Victorian Civil and Administrative Tribunal|2002-05-23

Olexander v Department of Premier & Cabinet [2002] VCAT 497 (23 May 2002)

FREEDOM OF INFORMATION - whether request can be split for purposes of s.25A(5) - whether request can be treated as a number of requests - re Wilson and Department of Premier and Cabinet [2001] VCAT 663; 16 VAR 455 - meaning of "the same document or the same information" in s.50(6) - purpose of discretion in s.50(6) - whether for purposes of s.28(1)(d) an executive summary is to be treated differently from the document summarised - meaning of "consideration" - meaning of "the Cabinet" - Freedom of Information Act 1982 ss.25A(5), 28(1)(b), 50(6)

1. As to the documents described as Documents 2, 3, 4 and 5 in the attached reasons, decision of the respondent refusing access to such documents affirmed.

2. Order that within seven days of the date of this order, the respondent identify any document or documents described in the refined request and which have not already been identified and that the respondent state in writing any exemption or exemptions asserted with respect to any such documents.

3. As to the document described as Document 1 in the attached reasons, hearing of application for review adjourned to a date to be fixed.

For the Respondent: Mr S R Morris QC with Dr K L Emmerton instructed by the Victorian Government Solicitor

This is an application to review a decision of the respondent refusing the applicant access to certain documents sought pursuant to the Freedom of Information Act 1982 ("the Act").

1. The request, as refined, was for access to the following documents.

"Final Reports/Summary Documents for all Polling, Attitudinal Research Local Area Research, Adhoc Research and Consumer Research completed by, or completed for the Department of Premier and Cabinet or the Officers of the Ministers in the Department of Premier and Cabinet since 20 October 1999."

2. The refined request is dated 21 August 2001, so the period covered by the request is 20 October 1999 to 21 August 2001.

3. The respondent has granted access to some of the documents sought but has identified the following documents to which access has not been granted.

3. Final Report - Qualitative findings, dated April 2001

4. Final Report - Quantitative findings, dated April 2001

4. The respondent seeks to rely on evidence of Marie Therese Ferris to support the exemptions asserted with respect to Document 1. Ms Ferris was ill on the day of the hearing and unable to attend for cross-examination. The Tribunal accepted the request of the parties to adjourn the hearing so far as concerns Document 1 but to proceed with the hearing with respect to other disputed documents.

5. The respondent has acknowledged the existence of documents covered by the request, but which have not been identified. These documents were described as the "VAMS documents" (VAMS being an acronym for "Victorian Attitude Monitoring Survey"). Mr Morris QC, who appeared on behalf of the respondent, later asserted that there is in fact a single VAMS document not identified, namely the report produced as part of the "fourth wave of VAMS", which was the final "wave" conducted under a VAMS contract entered into by the previous Government with Quantum Research.

6. Although the respondent has informally identified the VAMS report as the only report which it has not formally identified, the respondent nonetheless seeks to rely upon s.25A(5) with respect to that report. That subsection provides, so far as is relevant:

"An agency or Minister may refuse to grant access to the documents in accordance with the request without having identified any or all of the documents to which the request relates and without specifying, in respect of each document, the provision or provisions of this Act under which that document is claimed to be an exempt document if -

(a) it is apparent from the nature of the documents as described in the request that all of the documents to which the request is expressed to relate are exempt documents ..."

7. It is clear from the evidence Joanne Elisabeth Duffy, Deputy Director, Strategic Communications and Government Information Branch, Department of Premier and Cabinet, that at least some of the documents described in the refined request are not by their nature exempt, namely Adhoc Research reports. According to Ms Duffy, such reports are sometimes prepared for the purpose of submission for consideration by Cabinet and sometimes not.

8. Therefore, if "request" in paragraph (a) of s.25A(5) means the whole of the request, it is not "apparent from the nature of the documents as described in the request that all of the documents to which the request is expressed to relate are exempt documents". In that event, the claim based on s.25A(5) would fail.

9. Mr Morris contends, however, that the applicant's request can be treated as a number of requests. In other words, each class of documents identified in the request is to be treated as a separate request. If it is apparent that documents in any class are by their nature exempt, the agency can refuse to grant access to those documents without identifying them.

