Victorian Civil and Administrative Tribunal|2014-08-20

Herington v Department of Transport Planning and Local Infrastructure (Review and Regulation) [2014] VCAT 1026 (20 August 2014)

Freedom of Information Act 1982 - ss 28(1)(b), 30(1), 50(4) - whether documents created in the course of developing the East West Link project exempt from release under the Freedom of Information Act on the basis of their relationship to Cabinet process and/or as internal working documents

Herington v Department of Transport Planning and Local Infrastructure (Review and Regulation) [2014] VCAT 1026

In November 2013, VCAT received an application under the Freedom of Information Act 1982 (the FOI Act) from Mr Herington.
He sought from the Department of Transport Planning and Local Infrastructure (DTPLI) a variety of documents related to the planned East West Link. While DTPLI released some documents, it refused to release six documents, the subject of this proceeding.
Concerning Documents 1, 2, 5 and 6, DTPLI submitted they were exempt from release under s 28(1)(b) (cabinet document exemption) of the FOI Act. However, DTPLI primarily relied on this exemption for Documents 1 and 2. Concerning Documents 1 to 6, DTPLI submitted they were exempt under s 30(1) (internal working document exemption). However, DTPLI primarily relied on this exemption for Documents 3 to 6.
Mr Herington submitted VCAT should decide the documents are not exempt or decide to part release those aspects of documents that contain, "purely statistical, technical or scientific material" (s 28) or, "purely factual material" (s 30(1)).
On 26 June 2014, the proceeding came before me for hearing. Both parties were legally represented. I heard evidence and submissions (written and oral) and reserved my decision.
I decided the documents were exempt under s 28(1)(b) or s 30(1) of the FOI Act.

In November 2011, the Victorian Government announced the East West Link Project (the Project) intended to build roads to connect Melbourne's Eastern Freeway to CityLink, CityLink to the Port of Melbourne and the Port of Melbourne to the Western Ring Road. This was planned to be a multi-billion dollar infrastructure project. In a press release, the then Premier described it as a, "once in a generation project that would transform the way people move around Melbourne in a way not seen since Citylink and the City Rail Loop were constructed".
The Project has been the source of public and political debate, for example in terms of prioritising freeway building over provision of public transport.
In developing the project, the Government developed a Business Case. The documents in dispute in this proceeding were created in relation to the Business Case. They are:

Document 1 - East West Link - Independent Peer Review of Preferred Route Alignment and Technical Solutions, Preliminary Review Report - Final Report by Evans & Peck Pty Ltd dated 1 August 2012; 2. Document 2 - East West Link - Review of Transport Modelling and Preliminary Forecasts by Arup Pty Ltd dated 19 December 2012;

Documents 3 - East West Link Business Case, Preliminary Review of Economic Appraisal and Recommendations by Evans & Peck Pty Ltd dated 1 March 2013;

Document 4 - Traffic Analysis for East West Link by Evans & Peck Pty Ltd, undated; 2. Document 5 - Westgate Port Freight Link, Option Development by GHD Pty Ltd dated August 2013; and 3. Document 6 - Preliminary Economic Appraisal, East West Link, Stage One Including Integrated and Enabling Works by PricewaterhouseCoopers Australia Pty Ltd dated 16 August 2013.

Under s 13 of the FOI Act, Mr Herington has the right to obtain documents from DTPLI unless a document is wholly or in part an exempt document as defined by the Act.
Section 3 says the object of the FOI Act is to extend as far as possible the right of the community to access information in the possession of the Government of Victoria and other bodies constituted under the law of Victoria for public purposes and that any discretions conferred by the 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 16 says DTPLI shall administer the FOI Act with a view to making the maximum amount of information promptly and inexpensively available to the public.

Section 28 of the FOI Act sets out the Cabinet Document Exemption. It relevantly says:
1. Cabinet documents

(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) Subsection (1) does not apply to a document referred to in a paragraph of that subsection 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.

