APPLICANT : Democratic Nillumbik Association Inc

1. In March 1995 during the term of appointment of commissioners to govern the Shire of Nillumbik, Mr Rochford was engaged as Chief Executive Officer. This was preceded by amalgamation of various councils to save costs by rationalising local government organization. In order to further promote economies, S.208A of the Local Government Act 1964 was introduced as an amendment in 1994. This provision requires councils to put out to tender works and services to the value of not less than 50% of their annual expenditure. This is referred to as Compulsory Competitive Tendering ("CCT") and council employees tender for such services annually to ensure they are competitive and in turn ratepayers are not burdened with unnecessary expense.

2. With the compulsory reduction in rates concern was felt by members of the Shire that it may not be financially viable in the long term. Moreover, as had not been the case with earlier budgets, the 1996/7 budget was not available for discussion within the general community. It is against this setting that the Applicant was formed prior to the election of councillors to replace the commissioners in early 1997 and this application was made for documents of the council.

3. By letter dated 27 November 1996, the Applicant sought :

"1. Employment contracts, position statements and current performance appraisal criteria for the CEO and first level Managers.

2 . The latest Budget versus Actual Year to Date report (including expected end of year results) for full 96/97 budget. (Not summarised version). If unavailable a full copy of 96/97 budget.

3. Current full organisation structure and full staff listing, including organisational structure position (and current title - if different).

4. Full Roy Morgan Consumer Market Research report on Nillumbik (including Terms of reference, questionnaire, methodology, full results and Strategic Analysis thereof, etc)."

4. For reasons that are unclear, Mr Burns, acting on behalf of the Applicant, was told to divide up the application into three requests, following which he submitted them in forms provided by the Shire. These requests include the first three items set out above, but delete item 4. The initial letter had insufficient space to accommodate the description of all of the documents and it was Mr Burns' evidence that the direction was unnecessary and designed to extract three fees from the association rather than one. Although Mr Burns said a Mr Bean of the council staff gave this direction, the latter denied having done so, although he recalled providing Mr Burns with three such forms. There is no doubt that such a direction was issued, that it was unnecessary and did not comply with the spirit and object of Freedom of Information Act 1982 (FOI). However, I am unable to say who, on behalf of the Shire, gave the directive.

5. Mr Rochford was appointed Chief Executive Officer of the Shire from 6 March 1995 and was the first witness to be called. He said that his staff produced various documents pertaining to the request and he in turn sought legal advice. Following receipt of this advice he declined to provide some documents sought by the Applicant claiming exemption under sections 33 and 34 of FOI and so notified Mr Burns by letter dated 23 January 1997 under his signature. As Chief Executive Officer of the Respondent Mr Rochford, for the purposes of S.26(2), is the principal officer of the Respondent : see definition S.5. He was therefore unable to conduct an internal review pursuant to S.51 of FOI. However, at a preliminary hearing, it was stated on behalf of the Respondent that Mr Rochford had conducted such a review. Irrespective of what may have been said at an earlier hearing, the evidence is that he did not conduct such a review. Mr Burns was critical of the apparent conflict of interest Mr Rochford faced as authorized officer, but there is little he could do to resolve it other than to, as he did, seek legal advice and act upon it. I note, however, that the Applicant sought further explanation from Mr Rochford of his earlier decision by letter of 24 January 1997.

6. The Applicant sought a review of the Shire's decision on 14 February 1997. The Respondent in Schedule D to its S.36 statement identified the documents in dispute and claimed exemption under sections 33, 34 and 35 of FOI. Five of these documents are employment contracts, including that of Mr Rochford. Subsequently, and upon consideration of the decision of this Tribunal in Milthorpe v Mt Alexander Shire [1997] 12 VAR 105 and the authorities therein set out, the Respondent released all of these contracts save that of Mr Rochford, together with the sixth document being a letter, on 1 June 1998. However, it identified three further documents in respect of which it claimed exemption which are set out together with the grounds relied upon in an amended schedule of documents set out below :

1. Employment Contract of Chief Executive Officer dated 12 December 1995

2. Position Description and Performance Criteria of Chief Executive Officer created on or about 12 December 1995. These two documents are contained in one single document.

Section 38A - to the extent to which this document forms part of the Chief Executive Officer's employment contract, this document is exempt pursuant to section 38A.

The document identified as a Position Description and Performance Criteria was specifically created for inclusion into the Chief Executive Officer's employment contract, and this employment contract was considered in a closed meeting of Council.

3. Nillumbik Shire Council staff structure as at 19 May 1997 (deemed to be part of the original request by Order of the Tribunal made on 30 May 1997)

Sections 33 and 34(4).

Section 34(4).

S.33(1)

"A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person)".

