2. Twenty-eight days from this day access is granted to Documents 1, 5 and 6 described in the respondent's schedule of exempt documents.

3. The respondent's determination is otherwise affirmed.

For the Applicant: Dr Emerton instructed by Mark Harris

For the Respondent: Mr Hayes, Maddock Lonie and Chisholm

1. For some 24 years from 1974 to 1998 Mr Byrne managed the municipal swimming pool at Robinvale. He and his sister, Mrs Harris (both of whom gave evidence) said that Mr Byrne had a unique relationship with the community as a whole and its children, in particular with the Koori community and Koori children.

2. Mr Phillip E. McDonald was appointed Technical Support Manager of the Swan Hill Rural City in June 1997. Until 30 June 1999 he was responsible for contract supervision, recreational and technical aspects of the city's municipal pools. There are four municipal pools in the city situated at Swan Hill, Robinvale, Nyah and Manangatang. Mr McDonald said that upon taking up his appointment he discovered that there seemed to be no proper capital works program or maintenance program for the pools. Mr Byrne says that during his time managing the Robinvale Pool, only two substantial capital works were undertaken, namely:

In all other situations Mr Byrne repaired any equipment failures that occurred if they were within his expertise or else sought assistance from Council's Engineering Department.

3. In November 1997 the Council commissioned MRW Pty Ltd, an expert in pool construction and management to develop a five year capital works program and a five year maintenance schedule for each of the four pools including maintenance. The report was prepared by a Mr Male on behalf of MRW. It seems that he and Mr Byrne did not get along. Mr Byrne's view was that Mr Male made dogmatic assertions on a number of matters which he (Mr Byrne) was able to show were erroneous. Mr Byrne said that Mr Male resented being "shown up".

4. A very comprehensive report was prepared by MRW which Mr McDonald believed was very good value for money. It included proposals for a capital investment program and a maintenance program as requested. The Robinvale pool is 40 years old. Perhaps not unsurprisingly given the lack of capital investment and regular maintenance, the MRW report found it be in poor condition. The MRW report was also directly or indirectly very critical of Mr Byrne's management. At page 6 of Section 1 "Facility Review for the Robinvale Pool" MRW reported:

"The test results indicate that the pool water is in a corrosive balance and that there are problems with the dosing equipment.

It is extremely important that all pools be maintained well within Health Department regulations.

There has been a clear indication across all pools, so far, that there is a very distinct lack of training and understanding in the operation and management of swimming pools, especially water chemistry and safety."

"The kiosk acts as the administration and supervision area for this facility, with the control and safety observation of the pools being conducted via the facility's PA system. Not a recommended practice."

"There are no safety provisions in place at the Robinvale Pool."

"My overall opinion of the Robinvale Pool is that it is not a safe environment for aquatic activities.

The physical structure of plant and equipment is in very bad state of repair, to the point that it is probably not economical to repair.

Lake (sic) of on-deck pool supervision or life guard services.

There are hoses lying all over the ground, uneven concrete, rubbish lying everywhere, lawns were cut four days ago and the clippings are still lying on the paths etc. It is just not an inviting atmosphere at all."

8. The report suggested that Council "should consider closing this facility and minimising there (sic) liability". In Section 5 on maintenance, the report concludes:

"The Robinvale Swimming Pool is now past the point of economical return, until decisions are made for the future of this facility, a cyclic and preventive maintenance program would be difficult to put in place."

9. Whilst repairs were costed at some $630,000 construction of a new pool was costed at $620,000. Whilst these investigations were going on a proposal to construct a multi-function facility which could be used for instance as a basketball court was under consideration. This was costed at approximately $1.2M and Mr Male obtained the assistance of a firm of architects to prepare a concept plan for such a facility.

10. Mr Byrne did not receive a copy of the MRW report for some many months. Other pool operators received a copy and it was only when the operator of the pool at Manangatang told Mr Byrne's sister Mrs Harris, that the report had been published that Mr Byrne sought a copy. Mr McDonald says it was an oversight which Council regrets that Mr Byrne was not furnished with a copy of the report at the same time as it was made available to other pool operators. Mr Byrne feels that he was defamed in the report and that the criticisms direct or implicit of him and his management contained therein are unjustified. Since he has become aware of the contents of the report he has, by means of a lengthy course of correspondence and face to face meetings with Councillors and Council Officers, been demanding an apology both from the City and from Mr Male. As yet no such apology has been forthcoming from either quarter, though an individual Councillor offered a personal apology.

