Under section 51(2)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the respondent's 5 October 2020 decision is affirmed.

1. On 22 April 2020, the applicant, the Honourable David Davis MP ('Davis'), made an access request to the Department of Health (at the relevant time known as the Department of Health and Human Services - in these reasons referred to as 'the Department'). That application was made under the Freedom of Information Act 1982 (Vic) ('the FOI Act').
2. The request was for:

copies of any written communications, including emails, relating to the COVID-19 health emergency since 1 March 2020 to the date of receipt of this request, between the Chief Health Officer, Brett Sutton, and:

• The Premier, or the office of the Premier or

• The Minister for Health, or the office of the Minister for Health.

Where a discrete document does not exist, yet the information requested could be generated in the form of a report, I request the production of a document pursuant to s19 of the Act . . . ['the Request'].

1. The Department had not made a decision on the Request by late July 2020 and Davis made an application to the Tribunal seeking review of the deemed decision to refuse access (under section 53(1) of the FOI Act).
2. On 5 October 2020, an officer of the Department made a decision on the Request ('the Decision'). On 6 October 2020, the Tribunal made an order under section 53(5) of the FOI, that the application be treated as an application for review of the Decision.
3. In the Decision, the Department identified 42 documents which totalled 238 pages. The Department decided to release some documents in part and withheld others in full relying on a range of exemptions. By the time of the hearing before me, there were only three documents in dispute and the only exemption relied on was that contained in section 30 of the FOI Act, known as the working documents exemption.
4. After hearing evidence about the claimed exemption and having considered the written and oral submissions of the parties, I have decided to affirm the Decision.

1. The three documents in dispute are as follows (identified by the numbering applied when the Decision was made):
   • Document 18 - dated 1 March 2020 - Attachment to document 17 - 'Re: Draft COVID-19 Pandemic Plan' ('Draft Plan 1') - withheld in full
   • Document 35 - dated 14 March 2020 - email 'Re: Potential social distancing directives' ('the Potential Directives Email') - released in part
   • Document 39 - dated 1 March 2020 Attachment to Document 38 - 'Re: Draft Pandemic Plan' ('Draft Plan 2') - withheld in full
2. As is apparent from the above descriptions, Draft Plans 1 and 2 were sent by email. The covering emails (documents 17 and 38) were released in part and are no longer in dispute.
3. The Potential Directives Email (document 35) is an email from the Chief Health Officer, Adjunct Clinical Professor Sutton ('Sutton') to the then Minister for Health, Ms Jenny Mikakos MP ('Mikakos'). The redacted part of the Potential Directives Email is said to record preliminary thoughts relating to the document attached to the email (document 36) called 'Potential directives and related policy materials for social distancing measures in Victoria'. Document 36 has been released in full.

1. Section 30(1) of the FOI Act provides that a document will be exempt if it is a document the disclosure of which:

(a) would disclose matter in the nature of opinion, advice or recommendation prepared by an officer ... or consultation or deliberation that has taken place between officers ... 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. Section 30(3) says the exemption does not apply to a document by reason only of purely factual material contained in the document.
2. As summarised in the Department's written submissions,[1] it is well understood that the purpose of the exemption is to protect the deliberative processes of government and to ensure that policy and like decisions can be taken after the frankest possible interchange of views and ideas between officers of the public service, between those officers and the relevant Minister, as well as between members of the ministry. The public interest also includes an interest in the efficient and economical conduct of government, particularly at high levels of government and in relation to sensitive issues. The preservation of confidentiality is intended to promote the giving of full and frank advice.
3. Section 30(1)(a) will apply to 'opinion, advice or recommendation' prepared by an 'officer' or Minister in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the government.
4. There was no dispute that the Chief Health Officer (CHO) appointed by the Secretary of the Department under section 20 of the Public Health and Wellbeing Act 2008 (Vic) ('the PHW Act') falls within the meaning of the term 'officer'.
5. At the hearing, Davis made plain that he conceded that Draft Plans 1 and 2 were working documents in the sense referred to in section 30(1)(a) of the FOI Act. His written[2] and oral submissions were largely directed towards the public interest under section 30(1)(b). When making those submissions, amongst other things, he raised questions about the application of section 30 to draft documents. As a consequence I have referred to the nature of draft documents in the context of section 30(1)(a) in this part of the Reasons.

1. It is understood that, in order to fall within section 30, the relevant document is not required to itself contain the relevant advice. A draft document will often contain the expression of an opinion, advice or a recommendation. The sharing of a draft may be understood to constitute matter in the nature of 'consultation or deliberation' for the purposes of deliberation within section 30(1). The concept of the deliberative processes has a wide meaning and may extend to any of the processes of deliberation or consideration involved in the functions of the agency. It is often referred to as the 'thinking processes' engaged in prior to making a decision or course of action.
2. The Department relied on the following from Lambert v Vic Roads[3] ('Lambert') which concerned an access request for a draft of a report which was later finalised and made public. The draft (identified in that case as Document 8) was incomplete and contained some blanks. Senior Member Davis said (at [38] - [40]):

It is clear on the evidence that this document was prepared by Mr Mottram and his team as a working document in circumstances where it was intended there would be a final version at a later time. It is important that public servants have the opportunity of drafting their documents in order to both consider whether what they have stated is correct and to enable them to review a situation. Public servants should be allowed to do this type of drafting, in the knowledge that the document which they drafted would not be put in the public domain. It matters little that the final version of this document which was tendered into evidence and released to the public has a number of similarities with Document 8. The fact is that it is important that a freedom be given to a drafter of the documents to make as many drafts as he or she considers desirable in order to create what they consider to be the best finished product.

The fact that this document has a number of blanks, in my view, should not encourage it to be released, but the opposite. A reader reading a document with a number of blanks, is liable to become confused and gain the wrong impression of what the writer is actually trying to say.

I find it very difficult to understand how an incomplete draft document, such as Document 8 can, in any way, add in a positive way to public debate in general or, in this particular instance, as to whether Option 3 should have been accepted.

1. The Department also referred me to Judge Hampel's 2019 decision in Country Fire Authority v Lockyer[4] ('Lockyer'). At [36], her Honour said:

I start therefore with the general proposition that draft internal working documents or preliminary advices or opinions are inappropriate for release. The issues involved are sensitive and contentious and the passages in respect of which exemption is sought are in my view properly to be characterised as addressing these sensitive and contentious matters. I am of the opinion, having read the documents and considered the evidence and submissions of the parties, that the disclosure of draft internal working documents and preliminary advices or opinions in issue here would likely lead to confusion and ill-informed debate. Release may well give spurious standing to the expression of the opinions in the documents and promote pointless and captious debate about what might have happened.

