Casey CC v Environment Protection Authority (General) [2010] VCAT 453

Twenty-eight days from this day access is granted to Documents 20 and 50 as listed in the respondent's Schedule of Exempt Documents subject to deletion of all personal information rendered exempt by Section 33 of the Freedom of Information Act 1982 and subject to the deletion of the following passages from Document 50 namely:

(a) The material following the first dot point on page 1

(b) The material following the seventh dot point on page 1

(c) The material following the twelfth dot point on page 1

(d) The material following the twenty-sixth dot point on page 2

(e) The material following the eighteenth dot point on page 3

(f) The material following the sixth dot point on page 5

(g) The material following the ninth dot point on page 5

(h) The material following the fourteenth dot point on page 5

Mr Attiwill of Counsel, instructed by Maddocks Solicitor for the Applicant

Ms Braun of Counsel, instructed by the Solicitor to the Environment Protection Authority

1. In 1992 the Environment Protection Authority of Victoria which is the agency of the State charged with protecting the State's environment issued a Works of Preview for the establishment of a land filled tip in Stevensons Road, Cranbourne. The tip commenced operation in 1996.
2. In April 2002 a developer sought a permit to subdivide Stage 10 of the Brookland Greens Estate which adjoined the tip. Casey City Council as the Responsible Authority under the Casey Planning Scheme imposed a condition applying a 500 metre buffer zone with the tip.
3. In May 2004 this Tribunal on Review directed the issue of a permit with a condition allowing development with a 200 metre buffer from the active tipping area.
4. The tip closed in 2005.
5. In 2007 methane gas from the tip was detected in a number of locations in the Estate including electrical pits and meter boxes.
6. In July 2008 the Environment Protection Authority commissioned an international panel of experts from Britain, Italy, Canada and the United States to consider mitigation options. It later publicised those international consultations.
7. On 9 September 2008 the agency wrote to the Country Fire Authority warning of an imminent danger to people and property. The following day the Country Fire Authority held emergency meetings which entailed evacuation of certain houses.
8. By 31 October 2008 it was judged safe for residents to remain in their homes and the immediate emergency had come to an end.
9. Needless to say these events caused extreme disquiet. Legal proceedings have been commenced by way of a class action promoted by a well known plaintiffs' law firm whereby residents of the Estate seek damages inter alia from Casey City Council. Casey, the applicant in this proceeding, has sought contribution or indemnity from the Environment Protection Authority which is the respondent in this proceeding.
10. On 15 September 2008 the Acting Premier wrote to the Ombudsman regarding the problems at Brookland Greens. The Ombudsman conducted an inquiry into the matter pursuant to Section 14 of the Ombudsman Act 1973. He published a report on his investigation into the methane gas leaks in October 2009. This report was critical of a number of the actions taken and not taken by various government authorities. The Ombudsman was critical amongst other things of the failure of an expert witness who gave evidence to the Tribunal to raise his concerns as to the explosive risk of migrating land fill gas. He was also critical of the Environment Protection Authority's failure to seek to be joined as a party to the hearing at this Tribunal.
11. Following these events Casey City Council, the applicant in this proceeding, sought access under the Freedom of Information Act 1982 to a range of documents from the Environment Protection Authority's records relevant to the Brookland Greens incident. A substantial volume of documents was released but the Authority has claimed exemption for the whole or substantial parts of others. The Council seeks to review the Authority's determinations not to release.
12. Following a process of sampling, the review application has come on for hearing before me with respect to two individual documents which stand as samples for two larger classes. The Council is not seeking access to any personal information claimed to be exempt under Section 33 of the Freedom of Information Act 1982

1. On 10 September 2008 in accordance with emergency management arrangements the Country Fire Authority advised residents of the Estate to evacuate their houses. The documents before me were brought into existence on that day or shortly thereafter.
2. The first of the documents which is a representative of what is described as 'Category 2 - Emails between EPA and overseas agencies (10 documents)' is designated Document 20 on the respondent's Schedule of Exempt Documents is constituted by a chain of emails mainly between 6 September and 12 September 2008. The last of short compass was transmitted on 2 October 2008. According to Mr Dawson who is the agency's Director of Environmental Services

The emails were initiated by EPA officers and requested advice and assistance regarding when the building should be evacuated, the procedures to be followed and the experiences encountered by, the UK Environment Agency during any community evacuation under similar circumstances posed by overseas landfill gas migration incidents as that being experienced at the time at Brookland Greens Estate.