11. Mr Byrne's management of the Robinvale pool was pursuant to a lease expiring 30 September 1998. The Council had been dissatisfied with the performance of the operator of the Swan Hill Pool and had sought to terminate his management in 1997. There was legal uncertainty as to the expiry date for his lease and Council ultimately concluded that the lease ran until 1998. As a result, the management arrangements for both the Swan Hill and Robinvale Pools both fell out in 1998. According to Mr McDonald "on the basis that the leases on the two pools were due to expire during 1998 and the MRW Report had demonstrated to [the Council] how the pools might be revitalised, the [Council] decided to conduct a single tender process in respect of the operation of these pools".

12. As a result tenders were invited to be lodged with Council by 4.00 p.m., 13 August 1998. A pre-tender briefing was conducted on 27 July 1998. The contract was designated No. 98 6770 for the management and operation of the Swan Hill and Robinvale Swimming Pools. Mr Byrne had neither the interest nor the resources to manage the Swan Hill Pool. He enquired of Mr McDonald whether in the circumstances he was entitled to lodge a non-conforming bid seeking management rights solely for the Robinvale Pool. Mr McDonald told him that the tender conditions empowered Council to consider non-conforming tenders and in so far as Mr Byrne's proposed tender would not cover the Swan Hill Pool it would be non-conforming.

13. Tenders were received from five contractors: MRW Australia Pty Ltd, including three options, one conforming and two non-conforming; RANS Management Pty Ltd; Leisure Management and Marketing (LMM); Dales Aquatic Management Pty Ltd and Mr Byrne.

14. The tender specifications provided for assessment of tenders under some five headings:

1. Experience and Proven Performance (weighted at 20%);

4. Management Methodology and Resources (weighted at 30%); and

15. A tender evaluation panel was established headed by Mr McDonald and including Mr Peter Cuddy. The Panel only proceeded to consider those contractors whose tenders scored not less than 35% under the first four headings which constituted a qualitative assessment of the bids. Two of the tenders, namely LMM and MRW were interviewed by the Panel. According to a report to a meeting of Council held 8 September 1998:

"Two tenderers Dales Aquatic Management and Bernie Byrne did not achieve the minimum score of 35% and were not considered any further.

Of the three remaining tenderers, the tender submitted by RANS was not considered to be Swan Hill/Robinvale specific and therefore is not considered any further.

The remaining two tenderers, MRW and LWW [scil LMM], were interviewed by the evaluation panel. Items covered at the interview included use of water slide, performance of contract, ideals on reducing tender price, including possible fee increases and reduction in operating hours and period, customer service, consultation and complaints, innovation and improvement, operational contingency plans and the use of present Robinvale Pool contractor.

Following the interviews, the evaluation panel was clearly of the view that LMM is the preferred tenderer."

16. Council resolved to select LMM as the preferred tenderer and to authorise the evaluation panel to negotiate price and other issues with LMM. The LMM tender priced a lump sum of $106,400 for Swan Hill and $36,600 for Robinvale.

17. Detailed contractual negotiations ensued. On 10 November 1998 Council resolved to confirm the decision to award contract No. 98 6770 to the management and operation of the Swan Hill and Robinvale Swimming Pools to Leisure Management and Marketing for the sum of $77,970 for Swan Hill and $28,828 for Robinvale. The reduction in tender price was achieved by a re-negotiation which entailed cutting the hours which the pools would be open and the days upon which they would be open.

18. Mr Byrne says that he became aware that LMM was selected as preferred tenderer only as a result of receiving a job offer from LMM and seeing an advertisement for employees at the pool placed by LMM in the Robinvale Sentinel, on 24 September 1998. His sister Mrs Harris, organised a petition apparently signed by 1,225 signatories in the Robinvale/Euston area which stated:

"As residents of the Robinvale area we state that Bernie and Elaine Byrne have our full confidence in their running of our pool.

