Victorian Civil and Administrative Tribunal|2014-08-26

Donnellan v Linking Melbourne Authority (Revised) (Review and Regulation) [2014] VCAT 1027 (26 August 2014)

Freedom of Information Act 1982 section 28, whether the East West Link business case and annexures is an exempt document.

Donnellan v Linking Melbourne Authority (Revised) (Review and Regulation) [2014] VCAT 1027

The decision of the respondent made on 13 August 2013 is affirmed.

The East West Link forms part of the Victorian State Government's urban road link from the Eastern Freeway at Hoddle Street to the Western Ring Road at Sunshine West. The East West Link Stage 1 Project (the Project) is a capital investment project with a total estimated investment in excess of $100 million.
By an application dated 2 July 2013, the applicant, who is a member of the opposition in State Parliament, sought access to the East West Link Stage 1 Business case. The application also sought access to 'all correspondence (including any emails or attachments) between the Linking Melbourne Authority and Infrastructure Australia between 1 January 2013 and 2 July 2013'. On the basis that a search of the Linking Melbourne Authority's records did not reveal any correspondence (including emails) between the Linking Melbourne Authority and Infrastructure Australia between 1 January 2013 and 2 July 2013, this aspect was not pursued.
By letter dated 13 August 2013 Ms Katrina Rio, Acting Director Corporate Services of the respondent, advised the applicant as follows:

The East West Link Business case was prepared for the dominant purpose of being considered by Cabinet and was before Cabinet in March 2013. Due to the status of the document, it is exempt in full pursuant to section 28(1)(b) of the FOI Act. Section 28(1)(b) of the FOI Act provides that a document is exempt if it 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.

This is the decision of the respondent made on 13 August 2013 which is the subject of this application.

In February 2012, the Secretary to the Department of Transport (now known as the Department of Transport Planning and Local Infrastructure) ('the Department') formed a steering committee to support the Department in the development of a business case for the project ('the business case'). The chair of the Steering Committee was the Secretary to the Department. The Steering Department also comprised senior representatives of various divisions of the Department as well as other Victorian Government departments and statutory authorities including the respondent.
The business case was finalised on 22 March 2013 and comprised three volumes of documents entitled 'East West Link Business Case'.

It is not a matter of any contention between the parties as to whether the business case was submitted to Cabinet. 'Cabinet' includes a committee or sub-committee of Cabinet in the context of this application.[1]
The question in contention is whether the business case was prepared for the purpose of submission for consideration by the Cabinet.[2]

OBJECT OF THE FREEDOM OF INFORMATION ACT 1982 ('THE ACT')

The objects of the Act is as follows:
1. Object of Act

(1) 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.

(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

Section 13 of the Act provides as follows:
1. Right of access

Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to -

(a) a document of an agency, other than an exempt document; or

(b) an official document of a Minister, other than an exempt document.

Relevantly section 28 of the Act provides as follows:

(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;

(3) Sub-section (1) does not apply to a document referred to in a paragraph of that sub-section to the extent that the document contains purely statistical, technical or scientific material unless the disclosure of the document would involve the disclosure of any deliberation or decision of the Cabinet.

In this proceeding, the respondent has the onus of establishing that the decision in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.[3]

Ms Siobhan Keating of Counsel represented the applicant at the hearing of this matter and the respondent was represented by Mr Charles Gunst QC and Ms Emily Latif of Counsel. Evidence was given by way of witness statements and witnesses were cross-examined on 13 August 2014 and oral submissions were received from representatives of the parties on 14 August 2014.

Ms Renn is the Director of the Cabinet Secretariat in the Department of Premier and Cabinet. She acted in this position from February 2013 until her formal appointment as Director in September 2013. Prior to this role, she was the Assistant Director of the Cabinet Secretariat from September 2012.

Ms De Silva is the Executive Director, Commercial and Legal, for the Linking Melbourne Authority and has held that position since joining the Linking Melbourne Authority in March 2012 as a secondee and from June 2012 as a permanent employee.

