Victorian Civil and Administrative Tribunal|2003-05-02|Before: Mr P

Kotsiras v Dept of Premier and Cabinet [2003] VCAT 472 (2 May 2003)

Freedom of information, internal working documents, sections 30, 33 and 34

DATE OF HEARING 1 and 8 November 2002, 10 and 11 December 2002

Medium Neutral Citation [2003] VCAT 472

* The decision of the respondent in relation to documents 1, 2, 3, 5, 7, 9, 10, 13, 14, 15, 16, 22, 24 and 25 is affirmed.

* The decision of the respondent in relation to documents 4, 6, 11, 12, 18, 20, 21 and 23 is varied and the following orders are made:

* At the expiration of thirty days the following documents or part documents are to be released -

Document 6 - Access is granted to the first eight pages down to "Verification of compliance with key controls";

Document 11 - access is granted save for Chapter 2 headed "Detailed Findings and Recommendations";

Document 12 - access is granted save for Appendix B - Tables 1 and 2 and Part 4 headed "Approach";

Document 18 - access is granted save for deletion of names in paragraph (p)(i) of page 5 of the report and the deletion of:

* the names of individuals appearing in page 3 of the spreadsheet,

* the name in the second item following the heading "Organising Committee Costs" in the spreadsheet;

* the four names in the second-last box on page 3 of the spreadsheet; and

* the four names appearing on page 15 of the spreadsheet under the heading "Wages for CBC Management".

Document 20 - access is granted save for Chapter 4 headed "Methodology and Approach" on page 3 of the report;

Document 21 - Access is granted to the three-page letter dated 18 July 2000 (but not to any of the succeeding pages) save for the deletion of the two company names in paragraph 2 on page 3 of the letter under the heading "Clients offering one or other stream only"' and the deletion of the company name appearing under the heading "Questions of specific clients";

Applicant Mr T Hurley of counsel instructed by J Milburn-Clark

Respondent Mr R M Niall of counsel instructed by Messrs Holding Redlich

1. The applicant is an Opposition Member of Parliament holding the Lower House seat of Bulleen. He seeks to review the decision of the respondent to refuse access to certain documents.

2. His revised request for documents sought "copies of all conclusive written advice reports/briefs prepared by KPMG and/or KPMG Consulting and/or Price Waterhouse Coopers for the Department of Premier and Cabinet since 1 July 2000 [up until 18 January 2002]".

3. The documents now the subject of this review are as follows:

Report on review of backup and recovery procedures - Internal audit report

Report on internal audit activity - DPC audit committee meeting

Report on review of compliance with general government purchasing card rules

Report on review of document storage, retention, security and confidentiality - internal audit report

Report on review of contract management procedures phase 1

Report on review of tendering practices - audit report

Review of compliance with general government purchasing rules

Report on internal audit activity DPC audit committee meeting

Victorian Multicultural Commission Community grants programme

Review of compliance with general government purchasing card rules

Draft review of security over cabinet documents internal audit report

Report on internal audit activity DPC audit committee

Report on findings in connection with Commonwealth Business Forum

Special review of compliance with general government purchasing card rules

Review of Centenary of Federation Victoria grant programme

Report on internal audit activity DPC audit committee meeting

Review of monthly accrual process internal audit report

The Tribunal heard evidence from the following witnesses:

* Mr Bruce Hawkins Manager, Finance and Governance,

* Ms Sue Heistein Manager, Strategic Communications and

* Ms Elise Wherry Senior Adviser, Australian School of

5. Section 30(1) of the Freedom of Information Act provides-

(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 courts 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.

6. For a document to qualify for the exemption, the section requires that two things be established. First, the document must meet the requirements of sub-paragraph (a) (sometimes referred to as the "internal working document" test) and second, it must be shown that the release would be contrary to public interest.

7. To qualify for the exemption the "matter in the nature of opinion, advice or recommendation" must have been prepared by an officer for the purposes of or in the course of "the deliberative processes" of the relevant agency or be in the nature or "consultation or deliberation."

