Victorian Civil and Administrative Tribunal|2012-04-02

The applicant invoked the high public interest in ensuring the protection of public health. His counsel, Ms Currie, submitted that the public are entitled to know what tests are being carried out to be able to scrutinise them and form a view as to their effectiveness and as to the quality of the report by NAA. She also referred to authority in relation to the need to be able to test expert evidence in legal proceedings, saying that the public interest here is akin to the rationale for scrutiny of expert material in litigation between parties where expert evidence is being relied on. Thirdly, she relied on the public interest in the integrity of independent advice publicly proffered to Council in relation to a matter of public health and safety. It was contended "that interest is of particular prominence in circumstances where the independence of the risk assessment and the reporting from the Council's own processes was an essential reason for commissioning the independent risk assessment and report".
I do not accept that any of these aspects of public interest are of sufficient magnitude to satisfy the threshold required for section 50(4). I do not accept the suggested analogy with the need for scrutiny of expert evidence in litigation. In relation to public health, of course this is important, but there is nothing in the content of the documents which suggests that an issue arose in the conduct of this matter by the Council, which gives rise to an overriding concern, or a need to expose the Council's internal processes beyond what would normally occur in applying section 30. Whilst the spectre of "legionella" was raised, I do not accept there was a potential threat to public health of sufficient magnitude to outweigh the public interest against release, let alone require release of the document. Also, of course, the facility was closed down 12 months ago and so such public health concerns are no longer current.

Information Act 1982

Penhalluriack v Glen Eira CC (General) [2012] VCAT 370 (2 April 2012)

To protect the deliberative processes of Government and to ensure that measure of confidentiality which will enable policy and the like decisions to be taken after the frankest possible interchange of views and ideas between officers of the Public Service and between them and their Minister, as well as between members of the Ministry. (Honeywood v DIIRD [2004] VCAT 1657 at [22], citing, Lazarus J in Penhalluriack v Department of Labour and Industry (Country Court, 19 December 1983).

More recently, in Friends of Mallacoota Inc v Department of Planning [2011] VCAT 1889 at [67] Her HonourVice President Hampel J said:

The key requirements of section 30(1)(a) are that the matter in the documents in question must be in the nature of opinion, advice or recommendation. Alternatively, they must comprise consultation or deliberation between officers, councillors or between an officer and a councillor.
It is well accepted that the term "officer" includes independent consultants retained by agencies to assist in carrying out their functions (Re Brog v Department of Premier and Cabinet (1989) 3 VAR 201, Styles v Victorian Work Cover Authority [2010] VCAT 1815).
It was not contested by the applicant that NAA fell within the meaning of "officer" in this case.
In relation to the second limb of section 30, there are numerous decisions of this Tribunal, its predecessor and the courts which indicate that draft documents will, on consideration, generally turn out to be inappropriate for release where the final version was published (see for example Western Mining Corporation v Department of Conservation Forests and Lands (1989) 3 VAR 151 and the authorities sited therein). This is not an absolute proposition, however. Every disputed document must be examined on its own merits.
The main issue between the parties in this case was the public interest requirement in section 30(1)(b). Characterisation of the document under section 30(1)(a) was raised in relation to three of the documents. In addition, it was submitted that the public interest override in section 50(4) applied in relation to the six disputed documents.
I now consider the disputed documents in turn.

This was described as an email from the Manager of Public Health and Community Development dated 2 February 2007. It was addressed to NAA. It comprises, in written form, some of the discussions referred to above, which gave rise to version V2 of the report (ie document 34). It discusses the contents of the first version of the NAA report. It sought information in addition to that contained in the first version of the NAA report.
The applicant contended that only the first sentence of the second last paragraph could properly be described as an opinion expressed by a Council officer. I disagree. In my view, a fair reading of this document as a whole is that it is discussing the appropriate content of the report to be put to Council, and then, presumably, released publicly. It is part of the process of determining what the appropriate content of the report is, in order to fulfil its purpose, which is, broadly, to advise Council on any risks associated with the facility, and to recommend steps to deal with such risks.
In terms of the public interest component of section 30, the reasoning in paragraph 31 above applies. Revealing the contents of Document 31 would disclose the differences between the draft report (V2- which is Document 34) and the version which was publicly released (V3). In other words it would of necessity, or by inference, reveal the contents of a draft document. In Phillip Honeywood v Department of Education [2003] VCAT 780, Bowman J held that such documents are in the same category as draft documents themselves. That reasoning applies equally here.

Finally, the applicant contended that the section 50(4) "public interest override" applied to require the release of the six documents in dispute_._
In Osland v Secretary to the Department of Justice [2010] HCA 24, French CJ, Gummow and Bell JJ said at paragraph 14:

Parties

Penhalluriack v Glen Eira CC

At a glance

Court

Decision date

Source

Judgment (1 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (6)

Penhalluriack v Glen Eira CC (General) [2012] VCAT 370 (2 April 2012)