1. Reference was made to Coulson v Freedom of Information Commissioner,[5] ('Coulson') and (then) Senior Member Proctor's comment that:

[i]t was difficult to imagine a world where officers could not collaborate via email toward a final version of a document, without being concerned about the release of the email. That said, the position could be different if the email contained some form of inappropriate content, such that releasing it would not be contrary the public interest.

1. In his written submissions, Davis referred me to guidance provided by the Office of the Victorian Information Commissioner ('OVIC') in its Exemption Practice Note 2.[6] Davis placed particular reliance on the following aspects of that Practice Note:
   • Agencies are warned against the use of dated case law when assessing the public interest;
   • Agencies are encouraged to be mindful of their obligation to exercise their discretion as far as possible to release information and so to thoroughly consider the public interest considerations;
   • Agencies are to understand that a document will not be exempt under section 30(1) based only on it being in draft form, regardless of whether a final document exists;
   • Agencies are to also understand, just because draft documents show an agency's changing position, that does not mean they are exempt; and
   • Comments to the effect that the disclosure of drafts can show an agency diligently carried out its functions.
2. The Practice Note also discussed the issues relating to inhibiting frankness and candour by noting those can only be relied upon in very limited situations and must be supported by detailed evidence and reasoning. Reference is made to the following passage from (now) Judge Macnamara's decision in Yarra CC v Roads Corporation[7] ('Yarra CC'):

Debate as to the application of the public interest criterion of the exemption established by Section 30(1) is frequently centred upon the proposition that release of internal working documents will inhibit the 'frankness and candour' of the advice which officers give. This view of things has in this Tribunal and elsewhere frequently, though not invariably been greeted with some scepticism. It is the duty of officers in the public sector to give frank and fearless advice and generally one would ask why would they shrink from being seen by the release of documents under the [FOI Act] system as doing that very thing.

1. It is convenient to record that the passage continued:

Here the issue is one of public confusion. The e-mails in question canvassed a number of policy options and policy rationales, releasing these exchanges under the [FOI Act] would give a spurious standing to what was no more than a very preliminary debate.

1. The Practice Note went on to remind agencies of officers' professional obligations to provide robust and frank advice in accordance with the Code of Conduct for Public Sector Employees (Responsiveness, Integrity, Impartiality and Accountability) ('Code'). That Code expressly requires agency officers to maintain accurate and reliable records, and to make such records available for appropriate scrutiny when required.
2. The Practice Note is not a policy which falls withing section 57 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).[8] Nevertheless, I have considered the content as relevant commentary.

1. The public interest under section 30(1)(b) of the FOI Act must be assessed having regard to all relevant matters. They may include the right to access as provided for by section 13 of the FOI Act. They may also include the stage of consideration of policy development or decision making which is reflected in the document or communication.
2. I discuss below the parties' submissions as to the public interest considerations relevant to the documents in issue.

1. In considering the issues in dispute, I have had regard to the terms of Davis' Request. Its focus was documents which related to the COVID-19 health emergency exchanged between the CHO and the Premier and/or the Minister for Health (or their offices) in the specified period.
2. As explained in his written submissions, Davis made the application to:[9]

closely examine the decision making and communications between the Chief Health Officer, Professor Brett Sutton, the Minister for Health and her Office, and the Premier and his Office, relating to the management of the COVID-19 pandemic and preparation for the pandemic, noting the documents sought relate to the early period up to 16 April 2020 of the pandemic and the Victorian response.

1. Davis also referred to a number of public statements made by Mikakos, including where she spoke of existing and long standing pandemic plans which were updated before the COVID-19 pandemic 'fully hit'.[10]
2. In reference to Draft Plan 2, Davis said:[11]

Document 39 is directly relevant to these preparations, including the public health measures taken under Professor Sutton's direct order or advice. Preparation of health services including ICU staffing and other matters is a significant issue in pandemic preparation. Minister Mikakos' commentary reinforces my point about the seriousness of the pandemic preparation and the risks to the state, subsequently realised, in 263 days of lockdown in Melbourne, many deaths, including unnecessary deaths, and significant economic and social damage to the State of Victoria and its people.

1. Relevant to the Potential Directives Email, he said:[12]

The Chief Health Officers powers arise under the [PHW Act], they are not matters which the Minister has direct control of, nor in fact does cabinet. The relevant sections of the [PHW Act] give total power to Professor Sutton or his delegate, in this circumstance it is impossible to see how his providing information to the Minister could in some way intimidate or frighten him into not making decisions - public health directives - under the [PHW Act] which he believes are in the public interest. This turns the matter of advice to a Minister or deliberations with the Minister on its head given it is Professor Sutton making the decision not the Minister. How can it be that the decision maker advising a non-decision maker when they themselves have total statutory power could be intimidated or afraid? It is absurd. With respect to document 35, any advice to the Minister is only a courtesy from the decision maker Professor Sutton . . .

Professor Sutton's strange comments on document 35 in paragraphs 22-28 [of his witness statement] relating to inhibitions, reticence and hampering cannot stand unchallenged. It is his decision under the [PHW Act], not the Government's decision when it comes to the public health directives under the [PHW Act], including the named directives in paragraph 23 [of his witness statement].

1. The terms and purpose of the Request have been somewhat relevant to my consideration of the claimed exemption and particularly whether the public interest supports disclosure. I make that preliminary remark accepting that the terms and purpose of the Request does not determine whether FOI Act exemptions apply and also accepting that Davis maintains his wish to have access to the three documents in issue.

1. The plan was finalised on 10 March 2020 and was entitled 'COVID-19 Pandemic plan for the Victorian Health Sector' ('Final Plan'). It was made available to the community soon after by way of publication on the Department's website.

1. Sutton made a witness statement and a revised witness statement[13] and gave evidence before me. In these Reasons I have referred to and quoted from the revised witness statement made on 2 February 2023 ('Revised Witness Statement').
2. In the Revised Witness Statement, Sutton described the First and Second Draft Plans as follows:
   1. . . . For the purposes of this statement, document 18 and 39 can be dealt with together, being different drafts of the draft report [Final Plan] prepared by the Victorian government for the Minister.

