1. Order 3 made on 4 February 2026 under the Open Courts Act 2013 (Vic) is varied such that it applies to the evidence of Karen Frost except the evidence contained in the paragraphs of her confidential witness statement made on 30 May 2025, identified in [207] of these Reasons.
2. The 11 October 2024 decision of the Public Access Deputy Commissioner is affirmed in respect of Documents 7, 9 and 10.

1. Mr Kieran Rooney[1] is a state political reporter at The Age newspaper. This proceeding concerns an access request he made under the Freedom of Information Act 1982 (Vic) (FOI Act), for ministerial briefs and other documents relating to the Suburban Rail Loop (SRL).
2. While the Request was directed to the Suburban Rail Loop Authority (SRLA), it was ultimately dealt with by the Department of Treasury and Finance. Following discussions between Rooney and the Department, the final form of the Request was:

A copy of all ministerial briefs covering 1 January 2021 to 6 November 2023 with the following keywords

- Suburban Rail Loop and value capture; or

- Suburban Rail Loop and alternative funding options.

And the follow[ing] documents covering the same time frame (1 Jan 2021 and November 6 2023)

- SRL EAST Value capture studies, and value capture options assessments

- The SRL East's funding framework

1. Rooney also sought a search for signed briefs for all Department portfolio ministers, and, for the keywords, all documents containing specified keywords in their titles.
2. As indicated by the terms of the Request, the documents Rooney sought concerned the funding of, and framework for, expenditure of funds to construct the SRL.
3. On 4 April 2024, the Department refused access to the ten documents which were responsive to the Request.
4. Rooney sought review of the Department's decision by the Office of the Victorian Information Commissioner (OVIC). The Public Access Deputy Commissioner found seven of the 10 documents to be exempt in their entirety under the Cabinet documents exemption (in section 28 of the FOI Act) but found the remaining three documents were not exempt under the internal working documents exemption (in section 30 of the FOI Act) (Deputy Commissioner's Decision).
5. The Department applied to the Tribunal for review of the Deputy Commissioner's Decision in respect of the three documents OVIC found were not exempt.
6. Of the three documents in issue before me, two had been created in July 2022 and were relevantly identical (referred to as Documents 7 and 10). The third was created in June 2022 (referred to as Document 9).
7. The Department relied on the FOI Act Cabinet documents exemption (contained in section 28) and the internal working documents exemption (contained in section 30) for Documents 7 and 10. I record that section 28 was not relied on for those Documents before OVIC. As this proceeding calls for a fresh decision, it was open to the Department to make that claim.
8. The Department relied on the internal working documents exemption for Document 9.
9. After considering the parties' joint Tribunal Book (TB), the evidence called and the parties' submissions, I have decided that none of the three documents are exempt, whether in part or in full.
10. As to the Cabinet documents exemption, the evidence does not support findings that release of the redacted parts of Documents 7 and 10 would disclose:
    • Drafts or extracts of documents prepared on behalf of a Minister for the purposes of submission to a Cabinet Committee for consideration (under sections 28(1)(b) and 28(1)(c) of the FOI Act).
    • A draft, or extracts of a document that was prepared to brief a Minister in relation to issues to be considered by a Cabinet Committee (under sections 28(1)(ba) and 28(1)(c) of the FOI Act).
    • Any deliberation or decision of a Cabinet Committee (under section 28(1)(d) of the FOI Act).
11. The evidence does not support findings that the redacted parts of Documents 7 and 10 or the whole of Document 9 are exempt under the internal working documents exemption.
12. As a consequence, albeit for partly different reasons, I have affirmed the Deputy Commissioner's Decision.

Draft email and example list of due diligence documents

1. Documents 7 and 10 are identical except that there is a presenter note on Document 10 which refers to an Acknowledgment of Country.
2. During this proceeding, the Department released to Rooney redacted versions of Documents 7 and 10. As a result, the dispute concerns those parts of the Documents which remain redacted. In these Reasons, references to Document 7 are to be read as including Document 10.
3. The Department maintains that Document 9 is exempt in full.

ROONEY'S LEGAL REPRESENTATIVES' ACCESS TO THE DOCUMENTS AND A CONFIDENTIAL WITNESS STATEMENT

1. In 2025, while preparing for the final hearing, Rooney's legal representatives wrote to the Department seeking access to the Documents to assist in preparation for the hearing. That request was refused by the Department.
2. The Department produced written submissions on 5 December 2025 which included an application for orders to be made under section 56(3) of the FOI Act (or under section 30(1) of the Open Courts Act 2013 (Vic) (OC Act)) for access to a Confidential Statement made by its witness, Ms Karen Frost,[2] (Frost's Confidential Statement) to be limited to the presiding Tribunal member. It also applied for a closed court hearing order to be made under section 30(1) of the OC Act so that, during Frost's confidential evidence, only the presiding member and the Department's legal representatives could be present.
3. On 21 January 2026, Rooney made an application for an order under section 56(3) of the FOI Act that the Documents be disclosed to his legal representatives.
4. On an agreed basis, the Department gave Rooney's counsel access to the Documents and to Frost's Confidential Statement. It was also agreed that counsel would be present during any confidential evidence given by Frost and be able to cross-examine.
5. Rooney maintained the application for access to the Documents and Confidential Statement in respect of his solicitors and opposed their exclusion from any part of the hearing.
6. At the commencement of the hearing, I heard the applications and granted Rooney's application for access to the Documents and Confidential Statement to be extended to his solicitors. I granted the application for part of the hearing to be closed for Frost's confidential evidence but allowed Rooney's counsel and solicitors to be present.
7. The parties produced orders to reflect the terms of my rulings and those were made. Relevantly, the Confidentiality Orders said:
   1. Under s 56(3) of the Freedom of Information Act 1982 (Vic) (FOI Act), upon Veronica Scott and Gagan Singh of Pinsent Mason, lawyers for the respondent, giving an undertaking in the form of Precedent [FOIFP.800], the applicant is to make available to them a copy of:

(i) the documents which the applicant claims are exempt; and

(ii) the confidential witness statement of Karen Frost.

1. Under s 56(3) of the FOI Act, access to the redacted parts of the confidential witness statement of Karen Frost is to be limited to the Tribunal and the external legal representatives and counsel for the respondent.
2. Under ss 30(1)(b) and 30(2)(f)(ii) of the Open Courts Act 2013 (Vic), the confidential part of the evidence of Karen Frost is to be given in a closed hearing with only the following persons or classes of persons present:

(i) the applicant and its representatives; and

(ii) the external legal representatives and counsel for the respondent.

1. The Department then produced a redacted version of Frost's Confidential Statement, disclosing content which was to be regarded as open and maintaining that significant parts were to be treated as confidential.
2. Rooney's counsel objected to the extent of the redactions in Frost's Confidential Statement and submitted that the Confidentiality Orders ought to be amended. I expressed the view that I could not determine that particular matter until the evidence had been heard. Counsel reserved the right to return to the issue later.
3. After the evidence had all been heard, Rooney's Counsel renewed his objection to the application of the orders to certain parts of Frost's Confidential Statement. I address that matter later in these Reasons.
4. The hearing proceeded as foreshadowed in the Confidentiality Orders.

1. Section 3(1) of the FOI Act sets out its objects and says:

The object of this Act is to extend as far as possible the right of the community to access to information in the possession of the Government of Victoria and other bodies constituted under the law of Victoria for certain public purposes by -

(a) making available to the public information about the operations of agencies and, in particular, ensuring that rules and practices affecting members of the public in their dealings with agencies are readily available to persons affected by those rules and practices; and

(b) creating a general right of access to information in documentary form in the possession of Ministers and agencies limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies.

1. Section 3(2) says it is intended for the provisions of the FOI Act to be interpreted so as to further the object set out in subsection (1) and that any discretions shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
2. Section 13 of the FOI Act says that, subject to the FOI Act, every person has a legally enforceable right of access to 'a document of an agency', other than an 'exempt document'.
3. Section 25 provides that, where a decision is made not to grant access to an exempt document but it is practicable for the agency to grant access to a version of the document 'with such deletions as to make the copy not an exempt document', the agency is to grant access to such a copy of the document if it appears that the applicant would wish to have access to it. Because of my decision that the Documents are not exempt, it has not been necessary to consider section 25.

1. Because this proceeding arises from the Department's application under section 50(3D) of the FOI Act, it does not bear the onus of establishing that the Deputy Commissioner's Decision was incorrect or that the Tribunal ought to give a decision adverse to Rooney.[3] As a result, the Tribunal's task is to determine what is the correct or preferable decision.

1. By the time of the hearing, the Department's position in respect of the section 28 exemption had narrowed. The parts of section 28(1) which it relied on say:[4]

A document is an exempt document if it is -

. . .

(b) a document that has been prepared by a Minister or on his or her behalf or by an agency for the purpose of submission for consideration by the Cabinet;

(ba) a document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet;

(c) a document that is a . . . draft of, or contains extracts from, a document referred to in paragraph (a), (b) or (ba); or

(d) a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published.

1. For the purposes of section 28(1), the term 'Cabinet' includes a committee or sub-committee of Cabinet (see section 28(7)).
2. As stated by Senior Member Smithers in Davis v Major Transport Infrastructure Authority:[5]
   • It is a longstanding principle of the Westminster system of government that the deliberations of Cabinet are secret. That is the fundamental reason for the existence of section 28.
   • The actual use made of a document may be relevant in ascertaining the purpose for which it was created, but is not decisive of that question.
   • The Tribunal must be satisfied that the particular document 'fits squarely into the Cabinet documents exemption. Bearing in mind the object of the FOI Act to extend as far as possible the community's access to information in the possession of government, it is not enough for the document merely to have some connection with Cabinet, or because it has a Cabinet 'aroma' about it'.
3. I describe the law which applies to section 28 below from [85].

The internal working documents exemption - section 30

Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act -

(a) would disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers, 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

(b) would be contrary to the public interest.

1. Section 30(3) provides the exemption will not apply to a document by reason only of purely factual material contained in the document. However, where the factual material is embedded in the consultative and deliberative nature of the document, it may be exempt in order to maintain the exemption over the section 30(1)(a) material.
2. In Tucker v Commissioner of State Revenue,[6] Quigley J described the purpose and scope of the exemption as follows (citations omitted):

The purpose of the exemption is to protect the deliberative processes of government and to ensure that measure of confidentiality which will enable policy and like decisions to be taken after as frank as possible exchange of views and ideas between officers of the public service. The SRO submitted that documents in respect of which the exemption was claimed would if disclosed have a chilling effect on the giving of independent, frank and fearless advice by officers in relation to the decisions they have to make. Further, the quality of the advice to be provided would be compromised in that preliminary discussion and debate would be inhibited and there would be a reluctance to create a written record of such a discussion and debate if drafts of other preliminary internal working documents were subject to disclosure.