Section 30(1)(a) of the FOI Act sets out the Internal Working Document Exemption. It relevantly says:

(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

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

As Judge Macnamara discussed in Pallas v Roads Corporation (Review and Regulation) [2013] VCAT 1967, DTPLI must here show:
1. Either that disclosure of a document would disclose matter in the nature of opinion, advice or recommendation prepared by an officer or a Minister, or disclose matter in the nature of consultation or deliberation that has taken place between officers, Ministers or an officer and a Minister. In either case, the relevant matter must have come about in the course of or for the purposes of the deliberative processes involved in the functions of the agency or Minister; where:
  1. The concept of 'officer' has been held to extend to consultants or independent contractors;
  2. The deliberative processes of an agency or a Minister are the Minister's or agency's thinking processes, processes of reflection upon the wisdom of a proposal or a decision or a course of action and
  3. the exemption does not apply to any material in the document which is purely factual; and
2. Disclosure would be contrary to the public interest.
On the issue of whether disclosure would be contrary to the public interest, as Judge Macnamara did in Pallas, I refer to Maxwell P in Secretary Department of Justice v Osland [2007] VSCA 96; (2007) 26 VAR 425, 447 and Judge Hampel in Friends of Mallacoota Inc v Department of Planning and Community Development [2011] VCAT 1889.
Maxwell P said in Osland [77] the public interest consideration relevant to the public interest element of the exemption under s 30(1):

... include the 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, in the preservation of confidentiality so as to promote the giving of full and frank advice.

In Friends of Mallacoota, Judge Hampel [51] summarised the considerations which, according to previous decisions of this Tribunal, its predecessor and the Commonwealth Administrative Appeals Tribunal, might arise under s 30(1)(b) of the Act as follows:

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

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

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

It is contrary to the public interest to disclose documents reflecting possibilities considered but not eventually adopted, as such disclosure would be likely to lead to confusion and ill informed debate, to give a spurious standing to such documents or promote pointless and captious debate about what might have happened rather than what did.

Decision-makers should be judged on the final decision and their reasons for it, not on what might have been considered or recommended by others in preliminary or draft internal working documents.

It is contrary to the public interest to disclose documents that would have an adverse effect on the integrity or effectiveness of a decision-making, investigative or other process.

Later in her determination at [53], Her Honour added the following additional matters as relevant:

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.

Returning to Pallas, I agree with Judge Macnamara's adoption of the view that with respect to s 30 (1)(b) that it is possible to resort to the public interest override, under s 50(4) of the FOI Act (set out below), even if an exemption is upheld in accordance with the public interest criterion of s 30(1)(b).

Section 25 if the FOI Act calls on the decision maker to release a version of a document with exempt material deleted, if "practicable". It relevantly says:

(b) it is practicable for the agency or Minister to grant access to a copy of the document with such deletions as to make the copy not an exempt document or a document that would not disclose such information (as the case requires); and

(c) it appears from the request, or the applicant subsequently indicates, that the applicant would wish to have access to such a copy -

the agency or Minister shall grant access to such a copy of the document.

In my view, Document 1 is exempt under s 28(1)(b).
I accept the evidence of Mr Paul Smith, Senior Project Manager - East West Link Project Office, DTPLI who since April 2012, had worked on the development of and implementation of the East West Link project. He is an engineer. Mr Smith was cross-examined on his evidence.
He spoke of two sub-committees of the Cabinet of the Victorian Government being established to oversee the Project. One of those sub-committees ceased to exist and was replaced by another Cabinet sub-committee.
Under Victorian Government policy concerning investment proposals valued over $10 million, a business case for the proposal was required to be submitted to Cabinet. In the case of the East West Link Project, this involved submitting a short form of the Business Case to the first sub-committee and a detailed form of Business Case to the second sub-committee.
According to Mr Smith, in February 2012, an "Options Report" was commissioned as part of the Victorian Government's strategic process of determining the preferred route alignment for the Project. This was one of the attachments to the Business Case that was presented to Cabinet for consideration.
In July 2012, government officers agreed an independent peer review of the Options Report was required to support, and strengthen the Business Case's robustness. Document 1 is that peer review. It was commissioned with the intent that it be attached to the detailed Business Case. Mr Smith said it was attached to the Business Case and provided to both Cabinet sub-committees then existing. As Mr Smith had seen sub-committee minutes, he believed the sub-committees considered Document 1.

I also accept the evidence of Ms Chantell Renn, Director, Cabinet Secretariat, Department of Premier and Cabinet, since February 2013, and prior to that Assistant Director of the Cabinet Secretariat from September 2012. She gave evidence via a witness statement and was not called for cross-examination.
The Cabinet Secretariat is a branch of the Policy and Cabinet Group within the Premier's Department. It had responsibility for the administrative operation of the Cabinet process.
Ms Renn confirmed the establishment of the first two Cabinet sub-committees, one then replaced by another sub-committee; all established to consider matters relating to the East West Link Project. Ms Renn had examined Cabinet sub-committee agendas and minutes. She confirmed Document 1 had been submitted and was considered by each of the sub-committees then existing.

