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Applicant: Mr Adams QC with Mr Wartski of counsel instructed by Mr A McIntosh

Respondent: Mr Fleming of counsel instructed by Mr S Rajah

1. On 31 August 2001 the applicant, Louise Asher MP, requested access to "all documents, including emails, file notes, memos, correspondence, briefing papers and reports relating to contracts and/or agreements with Shannon's Way".

2. On 17 October 2001 the respondent Victorian WorkCover Authority ("VWA") replied to Ms Asher's request for access. It advised it had determined to grant her partial access but informed her that in relation to documents not released, exemption was claimed pursuant to s.30(1)(a) and (b), s.34(1)(b) and s.34(2)(a).

3. On 22 October 2001 Ms Asher sought internal review and her request was responded to on 2 November 2001. The respondent informed her it had made a fresh decision and added s.35(1) to its list of exemptions.

4. Ms Asher filed an application to review that decision on 7 January 2002.

5. The matter now relates to twelve documents, Document No. 8 in the series having been excluded from consideration.

Agreement for Supply of Advertising Services - VWA & Shannon's Way Pty Ltd (pages 8 & 9) dated 5.9.01

Board of Management Minutes of Meeting held on 31.8.01

Board of Management Minutes of Meeting held 30.4.01

Tender Shortlist bearing two dates 2.4.01 and 4.4.01

Contract between VWA and Shannon's Way Pty Ltd dated 19.10.2000

Document headed "Examination of the `WorkCover' Brand & Recommendations for Brand Buildings"

7. For reasons not explained to the Tribunal the respondent chose not to file the complete documents for which exemption was claimed as directed by the Tribunal. Instead it merely filed those parts of the exempt documents for which exemption was claimed. For instance document 1 as filed with the Tribunal is an excerpt from a document entitled Agreement for Supply of Advertising between VWA and Shannon's Way Pty Limited dated 5 September 2001 expressed to commence on 14 May 2001. The Tribunal was able to ascertain this because the complete document (excepting paragraph 13) had been released to the applicant under FOI and the applicant's counsel made it available to the Tribunal.

8. Failure properly to comply with the Tribunal's orders makes the task difficult for the Tribunal as it is denied the opportunity to understand the context in which any particular document and its claimed exemptions might fit.

9. Section 30 of the Freedom of Information Act 1982 (`the Act') provides relevantly as follows:

(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

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

10. It can be seen that the exemption requires proof of two things. First the document must be shown to fall within the general description of an "internal working document", and second it must be shown that its release must be contrary to the public interest.

11. Section 34 of the Act provides as follows:

(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.

(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.

(ii) in the case of an agency engaged in trade or commerce - information of a business, commercial or financial nature -

that would if disclosed under this Act be likely to expose the agency unreasonably to disadvantage;

(b) it contains the results of scientific or technical research undertaken by an officer of an agency, and -

(i) the research could lead to a patentable invention;

(ii) the disclosure of the results of an incomplete state under this Act would be reasonably likely to expose a business, commercial or financial undertaking unreasonably to disadvantage; or

(iii) the disclosure of the results before the completion of the research would be reasonably likely to expose the agency or the officer of the agency unreasonably to disadvantage; or

(c) it is an examination paper, a paper submitted by a student in the course of an examination, an examiner's report or similar document and the use or uses for which the document was prepared have not been completed.

12. Section 34 was has undergone amendment in recent years. The Freedom of Information (Miscellaneous Amendments) Act 1999 altered the thrust of section 34(1) by requiring not only that the information to be disclosed be of a business, commercial or financial character but also that its release would expose the undertaking not just to some disadvantage but to unreasonable disadvantage.

35. Documents containing material obtained in confidence

(1) A document is an exempt document if its disclosure under this Act would divulge any information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister, and -

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

(b) the disclosure of the information under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.

(a) acquired by an agency or a Minister from a business, commercial or financial undertaking; and

(b) that relates to trade secrets or other matters of a business, commercial or financial nature.

* Peter Anthony Derbyshire, a director of the consulting firm Paxton Partners Pty Ltd;

* Marie Therese Ferris, Finance and Administration Manager of Shannon's Way Pty Ltd;

* Peter Raymond Kelly, the Manager, Marketing and Communications, of the respondent VWA; and

* Anne Louise Randall, the Director, Marketing, of the respondent VWA.