Mr Oulton is the Director of Transport Investment and Development, Department of Transport Planning and Local Infrastructure. He has held this role since mid-2013. Prior to this, he was Director of Transport Solutions at the Department from August 2011.

Ms Renn's witness statements were made by way of two affidavits, the first of which was affirmed on 30 May 2014 and the second on 5 August 2014. Both were adopted by Ms Renn as her evidence in chief.
As the Director of the Cabinet Secretariat, Ms Renn's responsibilities include management of the receipt, registration, distribution, maintenance and preservation of Cabinet documents. The documents are typically:
- submissions to Cabinet or its committees;
- final briefing papers to the Premier on Cabinet or its committees;
- Department of Treasury and Finance briefings to the Treasurer on Cabinet and Cabinet Committee submissions; and
- the official records of decisions made by Cabinet or its committees.

Ms Renn's evidence is that records of Cabinet meetings disclose the establishment and terms of reference of two committees of Cabinet. The terms of reference of both committees give them responsibilities that extend to the consideration of matters relating to the East West Link Project. A review of the agenda, relevant Cabinet submission (including attachments) and minutes of meetings of both committees disclose that matters relating to the East West Link Project were considered at meetings of both committees.

Ms Renn was cross-examined, during which it was put to her that every agenda item is supported by submissions. Ms Renn agreed generally. However, it was not put to her that submissions did not have attachments. As noted above, Ms Renn's evidence was that a review of the relevant submission ('including attachments') (my italics) and minutes of both committees disclose that matters relating to the project were considered at meetings of both committees.

Two witness statements by Ms De Silva, the first dated 30 May 2014 and the second dated 6 August 2014 were adopted by Ms De Silva as her evidence in chief.
Ms De Silva's evidence is that on 20 December 2012 the project was declared by the Premier as a declared project under the Major Transport Projects Facilitation Act 2009 (Vic) (MTPFA).
On 22 March 2013 the Minister for Roads appointed the respondent as the project proponent under the MTPFA.
Ms De Silva's role in the respondent is to manage all commercial, project financial and legal aspects of the respondent's operations, including in relation to the project. She played an integral role in the respondent's contribution to the development of the business case for the project.
Ms De Silva was the representative of the respondent with the day to day oversight of the preparation of the business case, which was in turn overseen by the steering committee. Ms De Silva's evidence is that in February 2012, the Secretary to the Department formed a steering committee. The steering committee was formed to support the Department in the development of a business case for the project. The chair of the steering committee was the Secretary to the Department and the steering committee also comprised senior representatives of various divisions of the Department as well as other Victorian Government departments and statutory authorities including the respondent. Ms De Silva attended meetings of that committee between 8 May 2012 and 4 July 2013 (the date of the request under the FOI Act which is the subject of this proceeding). Ms De Silva stated that where she did not attend a meeting prior to 4 July 2013, she reviewed the minutes and agenda of that meeting. Her evidence is based on her knowledge from either attending steering committee meetings or reviewing the minutes of the two meetings which she did not attend which took place before 8 May 2012. At each relevant meeting, Ms De Silva reported to the steering committee on the progress of the business case. At all times, her understanding was that the purpose of the business case was to provide Cabinet with the information necessary to evaluate the project.
