Victorian Civil and Administrative Tribunal|2009-08-11|Before: Kevin Bell J

McIntosh v Department of Premier and Cabinet (General) [2009] VCAT 1528 (11 August 2009)

Freedom of information - internal working documents - "policy blue" (brief to the Premier) - "PPQ" (possible parliamentary question) - documents concerning industrial relations - commitments made to police union but not announced by Premier before election - commitments subject to enterprise bargaining after election - matters of high policy importance - importance of access by the Premier and ministers to confidential advice - protecting government participation in enterprise bargaining - whether release contrary to public interest - purely factual material - desirability of giving access to edited document - whether reasonably practical - Freedom of Information Act 1982, ss 25, 30(1)(a).

McIntosh v Department of Premier and Cabinet (General) [2009] VCAT 1528

The decision under review is varied to this extent:

(a) document 14 (the policy blue) is exempt except for the part on page one headed "BACKGROUND" and paragraphs 2 and 3 underneath, to which Mr McIntosh shall be given access in the form of an edited copy of document 5;

(b) document 29 is not exempt and Mr McIntosh shall be given access to it in full; and

The decision under review is otherwise confirmed.

Andrew McIntosh is a member of the parliament of Victoria. Under the Freedom of Information Act 1982, he applied to the Department of Premier and Cabinet for access to all documents relating to the Record of Commitments dated 6 November 2006 made by the then Premier and the responsible minister on the one hand to The Police Association on the other.
The department identified 30 documents coming within the request. Relying on various exemptions in the Act, the officer at first instance released two in full, one in part and the other 27 not at all.
Mr McIntosh then sought internal review. The initial decision was confirmed, but further exemptions were relied on. The review officer also identified three further relevant documents. One was held to be fully exempt and the others partially so.
Mr McIntosh now seeks review by the tribunal of the review officer's decision. There has been commendable pre-hearing cooperation between the parties. Some further documents have now been released to Mr McIntosh. But the documents relating to the negotiation of the content of the commitments and a later enterprise bargaining agreement have not. The net position is that I must now consider nine documents (in seven classes) representing the 19 still in issue. Further, the relevant exemptions have been reduced to one - whether the documents are internal working documents under s 30 of the Act.

The Record of Commitments is a public document and in evidence. The commitments were made shortly before the election in November 2006. They related to a range of measures concerning the operation of the police force in Victoria which the Labor government said it was committed to if re-elected. The subjects included police numbers and resources, industrial issues, professional development and training, the establishment of a police services commission, the future role of protective services officers, legal and union representation costs, the payment of wages and suspension without pay, union consultation and additional equipment. According to Mr McIntosh, the commitments were not announced before the election but were the subject of enterprise bargaining with the association afterwards.
Evidence about the negotiation of the Record of Commitments was given by Andrea Lester. She was the department's then manager of industrial relations. Ms Lester described the course of the negotiation of the commitments, without going into the confidential detail. She said the commitments were given in the context of the government's industrial relations policies as they would be applied after the 2006 election, which the content of the commitments reflected. After the government was re-elected, it entered into an enterprise bargaining agreement with the association. That agreement is a public document. The negotiations for the agreement began in December 2006 shortly after the government's re-election. The negotiations went on for many months. Agreement in principle was reached in September 2007.
On Ms Lester's evidence, it was very important to protect the confidentiality of industrial negotiations. This was especially so because the government was regularly engaged in such negotiations with many industrial organisations across the entire public sector. The negotiations occurred within a policy framework which was set by the Cabinet and rigorously applied. The negotiating room possessed by individual departments or agencies was confidential.
Ms Lester said that, when required, the government would call for advice on industrial relations issues from officers of the department and others. It was essential for this advice to remain confidential. Such issues were always considered at a very high level of government. For example, the enterprise bargaining negotiations with the association were overseen by a leadership group which included senior representatives of several departments, including hers, and which reported to the Cabinet. Further, the authority to put offers was subject to the scrutiny and control of a subcommittee of the Cabinet. Confidential advice given by the department informed the deliberations of the leadership group and the Cabinet.
According to Ms Lester, disclosure of such advice or information would undermine the bargaining position of the government in present or future negotiations. The information in the documents at issue was still sensitive and of current relevance. The government, the association and other industrial organisations were in a continuing relationship. Release of the advice and information about the negotiation of the commitments made to the association in 2006 could be used to the government's disadvantage in later negotiations, and specifically those due on 2010 when the current agreement expires.
For Mr McIntosh, the main significance of the Record of Commitments is that the commitments were made to the association prior to the election in November 2006 but not announced in Labor's election campaign launched on 14 November of that year. After being re-elected, the government began enterprise bargaining with the association, which led to an agreement being reached. The commitments given before the election would have informed the negotiations and the agreement, yet were not made public until after the election. Mr McIntosh contends it is in the public interest for information about the negotiation of the commitments and the agreement to be known, especially as Victoria Police is a key public sector agency. Mr McIntosh also contends it is necessary to "clear the air" due to certain allegations being made against the secretary of the association resulting from investigations made at about the time the commitments were being negotiated.