15. In general terms this application concerns a tender process conducted by the respondent.

16. Ms Randall gave the Tribunal the background to the tender process which involved the following steps:

* On 16 February 2001 expressions of interest were invited from a number of advertising agencies;

* Paxton Partners Pty Ltd was engaged on the same day to act as probity auditor in relation to the tender process;

* This was followed by the evaluation and short-listing of the expressions of interest received;

* The formulation of a request for tender then occurred;

* The tenders subsequently received were evaluated by appropriate VWA senior staff;

* The tender evaluation committee made a recommendation to the respondent's board of management;

* On 30 April 2001 the board made its decision in relation to the preferred tenderer.

17. It seems that six short-listed agencies submitted formal tenders and the outcome of that process was a unanimous recommendation that the submission and presentation by Shannon's Way was by far the best. The committee recommended to the respondent's board of management that Shannon's Way be appointed as the respondent's advertising agent to provide services pursuant to a three-year non-exclusive contract.

18. Ms Randall's statement of evidence in relation to documents 1, 2, 3, 4, 5, 6, 8, 10 and 12 was identical with that of Mr Kelly. Mr Kelly also set out his understanding of the tender process in fairly similar vein to Ms Randall.

19. Ms Ferris gave evidence on behalf of Shannon's Way. The general thrust of her evidence was that disclosure of certain financial details would disadvantage her firm because it would disclose matters that were confidential to her company and VWA. She stated that Shannon's Way entered the tender arrangements expecting the commercially sensitive information of "this type" would be kept confidential to the greatest possible extent. In her opinion disclosure would give the company's competitors a critical insight into her company's way of business such as to enable tenderers for any extension of the VWA contract to win business that might otherwise have been won by Shannon's Way.

20. She also acknowledged that she was aware there was a "statutory provision that mandates formal disclosure of the amount paid in excess of $100,000" and said her company accepted that element of public element of accountability of the tender process. She put it that "having met the requirements of disclosure of the global contract figure........[it] believes it has met and exceeded the legitimate requirements of public accountability in connection with its commercial contract with VWA".

21. The Tribunal also heard evidence from Mr Peter Derbyshire a partner in the firm of Paxton Partners Pty. Ltd., the firm hired to perform a probity audit of the tender process. His evidence related to the hourly rate and remuneration detail contained in his letter to VWA dated 26 February 2001. He told the Tribunal that his firm's fees were a matter of some commercial sensitivity because hourly rates vary from job to job according to the class of work. He stated that "he was not aware of any plausible public interest that might be served in insisting that our best interests in this matter be set aside."

22. Document 1 is the agreement for provision of advertising services already adverted to in these reasons. Exemption has been claimed pursuant to section 34(1)(b), 34(2)(a) and 35(1). Of course section 34(2)(a) does not contain a basis for exemption - it is the section that details the matters the Tribunal must take into account in forming a conclusion about an exemption claimed under section 34(1)(b).

23. It is clear from the evidence of Ms Ferris that the information contained in paragraph 13 of document 1 did not form part of the tender documentation and was the product of post-tender negotiation.

24. Section 34(1) requires me to find that disclosure of this document would (a) disclose information acquired by an agency (in this case VWA) from (b) a business, commercial or financial undertaking (Shannon's Way) where the (c) information relates to other matters of a business, commercial or financial nature and (d) disclosure would be likely to expose Shannon's Way unreasonably to disadvantage.

25. In Thwaites v Metropolitan Ambulance Service (1996) 9 VAR 427 at 473 Deputy President Galvin stated:

[The contracts between Metropolitan Ambulance and the successful tenderers] do not so much consist of information acquired by the agency from a business, commercial or financial undertaking but rather constitute the record of the transaction between the parties. Such documents, recording the agreement as to the arrangements between the parties, are, in effect, the contractual outcome of negotiations. However, at the same time, they contain information of a business, commercial or financial nature. While s 34(1)(a) does not have application, s 34(4)(a)(ii) does.

26. In another Thwaites and Metropolitan Ambulance case (unreported, AAT of Vic, 13 June 1997) Ms Preuss and Mr Levine considered a like matter and concluded that, whilst the material in the contract fell within s 34(1)(b) at the time the parties to the contract were negotiating the agreement in that it disclosed the terms upon which a party was prepared to do business, the information changed its character when it became embodied in a legally enforceable agreement. It was, they said, the contractual outcome of a business transaction between the parties.