Mr Dawson observed that the 'authors of UK Environment Agency emails clearly state that their advice is generic, as they cannot be more specific without a detailed knowledge of the Brookland Greens Estate area'.

1. The second document before me which is numbered 50 in the respondent's Schedule of Exempt Documents represents what is described as 'Category 12 - Internal documents containing details of internal meetings and meetings between groups consisting of EPA and other external government officers'. Mr Dawson said that these documents 'detail comments and opinions made during internal EPA staff meetings, with members of EPA executive staff predominantly in attendance'. The meetings were held on 15, 16, 17 and 18 September 2008 'which was shortly after the situation was escalated to a State emergency response'.
2. These notes include reports back from agency officers who were members of a veritable alphabet soup of groups and sub-groups formed as a part of the State's emergency management structure to deal with the Brookland Greens emergency. A flowchart of these bodies is to be found at page 237 at the foot of paragraph [1303] of the Ombudsman's report.
3. Mr Dawson said he did not know the identity of the author of this document. Whilst he attended most of the meetings at the time and probably attended the one recorded in Document 50 he was unaware of what use had been made of the document or how widely it had been distributed if at all within the Authority or outside it. He gave no suggestion that there had been any outside distribution.

1. The respondent claimed exemption with respect to Document 20 on the basis of Section 30(1) and Section 35(1) of the Freedom of Information Act 1982. Section 35(1) of that Act provides as follows:

35. Documents containing material obtained in confidence

(1) A document is an exempt document if its disclosure under this Act would divulge any information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister, and-

(a) the information would be exempt matter if it were generated by an agency or a Minister; or

(b) the disclosure of the information under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.

1. Some years ago I considered the meaning and operation of the exemption created by Section 35(1)(b). I take the liberty of quoting what I there said reviewing the leading authorities at the time.

In Ryder v Booth [1985] VicRp 86; [1985] VR 869 at 871, Young CJ said that the exemption created by s.35(1)(b) might be read as covering a situation where "the disclosure of the information so as to impair the ability of the agency to obtain similar information in the future". In Re Pepperell and Ministry of Housing & Construction (1989) 3 VAR 191 Mr Galvin considered the question in what circumstances information would be regarded for the purposes of the section as "having been communicated in confidence". He referred to an unreported decision of Judge Hassett given in the County Court in the matter of Deasey v Geschke and said:

"It would appear to be an arguable conclusion from His Honour's words that, in his view, in determining whether information was communicated in confidence, it is sufficient to have regard either to the intention of the author or the attitude of the recipient.

An actual understanding as to confidentiality on the part of the recipient would not appear to be essential."

"Where confidentially is apparent from the nature of the information, it would appear to be unnecessary to have regard to how the information was in fact received."

It would seem therefore that no formal confidentiality agreement is required to establish that information was communicated in confidence nor is it necessary to establish a "meeting of the minds". Conversely the mere fact that a letter is headed "private and confidential" is not sufficient in itself to establish that that communication was made in confidence, Re Barnes and Commissioner for Corporate Affairs (1985) 1 VAR 16 at 18.

As to the meaning of the word "impair" King J**,** as a Member of the Full Court in Ryder v Booth (at 885) adopted a definition from the Shorter Oxford Dictionary in the following terms: "to make worse, less valuable, or weaker; to lessen injuriously; to damage, injure.". As Gray J (at 880) noted in the same case: "The degree of impairment which must be shown to be a likely result is, in my opinion, a degree of impairment going beyond a trifling or minimal impairment." Young CJ said (at 872) it was not sufficient to prove the relevant impairment that there were feelings of resentment among those whose information was given in confidence:

at having the confidence arbitrarily destroyed by the operation of the legislation, but it is another thing altogether to say that they or others will not provide such information in future. It is not sufficient to show that some people may be inhibited from reporting so frankly if they know that their report may be disclosed. More is required to satisfy the onus case upon the agency by s.55(2) of the Act.

