Honeywood v Department of Human Services (General) [2006] VCAT 2048

1 The decision under review is affirmed save that access is granted under section 25 of the Freedom of Information Act 1982 to the draft briefing note from the Secretary of the Department of Human Services to the Premier of Victoria, subject to the deletions from the body of that document that have already been made by the department, except that paragraph 13 is to be included in the copy of the document to which access is granted.

2 The order of the tribunal is stayed for 28 days from 25 September 2006.

(given orally at the hearing and subsequently revised)

1 The applicant seeks access to certain documents concerning accounting irregularities at Melbourne Health. One document that fits the description was a draft "briefing note" to the Premier, which is said to be exempt under the Freedom of Information Act 1982 by reason of it being a document that contains an extract of a Cabinet submission. Whether this is so is the first issue in the case. A second issue is whether certain other documents, which have not been identified as being within the request, should have been disclosed by the respondent.

2 In May 2005 Melbourne Health, which is a public health service incorporated pursuant to the Health Services Act 1988, notified the Department of Human Services of some accounting irregularities. Three firms of independent experts were then commissioned by Melbourne Health to conduct investigations into various aspects of those irregularities.

3 In June 2005, Susan Janine Riley, who was then a senior project officer with the department, prepared a submission for the Expenditure Review Committee of Cabinet ("the ERC"). Ms Riley prepared this submission on behalf of the Minister for Health. She gave evidence, which I accept, that she prepared the Cabinet submission for the purpose of it being submitted by the Minister to the ERC for consideration by the ERC. A copy of the Cabinet submission was tendered to the tribunal as a confidential exhibit. I have examined the Cabinet submission; and, having examined it, this reinforces Ms Riley's evidence that she prepared the Cabinet submission for the purpose of it being submitted for consideration by the ERC. Ms Riley also gave evidence that she understood that on or about 22 June 2005 the Minister for Health presented the Cabinet submission to the ERC; that the ERC considered the submission; and that the ERC made a decision in relation to it.

4 As part of the considerations of the tribunal I have also considered the draft briefing note, on a confidential basis. By reference to that document, as well as Ms Riley's evidence, I find that the ERC did consider the Cabinet submission and did make a decision in relation to it.

5 By about early September 2005 the three firms of independent experts commissioned by Melbourne Health had completed their investigations and produced final reports. However each of these firms had prepared interim reports before Ms Riley prepared the Cabinet submission in June 2005. Further the final reports essentially confirmed the content of the interim reports, although, no doubt, they added additional matters and amplified matters that had previously been reported on.

6 On 7 September 2005 an officer of the Department of Premier and Cabinet sent an email to Ms Riley requesting further information about the three investigations that had been carried out. Ms Riley discussed this request with the Under Secretary of Health. Subsequently a decision was made within the department that Ms Riley should prepare a briefing note which would be formally under the name of the Secretary of the Department and which would be directed to the briefing of the Premier. This document was prepared and was submitted to the Secretary although it was ultimately not forwarded on to the Premier. It is this document, which I will call the briefing note, which is the principal document the subject of the proceeding.

7 On 23 February 2006 the applicant wrote to the Freedom of Information Officer of the department stating:

Pursuant to the Freedom of Information Act 1982 I request access to copies of all briefing notes, emails and memoranda for the preparation of a briefing to the Premier regarding accounting irregularities at Melbourne Health in the period from 1 September 2005 to 31 December 2005.

That request did not receive a response from the department within the time specified in section 21 of the Act. As a consequence, for the purpose of applying to the tribunal for review, there was a deemed refusal to provide access to the documents sought by the request. However on 6 June 2006, after the deemed refusal had come into effect, the team leader of the Freedom of Information Unit within the department made a decision in relation to the application to access documents.

8 In his letter dated 5 June 2006 to the applicant the Freedom of Information Officer said in part:

The Program Area has conducted a search and located the following documents relevant to your request:

• Emails between departmental officers and emails between officers of the department and the Department of Premier and Cabinet (DPC)

• A draft briefing addressed to the Premier of Victoria from the Secretary of the department

• A draft covering memorandum from the Under Secretary of Health to the Secretary requesting endorsement and signature to the briefing referred to above

• A note from the department's correspondence database

The documents have been assessed in accordance with the FOI Act by the department's Freedom of Information Unit to determine whether they could be released to you in full or released to you in part or whether they were fully exempt from release.