A copy of the project steering committee terms of reference was exhibited to Ms De Silva's first affidavit. The terms of reference state that the objective of the steering committee was to 'oversight development of the East West Link business case, which will be considered and assessed by Government'. Ms De Silva's evidence is that she understood at all times that these words meant that the business case would be considered and assessed by a Cabinet committee with responsibility in the area.
Ms De Silva further stated that to the best of her knowledge and belief it was the case in the steering committee meetings that all attendees were aware that the business case was being prepared for the purposes of submission to Cabinet.
Ms De Silva stated that at the steering committee meeting which took place on 19 March 2013 there was discussion of the time line for the finalisation of the business case and that she presented to the committee on the status. Significantly, she stated that the business case was to be finalised by 22 March 2013 and that this date was selected so that the business case would be ready to be submitted for consideration, first at a Cabinet committee meeting on 26 March 2013, then at a meeting of another Cabinet committee that was to be held in early April 2013.
The business case was finalised on 22 March 2013 and comprised three volumes of documents entitled 'East West Link Business Case'.
Ms De Silva stated that she is aware that a senior employee of the Department drafted a submission on behalf of the Minister for Roads for a Cabinet committee that was to meet on 2 April 2013, and that the business case formed part of the submission. The submission was marked as 'Cabinet in confidence'. The submission was subsequently provided to the Cabinet committee and was considered at the meeting of the Cabinet committee on 2 April 2013.
Ms De Silva's evidence is that it was her understanding, and to the best of her knowledge and belief the understanding of the project's steering committee as a whole, that the business case and all its components were being prepared for the purpose of submission to;
- a Cabinet committee for the purpose of that committee considering and giving input and guidance on the content of the business case for the project; and
- a different Cabinet committee, for the purpose of that committee considering and, if the committee was satisfied with the proposal, approving, funding for and the progression of the project.
Ms De Silva stated that she understands that the business case was submitted to the Cabinet committees for consideration. In her second witness statement, Ms De Silva stated that the business case in relation to the project was developed under close supervision of a particular Cabinet committee, including by regular reporting to that Cabinet committee on progress. The business case was developed via an iterative process between the respondent, the steering committee and a particular Cabinet committee. She then said that the business case was prepared for the purpose of consideration by Cabinet. The purpose of the creation of the business case was for consideration by Cabinet in order to inform Cabinet as to an investment and funding decision.
In reference to a proposition that Cabinet ministers do not consider extensive documents put to them and that this is well known to public servants, Ms De Silva stated that in her experience since March 2012 there is an expectation on public servants to provide extensive materials supporting Cabinet Submissions.
Ms De Silva also stated that the annexures to the business case [the documents contained in the second and third ring binders] were an integral component of the business case that were specifically required to form part of the business case.