Thwaites v Department of Health and Community Services (1995) 8 VAR 361, 366.[1]

1. To make out the Section 35(1)(b) exemption the first thing which needs to be established is that the information in question was communicated in confidence. Ms Braun, Counsel for the respondent, submitted that these words should be given their ordinary meaning. She referred to Ryder v Booth [1985] VicRp 86; [1985] VR 869 per King J. She said

In the context of Section 35, "communicated in confidence", should be construed to mean that the giver of information did not expect that the information would be widely disseminated. It is submitted that it is open to the Tribunal on the evidence before it to infer that the information given was to be used within the strict perimeters (sic) within which it was viewed, in this case to officers of another agency in response to urgent and specific requests for advice and that "confidentiality" "communicated in confidence" in the context of the advice sought and provided in this category of documents are interrelated and intertwined. And cannot have "confidentiality" without implying some kind of "expectation of confidence".

It is submitted that the understanding of the party communicating the information in the circumstances surrounding the communication is sufficient in itself to infer that the communication is communicated in confidence.

She referred to Thwaites' case in the same passage quoted above. Mr Dawson in his statement said

As a general understanding that such kinds of communications between government agencies (including overseas agencies) would be protected and remain, if possible, confidential between the agency. ... The information contained in the documents has clearly been provided to EPA in a highly preliminary form that does not constitute a concluded view of either EPA or the overseas agency. If such communications are not protected then the ability of officers to obtain swift preliminary advice will be severely compromised.

1. Mr Attiwill on behalf of the applicant said it would have been easy enough for Mr Dawson to have specifically asked the officers of the UK Environment Agency who engaged in this email correspondence whether they objected to release; or if in transmitting the emails they had done so with an expectation of confidence or confidentiality.
2. I was not taken to any portion of the text which referred to the phrase 'in confidence'.
3. The Freedom of Information Act 1982 has been in force in Victoria for almost 30 years. Britain now has its own Freedom of Information legislation. The effect of these Statutes is that prima facie documents generated by government agencies are available to the public for perusal. It is difficult to understand therefore why officers in public authorities either in Victoria or in Britain would have an automatic assumption of confidentiality when they correspond with one another. I agree with Mr Attiwill that it would have been simple enough for Mr Dawson to have broached the matter directly with the officers of the UK agency and no explanation was given as to why this was not done. With some hesitation however I accept that there was a communication in confidence on this occasion.
4. The next question is whether it has been established that 'release would be quite likely to impair the ability of [the Authority] to obtain similar information in the future'. Mr Dawson said

These kinds of consultations are, in a sense, brainstorming and are engaged at very short notice. It is my belief that should officers within the UK agency be aware that their comments could be made public and potentially construed adversely or criticised, it would be very difficult for the EPA to obtain the kind of frankness and level of professional engagement from overseas agencies in future.

In Ryder v Booth the documents with which exemption was sought were medical reports to the State Superannuation Board. The Full Court accepted that medical reports given in the knowledge that they might be released under the Freedom of Information legislation might be less frank and candid. The court considered nevertheless that this was insufficient to make out the exemption. The passage quoted above from Young CJ encapsulates the court's view on this point. The principle passage in Mr Dawson's evidence apparently intended to make good this part of the exemption appears insufficient. In his viva voce evidence Mr Dawson said that overseas officers might consider their words more carefully so their responses might be slower or they might have to be given by word of mouth rather than in writing. Again as Mr Attiwill observed, it would have been easy enough for some evidence to be obtained on a hearsay basis from the officers of the United Kingdom agency either by virtue of Mr Dawson's speaking to one or more of them, or receiving an email response. No such evidence has been forthcoming. As Mr Dawson himself observed the advice from the UK agency was 'generic'. In cross examination he was taken to a passage which indicated that the British officers clearly had some knowledge of the Brookland Greens issue. In no sense however were they directly responsible for nor would whatever fragmentary knowledge they might have obtained through media report be sufficient to fix them with some sort of direct responsibility that was or was not happening in Brookland Greens. In those circumstances it is difficult to see why what was said in these emails transmitted in the circumstances in which they were could attract an adverse construction or attract criticism.