27. I had cause to consider a like matter in Thwaites v Department of Human Services (1999) 15 VAR 1 where I expressed a similar view.

28. The present situation is directly analogous with the three Thwaites cases and in my view the respondent has not "acquired the information" sought to be exempted. In coming to that view, the evidence of Ms Ferris was particularly pertinent; that is, her evidence that the information was not contained in the original tender document but rather was developed (as a result of negotiations) after the contract was awarded to Shannon's Way. But if I have erred in my reasoning, there is a further step along the way before the exemption under section 34(1)b) can be made out. It is necessary for the Tribunal to conclude whether or not disclosure would be likely to expose the undertaking unreasonably to disadvantage.

29. The requirement of "reasonableness" was inserted by the 1999-amending Act referred to earlier. The Minister's second reading speech delivered to the House on 11 November 1999 contained a paragraph especially referring to the matter of commercial confidentiality. The Minister had this to say -

The Freedom of Information Act provides an exemption for a range of information relating to business, commercial or financial matters that is obtained by government agencies from business organisations. This exemption has been employed in the past, under the guise of commercial confidentiality, to prevent disclosure of documents that should be open to public scrutiny.

The bill narrows the ambit of this exemption. Under the proposed amendments documents will be exempt only if disclosure of information relating to business, commercial or financial matters would be likely to expose a business organisation unreasonably to disadvantage. This narrower exemption will operate in conjunction with the government's policy commitment to post all contracts for the delivery of services to the community on behalf of the government on the Internet. This will ensure that Victorians are aware of and better able to scrutinise business undertakings entered into by the government.

30. It is in the context of that explanatory framework that I turn to what it means by the phrase "unreasonable disclosure" as is contemplated in section 34 (1)(b). In Colakovski v Australian Telecommunications Corporation [1991] FCA 152; 100 ALR 111, the General Division of the Federal Court of Australia considered the point in a case involving the personal affairs exemption. That case concerned the identity of a nuisance caller and the appellant sought the information which the respondent had gathered from tracing the calls. At p.123 Heerey J stated:

Turning to the criterion of unreasonableness prescribed by the s 41(1) exclusion, it seems to me that attention is directed, amongst other things, to whether or not the proposed disclosure would serve the public interest purpose of the legislation, which is to open to public access information about government which government holds, this being information which in truth is held on behalf of the public. I do not think it is necessary in order to make out the s 41(1) exclusion that there is some particular unfairness, embarrassment or hardship which would enure to a person by reason of the disclosure. Such matters, if present, would doubtless weigh in favour of the exclusion. But if the information disclosed were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, I think disclosure would be unreasonable.

31. In Page v Metropolitan Transit Authority (1988) 2 VAR 243, 245-6 Judge Jones considered whether disclosure might be unreasonable in a case (like Colakovski) involving the personal affairs exemption. His Honour said:

[The question is whether disclosure of this information would be unreasonable]..this requires a balancing of interests: the right to personal privacy of an individual whose personal affairs may be unreasonably disclosed by granting access to the information and the object of the Act to extend as far as possible the right of the community to access to information in the possession of the Government or Agencies.......More particularly, this balancing of interests requires a consideration of all the circumstances, including the interest that the applicant has in the information in question, the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. It is apparent that the purposes of s 33(1) of the Act is to prevent the unreasonable invasion of the privacy of third parties.

32. In considering this issue it is necessary that I refer to the two types on information contained in the paragraphs sought to be withheld. First there are some dollar amounts and second, there is some narrative accompanying the figures.

33. Ms Ferris told the Tribunal that disclosure of the narrative would reveal to competitors the way in which the firm did its business and the way it had structured its service delivery. In relation to the "dollars" she said it was not the disclosure of the total sum of the contract that was a problem; rather it was the component parts. Of course this evidence was delivered in the face of her knowledge (conceded in cross-examination) that nowhere in the entire documentation before the Tribunal does the total sum potentially payable rate a mention at all. In relation to the narrative I do not accept that its revelation would disclose anything of special import or anything that would place any competitor in an unique position so as to defeat Shannon's Way in any future tender. The narrative merely details what service is to be provided for what sum of money in a fairly trite and innocuous fashion. In her statement Ms Ferris said that she "could not imagine any public interest (as distinct from the private interests of our competitors) that might be served by disclosure."

34. That evidence to my mind displays a narrow and clouded view of what is expected of private sector companies dealing with government. As Mr Adams put it, the bar is lifted in these circumstances; practices that are completely acceptable, and indeed expected between private sector organisations take on a different hue when the contract is between public and private entities and public money is involved.

