1. It was acknowledged from the outset that documents fitting the description existed. Ms Alison Crosweller, the principal media adviser of the Office of the Premier gave evidence that a weekly master media plan was prepared by the head of communications and the principal adviser, media, in the Office of the Premier and submitted to Cabinet for approval. The weekly master media plan was produced after weekly individual media plans for each Ministerial portfolio had been provided to them by media officers assigned to the individual portfolios. She described the individual media plans as drafts, and working documents which were used as planning documents for the production of the weekly master media plan.
2. She said the Office of the Premier employed 22 media advisers. Each adviser was allocated responsibility for a particular Ministerial portfolio, and was responsible for providing media advice in relation to that portfolio. Although the advisers had responsibility for particular Ministerial portfolios, save for those who were responsible for the Premier's portfolios and the individual media plans associated with them, they were not employed by the Office of the Minister responsible for that portfolio, and did not report to the Minister responsible for the portfolio to which they were assigned. The media advisers did not give policy advice to the relevant Ministers and did not play any role in the administration of the agency for which the Minister to whose portfolio they were assigned was responsible.
3. Ms Crosweller deposed that the media advisers within the Office of the Premier assigned to the individual Ministerial portfolios prepared individual weekly draft media plans. Information included in the draft media plans was sourced from Ministerial office staff, electorate office staff and the communications unit within the relevant department or agency associated with a particular Minister. However, Ms Crosweller said that departments and agencies did not contribute directly to media plans and were not provided with access to them during or after their preparation. She said that the decisions about what to include in the individual draft media plans relied on political judgment.
4. Draft media plans contained 'fairly standard content and features', said Ms Crosweller, although the content and style could vary according to the individual style of the relevant media adviser. They would typically include the following content:

(a) the date, and a brief description of, proposed events or public announcements that the relevant Minister may attend in a given week;

(b) the details of any interest being shown, or expected to be shown, in those proposed events or announcements;

(c) potential positives and negatives or risks associated with an event or issue for Government and/or the relevant Minister, including anticipated criticism by the media;

(d) stakeholder views and possible community responses to an event, announcement or issue;

(e) information regarding upcoming issues or events which are expected to arise beyond the relevant weekly period, including the details of major issues coming up in relation to a given portfolio which are expected to attract attention in the media and/or the wider community;

(f) the details of upcoming campaigning events for the Government, including information regarding opportunities for the Government to promote its achievements and how those achievements can best be promoted; and

(g) information regarding upcoming parliamentary legislation and reports.

1. The individual draft media plans were submitted to the head of communications and the principal adviser, media, in the Office of the Premier as planning documents for the weekly master media plan.
2. The master media plan was described as a single document which consolidated the government's media strategy for a particular week, prepared from a whole of government perspective, and taking into account the activities of the Premier and each cabinet Minister. Ms Crosweller said:

The purpose of the master media plan is to optimise political opportunities for the government and to minimise risk and negative media stories. It is a planning document used to promote the political image of the government in the community - for example by assisting the government to maintain a coherent message on its policy objectives and ensuring that there is a proper allocation of media stories for the week ahead.