Mr Oulton made two witness statements, the first dated 23 May 2014 and the second dated 5 August 2014, both of which he adopted as his evidence in chief. Mr Oulton stated that as the Director of Transport Solutions at the Department, he was responsible for leading a small team engaged in facilitating the integrated transport and land use development of priority projects across the Department's transport portfolio. He also had specific duties and responsibilities in relation to the project. These included supporting the co-ordinated development of the business case for the project for Government consideration, including by acting as committee secretary for the East West Link Business Case Development Steering Committee ('the steering committee').
Mr Oulton attended the first meeting of the steering committee on 9 February 2012, at which meeting the steering committee adopted its terms of reference and agreed that:
- the steering committee was to 'oversight development of' the business case;
- the business case was to be 'considered and assessed by Government';
- the steering committee was to provide guidance to the Department on the development of the business case;
- the Department was to be accountable for the preparation of the business case; and
- under the auspices and direction of the Department and with input from the steering committee, the respondent was to provide project services and advice to support preparation of the business case.
Mr Oulton stated that at all times his understanding and intention was that the business case was being created for the purpose of facilitating consideration of various aspects of the project by Cabinet.
Mr Oulton's evidence is that the business case was to be finalised by 22 March 2013 and submitted to a Cabinet committee at a meeting that was to be held on 26 March 2013 and to a different Cabinet committee for consideration at a meeting that was to be held in early April 2013.
The business case was finalised on 22 March 2013 and comprised three volumes of documents entitled 'East West Link Business Case'.
Mr Oulton drafted a submission on behalf of the Minister for Roads for a Cabinet committee that was to meet on 2 April 2013. The business case formed part of that submission. The submission is marked as Cabinet in confidence. The submission was subsequently provided to the Cabinet committee and was considered at the meeting of the Cabinet committee on 2 April 2013. Mr Oulton attended that Cabinet committee meeting. He was unable to provide further information without infringing upon the confidentiality of the Cabinet committee's deliberation.
Mr Oulton stated that shortly after the Victorian Government's announcement on 17 November 2011 that the project was to include a new stage to connect the Eastern Freeway to the City Link road network, he was asked by Mr Jim Betts, the then Secretary to the Department, to assist in the preparation of a business case for the project. Mr Oulton stated that detailed reports, referred to 'business cases' are routinely prepared for projects of major State significance such as the project. The preparation of the business case for the project was in accordance with the Department of Treasury and Finance's Investment Lifecycle and High Value/High Risk Guidelines ('the Guidelines'). The Guidelines require that all State Government investment proposals over $10 million seeking budget funding submit a full business case. A process of heightened scrutiny is applied to projects deemed to be high value and/or high risk capital projects as required by the Guidelines. A project is deemed to fall into this category if, for example, the total estimated investment is greater than $100 million. Due to its high capital expenditure, the project fell into the high value/high risk category. Mr Oulton went on to state that the primary purpose of business cases for high value/high risk statements is to provide Cabinet, or a Cabinet committee or sub-committee, with the information necessary (including updated or revised information) to enable informed decision making regarding the costs, benefits and risks of a particular project. Business cases for high value/high risk projects are prepared in order to inform Cabinet's funding decisions in relation to the relevant project or proposal.
Mr Oulton stated that only Cabinet could consider and make the high capital investment funding decisions for the project. He went on to say that the primary purpose of preparing the business case for the project was to compile enough commercial, economic and technical analysis for Cabinet to enable it make an informed decision about whether the State should make an investment in the project.
Mr Oulton stated that during his involvement in the project, including his involvement with the steering committee, the preparation of the business case for the project for consideration by Cabinet was in accordance with the Guidelines.
Mr Oulton stated that since its inception, there has been a high degree of Cabinet involvement in overseeing the project. He stated that this is because the project is of major State significance, being a city shaping project. As the project is complex, it required a large volume of supporting information so as to enable the relevant decision makers, being Cabinet, to determine whether or not to proceed.
The respondent and the Department, via the steering committee, supervised the production of drafts of the business case, including the technical information forming part of it. Contributions to the business case were made by the Department, the respondent, the Department of Treasury and Finance, other Government Departments, independent experts and external consultants. Mr Oulton stated that the ultimate purpose of this continual process of refinement was to ensure that Cabinet had the most relevant and robust information available concerning the project.
Mr Oulton stated that the annexures to the business case were always intended to be, and did, form integral parts of the business case. They are not mere appendices or adjuncts and the business case is not complete without those documents. He further stated that the business case does not contain any purely technical, scientific or statistical information. Statistical, scientific and technical information in the business case appears by way of argument, evaluation, proposals and modelling relating to the project, based on subjective assumptions by, or inputs from the relevant authors, experts or consultants.
Finally, Mr Oulton confirmed that the business case formed part of a submission that he drafted on behalf of the Minister for Roads for a Cabinet committee that was to meet on 2 April 2013. The business case was not prepared to assist his, or someone else's preparation of the submission to Cabinet or another submission to Cabinet. Mr Oulton stated that it was prepared as a standalone document to be given to Cabinet for its consideration.

