All references to legislation in this document are to the Freedom of Information Act 1982 (Vic) (FOI Act) unless otherwise stated.

I have conducted a review under section 49F of the Agency's fresh decision to refuse access to documents requested by the Applicant under the FOI Act.

My decision on the Applicant's request differs from the Agency's decision for Documents 1, 1B and 4 and more information is to be released.

The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.

Please refer to page 11 for information about review rights through the Victorian Civil and Administrative Tribunal (VCAT).

1. The Applicant made a request for access to 4 Ministerial briefings. The Applicant did not seek access to personal affairs information for non-executive staff or contact details of executive staff.
2. The Agency located 4 ministerial briefings with attachments. The Agency granted access to 8 documents in full and 4 documents in part and refused access to 2 documents in full. The Agency refused access to information under sections 28(1)(ba), 28(1)(d), 34(1)(b) and 34(4)(a)(ii). The Agency's decision letter sets out the reasons for its decision.

1. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency's decision to refuse access. They only sought review of information exempted under sections 28 and 34, as such other information that the Agency considered was irrelevant information is not subject to review.
2. I have examined a copy of the documents subject to review.
3. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.
4. I have considered relevant communications and submissions received from the parties.
5. In undertaking my review, I have had regard to the object of the FOI Act, which is to create a general right of access to information in the possession of the Government or other public bodies, limited only by exceptions and exemptions necessary to protect essential public interests, privacy and business affairs.
6. I note Parliament's intention the FOI Act must be interpreted so as to further the object of the Act and any discretions conferred by the Act must be exercised, as far as possible, so as to facilitate and promote the disclosure of information in a timely manner and at the lowest reasonable cost.

OVIC's initial view and the Agency's fresh decision

1. During the review, OVIC staff provided the Agency with their view on the likely decision that would be made by OVIC. This included that OVIC would likely decide that Documents 1B, 4A and 4B are not exempt from release under section 34(4)(a)(ii).
2. In response, the Agency gave intention to reconsider its original decision and subsequently revoked its original decision and made a fresh decision under section 49M to release additional information in the documents. The Agency's fresh decision is set out in the Schedule of Documents in Annexure 1.
3. The Applicant did not agree with the Agency's fresh decision.
4. Accordingly, I have reviewed the Agency's fresh decision.
5. Following the Agency's fresh decision and a further initial assessment by OVIC, the Agency indicated that further information can be released in Document 4.

Section 28(1)(ba) - Document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet

1. Section 28(1)(ba) exempts from release a document that was prepared for a Minister to brief them about an issue to be considered by the Cabinet. The exemption has two limbs that must be satisfied:
   • whether the document was prepared for the purpose of briefing a Minister
   • whether the briefing of the Minister was in relation to an issue that was, assessed objectively at the time the briefing occurred, an issue that was to be considered by the Cabinet.[1]
2. It must be more than just 'likely' that the Cabinet will consider the issues outlined in the briefing. There must be an intention or expectation that the issue will be considered by the Cabinet (even if not ultimately considered).[2]
3. The purpose of briefing a Minister in relation to an issue to be considered by the Cabinet must be 'immediately contemplated' when the document is created. The exemption cannot apply:
   • merely because Cabinet ultimately considered the issue[3]
   • it is expected that Cabinet is likely to consider the relevant issues in the future or from time to time.[4]
4. The Agency exempted certain information in Document 4 under section 28(1)(ba). Document 4 is a briefing to a Minister in relation to the relocation of [an entity] to facilitate the Commonwealth Games and legacy outcomes.
5. On [date], the Agency submitted that 28(1)(ba) would not apply to all information redacted under recommendation C, 4, 4(a), 4(b), 4(c), 4(e), 4(f), 6, 6(a), 6(b), 9(a) and 9(c) and provided a spreadsheet highlighting information in these paragraphs that could be released to the Applicant.
6. I am satisfied Document 4 was prepared for the purpose of briefing a Minister.
7. For some of the information exempted by the Agency in Document 4, it is evident based on the content itself that it briefs the Minister on an issue that was to be considered by a Cabinet committee.
8. However, the document includes additional information for approval by the Minister, which I consider was not intended to be considered by Cabinet, for example, most information in paragraph 4 of the document.
9. Accordingly, I have decided to release the additional information that the Agency advised on [date] it no longer claimed exempt under section 28(1)(ba) and a small amount of additional information.
10. Therefore, I am satisfied certain information in Document 4 is exempt under section 28(1)(ba), however, additional information is to be released.