To fall within the exemption the document should either record the opinion, advice or recommendation or disclose it. A document that discloses material in the nature of consultation or deliberation also falls within s 30(1)(a). The term 'deliberative processes' is wide enough to include any of the processes of deliberation or consultation involved in the functions of an agency, what might be described as the agency's 'thinking processes'.

1. In Friends of Mallacoota Inc v Department of Planning and Community Development,[7] (Friends of Mallacoota Inc) Vice-President Hampel J referred to the following summary of considerations produced by counsel for the respondent as 'helpful':

Regard must be had to both the nature of the information and the nature of the document.

The more sensitive or contentious the issues involved in the communication, the more likely it is that the communication should not be disclosed.

Draft internal working documents or preliminary advices and opinions are more generally than not be inappropriate for release. That 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, to give a spurious standing to such documents or promote pointless and captious debate about what might have happened rather than what did.

Decision-makers should be judged on the final decision and their reasons for it, 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 a decision-making, investigative or other process.

1. Judge Hampel also referred to the following additional considerations raised by counsel for the applicant:[8]

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;

Public interest concerns the interest of the public as distinct from the interest of individuals.

[the] public interest must be considered document by document ...

1. I further describe the law which applies to section 30 below from [157].

1. The Department relied on the evidence of Frost, Director, Infrastructure Division. Frost has been in that role since around August 2019. In that role, Frost leads a team within the Infrastructure Delivery Group. Prior to her current role, Frost was a Director in the Department's Revenue Group in its Economic Division and has worked in the Victorian Public Service for approximately 20 years.
2. Frost made an 'open' witness statement dated 4 March 2025 (Frost's Open Statement).[9] Frost's Confidential Statement dated 30 May 2025 was, as described above, only partially redacted.
3. Rooney made a witness statement dated 5 May 2025 (Rooney's Statement).[10] In that Statement he described his more than 10 years of experience. He has been in his current role as a State political reporter since August 2023. He reports on news relating to State government and politics, including 'tracking and reporting on legislation, covering state elections and interviewing politicians and government officials, to help keep the Victorian public informed about State government activities and ensuring that officials and the government are held accountable'. He stated that his expertise includes 'covering issues in transport and infrastructure and other areas of public policy that impact the future of Victoria and the community'.
4. Rooney gave evidence about his interest in the Documents and why, in his opinion, it was in the public interest for them to be released.

1. Frost's Open Statement provided the following background evidence:
   • In her role and across the Group, Frost works closely with the SRLA and other State agencies, in relation to financial aspects of the SRL. That includes development of the Funding and Financing Strategy that is referred to in the Documents.
   • The SRL is a 'high-value, high-risk program of capital infrastructure, operational activities related projects that will take place over decades'.
   • The funding and strategies for delivery of the SRL as a whole, are 'highly sensitive and need to be kept confidential to protect the integrity of those strategies'. Confidentiality was said to also be 'important in terms of not prejudicing the SRLA's and the State's financial interests and their ability to achieve outcomes representing best value for money'.
   • 'Proposed land acquisition and procurement processes for the SRL' were said to be confidential so as to maintain 'the integrity of land acquisition processes, and to prevent land speculation or land value changes (which may have impacts for landowners, the SRLA or the State)'.
   • As the land acquisition and procurement processes affecting the SRL are ongoing, given that the SRL is to be delivered over many decades, she is 'aware that there are strict protocols in place to limit the information that is released to the public and the market, and the timing for such releases'.
   • The Group led the development of the Funding and Financing Strategy and produced the Documents 'in collaboration with our external advisers, and other State agencies'.

1. Frost's Open Statement referred to the SRL's 2021 Business and Investment Case (Business Case) which is publicly available and which refers to the following as sources for funding the SRL:
   • Victorian Government funding.
   • Australian Government funding.
   • State enabled land development proceeds.
   • New value capture arrangements.
2. It is sufficient for present purposes to quote the following to explain the concept of 'value capture':[11]

The concept of 'value capture' involves sharing a portion of the private gains generated by the infrastructure to help fund its delivery. Inclusion of value capture in the funding mix seeks to ensure a fairer and more equitable allocation of funding than is typical of traditional funding approaches, because those who are expected to benefit the most from SRL contribute proportionately to its costs. This approach can increase the equity and efficiency of infrastructure funding.

Conceptually, value capture seeks to redirect a share of the value created by a project to directly fund the project, or to offset some of the burdens on general revenues created by the project's funding requirement.

Value capture is not a new concept, and there are a range of existing levies and charges that seek to capture value created from government investments.

Specific value capture mechanisms have been successfully implemented in Australia (and Victoria) in the past to help fund major infrastructure - such as to raise funds for the Sydney Harbour Bridge in the 1920s and early 1930s, and for the construction of the City Loop.

1. In cross-examination, Frost confirmed that the share of total funding to come from the sources of funding listed in [50] above was not included in the Business Case but she believed it was available elsewhere. She agreed that information about the funding expected to be generated by five proposed value capture mechanisms has not been finalised and the total anticipated revenue had not been disclosed to date.
2. The Department placed reliance on an 18 December 2025 Press Release submitting it addressed some of the information Rooney sought. The Press Release included the following:

There will be five value capture mechanisms and none will apply to the family home. These are: existing land and windfall gains tax in the local area, infrastructure contributions, a car parking levy from 2035 on car park owners, and state-initiated development.

Land tax and windfall tax settings will not change. There is no increase. The revenue will stay local. Land tax and windfall gains tax in SRL East precincts will fund SRL East construction.

From 1 January 2027, the SRL Infrastructure Contributions Plan levy will apply to new property developments in the six SRL precincts. The levy will be a one-off payment that will be applied in phases as construction progresses and the SRL begins to operate.

Initially, the rate paid in the SRL Structure Plan areas will be the same as that being introduced around more than 50 train stations across Melbourne. It is paid by a developer or landowner when they increase the number of dwellings on a site - for example, if a single home is turned into a block of apartments.

From 2035 when the SRL is complete, a car parking levy - which already applies to off-street car parks in inner Melbourne - will be introduced. This levy applies to car park owners, not motorists who pay to use a car park. It will not apply to residential parking and there will be exemptions for businesses offering free visitor parking.

State-initiated development is where the state generates revenue by developing land that it owns for residential or commercial investments. Victoria will explore potential projects once SRL Structure Plans are finalised next year.

1. In cross-examination, Frost agreed that the Press Release did not specify likely funds from value capture but stated that further detail, including projected revenues were available on the Big Build website. She also agreed that the protocols as to release, reporting and governance of SRL's funding were not public. Rooney's evidence confirmed those details were not public and were matters he sought to understand and report on.

DOCUMENTS 7 AND 10 AND THE CLAIMS UNDER SECTION 28

1. The Department's 16 May 2025 written submissions (Department's May 2025 Submissions) state that the title of Document 7 is:[12]

D221 10673 SRL - Funding and ~ Central Contingency Release (funds ~ sent to SRLA 110722) (sic)

1. In submissions the Department made to OVIC, Document 7 is referred to as 'D22/110673 - SRL - Funding and Financing Strategy - Central Contingency Release (WORKING DRAFT- sent to SRLA 110722 (sic)'.[13]
2. The Department's May 2025 Submissions state that the title of Document 10 is:[14]

D21 248674 Attachment A - Suburban Rail Loop - Funding and Financing Strategy - Funds ~ Draft

1. In submissions the Department made to OVIC, Document 10 is referred to as 'D21/248674 Attachment A - Suburban Rail Loop - Funding and Financing Strategy - Funds Management Framework - Draft'.[15]
2. At the hearing, Frost gave evidence that some of the words in the above titles were confidential and exempt because they appeared in documents later submitted to Cabinet. I find that, in circumstances where the relevant words have been used openly in the Department's submissions to OVIC and to the Tribunal, they are, in effect, public and so cannot, of themselves, be regarded as exempt.
3. The Department's 5 December 2025 written submissions (Department's December 2025 Submissions) described Document 7 as follows (noting the relevant description equally applies to Document 10):[16]
   1. . . . Document 7 is a slide pack dated July 2022 titled 'Suburban Rail Loop - Funding and Financing Strategy', marked 'working draft'. It contains a yellow box (TB 593) . . . The subtitle of the slide pack is redacted.
   2. The reasons for redaction are set out in comments in the released version of Document 7 in the Tribunal Book. They are extracted here for clarity.

22.1 Slide 1-11 (TB 593-603):

Page 1 through 11 redactions were made under s 28(1)(c) as release would disclose a draft, or extracts of a document that was prepared to brief a minister in relation to issues to be considered by a Cabinet Committee under s 28(1)(ba), as well drafts or extracts of documents prepared on behalf of a Minister for the purposes of submission to a Cabinet Committee for consideration under s 28(1)(b).

. . .

Also redacted under s 30(1) as an internal working document.

22.2 Slide 12 (TB 604):

. . .

Page 12 left side redaction made under s28(1)(c) as release would disclose a draft, as well extract, of a document that was prepared to brief a minister in relation to issues to be considered by a Cabinet Committee under s 28(1)(ba) and also prepared on behalf of a Minister for the purposes of submission to a Cabinet Committee for consideration under s 28(1)(b) . . . Also redacted under s 30(1) as internal working document.

22.3 Slide 13 (TB 605):

Page 13 title redaction made under s 30(1) as internal working document.

Page 13 left side redaction made under s 28(1)(c) as release would disclose a draft, as well as extracts, of a document that was prepared to brief a Minister in relation to issues to be considered by a Cabinet Committee under s 28(1)(ba) and prepared on behalf of a Minister for the purposes of submission to a Cabinet Committee for consideration under s 28(1)(b) . . . Also redacted under s 30(1) as internal working document.

22.4 Slide 14 (TB 606):

Redactions in the 'Working Definition' column are made under s 28(1)(c) as release would disclose a draft, as well as extracts, of a document that was prepared to brief a Minister in relation to issues to be considered by a Cabinet Committee under s 28(1)(ba), as well as prepared on behalf of a Minister for the purposes of submission to a Cabinet Committee for consideration under s 28(1)(b) . . . as well as under s 30(1) as internal working document.

Redactions made in the "Comment/Question" column under s 30(1) as internal working document.

