1. For a number of years, it was planned to build a Bypass, now known as "Ring Road" around Geelong. As a result, a number of options were developed in relation to stage 3 of the Ring Road.
2. The applicant, who was involved with many community groups that were concerned about the Ring Road, became particularly concerned in April 2005 because he believed that Option 3 was preferable to Option 1. However, the respondent decided not to pursue Option 3.
3. In paragraphs 14 and 15 of his witness statement, the applicant describes his views and his disappointment at the removal of, inter alia, Option 3. He stated :

In April 2005, it appeared to me that based, on the consultant reports and VicRoads Matrix Option 1 was inferior to Option 3 and that Option 4 was inferior to all other options. It was therefore the expectation of community groups, and most of the CRG (community and reference group), that Option 3 would be included in the Environmental Effects Statement (EES) process.

When the terms of reference for the EES process were released, Option 3 had been removed. This was of great concern to me and those affected by the decision, and this was reflected in the concerns people expressed in the initial directions hearing of the planning panel which are referred to in the Panel Report.

1. Construction work has now commenced in relation to the construction of Stage 3 of the Geelong Ring Road in accordance with Option 1. Mr Mottram, who is Manager for Planning and Investigation of the respondent, stated that the work has progressed to the point "of no return". This statement was challenged by the applicant through his counsel. However, it is quite apparent that work on stage 3 is well underway.

(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

1. Section 38 of the FOI Act states as follows :
   1. Documents to which secrecy provisions of enactments apply

A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications.

1. In relation to s 38, the enactment that the respondent is relying upon is s 92 of the Road Safety Act 1986, in particular s 90(2) : (a and b)

the relevant person that is information of a personal nature or that has commercial sensitivity for the person about whom it is kept; or

1. At the commencement of the hearing, Ms Ellyard, counsel for the applicant, conceded that insofar as the respondent was relying upon the exemption referred to in s 30(1) that the documents did disclose "matters in the nature of opinion, advice or recommendation" and that s 30(1)(a) was satisfied. However, she said she would be relying upon s 30(1)(b) in that she would be submitting that not releasing the documents would be contrary to the public interest.
2. Further, Ms Ellyard conceded that if she was not successful in relation to showing that not releasing the documents would be contrary to public interest pursuant to s 30(1)(b), then her client could not succeed in relation to the public interest override in s 50(4).

S 38 EXEMPTION INSOFAR AS IT RELATES TO S 92(2) OF THE ROAD SAFETY ACT 1986

1. It will be convenient if I deal with the personal affairs exemption relating to all the documents. It is clear that s 92(2) of the Road Safety Act prohibits the disclosure of information of a personal nature in the circumstances therein described. In contrasting s 92 with s 33 of the FOI Act, it is clear that s 92 does not have the extended meaning of personal information as appears in s 33(9) of the FOI Act. Section 33(9) was inserted into the FOI Act to prevent the disclosure of the names of agency employees. Without the constraint of sub-section (9) of s 33, the names of agency employees were not considered to be information of a personal nature. In Commissioner of Police v District Court of New South Wales [1993] 31 NSWLR 606, the Court of Appeal held that where the disclosure of the names of an agency's employee reveals no more than the fact that they were performing their public duties, this is not disclosure of their personal affairs. At p 638-639, Mahoney JA stated :

In the present case, the suggestion is essentially that what will be disclosed is that the person took part in the passage of information to Queensland. That, I think, is not part of 'the personal affairs' of the persons in question : it is part only of their public duties and the discharge of them. But it was submitted, at least at one stage, that the mere fact that a person, a public servant, performs a particular function or performed it on a particular occasion is part of 'private affairs'. Special cases apart, I do not think this would be so. I do not think that it is this which the exemption was intended to protect.