Section 28(1)(d) - Disclosure of any deliberation or decision of the Cabinet

1. Section 28(1)(d) exempts a document that would disclose any deliberation or decision of the Cabinet. It does not include a document by which a decision of the Cabinet was officially published.
2. Decision means any conclusions as to a course of action the Cabinet adopts, whether they are conclusions as to final strategy on a matter or conclusions about how a matter should proceed.[5]
3. During the review, OVIC staff sought additional information from the Agency in relation to its reliance on section 28(1)(d) to Document 1 and its attachments (Documents 1A and 1B). This resulted in the Agency making a further submission and provided two extrinsic documents to OVIC.
4. Document 1 is a briefing to a Minister in relation to the Victoria 2026 Organising Committee Funding agreement. The briefing recommends the Minister execute a funding agreement which would facilitate payment to the Organising Committee, as the Host Contract required the State to underwrite the Commonwealth Games and resource the Organising Committee for specific activities.
5. Document 1 explains that the Funding Agreement had been prepared by the Office of the Commonwealth Games in consultation with other agencies and had been signed by the Organising Committee.
6. The information exempted from release reveals how much funding the Organising Committee was to receive from the State under the Funding Agreement, and various breakdowns of the funding.
7. Document 1A is a financial implication table and Document 1B is the Funding Agreement.
8. Having considered the documents, the Agency's submission, and the supporting documents provided by the Agency during the review, I am satisfied certain content reveals information about what a Cabinet committee approved. Disclosure of other information in the document would reveal decisions by the Cabinet committee by inference.
9. However, I have not found that all figures in Documents 1 and 1B are exempt under section 28(1)(d), as I consider some reveal the breakdown of funding which I am not satisfied would reveal information that the Cabinet committee decided upon.
10. Accordingly, while I am satisfied section 28(1)(d) applies in some instances, I have decided to release additional information.

Section 34(4)(a)(ii) - Information that would expose the Agency unreasonably to disadvantage

1. A document or information is exempt under section 34(4)(a)(ii) if three conditions are satisfied:
   • the agency is engaged in trade or commerce
   • the document contains information of a business, commercial or financial nature
   • disclosure of the information would be likely to expose the agency unreasonably to disadvantage.
2. The Agency has applied this exemption to clause 18.2 in Document 1B.

1. The words trade or commerce are expressions of fact and terms of common knowledge.[6]
2. Whether an agency is engaged in trade or commerce depends on the specific facts and circumstances. It requires clear evidence that the agency is doing more than delivering government services or functions.
3. Trade or commerce activities must 'of their nature, bear a trading or commercial character'.[7]
4. An agency can be engaged in trade or commerce even if its activities are mainly governmental.[8]
5. The business, commercial or financial information must be connected to the trade or commerce activity that the agency is engaged in (not government services or functions).
6. The information that the Agency exempted under section 34(4)(a)(ii) in Document 1B concerns the Host Fees for the Commonwealth Games.
7. I accept that the Agency was engaged in trade and commerce with respect to the Commonwealth Games, as the overall purpose was to carry out commercial functions to attract sport and entertainment in Victoria.

Does the document contain information of a business, commercial or financial nature?

1. The information must have a business, commercial, or financial nature. 'Business', 'commercial' and 'financial' should each be given their ordinary meaning.[9]
2. The exempted information contains business, commercial and financial information.