8. Although the term "deliberative processes" has been the subject of much tribunal consideration, it bears repeating for the sake of clarity. The Commonwealth Tribunal provided a formulation in Waterford v Department of Treasury (No.2) [1984] AATA 67; (1984) 5 ALD 588,606 and this has been approved on numerous occasions and in particular by Deputy President Galvin in Brog v Department of the Premier and Cabinet (1989) 3 VAR 201,208. The term is to be given a meaning -

... wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency...in short...its thinking processes - the processes of reflection, for example, upon the wisdom and experience of a proposal, a particular decision or a course of action."

9. The effect of section 30(3) excluding from exemption purely factual matter must be considered in tandem with section 25 which provides for release of documents with exempt matter deleted. Deputy President Macnamara provided an excellent overview in Mildenhall v Department of Education (1997/65325). At page 6 of his reasons for decision he stated -

Where a document consists of some purely factual material and other material whose release would disclose matters in the nature of opinion, recommendation or advice, the document may only be released where the factual material is properly severable (Harris v Australian Broadcasting Commission [1983] FCA 242; (1983) 50 ALR 551, 561 per Beaumont J) So in her unreported decision Owen v Department of Health and Community Services & Nikolovska Mrs Coghlan declined to release a document, some parts of which qualified for exemption under section 30(1) with deletions -

..because any facts that the document contains are so intertwined with the advice or recommendations forming the deliberative material where they cease to be `purely factual' which is what is required to satisfy the exemption. Its release would disclose what is not factual. It is also not properly severable.

10. Mr Hurley who appeared for the applicant indicated that the applicant would be willing to have access to any edited material should the Tribunal so decide.

11. Section 30 of the Act requires consideration of whether or not disclosure of the relevant matter would or would not be contrary to public interest. The most quoted authority of the requirements of this sub-section is the one formulated by Davies J. presiding over the Commonwealth Administrative Tribunal in Howard v The Treasurer of the Commonwealth of Australia (1985) 3 CLR 169,178. The formulation is as follows:

1.The higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed.

2.Disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest.

3.Disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest.

4.Disclosure, which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest.

5.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.

12. In recent years the principles enunciated by His Honour in the third paragraph have not found favour being supplanted by the more contemporary acknowledgment that senior public servants are a robust group of individuals with little or no regard for any opprobrium that might accompany the provision of frank and fearless advice. In the absence of any evidence that disclosure has led to any diminution in frankness and candour such a consideration no longer attracts great endorsement. And in the instant case where every document in contention is produced by a major accounting firm the view has even less application. It is fair to say that the other paragraphs in His Honour's formulation have not received the same criticism

13. Before turning to the individual documents it is proper to consider the system of auditing across government and across the respondent department. Mr Bruce Hawkins is the manager of finance and governance for the respondent. He told the Tribunal that pursuant to the Financial Management Act 1994 and the regulations made thereunder, the Minister for Finance was authorized to give directions in relation to the establishment and maintenance of internal control standards, internal audit and audit committees.

14. The Minister has indeed issued comprehensive ministerial guidelines, Part 8 of which deals with audit committees, internal audit and internal control. The guidelines provide for the setting up across government of audit committees, their role, functions and objectives, the benefits and duties of such committees, the interaction of the committee with other officers and bodies including its liaison with external auditors.

15. Similarly the directions contain details of the internal audit role, they define the role of internal audit, set out the functions and responsibilities and reporting lines of internal audit.

16. The role of the audit committee is to co-ordinate the activities of management, the internal audit process and the role of the Auditor General and to assist the department and the Minister properly to discharge their responsibilities for financial reporting. The committee is required to be objective and independent and because the nature of its role its members are required to have a detailed understanding of the audit process.

17. The internal auditors report to the audit committee. Among their tasks is a requirement to consult with officers of the Office of the Auditor General to reduce duplication of audit activity.

18. Overarching all this is the role of the Auditor-General, the statutory body charged with the efficient and effective financial reporting of all of the government departments of the State of Victoria. The Auditor-General's report is published annually and is freely available in both hard copy and on-line.

19. In 1996 the firm of Price Waterhouse Coopers was appointed internal auditor to the respondent and its contract to provide those services was renegotiated in October 2001 for a further three years.