The 19 documents are identified in their seven classes in the table.

Two documents were given particular attention in the case. Document 14 is a "policy blue". This is a confidential advice or briefing to the Premier by the department. It takes its name from the colour of its paper. Document 2 is a "possible parliamentary question" or "PPQ". This is a confidential advice or briefing to the Premier or a minister by their department about how possible parliamentary questions may be answered. I will deal with these documents when I consider the others.
I have looked at all of the documents.

Under s 30(1) of the Act, a document is exempt if it would disclose matter in the nature of opinion, advice or recommendations prepared in the course of or for the deliberative processes of government and it would be contrary in the public interest not to disclose the document.
This exemption does not apply to a document by reason only that it contains purely factual material (s 30(3)). Therefore, if it is reasonably practicable to do so without revealing the deliberative content of a document, it is appropriate to separate the factual material from the deliberative content, and give access to a document containing the former. This is consistent with the objects of the Act in s 3 and the obligation in s 25 to release a copy of a document containing non-exempt material, if that is practicable.
But factual material can be so embedded in the deliberative content of a document that it is impractical to produce an edited document containing only the former. Such material is not "purely" factual under s 30(3) and therefore comes within section 30(1)(a). As Beaumont J said in Harris v Australian Broadcasting Corporation No (2),[1] the distinction is "between purely factual material, which is of an investigative character, on the one hand and opinion, advice or recommendation, which is part of the policy-forming or deliberative processes on the other". A practical approach is adopted for dealing with the issue. This is Davies J in the federal tribunal in Re Howard and Treasurer of Commonwealth of Australia:[2] "Parts of documents which reflect purely factual material may be disclosed if severance can be achieved without compromising the privacy of the remainder of the documents."[3] Judge Wood in this tribunal said something similar in Re Kosky and Department of Human Services:[4] "If the document does contain both factual material and [deliberative] material... the two may be so intertwined that it is difficult to separate them to produce an expurgated document of any meaning." In deciding whether it is possible to separate the factual material from the deliberative content of a document, so as to give access to the former without revealing the latter, the document has to be considered in its entire circumstances.[5]
There was no dispute in this case about the proper application of the public interest test in s 30(1)(b). The collection of the authorities in Re Wells and Department of Premier and Cabinet[6] was cited with approval by Maxwell P in Secretary, Department of Justice v Osland.[7] The proper approach is set out in those authorities. So far as I can see, the observations in the recent decisions in the High Court, taken as a whole, do not suggest any changed approach.[8]
Under the principles, the application of the public interest in s 30(1)(b) involves a balancing of various considerations. The starting point is the object of the Act in s 3(1), which emphatically recognises the right of the community to access information, limited only by exemptions which protect essential public interests.[9] Those purposes are always directly relevant when considering the public interest, but may be especially strong, and outweigh other aspects of the public interest, where access to the information is necessary to address questions that have acquired a particular importance in the mind of the community.
Other relevant consideration have been identified in such authorities as Re Howard and Treasurer of Commonwealth of Australia[10] and Re Hulls and Victorian Casino and Gaming Authority,[11] details of which are set out in Re Wells and Department of Premier and Cabinet.[12] Among those considerations are the purposes of the exemption in s 30. In the words of Maxwell P, these "include the efficient and economical conduct of government, protection of the deliberative processes of government, particularly at high levels of government and in relation to sensitive issues, and the preservation of confidentiality so as to promote the giving of full and frank advice."[13]
To the application of these principles to the relevant documents I now turn.