1. This was a position adopted by the then Administrative Appeals Tribunal, per DP Macnamara in Pat Millthorpe v Mt Alexander Shire Council (unreported 28 July 1997) at p 3 where the DP stated :

In State of Queensland v Albietz [1996] 1 Qd R 215, 221 De Jersey J of the Supreme Court of Queensland disapproved decisions of this Tribunal in Simmons v Victorian Egg Board (1985) 1 VAR 54 and Perton v Department of Manufacturing and Industry Development (1991) 5 VAR 149, 150 wherein it had been held that disclosure of the names of agency officers would entail disclosure of material to their personal affairs. His Honour held that the personal affairs of an individual do not include 'the name by which a person is ordinarily known', at least where the person is an agency officer. A unanimous New South Wales Court of Appeal came to the same view in Commissioner of Police of New South Wales v District Court of New South Wales (1993) 31 NSWLR 606.

1. Thus, I find for the purpose of s 92 of the Road Safety Act, the names of various officers and persons as disclosed in the disputed documents, do not come within the description of information of a personal nature as therein referred to.
2. As Ms Ellyard indicated that she did not require to have the email address or the telephone numbers of persons mentioned in the documents, in my view, s 38 of the FOI Act as applied to s 92 of the Road Safety Act does not prevent the names of persons referred to in the documents being released.
3. Considerable argument was put before me as to whether s 92 covered a situation where, the respondent was involved in road building. Ms Ellyard suggested that the embargo referred to in s 92 only went to matters of licensing and registration. However, because I have found that the names should be released, in any event, and are not exempt, I do not need to decide that point.

CONSIDERATIONS PURSUANT TO S 30(1)(b) OF THE FOI ACT

1. It will be remembered that the applicant, through Ms Ellyard, conceded that all the documents in dispute came within s 30(1)(a) and that therefore the matter that I need to decide in relation to this exemption was whether the documents pursuant to s 30(1)(b) would be "contrary to public interest".
2. In her submissions, Ms Ellyard correctly summarised certain matters that became apparent as a result of Mr Mottram's cross-examination. Those matters were :

(a) every stage of the development process was subject to public scrutiny and comment

(b) it is already public knowledge that the project passed through several stages of development before a final decision was taken on the route for section 3.

(c) the 'confidential information' said to be contained in document 16 is all disclosed in EES (Environmental Effects Statement)

(d) there was significant support for Option 3 during the panel process

(e) the panel found that Option 3 would have been worth further consideration had VicRoads so decided

(f) the Panel considered that the process leading to the removal of Option 3 could have been better handled.

1. Proper considerations for the release of documents in this situation was referred to in a formulation by Fagan J in Re Hulls and Victorian Casino and Gaming Authority (1998) 12 VAR 483 at 488. His Honour there stated:

Of course in the assessment of public interest under the section, there must be taken into account all factors bearing on the issue of whether disclosure of the document will be contrary to the public interest. The cases give guidance as to the kinds of factors to be taken into account. They include such matters as

• the right of every person to obtain access to documents as provided by s13 of the Freedom of Information Act
• the degree of sensitivity of the issues involved in the consideration
• the stage of the policy development process at which the communication was made
• whether the disclosure would be likely to inhibit frankness and candour in the making of communications
• whether disclosure would lead to confusion or unnecessary debate having regard to possibilities discussed
• disclosure of documents which give merely a part explanation rather than complete explanation for the taking of a particular decision

(See Re Howard and Treasurer (Cth) (1985) 3 ARR 169 per Davies J and Re Tanner and Department of Industry, Technology and Resources (1987) 2 VAR 65 per Judge Rowlands)

• the likelihood that disclosure of the documents would inhibit the independence of officers or the making of proper and detailed research and submissions by them
• the likelihood that disclosure would create mischief in one way or another such as a risk of mischievous interpretation

(See Re Western Mining Corp v Department of Conservation, Forests and Lands (1989) 3 VAR 150)

• the significance of the document eg whether it is or is not merely a draft document

1. Ms Ellyard correctly submitted that the respondent had the onus of proving that the release of the documents would be contrary to public interest so as to harm the public interest in some way. For this proposition, she referred to Thwaites v Department of Human Services (unreported VCAT 15.12.98).
2. However, both Ms Ellyard and Ms Hubble correctly pointed out that I must carry out a balancing exercise to determine whether disclosure would be contrary to the public interest. The competing considerations are the public interest in disclosure and the public's right to know against the public interest protecting the deliberative process of government agencies (see Ryder v Booth [1985] VicRp 86; (1985) VR 869).
3. It is within these principles that I will consider each of the nine documents that are in dispute.