10. A number of examples were postulated which clearly demonstrate that this would be an eminently sensible way in which to construe paragraph (a). As Mr Morris pointed out, were it otherwise, an applicant could defeat the operation of subsection (5) by describing a number of manifestly exempt documents, then adding a single document which would not by its nature be exempt.

11. The issue is, simply, whether effect can be given to this sensible construction. For the affirmative, Mr Morris relied on a decision of Deputy President Macnamara in re Wilson and Department of Premier and Cabinet, [2001] VCAT 663; 16 VAR 455. In that case the applicant sought:

"All letters, file and diary entries, emails, tapes, briefing documents and memoranda held by the Department of Premier and Cabinet, in the Offices of the Premier and Parliamentary Secretary to the Premier, including staff, and dated from 19 October 1999 to the date on which this request was received regarding any proposals or plans to introduce a jobs and/or growth impact statement on every Cabinet proposal and any jobs and/or growth impact statements that have been prepared or submitted by Victorian Government Ministers, their staff or consultants and/or Victorian Government Departments or Agencies, their staff or consultants to Cabinet as part of the process of deliberation prior to decisions being made."

12. The Freedom of Information Officer of the Department elected to consider the request in two parts. As to one part, twelve documents were identified. As to the balance, access was refused pursuant to s.25A(5), without identification of the documents.

13. Deputy President Macnamara upheld the claim based on subsection (5), notwithstanding that the claim was made with respect to only part of the original request. But the decision does not directly address the issue which here arises. I can but assume that the parties in re Wilson were content to conduct the review on the basis that the request could be split and that Deputy President Macnamara - sensibly, if I may say so with respect - was agreeable to that course. Many things can be done by consent.

14. But in this case Mr Williams, for the applicant, has taken the point and it therefore falls to me to determine whether "the request" in paragraph (b) can be given the meaning for which Mr Morris contends.

15. The answer, in my opinion, is "no". Section 25A, together with s.24A, were added to the Act in 1993. They differ from other provisions inasmuch as they refer to a request for access to documents, whereas the original sections of the Act refer to a request for access to a document. But to my knowledge there has never been a requirement, or practice, that a separate request be made for every document to which access is sought. A request for multiple documents has always been treated as a single request. Sections 24A and 25A assume this practice. Looking only at the original sections of the Act, and ignoring the long-standing practice to which I have referred, it might be argued that a request for access to ten documents is in fact ten requests. It could not, however, be argued that the number of requests is to be determined by the number of classes of document. Then when one looks at the different language of ss.24A and 25A, it is evident that the `one request/one document' argument is totally untenable and the `one request/one class' argument even less so.

16. Amendment of s.25A is worthy of consideration.

17. Mr Morris sought to rely in the alternative on s.50(6) which states:

"The Tribunal may refuse to review a decision of an agency or Minister to refuse the request of a person for access to a document if the Tribunal is satisfied that it has previously reviewed a decision of the agency or Minister to refuse access to the same document or the same information."

18. Mr Morris observed that in Re Mildenhall and Department of Premier and Cabinet (No 1) (1995) 8 VAR 284, VAMS studies were held to be exempt by reason of the operation of s.28(1)(b). It should first be noted that s.28(1)(b) was subsequently amended. Be that as it may, I am of the view that s.50(6) is not applicable to the "fourth wave" VAMS report described by Mr Morris in this case. It is not "the same document or the same information" as was the subject of the decision in re Mildenhall.

19. Section 50(6) is a discretionary provision. In my opinion, its probable purpose is to prevent an abuse of the processes of the Tribunal of the kind which would occur if, the Tribunal having refused applicant A access to a particular document, applicant A procured applicant B to make an identical application. I would be loathe to apply s.50(6) to an application by an entirely unrelated and unassociated party for access to a different (albeit similar) document.

20. Mr Morris then asked me to find here and now that the "fourth wave" VAMS report is exempt: in other words to deal with the matter in a summary way. I decline to do so for several reasons: first, I am of the view that the document ought to be formally identified in the usual way and the exemption or exemptions relied upon stated; secondly, Mr Williams did not have an opportunity to address his case to that specific issue.

21. It was agreed that if I were to so conclude the appropriate order is that within seven days of the date of this order the respondent identify any document or documents described in the refined request and which have not already been identified, and that the respondent state in writing any exemption or exemptions asserted with respect to each such document.