Document 14 is the only one in this class. It is a "policy blue" dated 5 July 2007. As you saw, a policy blue is a confidential advice or briefing prepared by the department for the exclusive use of the Premier. It takes its name from the colour of its paper. Document 14 is two pages in length, the permitted maximum.
Policy blues can be exempt as internal working documents only if their content is deliberative (s 30(1)(a)) and it would be contrary to the public interest to release them (s 30(1)(b)). Further, the exemption doesn't apply to the document only by reason of its purely factual content (s 30(3)). This exemption must therefore be applied on a case by case basis. Policy blues are not exempt as a class.
There has been a previous case in the tribunal concerning policy blues, namely Re Wells and Department of Premier and Cabinet.[14] Senior member Preuss approached the exempt status of a policy blue by applying the provisions of s 30 according to the well-accepted governing principles, not on the basis that such documents were exempt as a class. With respect, I agree with this approach.
Evidence about document 14 and the preparation of policy blues was given by Catherine Haire, the director of the social policy branch of the department. The nature of policy blues was also covered in detailed evidence given on behalf of the department in the case just mentioned.[15] Ms Haire's evidence in this case was consistent with the evidence given in that case. There appears to have been no change in the way policy blues are prepared and used to advise the Premier.
Ms Haire's evidence was that document 14 was prepared by the government branch of the department and signed by two officers. One was Ms Lester. It was created for the purpose of giving advice and information to the new Premier on matters relating to the content of a letter dated 25 June 2007 sent to him by the association. That letter is a public document and is in evidence. The general tenor of the letter is that the association was disappointed with the government's position in the enterprise bargaining negotiations then being conducted.
According to Ms Haire, releasing policy blues, and document 14 specifically, was contrary to the public interest because it would have an adverse effect on the ability of the Premier to obtain confidential advice in the future. Further, the Premier may be inhibited from seeking such advice if it could not be given confidentially. The advice may not be followed and the Premier could be subject to criticism on that basis, rather than for the decision actually taken. Nobody has access to policy blues without the Premier's approval. Policy blues are among the materials which are removed from the department before the election and not returned if a new government is elected. The conventions applying in this regard were explained by Ms Haire, consistently with the evidence given in Re Wells and Department of Premier and Cabinet.[16]
Ms Lester's evidence was that policy blues are central to the way in which the department supports the Premier. She prepared document 14 in strict confidence and solely for the Premier. She described its structure and said the document specified certain background facts, referred to four attachments (which have been released to the association) and gave certain advice to the Premier. After looking at document 14, I accept that evidence.
The first question is whether document 14 is deliberative in content as required by s 30(1)(a). When looking at the document, I considered its contents in the light of the evidence about the Record of Commitments and the government's subsequent negotiations with the association. It is clear from that consideration that most of the contents of the document offer advice and recommendations to the Premier. The background section near the start is introductory and recites only the main points in the association's letter, to which Mr McIntosh has already had access. Those parts alone are purely factual. It is practicable to give access to those parts without revealing the deliberative content of the document. Document 14 will be released to that extent.
Focussing now on the deliberative content of document 14, I must apply the public interest test in s 30(1)(b). I acknowledge, as a significant aspect of the public interest, Mr McIntosh's wish to obtain access to the document as a member of the Parliament who is examining a question of importance, especially taking into account his point that the commitments were made but not announced before the election and were the subject of enterprise bargaining and agreement afterwards. I start from the position that it is in the public interest that Mr McIntosh should be given access to the documents he seeks, which should only be denied if it would be positively contrary to the public interest to release them. That same principle applies to all of the documents at issue. I also take into account the public interest grounds he has filed with the tribunal, especially the grounds based on the Record of Commitments not having been announced before the election.
But document 14 is a policy blue in which high level and confidential advice was given by the department to the Premier about a matter of extreme policy sensitivity and importance to the Premier and the government generally. The Premier and the government should be judged by reference to the actions they took in respect of the Record of Commitments and industrial relations with the police and the association, not the advice which the Premier was given on those subjects.
It is important to protect the Premier's capacity to obtain frank and independent advice in respect of issues of high policy importance, especially industrial relations. Why that is especially so with respect to industrial relations issues needs some explanation.
The government has an ongoing relationship with industrial organisations and other parties. Enterprise agreements are regularly renegotiated. The current enterprise agreement between the government and the association will probably be renegotiated in 2010 when its normal expiry date is reached. The deliberative content of document 14 is of relevance in that context, even though the document is two years old. Moreover, government decision-making about industrial relations issues and enterprise bargaining negotiations are made and conducted within a framework set at the highest level of government, whatever may be the views of individual departments or ministers. As the head of the government, the Premier needs access to frank, confidential and personal advice on that subject, as on others. If the document is released, the department may be inhibited in giving such advice in the future.
Mr McIntosh submits the public are entitled to all relevant information concerning the Record of Commitments, given it was made before but not referred to by Labor in the November 2006 pre-election period. This is a public consideration of some importance, but not sufficient to displace the considerations which strongly favour not releasing document 14. That same conclusion generally applies to the deliberative content of the other documents at issue.
For those reasons, I think it would be contrary to the public interest to release the deliberative content of document 14. I will order the release of paragraphs 2 and 3 and the heading about them. The document is otherwise exempt.