20. Documents 2, 7, 10, 16 and 24 are described as "Report on Internal Audit Activity - DPC Audit Committee Meeting". By its very nature each of these documents contains a mix of opinion advice and recommendation and is designed for further consultation at the meeting of the department's audit committee and is clearly part of the reporting and consultative processes of the department. In my view there is little doubt that the process of internal audit is properly categorised as being part of the deliberative functions of the department. In Rabel v Gas & Fuel Corporation of Victoria (1989) 3 VAR 334 Deputy President Rizkalla (as she then was) held that documents created by the Internal Audit Department of the respondent in the performance of an internal audit investigation came within s.30(1)(a) as each was seen to constitute, or form part of, a step in the deliberative processes of the respondent's internal control mechanism. I concur with her reasoning. Further Mr Hurley conceded that all of the documents fall within the description of "internal working documents."

21. I find that the first five documents (documents 2, 7, 10,16 and 24) fall within section 30(1)(a). It is thus necessary to consider whether release would be contrary to public interest. Mr Hawkins gave evidence that in his opinion release of the documents would compromise the ability of the respondent to implement an internal audit. In his statement he said -

..the internal audit process in DPC relies on sampling and testing procedures the result of which are extrapolated to reach conclusions about the processes and systems within DPC. Release of the documents would reveal methodology that is employed in the audit process and would compromise the effectiveness of the sampling technique. People who are the subject of the audit would learn the manner in which compliance is tested and this might encourage compliance only with those aspects that are likely to attract scrutiny. In addition, a fundamental role in the audit process is to identify any weaknesses in the systems that are in place.....The purpose of this exercise is to show where the system is vulnerable and to put in place means by which risk can be avoide.

22. In relation to all the documents the respondent relied on the following public interest grounds:

* the public interest in protecting the integrity of the government's internal audit processes;

* the public interest in protecting the internal audit processes of government where frank and candid advice and opinion is given and recommendations are made by officers to other officers;

* the public interest in avoiding confusion and unnecessary debate that may result from the release of documents, in so far as the documents canvass hypothetical options which do not reflect government policy;

* the public interest in avoiding the risk of mischief and misinterpretation that may result from the release of the documents, particularly where the documents form only part of the overall audit process;

* the public interest in encouraging frankness and candour in pre-decisional communication between officers and between an officer and a Minister; and

* the public interest in ensuing that advice, opinion and recommendations made regarding the policy development process can be expressed without inhibition and in a frank and candid fashion.

23. The applicant submits that these five documents present a review of a particular period in time and as a result are of historic reference only. With respect to Mr Hurley's submission, that seems to me a little simplistic having regard to the part played by the internal audit in the complex chain of audit across government. In addition the need for continuous risk assessment and ongoing reporting should not be subject to unnecessary publication in circumstances where office procedures are by their very nature constantly changing and thus requiring constant changes in approach to the internal audit. Doubtless there will be documents that do not go to the heart of the integrity of the auditing process, that do not go to the heart of the probity of a department's financial reporting and that do not form part of the integral process of general accountability but in my opinion these five documents do not fall within that category.

24. I have formed the view that disclosure of periodic internal audit reports containing recommendations that may or may not have been acted upon and that disclose systemic or other weaknesses that may or may not have been remedied, can only lead to confusion, unnecessary debate and speculation in circumstances where full reports from the Auditor General are available annually and satisfy the need for public accountability and satisfy the need to ensure proper adherence to accounting, monitoring and performance standards. This is particularly so where there is a continuous audit process undertaken in a climate of change in a fluctuating workplace.

25. I am not satisfied that these documents can be satisfactorily edited as contemplated by section 25 without reducing the content to meaningless isolated paragraphs devoid of context.

26. The exemption pursuant to section 30 is made out in respect of these documents

27. The next group of documents relates to reports on compliance with general government purchasing card rules. Those documents are numbered 3, 9, 13 and 22. The governmental requirements in relation to the use of corporate cards are set out in the guidelines issued by the Minister for Finance at paragraph 3.14. Each of the four documents is an internal working document. The reports deal with the methodology for transaction and cardholder testing, the review findings and recommended actions arising there from.