DOCUMENT 2 - EMAIL AND DRAFT TABLE OF CONTENTS IN RELATION TO THE ENVIRONMENTAL EFFECTS STATEMENT

1. Mr Mottram described Document 2 in his witness statement as follows :

Sample document 2 is an email from me to an officer of the Department of Sustainability and Environment, and to VicRoads' Planning Studies Manager, dated 22 April 2005. The email attaches a draft Table of Contents and contains identifying information and contact details of both the officer of VicRoads, and the officer of the Department of Sustainability and Environment.

The email also refers to communications between myself and a member of an external organisation. The purpose of this part of the email was to seek confirmation of the length of the display period in the lead up to the panel's inquiry into possible options for section three of the project. The context in which these previous communications occurred, and the full content of those communications, is not apparent from the email. As such, I believe that the release of the email could give rise to unnecessary speculation or debate about matters, such as the content of those communications, which in my opinion are not relevant to the panel's ultimate decision.

The draft Table of Contents was prepared by my team for incorporation into the Environmental Effects Statement (EES) and proposed Planning Scheme Amendment (PSA) for the project. The EES was prepared in accordance with the Environment Effects Act 1978 (Vic) and the Environmental Protection and Biodiversity Conservation Act 1999 (Cth). The Amendment to the Greater Geelong Planning Scheme was prepared in accordance with the Planning and Environment Act 1987 (Vic).

The draft Table of Contents is a preliminary version of the Table of Contents that was ultimately released, and reflects the views of my team and the state of deliberations at a particular stage of the investigation process. The draft Table of Contents was superseded by the Table of Contents contained in the final EES, and differs substantially from the final Table of Contents.

1. In relation to the way the names of the persons referred to in this email should be treated, see paragraphs 14-18 inclusive hereof.
2. Ms Hubble conceded that the information contained in the email was "relatively mundane". However, she stated that it is "appropriate that officers be able to attend to such administrative and organisational matters without fear of scrutiny, unless a public interest is served by the document's release".
3. I agree with Ms Ellyard that the email is of an administrative nature and contains no policy details or information which, if released, could cause speculation or debate.
4. In my view, the public right to know, in this particular instance, outweighs the type of concerns about the public interest submitted by Ms Hubble. It is difficult to understand how the public interest could, in any substantial way, be harmed by the release of the email. In fact, in not releasing the email may damage the public's perception of the public service that there is "something to hide" when in fact there is not.
5. Under those circumstances, I intend to release the email - part of Document 2. However, in line with the concession made by Ms Ellyard in relation to telephone numbers and email addresses, the email addresses and telephone numbers in that document will be deleted.

1. In relation to the Draft Table of Contents, Ms Ellyard said that when this document is compared to the final version of the EES Table of Contents, which has been released, it is noted that there is little variation between that document and the Draft Table of Contents. She therefore said that :

The differences between the 2 versions are not substantial and would be readily understood by the public as the natural consequence of a document being refined.

1. In my view, the release of the Draft Table of Contents would add very little to the public's knowledge of the deliberative process that was undertaken and would, in no way, assist in the public debate. In fact, the release of this document even though it is marked "Draft" would lead to confusion in the minds of whoever was to read it and, in turn, would be likely to cause unnecessary debate. Thus, I see detriment rather than benefit in the release of the Draft Table of Contents.
2. Therefore, part of Document 2 will be released being the email without email addresses or telephone numbers, however the release of the Draft Table of Contents is refused.

DOCUMENT 8 - DRAFT CHAPTER 5 OF EES 'TRAFFIC AND TRANSPORT ECONOMICS' WITH EXCEL DOCUMENT, PROVIDED ASSESSMENT OF OPTIONS REPORT

1. This document contained an email which enclosed the document. Originally the email formed part of the documents in dispute. However, I was informed during the hearing that the email had been released to the applicant. Therefore, I do not need to consider the email further.
2. Mr Mottram, in his witness statement, described Document 8 in the following terms :

Sample document 8 is an email from me, dated 10 May 2005 to my personal email address, which was sent to enable me to work on the attached document from home. I understand that this email has been released to the applicant. The email attaches a draft Traffic and Transport Economics report and an excel document containing a draft Provisional Assessment of Options for stage 3 of the project.

