For Applicant: Mr Ginsbourg with Mr David O'Brien both of counsel instructed by Aitken Partners

For Respondent: Mr M Batskos, solicitor, FOI Solutions

1. This proceeding concerns a request by Mr Peter Ryan MP, leader of the National Party, to Melbourne Water. It is a request for a copy of an email including attachments dated 2 April 2008 sent from the Department of Sustainability and Environment (the Department) to Melbourne Water. The email and attachments relate to the possible entitlement Melbourne Water will hold to water from the Goulburn.
2. Melbourne Water denied access, claiming the email and attachments (the documents) were exempt from release under s 30(1) of the Freedom of Information Act 1982 (the Act).
3. The hearing of the application commenced on 17 June 2009 and resumed on 27 and 28 July 2009. Mr Batskos appeared for Melbourne Water and Mr Ginsbourg with Mr O'Brien appeared for Mr Ryan. Mr Ginsbourg, having given appropriate undertakings, had inspected the exempt documents.
4. Mr David Downie, General Manager, Office of Water in the Department and Mr Benjamin Furmage, General Manager, Strategic Planning with the Melbourne Water Corporation gave evidence for the respondent. They had prepared witness statements, gave evidence and were cross-examined. Some of the evidence given was in closed session, to enable them to answer questions more fully without disclosing the content of the documents to which access was being sought.
5. Mr Clay Manners, a Parliamentary Adviser gave evidence for Mr Ryan.
6. Both parties made submissions.
7. It is useful to put the request into some context.
8. On 19 June 2007, the Premier, Mr Bracks, announced as the centrepieces of a $4.9 billion plan to secure water supplies for the long term, Australia's largest desalination plant, major irrigation upgrades and an expansion of the Victorian Water Grid. These projects were announced as delivering a 50 per cent boost to Melbourne's water supply within 5 years and allowing water to be moved to where it is most needed.
9. The major irrigation upgrade announced, involved the modernisation of the ageing infrastructure of the Goulburn Murray Food Bowl, colloquially known as the Food Bowl Modernisation Project. The first stage of the project was forecast to secure savings of up to 225 billion litres annually, with the extra water to be shared evenly between irrigators, Melbourne households and rivers. A 70 kilometer pipeline from the Goulburn to the Sugarloaf Reservoir was to be built, which would allow the transfer of 75 billion litres of water to Melbourne by 2010. It is known as the Sugarloaf Pipeline Project.
10. A steering committee was established to consider the execution of the food bowl modernisation works. Recommendations were made. In December 2007, the Government responded to the recommendation. With respect to Melbourne's entitlement, it endorsed the recommendations with some riders, and these are in the public domain.
11. As I understand it, the water transferred down the Sugarloaf Pipeline from the Food Bowl modernisation project is to be delivered to Melbourne by way of a bulk entitlement, which is determined following a process under the Water Act. That process involves preparation from time to time of material of a predictive nature about the amount of water that would be available to Melbourne Water from a particular source.
12. As part of Melbourne Water's inquiries for this process, Melbourne Water sought information from the Department. The Department provided some information in April 2008. It is to those documents that access is sought. The email and attachments were sent by a junior officer of the Department to an officer at Melbourne Water and it is made clear in what was sent that the documents were support tools used by the Department, subject to updating, and were not for public release.

Section 30(1) Exemption

1. Melbourne Water claims the documents are exempt from release under s 30(1) of the Freedom of Information Act 1982.
2. Documents are exempt from release under s 30(1) of the Act if first they contain matter in the nature of opinion prepared by, or communicated between officers, in this case, officers of Melbourne Water and the Department, and were prepared in the course of, or for the purpose of the deliberative processes involved in the functions of Melbourne Water. Secondly, to satisfy the exemption, I must be satisfied that disclosure of the documents would be contrary to the public interest.
3. Mr Ryan does not dispute that the documents satisfy the first limb of the s 30(1) exemption. The dispute between the parties is whether disclosure would be contrary to the public interest.