22.5 Slide 15 (TB 607):

Page 15 redactions made under s 30(1) as internal working document, barring three distinct sections that have also been redacted under s 28(1)(c) for containing extracts of documents referred to in s 28(1)(a), 28(1)(b) and 28(1)(ba); as well as under s 28(1)(d) as release would disclose a deliberation or decision of a Cabinet Committee.

22.6 Slide 16 (TB 608):

Page 16 redactions made under s 30(1) as internal working document.

1. The yellow box on the front page of Documents 7 and 10 referred to above said:

DOCUMENT IS WORKING DRAFT AND IS NOT

DEPARTMENT APPROVED -

THIS DOCUMENT HAS BEEN PREPARED AND SHARED TO OBTAIN AGENCY SUBJECT

MATTER EXPERTISE FEEDBACK AND INPUT

FOR THE PURPOSES OF FURTHER

DEVELOPMENT.

PLEASE LIMIT CIRCULATION ON NEEDS-TO-KNOW BASIS.

PLEASE DO NOT USE ANY OF THE CONTENT

FOR ANY PURPOSE OTHER THAN THAT

STATED ABOVE

1. In addition, on the first and every other slide in Documents 7 and 10 there is red print at the top right-hand corner which says 'Working Draft' and words across the bottom which say:

For internal discussion purposes only - not for wider distribution

1. Frost's Open Statement described the virtually identical Documents 7 and 10 as Microsoft PowerPoint Presentations dated July 2022, that were prepared by a member of the Group to outline processes associated with the funding strategies for the SRL.[17]
2. During the course of cross-examination, Frost was asked whether a PowerPoint presentation would ordinarily be provided to a Minister or Cabinet. Frost stated that, in her experience, they occasionally are included as an attachment with a submission summarising matters at a high level.

The purpose for which and how Documents 7 and 10 were prepared

1. Frost's evidence was that one of her team was the primary author of Document 7 but that she was involved in reviewing and contributing to the Document in an 'iterative process'. Further, in her role as Director of the Group, she was the supervisor of the staff member and was ultimately responsible for the content.
2. Frost's Open Statement said the following about the purpose for which the Documents were prepared (at [20]):

Documents 7 and 10 were made for the purpose of the deliberative processes of the Department and the State more broadly. That is, consultation across different State entities for the purpose of considering a possible appropriate framework for the funding, governance and reporting of the SRL, including the role of Cabinet and Cabinet Committees in that framework.

1. As to how the Documents were prepared, Frost's Open Statement included the following:[18]

(a) Given the SRL will be delivered over several decades, the Documents were prepared to outline appropriate funding, governance and reporting protocols to support the extended delivery and funding timeframes.

(b) The Documents also reflect consultations that have taken place between officers of the SRLA, the Department of Premier and Cabinet, the Department of Transport and Planning and across other relevant teams within the Department, including within the Department's Budget Division.

(c) They contain the opinions of those various officers from different parts of the State on possible processes associated with funding strategies for portions and key milestones of the SRL.

(d) The Documents are working drafts that have not been finalised, as they were developed to support consultations ahead of the development of a future Cabinet Committee submission which was informed by the content of these working documents.

(e) The Documents are at an interim stage of development and were subject to further feedback and input from subject matter experts and consultations with other agencies.

(f) The Documents discussed a suggested possible but not final approach to funding, governance and reporting at a point in time and contained only indicative timelines, reporting requirements, and proposed protocols.

(g) The Funding and Financing Strategy itself is in the public domain, as it was outlined in the Business Case which was released in 2021. Page 33 of the Business Case notes that the Funding and Financing Strategy 'considers traditional funding approaches from State revenues, together with potential sources of new State revenues and alternative approaches to raising the capital required to fund delivery costs'.

(h) While the Funding and Financing Strategy is public information, the internal State protocols on release, reporting and governance of the SRL's funding, 'which are the subject of most of the information contained in Documents 7 and 10, are not public information'. She confirmed in cross-examination that remained the case.

1. As to the connection between the Documents and Cabinet Committee processes, Frost's Open Statement said:
   1. While no final versions of Documents 7 and 10 were produced, content dealt with in those documents, along with information obtained during the consultations with the various agencies, and further considerations by the Department, were included into a later Cabinet Committee submission, which was subsequently deliberated on and decided upon by a later Cabinet Committee.
   2. The translation of the information from Documents 7 and 10 to the Cabinet Committee submission, including adjustments following consultation and further work, mean that Documents 7 and 10 may not be a completely accurate reflection of the final submission to the Cabinet Committee. As such, releasing the documents will be misleading as they will not be a completely accurate reflection of the matters a Cabinet Committee deliberated on and the final decision that was made. However, it would still reveal some of the matters that the Cabinet Committee deliberated on, and the final decision that was made.
   3. Given that information in Documents 7 and 10 was included into a Cabinet Committee submission, the documents also reveal material related to Cabinet or Cabinet Committee decisions and deliberations.
   4. It is proposed that the relevant processes are in place for, at a minimum, the duration of the delivery of SRL East to 2035, and potentially following that for future stages of the SRL. Documents 7 and 10 outline the Department's possible but not yet final advice to the State on proposed processes to consider the release of approved funding for SRL to deliver the project and to meet its contractual obligations.
   5. Documents 7 and 10 also contain information relating to sensitive funding submissions related to the SRL, and detailed information on specific funding lines, which may be subject to change.
   6. Revealing this information would also reveal considerations around State, and Cabinet or Cabinet Committee deliberations and decision making as it may relate to broader project funding approvals beyond just the SRL, and approaches to funding releases more broadly.
2. In cross-examination, in respect of [67(b)] above, Frost stated that consultation with the identified areas preceded preparation of Document 7 but they had not been finalised and were to be the subject of further consultations with the same areas. Frost agreed that the purpose of Document 7 was for the process of consultation and that consultation was going on at agency and departmental level to get input from relevant stakeholders. She added that the consultations were also to obtain input from the those who would need to work with and implement the processes being developed.
3. She was taken to page 14 of Document 7 which is headed 'Defining key template terms'. There is a table which has three columns, headed 'Term', Working definition' and 'Comment/question'. Most of the content in that page had been disclosed.
4. Frost was asked about the third 'Comment/question' column and she explained it was used to record her and her Group's comments and what was to be followed up on or checked when consulting with a stakeholder.
5. Frost was asked whether it was part of the consultation process that things in the Documents 'might still change'. She agreed and also with the proposition that the definitions on page 14 were not 'fixed in stone'. She added that some might not need to change before the final version was produced.
6. In respect of the purpose set out in [67(a)] - 'appropriate funding, governance and reporting protocols' - it was suggested that a document of that kind was required to be produced anyway', that is given the scale and cost of the SRL, appropriate funding, governance and reporting protocols would be required. Frost agreed and noted the decades over which SRL was to be constructed. She agreed that the development of those kinds of protocols was a requirement of 'good and sound financial management'.
7. It was put to Frost that such protocols would have to be developed whether or not it was specifically requested by an arm of Government. Frost said she personally would have expected so and agreed that the protocols were of the kind those obliged to comply with the Financial Management Act 1994 (Vic) would need to produce.
8. In evidence given in the closed session, Frost was asked further questions about the purpose for which Documents 7 and 10 were prepared. While it is necessary to be cautious in referring to that evidence, at a high level, the evidence confirmed the contents of [28]-[33] of the Frost's Open Statement, including that Document 7:
   • Would be developed further through the consultations referred to in [28] and [29]; and
   • Was being 'potentially' developed to go to Cabinet, even though it was not marked 'Cabinet in confidence'; and
   • The version of Documents 7 and 10 was not 'the refined form' which would result from the consultations which were to be undertaken and it would have been further refined 'if it were to go to Cabinet'.
9. As to concerns about disclosure of Cabinet deliberations or decisions, Frost accepted those concerns arose from her own knowledge of what occurred later (as described in her confidential evidence) and any eventual documents submitted to Cabinet (which were not before me), rather than on the face of Document 7, especially when read in light of the warnings on each page as to its draft status.
10. Frost identified concerns about some of the titles used in parts of Documents 7 and 10 but, when taken to the Department's submission to OVIC, agreed that some of the titles of concern (or versions of them) had been disclosed.
11. There was evidence about certain parts of Frost's Confidential Statement. While that was relevant to whether all of the Statement ought to be protected by the closed court order, it was also relevant to aspects of the claims under section 28 of the FOI Act. It is necessary to be cautious in referring to that evidence.
12. The effect of the relevant parts of Frost's evidence was that some of the content in Frost's Confidential Statement was not, of itself, confidential and that open disclosure of more of that Statement would not disclose matters within section 28 of the FOI Act.
13. Frost accepted some of the redacted content in the Frost Confidential Statement had not in fact found its way into a document put before Cabinet. After being taken to a number of pages in Document 7, she confirmed that, without knowing what was actually put before Cabinet and what Cabinet decided, release of Documents 7 and 10 would not enable a reader to know which parts of the Documents were in those categories. She agreed that the mere reference to Cabinet in a document did not make it exempt because it disclosed material put before Cabinet or what Cabinet decided.
14. In addition to the evidence contained in [28] of Frost's Open Statement, she gave evidence that some of the matters in Documents 7 and 10 - some of the 'concepts' - found their way into a submission which later went to Cabinet. It was apparent that Frost could only have specifically identified such if she had both Documents 7 and 10 and the Cabinet submission before her. She agreed that Documents 7 and 10 on their face did not inform a reader what was in a Cabinet submission or what the Cabinet Committee deliberated on or decided.
15. In respect of Frost's Confidential Statement, she gave evidence that neither the name of the relevant Cabinet Committee nor of the relevant Minister were of themselves confidential but that, because they averted to Cabinet processes, she regarded them as confidential. When taken to specific sentences and words in paragraphs of Frost's Confidential Statement, Frost's evidence was that she was 'less concerned' about those as they were not particularly confidential, as compared to what followed.
16. As indicated by the earlier summary of the Deputy Commissioner's Decision, Rooney's Request resulted in the identification of seven documents which were found to be exempt under the Cabinet documents exemption. While those were not before me, I understood it was those which were known to Frost and which would have contained the subsequent development or refinement of the proposals, concepts and other content in Documents 7 and 10.
17. Finally, I note that Frost's Confidential Statement referred to certain pages of Documents 7 and 10 and said they were not intended to be submitted to a Cabinet Committee as their purpose was to facilitate the consultation processes. The evidence was that they were to be removed before any submission to Cabinet or a Minister.[19]

THE LAW AND THE PARTIES SUBMISSION ON THE CABINET DOCUMENTS EXEMPTION

1. The relevant terms of section 28 of the FOI Act are set out at [35] above.

Documents prepared for submission for consideration by Cabinet - section 28(1)(b)