Mr Smith's evidence as to the motive in commissioning Document 1, confirmed by the chain of events following its completion as evidenced by him and Ms Renn led me to conclude Document 1 was prepared by an agency (here the consultant commissioned by the agency) for the purpose of submission for consideration by Cabinet (here sub-committees).
Having read Document 1 and considered Mr Smith's evidence, I am satisfied there is very little material of a purely statistical, technical or scientific nature such that s 28(1) would not apply (see s 28(3)). For the very great part any tables, graphs etc are expressions of opinion. The isolated statistic or technical statement which may not be, would be meaningless released on its own.
Having decided Document 1 is exempt under s 28, I do not address exemption under s 30(1).

In my view, Document 2 is exempt under s 28(1)(b).
I accepted Mr Smith's and Ms Renn's evidence, which I now summarise.
In July 2012, government officers agreed an independent peer review of traffic modelling was required to support, and strengthen the robustness of the Business Case. Mr Smith (on instruction) commissioned Arup Pty Ltd to prepare a peer review for submission as part of the Business Case, for consideration by Cabinet.
With the peer review (Document 2) finished in December 2012, Mr Smith co-authored submissions provided to one of the sub-committees. Document 2 was attached to the Business Case and, Mr Smith understood, considered one of the sub-committees on 2 April 2013.
Ms Renn's evidence, again based on the reading of agendas and minutes, confirmed Document 2 went before and was considered by one of the sub-committees on that date.

Mr Smith's evidence as to the motive in commissioning Document 2, confirmed by the chain of events following its completion, as evidenced by him and Ms Renn, led me to conclude Document 2 was prepared by an agency (here the consultant commissioned by the agency) for the purpose of submission for consideration by Cabinet, here the sub-committee.
Having read Document 2 and considered Mr Smith's evidence, I am satisfied there is no material of a purely statistical, technical or scientific nature such that s 28(1) would not apply (see s 28(3)).
Having decided Document is exempt under s 28, I do not address exemption under s 30(1).

In my view, Documents 3 and 4 are exempt under s 30(1).
I accepted Mr Smith's evidence, which I summarise.
In December 2012, government agencies agreed an independent peer review of the economic appraisal section of the Business Case was required, in order to ensure its accuracy and robustness. Mr Smith said that section is one of the most sensitive and important in the Business Case. In January 2013, Mr Smith (on instruction) commissioned Evans & Peck to prepare the peer review, and in February 2013 commissioned them to extend the scope of that review. While the separate documents created essentially one piece of work, they are here described as Documents 3 and 4.
This, peer review was not intended itself to be included with the Business Case for consideration by Cabinet. However, it was commissioned to provide opinion, advice and recommendation to help improve the accuracy and robustness of the Business Case being put to Cabinet.
The peer review was prepared in close consultation with the consultants who were drafting the relevant section of the Business Case. Documents 3 and 4 had a significant influence on the form of the economic appraisal section in the detailed form of the Business Case. It gave confidence in the content of that part of the Business Case. It also led to inclusion of further material in that section, and improvements to the way certain aspects were explained. It also identified the need for further work to be done on aspects of the Business Case, including the further matters to which Document 6 related.
Mr Smith also gave evidence:

To the extent Documents 3 and 4 contain information that has not been included in the Business Case, the documents are in the nature of a preliminary internal working document; 2. The documents contain opinions about aspects of the development and implementation of the Project, which are now out of date. A reader might draw a wrong conclusion about the accuracy and robustness of the Business Case's economic appraisal, based on opinions about matters that have now been addressed; and

Documents 3 and 4 can only be properly understood when read in conjunction with the Business Case. Someone reading them without access to the Business Case would be very likely to form a skewed impression of the reliability of the Business Case.
In Mr Smith's opinion, the release of Documents 3 and 4 would be contrary to the public interest because:

The documents contain economically sensitive information in relation to the Project; 2. A highly sensitive commercial process was underway, with then two consortiums bidding for the contract to conduct work on the Project. Documents 3 and 4 contain information, which if disclosed could place Victoria in a worse economic position with respect to the Project and its overall transport strategy; and

They were created at a high level within government. No more than six government officials and a small number of staff at Evans & Peck had access to them.

