Victorian Civil and Administrative Tribunal|2003-05-30

Honeywood v Department of Education [2003] VCAT 780 (30 May 2003)

FREEDOM OF INFORMATION ACT 1982 - s.30(1) - draft documents - material prepared to assist Minister in answering question in House - lack of public interest

Medium Neutral Citation [2003] VCAT 780

1. This application is brought by The Hon Phillip Honeywood MP, who seeks a review of a deemed decision of the respondent of 20 July 2002, the effect of such decision being a refusal to grant access to various documents. The application comes before this Tribunal pursuant to s.50 of the Freedom of Information Act 1982.

2. In this application, the documents to which access is sought are described as being documents relating to the respondent's reviews of the Education Maintenance Allowance ("the EMA"), and in particular documents relating to reports prepared by Elvins Consulting Pty Ltd and by Professor Don Edgar ("the Edgar Report").

3. Initially the number of documents in dispute totalled 14. Following discussion between counsel, the number of documents concerning which there was argument was reduced to 2. These are Documents 1 and 2 in the bundle of documents which was provided to me and which were reviewed by Mr Cameron of counsel on behalf of the applicant, he having given the usual undertaking. Indeed, the dispute in relation to Document 1 ultimately related to approximately the first half of page 1 of that document. The part of the document in dispute is that which precedes the heading "Additional Material in Final Edgar Report". Document 2 is in dispute in its entirety. I have examined the relevant portion of Document 1, and examined Document 2, and had them before me during argument.

4. I am conscious of the objects of the Act as set out in s.3. I am conscious of the method of interpretation of the Act to be adopted as set out in s.3(2). I am aware of the various authorities, which could be summarised as standing for the proposition that it is proper to give the relevant provisions of the Act a construction which would further, rather than hinder, free access to information and that the Act is to be interpreted generally in favour of access but not so as to override specific provisions. I am also aware that the respondent bears the onus of proof in attempting to establish that the documents are exempt documents. I have borne the above matters in mind in coming to a decision in the present case.

5. The Edgar Report has been released and is now in the public domain.

6. On behalf of the respondent, Mr Sharpley of counsel asserted that the remaining documents in dispute are exempt because of the operation of s.30(1) of the Act. The argument centred upon the application of that section to the documents in question, together with some brief argument concerning the "public interest override" as contained in s.50(4) of the Act.

7. In endeavouring to establish that the documents are exempt documents, Mr Sharpely called evidence from Ms Deborah King who, at the relevant time, was the respondent's General Manager of Strategic Policy and Resource Allocation. The evidence in chief of Ms King consisted of her adopting a witness statement. She was then cross-examined by Mr Cameron. The respondent called no other evidence. The applicant called no evidence. Both counsel made very helpful submissions and referred to written contentions.

8. I turn now to my ruling. I am conscious of the fact that some care has to be taken by me in formulating the wording of this judgment so that details of the information sought are not revealed. In other words, I am aware that, should the result be in favour of the applicant, I should not render any appeal process effectively useless by "letting the cat out of the bag" in my reasons. Similarly, should the result fall the other way, I should not descend into such detail as to give the applicant the information which he seeks whilst at the same time finding against him. I have complete confidence in the undertaking given by Mr Cameron, a most experienced and highly regarded member of counsel, but must obviously take care in relation to the reasons which I make available to the public. Accordingly, it is inevitable that there is a limit to the amount of detail which can be expressed.

10. As discussed, only part of this document remains in dispute. The argument advanced by Mr Sharpley is, in essence, as follows. The part of the document which is disputed is the product of a request by Ms King of another officer, Ms Hopper, such request being to provide a synopsis of the differences between a draft version of the Edgar Report and the final version. Her evidence establishes that Professor Edgar prepared a report relating to the EMA; he forwarded this to the respondent; there was a telephone conversation relating to matters which the report did not address to the satisfaction of the respondent; another report (the final report which was subsequently released) was prepared; and Ms Hopper was asked to provide to Ms King an advice or summation concerning the differences between the two. The portion of the document for which exemption is claimed contains matters of both fact and opinion relating to such differences between the two reports.

11. Mr Sharpely referred me to various authorities in support of the proposition that disclosure of the document would disclose matter in the nature of opinion, advice or recommendation prepared by an officer, or consultation or deliberation that has taken place between officers, and that such matter had been prepared in the course of, or for the purpose of, the deliberative process involved in the functions of the respondent. He also referred to authority for the proposition that Professor Edgar, whilst not an immediate employee of the respondent, is an "officer" within the meaning of the definition contained in s.5 of the Act. Further, he referred to authorities in relation to draft documents and argued that documents which, of necessity or by inference, reveal the contents of draft documents are necessarily in the same category as the documents themselves. I agree with his submission.

12. Much of what was submitted by Mr Sharpely in this regard was, quite sensibly, not contested by Mr Cameron. Whilst he certainly did not consent to the exemption proposed by Mr Sharpley, it was extremely difficult for Mr Cameron to argue against the well-established authorities which support the individual links in the chain of argument advanced by Mr Sharpely.

