Victorian Civil and Administrative Tribunal|2011-09-30|Before: Mr J

The applicant was still dissatisfied with the Department's response in respect of the adequacy of its searches. In May 2010 FOM made a further request, this time of the Minister for Planning for access to the same categories of documents as those contained in the original request. Where the original request had sought Departmental and Ministerial documents falling within the identified categories, the second request sought only Ministerial documents falling within those categories.

On 8 June 2010 the Department, on behalf of the Minister, provided the applicant with a decision in respect of the Ministerial request. It advised the search conducted within the office of the Minister for Planning yielded one document within the scope of the request. The applicant was advised that no documents fitting within the first two categories had been found, and that it was the general practice for Ministerial correspondence to be remitted to the Department once attended to. Access to the one document falling within the terms of the request was denied, exemption pursuant to s 30(1) being claimed on the basis that document was an internal working document.

On 30 July 2010 application for review of this decision was also made to the tribunal.

On 31 August 2010, the one document produced pursuant to the search conducted following the request was released to the applicant.

The two applications for review were directed to be heard together.

The applicant continued to complain the Departmental searches in respect of both requests were inadequate. The respondent maintained its searches were adequate, and indicated its intention to submit that the tribunal had no jurisdiction to consider the adequacy of the search for documents that fall within a request, in applications for review of decisions refusing to grant access to documents.

Despite this stance, the respondent did conduct further searches before the commencement of the hearing, and as a result produced a further 158 pages of documents it acknowledged fell within the terms of the original request. No claims for exemption were made in respect of these additional documents.

Shortly before the hearing, it released some additional documents. These were all documents in respect of which the Department had, until then, claimed weer exempt from production.

Complaint about inadequacy of searches at commencement of the hearing

When the matters first came on for hearing on 6 September 2010, there were 14 documents in dispute, that is documents which had been identified as falling within the terms of the search, and in respect of which a claim for exemption was maintained.

At the commencement of the hearing, the applicant raised its concerns about the inadequacy of the searches. It identified, by reference to documents already produced, a clear and reasonable basis for believing other documents existed, which fell within the terms of the search. The respondent, as it had foreshadowed in its correspondence with the applicant, it would do, submitted the tribunal had no jurisdiction to consider whether the searches for the documents covered by the request had been adequate. Mr Pizer on behalf of the respondent acknowledged that in Victoria Police v Burton[3] Hedigan J held the tribunal did have the jurisdiction to determine whether an agency had undertaken a thorough and diligent search for the documents sought. He acknowledged the tribunal was bound to follow Burton, but advised the respondent sought to preserve its rights to contend, in the event of an appeal, that Burton was wrongly decided.

Mr Ure for the applicant, in reliance on Burton, submitted I had the power to direct further searches be undertaken, and that I should in the circumstances of these applications direct further searches be undertaken before hearing the application for review on the substantive issues. I was satisfied, on the history I have recounted, and on the basis of what was disclosed in the materials filed before me, that the applicant had clearly demonstrated there was a sound basis for believing there were further documents falling within the terms of the search which had not been identified and produced by the respondents.

The materials before me revealed that each time the applicant had identified additional documents it submitted fell within the terms of the search, the respondents had located the additional documents identified, and had released them. On occasions, the production of the additional documents had led to the Department reconsidering its claim for exemption in respect of earlier identified documents, and releasing some of them as well. Although the applicant's persistence had resulted in the respondents finding a considerable number of additional documents, it was clear that there were still reasonable grounds for believing, by reference to the documents produced, that there were still others which existed, but which had not yet been produced.

Mr Ure submitted, correctly, the FOI Act did not authorise a respondent to choose which documents it would reveal, that a respondent was required to conduct a thorough and diligent search in order to comply with a request, as to do otherwise thwarted or subverted the clear intention of the FOI Act. This was a case, he submitted, where public interest considerations, both within the terms of s 30(1), and s 50(4) of the FOI Act were important. It followed that if other documents existed, which fell within the terms of the search, but which had not yet been disclosed they could well have a bearing on the public interest considerations. Mr Ure submitted this was a powerful consideration in favour of directing a further search before the hearing commenced.