(a) Document 18 is a draft of a document entitled 'COVID-19 Pandemic plan for the Victorian Health Sector [Draft Plan 1] prepared for consideration by the then Minister, which embodies what was then evolving opinion, advice and recommendations prepared by me and officers in the Department, and consultation and deliberation. > > (b) Document 39 is a further draft of [Draft Plan 2] prepared for consideration by the then Minister, which also embodies what was then evolving opinion, advice and recommendations prepared by me and officers in the Department, and consultation and deliberation.

2. In particular, I note that [Draft Plan 2] contains a number of tracked changes (additions and deletions of text) to the evolving draft [of the Final Plan], and comments in the margin. These changes and comments were all made by me.
3. Sutton then described the context in which the Final Plan was prepared:[14]
   • The Final Plan was under development in early 2020. The Final Plan was being formulated at a time of significant uncertainty regarding the likely course, impact, severity and duration of the COVID-19 pandemic in Australia. Many of the inputs, assumptions and parameters provided by departmental and external public health and infectious disease experts, modellers, epidemiologists, emergency management specialists and other officers were highly uncertain. The understanding of COVID-19 and its epidemiology and impact was undergoing rapid development;
   • A number of people, including himself, other Department staff and external experts, contributed to the formulation of the Final Plan. Many different drafts were produced and commented on. As those independent contributions came together, and people began to see the content provided by others, individuals made suggestions for additions, deletions or edits to structure, format and content. Draft Plans 1 and 2 are only two of the draft versions of the Final Plan;
   • After the Final Plan was published, there was continued internal consultation and input with respect to the formulation of a further iteration or version of the Final Plan as the Department's understanding of COVID-19 and its epidemiology evolved;
   • After reviewing his email inbox, Professor Sutton noted that it appeared he received or was copied into emails with 31 different drafts of, or comments on drafts of, the Final Plan during the period before and after the publication of that final version; and
   • Ultimately, the subsequent versions of the Final Plan were overtaken by other documents prepared by the Department and so no further versions of the that document were published.
4. Sutton then addressed whether disclosure of Draft Plans 1 and 2 would be contrary to the public interest. He said:
   1. In my view, it is vital that the [CHO], officers in the Department and external experts provide comprehensive, frank and fearless advice on the formulation of documents such as the [Final] Plan, including for the purpose of consideration by the Minister, without inhibition or concern that their comments or contributions to draft documents may later be published.
   2. If [Draft Plans 1 and 2] were to be disclosed, that would inhibit or affect the way that I provide advice on the formulation of similar policies and plans in the future. I also believe that it would likewise inhibit any future [CHO], other officers of the Department and external experts that are engaged in the formulation of similar policies and plans. If I thought that the public would have access to drafts of such documents, I would be reticent to contribute in writing to such drafts, or it would shape the way I made such contributions. I would be particularly wary of making contributions that reflect my evolving or preliminary thoughts on a draft document based on incomplete or uncertain information as distinct from my final considered advice on a policy or plan.
   3. I consider that any reticence from the [CHO], other [DHS officers] or external experts to provide comprehensive, frank and fearless advice on the formulation of such plans and policies could seriously impair the Government's response to future public health emergencies and events, including by inhibiting the provision of evolving or preliminary advice by officers and experts. In turn, I think that would impair the formulation of the best ultimate advice to Government before plans or policies are finalised or other decisions are made. This is particularly problematic where the Government's response to a public health emergency or events depends on the ability to consult and react quickly.
   4. I also consider that disclosure of [Draft Plans 1 and 2] would be apt to cause confusion and unnecessary. That is because, as I stated above, the two documents at issue are merely two of many different drafts of the Plan that were formulated before the [Final Plan] was published. The release of [Draft Plans 1 and 2] does not reflect my final, considered views, let alone those of all contributors. The provision of a limited and partial set of drafts (only two of many), reflecting an early phase of the formulation of the [Final Plan] that was ultimately published, may cause the public to be confused as to the way in which the [Final Plan] was prepared, who contributed to it and what their contributions were, and reasons those contributions were or were not accepted in finalising the Plan.
5. At the hearing, Sutton confirmed that the release of Draft Plans 1 and 2 would impair his willingness to provide advice on the formulation of similar policies and plans in the future. He also confirmed that he believed disclosure would have a similar effect on others involved in the formulation of the two Draft Plans.
6. His evidence was that, even though Draft Plan 1 did not contain specific changes he had suggested, it nevertheless contained the contributions of a range of people including external experts such as experts in public health, infectious diseases and epidemiologists. He explained the document was amended in response to new and emergent evidence about COVID-19 and so the contained the preliminary views of those contributors. Their further contributions and the amendments made led to the ultimately published document.
7. In cross-examination, Sutton agreed with Davis that, as CHO, he had statutory obligations to consult widely and that it was proper to receive input from a wide range of people when developing policy. He agreed those powers were described in the PHW Act.
8. Davis asked him why the public might be confused if Draft Plans 1 and 2 were released. Sutton referred to the fact that there are many people who remain very focussed on the COVID-19 Pandemic and preparedness. He noted the documents were prepared a long time ago now and contained early thoughts and inputs which were appropriately changed as time went on. His view was that, if these Drafts were released, people would go to them and question what the contributors were thinking, why they were thinking in a particular way and potentially take it out of context. He reiterated that the context was that they were early thoughts being 'thrown around' between people which went through multiple changes before the Final Plan was settled and published.
9. Davis suggested that it would be entirely appropriate to examine the process, the inputs and the iterations to then examine the adequacy of the process and the future lessons. Sutton's response was that he did not believe the publication of the two Drafts would give an indication of the process other than to show some of the inputs at a point in time. His concern was that would misrepresent where the contributors settled and would provide an opening for misinformation and mis-contextualisation of that process. He stated that speaking about the process (including who was engaged, the opportunities they had to give input and how that was collated) was different from the disclosure of these Drafts (or all of them). He described the latter as being problematic when the contributors had given their input in good faith with an understanding they would not be attributed or taken out of context. He said contributors needed to be able to provide input frankly and freely without coming under public interrogation.
10. When asked further about his willingness to execute his statutory obligations, Sutton stated he did not shy away from providing frank and fearless advice but he added he was 'sincere in saying' he would frame his advice differently, word it differently or not give it in the same way if preliminary or unformed or limited in formulation thoughts given to the Minister were available for public commentary, even years later.
11. I asked Sutton about his current level of concerns about changes in the Draft Plans and Draft Plan 2 in particular. He was not concerned about tweaking of words or structure in the document per se. I asked him to review Draft Plan 2 and, without disclosing specific content, comment on which parts were sensitive. He did so, identifying specific sections and changes he had proposed. I asked whether his view would change if the same words were included in the Final Plan. He said, if it was possible to identify exactly who made which changes and if his had been included in the Final Plan, that it would be ok to disclose them. It was partly that evidence that led me to seek submissions on the application of section 25 of the FOI Act to Draft Plans 1 and 2. Those submissions are discussed later in these Reasons.
12. I asked Sutton about his approach to the new requirements of the PHW Act, which include publication of CHO advice. He stated that the views he had expressed regarding Draft Plans 1 and 2 applied equally to drafts of advice of that kind.