28. For the reasons set out in paragraphs 23 and 24 I find it would be contrary to the public interest to release these documents. The exemption in relation to documents numbered 3, 9, 13 and 22 is made out. This is so even though document 22 was a one-off review following some public disquiet about some particular alleged excesses in one section of the department. I accept the evidence of Ms Hutchinson that in any event, some of the matters contained in the report have now been discovered to be inaccurate and that former officers of the department might be unnecessarily harmed by release of such inaccuracies.

29. Document 1 is described as a Review of Backup and Recovery Procedures. The purpose of the report was to ensure that agencies had in place adequate information technology procedures and processes to recover information in the event that data was lost from a server.

30. The document contains information of outsourcing arrangements, details storage capacity, sets out the location and providers of storage, backup and recovery. It sets out the review findings and makes appropriate recommendations. I accept the evidence of Mr Hawkins that disclosure might place the department at a disadvantage if the type of information found in the document were generally known. In those circumstances it follows that I consider release would be contrary to the public interest in maintaining the integrity of the department's computer system, its records and information and not exposing the department's records to the threat of outside interference.

31. In relation to the possibility of editing the documents, I have formed the view that whilst some of the content is unobjectionable, to edit would result in release of a document which whilst grammatically intelligible, would be devoid of context.

32. Document 4 is described as a Review of Document Storage, Retention, Security and Confidentiality. It was prepared in October 2000. The purpose of the report was to examine the adequacy and effectiveness of procedures surrounding document control and storage, document destruction and archival processes and the operation of a particular document management system. It is certainly an internal working document. In relation to the review findings and conclusions and in relation to the recommendations made, I have formed the view that for the same reasons set out paragraphs 23 and 24, release of the document in its entirety would be contrary to the public interest in maintaining the integrity and safety of the record-keeping systems of the agency. In relation to the possibility of editing the document, paragraph 1.3 only can be severed from the rest of the document. But the respondent has also claimed exemption under section 34(1) of the document.

33. Mr Nicolau from Pricewaterhouse Coopers gave evidence that release of any part of the documentation prepared by his firm would expose his firm to a disadvantage. The thrust of his evidence was that release would disclose the methodology used by his firm and expose his firm to unfair competition by allowing other firms to compete for contracts taking advantage of information obtained by release. I do not accept his evidence as it applies to paragraph 1.3 of document 4. What Paragraph 1.3 discloses is the scope of the work the firm has been asked to do by the department, nothing more. The exemption under section 34(1) is not made out and paragraph 1.3 of Document 1 should be released.

34. At this point it probably opportune to make some comment on the evidence given by the auditors about their methodology and their intellectual property; these form the basis of the claim made under section 34 (1) of the Act as it is submitted that release would expose Pricewaterhouse Coopers to "a disadvantage as against its commercial operations." Mr Andrew Nicolau stated that "the nature of the reports is such that they contain specific information and references to the firm's proprietary audit methodologies, proprietary tools and demonstrate the use of the firm's intellectual property in its systems and auditing know how. If competitors were placed in a position where they could review the reports, PwC's internal audit methodology, effectively its stock in trade, would be exposed in a manner which would significantly prejudice its capacity to compete in the internal audit market place."

35. Similar evidence was given by Mr Paul Brooke, a manager of Bearing Point formerly known as KPMG. It is fair to say however that he was not as uncompromising in his approach as was his PwC colleague. His evidence is best summarised in paragraph 6 of his statement. He stated -

"Competitive advantage in the consulting industry is derived in a number of ways, principal among them being the development and deployment of appropriate methodologies. We believe that disclosing the descriptions of our methodology would provide our competitors with information we strictly regard as proprietary and confidential and would therefore result in unreasonable disadvantage for our company. Moreover, our methodology incorporates intellectual property that originated from third parties and disclosure of third party information could violate our obligations to those third parties. Further, we understand that release of such methodology information would establish a precedent whereby it could be reasonably argued in future requests that our methodology was already in the public domain, which would diminish our ability to protect our confidential information."