We object to the lease of our pool being given to an out of town company and we deplore the methods by which it was given."

19. The issue received substantial coverage in the local press.

20. Mr Byrne said that he was led to pursue a freedom of information request when no apology was forthcoming either from Mr Male at MRW or from the Council. He made a request dated 20 January 1999 seeking a number of documents relevant to the tendering process for the contract for the Robinvale Swimming Pool in 1998. It is unnecessary to quote the request. A number of documents has been released. Six remain in dispute.

21. A Ms Bell, a Director of Sports Australia Leisure Management Pty Ltd which trades as LMM appeared at the hearing and sought an order that her company be joined as a party to the proceeding to enable her to make a statement on its behalf. She said that she did not seek to call any evidence or cross-examine any witnesses. I acceded to the application and joined her company as a party pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998. She made a statement from the bar table which was neither on oath nor subject to cross-examination.

22. The respondent relies upon exemptions created by Section 34(1)(b), Section 34(4) and Section 30(1) of the Freedom of Information Act 1982.

23. I deal first with the exemptions claimed under Section 34. Section 34 has been substantially amended by the Freedom of Information (Miscellaneous Amendments) Act 1999. That amending statute commenced on 1 January 2000 (see Section 2). Since the request for access and the internal review of the refusal to grant access both took place before that commencement date, according to the general principles against giving retrospective effect to substantive enactments, this proceeding would be governed by the Freedom of Information Act in the form in which it existed at the time the request was made; but the amending Act inserted a transitional Section 68 which by sub-section (5) applies the amended provisions to any freedom of information proceeding commenced in the Tribunal before 1 January 2000 so long as the application had not been finally determined before 1 January. Therefore, this proceeding must be determined according to the Freedom of Information Act as amended by the 1999 statute. Sub-section (1) of Section 34 now reads:

"(1) A document is an exempt document if its disclosure under this Act would disclose information acquired by an agency or a Minister from a business, commercial or financial undertaking and the information relates to--

(b) other matters of a business, commercial or financial nature and the disclosure of the information would be likely to expose the undertaking unreasonably to disadvantage."

24. The sub-section in its previous form had been considered many times by the Administrative Appeals Tribunal and this Tribunal and also by the Supreme Court. It was sufficient to make out the exemption under the previous provision if release would disclose information acquired by an agency from a business, commercial or financial undertaking and either:

(a) The information related to trade secrets or other matters of a business, commercial or financial nature; or

(b) The disclosure of the information would be likely to expose the undertaking to disadvantage.

25. In Gill v Department of Industry, Technology and Resources [1987] VicRp 58; [1987] VR 681, the Full Court of the Supreme Court held that the word "or" bore its usual disjunctive meaning, so that information acquired by an agency from a business undertaking was protected from disclosure so long as it could be proven that the information was of a business, commercial or financial nature. It was unnecessary to prove in addition that release of the information would expose the undertaking to any disadvantage. In Accident Compensation Commission v Croom [1991] VicRp 72; [1991] 2 VR 322, 330 O'Bryan J. said that the exemption was made out only with respect to "information of what could be regarded as a sensitive kind from the perspective of the undertaking".

26. It will be seen that the new provision requires not only that the information be of a business or commercial character but also that its release would expose the undertaking not just to some disadvantage but to unreasonable disadvantage.

27. It was not disputed that the tenders LMM and MRW were to be regarded as business, commercial or financial undertakings, nor was it suggested that in so far as the documents emanated from those companies that they were of a business, commercial or financial character. It was not suggested, as I understood it, that the documents include "trade secrets". The expression "trade secrets" has a particular legal meaning. See Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VicRp 7; [1967] VR 37. The expression does not include every piece of commercially sensitive information.

28. Again, it was not disputed that to the extent that the documents, apart from Document 6, contained information of the relevant kind, that that information was "acquired" by the Council from the respective tenderer who lodged the document. The Administrative Appeals Tribunal in decisions relating to the old Section 34(1) has accepted that the release of tender documents would entail the disclosure of information of a business, commercial or financial nature acquired by the relevant agency from a commercial or financial undertaking. See Thwaites v Metropolitan Ambulance Service (1996) 9 VAR 427; Marple v Department of Agriculture (1995) 9 VAR 29.