1. In its written[15] and oral submissions, the Department contended that the disclosure of Draft Plans 1 and 2 would disclose matter in the nature of opinion, advice or recommendation and also consultation and deliberation between officers or an officer or a Minister.
2. It contended it was implicit that Draft Plans 1 and 2 contained preliminary or tentative opinions of officers, including Sutton, as to the appropriateness of the content of the document.
3. It further contended that disclosure of either Draft Plan would necessarily result in the matter in the nature of consultation or deliberation that has taken place between officers, or an officer and the Minister. In this case, it was submitted that disclosure would necessarily involve the disclosure of the consultation which occurred in the preparation of Draft Pans 1 and 2.
4. The Department submitted there could be 'no doubt' that the deliberative processes described amounted to the thinking that had gone into the formulation of the Final Plan.
5. As noted earlier, the Department placed emphasis on authority to the effect that drafts ought to be protected from disclosure in the usual course irrespective of the degree or extent of changes leading to the final version.[16]
6. In this case, the Department referred to the around 30 drafts of the Final Plan (prepared before and after the Final Plan) and the fact Sutton was not the only contributor to the development of that document. It contended that disclosure would provide only a snapshot of the process leading to the Final Plan - that is two out of around 30 versions. The Department relied on Sutton's unshaken evidence that disclosure of drafts may affect the way he provided advice in the future.
7. I was reminded that Draft Plans 1 and 2 only fell into the Request because Sutton had been involved in providing comments on the documents. The Department noted that the Request had not been expressly directed towards the development of the particular document.
8. It contended that the public would not be assisted to understand how the Final Plan was reached and so how decisions were made if either of the Draft Plans 1 or 2 was disclosed.
9. As noted above, the Department relied on Judge Hampel's comments in Lockyer about the status of draft documents in the context of section 30 and comments on that topic made by SM Proctor in Coulson.
10. The Department contended that, what was important ultimately was the content in the Final Plan which reflected the authors' collective satisfaction as to the Department's views.
11. On the question of the public interest, the Department submitted, there was an 'overwhelming' case that disclosure of these two draft versions of the Plan would be contrary to the public interest.
12. The Department referred me to a number of authorities concerning factors which may be relevant to the public interest test in section 30(1)(b) of the FOI Act.[17] It placed particular reliance on the Commonwealth Administrative Appeals Tribunal's decision in Howard v Treasurer (Cth)[18] ('Howard') and the following observations:[19]
    • The higher office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed;
    • Disclosure of communications made in the course of the development and consequent promulgation of policy tends not to be in the public interest;
    • Disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest;
    • Disclosure, which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest; and
    • Disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision maker and may prejudice the integrity of the decision making process.
13. It contended that each of the matters discussed in Howard pointed to it being contrary to the public interest because:[20]
    • Draft Plans 1 and 2 were both passed by a person of high office (Sutton) to the Minister;
    • Both documents concerned matters of considerable sensitivity (the formulation of policy for responding to COVID-19 in the Victorian health sector), and reflected matters that were then and remain now matters of high government policy;
    • Sutton's evidence was said to support the proposition that disclosure of the drafts would inhibit the provision of frank and candid advice on the formulation of such a plan, especially in the context of a rapidly evolving public health emergency based on incomplete or uncertain information;
    • The analysis in Lambert supported a finding in this case that officers should have the opportunity of contributing to the drafting of documents such as these, especially when under acute pressure (as was clearly the case in March 2020) with complete freedom, and without concern as to their contributions or the like will be played out if draft documents which were overtaken by a final version are subsequently published; and
    • Disclosure of the drafts would not give an explanation for any decisions that were made later. It was submitted that it was difficult to imagine how the publication of two of the around 30 drafts of a document that was ultimately finalised on 10 March 2020 could do anything but cause confusion and unnecessary debate and speculation.
14. The Department accepted that the decision making process inherent in the formulation of the Final Plan was important but that disclosure of Draft Plans 1 and 2 would not answer Davis' wish to have a full examination of that decision making process or contribute to an understanding of the impacts of planning for and managing the COVID-19 pandemic. The Department submitted that the FOI Act was not the correct tool for a Royal Commission style examination of the kind Davis was calling for. Equally it contended that disclosure of Draft Plans 1 and 2 would not inform Davis (or the community more generally) about Sutton's role in responding to the pandemic, how he discharged his statutory duties, the extent of his consultation or how he provided advice to Government. The submission was that disclosure would not assist in the lesson learning process Davis sought.

1. As stated earlier, Davis agreed that Draft Plans 1 and 2 were working documents in the sense referred to in section 30(1)(a) of the FOI Act. His submissions were therefore primarily directed towards the public interest under section 30(1)(b).
2. As is apparent from the earlier discussion about the Request, Davis relied on the role of the CHO under the PHW Act and whether the documents in dispute contain matter representing opinion, advice or recommendation or consultation or deliberation in the course of or for the purposes of his deliberative processes.
3. Davis referred to the Objectives of the PHW Act and other provisions dealing with the principle of evidence based decision-making, the role of scientific certainty (or the lack thereof) and the principles of primacy of prevention, accountability and proportionality.[21] He submitted that:[22]

at the heart of the [PHW Act] are principles of transparency, accountability, scientific decision making and proportionality. All of these principles under which the Chief Health Officer exercises his powers are focused on greater disclosure not lesser disclosure, and the gathering of advice and information from the broadest range of experts.