22. That brings me to documents 3 and 4. Exemption pursuant to s.28(1)(b) is asserted. In support of this claim the respondent called Dr David William Adams, Director of Policy Development and Research, Department of Premier and Cabinet. Dr Adams said documents 3 and 4 came into existence as part of a single research project. The purpose of the project was to assess Victorians' expectations of Government action and the medium to long-term outcomes which would guide policy choices for Government. Two reports were commissioned: qualitative findings (document 3) and quantitative findings (document 4). Dr Adams drafted the questions for the quantitative research and the "script" for the qualitative research. Questions included:

* how respondents ranked Government's performance in relation to broad strategic policy settings;

* respondents' expectations of Government in terms of policy and service delivery;

23. Dr Adams said the research focussed on policy and broad service delivery issues rather than performance within areas of individual ministerial responsibility.

24. Dr Adams said "It was always my intention that the outcome of the Project research, namely the Project Reports, should be submitted for consideration by the Cabinet." He said the author of the reports, Quantum Research, were informed that the reports were to be prepared for that purpose. He said this would to some extent dictate the style in which the documents were written and the information prepared. Dr Adams said the project was approved, on his advice, by the Secretary to the Department of Premier and Cabinet. He said he and his staff made an analysis of the reports. It was this analysis which went to Cabinet, though the reports were available for Ministers "should they wish to delve into it". He said he briefed the Premier prior to the reports being considered by Cabinet. He said the reports formed part of an agenda for a Cabinet meeting.

25. It was put to Dr Adams in cross-examination that the reports were not prepared for the purpose of submission for consideration by Cabinet. Rather, Mr Williams put, the document submitted for consideration by the Cabinet was the analysis of the reports prepared by Dr Adams and his staff. Dr Adams rejected this suggestion. He said it was his intention that "some or all" the reports would be provided to Cabinet.

26. Mr Williams suggested to Dr Adams that the assertion that the document was prepared for Cabinet was a smoke screen to shield the reports from public scrutiny under Freedom of Information. Dr Adams rejected this suggestion.

27. I found Dr Adams to be a candid and credible witness. I have no reason to disbelieve what he told me.

28. The Tribunal has previously held that it is unnecessary for an agency to prove that the Cabinet actually considered the disputed document: re Pullen and Alpine Resorts Commission (unreported) AAT of Vic, Macnamara DP, 23 August 1996; re Wilson and Department of Premier and Cabinet [2001] VCAT 663; (2001) 16 VAR 455. As to the suggestion that it was the analysis, rather than the reports, which were destined for Cabinet, it is commonplace for executive summaries, as they are often called, to be prepared. Practices no doubt vary to what then happens to the summarised document. In my experience the summarised document is always available for examination if one or more members of the board or committee wishes to examine it. Whether the report is actually brought into the meeting room is immaterial. The executive summary explains to the members of the board or committee in a shorthand way what they would themselves read if they examined the report. The fact that such a summary is prepared does not make the report itself any the less a document for consideration by the board or committee for whom the summary is prepared.

29. Although Dr Adams did not describe the `analysis' as an executive summary, it was my clear understanding that this was its essential character. The s.28(1)(b) exemption would be hollow indeed if it protected the summary, but not the document summarized.

30. The public interest override for which provision is made in s.50 of the Act does not apply to a document exempted by s.28. Therefore, with respect to documents 3 and 4, the decision of the respondent to deny access is affirmed.

31. That brings me, finally, to documents 2 and 5. These documents were the subject of evidence by Ms Duffy. She said:

"The Victorian Government has initiated a programme of metropolitan and regional Cabinet meetings to provide a forum for Ministers to meet with local communities and directly address local issues. The Community Cabinet programme generally includes an opportunity for public access to Ministers, including the presentation of formal deputations and informal submissions."

"Local area research was undertaken prior to Community Cabinet meetings to ascertain issues of local importance that are the responsibility of the State Government. The research is used by Cabinet to gain an understanding of local issues and to ensure that a balanced perspective can be given when responding to formal deputations and submissions relating to Ministerial portfolios."

33. Ms Duffy said that documents 2 and 5 are research reports commissioned for Community Cabinet meetings held in Knox and Wodonga respectively. She said:

"On each occasion, a request was made from the Premier's private office to the Department [of Premier and Cabinet] to obtain the local area research for the purpose of briefing the Premier and Cabinet as to local area issues."