1. The master media plan was taken weekly for approval at a meeting of the Premier and Ministers. Individual media plans were not presented to or seen by the Premier or Ministers. The master media plan could be amended following the weekly meeting. The final approved master media plan would set out the particular media focus or engagements of the Premier and each Minister each week. That, too could change if events occurred during the week which changed the media focus. Ms Crosweller gave as an example of an event which could change the Cabinet approved master media plan for the week, the September 2010 floods in parts of rural Victoria. She said media advisers in the Office of the Premier allocated to particular portfolios were told after the weekly cabinet meeting which events a relevant Minister would be required to attend for that week, based on the approved master media plan.
2. Neither the individual media plans nor the master media plans were circulated or distributed outside the Office of the Premier. They were not provided to departments or agencies, because, Ms Crosweller said, their purpose was to identify the media opportunities mapped out by the Ministerial media advisers for the Premier or a particular Minister each week.
3. She said that Ministers diaries were filled with many matters, relating to the discharge of their duties, which were not subject to a media adviser's approval. However, her evidence made clear, one of the purposes of the media plans was to identify matters already in a Minister's diary which presented a media opportunity (that is something which was likely to attract significant interest, controversy or attention). She said such matters would find their way into the master media plan. It was implicit in what she said that matters in a Minister's diary which were not subject to a media adviser's approval, but which were identified as media opportunities, included matters with which a Minister had to deal in the course of the discharge of his or her Ministerial duties.
4. In my view, this overall effect of Ms Crosweller's evidence made it clear there was a considerable overlap between the business of government and the promotion of the political image of the government in the community.
5. One sample of a media plan was produced by the applicant. The circumstances in which it had found its way into the public domain were not clear, but the respondent's position was that its release was unintended and unauthorised. The media plan was an 8 page document headed 'Minister for Planning Justin Madden Media Plan' (the Madden Plan). It contained a notation it had been updated on February 24, and covered events from 23 February to 16 March 2010. It contained a running list of events, in date order, with some description and commentary, followed by a description of planned media events and a list of media requests.
6. In some respects, it covered matters other than those Ms Crosweller said would typically be included in such a plan. In particular, it went well beyond the provision of information necessary for compiling a master media plan with a stated purpose of setting out and having Cabinet approve the media focus or engagements of the Premier and each Minister in any given week.
7. Ms Crosweller said the Madden Plan, whilst covering many of the matters which were typical of an individual Ministerial draft plan, was not representative of a typical Ministerial media plan. She said it contained too much information, unnecessary and irrelevant information, and speculation on policy. She said speculation on policy was not part of a media adviser's job, that there was no requirement they deal with such matters.
8. To say the Madden Plan went beyond Ms Crosweller's description of the content of a typical draft media plan is an understatement. The Madden Plan contained a proposal, under the heading 'Planned media events: Proactive' relating to the manner in which the report of an advisory committee on the proposed redevelopment of the Windsor hotel could be dealt with. It noted the report was shortly due, and was expected to recommend the proposal proceed. It then said:

Strategy at this stage is to release it for public comment as this affects the entire community and then use those responses as reason to halt it as we have listened to community views.

1. This would seem to me to be a clear example of the overlap between the business of government and the promotion of the political image of the government in the community. It demonstrates there is not always a clear demarcation between the two.
2. As no other plans were in evidence before me, or provided to me for inspection, I am unable to say whether, at the time it was produced, the Madden Plan was an exception, as Ms Crosweller said, or not. She had not seen the Madden Plan at the time it was drawn on to produce the weekly master media plan. She said she was not involved in producing the master media plan for that week as it was her first week back after an absence of 12 months.
3. Whatever the general purpose of individual Ministerial media plans, and weekly master media plans, and whatever their content was supposed to include and not include, the fact Ms Crosweller had been absent for the 12 months immediately preceding the production of the Madden Plan means she is unable to say whether the media plans in the 6 month period covered by the request complied with her description of their intended purpose and content. Her assertion the Madden Plan was an exception is not one based on direct knowledge of the content of media plans during the whole period covered by the request.
4. On Ms Crosweller's evidence, the media plans for individual Ministers were drafts, or working documents, produced for the purpose of feeding into the weekly master media plan. That would make the Madden Plan a draft, superseded by a final plan, namely the master media plan produced for that week. It follows from Ms Crosweller's evidence the Madden Plan would not be covered by the terms of the request.
5. However, I am not able to determine whether the master media plans produced during the period covered by the request conformed with Ms Crosweller's understanding of their nature or purpose, or whether they, too, contained material of the nature revealed in the Madden Plan which went beyond Ms Crosweller's understanding of their content and purpose.
6. Evidence was also given by Ms Louise Martin, Director, Strategic Communication, in the Department of Justice. In that role she is responsible for communications activities of the Department of Justice. Communication activities she said, relate to development and delivery of public education campaigns in relation to legislative change. Ms Martin referred to the need for such campaigns, and all government advertising to comply with advertising and communication guidelines, and to be approved by the Victorian Government Advertising and Communication Approval process.
7. The respondent relied on this evidence to distinguish between the political role of the media adviser, and the non-political role of public sector employees employed in the communications units of government departments.
8. Media advisers are Ministerial advisers within the meaning of s 98 of the Public Administration Act 2004 (Vic). They are not, as Ms Martin and those in similar positions in other departments are, public service employees employed under Part 3 Division 1 of the Public Administration Act. As Ministerial advisers, media advisers are not public servants bound by the obligations imposed on public sector employees in Ms Martin's position by that Act.
9. I accept there is a distinction between the roles of the Ministerial advisers, and those public sector employees engaged, in the course of their duties, in implementing and administering legislation. However, having regard to the finding I have already made in relation to the overlap between the business of government and the promotion of the political image of the government in the community, the difference between the actual content of the Madden Plan and the stated purpose and content of media plans (both individual Ministerial plans and the weekly master media plan), I do not consider Ms Martin's evidence to be of assistance in determining the issues in this application.