1. Davis submitted that, at relevant times, the CHO was exercising his own powers which were not subject to oversight by the Minister and so section 30(1)(a) of the FOI Act could not properly apply to the Draft Plans 1 or 2 or the Potential Directives Email. He contended that, in effect, the Department was contending the FOI Act overrode the PHW Act principles of consultation, scientific involvement and proportionality.[23]
2. Davis placed reliance on the extraordinary circumstances in which the documents in dispute were written, referring to the length of the Victorian lockdowns and the number of deaths from COVID-19. He contended that:
   • The actual evolution of the plan is a matter of specific public interest to assist in future disaster and emergency preparation. The learnings from what he referred to as 'the lack of preparation' were described as central to his FOI Act application;[24]
   • The exact steps that were undertaken, the iterations of the plan that was developed, and the rejection of any steps or alternatives was said to also be a matter of supreme public interest and relevance to future public health responses;[25] and
   • 'Sloppy' development of the pandemic plan is a matter of 'supreme public interest' and '[l]ilylivered' fears by public officials that their frank and fearless advice may be inhibited was said to be a sign that the community 'must' know the relevant facts.[26]
3. Davis contended that the Victorian community had every right to see Draft Plans 1 and 2 given the seriousness of the COVID-19 pandemic, the loss of life and damage to the Victorian economy. He argued that release of those (and the Potential Directives Email) would promote transparency.[27]
4. At the hearing, Davis stated that he accepted the challenges faced by the contributors to the Final Plan and the Government's response to COVID-19. As I understood it, he did not assume that Drafts 1 and 2 would reveal missed opportunities or failures but he expected them to provide an opportunity to understand whether the process and outcomes could have been better and apply those understandings to future planning.
5. It was his position that, seeing Draft Plans 1 and 2 would assist him (and others) to understand some of the process, including how the documents moved between relevant people. He also explained that, looking at Draft Plans 1 and 2 in light of other documents which had been released, would allow him to make greater sense of the overall context and how key decisions were made. In addition, release of those documents under the FOI Act would assist him to assess how the PHW Act objectives had been met, including by understanding how scientific advice had been dealt with.
6. Davis referred me to the objectives of the FOI Act, namely to extend as far as possible the right of the community to access to information in the possession of the Government of Victoria[28] and also to section 16. That latter provision provides that nothing in the FOI Act is intended to prevent or discourage agencies from publishing or giving access to documents (including exempt documents), where they can properly do so or are required by law to do so. He contended that release of that kind would be consistent with the transparency and accountability referred to in the PHW Act and that, conversely, the FOI Act should not be used to thwart those aims.[29]
7. Davis's view was that:[30]

whether advice was preliminary advice, more developed advice, or final and considered advice, and whatever further deliberations or considerations were made, that the public is entitled to see the many different drafts of the plan, and the mechanisms by which it was formulated, such is the seriousness of these matters of COVID-19 pandemic preparation and the important of the subsequent development of the plan.

1. As to Sutton's concerns about officers being inhibited in communicating openly if documents such as these were disclosed, Davis relied on his many years of experience, including as Health Minister, to contend Sutton and other CHO's were more likely to continue giving frank advice in order to meet their statutory duties.[31]
2. As set out earlier, Davis relied on OVIC's Exemption Practice Note 2.
3. Davis contended that, even some minor reticence on the part of officers, was outweighed by the potential for lessons to be learnt from the management of the COVID-19 pandemic.
4. On the question of possible confusion of the public, Davis submitted that the Victorian public is 'not as stupid as Professor Sutton appears to consider them'. Rather he described them as 'deeply engaged in these matters and able to weigh significant points and make complex and sensitive judgements'. In his view, the public was not easily confused or mislead and secrecy was likely to build mistrust.[32]
5. It is convenient to record here that, in reply, the Department noted Sutton had not given evidence disclosure would lead to him failing to give appropriate advice, but rather it would affect the manner in which he did so. As I understood the position, it was suggested that could lead to more oral communications which may more readily be misunderstood than speedy written communications.
6. In addition, the Department made oral submissions in reply to the effect that the PHW Act was not directly relevant to whether section 30(1) of the FOI Act applies to Draft Plans 1 and 2. The Department also contended that the past and current provisions in the PHW Act concerning the powers of the CHO (or more generally) did not override or inform the application of section 30(1) of the FOI Act in this.