13. I am of the opinion that the portion of Document 1 which is in dispute is indeed exempt. It is an internal working document falling within the operation of s.30(1). It relates to a draft or provisional document which has been superseded by a final report which has in turn been released. The requirements of s.30(1)(a) have been met.

14. In my opinion, the requirement of s.30(1)(b) has also been met. I have borne in mind the various factors to be considered, including those set out in re Hulls and Victorian Casino and Gaming Authority (1998) 12 VAR 483, and the general principles expressed in re Pescott and Auditor-General of Victoria (1987) 2 VAR 93. In considering the competing interests of the public having access to documents as opposed to the public interest in protecting the deliberative processes of Government, I am of the view that the disclosure of the document would be contrary to public interest. As stated, I am conscious of the objects of the Act and the onus of proof, and have borne them in mind in so finding.

15. I am also of the opinion that the "public interest override" contained in s.50(4) does not operate. Wherever the burden might lie in relation to this provision, there was not the slightest evidence of, nor indication of, public interest in relation to this document, or indeed this issue. Mr Cameron quite openly admitted that he could elicit no such evidence. In any event, bearing in mind the authorities to which I was referred by Mr Sharpley, it seems to me clear that s.50(4) does not apply.

16. Accordingly, I find that the portion of Document 1 which is in dispute is an exempt document for the purposes of the Act.

17. This document was described by Ms King - who, I might say, was an impressive witness and whose evidence I accept - as a document prepared in order to assist the relevant Minister in answering questions in the House concerning the Edgar Report. It would seem that, at the time when it was so prepared, that Report had not been released. The document sets out many features of the Edgar Report which would now be of common knowledge, given the release of that Report.

18. Ms King explained in some detail the purpose of the document. It gives the Minister some background information which might or might not be used in relation to the answering of questions in the House. It might never be examined. It might be ignored. There may be a request for further details. It may be relied upon partially or in its entirety.

19. Given that the Edgar Report was subsequently released, the real argument in relation to this document centred on whether documents of this nature should, as a matter of "across the board" policy, be exempt. The argument to the contrary is that, the Edgar Report having been released, at least those parts of the document that do no more than refer to matters contained in it should be made accessible. Mr Cameron argued that, if access was not given to the document in its entirety, the provisions of s.25 should be invoked and deletions made so as to render the document not an exempt document.

20. Again I was referred to numerous and helpful authorities in support of the arguments which were advanced.

21. I am of the view that Document 2 is an exempt document. It seems to me to fall squarely within the operation of s.30(1). I accept the evidence of Ms King in relation to the purpose of the document and the manner in which it was prepared. By its very nature, it is a type of draft which may be relied upon, modified, or ignored. I accept that it is in the nature of an opinion, advice or recommendation as to how a question relating to a particular issue might be answered. I accept that it is an internal working document and that it is for the purposes of the deliberative process involved in the functions of the respondent.

22. I am not persuaded by the argument that, because the Edgar Report was subsequently released and came into the public domain, access should be granted to the document or to those parts of it which have become available to the public. In my opinion, the document remains one which meets the requirements of s.30(1) and, whether or not the Edgar Report was subsequently released, remains an exempt document.

23. I am also of the view that it would be contrary to the public interest to order disclosure of the document. I accept the submissions of Mr Sharpely in this regard. It is important that officers be able to provide to a Minister in a frank and candid way what are, in essence, draft or suggested responses to possible questions in the House, or to so provide material which might assist in giving such a response. As stated, I accept the submissions advanced on behalf of the respondent in this regard.

24. I am also of the view that s.50(4) does not apply so as to override the exemption granted. I refer back to and repeat my findings in relation to Document 1, and contained in paragraph 15 of these reasons.

25. Further, I am against the submissions made on behalf of the applicant in relation to the possible operation of s.25 of the Act. Mr Cameron argued that deletions could be made so as to render the document no longer exempt. Mr Sharpely argued that, within the meaning of the section, it would not be practicable so to do. He submitted that, firstly, and for the reasons set out above, the entire document is, by its very nature, an exempt document which cannot be rendered accessible; secondly, the dividing up of the document into sections corresponding with parts of the Edgar Report which are common knowledge and other parts which might be more akin to the expression of opinion, would not be practicable.

26. I agree with both of these submissions. Without in any way attempting to make a hard and fast rule in relation to documents of this kind, it seems to me that the facts and circumstances relating to this document render it exempt in its entirety. Even if this were not so, any attempt to make deletions on the basis suggested would not be practicable as the end result would be either useless or unintelligible.

27. Accordingly, despite the brave efforts of Mr Cameron, who was arguing from a position of very considerable difficulty, I am of the opinion that the respondent has discharged the onus of proof and that the documents in dispute are exempt documents. The application is dismissed.

Honeywood v Department of Education [2003] VCAT 780

At a glance

Court

Decision date

Source

Judgment (29 paragraphs)

Honeywood v Department of Education [2003] VCAT 780 (30 May 2003)

Parties