The draft Traffic and Transport Economics report was written by myself and the Planning Studies Manager within my team, for inclusion as Chapter five in the EES. The draft Traffic and Transport Economics report contains opinions, advice and recommendations relating to various options for section three of the project, and was an early part of drafting of the EES. The report has been superseded by chapter five as published in the EES.

The draft Provisional Assessment was prepared within my team for inclusion in a report prepared for submission to the Project Review Committee of VicRoads. The draft Provisional Assessment is a table that contains a colour code ranking the level of performance of various options for stage three of the project. The draft Provisional Assessment was superseded by the Provisional Assessment that was provided to the Project Review Committee of VicRoads.

The draft Traffic and Transport Economics report, and the draft Provisional Assessment reflect the views of my team and matters being deliberated at a particular stage of the investigative process. These views do not necessarily reflect, or reflect accurately, the recommendations that ultimately led to the final draft of the two documents.

1. Ms Ellyard noted that the final version of this document is in the public domain and was an exhibit at the hearing before me. Ms Ellyard also stated that it was obvious to the reader that it was an incomplete document and therefore not the final version; therefore she said it could not create any confusion. Further, she stated that the second part of the document is a draft Provisional Assessment which is evidently a draft and which will not confuse the public or create unnecessary debate.
2. It is clear from the evidence of Mr Mottram that this document came into being as a working document which was intended to be a basis for review and reflection. This is similar to the position faced by Duggan J in Dean v Department of Justice [2001] VCAT 2031 (7 November 2001). His Honour there found that in the circumstances there the public interest militated against disclosure of a document which was simply a draft and not a final document.
3. It is clear on the evidence that this document was prepared by Mr Mottram and his team as a working document in circumstances where it was intended there would be a final version at a later time. It is important that public servants have the opportunity of drafting their documents in order to both consider whether what they have stated is correct and to enable them to review a situation. Public servants should be allowed to do this type of drafting, in the knowledge that the document which they drafted would not be put in the public domain. It matters little that the final version of this document which was tendered into evidence and released to the public has a number of similarities with Document 8. The fact is that it is important that a freedom be given to a drafter of the documents to make as many drafts as he or she considers desirable in order to create what they consider to be the best finished product.
4. The fact that this document has a number of blanks, in my view, should not encourage it to be released, but the opposite. A reader reading a document with a number of blanks, is liable to become confused and gain the wrong impression of what the writer is actually trying to say.
5. I find it very difficult to understand how an incomplete draft document, such as Document 8 can, in any way, add in a positive way to public debate in general or, in this particular instance, as to whether Option 3 should have been accepted.
6. I also note that it was common ground between the parties that there had been a considerable amount of construction work performed on section 3. In fact Mr Mottram stated in relation to a question from me that it was "beyond the point of no return". Ms Ellyard stated that I should not accept that it was beyond the point of return because Mr Mottram's evidence was from a person who was doing the planning rather than the construction. However, even on the applicant's own description of the work, it appears that a very substantial amount of work has already been performed. Therefore, in my view, it is unlikely that anything but the most serious of matters would cause an alteration in the plan at this stage from Option 1 to Option 3 or any other option for that matter.
7. Having made this finding, in my view, the release of this document would not clear the air as Ms Ellyard suggested it would, referring to a decision of mine in Adoption Origins Victoria (Inc) v Department of Human Services [2004] VCAT 1517 (16 August 2004). In that particular instance, I ordered the release of a document which explained why the government failed to proceed with an adoption inquiry which it had undertaken to hold. That is a very different situation to the present where I have formed the view that the release of this draft document would not help public debate particularly in light of the fact that over the effluxion of time and a number of events have either diminished if not extinguished its importance.
8. In the circumstances, which I have outlined above, I take the view that the release of Document 8 would be contrary to public interest and thus the release will be refused.