(ii) in the case of an agency engaged in trade or commerce - information of a business, commercial or financial nature -

that would if disclosed under this Act be likely to expose the agency to disadvantage;"

(b) a document which, in the opinion of the principal officer of a council, has been prepared for, or will be used for, consideration of any matter by the council at a meeting, that in the opinion of the principal officer, is likely to be a closed meeting of the council;

(d) a document the disclosure of which would involve the disclosure of any deliberation or decision of a closed meeting (other than the official record under section 89(3) of the Local Government Act 1989 in the minutes of a meeting of the reason for closing a meeting to the public) or of a meeting that is likely to be a closed meeting;

(e) a document that is ancillary to, associated with or accompanying a document referred to in paragraph (a), (b), (c) or (d).

(2) Sub-section (1) does not apply to a document by reason of the fact that it was submitted to a closed meeting of a council for its consideration or is proposed to be so submitted if it was not brought into existence for the purpose of submission for consideration by a closed meeting".

S.89(1), 2(d) and (3) Local Government Act 1989

"(1) Unless sub-section (2) applies, any meeting of a Council or a special committee must be open to members of the public.

(2) A Council or special committee may resolve that the meeting be closed to members of the public if the meeting is discussing any of the following :

(3) If a Council or special committee resolves to close a meeting to members of the public the reason must be recorded in the minutes of the meeting".

8. By the end of 1997, there was concern about the relationship between the Shire President, Councillors, the Chief Executive Officer and the Council Management team at the Respondent. Particularly, it focused on the circumstances pertaining to a negotiated termination package for Mr Rochford and delegations to his subordinates contained in his employment contract. The position was further complicated by Mr Rochford's negotiations for a similar position interstate. All of this attracted widespread media coverage.

9. The Minister for Local Government and Planning appointed Mr David Abraham on 29 January 1997 as a commissioner pursuant to s.209 of the Local Government Act 1989 to inquire into these matters. Mr Abraham heard evidence in early 1998 and published an interim report dated May 1998 containing various findings and recommendations. This report is largely irrelevant to the proceedings before me save that Mr Hayes, who appeared on behalf of the Respondent, contended that it identified countervailing reasons of public policy the employment contract of Mr Rochford should not be released should the matter fall for my decision under s.50(4) of FOI. Mr Abraham found in this regard that :

* there is nothing unusual about the CEO's contract. The real issue that caused concern was one of delegations and I have referred to this in some detail (para 5.1.4);

* no attempt should be made to challenge the existing terms of the CEO's contract until at least three months after the consultant's report and implementation of the procedures and processes recommended (para 1.4 and 4.4);

* in order to enhance the likelihood of good governance by implementing the steps set out in the report including addressing recommendations of criticism of management of the council business he would not hear further evidence in public about the employment contract (p.4).

10. Mr Hayes submitted that the force of the recommendations was such that the CEO's contract ought not be made public because to do so would undermine the force of Commissioner Abraham's recommendation that a cooling-off period be entered into consistent with a constructive future approach by the parties. Notwithstanding this submission, I note that Commissioner Abraham quotes in his report at pp.34 and 35 passages of the contract and the schedules thereto.

11. This is the employment contract of Mr Rochford. In order to be exempt under s.38A(1)(d) it must be established that the document would involve the disclosure of the deliberation or decision of a closed meeting of council or of a meeting that is likely to be closed or is a document ancillary to it (s.38A(1)(e)) and that the document must be brought into existence for the purpose of submission for consideration by council in a closed meeting (s.38A(2)).

12. Mr Rochford was engaged by the City of Wangaratta prior to coming to his current position. He said that he responded to an advertisement in the newspaper and, following an exchange of letters culminating in a letter of intent, he assumed his position with the Respondent on 6 March 1995. This letter he said contained details of the total package and the length of the contract of service. It was on this basis that he commenced his employment. However, he stated that a formal contract had to be "developed" setting out his duties, delegations and further powers, all of which had to be formulated. The Respondent, he said, gave instructions to their then solicitors Price Brent to prepare the formal contract. Mr Rochford said he did not know which documents were with Price Brent for this purpose because that was handled by the Commissioners. There was apparently delay caused by a partnership rearrangement with that firm and fresh instructions were given to the Respondent's current solicitors Messrs Maddock Lonie & Chisholm, and particularly with Mr Ross Jackson of that firm. He said that he did not give these instructions but could recall an occasion when Mr Jackson came to the Respondent's offices to see Mr Cordell, the Chief Commissioner. Mr Rochford said that drafts were prepared and given to him and that he had discussions and negotiations over some months with Mr Cordell and the remaining Commissioners of the Respondent, namely Mr Abbot and Ms Austin. These negotiations took place over approximately six months leading up to December 1995 and Mr Rochford said that agreement was reached between the Commissioners and himself following which the formal document, being Document 1, was submitted to a meeting of Council. In his first statement dated 31 March 1998, Mr Rochford said when referring to Document 1 :

"This document came into existence as a result of confidential communications and negotiations with the Respondent. The document was agreed to at a meeting of the Respondent, which was a closed meeting pursuant to S.89(2) of the Local Government Act 1989".