There is no doubt, and it was not put otherwise on behalf of Mr Herington, that both documents were produced by an officer (here the consultant) for the purposes of the deliberative processes of the agency. Therefore, s 30(1)(a) is met.
As is often the case under the internal working documents exemption, the issue is whether or not release is contrary to the public interest (s 30(1)(b)).
In my view, release would be contrary to the public interest. In terms of the criteria set out in Friends of Mallacoota:

The documents are sensitive and contentious in terms of the document being commercially sensitive and sensitive in that they relate to the high level workings of government and the contentiousness of the Project; 2. They are preliminary advices and opinions in the sense that their function was to contribute to the quality of the Business Case. The Business Case was the final document which went to Cabinet for consideration and decision;

In part, they reflect possibilities considered but not eventually adopted. Thus the release may well lead to confusion and ill-informed debate giving promoting pointless debate; and/or

Their release could have an impact on the tendering process now under way, as described by Mr Smith.
I add to this that I agree with Senior Member Smither's approach in Environment Victoria Inc v Department of Primary Industries (General) [2013] VCAT 39[1] at [68] that a reasonably proximate relationship of a document to the Cabinet process may support the s 30 exemption applying to the document. Here, that proximate relationship existed and supported s 30 applying.
There is no basis for release of parts of the documents, those parts being purely factual material contained in the document and so because of s 30(3) not subject to s 30(1). Document 3 contained paragraphs of text expressing opinions. Document 4 contained text, tables and graphs. I accept Mr Smith's evidence, after reading the documents, that information in the tables and graphs are expressions of opinion, being as the title of the document suggests an opinion as to traffic analysis.[2]
Concerning the potential impact of release on the tendering process, in cross-examination Mr Smith agreed bidding companies would to an extent factor in known costs. For example, the costs of tunnelling and laying a road structure through a well understood geological terrain would be understood by all bidders. Release of the documents would not change aspects of bids related to such known cost factors. However, his evidence did not lead me to accept the submission that I should conclude release would not likely have significant impact on the tendering process. Mr Smith gave evidence that there were other significant factors which impact tender price and release could impact tender prices.

In my view, Documents 5 is exempt under s 30(1).
I accepted Mr Smith's evidence, which I now summarise.
In January 2013, he (on instruction) commissioned an options paper, being Document 5. It was intended for internal use only, with the sole purpose of providing material for inclusion in the Business Case, for consideration by Cabinet. However, before it was finished it was decided that it was not necessary to provide it to Cabinet together with the Business Case. However, with the work having started, and being obliged to pay for it, it was judged worthwhile to have it finished.
In his view, the document was in the nature of a preliminary internal working document. It contained very sensitive information, initially prepared for Cabinet to consider. Its disclosure would lead to confusion about possibilities Cabinet might or might not have considered.
He said, a reader of Document 5 might draw a wrong conclusion about the matters before Cabinet, and its decision-making processes, based on opinions about matters that were not actually considered by Cabinet. Document 5 was prepared at a particular point in time, from which things have now moved on considerably.

The s 30(1)(a) criteria are again obviously met.
Turning to 30(1)(b), release would be contrary to the public interest. In terms of the criteria set out in Friends of Mallacoota:

The document is sensitive and contentious in terms of the document being commercially sensitive and sensitive in that it related to the high level workings of government and the contentiousness of the Project; 2. It proved to be such a preliminary advice and opinion in that when commissioned its planned function was to contribute to the quality of the Business Case, but that proved not to be the case;

It reflected possibilities considered but not eventually adopted. Thus the release may well lead to confusion and ill-informed debate giving promoting pointless debate; and

Its release could have an impact on the tendering process now under way, as described by Mr Smith.
The proximate relationship of Document 5 to the Cabinet process existed and supported s 30 applying. I note here that while Document 5 as finalised concerns the West Gate Port Freight Link, reading it reveals its linkages to options for the East West Link.
Here, there is no factual information which may be released on that basis. I accept Mr Smith's evidence, supported by my reading of the document, that the maps and diagrams presented in the document, by reason of markings and annotations to the maps and the nature of the diagrams represented opinions, not simply factual information.