1. Mr Downie has described the documents in dispute in great detail in his statement. Essentially, they are modelling documents of a predictive nature and accompanying material, such as graphic representations of that material, prepared at a particular point in time. Many potential scenarios about possible water supply are involved. They contain matters in the nature of "assumptions", and are predictive of what might occur based on information and a state of play assumed to exist in the future, whether that information is technically correct or not. They contain predictions for example about how much water could be borrowed from a water quality reserve, when in fact none has been borrowed. They contain statements of a predictive nature about other projects anticipated at that time as possibly being able to support the initial 75GL of water for 2010/2011.
2. Mr Furmage gave evidence that this information was but one of many documents obtained for Melbourne Water's strategic planning purposes. These included water resource planning, modelling possible future system operations and to feed into preliminary operating budgets in order to forecast future costs. These costs were used to inform the relevant part of Melbourne Water's Water Plan submission to the Essential Services Commission (ESC). This submission process is an ongoing one, with input and material changing from time to time.
3. Melbourne Water says that release of these internal working documents would be contrary to the public interest. The Department supports this contention.
4. I accept Melbourne Water's submissions that when considering this second limb of s 30(1), where a document does not of itself accurately or fully reflect the reasons for a particular action or decisions made by an agency, disclosure is contrary to the public interest (see Hulls v Victorian Casino and Gaming Authority ((1997) 12 VAR 483 at 488).
5. I also accept that it is contrary to the public interest to disclose a document which would potentially mislead and confuse any debate about a general topic where it deals only with a narrow range of specific issues. If it is susceptible to misinterpretation or mischievous interpretation, disclosure is contrary to the public interest (see Hulls v Victorian Casino and Gaming Authority ((1997) 12 VAR 483 at 488).
6. The following considerations were advanced for Mr Ryan in support of his contentions that release would not be contrary to the public interest. They were:
   • (a) The high level of public interest in and debate about the Sugarloaf Pipeline project
   • (b) The high public impact of the project in terms of cost and people affected
   • (c) The fact that relevant public policy had already been announced when the document came into existence.
   • (d) The fact that the document would facilitate the government being held publically accountable for previous and subsequent policy announcements
   • (e) The fact that the document would increase the transparency of an exercise of a statutory discretion under the Water Act
   • (f) The lack of any real prospect of confusion or mischievous interpretation given the apparent nature of the information / and or opinions presented in the document and the context in which that material appears
   • (g) The fact that the document does not purport to disclose the reasons for a decision taken subsequently
   • (h) The lack of any real prospect that disclosure would inhibit frankness or candour to future pre-decisional communications
   • (i) The age of the document
   • (j) The fact that the information and/or opinions contained in the document have subsequently been acted upon and/or become known to the public
   • (k) The fact that subsequent statements have been made that might be contradicted by the document.
7. Mr Downie gave very strong evidence about what he regarded as the harmful effects were the documents released. Referring to the email and all attachments as the document, he said:
   • The release of such a document that is intended for a specific audience familiar with the technical terms and jargon used, has the potential for public misunderstanding in that the contents of the documents could be misinterpreted. These documents were not intended for publication and publication would be misleading as the documents do not contain sufficient information for an uninformed audience to interpret them correctly and reasonably.
   • For the exempt document to fully make sense, it must be considered in the context in which it was prepared for use by the Department and provided to Melbourne Water. That context is not contained in the document and would result in the document being misunderstood or erroneously interpreted without that context. Part of that context is the fact that it was information which the Department prepared for internal use at that point in time and which the Department provided to Melbourne Water for its internal purposes at that point in time. It would suggest that it was the only information available to the Department or Melbourne Water over time (which is clearly not the case) and provide an erroneous impression that all subsequent decision making and developments in relation to the Sugarloaf Pipeline and other projects was based only on the information in the exempt document (again, which is clearly not the case).
   • Furthermore, if the document is disclosed to the broader community and potentially to the world at large, it could be susceptible to selective use or quotation if any individual part of the document was focussed upon. This would clearly be even more misleading than disclosure of the whole document.
   • To the extent that the document may not reflect the position ultimately taken in the course of the development, promulgation and implementation of policy, disclosure of the document is likely to be confusing, positively misleading and contrary to the public interest.

Despite extensive cross-examination, Mr Downie stood firm in these views.

