2. The Office of Housing provides rental housing services to a large portion, approximately 20%, of the total rental housing market for the State and for some home ownership loan services. Its income is generated by a combination of rental and loan repayments. It charges fees and provides trading statements in the form of profit and loss accounts, balance sheets and cash flow statements.

3. Various interim reports and a final report for the stage 1 consultancy were submitted. There followed further reports relating to Stage 2 of the consultancy which were submitted between the middle of 1996 and February 1997. A steering committee was established within the Office of Housing which in turn received these reports and held discussions subsequently with Systems Intellect relating to the latter's reports. On occasion, some reports were circulated more widely, but only to a select group of senior Office of Housing employees.

4. The operations of the Office of Housing at all relevant times fell under the purview of the applicant as Shadow Minister for Housing and Youth Affairs. The use of consultants, such as Systems Intellect, by government agencies necessitated her investigation in the discharge of her political responsibilities. Ms Kosky saw that the provision of housing assistance was likely to be a key issue at the next State election, and by reason of the involvement of independent consultants in the formulation of business practices, as well as the costs of those services, needed to form a view as to the cost effectiveness of such services and the adequacy of the proposals they advanced. Moreover, any comment expressed by such consultants as to the adequacy or otherwise of the performance of officers of the Office of Housing would be relevant to her shadow portfolio. For these reasons, the applicant sought access to documents relating to Office of Housing consultants during the calendar year 1996 by letter dated 24 December 1996. By reason of the range of documents caught by her request the applicant and the respondent held discussions which led to the former reformulating her request by letter dated 28 May 1997.

5. As I have indicated the applicant's initial request was dated 24 December 1996. It was replaced by a redefined request of 28 May 1997 which was answered by the respondent to the applicant in its letters of 29 May 1997 and 27 June 1997.

6. Ultimately, 292 pages of documents were offered to the applicant with seven categories of exempt documents identified. Following a reappraisal of the documents sought by both parties the respondent, in accordance with a direction of the Tribunal, filed an amended schedule of documents in respect of which exemption is claimed. This was done and by letter of 15 August 1997, the applicant identified the documents she sought being some of those identified in the respondent's initial S.36 statement.

7. Following orders pronounced on 24 February 1998, the respondent prepared a statement of exempt documents and of public interest grounds. It is unnecessary for me to set out these statements in these reasons as it is sufficient that I note that the exempt documents are six in number. However, during the course of proceedings, counsel for the applicant, stated that insofar as the first two of the six documents were concerned, the applicant no longer sought access to them. Of the documents identified in paragraph 7 of the amended S.36 statement of the respondent, the Tribunal was left to consider the following documents :

Document (1)(h) "Business Systems Support Document - Waiting List Management" from Systems Intellect to the Office of Housing dated June 1996. The respondent describes this report as containing "records, advice, opinion, consultation and recommendation as to business systems relating to waiting list management of the Office of Housing" and relies upon sections 30, 34(1) and (4), 35, 36(1)(b) under Freedom of Information Act 1984 (FOI) for its exemption.

Document (1)(j) entitled "IT Management Process Re-Engineering Study" from Systems Intellect to the Office of Housing dated 5 June 1996 described as a record of "advice, opinion, consultation and recommendation as to the Office of Housing's IT Management". The above provisions of FOI for exemption are again relied upon.

Document 1(o) entitled "Office of Housing Department of Human Services Business Systems Strategy Review Final Report" dated July 1996 from Systems Intellect to the Office of Housing which contains "advice, opinion, consultation and recommendation as to the business systems specifications and strategy of the Office of Housing" in respect of which the respondent relies upon the same sections of FOI for exemption.

Document 1(q) report entitled "Independent Audit Report and Strategy Update Second Revision" dated January 1997 from Systems Intellect to the Office of Housing which is described as containing " advice, opinion, consultation and recommendation as to the implementation of business systems specifications and strategy of the Office of Housing". Again, the respondent relies upon the same sections of FOI as are set out above for exemption.