1. Relevant to section 28(1)(b) of the FOI Act:[20]
   • It is not necessary to prove that the document was actually submitted to the Cabinet; nor that Cabinet actually considered the document, although evidence as to the actual use to which the document was put could shed light on the purpose for which it was created.
   • A document will only be exempt if the sole purpose or one of the substantial purposes, or the dominant purpose, or one of a number of significantly contributing purposes, for which it was prepared was for it to be submitted to the Cabinet for consideration.
   • The purpose of the preparation of the document must be for submission for consideration by the Cabinet and not merely preparation for the purpose of physically placing the document before the Cabinet.
2. The Department relied on the following additional matters:[21]
   • Where 'Cabinet requests the preparation of a document, it follows that the document prepared in response to the request is exempt on the basis that it was prepared for the purpose of submission for consideration by Cabinet'.[22]
   • While the actual use made of the document may be relevant to ascertaining the purpose for which the document was prepared, such use is not determinative. If a document was prepared for submission for consideration by Cabinet, it does not cease to be exempt if it was drawn upon for the purpose of preparing a submission to Cabinet but not attached to that submission; or if material was derived from it for the purpose of a Cabinet submission'.[23]
3. Rooney's submissions dated 28 May 2025 (Rooney's May 2025 Submissions) referred to the decision of the Supreme Court of Victoria, Court of Appeal, in Secretary to the Department of Infrastructure v Asher[24] (Asher) in respect of a claim under section 28(1) (b) of the FOI Act.
4. Vincent JA described the documents in issue in that case as follows:[25]

It is clear enough from the evidence, as the tribunal held with respect to each of the documents, that it was prepared in order to enable the creation of another and quite separate document and it was the latter that was to be submitted for Cabinet consideration . . .

At most, they were to be included in or annexed to another document that was to provide the framework for possible Cabinet consideration of the progress, developments and issues described or detected. As it transpired, almost all of the content of five of the reports was set out 'verbatim', but reformatted and edited into a 'seamless' document to which was added DTF analysis and advice.

. . .

Bearing in mind that the [FOI Act] has been accepted as remedial legislation designed to assist in ensuring open and accountable government, I am unpersuaded that the words in s 28(1)(b) should be attributed with anything other than their ordinary meanings and consider that they were intended to confine exemption from disclosure to the particular documents which it was contemplated would be placed before Cabinet for their consideration. Preliminary or preparatory material, not constituting a draft or copy, would accordingly not be encompassed.

Neither the terms in which the various bases for exception contained in s 28(1) are expressed nor the underlying policy of the maintenance of Cabinet confidentiality provides support for the inclusion of the documents here. All that can be said is that the departments were required to provide information, some of which could be expected to find its way into a final submission for Cabinet consideration.

Documents prepared for the purpose of briefing a Minister on issues to be considered by Cabinet - section 28(1)(ba)

1. As is plain from its words, section 28(1)(ba) contains two limbs: the first limb being that a document was prepared for the purposes of briefing a Minister; and the second being that the briefing of the Minister was in relation to an issue that was, as assessed objectively at the time the briefing occurred, an issue that was to be considered by Cabinet.
2. The Department's December 2025 Submissions summarised the applicable principles as follows:[26]
   • It is 'the purpose for which the document was prepared that is crucial and not whether it is actually submitted or considered'.
   • The purpose referred to in s 28(1)(ba) 'need not be the sole purpose for the preparation of the document', it 'could be one of a number of purposes provided it was a substantial purpose', and '[t]he purpose identified in the relevant paragraph of s 28(1) may be the dominant purpose or one of a number of significantly contributing purposes'.
   • The 'actual use made of the document may be relevant in ascertaining the purpose for which the document has been prepared, but is not decisive of this question'.
   • The 'purpose for which the document must be prepared, to be an exempt document, is the purpose of "briefing" a minister in relation to issues to be considered by the Cabinet', and it is 'not enough for a document to be exempt for it to be placed before a minister and be in relation to issues to be considered by the Cabinet'.
   • Nothing in the FOI Act 'supports the contention that Parliament intended there be an assessment of the degree of certainty in the minds of departmental officials when preparing a briefing document that the issues on which the document advised a Minister would be considered by the Cabinet'.
3. Rooney's May 2025 Submissions stated that, to satisfy the first limb of section 28(1)(ba), the purpose of briefing a Minister must be immediately contemplated when the document is created.[27]
4. I was referred to Ryan v Department of Infrastructure, where Morris J said:[28]

It is not enough for a document to be exempt [under s 28(1)(ba)] for it to be placed before a minister and be in relation to issues to be considered by the Cabinet. Rather it is necessary that it be prepared for the purpose of briefing a minister; and this means much more than for the purpose of placing a document before a minister. In general parlance the word 'briefing' means a short, accurate summary of the details of a plan or operation. The purpose of a briefing is to inform the person being briefed. Hence the exemption ought be limited to documents that have the character of briefing material. Generally a document will have such a character if it contains information or advice and is prepared for the purpose of being read by, or explained to, a minister. However a document will not have the character of briefing material merely because the document was prepared with the intention of physically placing the document before a minister.

. . .

[The FOI Act] is remedial legislation and where ambiguity is encountered the rights given by the Act should be construed liberally and the exceptions narrowly. The Parliament would not have intended that virtually any document prepared by a department could be made exempt by simply placing it before Cabinet or a minister, or by forming an intention when it was prepared to place it before Cabinet or a minister.

1. The Department's submissions included the following principles relevant to the application of section 28(1)(c):[29]
   • It sets out a Cabinet exemption if a document is a copy or draft of, or contains extracts from, a document referred to in ss 28(1)(a), (b) or (ba).
   • It appears that for one document to 'contain extracts from' another document, the latter document needs to have been created first.
   • In respect of 'drafts', documents do not become 'drafts' simply 'because information or passages in them were used in the creation of another document'.
2. Rooney's May 2025 Submissions noted that Asher included the following in respect of section 28(1)(c) (in combination with section 28(1)(b)):[30]

The documents under consideration were not and did not purport to be other than what they were - quarterly asset performance reports. They were not drafts of anything and did not become so because information or passages in them were used in the creation of another document. It could no more be said that the transposition of passages into the DTF document rendered them drafts of it than the use of the passages above from the tribunal's reasons renders the document setting out those reasons a draft of this judgment.

1. In the above passage after the phrase 'not drafts of anything', Vincent JA footnoted a reference to a dictionary definition of the word 'draft' as follows:

The Macquarie Dictionary, Federation ed, (2001), defines a 'draft' as 'a first or preliminary form of any writing, subject to revision and copying', while The Oxford English Dictionary, 2nd ed, (1989) defines it as 'a preliminary sketch or rough form of a writing document, from which the final or fair copy is made'.

1. Rooney noted that, similarly, it was held in Asher v Melbourne Water[31] that, although ultimately some information in a document has found its way into a Ministerial Briefing material or a Cabinet submission, this alone is not sufficient for the document to be considered a copy or draft or an extract of those documents that attracts the exemption under section 28(1)(c) of the FOI Act.
2. He submitted that the mere inclusion of similar or overlapping content is insufficient to attract the exemption under section 28(1)(c) of the Act.
3. As to 'extracts' within section 28(1)(c), Rooney's May 2025 Submissions noted that in Asher it was established that a document must disclose the Cabinet debate itself and not just the subject matter of the debate. It was held that quarterly asset investment reports which had a dual purpose of advising Ministers and as material to be used to produce a separate report for Cabinet submission, were not exempt under section 28(1).[32]
4. As indicated below, ultimately the Department limited its claim as to 'extracts' under section 28(1)(c) to certain content on page 15 of Documents 7 and 10.

The disclosure of deliberations or decisions of Cabinet - section 28(1)(d)

1. The Department confined its claim under section 28(1)(d) of the FOI Act to content on page 15 of Documents 7 and 10.
2. The Department's submissions included the following principles relevant to the application of section 28(1)(d), quoting from Asher:[33]
   • The 'deliberative process involves the weighing up or evaluating of the competing arguments or considerations that may have a bearing upon Cabinet's course of action - its thinking processes - with a view to the making of a decision' and 'encompasses more than mere receipt of information in the Cabinet room'.
   • In considering whether a document supplied to Cabinet for its consideration is exempt as disclosing a deliberation of Cabinet, there is a spectrum of possibilities:

At one end of the spectrum, a document may reveal no more than that a statistic or description of an event was placed before Cabinet. At the other end, a document on its face may disclose that Cabinet required information of a particular type for the purpose of enabling Cabinet to determine whether a course of action was practicable or feasible or may advance an argument for a particular point of view. The former would say nothing as to Cabinet's deliberations; the latter might say a great deal.

1. Rooney's May 2025 Submissions contended that, where the exemption is not clear on the face of the document in issue, an agency or Minister must produce evidence to demonstrate how the Cabinet dealt with the document and whether it actually deliberated or made a decision that could be revealed by disclosure of the document.[34]

1. The Department's submissions said as follows:[35]

Other than some redactions on Slide 15, the remaining redactions in Document 7 based on s 28(1)(c) are exemptions based on subparagraph (c) read together with either subparagraph (b) or (ba). That is, they are either drafts or extracts of documents prepared on behalf of a Minister or by an agency for the purpose of submission to a Cabinet committee (s 28(1)(c) read together with s 28(1)(b)), or they are drafts or extracts of documents prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet (s 28(1)(c) read together with s 28(1)(ba)).

Slide 15 contains (short) extracts from a document that is referred to in s 28(1)(a), being the official record of a deliberation or decision of the Cabinet. These are indicated in the redactions on the slide.

Document 7 was prepared after a prior Cabinet Committee decision which required further analysis and work be undertaken on the subject matter dealt with in Document 7, and that Cabinet Committee requested that the outcomes of that further work be submitted back to the Cabinet Committee for further deliberation and decision. This further work was undertaken by the [Department] in consultation with other public agencies. Thus, the circumstances in which Document 7 was prepared are analogous to the circumstances in Smith v Department of Sustainability and Environment [[36](Smith)], in which the Tribunal concluded as follows in relation to s 28(1)(b):

The finding that the documents have been prepared for the purpose of submission for consideration by Cabinet follows from the fact that these documents were the product of a Cabinet decision that further documents of this character be prepared. The first Root Projects Australia document acknowledges that this is the source of its preparation. Moreover my finding is reinforced by the fact that these documents, or at least a summary of them, were actually subsequently considered by Cabinet.