1. When considering the respondent's grounds, I must do so by reference to the terms of the request. As I have noted, the request seeks only final media plans, or drafts not superseded by a final plan. The respondent submitted the Madden Plan, and all individual media plans were drafts, used solely for the purpose of the development of the weekly master media plan. If the individual media plans are drafts, they are not covered by the terms of the request. This application is not concerned with whether documents are drafts not covered by the request. It is concerned with whether access to the documents sought can be refused in reliance on s 25A(5), because it is apparent from their nature, they are exempt in their entirety, or are in practical terms unable to be provided in edited form, with the exempt parts excised. From the evidence before me, and in the manner in which the case was conducted by the parties, it appeared to me to be common ground that documents falling within the terms of the request existed. I proceed on that basis. For convenience I will refer to the documents sought in the request as final media plans or weekly master media plans.
2. The respondent submitted the documents, as a class, were not official documents of an agency or a Minister, and were therefore not subject to the legally enforceable right to obtain access to documents created by s 13 of the FOI Act.
3. In the alternative, it submitted, if the documents were official documents of a Minister, they are exempt, because they contain some material of a political nature which does not relate to the affairs of an agency or a department, and it is not practicable to provide access to a copy from which all exempted material has been deleted.

1. The respondent submitted the documents were not documents of an agency, as they are prepared by Ministerial advisers within the Office of the Premier, and remain in the possession of those Ministerial advisers.
2. Document of an agency means:

A document in the possession of an agency, or in the possession of the agency concerned, as the case requires, whether created in the agency or received in the agency.

Agency includes a department within the meaning of the Public Administration Act 2004.

1. I accept the evidence the media plans remained in the possession of the Ministers or Ministerial advisers, and were not provided to public service employees employed under Part 3 Division 1 of the Public Administration Act. I am satisfied it follows that the documents were not in the possession of the agency as required for the purposes of s 13(a).

Are the media plans official documents of a Minister?

[A] document in the possession of a Minister, or in the possession of the Minister concerned, as the case requires, that relates to the affairs of an agency, and, for the purposes of this interpretation, a Minister shall be deemed to be in possession of a document that has passed from his possession if he is entitled to access to the document and the document is not a document of an agency_._[8]