1. I accepted Mr Downie's evidence during the hearing that this modelling was a very early prediction, prepared when plans were in an embryonic stage and were speculative. I accepted his very strong evidence that the documents if released would be susceptible to misinterpretation. He claimed this was borne out by some press reports made before the hearing resumed, which reports he claimed had misreported him.
2. In his oral evidence, he reiterated that this modelling was but one scenario, and indeed a very complicated one, which was not accurate, not current and therefore misleading and impossible for a lay person to understand and that to release it now would be mischievous. On several occasions he reiterated that the material if released was not capable of being understood.
3. Mr Furmage's evidence which I accepted, was that Melbourne Water had to make assumptions for its water plan, mindful that it would be providing and did provide better information to the ESC as it became available from time to time.
4. In his oral evidence which I accepted, he said these documents were but one set of modelling documents provided to Melbourne Water. As at April 2008 a range of scenarios were provided as background information and these documents were not used extensively. They had some significant limitations and were not used as a core input into Melbourne Water's planning work. He said the information had no bearing on their cost submissions, but was merely background information. He explained that the final determination made by the ESC process was made after revised figures were provided.
5. In summary, in his opinion which I accepted, these documents are highly technical documents, incomplete in some respects, out of date and could easily be misinterpreted. He said the material was confusing, contained internal consistencies and represented one of many possible scenarios rather than a preferred view.
6. I accept Mr Ryan's submissions that there is a high level of interest and debate about the Sugarloaf Pipeline project and its impact in terms of costs and its effects on people. The public knows the predicted costs and the Government's policy. The release of this document does not advance the debate, irrespective of when the documents were sent to Melbourne Water. Nor am I satisfied that release would facilitate the government being held accountable given it is early predictive modelling material prepared by a junior officer of the Department based only on assumptions and was prepared at a particular point in time.
7. I do not accept the assertions that there is no prospect of confusion or mischievous interpretation were the documents release. That claim was contradicted by Mr Downie's strong evidence in that area which I accepted.
8. The claim of how release would increase transparency of the exercise of a statutory discretion under the Water Act, was not made clear. Processes under that Act would be subject to their own procedures. Further, to say that the documents should be released because they do not purport to disclose the reason for a decision taken subsequently, as supporting the claim that release would not be contrary to the public interest, as a reason for saying release would not be contrary to the public interest, does not take the matter further.
9. The mere fact that release might not inhibit frankness, even though Mr Downie disagreed with that, does not make release not contrary to the public interest when there are other more relevant considerations.
10. Age of the documents can be a relevant matter in considering whether release would be contrary to the public interest. However, given Mr Downie's evidence about the documents, mere age is not sufficient to remove the public interest considerations, in this case.
11. Mr Downie's and Mr Furmage's evidence was that the information, at a point in time, was but one of 100s of pieces of information that the parties used in conducting their business.
12. The reference to statements being made that might be contradicted by release of the documents, such that it would not be contrary to the public interest to release the documents, as I understand it, is a reference to comments attributed to the relevant minister about what flows through the pipeline the Government had guaranteed. Release of these documents will not assist that debate because these documents are but assumptions made by one officer at a very early point in time, solely of a predictive nature.
13. Given that the documents do not reflect fully and accurately the material that was finally put by Melbourne Water to the ESC, and the very strong evidence of Mr Downie and Mr Furmage as to the nature of the documents as very preliminary modelling done at a very early stage, and are of a highly technical nature and with all its shortcomings, I accept that they could be misinterpreted were they to be released.
14. In the circumstances I am satisfied that release would be contrary to the public interest. Therefore the documents are exempt from release under

s 30(1) of the Act.

1. Even though I have found the documents exempt from release under s 30(1) of the Act, I need to consider under s 50(4) of the Act, whether the public interest requires their release.
2. For Mr Ryan it is contended that release will advance or promote the public interest by, in summary:

(a) holding Melbourne Water accountable for the cost effectiveness of its decision to invest $1 billion in the Sugarloaf Interconnector.

(b) ensuring the requirements of the Heritage River Act will be complied with. Disclosure of the anticipated volume of water to be extracted from the Goulburn and the assumptions concerning the volumes taken under a range of climatic circumstances, is directly relevant to the obligations of government and other authorities under the Heritage Act.

(c) more fully informed public debate about the assumptions underpinning the decision to construct the Sugarloaf Interconnector. Release will allow the community to better understand and/or access

(i) the basis of the respondent's decision to proceed with this project;

(ii) the impact of the decision on other water users and the riverine environment;

(iv) the respondent's conduct in the public debate on this issue to date.

(d) Allowing the community to determine if the respondent has acted responsibly in deciding to proceed with the Sugarloaf Interconnector project in preference to the alternative strategies to augment Melbourne's future water supply.

(e) Providing Members of Parliament with the ability to assess documents that provide information on the detailed implications of government decisions and actions enabling a more effective Parliament and allowing its members to properly assess government performance in relation to community expectations.

(f) Allowing individuals and businesses potentially directly affected by the decision to transfer water from the Goulburn River to more accurately assess the implications under a range of climatic conditions and in turn, make more informed decisions in relation to their own circumstances and take any necessary action.

1. I agree with Mr Batskos' characterisation of these grounds. They are abstract grounds such as the desirability of accountability and greater transparency, which as the Court of Appeal in Secretary, Department of Justice v Osland [2009] VSCA 69 has said have no role in the consideration and application of s 50(4). The public interest must require release, it is not enough that release might advance or promote such matters.
2. Nor do any of the matters advanced by Mr Ryan in relation to whether the second limb of s 30(1) exemption is made out, satisfy me that the public interest requires release.

1. For these reasons I affirm the decision of Melbourne Water.