29. Dr Emerton who appeared on behalf of the applicant, submitted that in judging whether a business undertaking was being subjected to "unreasonable" disadvantage, the Tribunal should be guided by the meaning accorded to a similar phrase in Section 33(1) of the Freedom of Information Act which renders exempt a document whose release "would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person)". She relied upon a decision of Judge Jones, then President of the Administrative Appeals Tribunal in the matter of Page v Metropolitan Transit Authority (1988) 2 VAR 243, 245-6. His Honour said:

"[the question of] whether disclosure of ... information would be unreasonable ... requires a balancing of interest: the interest 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 agency ... more particularly, the balancing of interest 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 being 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."

30. Mr Hayes who appeared on behalf of the Council, did not dispute Dr Emerton's submission. In my view, Judge Jones' analysis in Page's case is a valuable guide which should inform the application of the exemption under Section 34(1)(b), with one reservation. Sub-section (2) of Section 33 provides that the exemption does not apply "in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person". That is, the exemption cannot be asserted against the individual whose personal affairs are canvassed in the document. It is for this reason presumably that His Honour Judge Jones in his formulation departed from the usual principle that in freedom of information matters the identity of the applicant is irrelevant. Release to one applicant amounts to release to all; but because of Section 33(2) that principle does not apply with its full force in relation to the Section 33 exemption. There is no counterpart to Section 33(2) in relation to Section 34. On the other hand, it would be bizarre if the very business undertaking whose information appeared in a document to which it sought access had the Section 34(1)(b) exemption taken against it. I believe I should proceed with regard to Section 34(1)(b) at least for the purposes of this proceeding upon the footing that release to one person is release to all and therefore put to one side the issue of the interest that Mr Byrne might or might not have in this matter.

31. Section 34(4) as amended is inter alia in the following terms:

(ii) in the case of an agency engaged in trade or commerce--information of a business, commercial or financial nature--

that would if disclosed under this Act be likely to expose the agency unreasonably to disadvantage; ..."

32. As previously noted it is not contended that any of the documents in dispute here contain trade secrets. The amendment affected to Section 34(4) by the Freedom of Information (Miscellaneous Amendments) Act 1999 was the addition of the word "unreasonably". Subject to the comments that I made in relation to Section 34(1)(b), the analysis adopted by Judge Jones in Page's case seems equally applicable to the word "unreasonably" in Section 34(4)(a). To rely upon this exemption Council must demonstrate amongst other things that it is "engaged in trade or commerce". Mr Hayes on behalf of the Council submitted that Council's activity in letting tenders in accordance with the compulsory competitive tendering requirements of the Local Government Act 1989 meant that it was engaged in trade and commerce. Mr McDonald the Council's principal witness, said that the compulsory competitive tendering process which was a policy adopted by the previous coalition Government is no longer in force. For reasons which I gave in Marple v Department of Agriculture (1995) 9 VAR 29, 47-8 the question as to whether an agency is engaged in trade and commerce should be judged as at the date of the freedom of information request. The request was lodged by the applicant on 20 January 1999 before the change of Government. In Holbrook v Department of Natural Resources and Environment (1997) 13 VAR 1, 8-9 I held that the Department was engaged in trade and commerce in so far as it was entering into concession agreements in relation to crown reserves such as six former Commonwealth lighthouse sites. It seemed to me that entering into those concession arrangements bore an analogy with the sale of a capital asset. In J.S. McMillan Pty Ltd v The Commonwealth (1997) 147 ALR 419, 435, Emett J. held that the sale of the assets of a business may be activity in trade and commerce. It seems to me that the management arrangements which Council enters into with respect to its municipal swimming pools which charge for admission could be regarded as analogous to the concessions agreements in Holbrook's case and therefore Council could be regarded as engaged in trade and commerce. Once again, for reasons which I gave in Marple's case, there seems to be no reason why an agency ought not to be regarded as engaged in trade and commerce even if the trade and commerce is purely incidental to its wider activities (1995) 9 VAR 29, 46. In the circumstances I accept that at the relevant time Council was engaged in trade or commerce.