After hearing evidence from Mr Brian Duffy, the Director of Business Support for the Department of Planning and Community Development (DPCD), and Mr Andrew Weston, Manager - Freedom of Information DPCD, in respect of the searches which had already been conducted, and further submissions from the parties, I indicated my preliminary view that the searches had been inadequate, that if necessary I would direct that further searches be undertaken.

The respondents then agreed, without the need to make a formal order that they would undertake further searches. The hearing was adjourned to 15 September 2010 for that to take place.

By the time the hearing resumed on 15 September, a further 1,350 pages of documents had been identified and released. Of those, exemption was claimed in respect of six documents. Unlike the documents which had been disgorged following the earlier requests by the applicant, a considerable amount of what was produced after 6 September was new material. All of the documents identified in the searches carried out between 6 and 15 September were Departmental documents.

The applicant indicated it was now satisfied with the searches had identified the documents requested. By 15 September, the applicant's counsel and solicitors, the Environment Defenders Office had been given access to all documents in respect of which exemption was claimed, upon giving the usual undertakings.

So, 15 months after the original request was made, most of what was requested by the applicant in the original request has been identified and provided, and only 20 documents remained the subject, in full or in part, of exemption claims. They were documents 3, 5-7, 12-7 and 20-29.

The volume of material provided as a result of the searches conducted between 6 and 15 September clearly demonstrated the original searches, even when supplemented by those further searches conducted by the respondents at the applicant's urging up until the commencement of the hearing, were clearly inadequate. The only remaining issue concerning the adequacy of the search was whether the respondents should pay the applicant's costs relating to its attempts to ensure the respondents conducted a proper search for, and production of, the documents identified in its requests.

This left as the remaining live issue, the exemption claims. All documents in respect of which exemption was claimed were Departmental documents.

Legal Professional Privilege: section 32(1) of the FOI Act

There were four documents, identified in the further revised schedule, dated 14 September 2010, as documents 12, 15, 16 and 17 falling into this category. Exemption was claimed for documents 12, 15 and 17 in their entirety. Document 16 was an email, with the advice the subject of document 15 attached. The covering email had already been released. After inspection, the applicant conceded documents 12, 15 and 17 were exempt in their entirety, and the attachment to document 16 was also exempt under s 32(1).

Internal Working Documents: section 30 (1) of the FOI Act

Exemption from disclosure of the other 16 documents was claimed on the basis they were internal working documents, within the terms of s 30(1).

(1) 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

Documents 13, 14, 20, 21, and 24 to 29 were said to be draft documents. The applicant acknowledged that the first two conditions of the internal working documents exemption contained in s 30(1)(a) was satisfied in respect of each of these documents. That left only consideration of the public interest under s 30(1)(b).

Documents 5 and 6 were said to be documents commenting on or summarising draft documents. Again, the applicant acknowledged that the first two conditions of the internal working documents exemption in s 30(1)(a) was satisfied in respect of these documents. Again, that left public interest as the only consideration.

Documents 3, 7, 22 and 23 were said to be preliminary internal documents, not reflecting the final settled view. The applicant acknowledged the first two conditions of the internal working documents exemption in s 30(1)(a) was satisfied in respect of documents 3 and 7. It acknowledged the first condition was satisfied in respect of documents 22 and 23, but submitted the respondent could not establish that the opinion advice or recommendation in those documents was prepared in the course of, or for the purpose of the deliberative process involved in the functions of the agency. It further submitted the documents contained factual material, and so were not exempt under s 30(1). Again, public interest was in issue in respect of all four documents.

Before turning to the public interest considerations common to all documents, I will consider whether documents 22 and 23 are opinions, advices or recommendations prepared in the course of, or for the purpose of the deliberative process involved in the functions of the agency.

Document 22 is an email from Mr John Ginivan (Executive Director, Planning Policy and Planning Policy and Reform) to Jak Dyer, a Ministerial adviser, dated 26 May 2009. It is a response to Mr Dyer's query about whether the final draft assessment in relation to the boat ramp proposal would be provided to the Minister that day. In addition to responding to the direct query, Mr Ginivan included a comment, which appears to be a reflection of his personal opinion about the decision reflected in the final draft assessment.

It is that sentence which is the subject of the claim for exemption.