35. It seems to me that what has to be balanced in determining whether release would unreasonably disadvantage Shannon's Way is:

* The government's stated policy that all major contracts should be transparent and available to the public;

* The public interest in open and accountable government especially in the expenditure and administration of a scheme set up to benefit injured workers;

* The fact that the public will not be able to scrutinise the price of this contract until at least October 2004 by which time the various annual reports will finally have disclosed the total amount paid during the three years of the contract, assuming each year's payment is in excess of $100,000.00.

* The fact that this contract has already run for one year;

* The fact that the contract in question leaves open for further negotiation price-setting for a number of activities;

* The fact that this is a 3-year non-exclusive contract.

* The evidence that Shannon's Way will be disadvantaged in the market place in future tenders because competitors will know the pricing structure.

36. Overall I have come to the conclusion that there is greater weight to be placed on the need for transparency and accountability than on the tenuous evidence that the company will be disadvantaged vis-à-vis its competitors. Although the information is not generally available to the company's competitors, that is only one of the factors for consideration and that factor by itself does not militate against disclosure. I have concluded that the information can be disclosed without causing substantial harm to the competitive position of the undertaking (see S 34(2)). I find that release of the document in full will not be likely to expose the company unreasonably to disadvantage.

37. Section 34(4) was not claimed as an exemption, neither specifically in relation to this document, nor in the section 49 material filed with the Tribunal. I am not sure whether this was an oversight by the respondent although I suspect not. Mr Fleming did mention the sub-section in his final submissions but more specifically in relation to the tender documentation and not in relation to anything else. Certainly the legal contentions contained submissions in relation to section 34(4) but not linked to any particular document. Mr Fleming addressed me in relation to whether or not the respondent was engaged in trade and commerce, an argument which could only pertain to section 34(4) in the circumstances of the instant case.

38. If indeed the claim had gone forward in relation to Document 1, the requirement in relation to information "acquired" by an agency would fall away. Sub-section (4) only requires that the document contain information of a business, commercial or financial nature. Certainly this document falls within the general description. The salient difference between sub-section (1) and (4) is that in the latter the Tribunal must be satisfied that disclosure of the document will expose the agency unreasonably to disadvantage in order for the exemption to be made out.

39. Neither Mr Kelly nor Ms Randall was able convincingly to enunciate any disadvantage that might flow to VWA from disclosure of the terms of the contract, as distinct from the tender documents. I do not accept their evidence that "VWA's ability to attract tenders from private sector firms like Shannon's Way would be imperilled if contract terms reasonably believed by the parties to be confidential were made public."

40. Likewise I was unimpressed by their evidence that "VWA's ability to attract future tenders for advertising services on the most competitive financial basis would be damaged if details of the present successful tenderer's financial was disclosed. The details of remuneration referred to in the documents would almost inevitably become known throughout relevant parts of the advertising industry and would be a benchmark against which to structure future financial bids."

41. This is pure speculation. Had the advertising agency concerned (or indeed any other advertising agency) given credible evidence that it would not tender in the future because its remuneration details might become public I might have viewed the subject differently. But no one gave such direct evidence.

42. Market forces being what they are I can see no way in which VWA will suffer any detriment or disadvantage (unreasonable or otherwise) in any of its present or future advertising contracts if this paragraph of document 1 is disclosed. In my view, even if the respondent had meant to include this exemption in relation to this document in its section 49 statement, the exemption would not have been made out.

43. Exemption is also claimed pursuant to section 35(1). Whether or not paragraph 13 can be said to have been information communicated in confidence, there is no credible evidence before the Tribunal that disclosure would be likely to impair the ability of VWA to obtain similar information in the future. To suggest otherwise is nonsense. Companies and individual will continue to deal with VWA, they will continue to negotiate terms, they will continue to set their prices and they will doubtless continue to provide narrative description for services delivered whether or not this contract is divulged. There being no evidence to suggest otherwise, this exemption is not made out.

44. But in any event it is clear from section 35(2) that this exemption is not to apply in circumstances such as the one before me, the inference being that Parliament's intention was that such claims were to be dealt with under the compendious section 34, the section dealing with commercial information.