In my view, Documents 6 is exempt under s 30(1).
I accepted Mr Smith's evidence, which I now summarise.
In 2012, a consultant was engaged to assist with the preparation of the economic appraisal of the Project for inclusion in the Business Case. The consultant began working on the economic analysis section of the Business Case.
In May 2013, Mr Smith (on instruction) commissioned an economic appraisal of further specific matters, which was required for inclusion in the Business Case from the same Consultant (Document 6).
While the product of that work was included in the short form of the Business Case, which was submitted to Infrastructure Australia and which was considered by a Cabinet sub-committee, Document 6 was not prepared for consideration by Cabinet, nor considered by it.
Work related to Document 6 was included in the economic analysis section of the Business Case, which was prepared by the same consultant. However, it also included information that was not included in the Business Case. Events had moved on.
Document 6 was created for use at a high level within government. No more than six government officials had access to it.
In Mr Smith's opinion, it would be contrary to the public interest for Document 6 to be disclosed because:

A commercial process was underway, with first three consortiums (narrowed to two) bidding for the contract to conduct work on the Project. That commercial process was highly sensitive, and had stringent probity processes in place. Document 6 included detailed economic and cost information that could have an adverse impact on the commercial process; 2. To the extent that it contains information that has not been included in the Business Case, the document was in the nature of a preliminary internal working document. It could lead to confusion about possibilities Cabinet might or might not have considered;

There is other commercially sensitive advice contained in Document 6, which, if disclosed, could place Victoria in a worse economic position with respect to the Project and its overall transport strategy. It contained details of potential costs of the Project along with options of the scope of the Project that will not be included in any tender or other procurement documentation; and

Document 6 contains scope and cost information that is likely to impact on CityLink assets, which could prejudice any State negotiations with Transurban.

The s 30(1)(a) criteria are again obviously met.
Turning to 30(1)(b), in my view, release would be contrary to the public interest. In terms of the criteria set out in Friends of Mallacoota:

The document is sensitive and contentious in terms of the document being commercially sensitive and sensitive in that it related to the high level workings of government and the contentiousness of the Project. Perhaps this economic analysis is the most sensitive of all the documents before me; 2. It was a preliminary advice and opinion in the sense that its function was to contribute to the quality of the Business Case;

In part, it reflected possibilities considered but not eventually adopted. Thus, release may well lead to confusion and ill informed debate giving promoting pointless debate; and

Its release could have an impact on the tendering process now under way and other negotiation by the Government, as described by Mr Smith.
The proximate relationship of Document 6 to the Cabinet process existed and supported s 30 applying.
Here, there is no factual information which may be released on that basis. I accept Mr Smith's evidence, supported by my reading of the document, that tables presented in the document represent opinions related to the issue of economic analysis.

Having decided Documents 3 to 6 are exempt from release under s 30(1), I considered whether to invoke the public interest override under s 50(4) of the FOI Act to release it.
Section 50(4) does not apply to documents exempt under s 28 and so is not relevant to Documents 1 and 2. It says:

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.

The High Court of Australia has said decision-makers must be satisfied to a high threshold that the public interest requires release of the document. In Osland v Secretary to the Department of Justice [2010] HCA 24, French CJ, Gummow and Bell JJ said at paragraph 14:

It must be accepted that the word "requires" which appears in section 50(4) directs the decision-maker to identify a high-threshold public interest before the power can be exercised. It is not enough that access to the documents could be justified in the public interest.

I am not satisfied to that high threshold.
There is undoubted high public interest in the fate of the planned East West Link project. One indicator was the approximately 1,400 submissions received by a relatively recent related public planning enquiry.
However, that high interest does not here translate into a requirement that the documents in question be released, particularly in the face of the countervailing public interests discussed above.

[1] Citing Department of Premier and Cabinet v Birrell [1990] VicRp 5; [1990] VR 51 and Re Evans and Ministry for the Arts (1986) 1 VAR 315.

[2] For discussion on the principle see Tilley v VicRoads [2010] VCAT 483 at [91] to [92].

Information Act 1982

Herington v Department of Transport Planning and Local Infrastructure

At a glance

Court

Decision date

Source

Judgment (68 paragraphs)

Herington v Department of Transport Planning and Local Infrastructure (Review and Regulation) [2014] VCAT 1026 (20 August 2014)

Parties

Legislation Cited (1)