Document 11 is an internal email dated 2 August 2007 passing between officers of the Department of Justice and the Department of Premier and Cabinet.
Document 11 comprises two pages. The second is a request from an officer of the latter department for advice and information from an officer of the first. The document begins with the replying officer's response and includes the requesting message as the history of the reply. The communication is inherently confidential.
Ms Lester's evidence was that the subject of the emails was proposed amendments to the Police Regulation Act 1958. The emails discuss and record details of an intended submission to Cabinet on that subject by the requester.
It appears the document comes within Mr McIntosh's request because the issue of amending the legislation was raised during the negotiations with the association. It thus has a connection with the negotiations carried on between the government and the association during and after the Record of Commitments. However, document 11 is mainly concerned with amending the legislation. The officers deal with various aspects of the detail of that subject, in contemplation of the Cabinet submission.
Document 11 is wholly deliberative in content. On the public interest, it deals with advice to be given to the Cabinet about amending legislation concerning police. That subject arose in the negotiations and is an issue in the ongoing relationship between the government and the association. Releasing the document may disadvantage the government in those negotiations, which are ongoing.
Releasing the document would also tend to invite criticism about what the government may have been advised to consider, not what it actually did. The document records the high level and confidential considerations which were given to aspects of amending the legislation as part of the process of preparing a Cabinet submission. The government is entitled to seek confidential advice on such an important and sensitive subject. Having regard to the high level content of document 11, releasing it may inhibit the Cabinet's capacity to obtain frank and independent advice of that kind in the future.
Accepting the importance of Mr McIntosh's grounds in the public interest for obtaining access to document 11, I still think it would be contrary to the public interest to release it .

Class 6 - document 20 and attachments (internal emails)

Document 20 is an email from Ms Lester dated 15 March 2007 to the deputy secretary of the department. It attached two documents, an agenda of a meeting of the leadership group overseeing the enterprise bargaining negotiations with the association and minutes of a previous meeting of that group (document 21) and draft discussion points (document 22).
On Ms Lester's evidence, the work of the leadership group was highly confidential and the contents of the documents were highly sensitive. The group reported directly to a subcommittee of the Cabinet. The documents were provided to the deputy secretary by way of briefing about the progress of the negotiations. Further briefings were in contemplation.
The content of these documents confirm Ms Lester's evidence. In various level of detail, from the moderate to the very high, the documents deal with the matters to be discussed, the actual offers to be put and the strategic position to be taken in the negotiations with the association. Costing issues are included.
The content of the documents is mainly deliberative but partly factual. As to the latter, the factual material is embedded in the deliberative content and can't be said to be "purely" factual in terms of s 30(3). For example, the agenda for the meeting and some of the minutes of the earlier one contain background material which is not separable from the discussion in the deliberative content. Editing is not a practical option. It would not be possible to release the edited material without revealing the deliberative content.
The public interest is contrary to the release of these documents. The information in them would reveal highly confidential discussions about the matters to be put by the government to the association in the enterprise bargaining negotiations. There is a strong public interest in maintaining the confidentiality of this information to protect the integrity of the government's position in these and further enterprise bargaining negotiations. The agreement ultimately reached is on the public record and can be critically analysed according to its terms. The public interest in Mr McIntosh obtaining access to the documents, important though it is, comes in under that stronger public interest.