36. The thrust of the evidence given by the auditing professionals was that to disclose any of their documentation was to disclose their methodology. But on the face of the documents, it seems to me that that approach cannot be maintained. Much of the documentation is in template form with the headings one would expect to see in any documented version of a logical and intelligent approach to, and an orderly arrangement of a particular task. For instance one would expect to find sections dealing with the scope of the task at hand, (that is, what the client has asked the firm to do), a section dealing with background detail, as well as sections detailing findings and recommendations. To suggest that such a template approach is unique to a particular firm seems to me to carry the notion of methodology to an unreasonable and untenable conclusion. A useful analogy might be that of a court judgment of reasons for decision. One would expect to find a section dealing with the background to the case, a section dealing with the legislation, one dealing with the law, one analysing the evidence and another setting out the decisions made. Whilst that is quite formulaic in approach it does not necessarily come with some propriety right attached or indeed some intellectual property accruing to the author. And so it is with the auditor's reports.

37. However one might find in an audit report details of how transactions were sampled or an explanation of the actual analysis of the job at hand, and in that case it seems to me those sections might properly be regarded as unique to a firm and thus worthy of protection from commercial competitors and capable of being described as methodology. A similar view might be taken to a description of sampling and checking techniques in relation to information technology and paperless trails where each firm develops its own particular practice model to achieve best results. Auditing is a profession like any other, built on a series of tenets and principles which underpin the methods used by individual auditors. But to suggest that anything produced by an auditor ipso facto discloses methodology and is thus harmful to the firm's competitive position is a suggestion that cannot be sustained on the entirety of the documents before me.

38. The respondent has claimed exemption pursuant to section 34(1) which provides -

(1) A document is an exempt document if its disclosure under this Act would disclose information acquired by an agency or a Minister from a business, commercial or financial undertaking and the information relates to--

(b) other matters of a business, commercial or financial nature and the disclosure of the information would be likely to expose the undertaking unreasonably to disadvantage.

39. Section 34(2) of the Act relevantly provides -

(2) In deciding whether disclosure of information would expose an undertaking unreasonably to disadvantage, for the purposes of paragraph (b) of sub-section (1), an agency or Minister may take account of any of the following considerations--

(a) whether the information is generally available to competitors of the undertaking;

(b) whether the information would be exempt matter if it were generated by an agency or a Minister;

(c) whether the information could be disclosed without causing substantial harm to the competitive position of the undertaking; and

(d) 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--

and of any other consideration or considerations which in the opinion of the agency or Minister is or are relevant.

40. As I understand the arguments put to me, the thrust of the claim in relation to section 34 is based solely on the premise that disclosure would be likely to expose the accounting firm to disadvantage because such disclosure would cause substantial harm to the competitive position of the firm. Certainly that was the thrust of the evidence given to the Tribunal.

41. Document 5 dated November 2000 is a Review of Contract Management Procedures Phase 1. In particular the review focuses on contract management of information technology-related contracts. In the body of the report it explains what will be covered in Phase 2, a step not taken within the time-line of this request. It is clear from the document itself that Phase 2 will cover much that is recommended in the Phase 1 report and that this is an ongoing process, not yet completed. For the reasons set out in paragraphs 23 and 24 I find that release of this internal working document would be contrary to the public interest. Although this document is capable of being edited, to do so would be to release a document entirely devoid of context. The exemption is upheld.

42. Document 6 is described as a Review of Tendering Practices. The document is dated November 2000. It is clear from the text of the document that it is not focussed on one individual tender - it relates to the process as it is undertaken by the respondent department. There is nothing of particular significance in the first few pages of the document but parts of it will not be released. I am satisfied that it is contrary to public interest to release any part of the document from the commencement of the paragraph on page 8 headed "Verification of compliance with key controls" to the end of the document. I accept the evidence of Mr Hawkins that release might unnecessarily expose weaknesses in the system that have been the subject of recommendation and might expose the security system to undesirable scrutiny.