8. In respect of each of these documents, the respondent relies upon all of the 16 grounds of public interest.

The evidence in respect of the preparation and consideration of each of these documents is as follows :

9. This document was prepared by Systems Intellect under the supervision of its managing director Mr Key. The applicant submitted that Systems Intellect was not an "officer" for the purposes of sections 5(1) and 30 of FOI. Although Mr Mueller of counsel for the applicant sought to distinguish Ryder v Booth [1985] VicRp 86; (1985) VR 869 from later decisions of this Tribunal in Re Perton v Department of Premier and Cabinet (1992) 5 VAR 290 and Brog v Department of Premier and Cabinet (1989) 3 VAR 201, in my opinion, such distinction cannot be maintained. The Full Court in Ryder v Booth [1985] VicRp 86; (1985) VR 869 expressly approved of the decision of His Honour Judge Dixon in O'Connor v State Superannuation Board of Victoria (unreported) dated 27 August 1984 wherein his Honour found the expression "a member of the staff of an agency" covered consultants employed by the agency. In both cases the reports were compiled by doctors retained by the Superannuation Board to provide medical reports to it, for assessment of a member's entitlement to payments. Accordingly, this submission of the applicant fails.

10. It was further submitted that the document did not disclose consultations or deliberations between officers by reason of Systems Intellect status of consultant. Examination of the document discloses advice and recommendations of Systems Intellect to the respondent. Mr Hudson, Assistant Director, Property Services, of the Office of Housing, referred to this document as having been submitted to the Steering Committee and evaluated by it. The function of the Steering Committee was to consider the report, to formulate recommendations in the light of it and to prioritise the implementation of its recommendations. This committee still operates. Mr Key expressed his understanding of the retainer generally for the provision of advice and assistance to the steering committee on matters concerning the business systems development for the purpose of enabling the steering committee to make policy decisions. In such circumstances, it is part of the process of consultation between officers following which the steering committee of the Office of Housing will deliberate and make its recommendations : see Re Perton at p.298 and Brog p.207.

11. Mr Mueller submitted that S.30 has no application to those parts of this document which contain factual material. He submitted that they ought to have been segregated and released. Such an interpretation, in my opinion, flies in the face of S.30(3) which provides :

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

12. I take that sub-section to provide that if the document only contains factual material, S.30 is inapplicable because it would not constitute "opinion, advice, or recommendation ... or consultation or deliberation ... for the purpose of the deliberative processes". If the document does contain both factual material and material fitting the above description the two may be so intertwined that it is difficult to separate them to produce an expurgated document of any meaning.

13. The document was prepared following discussions between Systems Intellect and the officers of the Office of Housing. It sets out recommended business specifications for the receipt and processing of applications for public housing assistance, the prioritisation of applications and the allocation, occupation and transfer of tenancies. Mr Baird, Manager of Business Systems Office of Housing, stated that the document had a restricted circulation and was confined to the operational levels of the housing services division for their comment. These recommendations are still under review and will be submitted to the Minister for decision in due course. I am satisfied therefore, that the exemption under S.30(1)(a) of FOI is established.

14. I turn now to consider S.30(1)(b). Counsel for the respondent relying upon the evidence of Mr Baird submitted the release of the document had the potential to occasion apprehension on the part of members of the community who currently, or in the future may, have dealings with the Office of Housing. There was a public interest it was put in not disseminating to the public information or recommendations which are still under consideration because those recommendations, if unaccepted, would occasion unnecessary confusion or unrest. Counsel for the applicant conceded that it was inevitable in the course of public debate that there may be misinformed debate. It is in the public interest that public housing and loan assistance to obtain housing ought to be allocated to the most deserving by an equitable and fair process. The method by which these allocations occur is, in my opinion, a matter of public interest. Moreover, the recommendations contained in this document have this consideration as its objective. I am not satisfied, having regard to the onus cast upon the respondent pursuant to S.55 of FOI that the release of this document would be contrary to the public interest for the purposes of S.30(1)(b) of FOI.