33. The final exemption relied upon was Section 30(1) which is headed "Internal Working Documents", a description which commentators have observed does not do full justice to the scope of the exemption. Section 30 of the Freedom of Information Act states inter alia:

"(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 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

34. It will be seen that the exemption requires proof of two things. First, that the document be shown to fall within paragraph (a) in broad terms to be an "internal working document" and secondly, to show that its release would be contrary to the public interest. Merely to demonstrate that the document falls within the description in paragraph (a) does not, without more, prove that release would be contrary to public interest.

35. Dr Emerton on behalf of the applicant submitted that a document will not be covered by the Section 30(1) exemption unless to adapt the words used by Judge Rowlands in Coleman v Director General Local Government Department Pentland it forms part of the "creative debate which comprises part of the Governmental decision - making process" (1985) 1 VAR 9. In Coleman's case Judge Rowlands was considering an application for access to the report of a local government inspector. His Honour concluded that the Minister for Local Government accepted the report and there was no reason to believe that any other factors were brought to his attention or acted upon his mind. He observed in rejecting the exemption claimed:

"I find it difficult to accept that a person in the position of the inspector writing his final and considered report after an investigation is involved in the creative debate which comprises part of the Government decision-making process, as that concept is understood in policy forming activities." (1985) 1 VAR 9, 11

Or to put it another way, the writing of the final report was the conclusion of the deliberative process, not part of the process.

36. Document 1 is the tender by the successful operator LMM. A substantial portion of that document is already in the public domain in so far as the tender price and the rates proposed to be charged were disclosed in reports placed before Council. Mr Hayes on behalf of the respondent conceded that there was no basis for maintaining an exemption with respect to any portion of the document which merely disclosed information which was already on the public record. The document consists of a covering letter, a tabular form which appears to be a schedule prepared by Council with certain particulars including scales of fees, tender rates, etc and so forth completed. Most sections which called for the more detailed information such as particulars as to experience, current contracts, previous experience and so forth, referred to an annexure, which is a full scale narrative presentation consisting of some 38 pages. The document is headed "Commercial In-confidence". Ms Bell in her statement on behalf of LMM said that it was desired to keep the whole of the tender documentation confidential. If this were not done, the concept of "commercial in-confidence" would be meaningless. She said that the entire presentation was in her company's view, its "intellectual property". The parts with which she was most particularly concerned were the statements of occupational health and safety policy and human resource management policy. There were also certain sensitive matters as to structure and reporting lines. Mr Hayes on behalf of the Council said that even parts of the document which to a cynical observer might appear to be marketing "flim flam" could in their terms indicate a particular marketing strategy which it would be disadvantageous for LMM to have disclosed to the rest of the world including its competitors. He gave a particular example of a marketing strategy which his firm, Maddock Lonie and Chisholm might use as a "pitch" in seeking work from local government councils. The example which he gave was to my mind a fairly obvious one. On the other hand it is not to be thought that in the course of a closing address on behalf of a client, he would reveal in open hearing any truly sensitive marketing strategy which his firm might be pursuing.

37. It is clear that a tender document by its very nature includes matters of a business, commercial or financial nature. So much is accepted in Marple's case and Holbrook's case and see Thwaites v Metropolitan Ambulance Service (1996) 9 VAR 427 and Gillespie v Metropolitan Parks and Waterways (unreported 27 March 1998).

38. The question is, is it demonstrated that release of this document would expose LMM to not only disadvantage but to unreasonable disadvantage.

39. In my view the covering letter is innocuous and discloses no sensitive information. The schedule or tabular section of the tender likewise, covers either non-sensitive information or material which is already on the public record. It is the 38 page narrative annexure that calls for careful consideration. In so far as the presentation describes the virtues of LMM in a general sense, it is self-serving marketing material. Whilst I acknowledge that I may not be fully attuned to the detection of a marketing strategy underlying such material, I detect nothing which is so arcane that its revelation to the world would disadvantage LMM.