1. The section 28(1)(c) exemptions were said to be supported by the explanations contained in Frost's confidential evidence.
2. In oral submissions concerning section 28(1)(d), the Department submitted that, if disclosed, page 15 and the many references to Cabinet which were 'peppered' through the Documents would allow inferences to be drawn about other matters which had been deliberated on by Cabinet. It was submitted that specific words would 'show something to do with Cabinet'.

1. Rooney's May 2025 Submissions were prepared before his legal representative had access to the Documents and the unredacted version of Frost's Confidential Statement. In those May 2025 Submissions, questions were raised about the quality and specificity of the evidence provided. By reference to parts of Frost's Open Statement, Rooney cast doubt on the sufficiency of the connection between Documents 7 and 10 and the Cabinet and Ministerial processes protected by sections 28(1)(b) and (ba) as well as whether those Documents could be regarded as drafts or extracts within section 28(1)(1)(c) of the FOI Act.
2. The oral submissions referred me to the evidence Frost gave in her Statements and before the Tribunal about the purpose for which Documents 7 and 10 were to be used and, particularly, how they were to be the subject of consultation and further refinement.
3. It was contended that the fact there was no reference to the Documents being 'Cabinet in Confidence' was indicative of the state of mind of the creator and that they were 'indeed working documents' which were for discussion through interagency and similar consultations. Reliance was placed on Vincent JA's description of the documents in Asher as set out above at [89].
4. As to 'extracts', it was noted that, although the claim was very limited, there was no evidence that the particular words came from a Cabinet document which existed before Documents 7 and 10 were created.
5. In oral submissions, reliance was placed on Redlich JA's comments concerning section 28(1)(d) in Asher. I have set out the passage in full for completeness (italics my emphasis):[37]

The exemption contained in s 28(1)(d) is designed to protect the process of uninhibited debate and discussion among members of Cabinet while at the same time maintaining the principle of collective responsibility for any decision which is made. I agree for the reasons given by Vincent JA and Buchanan JA that the disclosure of the documents would not involve the disclosure of any deliberation or decision of the Cabinet.

Each of the reports consisted primarily of information. There was nothing in those documents that gave rise to the inference that the information contained within them had been placed before Cabinet or that any of it had been the subject of Cabinet consideration. That is to say, there was nothing on the face of the documents which would permit the conclusion that their disclosure would involve disclosure of any 'deliberation' or 'decision' of the Cabinet.

I agree with Buchanan JA that when one has regard to the meaning of the term 'deliberation' and the object of the Act as contained in s 3, one cannot accept the appellant's submission that it is sufficient to attract the exemption that the document discloses the subject matter upon which Cabinet may have deliberated. The deliberative process involves the weighing up or evaluating of the competing arguments or considerations that may have a bearing upon Cabinet's course of action - its thinking processes - with a view to the making of a decision. It encompasses more than mere receipt of information in the Cabinet room for digestion by Cabinet ministers then or later.

Neither the agenda for a Cabinet meeting nor a document which merely contains information on a subject which may have been before Cabinet enables the conclusion that there was any Cabinet deliberation as to that matter or if there was, what the deliberations were with respect to such matter. Although the appellant did not concede that the quarterly asset performance reports did not on their face disclose Cabinet deliberations, counsel was driven to rely upon extrinsic evidence in an attempt to establish that disclosure of the documents would involve disclosure of such deliberations. It relied upon extrinsic evidence that the expenditure review committee (ERC) had directed that it be provided with the information contained in the documents and that very substantial portions of the information from the reports was transposed to documents which were submitted to the ERC. That evidence also dealt with the purpose for which the reports were brought into existence and included the assertion that the ERC had discussed the content of the documents placed before them. The extrinsic evidence also contained the expression of the opinion that the disclosure of the reports would involve disclosure of the ERC's deliberation. The respondent has contested the relevance of some of these matters.

. . . Whatever be the permissible scope and content of the extrinsic evidence that may be called, I agree with Vincent JA that primary emphasis must be placed upon the content of the document in determining the consequences of its disclosure.

Are Documents 7 and 10 drafts of or do they contain extracts from a document prepared for a Minister to submit for Cabinet's consideration or to brief the Minister?

1. In respect of Documents 7 and 10 and the claims under sections (1)(b), (ba) and (c) of the FOI Act, on the available evidence, I find:
   • The Documents were created following a 'prior Cabinet Committee decision which required further analysis and work to be undertaken on the subject matter dealt with' in the Documents and the Committee's request that 'the outcomes of that further work be submitted back to the Cabinet Committee for further deliberation and decision'.[38]
   • The 'further analysis and work' was undertaken by the Department in consultation with other public agencies.[39]
   • The Documents 'were working drafts that have not been finalised as they were developed to support consultations ahead of a future Cabinet Committee submission which was informed by the content of these working documents'. The Documents were 'at an interim stage of development and were subject to further feedback and input from subject matter experts and consultation with other agencies'.[40] They were 'an early iteration of ideas, and an early version of documents, that were being developed and would, when finalised, eventually be submitted to be decided on by' a Cabinet Committee or provided to a Minister.[41]
   • The Documents 'discussed a suggested possible but not final approach to funding, governance and reporting at a point in time and contained only indicative timelines, reporting requirements and proposed protocols'.[42]
   • At the time the Documents were being prepared, the creators 'understood that [the documents] in a further refined form, or the proposals within them would subsequently be brought to' the relevant Minister and that they 'may be provided to' a Cabinet Committee (my italics).[43]
   • Certain pages of Documents 7 and 10 were not intended to be submitted to a Cabinet Committee as their purpose was to facilitate the consultation processes. They were to be removed before submission to Cabinet or a Minister.[44]
2. Noting the final point above, I find the redacted content in the relevant pages cannot fall within section 28(1)(a) or (b) when read with (c) as they are not documents prepared for a Minister to submit for Cabinet's consideration or to brief the Minister.
3. I find that Documents 7 and 10 in the form before me, were not drafts of documents prepared on behalf of a Minister for the purpose of submission for consideration by the Cabinet (section 28(1)(a) and (c)). Nor were they documents prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet (section 28(1)(ba) and (c)).
4. The evidence shows that, at the time Documents 7 and 10 were created, they were part of an iterative process which, following the identified consultations, was understood to potentially result in a more developed version. On Frost's evidence, as at July 2022, the form of the final version of Documents 7 and 10 was uncertain because it would depend on input from the various State entities. There was uncertainty about whether a further version of Documents 7 and 10 would be put before the Minister or submitted to Cabinet (potentially as an attachment) or whether some of the proposals within them would be included in a later Cabinet submission.
5. In my view, the documents are best described as being created for the purpose of facilitating the consultations and so they were preliminary or preparatory (to borrow from Asher - see [89] above) to a draft, rather than the draft itself. In that sense they are different from those discussed in Smith where, not only had Cabinet decided that documents of the kind were to be prepared, but a summary of the specific documents was actually considered by Cabinet.
6. The Documents are analogous to those considered in Asher: they were prepared in order to enable the creation of another document or documents. and it was the latter that Frost and her colleague understood may be submitted for Cabinet consideration.
7. I find that Documents 7 and 10 were the starting point for responding to the Cabinet Committee's request for outcomes of further work to be submitted back to the Cabinet Committee for further deliberation and decision. They were somewhat like the documents in Asher: a starting point for a response to a request to provide information, some of which may have been expected to find its way into a final submission for Cabinet consideration.
8. As stated above, the claim relying on 'extracts' under section 28(1)(c) of the FOI Act was limited to certain words on page 15 of Documents 7 and 10. The evidence demonstrated that Documents 7 and 10 were created before any relevant Cabinet documents had been produced and so the former could not contain extracts from the latter. To the extent that is the case for the redacted parts of Documents 7 and 10, the claim for exemption under the 'extracts' part of section 28(1)(a) or (b) and (c) of the FOI Act cannot succeed.
9. I find the redacted content in Documents 7 and 10 is not exempt under sections 28(1)(b) and (c) of the FOI Act or under sections 28(1)(ba) and (c) of the FOI Act.

Do the Documents disclose any deliberation or decision of Cabinet?

1. I am not satisfied that the redacted content in Documents 7 and 10 is exempt under section 28(1)(d) of the FOI Act.
2. The evidence showed that no final version of the Documents was produced. Rather 'content dealt with in those documents, along with information obtained during the consultations with the various agencies, and further considerations by the Department, were included into a later Cabinet Committee submission, which was subsequently deliberated on and decided upon by a later Cabinet Committee'.[45] In other words, some content was taken and included in a different form of document that constituted the actual Cabinet submission.
3. As to the content from the documents which went to the Cabinet Committee, the evidence was that the 'translation' of content in the documents, 'including adjustments following consultation and further work' meant that the version of the documents before me, 'may not be a completely accurate reflection of the final submission to the Cabinet Committee'.[46]
4. As stated earlier, any final document that went to Cabinet was not in evidence. Frost agreed that, on their face, Documents 7 and 10 did not disclose:
   • What content was put before the relevant Minister.
   • What content was included in a Cabinet submission.
   • Any deliberations or decisions made by the Cabinet Committee after considering the relevant submission.
5. Because the version of the Documents before me were the subject of consultations and some (but not all) parts were translated into a later document that went to Cabinet, the Documents do not and cannot of themselves disclose the 'deliberative process [involving] the weighing up or evaluating of the competing arguments or considerations that may have a bearing upon Cabinet's course of action - its thinking processes - with a view to the making of a decision'.[47]
6. Even accepting that some of the content in the Documents may have been included in a later Cabinet submission, that content is not identifiable on the face of the Documents and the Documents do not disclose any subsequent deliberations or decisions the Cabinet Committee may have undertaken or made. At best, a reader might understand that some unidentified parts of the Documents were received in the Cabinet Committee room but, on reading the Documents, the reader could not know which parts were received and how they were deliberated on.[48]
7. Applying the approach described by Redlich JA in [111] above, if primary emphasis is placed on the document to determine the consequences of disclosure, I find those do not include disclosure of any deliberation or decision of Cabinet.
8. I find the redacted content in Documents 7 and 10 is not exempt under section 28(1)(d) of the FOI Act.

DOCUMENTS 7, 9 AND 10 THE CLAIMS UNDER SECTION 30

1. There was no dispute that the requirements of section 30(1)(a) were met for all three Documents. I agree with that analysis.
2. As a consequence, the issue for determination was whether disclosure of relevant parts of Documents 7 and 10 and the whole Document 9 would be contrary to the public interest.
3. 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. The factors set out above from Friends of Mallacoota Inc are also relevant.

1. I have described Documents 7 and 10 above.
2. The Department's May 2025 Submissions state that the title of Document 9 is:[49]

D22 88848 SRL Early Site Acquisition Funding Framework - Draft - 08062022.