Document 5 is an email dated 12 December 2006 from one officer in the Department of Treasury and Finance to another, which was forwarded for the information of an officer of the Department of Premier and Cabinet.
The involvement of the first department was explained in Ms Lester's evidence as being a function of its close oversight of the financial implications of enterprise bargaining negotiations.
The subject-matter of document 5 is the enterprise bargaining negotiations with the association, which were then at an early stage or about to begin. The document discussed what might or might not be put in a submission to the Cabinet on that subject.
The content of document 5 is deliberative. It has no purely factual material. It would be contrary to the public interest to release the document. Disclosure would reveal the considerations that preceded Cabinet being advised about enterprise bargaining with the association. The Cabinet is entitled to receive confidential advice on this subject, and to the protection of its present and future confidential advices, against which there is no stronger public interest in this case. Mr McIntosh's reasons in the public interest for seeking access to the document are not superior.

Class 8 - document 2 (possible parliamentary question)

Document 2 is a brief on possible parliamentary questions prepared by Ms Lester on 17 September 2007 for the Premier. It is four and a half pages in length. It anticipates questions which might be asked in parliament about the enterprise negotiations with the association. It suggests possible answers to those questions and also provides background information about the relevant industrial relations issues.
Ms Lester gave evidence about the function of PPQs, and document 2 in particular. She said PPQs advised the Premier and ministers about how questions in parliament may be answered. The questions may or may not be asked or be answered in the suggested manner. On Ms Lester's evidence, the subject matter of a PPQ might range from the mundane to the highly sensitive and the purely factual to the wholly advisory.
Ms Haire said releasing document 2 would be misleading as it does not represent the Premier's view of how a question should be answered. The Premier should be judged on his answers to questions asked, not on his advisor's opinion about how he might answer questions which might not be asked. Ms Haire also said it was important not to undermine the Premier's capacity to obtain frank and independent advice about issues that might arise in parliament.
Document 2 contains suggested responses to questions which might be asked and also some background information. It is densely packed with factual material about the industrial relations issues in the enterprise bargaining negotiations and the history of those negotiations. But the document is mainly deliberative, for it gives advice and offers opinions about how those issues may give rise to questions in parliament and how such questions may be answered.
Consistently with the principles I have already stated, I have considered whether an edited copy of document 2 might be released. However, the factual material in the document is embedded in the deliberative content. The selection, arrangement and discussion of the facts are inextricably linked with the advice given about how the possible parliamentary questions may be answered. This material is not "purely" factual within s 30(3). It is not reasonably practicable to release an edited version of the document revealing the factual material but not the deliberative content.
The status of possible parliamentary questions has been considered under the Victorian and federal freedom of information legislation.
Under the Victorian Act, Judge Bowman upheld the exempt status of the PPQ in Honeywood v Department of Education.[17] His Honour said it was "by its very nature" a draft of answers "which may be relied upon, modified, or ignored."[18] On the public interest, his Honour said it was "important that officers be able to provide to a Minister in a frank and candid way" such draft answers and other materials of assistance.[19]
The leading federal case is Re Peters and Department of Prime Minister and Cabinet (No 2).[20] Sitting in the Document Review Tribunal, Morling J had to consider whether there were reasonable grounds for certifying that the PPQ was exempt as an internal working document under s 36(1) of the Freedom of Information Act 1982 (Cth). There were, his Honour decided. Here are his oft-cited views on the public interest:[21]

It is obvious that the confidential relationships between Ministers and their official advisers must be preserved. When Ministers are asked questions in parliament they must be able to seek advice on a confidential basis before answering those questions. They are entitled to receive draft answers which, upon reflection, they may wish to discard.

Re Peters was followed in Re Rae and Department of Prime Minister and Cabinet.[22] This is Deputy President Todd in the federal Administrative Appeals Tribunal:[23]

I would add that the answering of parliamentary questions is a vital part of our parliamentary process, and it would appear to me to be quite contrary to the public interest that a Minister, in the present case the Prime Minister, should not be able to have regarded as confidential the advice which the Minister's Department, or personal staff, provide for the purpose of preparing the Minister for such a question.