13. In a later statement dated 1 June 1998, Mr Rochford elaborated on the above statement in the following way :

"It was created for the sole purpose of being considered at a meeting of the Respondent which was to be closed to members of the public, in accordance with s.89(2) of the Local Government Act 1989. The employment contract was considered, and was the subject of a resolution, by the Respondent at a meeting held on 12 December 1995. At the time of consideration in making of the resolution, the meeting was closed to members of the public in accordance with s.89(2) of the Local Government Act 1989".

14. Section 95A of that Act (which came into force on 7 December 1993) provides that a senior officer may only be employed under a contract and stipulates the essential terms of such contract. A contract which does not contain these terms is, perforce of S.98A(4), void unless the person so acting was filling the position on an acting basis. Section 95A(1) at the relevant time required senior officers to be employed by a council under a contract following the introduction of an amendment (Act No 125/1993 S.7(1)).

15. Notwithstanding Mr Rochford's later statement that Document 1 was brought into existence "for the sole purpose of being considered" in my view, on the whole of his evidence, this is not the case. It would appear that Mr Rochford and the Respondent entered into an arrangement which operated between March 1995 and December 1995 and is set out in the exchange of letters between the parties in the early part of that year, and prior to Mr Rochford taking up his appointment in March 1995. None of these documents are in evidence. Subsequently, changes were made to this arrangement at the instigation of Commissioners then acting as the Respondent. Mr Rochford described these as amounting to a development or a formulation of duties, powers and delegations. In the interim, he did not feel that his position was insecure and this culminated in agreement between the parties as to the content of Document 1 and subsequent submission to a meeting of council. The purpose of the document, in my view, was to achieve an enforceable agreement between the parties relating to Mr Rochford's engagement with the Respondent as its Chief Executive Officer. To do so it was necessary to set out, in formal terms, the arrangement entered into between the parties in March 1995 with further description of Mr Rochford's duties, powers and delegations. Once this had been agreed between the Commissioners and Mr Rochford it then became necessary to submit the document to a meeting of Council because under the provisions of S.95A of the Local Government Act as it then stood (and indeed this requirement is now included in S.94(1) of the Act), it was necessary that Council appoint Mr Rochford. The purpose of Document 1 was to reduce to writing an agreement entered into between Mr Rochford and the Commissioners out of council which in turn needed to be submitted to a meeting of council in order for the appointment to be confirmed. This was done on 12 December 1995 and the seal of Council was affixed some nine days later.

16. In submissions Mr Hayes, solicitor for the Respondent, said the Respondent did not rely upon S.38A(b) because at the time the document was created it could not be said that it was likely to be submitted to a closed meeting of council. I note this runs counter to the statement of Mr Rochford part of which I have set out above. Rather, Mr Hayes relied upon S.38A(d) and (e) in that Document 1 was a document ancillary to that referred to in sub-paragraph (d). Alternatively, Mr Hayes submitted that since Document 1 was approved by the Respondent, its terms must have been considered by the Respondent and to disclose it would reveal their deliberation or decision and thus it falls within sub-paragraph (d) without law.

17. In my view, Document 1 was created to record an agreement between the Commissioners and the Applicant. The requirements of the Local Government Act 1989 was such that this document was required to be entered into by the Respondent and for that reason needed to be submitted to a meeting of Council. Such meeting may have been a closed meeting (see S.89(2)(a)) however the purpose for which the document came into existence was not for submission to a closed meeting of council as is required by S.38A(2). Accordingly, it is not an exempt document for the purposes of S.38A of FOI.

18. This document is Schedule 1 to Document 1 and forms part of it. For the reasons I have expressed above, there is no evidence that this document was created for the purpose of submission to a closed meeting of council. Likewise it is not exempt from release.

19. This document bears the title "Nillumbik Shire Council Staff Structure". It was created by a senior management team of the council namely the Chief Executive Officer, the Group Manager Corporate Services, the Group Manager Cultural and Community Services, the Group Manager Environmental and Engineering Services and the Group Manager Organisation Development. In its amended schedule of documents in dispute, the Respondent claimed exemption under Sections 33 and 34(4). However, in an outline of legal contentions filed prior to the hearing on 17 June 1998, the Applicant referred only to S.34(4), but during the course of submissions Mr Hayes on behalf of the Applicant placed reliance on S.33 insofar as references to bands be they Band 6 or Band 4 for example, indicated the range of salary for a particular person and would thus disclose the range within which that person's salary would fall. This it was contended was a matter of personal privacy for the purposes of S.33 of FOI. Section 33(1) of the Act is in the following terms :

"A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).