Would disclosure be likely to expose the Agency unreasonably to disadvantage?

1. To be an exempt document under section 34(4)(a)(ii), the disclosure of the document must be likely to expose the Agency unreasonably to disadvantage.
2. Tribunals and courts describe 'disadvantage' in terms of the business, commercial or financial implications of disclosure. In particular, whether disclosure is likely to:
   • reduce an agency's capacity to compete in a competitive market for buying and selling goods or services[10]
   • reduce an agency's capacity to negotiate future commercial contracts[11]
   • strengthen the bargaining position of entities the agency negotiates with, at the expense of the agency competing for marketplace share[12]
   • expose the rates that an agency is prepared to accept for various services - and if so, the likely impact on the agency's operations.
3. Disclosure of the information must be likely to cause unreasonable disadvantage. 'Likely' should be given its plain English meaning - seeming like truth, fact, or certainty, or reasonably to be believed or expected. The test is one of likelihood rather than certainty. It means 'probable, such as well might happen or be true'.[13]
4. Whether disadvantage would be unreasonable involves the consideration of all circumstances, including factors both in favour of, and against disclosure, such as:[14]
   • the nature of the information
   • whether there is any public interest in disclosure or nondisclosure
   • the circumstances in which the information was obtained or created
   • whether the information has any current relevance
   • the identity of the applicant and the likely motives of the applicant.
5. The exempted information concerns fees that the State or Organising Committee was required to pay under the Host Contract for the 2026 Commonwealth Games.
6. The Agency's fresh decision states that if the exempted information was disclosed, it would unreasonably disadvantage the Agency in future commercial agreements.
7. On careful consideration, I am not satisfied the Agency would be likely exposed unreasonably to disadvantage for the following reasons:
   • In April 2022, the Commonwealth Games Federation awarded the Commonwealth Games to Victoria and the State signed the Host contract.[15]
   • In July 2023, the government decided that the 2026 Commonwealth Games no longer represented value for money and withdrew.[16]
   • In August 2023, the State signed a settlement agreement with Games Federation, Commonwealth Games Australia and the Commonwealth Games Federation Partnerships, including payment of $380 million for settling the cancellation of the host contract with the Games Federation.[17]
   • Given the withdrawal from hosting the Games and the publicised settlement agreement, details about the fees required to be paid under the Host Contract is no longer commercially sensitive or commercially relevant.
   • The Victorian Auditor-General's Office Independent assurance report to Parliament 2023-24: 13 Withdrawal from 2026 Commonwealth Games March 2024 sets out summary details of contract fees under the Host Contract including:

Under the host contract various fees totalling AUD85.6 million were payable by the state to the Commonwealth Games parties between 2022 and 2026. DJSIR had paid AUD44.2 million towards these fees when the state announced it would not host the Games. The host contract also identified a further GBP20 million (about AUD38 million) that the Games Federation and Commonwealth Games Federation Partnerships were entitled to retain from any commercial rights income and commercial revenue that they generated or actually received.[18]

• The nature of the information is not commercially sensitive, having considered the above context.
• The information is no longer commercially relevant given the withdrawal from hosting the event.
• There is a public interest in transparency the hosting of the Commonwealth Games, particularly where it concerns the expenditure of public funds and in light of its cancellation.
• It is unlikely that the Agency will enter into a similar agreement in the near future.

1. Therefore, I am satisfied the information exempted by the Agency in Document 1B is not exempt from release under section 34(4)(a)(ii).

Section 34(1)(b) - business, commercial or financial information of a third party undertaking

1. During the review, the Agency sought to also exempt clause 18.2 in Document 1B under section 34(1)(b).
2. A document or information is exempt under section 34(1)(b) if three conditions are satisfied:
   • the document or information was acquired from a business, commercial, or financial undertaking
   • the information relates to matters of a business, commercial or financial nature
   • disclosure of the information is likely to expose the undertaking unreasonably to disadvantage (based on matters listed in section 34(2) and any other relevant considerations).