Re Peters was followed again in Re Fewster and Department of Prime Minister and Cabinet.[24] This is Deputy President Hall in the same tribunal:[25]

It is important to the proper and efficient conduct of government that Ministers should be forewarned and properly advised by their departments on sensitive issues thought likely to arise in the discharge of the Minister's parliamentary functions. Such advice, when in the form of a possible parliamentary question (PPQ) is necessarily confidential to the Minister at the time it is given. If the question arises during question time, it is a matter for the Minister how, in the light of that advice, he replies.

The Deputy President went on to say each document had to be considered on its merits, for a PPQ might, after the passage of time, "become no more that a matter of historical interest".[26]

Re Peters and Re Fewster were followed by the President of the federal tribunal in Re Reith and Minister of State for Aboriginal Affairs.[27] Justice Hartigan refused access to the PPQ because this "would breach the need for confidentiality between the Minister ... and an official adviser."[28]
I agree with the principles discussed in these Victorian and federal cases about the status of PPQs under the internal working document exemption. PPQs are not exempt as a class and their status must be assessed case by case. The observations I made earlier in that regard by reference to policy blues apply equally to PPQs. Similarly, if a PPQ can be released in the form of an edited copy which reveals factual material but not deliberative content, this should be done. When it comes to the public interest, it is very important to the parliamentary process that the Premier and ministers are able to obtain full, frank, independent and confidential advice about possible parliamentary questions, and how they may be answered, especially in relation to issues of high policy importance. This is a significant public interest consideration.
The confidentiality of PPQs is respected under the rules governing the compulsory tabling of documents in parliament.
As agreed between the parties, the houses of the Victorian parliament may, under s 43(1)(f) of the Constitution Act 1975, make standing orders regarding the conduct of proceedings. Order 1 of the Standing Orders of the Legislative Assembly[29] states:

In all cases that are not provided for in these standing orders or by sessional or other orders, or by the practice of the House, the Speaker will determine the matter after reference is made to the rules, forms and practices of parliaments operating under the Westminster system, insofar as they may be applicable.

The standing orders of both houses deal with the mechanism to be adopted when the house wishes to obtain documents or members wish to table them. For example, order 171 provides for documents to be produced to the Clerk when so ordered and order 174 allows members to bring documents to the Clerk. The standing orders do not address the circumstances where members are seen to be reading from a document which they may be called on to table. That issue is addressed by reference to the general conventions applying in parliaments under the Westminster system.
In the Australian parliament, this is order 201of the Standing Orders of the House of Representatives: "If a Minister quotes from a document relating to public affairs, a Member may ask for it to be presented to the House. The document must be presented unless the Minister states that it is of a confidential nature." The standard text confirms such documents do not have to be tabled if the minister states they are confidential, and the minister's word is accepted on that subject.[30] Standing order 168 of the Senate is to the same effect.
In the United Kingdom, the procedure is described in Erskine May's Parliamentary Practice.[31] There also ministers cannot read or quote from a document unless they are prepared to table it in the house if called on to do so.[32] But the "rule for the laying of cited documents does not apply to private letters or memoranda."[33]
Thus, as agreed by the parties in this case, the parliament of Victoria would likely follow the procedure in the parliaments of Australia and the United Kingdom. So, in Victoria, a minister can be called on to table a document from which he or she reads or directly quotes in the parliament, but not from a document, such as a PPQ, which is private and confidential, as determined by the minister.
The protection afforded to PPQs under the parliamentary procedures is not determinative of their status under the Freedom of Information Act. But it does reinforce the importance of the public interest in the Premier and ministers having confidential access to them.
Accepting the significant public interest in Mr McIntosh having access to the PPQ, there is a stronger public interest for refusing it. The Premier and ministers are entitled to receive frank, independent and confidential advice about how to answer possible parliamentary questions if asked, and be judged on their answers, especially in relation to issues of high policy importance. PPQs represent an adviser's views about the matters at possible issue, not those of the Premier or minister. The Premier and ministers should not be judged on their adviser's views. Releasing PPQs on matters of high policy importance may inhibit access by the Premier and ministers to frank and independent advice of that kind in the future. There is a public interest in the proper operation of the democratic process in parliament. This supports the Premier and ministers having access to confidential advice about how to answer possible parliamentary questions on matters of high public importance. PPQs are not exempt as a class and it is always necessary to consider the context in which the document is being sought, the issues of concern to which it is said to relate and any countervailing public interest considerations. But in this case, having regard to the content and context of document 2, and to maintain the efficacy of the parliamentary process, it would be contrary to the public interest to release it.