15. The respondent claims exemption under S.34(1) of FOI. That sub-section provides :

"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

(a) the information relates to trade secrets or other matters of a business, commercial or financial nature; or

(b) the disclosure of the information under this Act would be likely to expose the undertaking to disadvantage;"

16. Document (1)(h) as its title suggests contains recommendations of Systems Intellect (the undertaking) and contains proposals for the operation and execution of the waiting list for public housing and home finance schemes. As such it could be termed a blueprint for the management of the waiting list. The Office of Housing as part of its business prioritises applicants' claims. That is properly characterised as a business procedure or business system. However, not all information provided by a business undertaking to an agency falls within s.34 In Accident Compensation Commission v Croom [1991] VicRp 72; (1991) 2 VR 322 at p.330 O'Bryan, J. held :

"Accordingly, where information contained in a document relates to some matter of business in order that a claim for exemption could be successfully made, it would be necessary to show that the information impinged in some way or other upon the actual conduct or operations of the undertaking itself".

17. Systems Intellect is a professional consulting organisation whose business includes the provision of management systems. Its report in Document (1)(h) impinges or affects its business in that it is the business of Systems Intellect to provide proposals regarding the businesses of other parties. In Croom's case the Full Court held that the information collected by the undertaking in the course of its business was not information of a business nature because it was information of a medical nature and investigative nature. At page 330 of his reasons for judgment in Croom O'Bryan, J. referred with approval to the decision of the Full Court in Gill v Department of Industry, Technology and Resources [1987] VicRp 58; (1987) VR 681 and in particular to the passage at p.687 in which the Full Court referred to the breadth of S.34(1)(a). O'Bryan, J. in Croom expressed the view that Parliament did not intend to exempt from the Act every piece of written information obtained by an agency in the ordinary course of the agency's activities. His Honour regarded the provision as exempting only that information which could

"be regarded as a sensitive kind from the perspective of the undertaking"

"it would be necessary to show that the information impinged in some way or other upon the actual conduct or operations of the undertaking itself".

18. In my opinion, there is nothing in this document of a sensitive kind from Systems Intellect's perspective. The objection taken is that the public may be confused rather than Systems Intellect be affected in some way.

19. It was submitted by the respondent that Systems Intellect is likely to be subjected to disadvantage if the document be released and that by reason of S.34(1)(b) the document is exempt. In my opinion, the only factor in S.34(2) which operates to preclude the release of the document is sub-paragraph (a), namely that the information is generally unavailable to Systems Intellect's competitors. It would not be exempt in the hands of an agency if generated by it, because the agency would not, as a probability, be exposed to disadvantage nor would the information cause substantial harm to Systems Intellect. I acknowledge that Mr Key said all reports (including Document (1)(h)) were marked "commercial-in-confidence". His concern related to other documents, to which I will shortly refer, in which Systems Intellect was critical of third persons external to the Office of Housing. Such criticisms are not to be found in this document. I therefore reject the respondent's submission that the document is exempt under S.34(2) of FOI.

20. The respondent also relies upon S.34(4) of FOI which provides :

(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 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 reasonably 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".

21. Clearly the Department of Housing is engaged in trade and commerce. It acquires, manages, sells and leases houses in the open market. It participates in the construction industry with a substantial capital works programme of some $M300 per annum. Further evidence was given that it sold its software, notably to the governments of the Australian Capital Territory and the State of Queensland and proposed to market it internationally. Although the information is of a business nature, it is not information of a sensitive kind for the reasons I have already expressed. The expression "business, commercial or financial nature" appears in both Sections 34(1)(a) and 34(4)(a)(ii) of FOI. The Full Court was concerned with the former sub-section in Croom but there is no reason logically why the analysis ought not to apply to sub-section 34(4) also. Moreover, in my view, the release of the information would be unlikely to expose the respondent to disadvantage. It was submitted that a reference on p.34 of the document to an estimate of the cost to further develop and implement the business system would, if known to a competing tenderer, destroy the Office of Housing's ability to contest the tendering process. In my view, the likelihood of an estimate of cost made some two years ago having any real benefit to a competing tenderer (bearing in mind there were none subsequently for this development) is remote and would not expose the agency to disadvantage.