1. The same title was used in the Department's submissions made to OVIC on 26 April 2024.[50]
2. The Department's December 2025 Submissions described Document 9 as follows:[51]

Document 9 is a draft email to SRLA. It was prepared by a consultant providing advice to the Department at the time, in consultation with an officer of the Department. The process outlined in Document 9 was not developed beyond this document, and the draft email was not sent to the SRLA.

1. Taking the same approach to Document 9 as taken to Documents 7 and 10, the words in the above titles (including where slightly modified) cannot, of themselves, be exempt given they have been included in open submissions to OVIC and the Tribunal.

1. Frost's Open Statement said the following in respect of the section 30 working documents exemption:
   1. Confidentiality is also important in terms of not prejudicing the SRLA's and the State's financial interests and their ability to achieve outcomes representing best value for money.
   2. Proposed land acquisition and procurement processes for the SRL are kept confidential for this reason. This is to maintain the integrity of land acquisition processes, and to prevent land speculation or land value changes (which may have impacts for landowners, the SRLA or the State).
   3. Both the land acquisition and procurement processes affecting the SRL are ongoing, given that the SRL is to be delivered over many decades. I am aware that there are strict protocols in place to limit the information that is released to the public and the market, and the timing for such releases.

1. The disclosure of the information in Documents 7 and 10 would be contrary to the public interest as it would inhibit the open and candid communication between officers across government that is required in the development of well-considered and robust advice for State and Cabinet deliberation and decision making. Inhibiting this process would compromise the quality of advice that is able to be produced.
2. I believe that fully disclosing all of the information in Documents 7 and 10 will discourage officers from obtaining advice or deliberating with other officers if they may find their work has been taken out of context and made public in an unfinished form. Further, it could inhibit the healthy and productive exchange of ideas between officers (including officers in different agencies), particularly on highly sensitive matters such as the implementation of the SRL's Funding and Financing Strategy, the State's proposed oversight of the expenditure in relation to the SRL, the nature of possible expenditure, and possible governance and reporting requirements.
3. It is important that officers feel comfortable sharing their opinions and participating freely in the process of deliberation, including in inter-agency communications, and that through engaging in such processes the State can make fully informed and well-reasoned decisions about such matters under consideration.

1. The information contained in Document 9 has the potential to mislead and create confusion in public debate as it discloses only partial information, considerations and potential processes that were not further developed and did not ultimately form part of SRL, State or other Departmental processes, protocols or outcomes. It would be likely to cause confusion to landowners, developers and the public in general, as it could be taken to suggest strategies that may yet be adopted by the State relating to purchase of land associated with the SRL.
2. I believe that disclosing Document 9 will discourage officers (including internal subject matter experts) from obtaining opinion or advice, or deliberating with, other officers and external subject matter experts. Those officers and external subject matter experts may find their work has been taken out of context when made public in an unfinished form. Further, it could inhibit the healthy and productive exchange of ideas between officers and proper engagement with external subject matter experts.
3. It is important that officers feel comfortable sharing their opinions and participating freely in the process of deliberation, and in engaging in such discussions so that the State can make fully informed and well-reasoned decisions about such matters as were under consideration here.
4. Release of Document 9 would therefore be contrary to the public interest.
5. In cross-examination, it was put to Frost that, noting the date on Document 7, the Yellow Box on the front of Document 7 and the words contained therein, there was no risk of it being interpreted by anyone as a final document. Frost agreed but on the proviso that the Document was kept in its entirety and that the warning stayed with the Document. She was asked whether the proviso assumed that someone did not deliberately or otherwise misrepresent the content of the Document. Frost agreed that was what she meant and stated 'I think that note on the front is very clear'.
6. As to Document 9, Frost was referred to the fact it was dated and had a watermark which said 'Draft'. It was put to her that there was fair notice that the Document was not final. Frost agreed that, if released to a 'fair reader' it was clear that those Documents were not final.
7. Frost was asked whether the existence of the FOI Act and the fact documents may be released under its provisions was common knowledge amongst public servants, including the staff member who prepared Documents 7 and 10. Frost agreed that was the case.
8. I asked Frost about the basis on which she made the statements in [12], [13], [37] and [38] of her Open Statement (at [137] above) regarding land speculation and other financial risks. I asked whether she had any qualifications or specific experience or other knowledge which led to her referring to those concerns. Frost confirmed she had no specific qualifications in the related areas but added that she had an awareness through the project of 'certain activities in this regard'. Frost's further evidence was that, as some of the content in Documents 7 and 10 was not further developed, it could give rise to confusion about land speculation and the like. No more specific evidence was given.
9. I asked Frost about the concerns relating to public servant's capacity to give frank and fearless advice if the relevant parts of Documents 7 and 10 were released (as referred to in [25]-[27] and [40]-[41] of her Open Statement). Frost referred to confusion arising as to the Government's intentions and activities and about misinformation about those. Her evidence was that public servants may have 'an aversion to being open and complete in that part of the process' and 'very curated' in what is documented and what is shared if everything was open to release to the public. No more specific evidence was given.
10. I have taken that evidence as also applying to Document 9.
11. For completeness, I record that Document 9 was not the subject of evidence in Frost's Confidential Statement and was not the subject of oral evidence in the closed session

1. Rooney's Statement explained that he originally made the FOI request seeking documents with information about the SRL's value capture and alternative funding options, because he 'wanted to understand how the State government had planned to fund the project, with the aim of better explaining what analysis the State was undertaking to ensure taxpayer funds were used appropriately and effectively'.[52]
2. Relevant to the public interest in disclosure, Rooney stated he believed release of Documents 7, 9 and 10 would not be contrary to the public interest for the following reasons.[53]
3. He referred to the significance of the SRL and asserted that public access to detailed funding information was 'crucial for ensuring transparency and accountability in government spending'. Rooney stated that the 'public should have the right to scrutinise how taxpayer funds are allocated and spent'.
4. Rooney disagreed with Frost's evidence to the effect that information about the Funding and Financing Strategy was publicly available via the Business Case. To the contrary, he considered there was 'a significant gap in publicly available information about the funding of the SRL'.
5. Referring to Frost's Open Statement and her assertions about the content of the publicly available Business Case, Rooney said (footnotes omitted):
   1. . . . However, this assertion is incorrect, as the details provided in the Business Case are vague and minimal at best. For instance, the Business Case outlines potential options for 'value capture' as one form of funding, with some of these options scheduled to commence in 2025, yet the Victorian public remains uninformed about these developments. There is no actual detail in this Business Case about which funding methods will be used, how much revenue would come from each individual stream and over what period. I also believe that any information in the Documents that is covered in or from the Business Case, would mean they should not need to be exempt.
   2. Further, given that approximately four years have passed since the release of the Business Case, there are likely to be significant changes to the Funding and Financing Strategy that are not publicly disclosed. This underscores the lack of current public information about the SRL funding and financing strategy.
   3. In addition, in response to a proposal seeking funding from the Australian Government for SRL East, Infrastructure Australia, the Australian Government's independent advisory body, has evaluated the business case for SRL East. The Business Case Evaluation Report (IA Report), dated 31 January 2025, identified a funding gap of $9.3 billion between what the Victorian government expects and what has been made available,3 and stated, '[w]e have low confidence in the cost estimate for SRL East, presenting a major risk to the SRL East project, and the SRL Program as a whole.' The IA Report, while emphasising the need for access to more information about the funding and financing on the SRL generally, also specifically states that Infrastructure Australia have not been provided with information that gives them the confidence that value capture mechanisms proposed by the Victorian Government will raise the $11.5 billion required. As this information has not been made available to independent investigators, it is highly unlikely that it can be regarded as publicly available.
   4. The IA Report also recommended to the Australian Government that it needs more information about how value capture initiatives will fund one third of the SRL East's costs before it commits further funding to the SRL East. Value capture funding mechanisms seek contributions from private businesses and individuals who benefit from certain government investment or planning decisions. Infrastructure Victoria has stated that these mechanisms 'rely strongly on building broader community understanding of the concept, as well as support for its application to specific projects. This makes it even more important and in the public interest to understand the State government's proposed value capture initiatives that it will rely on to contribute to the funding to the SRL.
6. Rooney asserted that there is 'a complete lack of detail about how the SRL would be funded in the absence of Federal government support'. He described that as 'a legitimate risk, as assessment and advice to the Federal government in the IA Report do not recommend any further Federal funding commitments until the State addresses the financing questions raised by Infrastructure Australia in the IA Report'.[54]
7. He then stated:
   1. Considering this, it is clearly in the public interest for the public to have access to any information about how the State government has been planning to fund the project.
   2. The Victorian Premier, Jacinta Allan, has herself declared, with the signing of the second tunnelling contract late last year, that the state is 'locked in' to the project. Given this commitment, it is imperative that the public is informed about how the unaccounted funding will be sourced. Furthermore, it is essential to disclose what options have been explored to ensure the availability and viability of this funding through to completion of the project.
   3. There is already significant public uncertainty about the project due to the State's failure to fully articulate how it will fund the SRL. Releasing the Documents I have sought access to may significantly enhance public confidence by demonstrating that the government has a clear and viable strategy in place. The current information vacuum not only fuels scepticism but also undermines public trust, which is contrary to the public interest. Transparency is crucial to ensure accountability and foster a sense of security in the community about the SRL's future.
8. Next, Rooney referred to the funding commitments made by the Federal and Victorian governments ($2.2 billion and $11.5 billion respectively). He stated that:[55]

These budgetary decisions have an impact on the budget and funding for all other projects across the government, which make it crucial for the public to understand the processes and protocols