Does the document disclose information acquired from a business, commercial or financial undertaking?

1. The phrase 'information acquired' involves some positive handing over of information to an agency in a precise form.[19]
2. The actual document itself does not itself need to be acquired from an undertaking.[20] It may also disclose relevant information acquired from the undertaking.[21] For example, a document may contain information extracted or paraphrased from information acquired from an undertaking.
3. Information generated by an agency about the undertaking, or mutual information arising out of negotiations or collaboration between an agency and an undertaking, is generally not 'acquired' by the agency from the undertaking.[22]
4. The terms of a concluded contractual agreement may or may not contain information acquired from the undertaking.[23] Each case needs to be examined on its own merits to determine whether in fact:
   • an agency acquired information from the undertaking
   • whether disclosure of the terms of the concluded contract would disclose the acquired information.[24]
5. Document 1B is a grant agreement between the Agency and [an undertaking] dated [date]. The information exempted by the Agency relates to fees required under the Host Contract with other entities.
6. While the document is a contractual agreement between the Agency and [an undertaking], I am satisfied that the figures to which [the undertaking] was required to pay under the Host Contract is information that was acquired from the external business undertakings.

Does the information relate to matters of a business, commercial or financial nature?

1. I am satisfied the information relates to matters of a business, commercial or financial nature.

Would disclosure of the information be likely to expose the undertakings unreasonably to disadvantage?

1. In considering whether disclosure will expose an undertaking to unreasonable disadvantage, I should, along with any other relevant consideration, have regard to the factors set out in section 34(2). These are:
   • whether the information is generally available to competitors of the undertaking
   • whether the information would be exempt if it were generated by an agency or a Minister
   • whether the information could be disclosed without causing substantial harm to the competitive position of the undertaking
   • whether there are any considerations in the public interest in favour of disclosure which outweigh considerations of competitive disadvantage to the undertaking, for instance, the public interest in evaluating aspects of government regulation of corporate practices or environmental controls.
2. Other relevant considerations include whether disclosure would:
   • give a competitor of the undertaking a competitive financial advantage
   • enable that competitor to engage in destructive competition with the undertaking

• • lead to unwarranted conclusions about the undertaking's financial affairs and position that result in commercial and market consequences.[25]

1. The Agency submitted that disclosure would expose an undertaking unreasonably to disadvantage as it could encumber the undertaking in future commercial negotiations or undertakings.
2. I note that the undertakings were not consulted with to obtain their views. I have proceeded with my review on the assumption that the undertakings would object to disclosure of the information.
3. I am not satisfied that disclosure would be likely to expose the undertaking unreasonably to disadvantage for the same reasons as set out above in relation to section 34(4)(a)(ii).
4. In addition to those reasons, while two of the undertakings are likely to enter into similar agreements in future in relation to Commonwealth Games, any new contractual agreements will be based on the particular requirements of the event, following negotiation with relevant parties. It is unlikely that disclosing the fees agreed to in this instance would result in a commercial disadvantage to the undertakings in future negotiations. The undertakings have strong bargaining power with respect to negotiating the right to host the Commonwealth Games and marketing.
5. Accordingly, I am not satisfied information in Document 1B is exempt from release under section 34(1)(b).

Section 25 - Deletion of exempt or irrelevant information

1. Section 25 requires an agency to grant access to an edited copy of a document where it is practicable to delete exempt or irrelevant information, and the applicant agrees to receiving such a copy.
2. Determining what is 'practicable' requires consideration of the effort and editing involved in making the deletions 'from a resources point of view'[26] and the effectiveness of the deletions. Where deletions would render a document meaningless, they are not 'practicable', and release of the document is not required under section 25.[27]
3. The Applicant did not seek access to personal affairs information of non-executive level staff. In any case, the Applicant did not seek review of the information that was redacted on grounds of irrelevance.
4. I am satisfied it is practicable to edit the documents to delete exempt and irrelevant information, except for Document 1A.