Two witnesses were called on behalf of the applicant. They are:

A retired public servant a former Ministerial adviser.

A member of the Legislative Assembly. Between 1999 and 2002 Mr Wynne held appointment to the position of Parliamentary Secretary, Justice. Between December 2002 and December 2006 Mr Wynne held appointment to the position of Cabinet Secretary. Between December 2006 and December 2010, Mr Wynne held appointment to the positions of Minister for Housing and Minister for Local Government. Between August 2007 and December 2010 Mr Wynne held appointment to the position of Minister for Aboriginal Affairs. Between 1985 and 1991, Mr Wynne was a councillor of the Melbourne City Council and between 1990 and 1991 he was Lord Mayor of the City of Melbourne.

Mr Herington's witness statement dated 17 June 2014 was the subject of two amendments and was re-dated 13 August 2014. This was then adopted by Mr Herington as his evidence in chief.
Mr Herington stated that prior to his retirement in December 2010, he worked as the Director of Strategic Policy Development in the Office of the Premier, John Brumby, and before that, Steve Bracks. He goes on to say that in that capacity he became very familiar with Cabinet processes as they were at that time and that he attended many Cabinet committee meetings and managed the business for several Cabinet committees.
Mr Herington stated that on 19 March 2014 the respondent tabled an eight page executive summary of the short form business case at a public hearing of an independent assessment committee which had been appointed by the minister for Planning pursuant to the Major Transport Projects Facilitation Act 2009 (Vic) to assess the comprehensive impact statement for the East West Link.
Mr Herington's evidence then concerned the production of business cases. Firstly, he stated that the production of a business case is a requirement of both the Department of Treasury and Finance and Infrastructure Australia for particular projects. The required contents for business cases are set out in guidelines issued by both of the Department of Treasury and Finance and Infrastructure Australia. The guidelines issued by the Department of Treasury and Finance are known as the high risk/high value lifecycle guidelines. These guidelines apply to projects with a value of more than $100 million or which are otherwise deemed important or higher risk. In addition to the guidelines there is a number of supporting technical documents about various parts of this process.
Mr Herington stated that the key requirements for proponents seeking Commonwealth Government funding is to meet the December 2013 Infrastructure Australia Guidelines. Given that these guidelines appear to post-date the production of the business plan and its submission to Cabinet, this evidence does not appear to be relevant.
Mr Herington stated that based on his experience it is not inevitable that every business case prepared is put before Cabinet or a Cabinet committee. Each year a number of business cases would be prepared and only some would be chosen by the Department and/or the Minister to progress beyond that point. These business cases might be placed before the Cabinet, but it is not necessarily the case. Mr Herington further stated that business cases are developed for a number of purposes, including informing the Department about likely costs, to set a plan for how a project is to progress or to assess the likelihood of a project receiving funding from external bodies such as Infrastructure Australia. Mr Herington further stated that ministers attending Cabinet committees rely almost exclusively on the summary and recommendations contained within the Cabinet submission itself rather than perusing attachments and accompanying material.

After setting out details of the role of the Cabinet Secretary and the general process of the work of Cabinet sub-committees, Mr Wynne stated that a sub-committee meeting is generally scheduled to run for 'a couple of hours' and that a typical agenda would have eight or 10 items on it. Every agenda item is supported by a submission which has been prepared in a standard form template. During Mr Wynne's time as Cabinet Secretary it was attempted to keep submissions to a maximum of eight to 10 pages.
Mr Wynne stated that in his experience it is almost unheard of for additional material to be placed before the Committee due to the limited time available at meetings.
Mr Wynne stated that he has been advised that the business case comprises three lever arch volumes of materials, being the business case in one volume and two volumes of attachments. He then opined that in his experience, it is highly improbable that these documents were prepared for the purpose of being submitted to Cabinet or a sub-committee for its consideration.

I am satisfied that all witnesses are witnesses of truth. However, there was disparity between witnesses called on behalf of the applicant and witnesses called on behalf of the respondent in respect of the probative value of their evidence.

Was the business case prepared for the purpose of submission for consideration by the Cabinet?