1. Rooney referred to the State election later in 2026 and said:
   1. The matters outlined above are particularly important at the present time because there will be a state election in Victoria in 2026.
   2. Funding of the SRL and other Victorian Labor government's 'Big Build' projects more broadly will be a critically important election issue in 2026. Major public infrastructure projects are often important issues in state elections. However, these matters will be of a particular public interest in Victoria because of concerns that have been raised from parts of the community over the Victorian government's fiscal management, which relevantly includes 'Big Build' projects.
   3. The release of government information that affects an important election issue is in the public interest because the release of that information might help inform public debate on that issue.
2. As to the fact all three Documents may be referred to as draft or internal working documents and that no final versions were prepared, Rooney's view was that they were 'still highly relevant and significant to the current state of the SRL, its future and its funding as their creation date is sufficiently recent to ensure their relevance, given the project was first announced in 2018'. He believes that the timing of the creation of the Documents means 'a significant amount of planning and early work was already advanced by the time they were created'. Rooney stated:
   1. I believe that, not only is the government's decision itself about the funding and financing strategy of the SRL and the Early Acquisition Funding Framework, but it is important for the public to understand what was discussed prior to making the decision and what informed the decision, and the options considered. The information contained in the Documents are likely not only to provide valuable insights and enhance public understanding but will also ensure accountability in the management and execution of the SRL East project.
   2. Further, the SRL East project is currently already underway (so far $5.5 billion worth of SRL East contracts have been signed, more than $2 billion of early work completed and a contract which could be between $5 to $8 billion scheduled to be awarded this year). This means that the State's planned contribution of $11.5 billion and the $2.2 billion committed by the Federal government can already be accounted for. There is an information gap about how the rest of the project will be funded, which makes the Documents even more relevant.
3. As to Frost's concerns about public servants giving frank and fearless advice, Rooney stated:
   1. I do not believe that the release of the Documents would inhibit the open and candid communications between officers across government, discourage officers from obtaining advice or deliberative with other officers or external subject matter experts. Based on my experience, I do not believe there a risk of their work being taken out of context when made public. This type of information is available for the media like me to consider and write about as well as others to discuss. The government is also able to explain their contents.
   2. Transparency and accountability are fundamental principles of good governance within government. The release of these Documents would I believe demonstrate a commitment to these principles, fostering trust and confidence among the public. Moreover, the professional integrity and dedication of government officers and experts should ensure that their communications and deliberations are conducted with due diligence and responsibility, regardless of the potential for public disclosure (which the officers would be aware of). I therefore believe that the release of the Documents would not inhibit the frank discourse amongst officers.
4. In cross-examination, Rooney maintained the reasons for which he had sought access to the Documents, including in the face of assertions that they would not provide the details he sought, including as to the use of value capture as part of the funding strategy. He accepted that the Press Release went some way to meeting his Request but maintained there were still gaps in the available public information about funding sources and about the funding and governance protocols.

THE LAW AND THE PARTIES SUBMISSION ON THE INTERNAL WORKING DOCUMENTS EXEMPTION

1. I have set out above the terms of section 30 and relevant law as to its application from [39] above. The parties' submissions on the law are contained below.

1. The Department's December 2025 Submissions contended as follows in respect of Documents 7 and 10.[56]
2. First, the partial release of Documents 7 and 10 addresses the matters relied on by OVIC for its decision that section 30(1) did not apply. The Department stated that the 'less sensitive' information and the publicly available information had been released.
3. Second, the 'remaining redactions' were said to have been applied to 'sensitive material that is closely related to Cabinet processes, and is not otherwise publicly available'. The Department submitted that the information revealed 'Cabinet related material', noting that a reasonably proximate relationship of a document to the Cabinet process was supportive of section 30(1) of the FOI Act applying.[57]
4. Reference was made to Frost's evidence which was said to 'demonstrate that Document 7 bears a close connection to Cabinet processes'. The Department's December 2025 Submissions also referred to OVIC acknowledging that Document 7 related to other documents that were exempt under a Cabinet exemption and the finding that Document 7 was 'removed from those processes, where the information relates to departmental rather than executive functions'. Noting section 28(1) had not been relied on for Documents 7 and 10 before OVIC, it was contended before me that Frost's evidence made it apparent that OVIC's characterisation was not accurate.[58]
5. Third, there were said to be 'significant sensitivities' surrounding the issues under consideration in Documents 7 and 10 and 'open and candid communication across government would be hindered by disclosure, noting that the document contained significant detail about the oversight of the expenditure for this program, the nature of the expenditure, the reporting requirements and the frequency of the allocation of funds'.[59]
6. It was submitted that:[60]
   • Disclosure would only offer a partial explanation rather than a comprehensive one, potentially leading to confusion and promoting ill-informed public discourse - noting in particular the indicative nature of much of the content of the pages.
   • The information contained in the Documents is reflective of a suggested framework at a particular point in time, rather than final decisions made.
   • In the context of the project, 'any funding strategy, including financial management frameworks, are highly sensitive to a range of stakeholders, and release of this material may undermine the working relationship between the parties'.
   • In balancing competing factors, 'the requirement for a robust governance and reporting structures outweighs public interest in the material. Release of this preliminary information works against the parties establishing frameworks that are properly considered from all angles with complete candor'.
7. Reliance was placed on Frost's evidence that disclosing the remaining information in Document 7 'could inhibit the healthy and productive exchange of ideas between officers (including officers in different agencies), particularly on highly sensitive matters such as the implementation of the SRL's Funding and Financing Strategy, the State's proposed oversight of the expenditure in relation to the SRL, the nature of possible expenditure, and possible governance and reporting requirements'.[61]
8. As to the potential for confusion and ill-informed public debate, reference was made to Frost's evidence that the translation of the information from Document 7 into the Cabinet Submission included adjustments and further work, such that Document 7 'may not be a completely accurate reflection of the final submission to the Cabinet Committee'.[62]
9. It was submitted that the release of 'contextual information' would involve the disclosure of Cabinet-in-confidence material. That was said to underscore 'the inextricable link between Document 7 and Cabinet processes'.[63]
10. The Department submitted that the 'disclosure of the material would simply introduce into public debate irrelevant material about what might have been'.
11. Fourth, it was submitted that, there is a large amount of information available to the public and that the public interest in the information is satisfied by the volume of information already available. Reliance was placed on the Business Case and Press Release referred to above (see [50] and [53]).
12. Fifth, the Department made submissions to the effect that release of the Documents would not address the public interest bases relied on by Rooney. In particular, it was submitted that:[64]
    • Documents 7 and 10 do not address the details about which funding methods will be used, how much revenue would come from each individual stream and over what period.
    • As Document 7 was dated July 2022, it cannot shed light on any changes that may have occurred to the Funding and Financing Strategy over the four year period referenced by Rooney.
    • Document 7 does not contain the details sought as to 'value capture mechanisms' or 'how the SRL would be funded in the absence of Federal government support'.
13. As to Document 9,[65] the Department relied on Frost's evidence that the information it contains 'has the potential to mislead and create confusion in public debate as it discloses only partial information, considerations and potential processes that were not further developed and did not ultimately form part of SRL, State or other Departmental processes, protocols or outcomes'. It was submitted that release would be 'likely to cause confusion to landowners, developers and the public in general, as it could be taken to suggest strategies that may yet be adopted by the State relating to purchase of land associated with the SRL'.
14. The Department referred to the fact that the draft email was prepared by a consultant, the process outlined in the document was not developed further and the draft email was not sent. It submitted that in those circumstances, the public interest in release of the document was low when weighed against 'the highly contentious and sensitive nature of the document'.
15. The Department also submitted that release of Document 9 would not respond to the public interest matters relied on by Rooney, including where Document 9 pre-dated even Document 7.

1. Rooney's May 2025 Submissions referred to broad principles relevant to the application of the internal working documents exemption as well as noting the considerations OVIC placed emphasis on.
2. Those Submissions included the following in reply to the Department's submissions.
3. First, on the contention that disclosure would inhibit agency officers from providing frank and candid advice, I was referred to Judge English's 2024 decision, Davis v Department of Health[66] (Davis). In the context of an email chain involving deliberations and a request for advice regarding a COVID-19 pandemic lockdown direction, Judge English found:[67]

This is communication between very senior public officers of a highly sensitive nature. The question is whether disclosure would inhibit frankness and candour in making communications in the future. In the document a genuine question is being raised and answered. It is not a contest of different views but a question and answer.

In my view it is unlikely its release will inhibit candour or frankness, as it not a matter of opposing positions, it is a matter of clarification. The process of clarifying information prior to reaching a decision is not one that Departmental officers would be reticent to engage in if there was a possibility of disclosure. In the event of another public health emergency the release of this document will not impact this type of communication between senior officers.

This is not about an issue that concerns the interests of individuals or is a matter of curiosity. Rather it concerns the interests of the community at large. This is a matter of high public interest, rather than something 'of interest to the public' and reflects the seriousness of the issue in question.

1. Rooney's May 2025 Submissions also referred me to a 2024 decision of (now) Deputy President Tang, AM in a case involving an SRL strategic risks document.[68] The reasons included the following:[69]

I consider the suggestion that release may shape behaviour of public servants in a 'subtle and insidious manner' is speculative, at best . . .

. . . those in the Department who were involved with the preparation of the Strategic Risks Document would likely have been aware of the FOI Act and the potential for a FOI request to be made to access it, but this does not appear to have had any impact on the level of frankness and candour in the preparation of the document.

1. Rooney's May 2025 Submissions referred to the Deputy Commissioner's Decision noting this factor can only be relied on in limited situations and must be supported by detailed evidence and reasoning as to why disclosure would be contrary to the public interest. Rooney submitted the Department had not submitted sufficient evidence demonstrating this point.[70]
2. As to the risk of causing confusion and ill-informed debate, Rooney's May 2025 Submissions emphasised the notations contained on Documents 7 and 10 (via the Yellow Box and statement on each page to the effect that they were for internal discussion purposes only) and the draft watermark on Document 9. Further, reference was made to the date of Documents 7 and 10 and it was submitted that, taken together with the notations, it was apparent that they were not final and were subject to change. Therefore, it is submitted it was unlikely that they could be misinterpreted or lead to confusion and ill-informed debate.[71]
3. Further reference was made to DP Tang's decision as follows:[72]

greater public scrutiny of, and community participation in, major infrastructure projects is a positive thing. In my view, this will reduce (rather than increase) confusion.

1. Rooney contended that members of the public are more than capable of comprehending that the content of the Documents, as part of a large infrastructure project, may evolve over time as new information emerges.
2. I was referred to the following comments in Smith:[73]

when substantial amounts of public expenditure are involved in resolving the future of a controversial site there is a public interest in revealing the analysis which lead to the government choosing one option rather than other options.

1. Rooney contended that Documents 7, 9, and 10 relate to the funding and financing frameworks of the SRL, a very significant publicly funded project exceeding $200 billion in cost. Further, given the scale and financial implications of the SRL, it was asserted that there is an undeniable public interest in ensuring utmost transparency and accountability in its financial management. Public access to these documents was said to be essential to scrutinise the allocation and utilisation of taxpayer money, fostering trust in government processes and enabling informed public discourse. Given that the SRL will be delivered over several decades, it is even more essential to ensure public participation throughout its development.
2. Rooney submitted that, based on Frost's evidence referring to 'proposed processes' for release of funding, release of the Documents would 'allow greater transparency of the decision-making process, foster accountability, and it supports informed public discourse'. It was also submitted that releasing the Documents would allow the public to better understand 'the rationale behind funding allocations and contribute to a more equitable and effective implementation of the SRL project'.