40. I accept that the more detailed material such as that referred to by Ms Bell, has a certain sensitivity and uniqueness such that LMM would be disadvantaged by its release. Nevertheless, I am not satisfied that in the circumstances this disadvantage would be unreasonable. As Judge Jones observed in Page's case, one must consider all circumstances in determining whether a revelation would be "unreasonable". The Robinvale and Swan Hill Municipal Pools are public facilities. Is it unreasonable for members of the public to be informed as to the precise manner in which the pool is to be operated? There is, one may think, a public interest in customers of the pool being aware of precisely what their Council was promised by way of operational performance to enable them to monitor whether the promises are matched by performance. Likewise, if important organisational material is placed before Council to convince it of the fitness of a tender to manage a public facility, does not the wider public and certainly the Council's ratepayers, have an interest in informing themselves as to the fitness of the operator of one of their public facilities? The revelation of this material as I have indicated, is disadvantageous to LMM. In the circumstances however, I do not believe that the revelation is unreasonable. Despite the designation of this presentation as "Commercial In-confidence" it was lodged in a tender process which specifically noted that application of the Freedom of Information Act. Ms Bell submitted that release of this material would create an unfortunate precedent. If Tribunal decisions are widely noted in Victoria's commercial community, that community would already have noted a number of high profile Tribunal decisions in which "commercial in-confidence" material in relation to privatisation arrangements has been revealed.

41. Revelation of this tender material constitutes a distinct departure from earlier decisions, especially Administrative Appeals Tribunal decisions such as Marple but that departure is necessitated by the evident and emphatic alteration of policy evident by Parliament's amendments carried in late 1999.

42. I do not uphold the exemption claimed under Section 34(1)(b).

43. Mr Hayes submitted that the document should nevertheless be held exempt under Section 34(4). Mr Hayes submitted that it has been recognised that "the inability of Government to ensure confidentiality in its business dealings would be the source of significant commercial disadvantage to it". He referred to Mildenhall v Department of Treasury (1994) 7 VAR 342, 374-5; Marple v Department of Agriculture (1995) 9 VAR 29 and Gillespie v Melbourne Parks and Waterways (unreported 27 March 1998). I accept that these decisions favour the view that a Government agency is disadvantaged by being unable to offer confidentiality to the business undertakings that it does business with. Nevertheless it would be a travesty if the narrowing of the Section 34(1)(b) exemption which Parliament has effected were thwarted by reliance on Section 34(4) in this manner. Moreover, Parliament has significantly narrowed the Section 34(4) exemption by rendering it subject to a "reasonableness" criterion which did not exist in the previous version of the exemption. I accept that there is a measure of disadvantage to Government agencies in not being able to offer a confidentiality. In the context of the policy evident in the 1999 Freedom of Information amendments that disadvantage is not to be regarded as unreasonable. In any event if one considers the evidence in the present proceeding, the disadvantage to the Council may be more theoretical than real. As I understood the evidence the two tenderers who received serious consideration by the Council tender evaluation team, were the successful tenderer LMM and MRW. Both of those companies have pool management as a major part of their businesses. It seems unlikely that companies in this line of business could simply refuse to deal with bodies subject to the Freedom of Information Act.

44. I do not uphold the exemption claimed under Section 34(4) with respect to Document 1.

45. Document 2 represents the material corresponding to Document 1 lodged by the unsuccessful tenderer MRW Australia Pty Ltd. All the same considerations as to the nature of Document 1 apply with equal force to Document 2. The same exemptions are claimed. Likewise I conclude that release of this information would disadvantage MRW. In my view however the disadvantage here would be unreasonable. MRW has dealt with the Council in the sense of lodging a tender. It has not had the advantage, at least with respect to pool management of deriving the fruits of a successful commercial relationship. It has not been appointed as pool manager and therefore the wider public and Swan Hill ratepayers do not have the same interest in its corporate structure and the promises which it made as they have in those pieces of information relative to the successful tenderer. In my view therefore, the disadvantage to which MRW would be exposed by release of Document 2 would be unreasonable and accordingly I uphold the exemption claimed under Section 34(1)(b). In the circumstances it is unnecessary for me to say anything as to the exemption claimed under Section 34(4).