1. Mr Dawson then said that he would be embarrassed to ask overseas colleagues for their opinions and guidance if that advice might be disclosed. It is difficult not to regard this as a somewhat fanciful view of things. If as it seems to be the case the Brookland Greens incident was so notorious as to attract international media publicity the officers in Britain must have contemplated the possibility nay the likelihood that the incident would be the subject of some form of public inquiry. If they thought for a moment they would realise that such inquiry might consider what advice the Environment Protection Authority received from overseas given that upon the evidence before me the Authority was at pains to assure the Victorian public that it was acting on the basis of advice from world experts. The Ombudsman's report makes detailed reference to a whole host of sources which remained unclear whether this material actually came to the attention of the Ombudsman's inquiry but there must have been a substantial possibility that it would and that it would be quoted. All these sorts of eventualities I should have thought would 'go with the territory'. As Gray J said in Ryder v Booth the degree of impairment necessary to make up the exemption would have to be more than trifling if as Mr Dawson seemed to concede the same information would be given albeit over the telephone rather than by email, or perhaps it would arrive a little later. It is difficult to regard any such threatened impairment as more than trivial.
2. The exemption based on Section 35(1)(b) with respect to this document is not made out.
3. Exemption is also sought with respect to this material under Section 35(1)(a) upon the footing that were this material generated by the Environment Protection Authority as distinct from its UK counterpart it would be exempt under Section 30(1) of the Act. Section 30(1) is as follows:

(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

1. Presumably in this realm of 'deeming' both sides of the conversation taking place electronically would be deemed to be officers of the EPA. It is difficult in the circumstance not to accept on that supposition that the electronic discussion would be regarded as a consultation for the purpose of the deliberated processes of the agency. Ms Braun referred to Thomas v Department of Natural Resources & Environment [2002] VCAT 533 and Waterford v Department of the Treasury (No 2) [1984] AATA 67; (1984) 5 ALD 588, 606.
2. Satisfaction of the requirements of Section 30(1)(a) of the Act, however makes out only half of what is required for the exemption. It must in addition be demonstrated that release would be contrary to the public interest. Ms Braun submitted that sensitive tentatively expressed or unclear opinions create a situation where it is contrary to the public interest to release she referred to Thomas' case at [27]. She said

At the time the documents were created, data was still being accumulated and its relevance was not yet fully understood ... the information within the documents was part of a range of information sought and provided by various sources during the short consultation phase before the emergency was declared, and was not necessarily directly or exclusively relied upon by the EPA when making its final decision.

She said it is contrary to the public interest to release opinions that were reached on the one and had not been fully formulated. She referred to Mildenhall v Department of Education (1998) 14 VAR 87. She said disclosure of this material 'might result in confusion and ill-informed debate'. She referred to S_ecretary, Department of Justice v Osland_ [2007] VSCA 96; (2007) 95 ALD 380 [77] where she said the court recognised the preservation of confidentiality was one of the purposes of the Section 30(1) exemption.