1. In addition to the findings set out above from [112] in respect of the process for the creation of Documents 7 and 10, the purpose for which they were created and their nature, I find that a fair reader would know they were drafts from the Yellow Box on the front page and the words on each page stating that the Documents are drafts and for internal discussion purposes only.
2. As to the Department's submissions regarding a 'reasonably proximate relationship' with Cabinet processes, I noted the origin of that phrase came of SM Smither's decision in Environment Victoria Inc v Department of Primary Industries[74] (Environment Victoria) In that case, the documents claimed to be exempt under section 30 of the FOI Act were described as 'briefings to the Minister by the most senior officers of the Department. And they relate to matters which are the subject of ongoing consideration'.[75] SM Smithers found:[76]

The similarity of the content of these documents with the subsequent Cabinet documents on these issues supports the conclusion that these are high level communications dealing with sensitive issues. Whilst I have found that these documents do not satisfy the requirements of section 28(1)(ba), their reasonably proximate relationship to the Cabinet process supports the application of s 30 to them. In relation to 28(1)(ba), I found in effect that these documents were at too early a stage to be exempt. However, those same 'preliminary' characteristics tend to favour exemption under s 30.

1. I noted that the Deputy Commissioner concluded that, while Documents 7 and 10 in this proceeding 'related' to those which were exempt under section 28 of the FOI Act, 'these documents' were 'removed from those processes, where the information relates to departmental rather than executive functions.'[77] Those comments were made with the benefit of access to the other documents which were found to be exempt under section 28.
2. In circumstances where I have found section 28(1) of the FOI Act does not apply to Documents 7 and 10 and these Documents were to be the subject of revision following 'consultations with the various agencies and further consideration by the Department' before being prepared for submission to Cabinet in a different document which 'may not be a completely accurate reflection' of the content of Documents 7 and 10, I am not satisfied there is a connection between those Documents and the eventual Cabinet Submission and Cabinet processes similar to that in Environment Victoria.[78] I am not satisfied the 'reasonably proximate' submission applies in respect of these Documents.
3. I next address the Friends of Mallacoota Inc factors (set out at [42]-[43] above) as relevant to these Documents.
4. Frost's evidence did not differentiate between those parts of Documents 7 and 10 which were redacted under section 28(1) and section 30(1) of the FOI Act. There was no specific evidence as to why the redactions in those Documents and the whole of Document 9 were 'sensitive'.
5. There was no specific evidence about why disclosure of those Documents might lead to landowners or others being confused or causing land speculation or lead to ill-informed debate, whether by reference to the content of the three Documents or other specific evidence. As described earlier, it is clear on the face of all three Documents that they are drafts.
6. There were no final versions of Documents 7, 9 or 10 and so there is no final version available to communicate the final position or any final decisions.
7. Frost gave no specific evidence about why the release of the redacted parts of Documents 7 and 10 and the whole of Document 9 would cause public servants not to undertake their work with frankness and candour or lead to them curating their formulations of processes and advice. There was no clear explanation about why the disclosure of the specific content of these Documents would have an adverse effect on the integrity or effectiveness of decision-making, investigative or other processes.
8. I give no weight to those generalised aspects of Frost's evidence, particularly in light of her agreement that the fact Documents 7 and 10 were drafts and clearly marked so. There can be no doubt that Document 9 is also a draft.
9. In my view, it would be inconsistent with the objectives of the FOI Act and the narrow interpretation which is to be applied to the exemptions, to decide the issue based on an assumption that a reader would deliberately misinterpret or misrepresent the context for particular content in the Documents.
10. In my view, the fact that the content does not precisely match the terms of the Request Rooney made is not directly relevant to the application of the internal working documents exemption. Documents 7, 9 and 10 were identified as falling within the scope of the Request. As indicated by Rooney's evidence and the Request itself, he had an interest in value capture methods of funding as well as protocols for funding and governance. These Documents are of interest to him and so the Department's suggestion that they may not be of assistance to Rooney does not point to it being contrary to the public interest for them to be released.
11. I find that, where it is clear on the face of the Documents that they represent point in time considerations which were not final, the public interest can be served by revealing the considerations under development and the processes undertaken. A generalised fear of causing confusion does not outweigh the public interest in people who have an interest in and capacity to assess the information doing so.
12. I find that Rooney's interest in the Documents is underpinned by the wider public interest in there being open scrutiny of government processes, particularly where such significant funds of public money has been committed.
13. I find the redacted content in Documents 7 and 10 is not exempt under section 30(1) of the FOI Act.
14. I find the whole of Document 9 is not exempt under section 30(1) of the FOI Act.

CONFIDENTIALITY OF FROST'S CONFIDENTIAL STATEMENT

1. As indicated earlier, for the purposes of the hearing, the Confidentiality Orders were made but the extent of those Orders was challenged at the end of the hearing.
2. I note that the consideration of the issue was not under the FOI Act: that is whether the specific parts of Frost's Confidential Statement were exempt.
3. Rather the issue is whether, for the purposes of section 30(1)(b) of the OC Act, it was in the interests of justice for the evidence arising from redacted parts of Frost's Confidential Statement to be treated as closed.
4. Relevantly, the Department claimed that Frost's evidence about all of the redacted parts of Frost's Confidential Statement ought to be the subject of a closed court order (under section 30(1)(b) of the OCA) on the basis of section 30(2)(f)(ii) of the OC Act. The latter provision says relevantly:

A court or tribunal other than the Coroners Court may make a closed court order if satisfied as to one or more of the following grounds -

. . .

(f) in the case of VCAT, the order is necessary -

. . .

(ii) for any other reason in the interests of justice.

1. First, I find that it was open to Rooney's representatives to make a further objection to the Confidentiality Orders as that right was expressly reserved during the hearing.
2. Second, I find that it was for the Department to prove that the redactions in Frost's Confidential Statement were appropriately made under the OC Act.
3. Third, as summarised in the context of Documents 7 and 10, Frost's evidence was that specified parts of her Confidential Statement were not in fact confidential (see [82] above). Those were the parts of the Statement to which objection was taken by Rooney.
4. In light of Frost's evidence, I find that the following parts of Frost's Confidential Statement do not fall within the protections in section 30(2)(f)(ii) of the OC Act and so evidence she gave about those matters is not subject to the Confidentiality Orders:
   • The introductory words of paragraph 7 (but none of the sub-paragraphs).
   • The redacted words in paragraph 8.
   • The first line of paragraph 9.
   • The redactions in the final three lines of paragraph 11.
   • The redactions in the final two lines of paragraph 12.
   • The redactions in the final two lines of paragraph 13.
   • The redactions in the final line of paragraph 14.
5. I note that the 'Harman undertaking' continues to apply to the above listed parts of Frost's Confidential Statement.

[1] In these Reasons, the use of bold type indicates a defined term or name of an organisation or person. Cases are defined by use of bold and italics.

[4] I record that the 10-year exclusion in section 28(2) does not apply to the Documents. There was no submission that section 28(3), which refers to the status of document containing purely statistical, technical or scientific material, applied.

[5] [2020] VCAT 965 (Davis v MTIA) [16], [19] and [23], footnotes omitted.

[6] [2019] VCAT 2018 [79]-[80].

[7] [2011] VCAT 1889 [51], citations omitted.

[12] Department's May 2025 Submissions [2(a)].

[13] Submissions dated 26 April 2024, TB 31.

[14] Department's May 2025 Submissions) [2(c)].

[15] Submissions dated 26 April 2024, TB 33.

[16] Department's December 2025 Submissions noting that submissions as to 'extracts' under section 28(1)(c) of the FOI Act were withdrawn at the hearing in respect of all pages of Documents 7 and 10 other than page 15.

[18] Frost's Open Statement [17]-[19] and [24].

[19] Frost's Confidential Statement, referring to redacted content in [18].

[21] Department's December 2025 Submissions [39].

[22] Asher v Department of Infrastructure [2006] VCAT 1375 (VCAT Asher) at [22], emphasis in original.

[24] [2007] VSCA 272 [44].

[25] Asher [36], [37], [40]-[41], footnotes omitted.

[26] Department's December 2025 Submissions [40], footnotes omitted.

[27] Referring to Environment Victoria Inc v Department of Primary Industries [2013] VCAT 39 [40] (Environment Victoria).

[28] [2004] VCAT 2346 [41]-[42], emphasis in original.

[29] Department's December 2025 Submissions [41]-[42] footnotes omitted.

[30] Asher [44] per Vincent JA (and not Buchanan JA).

[31] [2009] VCAT 1079.

[33] Department's December 2025 Submissions [43].

[34] Referring to Asher v Department of Sustainability and Environment [2010] VCAT 601 [42].

[35] Department's December 2025 Submissions [43], footnotes omitted.

[36] [2006] VCAT 1228 [17].

[37] Asher [56]-[61], footnotes omitted.

[38] Department's December 2025 Submissions [46].

[41] Frost's Confidential Statement, referring to unredacted content in [12].

[43] Frost's Confidential Statement, referring to unredacted content in [11] and [12].

[44] Frost's Confidential Statement, referring to redacted content in [18].

[49] Department's May 2025 Submissions [2].

[50] Department's May 2025 Submissions [2(b)] and TB 32.

[51] Department's December 2025 Submissions [23].

[56] Department's December 2025 Submissions [58].

[57] Referring to Herington v Department of Transport Planning & Local Infrastructure [2014] VCAT 1026 (Herington).

[58] Department's December 2025 Submissions [58].

[59] Department's December 2025 Submissions [58.1].

[60] Department's December 2025 Submissions [58.2]-[58.6].

[61] Department's December 2025 Submissions [59].

[62] Department's December 2025 Submissions [60].

[63] Department's December 2025 Submissions [61].

[64] Department's December 2025 Submissions [67].

[65] Department's December 2025 Submissions [68]-[71].

[66] [2024] VCAT 707.

[68] Suburban Rail Loop Authority v Davis [2024] VCAT 1175 (SRLA v Davis).

[70] Rooney's May 2025 Submissions [74].

[71] Rooney's May 2025 Submissions [79].

[74] [2013] VCAT 39.

[77] Page 8 of the Deputy Commissioner's decision, TB 41.

[78] The same may be said in respect of the documents in Herington: they comprised preliminary reviews of a peer review designed to 'help improve the accuracy and robustness of the Business Case being put to Cabinet'. The peer review was prepared 'in close consultation with other consultants who were preparing the Business Case and 'were created at a high level within Government'. The relevant peer review was found to be exempt under section 28(1)(b) of the FOI Act - see Herington [22] and [45]-[48]