For the reasons given, I conclude that the redacted parts of Document 1 that I have identified are exempt. Accordingly, I affirm the decision under review.
[2]
[1] The Victorian Planning Authority is a statutory authority that reports to the Minister for Planning.
[3] Paragraph numbers and footnotes omitted. Emphasis in original.
[5]
[5] Unreported, County Court of Victoria, 19 December 1993, cited in Mildenhall v Department of Education, unreported, VCAT, Galvin DP, 13 January 1999, at 12. See Coulson at [21].
[6]
[6]Halliday v Office of Fair Trading (Unreported AAT of Victoria, Coghlan PM, 20 July 1995, cited in Coulson at [21]).
[11] See Hulls, at [31] and Secretary to the Department of Justice v Osland at [92]. See also XYZ v Victoria Police[2010] VCAT 255 at [575] where Bell J said that the public interest considerations in favour of disclosure 'must be so strong as to convincingly demand or necessitate release'.
[14] See Herington v Department of Transport Planning and Local Infrastructure[2014] VCAT 1026 at [52].
[13]
[15] The Department cited City Parking Pty Ltd v City of Melbourne(1996) 10 VAR 170. In that case the respondent was held to be an agency engaged in trade or commerce as landlord, tenant or potential vendor of real estate: page 185.
[14]
[16] The Department cited Re Binnie and ors v Department of Industry, Technology and Resources and anor(1986) 1 VAR 345 as an instance of a similar outcome.
[18] See the judgment of the High Court of Australia in Osland v Secretary to the Department of Justice[2010] HCA 24 at [14]
Parties
Applicant/Plaintiff:
Davis
Respondent/Defendant:
Department of Transport
Legislation Cited (2)
Information Act 1982
Administration Act 2004
Cases Cited (7)
Davis v Department of Transport (Review and Regulation) [2022] VCAT 721 (27 June 2022)
'Cabinet' includes a committee or sub-committee of Cabinet: section 28(7).
Paragraphs (b), (ba) and (c) of section 28(1) are the relevant provisions in the present case. Determining the 'purpose' of a document having been prepared is central to determining whether the document is exempt.
In Davis v Major Transport Infrastructure Authority[2020] VCAT 965, VCAT considered section 28(1)(b). In the course of summarising the principles, VCAT said at [19]-[23]:
VCAT noted the following about section 28(1)(ba) in Environment Victoria Inc v Department of Primary Industries[2013] VCAT 39 at [29] -
In Department of Premier and Cabinet v Newbury[2021] VCAT 331, VCAT considered section 28(1)(ba) and made observations about the breadth of the exemption. The Tribunal noted, first, that the document must be prepared for the purpose of briefing the Minister in relation to issues to be considered by Cabinet (meaning that it be a short, accurate summary of the details of a plan or operation that contains information or advice to be read by, or explained to, a Minister); and, secondly, that it is the document's purpose at the time of preparation that is relevant, rather than what may subsequently transpire.[4]
Section 30 of the FOI Act, headed 'Internal working documents', relevantly provides:
'Officer' (in relation to an agency other than a council) is defined in section 5(1) to include 'a member of the agency, a member of the staff of the agency, and any person employed by or for the agency, whether that person is one to whom the provisions of the Public Administration Act 2004 apply or not'.
In Coulson v Department of Premier and Cabinet[2018] VCAT 229, VCAT considered the expressions 'opinion, advice or recommendation', and 'deliberative processes' in section 30(1). VCAT referred to Penhalliuriack v Department of Labour and Industry,[5] where his Honour Judge Lazarus made these general remarks:
Matter in the nature of 'opinion, advice or recommendation' may be a matter in the nature of 'a personal view', 'an opinion recommended or offered' or 'a presentation worthy of acceptance'.[6]
VCAT further noted in Coulson that the 'deliberative processes' criterion is very wide - wide enough to include 'any of the processes of deliberation or consideration involved in the functions of an agency'.[7] VCAT referred to Waterford v Department of Treasury (No. 2)[8] where the Commonwealth Administrative Appeals Tribunal said in relation to a similar provision in Commonwealth legislation that the deliberative processes of an agency are 'its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of the proposal, a particular decision or a course of action'.[9]
In Tucker v Commissioner of State Revenue[2019] VCAT 2018 at [85], Quigley P summarised the principles concerning whether disclosure would be contrary to the public interest under section 30(1). They include the following -
regard must be had to both the nature of the information and nature of the document
the more sensitive or contentious issues involved in the communication, the more likely it is that communication should not be disclosed
draft internal working documents or preliminary advices and opinions are more generally than not inappropriate for release. This is particularly so when the final version of the document has been made public
it is contrary to the public interest to disclose documents reflecting possibilities considered but not eventually adopted, as such disclosure would be likely to lead to confusion and ill-informed debate
decision-makers should be judged on their final decisions and their reasons for them, not on what might have been considered or recommended by others in preliminary or draft internal working documents
it is contrary to the public interest to disclose documents that would have an adverse effect on the integrity or effectiveness of decision-making investigative or other processes; and
I have inspected Document 1. There are redactions relating to section 33 of the FOI Act that I do not need to consider.