22. The respondent also relies upon S.35 of FOI. Document (1)(h) on the evidence was a communication of information in confidence by a person (Systems Intellect) to an agency (the respondent). Mr Key said the documents were marked "commercial-in-confidence", that he was bound by a confidentiality agreement (though it did not bind the respondent) and that the documents were prepared for the deliberations of only the most senior officers within the Office of Housing. Evidence was also given by Mr Baird of the restrictive circulation of the document and that it was treated by the Department as a confidential document. However, I am not satisfied that the respondent has made out grounds (a) or (b) of S.35(1). I have found that the document would not be exempt if generated by an agency or a Minister because I have found above that its release would not be contrary to the public interest for the purposes of s.30 and s.34. Moreover, for reasons which I will shortly refer to, I find that the document's release would not be contrary to the public interest for the purposes of S.36 of FOI. Finally, it is clear that the impairment in the obtaining of information must be an impairment of the agency rather than a reluctance on the part of a supplier to provide such information in future : see Ryder v Booth p.872.

23. The respondent also relies upon S.36 of FOI. That section provides as follows :

(a) in the case of documents of a department or prescribed authority its premature disclosure under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to have a substantial adverse effect on the economy of Victoria, including but not limited to, revealing consideration of a contemplated movement in bank interest rates or in sales tax, the imposition of credit controls, the sale or acquisition of land or property by the Crown, urban re-zoning, the formulation of land use and planning controls and the formulation of State imposts; or

(b) in the case of documents of a department or prescribed authority its disclosure under this Act would be contrary to the public interest by reason that it would disclose instructions issued to, or provided for the use or guidance of, officers of an agency on the procedures to be followed or the criteria to be applied in negotiation, including financial, commercial and labour negotiation, in the execution of contracts, in the defence, prosecution and settlement of cases, and in similar activities relating to the financial property or personnel management and assessment interest of the Crown or of an agency".

24. The respondent contended that, if this document was ultimately adopted and implemented as policy, it had the potential to disclose how the respondent assesses eligibility of applicants, its management of the waiting list and how housing is allocated to such persons. Firstly, the submission is based upon the assumption that the recommendation will be adopted. As such it is not reflected in policy as it is still under consideration. Secondly, no basis was put as to how this document could have a substantial adverse effect on the economy of this State. My perusal of it does not disclose any such potential. Thirdly, because the document is a recommendation, it does not fit into the category of documents covered in S.36(b) of instructions or guidance on procedures. For these reasons, I hold that the document is not exempt for the purposes of S.36.

25. I have therefore held that the respondent's claims to exemption for document (1)(h) fails. It remains for me to consider, if I am incorrect in my findings and that the document is exempt, whether its release is nonetheless warranted in the public interest pursuant to S.50(4). Section 6 of the Housing Act 1983 provides that the objects of the Act are "to ensure that every person in Victoria has adequate and appropriate housing at a price within his or her means by encouraging" inter alia - the provision of well maintained public housing; the distribution, according to need, for each type of tenure of government housing financial assistance and the promotion of orderly planning in particular to expand and develop the role of public sector in the provision of housing, to promote cost effectiveness in the provision of housing, to seek participation of tenants and other community groups in the management of public housing, to promote consultation on major housing policy issues and to promote consultation on major housing policy issues with all persons and groups of persons involved in housing. It is in the public interest that Departments of State charged with the administration and execution of legislation do so in accordance with the statutory obligations placed upon them. To deny the release of this document would be inconsistent with the objective contained in S.6(1)(iii)(h) of the Housing Act 1983 "to promote consultation on major housing policy issues with all persons and groups of persons involved in housing".

26. Members of the community identified in S.6 ought to be able to consider the recommendation in Document (1)(h) to promote the purpose of the Act. To that extent I find that the public interest requires that the document be released.

27. This document was also prepared by Systems Intellect under the supervision of Mr Key. It is a review of the IT management process within the Office of Housing. As such it identifies problems in the IT management processes both within the Office of Housing and an organisation contracted to it to perform IT operations. The report goes on to make recommendations for improvement.

28. Mr Baird said the release of the document would have the potential to disadvantage Systems Intellect because the third party of whom Systems Intellect was critical in its report may institute defamation proceedings against Systems Intellect and secondly, that if Systems Intellect gave inappropriate advice that could affect their future work in the sense that their reputation would be diminished. Similarly, Mr Key felt disadvantage could result to Systems Intellect in that the report was critical of the management function of the Office of Housing (though this contention was later withdrawn) and that it expressed criticism of a third party. Mr Key said that his company gave full and frank advice and did not "hide any of our opinions" and had he known the document would not be guaranteed confidential status then it would most probably not exist in any form.

