the Applicant's interest in access to these documents is a public interest;
2. disclosure of the documents identified will promote that public interest; and
[2]
I may only use the power contained in section 50(4) if the public interest requires disclosure of the documents. I can only come to this conclusion after weighing up the competing public interest in non-disclosure of the documents sought to be protected.
In this case, I am satisfied that the Applicant's interest in disclosure of the documents is a public interest. It is not a document of merely personal significance. It is not merely a document in which the public may be interested. The appropriate funding of such a major item of transport upgrade is in a different category than simply a matter in which the public might have a curious interest. It is not just a matter which has received publicity and is the subject of prurient public interest. It concerns the heart or hub of Melbourne's road transport system. In my view, it is appropriately described as a matter of public interest to the people of Victoria, not just a matter in which the people of Victoria might be interested.
It is not, however, as clear that disclosure of the documents will promote the public interest. Lack of access to the documents described does not appear to me to impede the public's ability to debate the merits of this transaction. The final deed is publicly available. The full extent of the works covered by the deed is also fully available. All of the matters referred to by me in these reasons are publicly known. There is nothing to prevent such a debate being commenced now. If the transaction is to the disadvantage of the people of Victoria, that fact can be ascertained by the documents which are already disclosed.
Further, I have no evidence that the agreement entered into was in any way to the disadvantage of the people of Victoria. It is true that a theoretical future entitlement of $2.9 billion over years has been converted to a present entitlement of $610 million. However, no calculations were provided to establish that this was less than the appropriate actuarial calculation. I am certainly not in a position to make even a tentative finding that the transaction was unwise or in any way to the disadvantage of the people of Victoria.
The Applicant says that release of these documents will allow a debate to commence as to these issues. However, as I have said, in my view the debate could be commenced without the documents.
Further, a decision to refuse access will not mean that the transaction will go unchallenged. There are statutory procedures in place to ensure that major decisions such as this are subject to independent scrutiny. The Auditor-General is to review the transaction.
Most importantly, I must be satisfied, not only that it is in the public interest that the documents be released, but that the public interest requires release. This puts a very high bar to access.
In Osland, reference was made to the inappropriateness of taking into account "abstract policy considerations, such as the desirability of greater transparency in decision-making by the executive".
I have found each of the documents in contest to be exempt documents. I have identified the strong public interest grounds for the exemptions which apply to each such document.
In my view, the matters put forward by the Applicant, to establish that the public interest requires disclosure of the documents sought, are not sufficient to displace the clear public interest in upholding the various grounds of exemption claimed for all of the documents under review.
[3]
THE PUBLIC INTEREST OVERRIDE - THE ROTHSCHILD ISSUE
[4]
There was a further issue in relation to document 9. This was described as an email from Rothschild to the Department of Treasury and Finance, dated 12 January 2006.
The circumstances under which Rothschild came to be appointed as adviser to the Department on the refinancing, and the question of whether there was a conflict of interest in that appointment, were of great concern to the Applicant.
The Applicant submitted that it was in the public interest that the circumstances of appointment of Rothschild be explored. This was because this financial transaction was very important for the State of Victoria. There appeared to have been no tender process. Further, it was said that there was an apparent conflict of interest in Rothschild being engaged to advise on Transurban. This was because Rothschild had been part of a consortium which had lent a total of $20 million to Transurban's Sydney operations.
The Respondent's evidence was that there was in fact no conflict of interest and the sum involved had been repaid before the advice was given. Further, it was said that no conflict arose as the amount was due to a consortium in which Rothschild was merely an investor. The witness Fitzgerald attested to the regularity of the appointment of Rothschild. His witness statement reads at paragraph 47:-
[5]
"I confirm that, in accepting the engagement to advise the State in relation to the concession notes, Rothschild confirmed that it had no conflict of interest in undertaking the assignment. In addition, the Department was satisfied with the quality and independence of the advice received."
[6]
The clarity and certainty of this assertion was undermined by Mr Fitzgerald's evidence in the witness box. He told me that he thought (but did not appear certain) that Rothschild was on an internal panel of firms engaged to do Treasury and Finance work. He had no idea whether or not Rothschild had confirmed that it had no conflict of interest in undertaking this assignment. All he could say was that he expected he would have been told if there was a conflict. He did not know what steps, if any, had been taken in this case to ascertain if there had been a conflict. He could not say how it had come about that the Department satisfied itself about the quality and independence of the advice received from Rothschild.
Mr Fitzgerald's evidence was most unsatisfactory. However, if the request for these emails is based upon a wish to explore the question of conflict of interest, it is misconceived. The email which is the subject of this application will not throw any light on that topic at all.
This application does not concern a request for access to documents to do with the appointment of Rothschild, or for any evidence of conflict of interest on the part of Rothschild. If such an application had been before me, and if the evidence had pointed to a cover-up by the Department of a flagrant conflict, then the position may well be different.
In the circumstances, the application for access to document 9 is refused.
Accordingly, the application is refused in respect of all documents under review.
Parties
Applicant/Plaintiff:
Dalla Riva
Respondent/Defendant:
Department of Treasury and Finance
Cases Cited (1)
Dalla Riva v Department of Treasury and Finance (General) [2007] VCAT 1301 (25 July 2007)