With the exception of the draft briefing to the Premier, all of the remaining documents falling within the scope of your request can be released to you; please find these enclosed. The draft briefing to the Premier is however exempt from release, specifically, the following provisions of the FOI Act apply:

The Freedom of Information officer then set out various provisions of the Act which were said to make the briefing note an exempt document.

9 I propose to deal first with the question of whether there are documents, other than the briefing note, which have not been released and which are relevant to the request. The applicant submitted that the reports of the three independent experts were within the request and that the tribunal had power to review a decision, or a deemed decision, refusing to grant access to these documents.

10 Although this matter was only lightly touched by argument, I am inclined to the view that the tribunal does have jurisdiction to consider whether or not a document, which has not been identified by a department as a document within a request, is in fact a document which is within a request. Reference was made in argument to the decision of Justice Hedigan in Victoria Police v Burton,[1] but I think that case is principally concerned with circumstances where there is no debate as to the relevance of a document, but the issue is whether or not the document is missing or can be found. In any event, I propose to proceed on the basis that the tribunal has jurisdiction to deal with the matter.

11 Mr Jason Pizer of counsel for the department submitted that the reports of the three accountants - and I suppose this relates to both the interim reports and the final reports - were not documents that were within the scope of the request. In particular, he submitted that these documents would not ordinarily be described as "briefing notes, e-mails and memoranda".

12 Section 17(2) of the Act provides that a request shall provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency to identify the document. Certainly the description contained in the applicant's letter of 23 February 2006 appeared to be sufficient to enable a number of documents to be identified and all but one of them released. None of the documents which were identified were the reports of the investigating accountants. Further, until today, there appears to have been no suggestion by the applicant that the department's failure to identify and deal with the reports of the accountants involves some misapplication or misinterpretation of the request.

13 I find that the request did not and does not embrace the reports of the three independent accounting experts. I make this finding in the absence of all the information that might be ideally desirable, as there has not been placed in evidence before the tribunal copies of those reports. Rather I am reliant upon a description of what these experts have found, such description being contained in the Cabinet submission and in the briefing note. The reports are on "emails". Nor would they properly be regarded as "briefing notes". The latter expression is usually used in the context of government. It typically refers to a document designed to inform a senior official or a minister of information that the senior official or minister ought to know or needs to make a decision. When accounting irregularities are discovered within a public entity and, as a result, independent experts are commissioned to investigate aspects of the irregularities, a document prepared by those experts about the irregularities and what remedial action ought be taken, is not a document that would ordinarily admit the description of a briefing note. Rather, common parlance, especially in this State, would be to describe such a document as a report.

14 The third word used in the request is the word "memoranda". Although this is a word of some generality it is ordinarily used to describe documents such as informal letters, documents designed to explain other documents and the like. It certainly is not the type of word that is ordinarily used to cover a substantial document prepared by some outside consultant which provides the results of an investigation. In common parlance in this State the word that is used for such a document is, as I have said, a report.

15 There is a further problem with the argument advanced by the applicants in relation to these documents, and that is this. The request sought access to copies of briefing notes, emails and memoranda for the preparation of a briefing to the Premier regarding accounting irregularities at Melbourne Health. Based on the material before the tribunal I could not find that the accountants' reports were designed to be for the preparation of a briefing to the Premier. The fact that the Premier was briefed was incidental to and subsequent upon the preparation of these documents. The documents were prepared to further good governance and proper accountability in a public health entity and were for the benefit of that entity and the department. The accountants' reports were not designed to be foundational documents to enable the Premier to be briefed.

16 Finally, before leaving this matter, I make this observation. The fact that the matter was not raised until today inevitably weakens the applicant's submission that the accountants' reports were within the request. Much preparation has been put in by the parties in relation to the hearing today; and it has been based upon the proposition that just one document is in dispute, namely the briefing note. I think that by leaving the question until today inevitably I have gained the impression that this submission is somewhat of an afterthought. I do not readily accept the explanation that the Freedom of Information Unit within the Leader of the Opposition's office has lacked efficiency or competence. Rather I think that the desire to obtain the accountants' reports has only been belatedly recognised. The fact of the matter is that it is simply too late to alter the request beyond the limited scope which it originally had.