DOCUMENT 16 - EMAIL FROM CLIVE MOTTRAM TO PLANNING OFFICER OF THE CITY OF GREATER GEELONG, ATTACHING A CONCEPT DRAWING

1. Document 16 is described in the witness statement of Mr Mottram as follows :

Sample document 16 is an email from me to a planning officer at the City of Greater Geelong, dated 16 May 2005. The email contains the personal details of the officer at the Greater City of Geelong, including name and contact details, and identifying information and contact details of a VicRoads' officer.

Attached to the email is a concept drawing showing a map of Greater Geelong. The purpose of concept drawings is to identify whether possible improvement projects meet basic requirements to ensure their feasibility should the project be developed further. The concept drawing in this case contains illustrations of various concepts super-imposed onto a map of the Greater Geelong area.

The drawing was prepared by VicRoads in a consultation with the City of Greater Geelong and shows the conceptual alignments of various options of section three of the project, as well as a corridor that was being considered for connection to the Surf Coast Highway. The drawing also contains concepts such as a possible location for quarries, and possible areas of future urban development. In the course of the consultation with Council, VicRoads was provided with information that reflected some of the Council's thoughts as to the future urban growth in the area of Armstrong Creek. I understand that the Council provided this information to VicRoads in confidence and for VicRoads' internal purpose only.

At the time the drawing was prepared, the information disclosed by the Council to VicRoads had not been made public. While I understand that the Council subsequently held inquiries into urban development in the Armstrong Creek Growth Area, I do not know whether the information was disclosed in the course of those inquiries.

The illustrations contained on the map relating to the corridor connecting the Surf Coast Highway is an earlier version of the alignment that was finally adopted in the amended Greater Geelong Planning Scheme. Many of the other illustrations on the map are only preliminary concepts and may not be incorporated into final policy. It is possible therefore that the release of this map could mislead people as to the future use of land in the Greater Geelong area.

1. The email attached to this document falls into precisely the same category as Document 2 (see paragraphs 26-30 inclusive hereof) and therefore I will not repeat my reasons for releasing that document but this document should be treated in the same manner. That is, released with all the information except email addresses and telephone numbers.

1. A number of exhibits were placed before me which were very similar but not identical to the concept drawing in Document 16. On examination of the concept drawing in Document 16, there is little in that document that was not disclosed in the exhibits that were put before me and which exhibits are in the public domain.
2. The respondent submitted that as Document 16 was given to the respondent by the City of Geelong on a confidential basis, it should not be released. Ms Hubble relied on the decision in Hulls v Department of Treasury and Finance (1998) VCAT 557 (15 January 1999) for the proposition that there is a public interest in confidential information that is entrusted to public servants, remaining confidential.
3. However, the statement from Mr Mottram (which I have quoted above) admits that the council held inquiries in relation to Armstrong Creek Growth Area. He states that he does not know whether the document was made public during those inquiries. It would have been a relatively simple matter for the respondent to obtain this information. However, it did not. Under those circumstances, I place little weight on the part of Mr Mottram's evidence which suggests that as the document was given to the respondent in confidence, it should remain confidential. Further, I agree with Ms Ellyard when she questioned the respondent's bona fides in claiming the confidentiality from the council, because no exemption was claimed pursuant to s 35(1)(b) of the Act.
4. Thus, as most of the important information contained in this document has been made public in any event, I see little public interest, in not releasing this document.
5. Thus, Document 16 will be released in its entirety save and except that the email addresses and telephone numbers contained in the email attached thereto will be deleted.

DOCUMENT 18 - EMAIL FROM THE PLANNING STUDIES MANAGER OF THE PLANNING INVESTIGATION TEAM OF THE RESPONDENT TO CONSULTANTS ENGAGED BY THE RESPONDENTS TO WORK ON THE GEELONG BYPASS PROJECT.

1. Mr Mottram in his witness statement described Document 18 as follows.

Sample document 18 is an email from the Planning Studies Manager of VicRoads' Planning Investigations to a number of consultants engaged by VicRoads.

The email contains personal details of a VicRoads officer and a number of external consultants, including names and contact details.