43. The document is capable of editing as contemplated by section 25 and in my view release of the first eight pages down to "Verification of compliance with key controls" would not be contrary to the public interest. Section 34(1) has been claimed as a ground of exemption but I do not accept the evidence that release of that portion would in any way undermine or endanger the competitive position of Pricewaterhouse Coopers. It merely sets out the background, ambit and scope of the task.

44. Document 11 is entitled Review of Victorian Multicultural Commission Community Grants Program and is dated May 2001. Mr Hawkins told the Tribunal that release of the document might result in unfair criticism of officers administering the grants programme when the focus of the review was merely part of an ongoing process designed to improve the management of the provision of grants. That contention does not bear too much scrutiny. The document is unremarkable in its content save for the Chapter 2 entitled "Detailed Findings and Recommendations." For the reasons set out in paragraphs 23 and 24 I consider that release of the detailed findings and recommendations would be contrary to the public interest. The respondent has claimed exemption pursuant to section 34(1) in relation to the document. I do not accept Mr Nicolaou's evidence that release would expose his firm to competitive disadvantage. Insofar as any methodology is to be divined from the document it is contained in the detailed findings and recommendations which are not to be released.

45. Document 12 is a Review of Output Reporting and is dated July 2001. According to Mr Hawkins, releasing the review of output reporting

"might give a misleading impression of the performance of the respondent, in particular because the terms are very technical which if taken out of context, could suggest that there were issues with the level of performance rather than a debate on the appropriate measures to apply. Further, the document is recommendatory in nature. Decisions may have been taken in respect of the subject matter of the document that will not be solely referable to the document. Release could well be misleading on this basis. Release would also undermine the very process of the review."

46. With the exception of Appendix B - Tables 1 and 2 to document 12, I do not accept Mr Hawkins' evidence that release of this document would be contrary to public interest. The fact that the document is merely "recommendatory" does not mean that it would excite unnecessary comment or lead to confusion. Output reporting has been adopted across government and there is a public interest in ensuring that new accounting procedures and the government's financial reform agenda meets public expectations. There is a public interest in ensuring that the department's outputs and its performance measures reflect the activity and costs involved. There is no indication that this review was part of an ongoing review process in the respondent department and it is not a bar to release that the documentation is technical in nature. However, in relation to the Appendix, its release is contrary to public interest for the reasons set out in paragraph 24. The document is however capable of being edited.

47. Exemption has been claimed pursuant to section 34(1). I accept that Part 4 of the report headed "Approach" contains an explanation of the method and approach taken by PwC and as such could expose the firm to competitive disadvantage.

48. In my view the exemptions are made out only in part and the document, excluding chapter 4 (pp 9-13) and excluding the Appendix should be released.

49. Document 14 is entitled Review of Security over Cabinet Documents and is dated September 2001. I accept the evidence of Mr Hawkins that release of this document would be contrary to public interest. The integrity of the cabinet process is integral to good government and in my view it is essential that it be protected. Further it is my view that release of this document would invite unnecessary speculation and could well convey misleading and unwarranted impressions. The exemption pursuant to section 30 is upheld.

50. Document 15 is dated November 2001 and entitled Risk Profile. The purpose of the document was apparently to highlight various areas of risk in the department in order to develop an auditing assurance strategy. Despite the extraordinary evidence given by Mr Hawkins that it was possible further risk profile documentation would not be produced if this document were released, I have formed the view that disclosure would in any event be contrary to the public interest. The document identifies 35 individual risk areas across the broader department, it spells out the particular risk factors associated with each area, it rates the risk, sets out the management and assurance strategies, nominates the management initiatives, rates the control and places each risk within an audit priority rating. Disclosure of this document would be contrary to public interest for a number of reasons. First, it would publicise and exploit the perceived risks, second disclosure would give rise to unnecessary and perhaps ill-informed speculation and third, publication and speculation could tend to threaten the integrity of the department's systems and perhaps result in an unfortunate diversion of resources. The exemption under section 30 is upheld.

51. Document 18 is dated 17 January 2002 and is entitled Report on Findings in Connection with Commonwealth Business Forum. There is a nine-page spreadsheet attached to the report. Ms Elise Wherry is presently a senior adviser with the Australian School of Government Project with the respondent department. Prior to taking up that position in May 2002 she was a senior adviser within the government branch of the respondent.