Document 27 is a draft briefing of seven pages dated 16 April 2007. It was prepared by a senior officer (Ms Lester's counterpart) in the Department of Justice for the Chief Commissioner of Police to give to the Minister for Police and Emergency Services. It was intended to update the minister on the progress of the 2007 negotiations. Document 27 is a copy of the draft which was provided to Ms Lester for her information.
Ms Lester's evidence was that document 27, and especially the attachments, contain highly confidential information, some of a financial nature, and some that is highly commercially sensitive in the bargaining environment.
Document 27 sets out the negotiating strategy of Victoria Police and the course of the negotiations to date. It then comments on various issues raised in the negotiations, especially the financial issues. It examines in detail the various options for reaching agreement and how particular wage increases might be funded or justified, having regard to government policy on industrial outcomes. It identifies a number of risks if the then current agreement expired without being renewed, and makes certain recommendations. The attachments contain financial information of central relevance to the government's position in the negotiations. The document is inherently confidential.
Document 27 is deliberative in nature. The factual material, which is extensive, is so intertwined with the advisory content that it is impractical to separate it. It is not "purely" factual.
The content of the document is highly confidential. It is a draft briefing, not a final one, which strengthens the case for non-disclosure. It discloses the detail of the government's strategy in the enterprise bargaining negotiations. Having regard to that content, I don't think the author of the document could do it adequate justice unless he or she believed it would remain confidential. Releasing the document would undermine the government's ability to get such advice in the future, breach the confidentiality of the draft and potentially advantage the association in its future dealings with the government over industrial relations issues. These very strong public interest considerations outweigh those relied on by Mr McIntosh.
It would therefore be contrary to the public interest to release document 27.

Document 29 comprises handwritten notes taken by Ms Lester during an enterprise bargaining leadership group meeting. The notes are not minutes of the meeting and have not been adopted or agreed to by the other participants. They were prepared by Ms Lester as an aide memoir.
Document 29 appears to set out who was at the meeting and the names of certain other people with a relevant involvement. It refers to various issues being negotiated, but only in the briefest and most general of terms. The contents of the document do not appear to be controversial or sensitive.
I have considerable doubts about how much of document 29 can be fairly described as deliberative within s 30(1)(a). Some little only of its contents clearly deserve that description. The rest is factual material of no obvious significance.
As to the public interest, document 29 seems to contain known information about the composition of the leadership group and the issues it discussed in general terms, without revealing anything sensitive or confidential. Assuming s 30(1)(a) applies to the document, it would not be contrary to the public interest to release it in full.

Document 25 is a memorandum dated 20 December 2006 from the Cabinet secretariat branch to the government branch of the department relating to the referral of a matter on an adjournment debate in the Parliament. It has been released in part. It attaches a transcript of the adjournment debate in the Legislative Assembly on 19 December 2006 in which Mr McIntosh referred to police industrial relations issues. It contains a handwritten note at the bottom.
The transcript is a public document. Also, I have read and considered Mr McIntosh's speech in the context of considering document 25 and his case on the public interest generally.
Mr McIntosh does not press his request for access to the name at the top and the bottom of the document.
The undisclosed material sets out the procedures usually followed by the government to respond to matters raised in adjournment debates. The handwritten notes apparently refer to some steps taken in accordance with those procedures.
Ms Haire's evidence was that the deleted information constitutes advice in relation to the department's internal processes, working conventions and protocols for dealing with matters raised in adjournment debates. That is a reason for releasing the document, consistently with the policy of s 8(1)(a)(ii) of the Act. She said releasing document 25 in full would undermine the ability of officers to provide such information candidly in the future. I reject that evidence.
Again, I have difficulty in describing document 25 as deliberative. Assuming it is, it would not be contrary to the public interest to release it.