1. I have concluded that Draft Plans 1 and 2 are exempt under section 30(1).
2. I first deal with Davis' submission that, in effect, the FOI Act was being used to override the CHO's obligations under the PHW Act and the public scrutiny of the performance of those obligations.
3. It is apparent from the range of circumstances in which the FOI Act arises that it applies across government and agencies and can be raised in respect of documents created in the exercise of a multitude of statutory provisions. It does not override the exercise of the powers and obligations contained in those statutory instruments but rather regulates the disclosure of the documents created. In a case which concerns section 30(1) of the FOI Act, the context and purpose for which the relevant document was created is central to the analysis of whether it falls within section 30(1)(a) and then whether the public interest is against disclosure (under section 30(1)(b)). Accordingly, the submission that the FOI Act was being used to override the PHW Act is rejected.
4. I accept and adopt the Department's contentions as summarised above and am satisfied that the requirements of section 30(1)(a) are met. By their nature, Draft Plans 1 and 2 embody the processes of formulating and exchanging opinion, advice and recommendations. Further, the fact that there were a number of contributors involved in working on those two Drafts and many others demonstrates consultation and deliberation between officers of the Department. That was the effect of Sutton's evidence. While drafting by committee may sometimes be tiresome, it is a useful method for ensuring that policy development benefits from multiple points of view and it requires those involved to come to a common conclusion.
5. I now turn to the public interest as contained in section 30(1)(b) of the FOI Act. The starting point is that the relevant agency carries the onus of demonstrating through evidence that disclosure would be contrary to the public interest.
6. When considering whether it would be contrary to the public interest to release Draft Plans 1 and 2 (as opposed to any other draft document), I have accepted the sentiments expressed in Yarra CC and OVIC's Practice Note 2 regarding the duty of agency officers to provide robust and frank advice, to maintain accurate and reliable records, to make such records available to appropriate scrutiny and to comply with the Code.
7. However, I have also had regard to the substantial body of law, including Howard, Lockyer and Lambert, concerning disputes over drafts under FOI Act and considered how that may inform my analysis of these disputed documents. As every case and every disputed document is different, those cases may assist my consideration.
8. As to the first matter in Howard, it seems to me that, while it is relevant that Sutton in his capacity as CHO was involved in the drafting, that does not of itself weigh heavily on the public interest being against disclosure. I say that because of the collaborative nature of the process involving other Departmental officers and external experts.
9. There was no dispute that the circumstances in which Draft Plans 1 and 2 were prepared were extraordinary and evolving. I am satisfied the sensitivity referred to in the second Howard factor (and as also relied on in Lockyer) was present at the time.
10. As to the third Howard factor, I accept Sutton's concerns about how disclosure would affect his future participation in the formulation of policy to be contained in a public document like the Final Plan. That evidence was given in the specific circumstances in which Draft Plan 1 and 2 were written which included the following:
    • The work done to draft, consult on and finalise the Final Plan was done in the very early days of the pandemic when not all risks and mitigating strategies were well understood. As Sutton stated, the understanding of COVID-19, its epidemiology and impact were undergoing rapid development;
    • Draft Plans 1 and 2 were two of around 30 drafts prepared before and after the Final Plan was published. Draft Plans 1 and 2 were both produced on the same day, providing an insight into the speed with which the work was done;
    • While the documents came to Sutton and he clearly made contributions to one, he was not the sole author and so did not have final control of the document being worked on. He was one of many individuals working on the content, language and style;
    • The drafting process was dynamic - as Sutton stated, as independent contributors began to see the content provided by others, suggestions were made for additions, deletions or edits to structure, format and content; and
    • The Final Plan was published on 10 March 2020 but internal consultation continued with further iterations of the Final Plan being prepared taking account of the Department's evolving understanding of COVID-19 and its epidemiology evolved.
11. I accept Sutton's evidence that, if these Draft Plans were disclosed publicly, he would be reticent to contribute in writing to such drafts, or it would affect how he decided to make contributions. The basis for that was his wariness of making contributions that could reflect evolving or preliminary thoughts on a draft document based on incomplete or uncertain information as distinct from his final considered advice on a policy or plan.
12. His evidence was that he believed reticence of that kind would be shared by others such as future CHO, Department officers and external experts. I also accept that evidence given his broad experience and his particular experience working with those people on developing the Final Plan.
13. Sutton's evidence highlighted the importance of allowing free and open exchanges of ideas and information to assist in the formulation of a response to a public health emergency. As we know from having lived through the COVID-19 pandemic, early fears and risks were not all realised and others revealed themselves as the scientific and worldwide understanding of the illness evolved, unfortunately often through the illness and deaths of many who contracted COVID-19.
14. In my view, the application of section 30(1) to these Draft Plans 1 and 2 must take account of the reality that those tasked with preparing a response were required to work in a dynamic and ever-changing state of knowledge. I agree with the submission that, in the circumstances in which Draft Plans 1 and 2 were prepared, the greater public interest lies with allowing such work to be done with confidence that ideas can be considered and discarded or re-worked so that the final version of the Plan released to the public represents the combined understanding and advice of all of those involved.
15. Relevant to the final two Howard factors and as indicated by my summary of Sutton's evidence at the hearing, at least in respect of Draft Plan 2, not all of the entries he made were sensitive or disclosed views different from those contained in the Final Draft. That means concerns about confusion about actual possibilities considered and then discarded are less prominent.
16. However, I nevertheless accept Sutton's concerns about the possibility of causing confusion. I say that because the possibility for confusion and pointless debate arises from the fact that there were many versions of the Final Plan. If Draft Plans 1 and 2 were released, questions may then be asked about which parts were omitted from or changed in the Final Plan. Questions about who changed which parts and why might well arise. That kind of debate would add nothing to Davis' (or others') knowledge of the processes followed and matters such as how Sutton and others formulated their opinions and how they were then included (or not) in the Final Plan.
17. In broad terms, the evidence summarised in these Reasons discloses the process used to arrive at the Final Plan. Being able to scrutinise the minutia of changes which can be discerned between versions would not explain who suggested which words, concepts or changes or whether the eventual choices of content, language or style were appropriate.
18. I also accept Sutton's evidence that he (and others) should be judged on the end product of the drafting and consultation he described. Like Davis, I am confident Sutton is more than capable of giving frank and fearless advice but I am also satisfied that revealing the step by step process of giving advice and consulting could well undermine the way those tasks are completed. I accept Sutton's evidence about others being similarly constrained, including external experts who made contributions on the basis specific content would not be attributed.
19. Another aspect of Sutton's oral evidence is relevant here. He was present at numerous (almost daily) press conferences explaining what was known (and not known) about the COVID-19 pandemic as it was affecting Victoria. There was running coverage and daily scrutiny of what was being done and decided, including by him. I cannot see how the disclosure of two versions out of the around 30 drafts of the Final Plan would add to Victorian's knowledge of what advice was given and how the Department decided to act in the period 1 to 10 March 2020. Further, having reviewed Draft Plans 1 and 2, I cannot discern any way that disclosure of these would assist in learning lessons for future health emergencies given the Final Plan is still available.
20. In my view, it would come as no surprise to the Victorian community that a document such as the Final Plan was produced after careful consideration and input from appropriate senior Government officers, such as the CHO, departmental officers and external experts. Not only would it be unsurprising but it would be reassuring to know that careful consultation with relevant experts provided the foundation for the Final Plan given the significant impacts it had on the Victorian Health Sector and the community more generally. I have concluded the freedom of those tasked with preparing documents such as the Final Plan to collaborate openly and without concern about future debate about options taken (or not taken) outweighs the public interest in knowing what two of the around 30 drafts contained.
21. As a result, I find it would be contrary to the public interest for Draft Plans 1 and 2 to be disclosed and so the whole of them are exempt.

Documents 34 - the Potential Directives Email

1. In his Revised Witness Statement, Sutton described the Potential Directives Email:[33]

an email from me to the Minister recording my opinion, advice and recommendations to the Minister in respect of a document titled 'Potential directives and related policy materials for social distancing measures in Victoria' (Potential Directives), and consultation and deliberation.

1. The Email commences with disclosed content which says:

Minister,

Attached are additional social distancing measures for your and [State Emergency Management Committee] consideration. They are extensive and have significant implications, as you'd expect.