52. The Commonwealth Business Forum was to have been held in conjunction with the Commonwealth Heads of Government Meeting in October 2001. Following the events of September 11 the forum was cancelled. Subsequent to the cancellation the government branch was requested to assist the then Department of State and Regional Development manage the process of cancellation and obtain an audit of claims for expenses. Ms Wherry engaged Pricewaterhouse Coopers for the task.

53. In her statement dated 1 November 2002 Ms Wherry declared that release of the document would disclose matters communicated to the State in confidence by the Commonwealth. Further she stated that release would be contrary to public interest because the document sets out only a partial and potentially misleading basis for decisions taken in respect of matters relating to the Commonwealth Business Forum. I do not accept her evidence. There is no evidence to indicate that contents of the document were communicated in confidence. That is mere speculation on her part and it is fanciful to suggest the document attracts exemption under section 29. Further I am not convinced that release of the document would cause any confusion; nor am I convinced that anyone would be misled by any of the contents even though those contents might not indicate the final position taken by government.

54. Whilst the document is an internal working document, it is a "one-off" review and does not form part of the ongoing processes of the department. As a result its release does not pose any threat to the integrity of the department or any threat to its systems. It simply explains to the reader how state government funds were expended following the cancellation of a state-sponsored event. Inasmuch as the auditors claim that disclosure would reveal their methodology, I am not convinced that there is anything in the document that would expose PriceWaterhouse unfairly or unreasonably to any competitive disadvantage. Nor am I convinced that disclosure would reveal any proprietary methodology.

55. However the names of individuals appearing in paragraph (p)(i) on page 5 of the report should be excised before release.

56. The same reasoning attaches to the spreadsheet and it should be released. There are some names of individuals that should be excised before release. On page three of the spreadsheet, the name in the second item following the heading "Organising Committee Costs" should be deleted as should the four names in the second last box on that page. Likewise on page 15 of the spreadsheet the names of the four individuals appearing under the heading "Wages for CBC Management" should be deleted.

57. With the exception of the deletion of the above names, the exemptions claimed under section 30 and 34 are not made out and the document should be released with the appropriate deletions.

58. The next document (No. 20) to be considered is dated August 2001 and is entitled Online Revenue Streams for the Arts Agencies. Ms Penny Hutchinson is the Director of Arts Victoria. She told the Tribunal that document 20 was prepared by KPMG Consulting (now BearingPoint) following direction from the government's Economic Review Committee concerning revenue opportunities for the portfolio agencies in relation to the Cultural Broadband Network. In her statement she indicated that this was "one of several reports dealing with issues of online capacity and the implement of the CBN. As it is part of a broader chain, I believe its release to be potentially misleading and that it may be used mischievously."

59. A perusal of the document makes it clear that much of the content is factual and much is information obtained from various on-line and other sources, all freely available to the general public.

60. Ms Hutchinson told the Tribunal that there had been little if any further action on this report at the time she gave her evidence. Certainly there is nothing in the document that would lead me to conclude that release would be contrary to public interest. Frankly, the document is innocuous. It explores avenues that might be pursued, poses possible future initiatives and generally explores a range of possibilities. I do not accept Ms Hutchinson's opinion that release would tend to be mischievous or misleading.

61. In relation to the section 34 claim, reluctantly I accept the possibility that chapter 4 headed "Methodology and Approach" might contain some information that might place Bearing Point (KPMG) at a disadvantage if disclosed. The document is to be released with chapter 4 on page 3 deleted.

62. Document 21 is dated 18 July 2000 and relates to "Assessment of Customer Service Aspects - MAMS tender submissions." Ms Sue Heistein is the manager of Strategic Communications and Government Information in the respondent department. She explained to the Tribunal that MAMS related to the Master Agency Media Service. It seems there had been some controversy attached to the awarding of the MAMS contract. According to her statement "KPMG were retained in order to do some preliminary survey work to understand the customer serve (sic) requirements across government and then were also used to assess whether the tenderers met those requirements."