This is the central question to be determined in this matter. It must be borne in mind that the onus in relation to the exemption rests with the respondent.
The evidence may be summarised as follows:
- The terms of reference of both Cabinet committees gave them responsibilities that extend to the consideration of matters relating to the East West Link Project. (Renn)
- A review of the agenda, relevant Cabinet submission (including attachments) and minutes of meetings of both committees disclose that matters relating to the East West Link Project were considered at meetings of both committees. (Renn)
- A steering committee comprised of senior departmental officials and others was established to support the Department in the development of a business case. (De Silva).
- Ms De Silva reported to the steering committee on the progress of the business case. At all times, her understanding was that the purpose of the business case was to provide Cabinet with the information necessary to evaluate the project.
- The terms of reference of the project steering committee state that the objective of the steering committee was to 'oversight development of the East West Link business case, which will be considered and assessed by Government'. The date by which the business case was to be finalised at the steering committee was selected so that the business case would be ready to be submitted for consideration by the two Cabinet committees on particular dates. (De Silva).
- The business case formed part of the submission to a Cabinet committee. (De Silva)
- The business case was developed via an iterative process between the respondent, the steering committee and a Cabinet committee. (De Silva)
- The purpose of the creation of the business case was for consideration by Cabinet in order to inform Cabinet as to an investment and funding decision. (De Silva)
- The annexures to the business case were an integral part of the business case that was specifically required to form part of the business case. (De Silva)
- The business case formed part of the submission to a Cabinet committee. (Oulton)
- The submission was considered at the meeting of the Cabinet committee on 2 April 2013. (Oulton)
- Only Cabinet could consider and make the high capital investment funding decisions for the project. (Oulton)
- The primary purpose of preparing the business case for the project was to compile enough commercial, economic and technical analysis for Cabinet to enable it to make an informed decision about whether the State should make an investment in the project. (Oulton)
- Since its inception there has been a high degree of Cabinet involvement in overseeing the project. (Oulton)
- A large volume of supporting information was required to enable Cabinet to determine whether or not to proceed. (Oulton)
- There was a requirement that Cabinet had the most relevant and robust information available concerning the project. (Oulton)
- The annexures to the business case were always intended to be, and did, form integral parts of the business case. (Oulton)
- The business case was not prepared to assist Mr Oulton's preparation, or someone else's preparation of the submission to Cabinet or another submission to Cabinet. It was prepared as a standalone document to be given to Cabinet for its consideration. (Oulton)
The evidence of Mr Herrington and Mr Wynne did not at any stage go directly to the purpose and progress of the business case but concentrated on historical generalities:
- It is not inevitable that every business case prepared is put before Cabinet or a Cabinet committee. (Herington)
- Some business cases are prepared for purposes other than consideration by Cabinet. (Herington)
- Ministers attending Cabinet committees rely almost exclusively on the summary and recommendations contained within the Cabinet submission rather than perusing attachments and accompanying material. (Herington)
- Committee meetings generally run for 'a couple of hours' and typically have eight or 10 agenda items. (Wynne)
- Submissions are prepared in a standard form template to a maximum of eight to 10 pages. (Wynne)
- It is not usual for additional material to be placed before the Committee due to the limited time available at meetings. (Wynne)
- It is highly improbable that these documents were prepared for the purpose being submitted to Cabinet or a sub-committee for its consideration. (Wynne)
In assessing the evidence, it is necessary to come to a determination on the balance of probabilities, bearing in mind the onus resting on the respondent. It is clear that the evidence given by three senior public servants intimately involved in the process of guiding the business plan from its inception to its submission to the Cabinet committees far outweighs the evidence adduced on behalf of the applicant. I am satisfied that the business plan was prepared for the purpose of submission for consideration by the Cabinet. It may well be that the business plan was, or could be used for another purpose. It is not necessary for the purpose of submission for consideration by the Cabinet to be the sole purpose for preparation of the business plan.
In relation to the exception contained in section 28(3) of the Act, an examination of the business plan and its annexures satisfies me that there is no material of a purely statistical, technical or scientific nature such that the exemption would apply. I agree with the opinion of Mr Oulton that it does not contain any purely technical, scientific or statistical information. Statistical, scientific and technical information in the business case appears by way of argument, evaluation, proposals and modelling relating to the Project, based on subjective assumptions by, or inputs from, the relevant authors, experts or consultants.

Donnellan v Linking Melbourne Authority

At a glance

Court

Decision date

Source

Judgment (41 paragraphs)

Donnellan v Linking Melbourne Authority (Revised) (Review and Regulation) [2014] VCAT 1027 (26 August 2014)

Parties