1. On the information before me, I am satisfied certain information in the documents is exempt under sections 28(1)(ba) and 28(1)(d). Documents 1, 1B and 4 are to be released to the Applicant in part and Document 1A is refused in full.
2. My decision is set out in the Schedule of Documents in Annexure 1.

1. If either party to this review is not satisfied with my decision, they are entitled to apply to VCAT for it to be reviewed.[28]
2. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.[29]
3. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.[30]
4. Information about how to apply to VCAT is available online at www.vcat.vic.gov.au. Alternatively, VCAT may be contacted by email at admin@vcat.vic.gov.au or by telephone on 1300 018 228.
5. The Agency is required to notify the Information Commissioner in writing as soon as practicable if either party applies to VCAT for a review of my decision.[31]

1. As I have decided to release information that the Agency claimed is exempt under section 34(1)(b), I am required to notify [an undertaking] of its review rights.
2. However, as [the undertaking] is no longer registered as a company, I have decided it is not practicable to notify it of its review rights.
3. I am satisfied it is practicable to notify the other third parties of their review rights.

1. My decision takes effect 60 days after the third parties are notified of my decision.
2. If a review application is made to VCAT, my decision will be subject to any VCAT determination.

Victoria 2026 Organising Committee Funding Agreement

• point 5(a)(ii), the first part of the sentence up to the comma in the second line.
• the figure in point 6(a).

Section 28(1)(d): I am satisfied certain information in this document is exempt under section 28(1)(d). However, I have decided to release additional information.

Section 25: It is practicable to release this document with exempt and irrelevant information deleted.

Section 28(1)(d): I am satisfied this document is exempt under section 28(1)(d).

Section 25: I am satisfied it is not practicable to release this document to delete exempt information as it would render the document meaningless.

Funding agreement between the State and [an undertaking]

• clause 18.2
• grant monies amount on page 26 of 59
• instalment 1 on page 31 of 59
• instalment 9 on page 32 of 59
• instalment 12 on page 33 of 59
• instalment 14 on page 34 of 59
• instalment 23 on page 36 of 59
• instalment 32 on page 38 of 59
• instalment 41 on page 41 of 59
• instalment 50 on page 43 of 59
• instalment 59 on page 45 of 59

Section 34(4)(a)(ii): I am satisfied information in clause 18.2 of the document is not exempt under section 34(4)(a)(ii) for the reasons set out in my decision, above.

Section 34(1)(b): I am satisfied information in this document is not exempt under section 34(1)(b) for the reasons set out in my decision, above.

BMIN-2-22-25618 - Attachment 2 - BMIN-2-22-24243 For Noting

Briefing on proposed online consultation to inform Design Guidelines and master planning of the Victoria 2026 Commonwealth Games Athletes Villages

BMIN-2-22-25576 - Attachment A - Engage Vic Survey_Draft_October 2022

BMIN-2-22-25576 - Attachment B - Communications Plan (Development Victoria)

BMIN-2-22-25576 - Attachment C - Villages Design Charter_Draft_[date]

BMIN-2-22-25281 - Event Briefing for [a Minister]

BMIN-2-22-25281 - Attachment 1 - Lighting up Ballarat's Lake Wendouree

Relocation of [an entity] to facilitate Victoria 2026 & Legacy outcomes

• recommendation c on page 1, except for the monetary figure
• paragraph 4 on page 3, the first three lines and the last six words
• paragraph 4(a) - the words up to the monetary figure in the first line
• paragraphs 4(b) to (g) on page 3.
• paragraph 6 - the first 18 words
• paragraph 6(a)
• the table in paragraph 6(a), except for row 2 column 2 and row 3 column 3
• paragraph 6(b)
• paragraphs 9(b) and 9(c).