Andrew McIntosh, a member of the parliament of Victoria, sought review of the decision (on internal review) of the Department of Premier and Cabinet to refuse his request under the Freedom of Information Act 1982 for access to documents relating to the Record of Commitments made by the then Premier and the responsible minister on the one hand and The Police Association on the other.
As a result of the commendable pre-hearing cooperation between the parties, the documents at issue were reduced to nine (in seven classes) representing a total of 19. The one exemption relied on is that the documents are internal working documents release of which would be contrary to the public interest, as specified in s 30 of the Act.
Two documents of particular significance were a "policy blue", which is an advisory brief to the Premier, and a "PPQ", which is an advice to the Premier or minister with suggested answers to possible parliamentary questions.
The main public interest ground relied on by Mr McIntosh was that the commitments were given by the Labor government before the election in November 2006 without being announced and were the subject of enterprise bargaining negotiations with the association after it won that election. I acknowledged the importance of that public interest. The main public interest relied on by the department was that the Premier and ministers were entitled to receive confidential advice about subjects of high policy importance, especially concerning industrial relations.
After hearing the evidence and looking at the documents, I have decided the documents contain mostly deliberative content covered by s 30(1)(a) of the Act. The documents do contain factual material, but it is mostly so intertwined with the deliberative content that it is not "purely" factual within s 30(3) and cannot practicably be released without revealing the deliberate content. Some of the material in one document is purely factual and can practically be released in the form of an edited copy of the document.
I have decided the public interest which the Premier and ministers have in obtaining confidential advice about matters of high policy importance outweighs the public interest in Mr McIntosh obtaining access to the documents. The public interest in obtaining confidential advice is especially strong in regards to industrial relations. The government is in an ongoing relationship with the association. Enterprise bargaining is carried out regularly. Releasing advice given to the Premier and ministers would breach the confidentiality of the advice. It would also inhibit the capacity of officers to give such advice independently and frankly in the future and potentially disadvantage the government in future negotiations with the association.
After examining the nature and role of "policy blues" and "PPQs", I have decided they are not exempt as a class. But there are powerful reasons in the public interest in this case for not releasing those documents. A policy blue is the main vehicle by which the department provides confidential advice to the Premier, which may be ignored. A PPQ is a mechanism by which the Premier or a minister may be confidentially advised about possible parliamentary questions. Again, it is important to preserve access to that source of confidential advice, which also may be ignored. These considerations apply in this case. The government's actions and decisions in relation to the Record of Commitments and the enterprise bargaining agreement subsequently made with the association are matters of public record. It would be contrary to the public interest for information about the advices and deliberations leading up to those actions and decisions to be disclosed, accepting Mr McIntosh's reasons in the public interest wanting the access he seeks.
I have decided that two documents do not have such content as would make it contrary to the public interest to disclose. They will be released.
There will be orders confirming the decision under review with respect to most of the documents, including the PPQ. The decision in relation to the policy blue will be varied giving Mr McIntosh access to the purely factual material. It will be otherwise exempt from disclosure. The decision in relation to two documents will be set aside and orders made giving access to those documents.

[5] Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs [1996] AATA 210; (1996) 43 ALD 139, 150-151.

[8] See McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 and Osland v Secretary, Department of Justice (2008) 234 CLR 275.

[9] McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423, [19].

[13] Secretary, Department of Justice v Osland [2007] VSCA 96; (2007) 95 ALD 380, 399-400.

[15] Ibid, 296-298, and see the tribunal's conclusion at 304, [36].

[29] Order 25.1 is the relevant order in the Legislative Council and it is not materially different.

[30] Ian Harris (ed), House of Representatives Practice (5th ed, 2005) 590.

[31] Sir William McKay KCB (ed_), Erskin May's treatise on the law, privileges, proceedings and usage of Parliament_ (23rd ed, 2004).

Information Act 1982

McIntosh v Department of Premier and Cabinet

At a glance

Court

Decision date

Before

Source

Judgment (56 paragraphs)

McIntosh v Department of Premier and Cabinet (General) [2009] VCAT 1528 (11 August 2009)

Parties

Legislation Cited (2)

Cases Cited (3)