45. Document 2 is a minute of the 137th meeting of the VWA Board of Management held on 31 August 2001. The document details which which directors were present, who was in attendance and deals with the appointment of Shannon's Way. The financial details contained in the last item are identical with the details contained in paragraph 13 of document 1. Exemption is claimed pursuant to section 30(1)(a) and (b), the internal working documents exemption.

46. In my view this exemption has not been made out. First the document discloses no opinion, no advice and no recommendation that has taken place in the deliberative processes. Insofar as it might imply that there had been a recommendation that Shannon's Way be accepted, the notion that a formal confirmation of that fact brings the document within the internal working document exemption, would be to subvert the meaning of the section. The document states that there was discussion, an agreement was reached and a direction was given that the final form of agreement be settled and sealed. That process was then reduced to writing in the form of the minute. In coming to my conclusion I have been influenced by the words of Judge Rowlands in Coleman v Director General, Local Government Department, Pentland (1985) 1 VAR 9. That was a case involving a municipal inspector's report for which the internal working documents exemption was claimed. At p 11 His Honour said -

I find it difficult to accept that a person in the position of the inspector writing his final and considered report after an investigation is involved in the creative debate which comprises part of the governmental decision-making process, as that concept is understood in policy-forming activities.

47. In like terms I find it difficult to conclude that the minutes form part of the "creative processes" of the respondent. What the minute does is record something which is now in the public arena (that is, the awarding of the contract to Shannon's Way) excepting of course the financial details. Those financial details are a matter of fact and their contents are to be released under the earlier document; the exemption is not made out.

48. Document 3 is a Board Paper prepared for meeting 137 of the VWA board to be held on 31 August 2001. The first page records an executive summary and a draft resolution for the board to consider. Attached to it is a two-page issues paper seeking the board's approval of the contract between VWA and Shannon's Way.

49. There is no doubt the two page issues paper is an internal working document although the executive summary and draft resolution are now history. The contents of the executive summary are identical in content and substance with the details to be found in document 1. Contrary to the evidence of Mr Kelly and Ms Randall the first page contains no recommendation at all although perhaps one might divine it from the fact that the draft resolution is attached to a document that does recommend approval.

50. In their template written evidence both Mr Kelly and Ms Randall stated that the effect of their objection concerning, for instance, this particular document (and document 5) amounted to an omnibus objection that release would be unfair to Shannon's Way, would provide competitors with information enabling them to frame their future tenders "so as to win business that might otherwise have been won by Shannon's Way" and that "VWA would not wish to be put in a position with its commercial suppliers where its own contract processes led to [such] unfairness."

51. But section 30 requires that disclosure be contrary to public interest. In relation to the public interest test, Mr Fleming's most persuasive arguments related to documentation initiated during the actual tender process although he also made general submissions about the necessity for frankness and candour among the respondent's officers.

52. I cannot accept that disclosure of this document could possibly be contrary to public interest when the bulk of the information contained in it (again with the exception of the financial details) has already been disclosed to the applicant as a result of her initial request for access. As I have already held that the identical financial detail should be disclosed (document1) there seems little argument that the information contained in document 3 should also be disclosed. In relation to the two-page issues paper I am not satisfied that release would be contrary to public interest.

53. Document 4 is a minute of the VWA Board of Management meeting which took place on 30 April 2001 at the Mansion Hotel, Werribee. My comments in relation to document 2 apply equally to this document. Again, this minute merely records the ratification of the appointment of Shannon's Way. It an innocuous document and reveals nothing of any sensitivity at all - it simply records the fact of appointment. Before release however, the first two lines on page 4 and the information under paragraph 7 should be excised - they are not germane to the matter before the Tribunal.

54. The fact that these meetings are generally held in camera is not sufficient to clothe the recording of that minute of that in camera meeting as fulfilling the descriptor of opinion, advice or recommendation occurring in the deliberative process. A different approach might exist in relation to say, the tapes (if there were any) of the meeting, but the bald record of a decision does not fit within section 30(1)(a).

55. This is a fourteen-page document which was described in the section 49 material as "Board Meeting Decision Paper". The internal working documents exemption is sought. Unfortunately the description set out in the section 49 statement does not give a proper view of the document.

56. The first page is merely a statement of fact. It contains no advice, opinion or recommendation and should be released. The three page decision paper which follows largely details items of fact but some of it refers to matters falling under the tender process which I will deal with later in these reasons. Paragraphs 1 to 8 should be released as should paragraphs 22 and 23. Any suggestion that their disclosure would be contrary to public interest is nonsense. The balance of the paragraphs are incidental and in some part deal with the tender process itself.