The respondent also submitted that to the extent this sentence contained factual material, it was so embedded in the deliberative content of the document it was impractical to produce an edited document. The material was not, therefore, it submitted purely factual and therefore not covered by the exemption provided in s 30(1).

Section 30(3) operates to qualify s 30(1), if the document in respect of which exemption is claimed contains purely factual material.[4] If however, a document contains factual material, and material relating to the deliberative process, consideration has to be given to whether the applicant can be provided with an edited copy of the document which reveals the factual material, but not the deliberative material. If the factual and deliberative content are so intertwined that it is not practicable to separate them, so that disclosure of the factual material would necessarily also reveal material relating to the deliberative process, then s 30(3) does not compel the disclosure of the factual material.

Given that all but a sentence of document 22 has been released, and is not the subject of a claim for exemption under s 30(1), I do not find this a compelling argument. The fact an edited version of the document had already been released is proof it is possible to separate factual material from the other material.

The respondent's main argument was that the email makes it clear the process in relation to the drafting of the assessment was ongoing at the time the email was prepared. If accepted on that, it submitted, it follows the document was prepared in the course of a relevant deliberative process. I accept the email on its face makes it clear the process of drafting was ongoing at the time the email was written, I accept the respondent's submission it follows that preparation of a draft assessment is something occurring in the course of a deliberative process. The sentence in respect of which exemption is sought is concerned with the very process of drafting the document that will constitute the Ministerial assessment.

The respondent's other submissions in respect of this document in my view are more relevant to the public interest ground. They were first, that the sentence is an expression of Mr Ginivan's opinion about the decision the draft assessment was to reflect. His opinion about that is irrelevant, in the sense it is clear the ultimate decision reflected in the assessment is the Minister's, not the Department's or Mr Ginivan's to make. Secondly, that the sentence, taken out of context could be very mischievous, when, considered in context it was not sinister, and does not disclose any impropriety in respect of the decision-making process. I will consider these when considering the public interest ground.

Document 23 is an email exchange between Mr Ginivan and officers of the Corporate Communications unit of the Department. The applicant acknowledges the content of the document falls within the first part of s 30(10)(a), namely that it contains opinion, advice or recommendation prepared by an officer, or reflects consultation or deliberation that has taken place between officers, Ministers, or an officer and a Minister. It submits however, it does not fall within the second part, namely that it was not created 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. I disagree. It is clear from the content of the document the deliberative process is not concluded, and I am satisfied this is properly characterised as a document created in the course of the deliberative process. I am also satisfied that insofar as it contains factual material, it is so embedded in the content properly characterised as opinion, advice or recommendation, prepared in the course of the deliberative process that it is not practicable to separate them.

The Act does not define the circumstances in which disclosure of documents falling within s 30(1)(a) would, by reason of s 30(1)(b), be contrary to the public interest. In his helpful submissions, Mr Pizer summarised the relevant principles in the following terms:

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.[5]

Draft internal working documents or preliminary advices and opinions are more generally than not be inappropriate for release.[6] That is particularly so when the final version of the document has been made public.[7]

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,[8] to give a spurious standing to such documents[9] or promote pointless and captious debate about what might have happened rather than what did.[10]

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.[11]

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.[12]

Mr Ure accepted these statements of principle as correct. He also relied on the following passage from Secretary to the Department of Justice and Osland,[13] where Maxwell P said the public interest considerations underlying the exemption for internal working documents included:

[T]he efficient and economical conduct of government, protection of the deliberative processes of government, particularly at high levels of government and in relation to sensitive issues, and the preservation of confidentiality so as to promote the giving of full and frank advice.[14]

Finally he relied on the principles extracted by Senior Member Preuss in Wells v Department of Premier and Cabinet.[15] Most of what is contained in Wells has been referred to in Osland, or in Mr Pizer's submissions to which I have already referred. The only additional factors, relevant for these purposes from Wells are these:

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.

Mr Ure also submitted, correctly, that public interest must be considered document by document, and that there was no presumption that public interest justified non-disclosure of documents which were, for the purposes of s 30(1)(a), preliminary or draft internal working documents.

I have inspected each of the documents in respect of which exemption is claimed under s30(10(a), and considered the public interest claims in respect of each document individually.