34. Ms Duffy said she supervised the project management process which culminated in the creation of the reports. She said both reports were prepared on behalf of the Premier for the purpose of being submitted for consideration by Cabinet.

35. In cross-examination Ms Duffy said that the format for the Community Cabinet meeting is as follows. Cabinet members travel to the selected venue. A meeting of Cabinet takes place following which members of Cabinet, individually or in groups, meet with representatives of the local community to discuss issues of interest and concern. Ms Duffy appeared to acknowledge that the reports are prepared to assist Cabinet members in this dialogue by better acquainting them with local issues.

36. In cross-examination Mr Williams sought to demonstrate that the reports were not in fact prepared for the purpose of submission for consideration by the Cabinet but, rather, for the information of individual Ministers in preparation for their dialogue with the local community. This, Mr Williams said, is not in any sense a Cabinet process. He submitted that once the Cabinet meeting has ended, the Ministers cease to be performing Cabinet functions: therefore, a report prepared for the purpose of facilitating the community dialogue is not a report prepared for consideration by the Cabinet.

37. This submission prompted a discussion as to the meaning of the expression "the Cabinet" in s.28. Subsection (7)(a) provides that "Cabinet" includes a committee or sub-committee of Cabinet, but there is no other definition of Cabinet in the Act.

38. The Oxford Companion to Law states, inter alia, in relation to the Cabinet in the UK:

"Cabinet evolved from the Privy Council, from the practice after the restoration of the King's most trusted members of the Privy Council meeting as a committee and taking decisions before or without consulting the full Privy Council. In the time of Queen Anne it became the main machinery of Executive Government and the Privy Council became formal. The name probably developed from its meeting in the King's cabinet or private room. From about 1717 George I ceased to attend and thereafter the Cabinet met independently. By the late 19th century its collective responsibility had replaced the authority of the monarch and ministers were carrying on the government of the country.

In modern practice the Cabinet is a committee of persons from the majority party in the House of Commons, chosen and led by the Prime Minister, and mostly entrusted by him with the headship of major departments of State. It has the function of deciding, in association with the Prime Minister, on Government policy, of controlling the Executive, and co-ordinating the activities of the Executive Departments."

39. I was informed that in Victoria every Minister is a member of the Cabinet.

40. The book "Victorian Constitution - The Constitution of Victoria with Notes on How it Works", prepared by a committee under the chairmanship of the Honourable Richard E McGarvie, provides the following assistance:

"The Governor requests the leader who has the support of the majority in the Legislative Assembly to become Premier, to form a government and to nominate other ministers. The Governor then appoints as responsible ministers of the Crown the Premier and others nominated. The ministers must be members of the Victorian Parliament, or become members within three months. Together they are called the Government, Cabinet or Ministry.

41. In other words the authors take the view that "the Cabinet" has the same meaning as "the Ministry" or "the Government".

42. These references are helpful in determining whether the Cabinet is simply a collective name for the Ministers of the Crown or whether it connotes a deliberative body comprising such Ministers. Mr Williams argues that it is the latter and that unless Ministers are deliberating together, or as part of a sub-committee of Cabinet, they are not "the Cabinet".

43. Further, Mr Williams contends that the phrase "for consideration by the Cabinet" means more than "for the information of the Cabinet". In other words, he contends, the report must be prepared for the purpose of enabling or assisting the Cabinet to consider, in a deliberative way, an issue or issues. If it simply provided for information, it is not provided for "consideration".

44. I think this particular distinction is altogether too subtle. The Cabinet, like any committee, is provided with information to assist in immediate decision-making, and also with information to guide decisions which might need to be made in the future. Every board member or committee member will be familiar with material in this second category. It is material "for consideration" in the relevant sense.

45. It does not follow that merely because a document is circulated to every Minister, it is to be regarded as a document prepared for consideration by the Cabinet. In this context it is important to note the setting in which paragraph (b) is found.

* paragraph (a) refers to "the official record of any deliberation or decision of the Cabinet.

* paragraph (ba) refers to "a document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet": in other words, such a document is exempt only if it relates to issues to be considered by the Cabinet.

* paragraph (d) protects a document "the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet.

46. The context provided by subsection (1) read as a whole strongly suggests that "consideration" means a step in a deliberative process. It might not be a matter on which an actual decision must be made, but it must be a matter which is likely to be considered to the extent, at least, of being discussed at a meeting of Cabinet. Unless the exemption is limited in that way it would extend to any documents circulated to Ministers `for information'.