46. Document 3 represents a response to questions posed by the tender evaluation panel in the course of its discussions with MRW. In my view the same considerations apply to this document as apply to Document 2. I uphold the exemption claimed under Section 34(1)(b). It is unnecessary for me to say anything as to the exemption claimed under Section 34(4). Document 4 represents a set of rate options proposed by MRW. This material has not been placed on the public record and the same considerations seem to apply to it as applied to the previous two documents. I uphold the exemption claimed under Section 34(1)(b) and say nothing as to the exemption claimed under Section 34(4).

47. Document 4 represents a set of options suggested by LMM for discussion with the tender evaluation panel. In my view, the same considerations apply to this document as apply to Document 1. Accordingly I do not uphold the exemptions claimed under Section 34(1)(b) or Section 34(4).

48. Document 5 is headed "Evaluation Criteria". It represents a "scoring" of the five tenders in accordance with the weighted criteria stipulated in the tender specifications. The exemption claimed is under Section 30(1). It was not disputed that the document could be regarded as opinion, recommendation and advice passing between officers of the Council, namely the tender evaluation panel. It appears that the scoring formed the basis for the submission of the Board's final reports to Council. Dr Emerton submitted that in the circumstances it represented a final outcome not a working document and not part of the deliberative process and hence outside Section 30(1) in the same way as the inspector's report in Coleman's case was. There is much to be said for this submission, however for the purposes of my decision I will assume contrary to the submission that the document is to be regarded as within the scope of Section 30(1)(a). I must next consider whether in accordance with Section 30(1)(b) it has been demonstrated that release of the document would be contrary to the public interest. In accordance with the directions given by the Tribunal, the Council filed a Statement of Public Interest Grounds. The public interest grounds relied upon with respect to Section 30 were as follows:

1. The public interest in ensuring that the respondent will continue to be reliably guided in its decision making on matters central to its statutory obligations by the frank input of senior officers.

2. The public interest in ensuring the respondent's capacity to discharge its vital statutory functions is not impeded by the unwillingness of senior officers or other officers of the respondent to commit their opinions and contributions to the respondent's deliberative processes to documentary form.

3. The public interest in ensuring that the respondent is able to draw on the contributions of senior officers as part of its policy formation process. The public interest in ensuring the respondent is not impeded from making appropriately informed policy decisions owing to the premature exposure of the consultative process.

49. In one way or another all of these grounds raised the "frankness and candour" argument. Acknowledging that there may be circumstances in which it is demonstrated that release of internal working documents will militate against frank and candid advice being tended by agency officers, Tribunals dealing with freedom of information matters have generally been sceptical on this point. Certainly Judge Rowlands expressed his scepticism in Coleman's case. Reference may also be made to sceptical remarks by Davies J. in Murtagh v Federal Commissioner of Taxation [1984] AATA 249; (1984) 54 ALR 313, 326 and in Howard v Treasurer of the Commonwealth [1985] AATA 100; (1985) 3 AAR 169, 177-8 and my own decision in Marple's case. In the present proceeding, as Mr Hayes conceded there was simply no evidence from any witness on behalf of the Council that release of this document would limit the frankness and candour of officers in the deliberative process. Mr McDonald said no such thing either in his written statement or in lengthy viva voce evidence. When I asked him specifically why the public interest told against release of this document, he said he felt that the document might be referred by competitors and by other councils and that it might influence their decisions. Mr Hayes submitted that this answer meant that the poor score of one or more tenders might be used by one of the tenderer's competitors to "bad mouth" the tenderer in the market. It is questionable whether this matter would in truth be a matter of public interest as distinct from a consideration of personal disadvantage or commercial disadvantage to the tenderer. In any event the argument lacks credibility in so far as the report to Council in September noted that two of the tenderers had failed to score 35 out of 70 as to their ability to perform. That fact is already on the public record. It would not have been put there if there was any serious apprehension about tenderers being "bad mouthed" in the market as to the marks which they scored. By way of submission Mr Hayes said that the frankness and candour argument did have credibility in the present circumstances because the officers involved lived in a small country community and might be required to meet the individuals who were "scored" on the score sheet. This might lead them to "pull their punches" if not assured of immunity from release of their working documents. This submission has a certain plausibility but is ultimately unconvincing. The tender evaluation panel did not feel obliged to "pull their punches" in the public report made to Council. They thereby demonstrated an ability to endure whatever odium was entailed and therefore there is no reason to think that they would pull their punches in internal working documents. More significantly if this had been a serious concern to Mr McDonald, the officer most immediately concerned, he would no doubt have said it and when given the opportunity he failed to do so. I reject the exemption claimed under Section 30(1) with respect to Document 5.