1. A consideration of the responses supports Mr Dawson's view that they are 'generic'. The responses by and large do not express concluded opinions with regard to Brookland Greens. The language, as one might expect from professional environmental scientists, is sober rather than inflammatory. In the present case with the immediate emergency in the past and where this whole scenario is the subject of a detailed investigation and report by the Ombudsman I do not believe that release of this material would provoke unnecessary alarm and dismay. In my view it has not been demonstrated that this material would in the circumstances be regarded as exempt under Section 30(1) if it were generated with the Environment Protection Authority. Accordingly the exemption under Section 35(1)(a) is not made out.
2. Similarly assuming that the outward correspondence from the Authority could be regarded as falling within the description of Section 30(1)(a) I am not satisfied that its release would be contrary to the public interest. As Mr Attiwill observed the substance of the queries which were being put to the UK agency are disclosed in Mr Dawson's witness statement. He obviously perceived no difficulty in the nature of the query raised with the UK agency being disclosed and rightly if I may say so.
3. It follows that subject to any Section 33 exemption with regard to personal information no exemptions are made out with respect to Document 20.

1. The exemption claimed with respect to this document is under Section 30(1). I have already quoted the text of that exemption.
2. I turn first to a number of pages of the document which are a table headed 'Action Item'. These appear to be a record of the various steps which the crisis meetings determined should be taken within a nominated timeframe and an assignment of responsibility. It appears that other material of the very same type, has subject to the Section 33 exemption, been released to the Council already. I am doubtful as to whether these tables fall within Section 30(1) at all. Assuming without deciding that they do, the fact that the very same class of document has been released to this applicant and that no special feature has been identified in these 'Action Item' pages as distinct from the released Action Item pages it must follow that the public interest element of the Section 30(1) exemption has not been made out with respect to these pages.
3. As to the balance of the document which consists of pages purporting to record occurrences at meetings Ms Braun submitted they were not formal minutes but 'a subjective record'. She said they do not provide the full picture and there is difficulty in verifying the accuracy of the information. She said 'it is relevant that were the information to be widely disseminated, there would be little opportunity for the EPA to "correct the record" with respect to the information that cannot be verified in the first instance'. Mr Dawson in his evidence did not identify any particularly controversial passages or passages whose veracity might be open to doubt. On the contrary a perusal of the document indicates that it records precisely what one might have expected in the context of the narrative of the Brookland Greens which I have already given.
4. Mr Attiwill was again very critical of Mr Dawson for not making further efforts to identify the author and circulation of this document. He put it to Mr Dawson that had he, Mr Dawson, enquired of the freedom of information officer which file this document an investigation of who had custody of that file at the time might have provided a clue as to authorship and distribution. Mr Dawson said that such an enquiry could not be guaranteed to yield these answers. On the other hand he had in fact not made the enquiry. Mr Dawson said that the document recorded robust exchanges of opinion and tentative proposals which it would be contrary to the public interest to release. I invited him to identify the passages which had this character. With respect to Document 50 consisting aside from the 'Action Items' of some three pages he identified some eight items most of them being single 'bullet points' although a number of groups of 'sub-bullet points'. With respect to the balance of the document it appears to be relatively humdrum stuff. Viewing the particular passages which Mr Dawson identified I accept that the items in question entail the exploration of certain options and the expression of certain opinions which in the circumstances could be misleading.
5. Since there is no assurance that they represent the considered views of the Authority as distinct from the view held by a particular officer on a particular day it would be contrary to the public interest to present the exploration of these sorts of issues as a crisis developed for fear that a contemporary record could be misconstrued after the event. Release of this sort of material might tend to inhibit debate and also create a reluctance to record debate both of which would be contrary to the ideals of good government, good administration and good policy making. I accept that release of these passages of text would be contrary to the public interest. Accepting that this document is generated for the deliberative purposes of the Authority in the discharge of its function in my view the exemption under Section 30(1) is made out with respect to these passages.
6. What remains is relatively humdrum. It is a record of fact rather than opinion and recommendation. There was no public interest problem with its release.
7. The balance of the document therefore should be released subject of course to the Section 33 exemption with respect to personal affairs.

1. Whilst I have determined, that personal information apart, the bulk of these documents should be released insofar as I have upheld an exemption under Section 30(1) with respect to a limited portion of the document I have to consider whether the exemption ought to be overridden by virtue of Section 50(4) of the Freedom of Information Act 1982. That sub-section provides as follows:

(4) On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in Section 28, Section 29A, Section 31(3), or in Section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.

