. It is apparent that the purpose of s 33(1) of the Act is to prevent the unreasonable invasion of the privacy of third parties: Chandra's case (supra).

28. I have no evidence from the applicant which would throw light on the interest he has in the information. As I pointed out earlier I inferred from the thrust of cross-examination that the applicant was anxious to ascertain whether each of the three had union affiliations and if that is the case (and I stress it is only my inference) then the evidence of Mr Foster has satisfied that enquiry. Equally I infer he had an interest in the proper processes of public sector employment.

29. Although none of the three people whose curriculum is being sought intervened in these proceedings I accept that none of them consented to release. Although no direct evidence was adduced before me I think it highly likely that ordinary members of the community would experience considerable disquiet if it were thought that applications for employment and supporting documentation might be the subject of public scrutiny. Indeed it seems to me quite likely that particular applicants would expect that the only disclosure of material contained in employment applications would be restricted to the checking of referee details with the consent of an applicant.

30. Insofar as I am obliged to consider the circumstances in which the information was obtained, as far as I am aware each of the gentleman concerned applied for their respective positions through the normal public sector channels following the normal advertising procedure. There is no evidence before me to suggest the contrary. The nature of the information to be disclosed consists, in each case, of personal details (name, address, telephone), lengthy employment history, and educational background and in some cases referees, hobbies and memberships.

31. On the issue of whether or not the information has any current relevance, there is no evidence before me to convince me that these documents (now almost a year old) have any particular pertinence such as would make disclosure essential.

32. The balance of the countervailing interests ( that is the individual's right to privacy set off against the community's right of access to government held information) which might flow from the above does not to my mind give rise to any mandate for disclosure. I am of the view that disclosure would in this instance be an unreasonable invasion of the privacy of the three applicants in question. The exemption is made out.

33. That leaves for consideration the document referred to as Document B which has been released in part. The document has been described as a "letter from Geoff Fary, Executive Director, Industrial Relations Victoria to Neil Foster, Reefton Management Services." The letter is a contractual document from which the hourly rate of remuneration has been deleted.

34. The document represents an agreement between Mr Foster and the department in relation to consultancy services to be provided. This pre-dated Mr Foster's ultimate appointment to the position he now holds. He told the Tribunal he did not wish his hourly rate to be released for competitive reasons and because it would make it difficult for him to negotiate fees. He confirmed that, in his present position, he did not have the right of private practice and that he would have no other income during his term as director of the Strategic Advice Branch. He took up that position in December 2000 and his term of employment is for five years.

35. I asked Mr Foster about the reporting requirements in relation to office consultancies and he seemed to have no knowledge of them. Although the evidence was not before me I note from one of the departmental websites that the Minister for Finance has given directions in relation to the disclosure of consultancies in annual accounts and these directions appear to have effect right across government. The thrust of the directions is one of accountability and transparency. However it would be fair to infer that this particular contract would not have merited singling account but would have been part of a global disclosure involving numbers of consultancies and total amounts contracted limited to contracts worth less than $100,000.

36. Notwithstanding the effect of the Minister's directions I am not convinced that disclosure of the hourly rate would be unreasonable in the circumstances of this case. The contractual arrangement came to an end no later than December last year, the applicant is not permitted to embark on private work while he holds his present position, and in those circumstances the argument about competitive disadvantage is firmly negated.

37. Ms Hartley submitted that the personal affairs exemption had no part to play here because the ultimate supplier of the services was a company to which the personal affairs exemption could not attach. However I have come to the view that the exemption is not made out and it is thus not necessary for me to consider that point.

1. The determination of the respondent made on 1 November 2000 is affirmed except for Document B.

2. Within 28 days from today Document B is to be released in its entirety.

Information Act 1982

Birrell v Dept State Dev [2001] VCAT 1258

At a glance

Court

Decision date

Source

Judgment (66 paragraphs)

Birrell v Dept State Dev [2001] VCAT 1258 (30 June 2001)

Parties

Legislation Cited (1)