63. Her concern about release of the document was that it might be used mischievously. How this might be was not explained. Her opinion was that this review formed only a small part of the major process of tender assessments. It might, she told the Tribunal, be misleading because the review covered only a partial account in the matters ultimately considered in awarding the tender.

64. To consider the effect of her evidence, it is necessary to break the document into its component parts. First there is a three-page letter from KPMG to Ms Heistein. Following that are six pages which are broadly headed "Customer Service - Conceptual framework for evaluation" and cover other aspects of tender evaluation. Then there is a one-page spreadsheet setting out how each tenderer performed against various categories of customer service.

65. The letter is entirely unremarkable. There is nothing in the text of the letter that would make its release contrary to the public interest save for the mention of the names of some of the tendering companies. On page 3 of the letter, the two company names in paragraph 2 under the heading "Clients offering one or other stream only" should be deleted as should the company name appearing under the heading "Questions of specific clients" on the same page. Otherwise the letter should be released.

66. Six pages follow the letter and are headed "Customer Service - Conceptual Framework for Evaluation" , Assessment of Customer Service Aspects of Submissions" and "Customer Service Delivery, Monitoring and Continuous Improvement". Each of those pages is exempt pursuant to section 34; they disclose the methodology of the auditing firm and to release them would arguably expose the firm to competitive disadvantage.

67. In relation to the spreadsheet I accept the evidence of Ms Heistein that this is only a small part of the process and that its release might cause some degree of mischief. It is true that this document is capable of selective editing, but as with the earlier documents, to do so would render the spreadsheet devoid of context.

68. Document 23 is the Review of Centenary of Federation Victoria Grant Program and is dated February 2001. The grants programme was established to support community groups in the wake of the Centenary of Federation. As with other documents, the submission made in relation to this document is that release will impair the audit process. This review is another example of a "one-off" review. Whilst there might be other grants programmes that will be subject to somewhat similar reviews, this particular programme will not occur again in the lifetime of the parties involved. Thus it is hard to see how there can possibly be any impediment to release. The grants programme was funded from public money. The Tribunal can find no reason to hold even the slightest suspicion that release of this document would be contrary to the public interest. In relation to the section 34 claim for exemption, the Tribunal does not accept that disclosure of this document would in any way prejudice the authors and it finds that no methodology or proprietary methods would be exposed by release. The document should be released in its entirety.

69. Document 25 is a Review of Monthly Accruals Process and is dated August 2001.This review appears to have flowed from findings made during the process of continuous internal auditing of the department where various inconsistencies in the raising of monthly accruals were noted. As such it forms part of the continuous process of internal audit and for the reasons set out in paragraphs 23 and 24 hereof the exemption pursuant to section 30 is upheld.

The decision of the respondent in relation to documents 1, 2, 3, 5, 7, 9, 10, 13, 14, 15, 16, 22, 24 and 25 is affirmed.

The decision of the respondent in relation to documents 4, 6, 11, 12, 18, 20, 21 and 23 is varied and the following orders are made:

At the expiration of thirty days the following documents or part documents are to be released -

Document 6 - Access is granted to the first eight pages down to "Verification of compliance with key controls";

Document 11 - access is granted save for Chapter 2 headed "Detailed Findings and Recommendations";

Document 12 - access is granted save for Appendix B - Tables 1 and 2 and Part 4 headed "Approach";

Document 18 - access is granted save for deletion of names in paragraph (p)(i) of page 5 of the report and the deletion of

* the names of individuals appearing in page 3 of the spreadsheet,

* the name in the second item following the heading "Organising Committee Costs" in the spreadsheet;

* the four names in the second-last box on page 3 of the spreadsheet; and

* the four names appearing on page 15 of the spreadsheet under the heading "Wages for CBC Management".

Document 20 - access is granted save for Chapter 4 headed "Methodology and Approach" on page 3 of the report;

Information Act 1982

Kotsiras v Dept of Premier and Cabinet [2003] VCAT 472

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (150 paragraphs)

Kotsiras v Dept of Premier and Cabinet [2003] VCAT 472 (2 May 2003)

Parties

Legislation Cited (1)

Cases Cited (2)