1. In his Revised Witness Statement, Sutton said:
   1. The redacted part of the email records my preliminary thoughts on the matters addressed therein. On 15 March 2020, I gave final, formal advice to the Minister, based on the input from various officers and external experts, about the making of a declaration of state of emergency under s 198 of the PHW Act. That advice dealt in part with the kind of directions that I thought may be appropriate. The content of possible directions was also subsequently deliberated, debated and considered within the Department. My final, formal advice to the Minister about the making of the declaration was available to the Deputy Chief Health Officer in making the following directions: Mass Gatherings Directions (No 2) dated 21 March 2020; Visitors to Residential Aged Care Facilities Directions dated 21 March 2020; and Non-essential Business Closure Direction dated 23 March 2020 (Directions).
   2. In my view, disclosure of document 35 would be contrary to the public interest for similar reasons to those outlined in relation to documents 18 and 39.
2. The Department filed the final advice referred to by Sutton. It was contained in a 15 March 2020 document entitled 'Advice relating to Declaration of State of Emergency' ('State of Emergency Advice').
3. In his Revised Witness Statement, Sutton reiterated his view that:[34]
   • It is vital that the CHO, and any other officer working within Government, be able to provide uninhibited opinion, advice or recommendations advice to the Minister, reflecting preliminary or provisional thoughts or advice on matters, in response to a rapidly evolving public health emergency, without concern that such thoughts or advice would be published;
   • Disclosure of the Potential Directives Email would inhibit his willingness to provide such advice in writing in such circumstances. He added that he believed any future CHO (or Acting CHO) would feel similarly inhibited; and
   • Any reticence from the CHO to provide such preliminary or provisional advice to the Minister could thereby seriously hamper the response in future public health emergencies and events, including by slowing down the formulation of a public health response. He again commented that would be particularly problematic where the Government's response to a public health emergency or events depends on the ability to consult and react quickly.
4. Sutton also stated that the matters canvassed in the Potential Directives Email were the subject of subsequent extensive discussions, which culminated in the Directions listed in paragraph 23 of his Revised Witness Statement ([99] above) being made. He said that the disclosure of the Potential Directives Email, 'which did not represent my final views', would promote confusion in the public about the basis on which the Directions were ultimately made.
5. In his evidence before me, Sutton confirmed specific parts of the email were preliminary and reflected his thinking on the day (that is on 14 March 2020) in the 'flux' of the response to the pandemic. His evidence was that those specific parts of the email gave rise to his concerns that, if they were disclosed, in future he would be inhibited in engaging in full and frank discussions.
6. Sutton was asked about paragraph 28 of his Revised Witness Statement which said:

Further, I consider that the disclosure of preliminary or provisional views of the kind set out in this email has the potential to mislead or confuse the public as to the way in which important public health decisions were and are made. The matters canvassed in this email were the subject of subsequent extensive discussions, which culminated in the Directions being made. In my view, the disclosure of this email, which did not represent my final views on contemplated Directions, would promote confusion in the public about the basis on which the Directions were ultimately made.

1. He confirmed both that the content of the email was the subject of extensive subsequent discussions and his belief that disclosure of the particular content would promote the confusion he described.
2. In cross-examination, Davis suggested it was entirely normal that documents such as the relevant Direction would evolve and that the inputs could later be reviewed. Sutton agreed. Davis asked why the public would be confused and engage in unnecessary debate. He asked why the public was not entitled to have the fullest description of the process as it went on, particularly given the CHO's obligation to consult widely. He proposed that the debate was in fact necessary and was of the kind the PHW Act contemplated.
3. Sutton's response referred to the preliminary nature of the thoughts and the danger they would be mis-contextualised. He noted the final Directions were made public and were commented on in enormous detail, including through his attendance at daily press conferences. He suggested that his 'embryonic' communications to the Minister are open to miscommunication and to being misconstrued, deliberately or otherwise. He stated the public is entitled to information but it is important that they have the information in its final form.
4. When asked about the public interest in knowing what is in and not in the Directions and why some were rejected, Sutton said it was critically important that he was able to provide those nascent thoughts that are undergoing continued review by himself and challenge and input from others before coming to their final form. He stated he would be inhibited in communicating early thoughts if he knew they would be open to the public in that early form.
5. Davis proposed that access to these documents would assist to appraise the CHO's performance by seeing the process. Sutton stated he was open to such appraisal. He referred to an individual having their own thoughts in various forms and stages and suggested it would be unfair to interrogate all of those given the final decision is made with the input of scores of others.
6. I asked Sutton to look at the Potential Directives Email to identify the content he had concerns about if disclosed as at the time of the hearing. He maintained the same concerns applied to the redacted parts of the Email.

1. The Department relied on similar submissions to those set out above in the context of Draft Plans 1 and 2, including as to how the Howard factors may be applied to the Potential Directives Email.

1. Davis relied on his earlier submissions as to the particular role and responsibilities of the CHO (including under the PHW Act) and again questioned Sutton's evidence that he would be inhibited in undertaking his statutory duties. He emphasised the fact that, until recent changes were made to the PHW Act, the CHO had the sole responsibility for public health directives and so questioned how he would be inhibited in giving advice to a Minister could be relevant.
2. As set out earlier, Davis submitted that it was 'impossible' to see how Sutton would be intimidated or frightened into not making decisions under the PHW Act which he believes are in the public interest. He contended that would turn to the matter of advice to a Minister or deliberations with the Minister on its head given it Sutton is the decision maker and not the Minister. He suggested that any advice in the Potential Directives Email could only have been provided as a courtesy to the Minister.
3. Davis referred again to the Code, the obligation of public sector employees to make records available for scrutiny when required so as to further the aims of open and transparent implementation of public policy.

1. The fast moving circumstances in which Draft Plans 1 and 2 were formulated are also relevant to my consideration of the Potential Directives Email. That email was sent by Sutton to Mikakos on 14 March 2020 and the State of Emergency Advice, which contained his final formal advice to Mikakos on a range of matters, including one possible direction, was sent the next day. On that same day, 15 March 2020, a state of emergency declaration was made. A number of directions were made very soon after (see [23] of Sutton's Revised Witness Statement).
2. I have noted that the State of Emergency Advice explains how the advice contained in that document was formulated, including by reference to relevant considerations contained in the PHW Act. Sutton summarised the available scientific knowledge about modes of transmission and modelling concerning the likely numbers of people requiring hospital care, including in intensive care units. He described the nature, scale and effects of harm, illness or injury that may develop. He made recommendations as to measures to eliminate or reduce risks.
3. The fact of the communication between Sutton and Mikakos about measures being contemplated is unsurprising. In my view, allowing communications such as those to remain private is of greater importance than disclosing every step taken by the CHO in the exercise of his statutory duties. Co-operation and consultation at the highest levels of government is consistent with ensuring well-considered outcomes. The greater public interest lies in ensuring communications of that kind remain confidential so they can be undertaken with frankness.
4. Further, having reviewed the redacted content from the Potential Directives Email, I am satisfied that it contains preliminary opinion, advice and recommendations. I am further satisfied its disclosure would not add to Davis' knowledge of how Sutton or others responded to the emerging risks, the process undertaken to reach final positions or assist in learning lessons for the future.
5. Relevant to Davis's submissions as to the CHO's independence, there is nothing in the communications to indicate that he failed to fulfill his PHW Act statutory obligations.
6. In all the circumstances, I am satisfied it would be contrary to the public interest to disclose the Potential Directives Email.