57. The flow chart headed (TIMEFRAME) merely sets out the timetable for the tender process and simply details the tight timetable envisaged by VWA. It should be released.

58. The next document in the bundle is headed Attachment 2 and is a letter from Paxton Partners to VWA dated 12 April 2000. The letter sets out the auditor's satisfaction with the tender process and encloses three pages of the tender evaluation summary sheets. Insofar as the letter itself is concerned, the contents are uncontentious and indeed, to my mind its release would be positively in the public interest.

59. The three page attachment sets out the assessments made in relation to each tenderer as evaluated by five separate officers.

60. To my mind it is a concomitant of the tender process that (unless there is some urgent public interest arising from a need to clear the air or to dispel community disquiet) tenderers are entitled to some degree of anonymity and that disclosure of individual scores is likely to be harmful to the participants. This is particularly so when an external independent probity auditor has been hired to ensure the process is above board and entirely proper.

61. The three page attachment certainly falls within the description of internal working documents as provided in section 30 and in my view release would be contrary to public interest. In that regard I accept the evidence of Ms Randall and Mr Kelly although I do not accept their evidence that the identification of the unsuccessful tenderers would be harmful to them. The business of unsuccessful tendering is simply part and parcel of business life and in no way marks out for attention the unsuccessful candidates. I might have felt differently had any one of those unsuccessful tenderers given evidence to the Tribunal but this did not occur. The three pages for which the exemption is made out are headed:

Victorian Workcover Authority Advertising Agency Tender Evaluation.

62. The next four pages in this bundle bear the heading "Campaign Brief" and the first page is marked as Attachment 3.

63. No evidence was given in relation to these particular pages but I apprehend they represent the brief delivered to each of the tendering companies. What it does is set out of the expectation of VWA in relation to the delivery of a communications strategy with a focus on two particular areas of endeavour. Certainly no direct evidence of public interest detriment was given in relation to disclosure of these pages and it is hard to imagine what detriment could possibly flow from their release. On the contrary it seems to me there might be considerable public interest in strategies adopted by the State's work insurer to reduce the incidence of work-related injury. The campaign brief should be released.

64. The last page in the bundle of documents is a copy email despatched by James McKenzie (Chairman) to five named individuals setting out details of the steps taken to appoint an advertising agency. Save for the recommendation contained in the third last paragraph (and that recommendation is now a matter of public record) the document represents a recounting of the steps taken in the process. It is of no sensitivity and I do not accept that its disclosure would be contrary to public interest. Indeed, no particular evidence was adduced in relation to this email. The names of the recipients should be omitted before release. Nothing is served by their inclusion.

65. This document was described as "Tender Shortlist" and exemption is claimed pursuant to s.30(1)(a) & (b). In the template evidence of Mr Kelly and Ms Randall each stated that the document related to the tender evaluation stage. Each said that "all documents [including document 6] refer to and/or contain the deliberation of officers during the tender process, the recommendations and advice concerning the tender process outcome, and the deliberation by the Board in connection with the recommendation and advice given by officers.

66. This evidence does not bear close scrutiny when one looks at the document itself. It lists the names of six individuals, six companies, the company address and the postcode. There is some handwriting on the document, some signatures and two dates. At what stage of the process this list was prepared was not the subject of evidence. The document contains no advice, no recommendation, no opinion; it is merely a list of names and addresses. Whether or not the document has any meaning to the applicant is not known to the Tribunal but in my view the respondent has not made out the exemption in relation to this document.

67. Document 7 is described in the section 49 material as being created by Shannon's Way and being "Tender Proposal (one page/budgets)." As I commented earlier the full document was not filed with the Tribunal hence it is difficult to understand how this one page fits into the omnibus tender process. Mention of this document was made by Ms Ferris in her written statement. At paragraph 5 of her statement she said:

The first was a `Credentials Document' which we consented to entire release. The other two documents (which are referred to as documents 7 and 13 in the VWA's Schedule of Documents filed in this proceeding) we also consented to substantial release. The only part of these two documents which we requested be denied access to were the details of remuneration to be paid by the VWA to Shannon's Way under the proposed contract.