17 The principal claim in relation to the briefing note was that it was exempt under section 28(1)(c) of the Act. This provides that a document is an exempt document if it is a document that contains "extracts" from a document referred to in section 28(1)(a), (b) or (ba). In turn the department relies upon section 28(1)(b) which provides that a document is an exempt document if it is 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. Essentially the department's contention is that the Cabinet submission is an exempt document by reason of section 28(1)(b); and that the briefing note is an exempt document because it contains extracts from the Cabinet submission.

18 I accept the submission that the Cabinet submission is an exempt document under section 28(1)(b) of the Act. It was prepared on behalf of the Minister for Health for the purpose of being submitted to the ERC for consideration by the ERC. The ERC is a committee of Cabinet and is to be regarded as Cabinet by reason of section 28(7) of the Act. I note in passing that whether or not the Cabinet submission was actually considered by the ERC does not determine whether or not the Cabinet submission is an exempt document; but, in this particular case, I find that the Cabinet submission was considered by ERC.

19 The question of whether a document contains extracts from a Cabinet submission has not been authoritatively determined. In Smith v Department of Sustainability and Environment[2] I commented that it would appear that a document cannot "contain extracts from" a Cabinet document if it was created before the preparation of the Cabinet document. In Mildenhall v Department of Education[3] it was suggested that a document will "contain extracts from" a Cabinet document if it contains a quotation or paraphrase of that document. Commonly a document that is an extract from another document will contain an attribution to the other document, but I accept that the absence of an attribution will not be fatal. The question will need to be determined by reference to all the evidence. In particular, the absence of an attribution will not be fatal where there is direct evidence before the tribunal of a process of extracting content from a Cabinet submission to be included in a document which is claimed to be exempt under section 28(1)(c) of the Act.

20 That brings me now to consider the specific evidence about the preparation of the briefing note. Ms Riley gave evidence that when it came to prepare the briefing note, she personally undertook the exercise by operating her computer. She gave evidence that she opened an electronic copy of the Cabinet submission that she had earlier prepared and cut and pasted content from that document and prepared the briefing note. Her evidence referred to specific paragraphs in the briefing note and explained how the cut and pasting process operated in relation to these particular paragraphs. It is unnecessary to go through this evidence paragraph by paragraph. It is sufficient for me to find that Ms Riley extracted a significant number of paragraphs from the Cabinet submission and pasted those paragraphs into the briefing note she was preparing, sometimes making subtle changes, but on many occasions not making any changes at all. In making this finding I can go beyond the content of paragraph 13 of the witness statement prepared by Ms Riley. I am in the fortunate position (which, for obvious reasons, has not been available to the applicants) of actually being able to read and compare the two documents in question. That process confirms what Ms Riley said in paragraph 13 of her witness statement, namely that the briefing note was substantially prepared by a process of cut and paste, or perhaps more accurately copy and paste, from the Cabinet submission.

21 In a sense this finding is not surprising. Common experience tells us that when a person is required to prepare a document, the content of which is substantially the same as a document that that person has previously prepared, the availability of computer technology and the common ability to use that technology, means that people do use copy and paste techniques in preparing documents. Uncharitably this might be known as recycling an earlier document. It is a practice that one has observed from time to time with politicians, possibly even with judges, and it would not be surprising if it was used by public servants.

22 It follows that the briefing note is an exempt document under section 28(1)(c) of the Act, as it is a document that contains extracts from a document, namely a Cabinet submission, which is an exempt document under section 28(1)(b).

23 Before I pass this question it is necessary to say something about a particular issue that has been raised by the applicant. The applicant pointed out that the final reports prepared by the three accountants post-dated the preparation of the Cabinet submission. Thus, they said, relying upon my comments in Smith v Department of Sustainability and Environment, the briefing note could not contain extracts from the Cabinet submission if it contained content which described or set out the findings of the final reports of the accountants. That much is clearly right. But there is no evidence that the briefing note did this. The evidence was that the final recommendations and findings of the accountants confirmed the recommendations and finding in their interim reports. I note that if the final recommendations or findings merely repeated the interim recommendations or findings, at least in respect of the issue that was the subject of the briefing of the Premier, then it would have been possible for the briefing note to contain extracts from the Cabinet submission.

24 Having regard to my conclusion on section 28(1)(c) of the Act it is unnecessary for me to deal with the department's submissions in relation to section 28(1)(d), except in one minor respect. That minor respect is that there are two sentences in the briefing note in relation to which the department claims that the disclosure of the document would involve disclosure of a decision of the ERC. Having reviewed the two sentences in question, which are in paragraph 21 and 22, I uphold the department's contention. The two sentences in question not only confirm my earlier finding that the ERC did consider the Cabinet submission, but make it clear that the ERC made a decision in relation to the Cabinet submission and record the content of that decision. Because it is unnecessary to go further in relation to section 28(1)(d) of the Act I will leave to another day what is meant by the expression "any deliberation" of the Cabinet.