The purpose of the email was to provide the consultants with detailed instructions to assist them in their investigations, and to ensure that their investigations complied with VicRoads' requirements. The complete instructions given to each consultant, and the broader context in which the instructions were given, are not apparent from the email.

1. In relation to the personal information contained in this document, for the reasons which I have previously stated, it will be treated in the same way as the email attached to Document 2 (see paragraphs 26-30 inclusive hereof). That is, the personal information will be released save and except for the email addresses and telephone numbers.
2. Ms Hubble submitted in relation to Document 18 that there was no public interest in the release of the briefing instructions to the consultants and the information does not bear directly on any public controversy. Further, she stated that in future an agency may be constrained in the instructions which it commits to writing should the communications be disclosed.
3. Mr Mottram in his evidence agreed that there was nothing in the email that would be written differently had those that wrote it known that it may be made public.
4. Further, it is inconceivable that when public servants deal with outside consultants, that instructions will be given in any other way other than writing. It is most unlikely that government departments or consultants who are employed by them would give or accept instructions other than instructions in writing.
5. It is most unlikely that making this document public would, in any way, affect further commercial dealings between government departments and consultants. It is not suggested that the information contained in this document is, in any way, sensitive.
6. Further, I do not believe that there is anything in this document that would mislead the public or would in the future detract from open and frank consultation with consultants. Therefore, I find that the exemption in relation to this document has not been made out.
7. Thus this document will be released save and except for the email addresses and telephone numbers contained therein.

DOCUMENT 20 - EMAIL FROM PLANNING STUDIES MANAGER TO 'TEAM A' CONTAINING WORKING COSTS ESTIMATES FOR VARIOUS OPTIONS FOR SECTION THREE OF THE GEELONG BYPASS PROJECT

1. This document has been described by Mr Mottram in his witness statement as follows :

Sample document 20 is an email from Planning Studies Manager to 'team A', dated 20 May 2005. Team A reported to Planning Studies Manager who in turn reported to me. Team A was responsible for conducting the EES and Planning Scheme Amendment process for Geelong Bypass Section 3.

The email contains a series of working cost estimates for various options for section three of the project. These cost estimates later changed, so are not an accurate representation of the final estimated cost of each of the option considered.

1. In relation to the personal information contained in the email, the reasons stated in relation to Document 2 (see paragraphs 26-30 inclusive hereof) that exemption is not made out save and except for email addresses and telephone numbers. It is noted that the main input in this document is costings. The evidence that was put before me shows that there have been various costings released at different times. For example, Document 84, which was released at the commencement of the hearing, contains costings. Further, there have been public statements in relation to costings for various options.
2. Ms Hubble stated that the document should not be released because there is no public interest in releasing provisional costs estimates (subsequently superseded) which have been circulated for internal use particularly where the document does not reveal that they have been superseded or reveal why. She concluded from this that the document could be confusing and would not assist in any public debate.
3. I agree with Ms Ellyard that it would come as no surprise that costings do change throughout a project. Further, in my view, it is unlikely that this document would create any unnecessary speculation as it would be obvious that the costings would have changed over time. Further, it is clear from the document itself that the costings therein referred to would not be final costings.
4. Thus, for the reasons I have given, the exemption is not made out in relation to Document 20 save and except for email addresses and telephone numbers which should be deleted prior to releasing the document.

DOCUMENT 61 - HANDWRITTEN DIARY NOTES OF MR MOTTRAM

1. This document has been described by Mr Mottram as follows :

Sample document 61 is a collection of handwritten 'running' notes contained in diaries. The notes provide a record of meetings that I attended, and telephone conversations that I had, in my role as Manager of Planning Investigations. All notes are used for my future reference in relation to meetings that I have attended.

The notes were created by me for personal reference in relation to meetings on a number of projects, including the Geelong Bypass Project. The notes contain my personal opinions as well as opinions of others and are based purely upon my recollection of events. The notes refer to preliminary matters and discussions that do not form part of the final decision making process.