I am satisfied that the redacted parts of Document 1 are exempt. They are -
Page 7 - end of document: section 28(1)(b), section 30, section 34
While Mr Robinson agreed with certain propositions that Mr Pym put to him, he maintained that the 'primary' purpose of the Master Plan and Business Case being prepared was for them to be put to Cabinet for consideration, and that the documents would not have been prepared if they were not to be put to Cabinet for its consideration. I accept Mr Robinson's evidence. The 'primary' purpose would be a substantial purpose if not the dominant purpose, in my view. I therefore find that the Master Plan and Business Case are documents within section 28(1)(b).
I should indicate that I accept the submission Ms Olynyk made that Mr Robinson's evidence makes clear that the Master Plan was not a master plan in the sense that Mr Pym referred to in cross-examination. Master plans and business cases may be prepared for a range of purposes, as Mr Pym submitted, but I find that the Master Plan and Business Case in the present case were prepared for the purpose of submission for consideration by Cabinet.
Mr Pym cited Secretary to the Department of Infrastructure v Asher[2007] VSCA 272. In that case Vincent JA approved comments made by Morris P in Re Ryan and the Department of Infrastructure[2004] VCAT 2346; (2002) 22 VAR 226 to the effect that 'preliminary or preparatory material' (not being a draft or copy) would not fall within section 28(1)(b) because they would not be documents prepared for the purpose of submission for consideration by the Cabinet. Mr Pym submitted that a business case is a preparatory document, 'not originally created for the (sole or dominant) purpose of submission to Cabinet'. On the basis of Mr Robinson's evidence, I do not consider that the Business Case (or the Master Plan) constitute 'preliminary or preparatory material'.
public interest concerns the interest of the public as distinct from the interest of individuals
Section 34 of the FOI, headed 'Documents in relation to trade secrets etc.', relevantly provides:
In summary, to the extent that Document 1 contains the Master Plan and Business Case, it is exempt under section 28(1)(b). I am satisfied, further, that Document 1 is a document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet, in the sense discussed in Newbury, such that it is exempt under section 28(1)(ba). (I have noted that Document 1 includes the earlier Ministerial Brief). And I am satisfied that Document 1 contains extracts from documents referred to in section 28(1)(b) (the Master Plan and Business Case), such that it is exempt under section 28(1)(c).
I turn to the exemption claimed under section 30. On the basis of Mr Robinson's evidence, and my inspection of the document, I am satisfied that Document 1 contains matter in the nature of opinion, advice or recommendation prepared by an officer in the course of, or for the purpose of, the deliberative processes involved in the functions of the agency or Minister or of the government.
Section 30(1)(a) is therefore satisfied. I now consider section 30(1)(b) - whether disclosure would be contrary to the public interest.
The submissions on behalf of Mr Davis covered general and specific points. In particular, the objects of the FOI Act were emphasised. Concerns were expressed about there being an 'unacceptable' delay and about a disparity in the parties' respective capacity to contest the proceeding. I note that there have been delays. Some of them appear to have been outside the control of the parties. At the same time, the issues in dispute have narrowed considerably over time.
More specifically, it was submitted -
Mr Davis has an important role in 'parliamentary accountability' as Leader of the Opposition in the Legislative Council
South Yarra Station is within Mr Davis' electorate
the development of the Station precinct has 'profound effects' for Mr Davis' constituents, the surrounding properties, businesses, visitors, and the economy of the State
the development of the project has significant ramifications for Victorian taxpayers
the public has a right to know about the 'value-capture options' that are open to the government for the future of South Yarra Station
the timely access to data pertaining to the 'significant project' is 'critical to the democratic function of the Victorian Opposition'
Ms Olynyk pointed out that in considering the public interest test in section 30(1), VCAT has noted that a 'reasonably proximate relationship of a document to the Cabinet process' may support the section 30 exemption applying to the document.[14]
I have had regard to the nature of the information and the nature of the document. The document contains sensitive information for consideration at a very high level of government. The document has a proximate relationship to the Cabinet process. Mr Pym submitted that the Master Plan and Business Care should not be considered 'drafts', but I accept Ms Olynyk's submission that the documents have 'draft status' in the sense that Cabinet may never indorse them, and that they are merely options for consideration, such that release of Document 1 could cause confusion and undermine the deliberative process of government.
After weighing these matters against the public interest there is in transparency surrounding government decision-making and the related points raised on behalf of Mr Davis, I have concluded that disclosure of Document 1 would be contrary to the public interest.
I turn to the exemption claimed under section 34(4).
As claimed on behalf of the Department, Document 1 contains information of a business, commercial or financial nature that relates to possible development options for South Yarra Station, which is property owned by the State Government. Mr Robinson's evidence and the document itself make that clear. I am further satisfied on the evidence that the Department is engaged in trade or commerce with respect to the project on behalf of the State, and it would be officers of the Department who would engage in any future negotiations.[15] I accept the submission that the Department is therefore likely to be exposed unreasonably to disadvantage should the information of a business, commercial or financial nature be disclosed under the FOI Act.[16] Ms Olynyk made a submission to the effect that the Department would be obliged to maximise any commercial benefits to the taxpayer when engaging in property dealings and transactions, and that disclosure of Document 1 would unreasonably disadvantage the Department in this regard.[17] I accept that submission.
I have said that Mr Robinson illustrated potential commercial disadvantage by reference to a specific undisclosed item in Document 1 Having regard to that item and other relevant information in Document 1, I am satisfied that disclosure would be commercially disadvantageous to the State.