1. I am satisfied that master media plans were brought into existence each week, provided to Ministers for consideration in cabinet meetings and retained by the Ministerial advisers. This evidence satisfies the first part of the definition of official documents of a Minister, namely that they were in the possession of the Minister, or are deemed, for the purposes of the definition, to be in the possession of the Minister.
2. The next question for determination then, is whether the media plans relate to the affairs of an agency.
3. In Wilson v Department of Premier and Cabinet[9] and Re Said and John Dawkins MP[10] this tribunal and the AAT emphasised the importance of identifying the capacity in which a Minister was in possession of a document. It is only documents possessed by Ministers in their Ministerial capacity, that is, which relate to the affairs of an agency, which are subject to production under the FOI Act. In both Wilson and Dawkins, the tribunals distinguished between documents held for that purpose, and documents held in a Minister's capacity as a member of a political party, or a local member.
4. In my view, Ms Crosweller's evidence about the general content and purpose of the weekly master media plan shows it covers matters which relate to the affairs of the agency for which the Premier and Ministers are responsible. As Ms Crosweller's evidence to which I have earlier referred made clear, included in the content of the weekly master media plans was proposed public announcements by a Minister, consideration of stakeholder views and possible community responses to an announcement, consideration of major issues coming up in relation to a given portfolio, and provision of information regarding upcoming parliamentary legislation and reports. As Ms Crosweller said, the purpose of inclusion of these matters in a weekly master media plan was to 'optimise political opportunities for the government' and 'promote the political image of the government in the community'. These matters, in my view, cannot be regarded as simply advancing the interests of the governing party. They also relate to the affairs of the agency for which Minister's were was responsible.
5. The Madden Plan included matters relevant to the Minister's activities as a local member, and member of a political party. It also included matters relevant to the exercise of his Ministerial functions as Minister for Planning, in respect of the Windsor Hotel proposal. If any final plans contain like matters, even if sought to be addressed in a manner designed to 'optimise political opportunities for the government' and 'promote the political image of the government in the community', they would, in my view, contain matters which would also relate to the affairs of an agency.
6. That the media plans also include matters more clearly identifiable as advancing the interests of Ministers as members of parliament, or as members of a political party is not to the point, at this stage, when considering s 25A(5)(a). If the need to consider these matters arises, it does so when considering the practicability of granting access to that part of the material which is not exempt, under s 25A(5)(b)(i) and s 25(b).
7. The respondent has not satisfied me, therefore that it is apparent from the nature of the documents requested that the weekly master media plans do not contain content that relates to the affairs of an agency. I am not satisfied therefore that it is apparent from the nature of the documents they are not official documents of a Minister.

(b) an official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a department.[11]

1. I accept, based on Ms Crosweller's evidence about the general nature of a weekly media master plan, and my examination of the Madden Plan that it is highly likely that the weekly master media plans contain some matter that does not relate to the affairs of an agency, and that can properly be characterised as information of a political nature, related to advancing the interests of the Ministers in their capacity as local members, as members of a political party or as members of the governing party.

Does an obligation arise under s 25 to grant access to edited copies of the documents?

1. This then requires consideration of whether the documents as a whole are exempt, or whether, pursuant to s 25, it is practicable to provide these parts of the documents which do not contain exempt material. As the refusal to provide access in this case was in reliance on s 25A(5) by s 25A(5)(b) the question is whether it is apparent from the nature of the documents as described that there would be no obligation to provide access to edited copies. It is not apparent from the nature of the documents as described - that is the weekly media master plans - that they could not be edited to remove the exempt materials.
2. On the evidence before me, the respondent has not satisfied me it would not be practicable to delete the exempt material from the weekly master media plans, or any drafts not superseded by a final version.

1. For these reasons I am not satisfied it is apparent from the nature of the documents as described that all of the documents to which the request is expressed to relate are exempt documents. I am not satisfied that it is apparent from the nature of the documents as described it would not be practicable to grant access to an edited copy of the documents. The decision of the Minister to refuse to grant access to the documents under s 25A(5) is set aside. The request will be remitted to the Office of the Premier for the Minister or his delegate to deal with in accordance with s 13 and s 25.

[9] [2001] VCAT 1769.

[10] [1993] AATA 9; (1993) 30 ALD 242.