The notes contain informal opinion and information discussed in planning investigations. The notes are for my own use and would mean little to anybody else who read them. As information notes, they are necessarily incomplete and may contain material that could mislead a reader if that person did not fully understand what I had written. If the notes were released I would no longer feel free to keep such notes in the future, which I think would have an adverse effect on how I go about completing policy projects in the future.

1. Ms Ellyard submitted that the document largely comprises notes of public hearing and that Mr Mottram agreed in his evidence that he will continue taking notes even if these were released. However, she stated that the fact that the notes are incomplete would be well understood by the public and their release would not be contrary to the public interest.
2. The applicant also relied on a decision of Judge Rowlands in Re Borthwick and Health Commission of Victoria (1985) 1 VAR 25 at 31 for the proposition that notes taken by an officer that are rough and may be incomplete would be appreciated by 'all right thinking people' and would not be misleading or undermine the deliberative process of government.
3. However, I have attempted to read the document and found it very difficult to interpret and, on occasions, I have not even been able to decipher the words that have been used or understand various shorthand notations that had been put into the notes. I do not believe releasing these notes in part would make the situation any clearer. Therefore, I have come to the conclusion that anyone reading these notes, other than Mr Mottram, may obtain the wrong idea entirely of what the notes were attempting to convey. I note that the notes were made for Mr Mottram's own use to help him in his future recollection.
4. Further, I agree with Ms Hubble that if these notes were released, they would be very likely to deter people in the position of Mr Mottram from making or maintaining such notes, which could inhibit good decision making in the future.
5. As a result, I have come to the conclusion, after balancing the matters put by both sides, that it would be contrary to public interest to allow such notes to be released. Therefore, insofar as Document 61 is concerned, the decision of the respondent will be affirmed.

DOCUMENT 71 - DRAFT MINUTES OF A MEETING OF THE PROJECT REVIEW COMMITTEE OF THE RESPONDENT

1. Document 71 is described by Mr Mottram in his witness statement as follows :

Sample document 71 are draft Minutes of a meeting of the Project Review Committee of VicRoads, held on 18 May 2005. The purpose of the Project Review Committee of VicRoads was to assess recommendations for the development of stage three of the project. The draft minutes contain the names of the various people who attended the meeting.

The draft Minutes were generated by the Secretary to the Committee and I understand, circulated to attendees for comment before being finalised. I understand that the draft Minutes were superseded by final minutes of the meeting, and therefore do not necessarily reflect the Minutes finally adopted s a record of the Committee's meeting.

The draft Minutes disclose opinions, advice and recommendations expressed by or made to the Committee, and elements of the Committee's deliberations. However, the draft Minutes do not disclose these matters in full or in context. For example, the reasoning of the Committee is not reflected in the draft Minutes. The substance of the recommendations being considered by the Committee is also not contained in the draft Minutes.

1. In relation to Document 71, Ms Ellyard stated :

This email is said to be a draft but in the absence of any final version disclosed in the respondent's full schedule of documents the Tribunal should take the view that no final version was prepared.

Mr Mottram did not point to any area where the draft was inaccurate or differed from what he said was the final version.

1. Ms Hubble has said that the draft minutes should not be released because there is no public interest in releasing such document and that it does not contain informative information and it is unlikely to clear the air in matters of public concern.
2. The fact that no final minutes were prepared, does not prevent these minutes in question from being "draft" minutes. The term "draft" implies that at the time the minutes were prepared, they were not intended to be final.
3. However, on the basis of the evidence before me, it would appear that there were in fact no final minutes prepared (even though Mr Mottram stated otherwise). Therefore, I must assume that Document 71 is the only record of the meeting of 18 May 2005.
4. The question of whether these documents should be released is not as Ms Hubble put it that "there is no public interest in release" but whether it would be "contrary to public interest" to release such a document.
5. Bearing in mind that there appears to be no other minutes of 5 May 2005 meeting, it is difficult to see how these minutes could be confusing or misleading to a reader as is often the case with draft documents.
6. In my view, it may be that the matters in this document shed light on the reasoning of the respondent which reasoning if made public would not be contrary to the public interest. In fact, the release of this document may help clear the air and may assist in the process of the respondent becoming more transparent.
7. Thus I find that the release of Document 71 is not contrary to the public interest and will be released.