20. In my view, the disclosure of the bands applicable to particular employees would not constitute an unreasonable disclosure of their personal affairs.

21. The expression "personal affairs" is to be given its ordinary dictionary meaning of "matters of private concern to an individual" (see DPP v Smith [1991] VicRp 6; [1991] 1 VR 63 at 69 and the cases therein cited). What is contained in Document 3 is simply the name of the employee of the Respondent, the title of the position that they are engaged in and the salary band by reference to a number. In my view, the description of a position which a person occupies within the hierarchy of the respondent does not relate to the personal affairs of such person. Moreover, a reference to a band number being the range of salary applicable to such a position is not a personal matter of the individual who occupies that position. In Melbourne University v Robinson [1993] VicRp 67; [1993] 2 VR 177 at 187 Eames, J. distinguished "personal affairs" from those relating to a position, office or other public activity in the following

"The reference to the `personal affairs of any person' suggest to me that a distinction has been drawn by the legislature between those aspects of an individual's life which might be said to be of a private character and those relating to or arising from any position, of office, or other public activity with which the person occupied his or her time".

22. The Respondent also claims exemption under S.34(4) of FOI which is in the following terms :

(ii) in the case of an agency engaged in trade or commerce - information of a business, commercial or financial nature -

that would if disclosed under this Act be likely to expose the agency to disadvantage;

23. I have referred to the compulsory competition tendering requirement imposed upon the Respondent under the Local Government Act 1989. Mr Hayes on behalf of the Respondent submitted that the release of the particular bands applicable to an individual would have the potential of yielding to a competitor the labour costs of in-house teams who must submit their tender for contracts to be let by the Respondent from time to time. This, he contended, would be detrimental to the Respondent in that a competitor armed with this knowledge would be better placed to pitch its tender at levels higher than it otherwise would have done, but for its ability to determine with some confidence the level of CCT bids submitted by in-house respondent employees. In short, a private tenderer may increase its tender above that which otherwise it might select with the confidence that the revised tender would nonetheless be less than that put forward by in-house tenderers. I accept that the potential for this to occur may arise if the relevant salary bands are disclosed and therefore am satisfied that the Respondent would be disadvantaged. The Respondent is an agency for the purposes of S.5 of that Act being a council within the meaning of S.3(1) of the Local Government Act 1989.

24. I am satisfied that at the date of the request, ie 26 November 1997, the Respondent was engaged in trade or commerce. A perusal of exempt Documents 3 and 4 leads to this conclusion. For example, it is apparent that the Respondent hires plant, maintains buildings, derives revenue from the provision of library facilities, dental health, play houses, pre-schools, baby capsules, home care, and food services. In addition, Mr Rochford referred to council CCT teams competing with outside tenderers in respect of valuation of properties, administration of community halls and environmental health.

25. Mr Burns for the Applicant indicated that should I be of this view, the Applicant was content to accept Document 3 in an expurgated form by deleting all references to the band applicable to each individual therein identified and the deletion of references to EFT (being the designation for equivalent full time positions and the numerals accompanying each reference). A document in this form would not have the potential of causing disadvantage to the respondent and the document can be released to the Applicant in this form and I will so order pursuant to S.25 of FOI. Should there be any doubt on the part of the Respondent as to the extent of the deletions I will grant to the Respondent liberty to apply on notice to the Applicant for rulings in the particular instances.

26. This is a monthly operating report of the Respondent dated October 1996. The Respondent maintained it was exempt under the provisions of S.34(4) of FOI relying upon the same grounds as it did for Document 3. During the course of submissions, I raised with the Respondent whether it was able to delete sensitive passages from this document to enable it to be released in a modified form. This was doubtful because of the nature of the document and I invited the Respondent and the Applicant to consider whether a substitute document could be produced and delivered to the Applicant. Subsequently, solicitors for the Respondent provided the Applicant with a fresh document which provides some of the information contained in Document 4 but excludes the sensitive material. The Applicant, recognising that a considerable amount of work and time will be required in producing Document 4 in its original form with the sensitive material excluded accepted the substitute document. It is therefore unnecessary for me to make a decision concerning the release or otherwise of Document 4.

27. In conclusion, I propose to set aside the determination of the Respondent and to order the release of Documents 1 and 2 and the release of an expurgated version of Document 3.

I certify that this and the preceding 19 pages are a true and correct copy of the reasons for decision of His Honour Judge Wood, Vice President of the Victorian Civil and Administrative Tribunal.

FOR THE RESPONDENT : Mr M Hayes and Mr P Connor