I accept the applicant's submission, in reliance on Osland v the Secretary Department of Justice[16] that the risk of political criticism is not of itself a public interest argument against disclosure, and that considerations such as the sensitivity of the subject matter or its potential to confuse or mislead, had to result from something more than a general discomfort about making information available to those who might wish to criticise a government decision.

Mr Pizer relied on Mr Ginivan's evidence that the documents in respect of which exemption was claimed would, if disclosed, have a chilling effect on the giving of independent, frank and fearless advice by public servants to Ministers in relation to decisions they have to make. There was a risk, he submitted, the quality of the advice to be provided would be compromised, that preliminary discussion and debate would be inhibited, and there would be a reluctance to create a written record of such discussion and debate if drafts and other preliminary internal working documents were subject to disclosure.

Mr Ure submitted the public interest considerations favouring the exemption of working documents were of diminished force in this case because the EES enquiry and report canvassed the arguments for and against the proposal extensively, a diversity of views had been expressed in the panel process, and the range of views and arguments were well known within the interested community. It followed, he submitted that release of material in which an un-concluded view, or a view contrary to the Minister's assessment would not confuse or mislead the community. Further, as the Minister's assessment differed from the panel recommendations, and the community was well aware of the difference, there would be no difficulty in distinguishing between a draft or tentative view, and the final assessment. He submitted debate about the adopted option could not therefore be described as misconceived.

In my view, these arguments are not to the point. The issue is not the distinguishing between draft or preliminary views and the final assessment, but whether the giving of high level, independent, frank and fearless advice would be inhibited by the provision of draft and working documents, which form part of the deliberative process.

Mr Ure further submitted that the as participation by the applicant and other members of the Mallacoota community in the EES and panel enquiry process had been encouraged by the respondent, and involved the applicant and others in considerable time and expense, that it was in the public interest they be provided with access to the draft and working documents, and to the documents the subject of legal professional privilege. He relied on Re Smith v the Department of Sustainability and Environment,[17] where Morris P said:

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 led to the government choosing one option rather than other options.

In my view, ministerial or departmental encouragement of community participation in an EES and panel enquiry process does not give rise to right to or expectation of access to draft or working documents. An invitation to participate does not carry with it an expectation that the views expressed by that interested party can, or should, determine the outcome. Well informed decision making is assisted by encouraging participation from all parties with an interest in the proposal. There was a range of views about the redevelopment expressed at every stage of the process. The diversity of views reflected the range of interests involved. Some parties had responsibility for public and marine safety, others had statutory responsibility for coastal management, planning and environmental matters. Some represented specific groups who used the boat ramp, such as abalone divers or recreational boat owners. Some, with FOM and the Save Bastion Point alliance at the forefront, had preservation of the natural character of the area as their focus.

In her affidavit, Ms Jennifer Mason, the Deputy Coordinator of FOM said:

When the announcement was made, I and many others in the community were completely shocked. Those of us who had campaigned against a major redevelopment to the boat ramp all felt so disillusioned and frustrated with the result. Our work and efforts had resulted in such a well thought out, comprehensive set of enquiry recommendations. But much of the Inquiry report had been ignored or simply contradicted by the Minister in a cursory 13-page response. The feelings in the community range from disbelief, to outrage and anger at the mockery the Minister's Assessment made of the consultation process. Everyone felt that the Minister had intended to approve the project right from the start, and that the consultation had simply been to 'humour' the community.

If I and the Friends had known what the enquiry had recommended, we would have urged the Minister to accept those recommendations, and we would have encouraged others to voice this to the Minister.

In this case, the Minister made an assessment. That assessment has been publicly released. In my view that document sets out the reasons why the Minister chose the option he did. The panel report has also been released. The minister was not bound to accept the panel recommendation. FOM and all interested parties had had full opportunity to make submissions and present expert opinions to the panel. They were set out in the panel report. There was no obligation on the minister or the department to embark on a further round of consultations after the panel had made its recommendations. The fact the minister did not accept the panel recommendation, and the fact the assessment did not reflect the view of FOM as to the preferred outcome does not of itself give rise to a public interest in disclosure of otherwise exempt documents. I am satisfied there is nothing in the documents in respect of which exemption is claimed which supports the assertion the minister had intended to approve the project right from the start and that the consultation had simply been to humour the community. Nor does the objective evidence support that belief. As Mr Pizer pointed out three separate ministers, Mr Thwaites, Mr Hulls and Mr Madden had responsibility at various stages of the decision-making process. Community consultations and commissioning of reports and panel enquiries had spanned a period in excess of 10 years.