29. The respondent submitted that the document was exempt under S.30 of FOI insofar as it was a draft, not policy, was of limited circulation and was provided to the steering committee as part of its deliberative processes in formulating recommendations as to policy. That submission is well established on the evidence. I am satisfied therefore, that the exemption under S.30(1)(a) of FOI is established. However, I do not consider that release of the document would be contrary to the public interest for the purposes of sub-paragraph (b) of that sub section. In paragraph 25 above I have referred to S.6 of the Housing Act 1983. The public has an interest in knowing whether or not the Office of Housing is functioning in an efficient manner. Release of this document would serve two purposes : firstly, it would identify the fact that past problems have occurred and secondly, that the Department had taken steps to identify the problem and adopted corrective measures. On the other hand, it was said that the report in as much as it is critical of a third party may not have been so expressed so as to "hide any of our opinions" according to Mr Key, if Systems Intellect knew the document was to be disseminated widely. I do not accept that fearless and frank advice can only be provided in circumstances where the advice remains confidential. It may be for improper motive the consultant is critical of a competitor in confidential communications and is comforted in the knowledge that the likelihood of that criticism being objectively tested is remote. Whereas if the criticism is well based the prospect of it being successfully challenged as exhibiting bias or self interest is diminished. I note that the Tribunal has in a number of cases expressed criticism of the "frankness and candour" head of public interest : see re Marple v Department of Agriculture (1995) 9 VAR 29 and re Coleman v Director-General, Local Government Department, Pentland (1985) 1 VAR 9 at pp.11-12 and the decision of Murtagh v Federal Commissioner of Taxation [1984] AATA 249; (1984) 54 ALR 313 particularly at p.326. Indeed, Mr Baird's evidence that if inappropriate advice was proffered by a consultant (in this case Systems Intellect) that could adversely affect its future work suggests that the exposure of such advice to wide scrutiny may serve to enhance the prospects of appropriate advice being given by responsible consultants. That of itself would be in the public interest rather than contrary to it.

30. The respondent also relies upon S.34(1) of FOI. The document contains information of a business and commercial nature. However, as I have stated in relation to Document (1)(h) the question is whether the information is of a sensitive kind from Systems Intellect's perspective. Mr Key initially said that the document would not have been as hard hitting in its criticism of officers of the Department of Housing and the third party had he known it was to become public. Following observations which I expressed, he withdrew his evidence insofar as criticisms of the Office of Housing were concerned stating that such criticisms would have remained even if the document went public and agreed with my suggestion that the third party may have taken "a jaundiced view about your company" but there was insufficient evidence for me to conclude that criticism of the third party would, if it became public, rebound adversely to Systems Intellect. As I have stated on one view dissemination of the document would serve to promote responsible criticism (I do not mean to convey that Systems Intellect's criticism was other than bona fide) and has the potential to enhance Systems Intellect's reputation in providing reliable and fearless advice in the knowledge that it is open to scrutiny. I therefore find that the exemption under S.34(1)(a) of FOI is not made out.

31. I turn now to consider S.34(1)(b). For the reasons expressed I am not satisfied that substantial harm would prejudice the competitive position of Systems Intellect if the document was disseminated, and further that there are positive considerations in the public interest in favour of the document's disclosure. The third party itself, being the provider of the service, has the information within its purview to make its own assessment of its performance and to that extent the information is available to the third party if that third party can be said to be a competitor of the undertaking. Mr Key's evidence was not so much that the third party was a competitor of Systems Intellect but rather than it had the capacity, through other parties who were Systems Intellect's competitors, to prejudice the latter's position. For these reasons, I am not satisfied that the release of the document would expose Systems Intellect to disadvantage.

32. The respondent also relies upon S.34(4) of FOI. The respondent contended that the criticism of the third party would disadvantage the Office of Housing because relations between the third party and the Office of Housing may be adversely affected during the period in which their contractual arrangements were to continue. Suffice it for me to say that in my view this prospect is most unlikely and indeed there are contrary arguments that can be put in favour of the third party being placed on notice of the criticism because it may not rest on its laurels and would seek to improve its performance by responding positively to the criticism thereby having a prospect of its contract being renewed. This would enure to the benefit of the Office of Housing. Although it was not expressly put in written submissions on the evidence it could be argued that the provision of the information in such full and frank fashion would only be available if such information was conveyed on a confidential basis and the ability of the Office of Housing to obtain similar information in future may be adversely affected. For the reasons I have already expressed, I do not consider this to be a likelihood in the circumstances. I therefore find that the report is not exempt by reason of S.34(4) of FOI.