47. Was the community dialogue (as I have described it) part of a deliberative process? For the answer to this question, I was confined to the evidence of Ms Duffy. She was asked whether members of the public and members of local groups were given the opportunity to address "Cabinet itself". She said:

"I think that depends on the format. I don't attend very many community Cabinet meetings. Sometimes all of Cabinet is present, sometimes it's a ministerial grouping that's present, sometimes Ministers in small groups, sometimes as Cabinet. I think it depends on the issues on the agenda on the day."

"Isn't it the case that ... the consultation process involves not the Cabinet itself consulting with the local community but individual Ministers consulting with the local community and vice versa - isn't that the case?"

"I've been to a couple of these meetings ... Cabinet has a confidential Cabinet meeting, as all its meetings are, and then members of the Cabinet actually engage with the community in a variety of ways."

53. I then asked whether "Members of the community are invited to join Cabinet members in the meeting room to discuss issues". Ms Duffy said:

"Cabinet are generally moved into a public venue and then will have people present formal submissions or will break up into groups for informal consultation with people."

"What I'm suggesting to you is that the research that is performed for the community Cabinet meetings is not researched for the meeting of Cabinet itself but is researched to enable individual Ministers or groups of Ministers outside the actual context of Cabinet to engage in a consultation process with local people."

"To the extent that the research is actually an input from which Cabinet can generate decisions on priorities, then I'll disagree with that. It goes to Cabinet. It's also of value to individual Ministers .... given their portfolio responsibilities, but collectively those portfolio responsibilities make a Cabinet."

"But in terms of local research, the local research is directed at a local event that is forthcoming and that particular local event forthcoming is the visit of Cabinets to a local area."

"It's directed towards members of Cabinet being able to respond to issues of local importance when they are in a local area."

"Not to a particular decision that Cabinet proposes to take whilst it's there?"

"It could possibly do that if issues are identified that require a Cabinet decision in that local area."

"But your research is not directed in response to a request from Cabinet to address an issue, rather it's directed to a request from the Premier through his Chief-of-Staff to find out what the local people in that particular area would want to talk to their representatives about?"

"That's part of the process, but the research is also generated for Cabinet to actually identify whether that Cabinet needs to make a decision in that local area."

62. Ms Duffy then said she had not attended either the Knox or Wodonga community Cabinet meetings and could not say, one way or other, whether any of the research conducted in anticipation of those meetings was directed to a specific decision which it was anticipated Cabinet might be called upon to make. She added:

"The research was used to identify whether there were decisions that Cabinet needed to make, not to start from a Cabinet decision and find out what the position ought to be. It's quite possible that the research didn't identify an issue that the Cabinet needed to make a decision by [sic] ... there might not have been any."

63. I glean from this evidence that the format for the community dialogue which occurs at community Cabinet meetings is flexible and can evolve spontaneously. Sometimes there is a formal presentation to Cabinet, at other times there is informal dialogue between community representatives and small groups of Cabinet members. I would regard a formal presentation to the whole of Cabinet as a step in a deliberative process. The presenter(s) hope and intend, obviously, that Cabinet will act upon the representation made - perhaps not on the spot, but in the fullness of time.

64. The less formal dialogue with small groups of Ministers probably falls on the other side of the line. Be that as it may, once it is accepted that the research is conducted for purposes which include, or might include, formal dialogue with the whole of Cabinet, a document prepared for consideration by Cabinet as part of that process can be regarded as a document falling within s.28(1)(b).

65. Of course, the fact that the particular document is capable of being regarded as exempt under s.28(1)(b) does not necessarily make it exempt. I must be satisfied of the purpose for which the document was prepared. In this regard I found Ms Duffy to be a credible witness and am prepared to accept the evidence she gave as to purpose.

66. It follows that the exemption claimed with respect to documents 2 and 5 is established. The decision of the respondent to refuse access to those documents is therefore affirmed.

Information Act 1982

Olexander v Department of Premier & Cabinet [2002] VCAT 497

At a glance

Court

Decision date

Source

Judgment (91 paragraphs)

Olexander v Department of Premier & Cabinet [2002] VCAT 497 (23 May 2002)

Parties

Legislation Cited (1)