Section 28(1)(ba): On [date], the Agency submitted that further information could be released. Accordingly, that information is to be released to the Applicant.

I am satisfied that certain information in this document was prepared to brief a Minister on matters to be considered by Cabinet.

However, the document includes additional information for approval by the Minister, which I consider was not intended to be considered by Cabinet, for example, most information in paragraph 4 of the document.

BMIN - 2 - 22 - 25202 - Attachment 1 - Funding Agreement

BMIN - 2 - 22 - 25202 Regional Jobs and Infrastructure Fund - Application Guidelines

[1] Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission [2013] VCAT 822, [22]; Department of Premier and Cabinet v Newbury [2021] VCAT 331, [14].

[2] Mildenhall v Department of Treasury and Finance (unreported, AAT, Macnamara DP, 18 March 1996), 14.

[3] Thwaites v Department of Health and Community Services (unreported, AAT of Vic, Macnamara DP, 4 April 1996), 17.

[4] Environment Victoria Inc v Department of Primary Industries [2013] VCAT 39, [38]-[41].

[5] Dalla-Riva v Department of Treasury and Finance [2005] VCAT 2083, [30] citing Toomer and Department of Agriculture, Fishers and Forestry and Ors [2003] AATA 1301, [88].

[6] Re Ku-Ring-Gai Co-operative Building Society (No 12) Ltd [1978] FCA 50, per Deane J, Brennan J agreeing, [44].

[7] Gibson v Latrobe City Council [2008] VCAT 1340; Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594, 604.

[8] Commissioner of State Revenue v Tucker [2021] VCAT 238, [175] citing Gibson v Latrobe City Council [2008] VCAT 1340; Marple v Department of Agriculture (1995) 9 VAR 29; Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] VCAT 45 and Re Thwaites and Metropolitan Ambulance Service (1996) 9 VAR 427.

[9] Gibson v Latrobe CC [2008] VCAT 1340, [25].

[10] Binnie v Department of Industry, Technology & Resources (1986) 1 VAR 345, 348.

[11] Ibid; Davis v Department of Transport [2022] VCAT 721, [58].

[12] Save Albert Park Inc v Australian Grand Prix Corporation [2008] VCAT 168, [77].

[13] Asher v Department of innovation, Industry and Regional Development [2005] VCAT 2702, [38].

[14] Ibid, [42]-[43]; Fitzherbert v Department of Health and Human Services [2019] VCAT 201, [61].

[15] https://www.audit.vic.gov.au/sites/default/files/2024-03/20240320\_Withdrawal-from-2026-Commonwealth-Games.pdf, page 13.

[16] https://www.audit.vic.gov.au/sites/default/files/2024-03/20240320\_Withdrawal-from-2026-Commonwealth-Games.pdf, page 1.

[19] Thwaites v Department of Human Services (1999) 15 VAR 1, 14.

[20] Gill v Department of Industry, Technology and Resources (1985) 1 VAR 97, 106.

[21] Ibid; Holbrook v Department of Natural Resources (1997) 13 VAR 1, 8.

[22] Holbrook v Department of Natural Resources (1997) 13 VAR 1, 8.

[23] Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] VCAT 45, [19]-[20].

[24] Specialist Diagnostic Services Pty Ltd v Western Health [2016] VCAT 17, [50]-[51].

[25] Dalla-Riva v Department of Treasury and Finance [2007] VCAT 1301, [33].

[26] Mickelburough v Victoria Police (General) [2009] VCAT 2786 at [31]; The Herald and Weekly Times Pty Limited v The Office of the Premier (General) [2012] VCAT 967 at [82].

[27] Honeywood v Department of Human Services [2006] VCAT 2048 at [26]; RFJ v Victoria Police FOI Division (Review and Regulation) [2013] VCAT 1267 at [140], [155].

[28] The Applicant in section 50(1)(b) and the Agency in section 50(3D).