Finally Mr Ure submitted, where there was what he described as a 'glaring difference' between the Minister's assessment and the inquiry report, there was a basis for reasonably suspecting that the Minister's assessment process was deficient, and directed at arriving at a particular conclusion. It that bare and unvarnished form, it is in my view an unsustainable position. Disclosure of otherwise exempt documents cannot be compelled on public interest grounds, simply because an interested party, disappointed in the outcome, expresses the view the decision making must have been tainted because it did not accept a recommendation the decision maker was not bound to accept, or because the decision was not the one an interested party had advocated for. An unsupported belief the decision, because unfavourable, must have been tainted does not create any obligation to produce otherwise exempt documents to disprove that belief. Public interest is not invoked in such circumstances.

In this case, the applicant submits there are grounds for suspicion the decision was tainted. In her affidavit and her evidence before me, Ms Mason said she became aware in February 2010 of a leaked media plan, prepared for the Minister for Planning in respect of the redevelopment of the Windsor Hotel. That media plan recommended a strategy of releasing a report into the proposed redevelopment, and then using community response to the report's recommendations to halt the development. She deposed she also became aware of media reports suggesting that this strategy had been discussed by senior planning staff advisers and government members of Parliament. Ms Mason said:

In Mallacoota the reaction of many people to these revelations has been the thought that the same thing happened to us, in our community consultation over the boat ramp. Many of us already felt that the Minister's assessment reflected a decision that had already been made.

Despite the suspicions of Ms Mason and other members of FOM that the assessment reflected a decision already made, there is no evidence in any of the documents in respect of which exemption is claimed that any such strategy as was proposed in the media plan in respect of the redevelopment of the Windsor Hotel infected or tainted the decision-making process here. I have already referred to the evidence of the 10 year process of commissioning of reports and conducting community consultations, and the succession of ministers holding the planning portfolio during that time. The process, and the chronology of events is quite different from that concerning the Windsor Hotel. There is no evidence to There is no evidence, from the suggested strategy for dealing with the Windsor Hotel itself, or from the documents in respect of which exemption is claimed, to support the suspicion voiced by Ms Mason. No issue of public interest therefore is raised by reason of the decision being contrary to the hopes of the applicant, or by reason of the revelation of the proposed strategy for dealing with the Windsor hotel report.

On the other hand, in it is in my view, of great importance that the independence and quality of advice provided to Ministers or other ultimate decision-makers by departmental officers in the discharge of their obligations or the functioning of the agency is not compromised. Public servants must feel free to give robust and independent advice to Ministers and other decision-makers, to test and challenge assumptions, to canvass options, and to consider all possibilities. This freedom is of fundamental importance that the integrity or effectiveness of the decision-making process. It is essential that frank and fearless advice and expression of opinion be provided to Ministers and other decision-makers, so they are fully informed before they discharge their responsibility to make a decision. In my view, none of the matters raised by the applicant in support of its submission there is a public interest in favour of disclosure in respect of the release of draft and working documents, which form part of the deliberative process outweighs the public interest in this case in protecting the independence and quality of advice provided to decision makers by departmental officers.

This then leads to consideration of the public interest override in s 50(4) of the FOI Act. It provides:

On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.

In XYZ v Victoria Police[18] Bell J said:

The proper application of the public interest override requires me to identify and balance the countervailing public interest considerations, and then to consider whether the considerations in favour of disclosure are so strong as to override the considerations against disclosure, particularly the interests protected by the exemptions. The public interest considerations in favour of disclosure must be so strong as to convincingly demand or necessitate release. The tribunal does not simply decide whether it is in the public interest for the documents to be released - the public interest must 'require' release in the emphatic sense in which the term is used. Nor does the tribunal simply consider the brute fact that the documents are exempt - it must consider the interests protected by the exemptions as well. The public interest considerations in favour of disclosure must extend beyond generalised statements and be reasonably particularised.

In support of its submission the public interest required the release of the documents the subject of the exemption claims under s 30(1) and s 32, the applicant relied first, on the participation by the community in the EES and panel process. Next, and related to the first point, was the significant investment of time and effort and funds by FOM and other sections of the community in contributing to the panel enquiry process.