DOCUMENT 82 - EMAIL (RELEASED) WITH ATTACHMENT AND RECORD OF MEETING CONTAINING DESIGN WORK LOAD FOR SECTION 3

1. It should be noted that the email attached to the document with the subject matter being "design Workload" has already been released so I do not need to consider the same further. But I do need to consider whether the release of the document itself with the subject matter "Design Workload" would be contrary to the public interest.
2. Mr Mottram described Document 82 as follows :

The Minutes of Meeting contains a table with reference to various matters that were discussed relating to design workload for section 3 of the project. The information in the minutes of meeting are technical in nature and refer to drawings which are not apparent from the minutes. The record of discussions express opinions and deliberations relating to matters that are not apparent from the record of meeting. These opinions are often expressed using terms of reference specific to the project.

1. Ms Ellyard said that even though the document was of a technical nature, it was not so to the extent that it would confuse or mislead the public. She submitted that the context is clear.
2. On examination of the document, I found the same very difficult to understand and it contained a lot of technical information.
3. I also agree with Mr Mottram that an outsider who examined this document may have a misleading impression because that person would not be able to appreciate or evaluate what they are reading. It is clear from the document that matters therein referred to are not properly explained and would not make any sense to a reader out of the context for which the document was created.
4. Put another way, if this document was released, in my view, it would create far more confusion than if the document was not released. Because the document would create confusion and would be of little assistance in the public debate, it follows that the release of such document would be contrary to the public interest and as such, such release is refused.

DOCUMENT 85 - EMAIL FROM CLIVE MOTTRAM TO A PERSONAL EMAIL ADDRESS ATTACHING DRAFT ASSESSMENT OF THE PROPOSED PLANNING SCHEME AMENDMENT AGAINST THE STATE PLANNING POLICY FRAMEWORK

Sample document 85 is an email from me, dated 6 Junem2005, to my personal email address, which was sent for the purpose of enabling me to work on the attached document from home. Attached to the email is a draft Assessment of the proposed Planning Scheme Amendment, that would be required to facilitate stage 3 of the project, against the State Planning Policy Framework (SPPF). I understand that the email has been released to the Applicant.

The purpose of the draft Assessments was to seek ministerial authorisation for the necessary amendment to the Planning Scheme. The final version of the document was created for submission to the Minister Planning and intended to explain how the proposed Planning Scheme Amendment would comply with the SPPF.

The draft Assessment is incomplete and reflects a preliminary assessment only of certain aspects of the proposed Planning Scheme Amendment. It is also a summary document, and does not explain the reasoning behind the assessments.

Further, as the Assessment is in draft form, it does not fully or accurately reflect the Assessment contained in the final version submitted to the Minister.

1. This is clearly a draft document which was created by Mr Mottram which he emailed to his home in order that he would be able to work further on the same. Further, it is only partially complete. The fact that Mr Mottram could not identify in his evidence particular parts which he said were inaccurate does not, in any way, alter its nature and the purpose for which it was created.
2. This document is very similar in its nature to what I considered in Document 8 (see paragraphs 37-40 inclusive hereof), and the reasoning that I applied there is equally applicable here and, as a result, I refer to what I have said in relation to Document 8. I do not feel it is necessary to again repeat my reasons here.
3. I agree with what Mr Mottram has said in his statement that "the draft assessment could be misleading if it was released. Its release could cause unnecessary speculation and debate about matters that have now been fully determined".
4. Further, I accept what Mr Mottram has said that to release a draft such as this would in future inhibit the work of the public servants because they would feel constrained about making draft documents for their own analysis which, in turn, would not help in good decision making.
5. Therefore, I find that the release of this document is contrary to public interest and it will not be released.

1. A. The email part of Document 2 is to be released with email addresses and telephone numbers deleted but the Table of Contents referred to therein is exempt from release.

1. In relation to Documents 8, 61, 82 and 85 the decision of the respondent is affirmed.

1. Documents 16, 18 and 20 will be released except the email addresses and telephone numbers will be deleted.

1. In relation to Document 71 the decision of the respondent is varied by release of the document.