1. Section 50(4) of the FOI Act contains what is commonly referred to as the 'public interest override' and says:

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), section 31A, 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. In his submissions, Davis summarised the law relating to section 50(4) of the FOI Act, referring to Osland v Secretary to the Department of Justice ('Osland').[35]
2. In summary, it is necessary for the Tribunal to consider the public interest override only if it is satisfied in respect of the document in dispute that the exemption claimed is made out. It is well understood that the public interest must require release in the sense that it demands or necessitates release. It is also understood that there is a difference between what is in the public interest and what is of interest to the public. Abstract policy considerations such as the desirability of greater transparency in decision-making are considered to be irrelevant in the application of section 50(4).
3. I have referred above to Davis' submissions about the public interest in the context of the section 30(1) exemption. Relevant to the public interest override, he said the following in his written submissions:
   1. The public interest is not merely the fact that the public is interested, or that there is public interest, it is more sharply that there is a matter of deep concern, or a matter of welfare or wellbeing of the general Victorian public and Victorian society. This is a dispersed interest of all Victorians in general. This case meets this public interest test and the release of these documents is in the public interest.
   2. It is my contention that it is in the public interest within the meaning of section 50(4) of [FOI Act] that these pandemic plans and the advice regarding the March 2020 orders by the [CHO] be released for the reasons I have outlined above.
   3. It is not my contention that some abstract policy consideration or other high matter within the meaning of [Osland] should drive analysis of section 50(4). On the contrary, it is my contention that these precise documents sought that relate to the development and drafts of the pandemic plan should be released because it is in the public interest for them to be released. This is why I have narrowed all other considerations in the two tranches of documents, [in a related proceeding which was withdrawn and this proceeding. Matters referred to in certain correspondence] are all important but we have chosen not to pursue them given the overriding importance of these matters relating to the pandemic plan, its preparation, and advice regarding March 2020 orders to be made by the [CHO].
4. As indicated by my earlier analysis, the content of Draft Plans 1 and 2 and the Potential Directives Email contain no imperatives for disclosure - there is nothing in any of them indicating improper conduct or the like which must be placed in the public domain. Accordingly, the public interest override in section 50(4) of the FOI Act does not apply.

1. During the hearing I raised the possibility that section 25 of the FOI Act might apply such that a version of Draft Plans 1 and 2 could be prepared which disclosed those parts of the documents which were included in the Final Plan.
2. Orders were made for the parties to file written submissions [36] and the Department provided me with a marked up version of Draft Plans 1 and 2 which compared those with the Final Plan.
3. Section 25 says:

Where-

(a) a decision is made not to grant a request for access to a document on the ground that it is an exempt document or that to grant the request would disclose information that would reasonably be regarded as irrelevant to the request;

(b) it is practicable for the agency or Minister to grant access to a copy of the document with such deletions as to make the copy not an exempt document or a document that would not disclose such information (as the case requires); and

(c) it appears from the request, or the applicant subsequently indicates, that the applicant would wish to have access to such a copy -

the agency or Minister shall grant access to such a copy of the document

1. Davis confirmed he would be amenable to receiving a copy of Draft Plans 1 and 2 with deletions.
2. The first pre-condition to section 25(a) is a finding that an access request is refused because the document is exempt or that disclosure would disclose information that would reasonably be regarded as irrelevant.
3. Section 25(b) asks whether it is practicable to grant access to a version of the document which is no longer exempt or that would no longer disclose irrelevant information.
4. In his submissions, Davis contended that the section 30 cases relied on by the Department concerned matters inherently less serious than the preparations made for the 'massive and impactful pandemic'. He contended that, when striking the balance between the objects of the FOI Act and the exemptions, the circumstances of the COVID-19 pandemic ought to compel any possible level of disclosure, whether under section 30(1)(b) or via section 25.
5. The Department contended that, if the whole of Draft Plans 1 and 2 were found to be exempt, then it was not possible to create a copy which was no longer exempt. The Department also contended that it would not be practicable for the Tribunal to create a copy of those documents which would be meaningful and not confusing, misleading or unintelligible.
6. I accept both of the Department's submissions.
7. As set out above, I have found the entirety of Plans 1 and 2 are exempt.
8. The marked-up versions provided to me give life to Sutton's evidence about the range of people involved in contributing to and commenting on them. The marked-up versions reflect the dynamic work undertaken to add to, remove and move content around. Even if one were able to make useful sense of the differences between Draft Plans 1 and 2 and the Final Plans, it is not possible to then understand how the subsequent drafts affected the Final.
9. It is apparent to me that, even if some aspects of the two Draft Plans survived in the same form and place in the Final Plan and that was disclosed, nothing would be added to Davis' or anyone else's understanding of the process or development of the content. I accept the Department's submission that having a copy of Draft Plans 1 and 2 which showed which parts made it to the Final Plan would raise more questions than it would answer and would undermine the application of the exemption I have found applies to the entirety of them both.
10. In those circumstances, section 25 of the FOI Act does not apply and so the Decision must be affirmed.

[3] [2008] VCAT 850.

[4] [2019] VCAT 667, underlining my emphasis.

[5] [2016] VCAT 1521 [36].

[7] [2009] VCAT 2646 [38].

[8] Section 57 deals with statements of policy certified by the relevant Minister which are required to be applied by the Tribunal. Nor is it a policy of the kind discussed in Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; [1979] AATA 179.

[13] The first is dated 3 December 2021, Tribunal Book, pages 1 to 5 and the revised statement was dated 2 February 2023. The revisions to Sutton's first witness statement related to the Potential Directives Email.

[17] Including Hulls v Victorian Casino & Gambling Authority (1998) VCAR 483 at 488 and Friends of Mallacoota Inc v Department of Planning and Community Development [2011] VCAT 1889 at [51].

[21] Sections 4 to 10 of the PHW Act respectively.

[28] Section 3 of the FOI Act. See also section 13 which provides that, subject to the Act, every person has a legally enforceable right to obtain access to documents held by an agency.

[35] [2010] HCA 24, [11] to [14] and [56].

[36] The Department's dated 15 February 2023 and Davis' dated 16 February 2023.