33. I accept the evidence of Mr Key and witnesses called on behalf of the respondent that the document was communicated in confidence to the Office of Housing. However, I do not find that the document would be exempt if generated by the agency because of my findings in relation to Sections 30 and 34 and, as I shall detail shortly, S.36. In short, the agency has not satisfied me that the document would not be exempt if generated by the agency. Moreover, in my view, the release of the document would not be contrary to the public interest for the reasons I have already expressed. I therefore reject the claim based on S.35 of FOI.

34. Finally, the respondent relies upon S.36. I reject this claim on the basis that there is no evidence that the release of the document would be likely to have a substantial adverse effect on the economy of this State or for that matter any of the other criteria set out in S.36(1)(a). Section 36(b) is inapplicable because the document is not an instruction in the relevant sense therein set out. Document (1)(j) is therefore not an exempt document for the purposes of S.36.

35. Notwithstanding my findings in paragraphs 29-34 that the document is not exempt, if I am incorrect in any of those findings, I need to consider whether as a matter of public policy the document ought to be released pursuant to S.50(4). Section 50(4) contains the imperative "that the public interest requires that access to the document should be granted".

36. This document sets out recommended business systems strategies for the Office of Housing for periods ranging up to five years. It contains expected cost benefits through the implementation of such strategies with the objective of maximising the value of IT and to provide for the implementation of improved business systems support in the Office of Housing model. The document was prepared by an employee of Systems Intellect and sent to Mr Key for review. It was prepared for the steering group and contains strategy material much of which Mr Key described as confidential information. Most of this material is still the subject of review by the steering committee prior to making its recommendations to the Minister. Concerns as to its release were that given it is a report upon which deliberations are occurring it would be misleading to the public or at least have the potential to mislead the public that such a policy is going to be adopted. Secondly, that it provided instructions to government officials and contain criteria to be applied in relation to the entry into and execution of contracts concerning the financial property of the Office of Housing. Thirdly, it contains options, which if adopted, would impact upon staff levels of the Office of Housing and outsourcing of services which may be detrimental to staff morale. Fourthly, that it would undermine the competitive position of the Office of Housing in entering into contracts in the future because costings contained in it would provide some insight to parties dealing with the Office of Housing which had the potential to affect adversely the Department of Housing's position. Finally, it was suggested that the release of the information may impair the ability of the Office of Housing to obtain similar information in future and impair the capacity of consultants to provide that advice.

37. The most powerful of these considerations, in my opinion, are the potential undermining of the Department of Housing's negotiating position and staff morale. I do not find the other considerations have the same force. I find that Document (1)(o) is exempt for the purposes of s.30. The document is clearly part of the deliberative process and, for the reasons I have expressed above, I consider it will be contrary to the public interest for it to be released.

38. Reliance is also placed upon S.34(1)(b) of FOI. Mr Key identified passages in Exhibit F which he claimed would adversely affect Systems Intellect. I have examined these passages and am of the view that none of them impact a sensitive way upon the business of Systems Intellect. However, I find that these passages have the potential to prejudice the operation of the Department of Housing for the reasons set out in paragraphs 36 and 37 and to that extent the claim for exemption under S.34(4)(a) is upheld.

39. The respondent also relies upon Sections 35 and 36 of FOI. It is again the case that this document was submitted in confidence to a limited circle of officers within the respondent. If generated by the agency rather than Systems Intellect it would have been exempt under Sections 30(1) and 34(4). It is therefore exempt under s.35(1)(a). However, I do not uphold the objection based upon S.35(1)(b) because I am not satisfied that the release of the information would be reasonably likely to impair the ability of the agency to obtain similar information in the future and I note the comments by Young C.J. in Ryder v Booth at p.872. The proviso to S.35(2) of FOI is inapplicable because the document is not of the description therein defined.