1. Section 50(4) of the Freedom of Information Act 1982 empowers the Tribunal to override all exemptions save for the cabinet exemptions and those relating to personal information in Section 33 where the public interest 'requires'.
2. With reference to the power of the Tribunal the Council filed a relatively lengthy statement of public interest ground. For completeness I set these out in full:

1. In the circumstances of this case, disclosure of the documents in dispute will advance the public interest as follows:

6.1 the Cranbourne and wider community has an interest in better understanding:

6.1.1 the adequacy of the supervision of the Landfill by the respondent following the discovery that landfill gas was migrating from the Landfill in May 2006;

6.1.2 the reasons for the decision by the respondent to recommend to the CFA that it declare an emergency at the Landfill in September 2008;

6.1.3 the level of risk that was actually present at the Landfill site both at the time that the declaration was made and in the period following the declaration of emergency and before it was lifted, particularly in light of the information broadcast in the media during the period; and

6.1.4 the amount available to the respondent for cleaning up the Landfill under the Financial Assurance.

6.2 the Cranbourne and wider community has an interest in knowing whether the public statements of the respondent about the level of risk accorded with its own:

6.3 disclosure will enable the public to evaluate the competing views of the applicant and respondent outlined in Part 5 of the Ombudsman's Report, and ensure that continuing public debate is informed and well founded;

6.4 disclosure will help to ensure that the community is as fully informed as is possible about the degree of care taken by government agencies when invoking an emergency, which will, in turn, help to:

6.4.1 alleviate resident concerns about the impact of the gas migration; and

6.4.2 address public disquiet over the actions of governmental agencies that were and are involved in agitating for an emergency to be declared at the Landfill site;

6.5 the public has an interest in knowing whether, in supervising the management of the Landfill after May 2006 and in providing advice to the CFA in September 2008:

6.5.1 the respondent, which is statutorily charged with protecting, caring for and improving the environment, discharged its functions in accordance with statutory obligations placed on it and otherwise in accordance with law; and

6.5.2 all persons engaged or employed by the respondent discharged their duties and functions in accordance with the statutory obligations placed on them and otherwise in accordance with law.

1. There may be much to be said for the view that once an exemption has within itself a public interest criterion the issue of where the public interest lies should be determined once and for all in considering that exemption and no further occasion arises to consider the public interest under Section 50(4). This was the approach of McDonald J in Newnham v Victoria Police Force (1997) 12 VAR 387. Whilst the Court of Appeal in the Osland litigation did not expressly confront this issue referred to in Newnham's case the court's approach might not be thought consistent with that analysis. Uninstructed by Newnham's case I would have thought that the public interest considerations that are raised by Section 30(1) relate to the integrity of the deliberative process of agencies and ministers but that wider public interest issues may be raised under Section 50(4). In the present proceeding, Section 50(4) was separately argued.
2. The public attention attracted by the Brookland Greens incident cannot be exaggerated. I put it to the parties that it was the largest environmental event in Victoria in the past decade. They did not disagree. This view is certainly clear if one excludes the Black Saturday Bushfires as 'environmental' events. Nevertheless the Full Court of Victoria over 20 years ago in the relatively early days of the Freedom of Information regime in Victoria said there was a key distinction between what was in the public interest and what the public was interested to know. Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63, 73 as I interpret the court's analysis the public interest mentioned in Section 50(4) refers to a benefit to the public not to the public's curiosity. I accept that the Brookland Greens issue is of such significance that the public is very curious to know every twist and turn of how events unfolded; but is there any particular public benefit in the release of the passages which I have found exempt? I must answer this in the knowledge that the entire incident has already been the subject of a careful review and report by the Ombudsman. It remains unclear whether the documents which are before me were considered by the Ombudsman or not. My impression is that they were not. Nevertheless I am not persuaded that release of these passages would bestow any public benefit by either making known some important part of the narrative which has remained hidden or by clearing the air in relation to controversies and fears. The exemptions should not be overridden.

[1] Corry v Victoria Police - FOI/Privacy Division [2010] VCAT 285, at [27].