The applicant described the degree of community participation as the extraordinary, and relied on the fact participation in the panel process had been actively encouraged by the department. In Secretary to the Department of Justice v Osland (No 2),[19] the Court of Appeal held these considerations were relevant to an assessment under s 50(4). I do not accept the applicant's characterisation of the participation as extraordinary. FOM responded to the invitation to participate in the panel inquiry by making submissions and presenting evidence. There is no suggestion it did any more than any other party who presented submissions or expert opinions to the panel. The invitation was to participate in presenting submissions and expert reports to the panel. The panel's role was to make a recommendation to the minister. FOM was not a participant in any decision making process.

As I have already found, when considering s 30(1)(b), ministerial or departmental encouragement of community participation in an EES and panel enquiry process does not give rise to right to or expectation of access to draft or working documents. An invitation to participate does not carry with it an expectation that the views expressed by that interested party can, or should, determine the outcome. The amount of time or money expended on making submissions and presenting expert opinion to a panel hearing does not provide a basis for requiring the release of otherwise exempt documents.[20]

Next, the applicant relied on the delay between the provision of the panel report to the minister on 6 October 2008, and its release. The panel report was not released to the public until 11 June 2009, the day of the release of the Minister's assessment. The minister's assessment made reference to the panel report, and to his reasons for not adopting the panel recommendation. The whole of the panel report was made available at the same time as the assessment.

The next matter relied on was the doubt expressed in the enquiry report about whether there was a preponderance of support for the proposal ultimately accepted, and the criticisms in the report of the community consultation and engagement by the council. The Minister's assessment addressed these criticisms, as did the enquiry report.

The applicant also relied on the fact that the respondent's schedule of documents suggested a draft of the Minister's assessment had been prepared as early as 5 March 2009, but that a further process of deliberation took place. The very nature of a consultative process involves the preparation of drafts, as a basis for discussion and crystallising of ideas. The fact it took some months between the preparation of a draft and a final decision-making process does not, in my view, invoke the public interest under s 50(4).

The applicant also submitted that the Minister's assessment 'ignored or contradicted many of the various conclusions expressed in the enquiry report', and rejected the panel's conclusion as to the overall societal benefit and final recommendations. It was open to the Minister in making his assessment to accept or reject any of the recommendations of the panel. The fact that the Minister's assessment did reject the panel's recommendations does not of itself justify or compel the release of the documents in the public interest, particularly when, as here, the panel report was released.

Finally, the applicant relied on the suspicion generated by the leaked media plan in respect of the Windsor redevelopment, which it was submitted 'suggests that community consultation processes are conducted in circumstances where the minister has predetermined the planning questions involved'. It submitted that, given the scope of the community's investment in the panel enquiry process, and that the differences between the conclusions of the report and the Minister's assessment were so striking, public interest in the integrity of community consultation processes and the propriety of government decision-making demands the release of documents relating to the preparation of the Minister's assessment. I have already addressed this in my reasons concerning s 30(1)(b). The belief is without foundation. The public interest does not require the release of draft or privileged documents to "clear the air" or refute an assertion based on an unfounded belief.

A similar argument was raised, on similar grounds, in Yarra CC v Roads Corporation.[21] There, the tribunal said:

Every time a citizen or private or public body perceives a decision by Government or an agency of Government with which it disagrees it would quite legitimately wish to raise all of the questions set out in Yarra's statement quoted above. Acceptance of these considerations on their own as the proper basis for invoking section 50(4) would mean that whenever the citizen, private or public body disagreed with a government decision it could ask such questions and thereby roll over most of the exemptions provided for in the FOI Act with respect to further documents to which it sought access. More is required.

None of the factors alone, or in combination, provide any support for the submission that the public interest requires the release of the exempt documents.

The applicant has therefore not satisfied me, pursuant to s 30(1)(b) that the public interest in maintaining the exemption for working documents is outweighed in this case so as to justify releasing the documents. Nor has the applicant satisfied me, pursuant to s 50(4), that the public interest requires or compels the production of the documents which, pursuant to s 30(1), are exempt. The application G895/2009 is dismissed.