40. I do not uphold the objection based upon S.36 of FOI. Although I have found that there is some potential that the financial well being of the Department of Housing may be prejudiced by the release of this document the ramifications of this detriment and its impact upon the economy of the State was not the subject of evidence and I cannot speculate upon it. In any event, it is difficult to imagine such an occurrence being caused by the release of this document. Section 36(b) is inapplicable as the document is a report for the consideration of the Steering Committee and do not constitute instructions or guidance on procedures for officers of an agency.

41. I therefore uphold the objection to the disclosure of this document in its entirety.

42. This report was also prepared in confidence by Systems Intellect for submission to the steering committee. Its purpose was to audit the progress the Office of Housing had made in executing the business strategy proposed to it by Systems Intellect in earlier reports. The report was then submitted to the steering committee for its consideration. Much of the information contained in this document is also contained in Document (1)(o) in as much as the latter reveals the systems and their status. Some of the recommendations contained in Systems Intellect's earlier reports had been adopted by this time and the object was to measure the status of the implementation of those proposals so adopted.

43. The bases for objection to the release of this document are those to which I have referred in paragraphs 36-40 above which are also raised in respect of Document (1)(o). For the reasons therein expressed, I uphold the objection based upon S.30, S.34(1)(b) and S.35(1)(a). I do not uphold the objection based upon S.36 for the reasons given in paragraph 40 when dealing with Document (1)(o).

44. Having found that Documents (1)(o) and (1)(q) are exempt because their release would be contrary to the public interest for the purposes of s.30, it is perhaps unnecessary to address the question as to whether s.50(4) overrides these findings : see Newnham v Victoria Police (unreported Victorian Supreme Court McDonald, J. 16 October 1997) in which His Honour accepted the reasoning of His Honour Judge Smith P. in Re Mallesons Stephen Jaques v Environment Protection Authority (unreported, AAT of Vic 1 November 1991). At p.17 the learned President referred to a clear inconsistency in a finding that a document is exempt under S.30 because its release would be contrary to the public interest but that the S.50(4) override can prevail. With respect I agree. It may be that the public interest referred to in S.30(1) is the same public interest which is referred to in S.50(4). Moreover, the expression is not defined in the Act though the Court of Appeal in Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 at p.75 referred to it as :

"The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals".

45. In his submissions dealing with the question of public interest, counsel for the applicant when dealing with S.30(1) did not address the question of public interest insofar as that section is concerned rather adopted the submissions he made under S.50(4). I will therefore consider these submissions again. At the heart of the applicant's public interest grounds in support of the release of these documents is the consideration that "secrecy inevitably invites suspicion" and that unless there is a transparent and open process in the retention of outside contractors, confidence in the administrative and government processes will be diminished. Counsel for the applicant further contended that unless the respondent can point to real and significant damage occasioned by the release of the document, the requirement of transparency will outweigh the considerations in favour of it. Although it is true that the legislation is remedial in that it confers a statutory right upon an applicant to documents and its object is to extend this right as far as possible to an extent that any discretions be exercised as far as possible to facilitate and promote disclosure of information, S.3 must be read in the light of S.50(4). In this sub-section, as was pointed out in Re Gill v Department of Industry Technology and Resources (1985) 1 VAR 97 at p.103 :

"the word `requires' imparts an imperative tone".

46. In Director of Public Prosecutions v Smith at p.77 the Court of Appeal referred to the exercise of the power under S.50(4) as being a process whereby one element of public interest is outweighed by a competing public interest factor. Thus I am called upon to identify the relevant areas of public interest and to consider them, to weigh them against each other and to form a view as to which public interest factor prevails. It is therefore an exercise of discretion. While I acknowledge the object of the Act, I also recognise that it provides for the exemption of documents from release on the grounds that to do so would be contrary to public policy - Sections 29, 30(1), 35(1) and 36. In my opinion, for the reasons expressed in paragraphs 36-38 and 42 and 43 it would be in my opinion contrary to the public interest that Documents (1)(o) and (1)(q) be released.

I certify that this and the preceding 29 pages are a true and correct copy of the reasons for decision of His Honour Judge Wood, Vice President of the Victorian Civil and Administrative Tribunal.

FOR THE APPLICANT : Mr Mueller instructed by Maurice