68. Exemption has been claimed pursuant to section 34(1)(b) and section 35(1) of the Act. Although the complete document was not provided I understand from the evidence that this item formed part of the tender proposal put forward by Shannon's Way and represented a costing of a particular campaign strategy. By that I mean that this costing is not indicative of the total amount to be paid by VWA but merely represents a sample of how the company might structure one particular component of the tender. The information contained in the document is certainly information acquired by VWA from Shannon's Way and certainly constitutes matters of a business, commercial or financial nature. Having established that, the section then requires a finding that disclosure of that information would be likely to expose the undertaking unreasonably to disadvantage.

69. Section 34(2) sets out the matters that the Tribunal might consider in deciding whether the undertaking (in this case Shannon's Way) might unreasonably be exposed to disadvantage.

70. Ms Ferris' viva voce evidence added little force to the paragraph from her statement quoted above. In the end I was unconvinced that the undertaking would suffer any disadvantage at all. Whether or not the document itself represents anything approaching accuracy is not a matter for this Tribunal.

71. The exemption in relation to section 35(1) is not made out (see section 35(2))

72. The applicant's counsel informed the Tribunal that access was no longer sought to this document.

73. This document is a letter dated 26 February 2001 from Paxton Partners to VWA. It will be recalled that Paxton Partners was the firm engaged to supervise probity aspects of the tender process. The bulk of the document has been released but exemption is claimed in relation to an hourly rate and a percentage of communication expenses (whatever that term may mean) to be charged. Exemption is claimed pursuant to section 34(1)(b) and section 35(1).

74. I will deal first with the exemption claimed pursuant to section 35(1). Mr Derbyshire (a director of Paxton Partners) told the Tribunal that he received no guarantee of confidentiality from VWA and he did not ask for it either. In re-examination he told the Tribunal it was his belief that the fee would remain confidential. I was not particularly reassured by his re-examination response. I formed the view that it was more likely that he simply gave no consideration to the matter during the negotiation stage and that the expectation of confidentiality arose when access was sought subsequently. In any event it seems to me that this exemption is not available in respect of this document due to the operation on s.35(2). The effect of that sub-section is to indicate that information acquired by an agency from a business undertaking relating to matters of a business, commercial or financial nature is to be dealt with compendiously under section 34 and does not attract protection under section 35.

75. Turning to section 34(1)(b) (the other exemption claimed) I find that the document readily falls within the description of information acquired by VWA (the agency) from Paxton Partners (the undertaking) relating to matters of a business, commercial of financial nature. Having come to that conclusion it falls to me to consider whether disclosure of the information would be likely to expose the undertaking unreasonably to disadvantage. And in considering that point the Tribunal is obliged to have regard to those matters set out in s.34(2)(a) to (d) of the Act.

76. Mr Derbyshire told the Tribunal that his firm had non-standard fees and these varied from client to client. It is clear from his evidence that the probity contract between his firm and VWA was a "one-off" and it covered a period from February to April 2001 only. In his statement he said:

It is my view and that of my firm that this item of information [the hourly rate of remuneration] is a matter of confidentiality as between my firm and its client, the VWA. Paxton Partners does not publish a uniform hourly rate of fees to the world. In a marketplace where our firm's fees are a matter of commercial negotiation, and therefore (say) an applicable rate can vary as between particular clients, or particular classes of work, it is a matter of some commercial sensitivity for us that those fees remain confidential between our respective client and us. It is in Paxton Partners best commercial interests that the hourly rate proposed in the 26 February letter not be generally disclosed and we are not aware of any plausible public interest that night be served in insisting that our best interests in this matter be set aside.

77. The difficulty with Mr Derbyshire's evidence is that it is contradictory. On the one hand he states that the firm's fees are not a static matter and that this fluidity in pricing gives rise to sensitivity. On the other hand he conceded that this was a "one-off" contract, it was for a limited time frame and for a particular task only - that is supervising the probity aspects of one particular tender process.

78. Certainly the hourly rate is not generally available to his competitors (s.34(2)(a)) but I am not convinced that disclosure would cause substantial (if any at all) harm to his firm's competitive position. The fact that the confidentiality of the firm's hourly rate in this instance is seen by him as in the best commercial interests of his firm does not of itself persuade me that disclosure would expose his firm unreasonably to disadvantage. Perhaps the position might have been different if, for instance, the Tribunal had received evidence that his firm had under-quoted in an attempt to secure future work but this was not the case. In my view the document in its entirety (including the hourly rate and the percentage of communication expenses) should be released.