25 I now want to turn to consider whether it is practicable to grant access to a copy of the document with deletions so as to make the copy not an exempt document. This question arises by reason of section 25 of the Act. In various cases the tribunal has advanced principles which might be adopted in deciding what is meant by the expression "it is practicable". For example, it has been said that it will not be practicable to grant access to the copy of a document with exempt material deleted if the adapted document would be "devoid of context": Kotsiras v Department of Premier and Cabinet;[4] or "meaningless and possibly even need the reader of the document to draw erroneous conclusions": Koch v Swinburne University;[5] or meaningless or would "lead to unnecessary speculation as to what was missing": Thwaites v Department of Human Services;[6]or "meaningless, misleading or unintelligible": Stewart v Department of Tourism, Sport and the Commonwealth Games.[7]

26 Perhaps I could add my own tentative thoughts. I think the concept of it being "practicable" involves two essential elements. First, it involves consideration of the ease of undertaking the task of making deletions so as to make a copy of the document not an exempt document. Second, it involves considering the efficacy of the outcome of undertaking such an exercise, that is whether it would result in the adapted document being a meaningful document.

27 In the present case the exercise is slightly complicated by the fact that the department has already made deletions and has released a copy of the document, with deletions. The department acknowledges that there remains some small parts of the document which do not contain material that would make those parts exempt if considered in isolation; but says that to grant access to those parts would not be practicable, principally because they would stand in isolation and not be meaningful. To assist me the department has prepared a document which consists of a coloured up version of the briefing note. The portion which has been shaded in green represents parts of the document that have already been released. The parts that have been shaded in yellow represent matters in respect of which an exemption is claimed under section 28(1)(d) of the Act, an exemption that I have upheld. The content that is unshaded represents content for which an exemption is claimed under section 28(1)(c) of the Act, again an exemption which I have upheld. The parts of the document shaded orange are parts which the department says are not exempt if considered in isolation, but which it says ought not be released as they would have no meaning unless exempt portions were also the subject of access.

28 It is necessary to consider these claims on an individual basis. The first line in paragraph 2 of the document would, if released, add nothing of consequence or meaning. The last sentence of paragraph 8 of the document only makes sense if one is aware of the first sentence of paragraph 8 of the document, a sentence which I find would, if considered in isolation, be exempt. In relation to paragraphs 16 and 17, my conclusion is that these paragraphs depend on paragraph 15 for meaning. It is not practicable to grant access to a document containing paragraphs 16 and 17, but not paragraph 15, in a way that gives those paragraphs meaning. I make a similar finding about the last sentence in paragraph 19 and the second half of paragraph 22.

29 I return now to paragraph 13. I find that it is practicable to grant access to a copy of the document which includes paragraph 13. Mr Pizer submitted that paragraph 13 would lack meaning if it was not part of a document that also included paragraph 14. I do not agree. Paragraph 13 is concerned with the commissioning of Ferrier Hodgson, whereas paragraph 14 is concerned with findings made by Ferrier Hodgson. In my view a document that refers to the task that an accountant has been asked to perform has meaning in the absence of knowing what the accountants actually found. I regard the relationship between paragraphs 13 and 14 the same as that between paragraphs 9 and 10; and note that the department decided to provide access to paragraph 9 but not to paragraph 10. I agree with Mr Pizer that two wrongs do not make a right, however in my mind the more important consequence of what has been released (paragraph 9) is that it has provided a context in which to consider whether other parts of the same document may be released with meaning. Perhaps what is more relevant in the context of paragraph 13 is not whether or not paragraph 9 has been released, but rather the fact that the heading immediately before paragraph 13 has been released. Essentially all paragraph 13 does is amplify the words in brackets in that heading.

[1] [1999] VSC 534, 15 VAR 443.

[2] [2006] VCAT 1228 at 28.

[3] Unreported, Member Glover, 16 April 1999.

[4] [2003] VCAT 472 at 31.

[5] [2004] VCAT 1513 at 35.

[6] Unreported, VCAT Nedovic PM 15 December 1998 at 26

[7] [2003] VCAT 45; [2003] 19 VAR 363 at 47.