50. Section 50(4) permits all save a limited number of exemptions to be overridden by the Tribunal where the public interest require. Dr Emerton submitted that any exemptions which I sustained should be overridden pursuant to Section 50(4) of the Freedom of Information Act because:

"There is a compelling public interest in the release of the documents arising from the manner in which the tender process was conducted and the public disquiet which that caused."

51. As to the public disquiet, she relied upon the evidence of Mr Byrne and his sister Mrs Harris, the press coverage and the petition signed by 1,225 ratepayers. She said that the involvement of MRW in the preparation of a report shortly before the tender process - a report which was scathingly critical of one of the tenderers, Mr Byrne, created a perception of unfairness in the public mind. Mr McDonald conceded in cross-examination that certain parts of the tender specifications may have been taken from the MRW report and it was possible that the officer involved may have held discussions with Mr Male of MRW. The result then, she submitted, was to have one of the tenderers, namely MRW standing in judgment on the other. She said a full release of documents was required to clear the air. She relied upon the well known authorities such as DPP v Smith [1991] VicRp 6; [1991] 1 VR 63, 75; Easdown v DPP (No. 1) (1987) 2 VAR 102. She referred to Marples' case and Mildenhall v VicRoads (1996) 9 VAR 362 as instances where documents were released under the public interest override to "clear the air" of public disquiet relative to tender processes. Mr Byrne said that he believed that MRW worked "hand in hand" with the Council. He had to concede in answer to a question from me that the credibility of this view of events was somewhat undermined by MRW's failure to obtain the tender.

52. The public disquiet which the evidence of Mr Byrne and Mrs Harris demonstrated was concern that Mr Byrne had been unjustly treated and that the management of an important public facility in the town of Robinvale had been handed over to "out of towners". That was the gravamen of the petition. It is not obvious how that public disquiet will in any way be assuaged by releasing documents lodged by an unsuccessful tenderer. In both Mildenhall and Marple the public disquiet which it was thought appropriate to dispel by release arose where the party with the alleged inside running was the successful tenderer. Here, MRW the tenderer alleged to be sitting in judgment on the other tenderers failed to secure the contract. In my view there is no convincing public interest made out to override any of the exemptions which I have upheld.

BDOCUMENTS FOR WHICH EXEMPTION FROM DISCLOSURE IS CLAIMED PURSUANT TO THE FREEDOM OF INFORMATION ACT 1982

S.33(1)(a) & (b)

The document contains information relating to matters of a business, commercial or financial nature, the disclosure of which would be likely to expose the business undertaking to disadvantage.

S.33(1)(a) & (b)

The document contains information relating to matters of a business, commercial or financial nature, the disclosure of which would be likely to expose the business undertaking to disadvantage.

S.33(1)(a) & (b)

The document contains information relating to matters of a business, commercial or financial nature, the disclosure of which would be likely to expose the business undertaking to disadvantage.

S.33(1)(a) & (b)

The document contains information relating to matters of a business, commercial or financial nature, the disclosure of which would be likely to expose the business undertaking to disadvantage.

S.30(1)(a), S.34(1)(a) & (b)

(Respondent prepared to disclose with deletions under S.25)

The document contains information which is in the nature of opinion, advice or recommendation that has taken place between offices of the respondent for the purpose of the deliberative processes involved in the functions of the respondent the disclosure of which would be contrary to the public interest. The document contains information relating to matters of a business, commercial or financial nature, the disclosure of which would be likely to expose the business undertaking to disadvantage.

Sandy Bell, Finance Director, Leisure Management and Marketing

S.33(1)(a) & (b)

The document contains information relating to matters of a business, commercial or financial nature, the disclosure of which would be likely to expose the business undertaking to disadvantage.