79. This is an undated document with a hand-written heading "Expressions of Interest Received 23/02/01". Exemption is claimed pursuant to section 30(1) - that is the internal working document exemption. Ms Randall in her written statement referred to this document as referring to and containing "the deliberation of officers during the tender process, the recommendations and advice concerning the tender process outcome, and the deliberation by the Board in connection with the recommendation and advice given by officers." Even the most perfunctory glance at the document reveals that this puts an incorrect gloss on the contents of the document. It is a list of 24 named individuals, their titles, 25 companies and their addresses. Mr Kelly's evidence is identical. I presume however that this is a list of companies and individuals who responded to the original call for expressions of interest and I presume that this list was prepared at some stage during the process at some officer's behest. Certainly the document contains personal information and as I understand matters, none of the individuals named in the list has been contacted by VWA as contemplated by section 33 of the Act. I also apprehend from the submissions received from Mr Adams (counsel for the applicant) that this information is not in any event the thrust of his enquiry. In the absence of the individuals being given the required notice I do not intend to authorize release of the document.

80. This is a memorandum from Mr Derbyshire (Paxton Partners) to Ms Randall (VWA) dated 21 February 2001. Neither Ms Randall nor Mr Kelly dealt with this document. Nor did Mr Derbyshire. The document sets up a time frame and a checklist. There is nothing visibly contentious or sensitive about the document and in the absence of specific evidence I see no reason why this document should not be released. Exemption was claimed pursuant to section 30(1)(a) of the Act. Assuming the document falls within paragraph (a) of the section, there is no evidence before the Tribunal that disclosure of this particular document would be contrary to public interest. The handwriting on the document should be obliterated before release. Its meaning was not the subject of evidence and the author is not known to the Tribunal.

81. This is an extract from a document which is a contract between VWA and Shannon's Way dated 19 October 2000. The document itself (save for paragraph 3.1) has been already been released to the applicant. Exemption is claimed pursuant to sections 34(1)(b), 34(1)(a) and 35(1). The paragraph has already been the subject of public disclosure and the amount paid to Shannon's Way pursuant to that contract is to be found clearly set out at page 75 of the respondent's 2001 annual report. As the detail is already in the public arena, the Tribunal need consider the matter no further.

82. The document provided to the Tribunal consists of one page headed -

Examination of the "WorkCover" Brand and Recommendations for Brand Building

The document and was prepared by Shannon's Way and it seems the document has been subject to release except for the financial details set out on the page in question. As the entire document (if indeed it consists of anything other than the one page before me) was not made available to the Tribunal it is difficult to understand the context in which the information on the page occurs.

83. Exemption is claimed pursuant to sections 34(1)(b), 34(1)(a) and 35(1). As noted earlier in these reasons, section 35(1) is not applicable. Similarly the information does not amount to a "trade secret" and as a result section 34(1)(a) has no application.

84. Ms Ferris at paragraph 5 of her written statement made reference to this document. (See paragraph 67 herein) In her viva voce evidence the only other passing reference to this document was that she objected to release because the component parts of the pricing would give competitors an insight into how Shannon's Way did its business. She described the document as being part of a contract document. The document is undated, its context was not made known to the Tribunal, the Tribunal has no evidence about the contract itself and no other witness gave evidence about it; generally speaking there is an evidentiary void in relation to this document. Although Ms Ferris stated that release would disadvantage her firm because the details would give competitors a critical insight I find I cannot accept her evidence in the absence of better explanation about how the document came into being. In any event it appears invoices covering these amounts have already been released to the applicant in response to another enquiry and the details are already known. In my opinion the exemption has not been made out. It is true to say that the information is not generally available to Shannon's competitors (see s.34(2)(a)) but I am not satisfied disclosure of the information on document 13 would cause any harm at all to the competitive position of Shannon's Way.

85. Within 30 days of today the following documents are to be released to the applicant:

* Save for the first two lines on the page headed (4) and the information under paragraph 7 Document 4 is to be released in full;

* The first page of Document 5 is to be released in full. Paragraphs 1 to 8 and 22 and 23 of the subsequent three-page decision paper are to be released. The flow chart headed TIMEFRAME is to be released. The letter from Paxton Partners to VWA dated 12 April 200 is to be released but not the subsequent three page tender evaluation attachment to that letter. The 4-page campaign brief is to be released as is the email from James McKenzie dated 10/03/2001 but with names of the five recipients excised therefrom.

* Document 11 is to be released in full following excision of handwritten notations;

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