As, by the time the hearing resumed on 15 September, there were no documents in respect of which exemption was claimed in proceeding G 529/2010, and the respondent in that proceeding had finally satisfied the applicant of the adequacy of its searches, there were no issues requiring final determination by me. That proceeding is also dismissed.

This leaves the question of costs. I have already expressed the view that the respondent's searches were woefully inadequate. The applicant was in a position to demonstrate to the respondent, and did so, in precise detail, that its searches were inadequate. It did all that it could have, up until the time of the hearing to bring to the respondent's attention to the deficiency of its searches and to request it to conduct further searches and to produce the documents sought in the request. That included making the second FOI request to the Minister. I am satisfied that request was only made because of the inadequacy of the original search, and the inadequacy of the Department's response when taxed with that by the applicant.

The respondent's conduct in my view is unjustifiable. When I indicated that I would order the respondent to conduct further searches, the respondent, whilst maintaining its formal reliance on Burton, undertook to conduct those searches. Within a week, it had identified, and provided a further 1350 pages, which clearly fell within the terms of the search. Only six documents were the subject of exemption claims from this further search. Clearly, the bulk of the material should have been identified in a timely fashion after receipt of the request, and a more cooperative or responsive attitude to the applicant should have been displayed from the time it first raised its concerns about the inadequacy of the searches.

The respondent's conduct is such, in my view, as to justify the ordering of costs against the respondent in respect of the following:

(a) its costs incurred in requesting further documents from the Department from the date documents were first provided by it pursuant to the request, namely 18 December 2009, to the date of commencement of the hearing, namely 5 September 2010

(b) all costs in respect of the second application to the Minister, including to join it to the original application for review

[1] Friends of Mallacoota Inc v Minister for Planning and Minister for Environment and Climate Change [2010] VSC 222.

[4] Section 30(3). This section does not apply to a document by reason only of purely factual material contained in the document.

[5] Howard v the Treasurer of the Commonwealth (1985) 3 AAR8169 at 177-8; Thomas v The Department of Natural Resources and Environment [2002] VCAT 553 at [27] Landes v VicRoads [2009] VCAT 2403 at [47].

[6] Oostermeyer v The Alfred Hospital (1998) 13 VAR 449 at 455; Pescott v Department of Conservation and Environment (1991) 5 VAR 54 at 65; Yarra CC v Roads Corporation [2009] VCAT 2646 at [24] and [28]; Fyfe v Department of Primary Industries [2010] VCAT 240 at [13]- [15].

[7] See, eg, Yarra CC v Roads Corporation [2009] VCAT 2646 at [28]; Pullen v Alpine Resorts Commission (unreported, AAT of Vic, Macnamara DP, 23 August 1996).

[8] See Birrell v Department of State Development [2001] VCAT 1258 at [15]; McIntosh v Department of Natural Resources (2000) 16 VAR 444 at [36]; Doyle v Department of Human Services [2002] VCAT 176 at [42]; Thomas v Department of Natural Resources and Environment [2002] VCAT 533 at [27]; Asher v Melbourne Water [2009] VCAT 1079 at [42].

[9] Yarra CC v Roads Corporation [2009] VCAT 2646 at [38].

[10] McIntosh v Victoria Police [2009] VCAT 1868 at [9], [12], [17], [19].

[12] See, eg, Roy Morgan Research Centre Pty Ltd v State Revenue Office (unreported, VCAT, Coghlan DP, 17 June 1999); Conyers v Monash University [2005] VCAT 2509 at [38]; Sportsbet Pty Ltd v Department of Justice [2010] VCAT 8 at [65].

[16] (2008) 234 CLR 257, [56], [123], [153].

[20] Landes v VicRoads [ 2009] VCAT 2403 at [51].

Friends of Mallacoota Inc. v Department of Planning and Community Development (General) [2011] VCAT 1889 (30 September 2011)

Friends of Mallacoota Inc. v Department of Planning and Community Development (General) [2011] VCAT 1876

Friends of Mallacoota Inc. v Department of Planning and Community Development

At a glance

Court

Decision date

Before

Source

Judgment (112 paragraphs)

Parties

Cases Cited (4)

Friends of Mallacoota Inc. v Department of Planning and Community Development (General) [2011] VCAT 1889 (30 September 2011)