Casey CC v Environment Protection Authority

[15]

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.
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.
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.
The tip closed in 2005.
In 2007 methane gas from the tip was detected in a number of locations in the Estate including electrical pits and meter boxes.
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.
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.
By 31 October 2008 it was judged safe for residents to remain in their homes and the immediate emergency had come to an end.
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.
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.
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.
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

[49]

The exemption claimed with respect to this document is under Section 30(1). I have already quoted the text of that exemption.
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.
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.
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.
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.
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.
The balance of the document therefore should be released subject of course to the Section 33 exemption with respect to personal affairs.

[67]

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.
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.

Casey CC v Environment Protection Authority - [2010] VCAT 453 - VCAT 2010 case summary — Zoe

At a glance

Court

Decision date

Source

Judgment (68 paragraphs)

Casey CC v Environment Protection Authority (General) [2010] VCAT 453 (16 April 2010)

Parties