Medium Neutral Citation [2001] VCAT 1769

1. The Applicant by letter dated 23 March 2000 addressed to the Senior Information Officer of the Respondent sought access to certain documents. By letter dated 5 May 2000 the Applicant clarified his application requesting access to:

"All documents regarding the Premier's business `round table' or business advisory body, that "undercover business round table group" referred to in The Age of 11 March 2000 on page 1 in an article "Bracks summons elite to top table" stating the Premier, the Hon Steve Bracks said "(the members of the group) are the key major employers in Victoria (and) I invited them on the basis that it's an in-camera discussion, and a frank one" and an interview in the same edition "The Bracks Interview" in which the Premier reveals the existence of such a body. Transcript of the Neil Mitchell Program on 3AW of 14 March 2000. My request is in relation to this one body or group that has been established since 19 October 1999."

2. By letter to the Applicant dated 18 May 2000 the Senior Freedom of Information Officer of the Respondent Department, Ms Marisa Patitucci advised the Applicant of her decision and that a search of departmental records in the Premier's Office identified 43 documents relevant to the request. The letter indicated that the decision had been made to release the relevant part of 14 documents in full and four documents in part. The letter indicated that four documents were partially exempt under Section 30(1) and a further 25 were fully exempt under that section. Parts of 11 of the documents were exempt pursuant to Section 33(1) of the Act.

3. The Applicant subsequently requested an internal review of this decision and was advised by letter dated 7 June 2000 by a Mr Killy, Assistant Secretary Legal of the Respondent Department that he had reviewed the decision of Ms Patitucci and had decided to affirm her decision.

4. At the commencement of the hearing the Tribunal was advised by Mr Lane, who appeared on behalf of the Respondent, that the day prior to the hearing there had been a further release of some of the documents and a revised schedule of the documents in respect of which exemptions were sought was tendered. This revised schedule appears as an attachment to these reasons.

5. At the commencement of the hearing the Tribunal ordered that pursuant to Section 56(3) of the Act that the contents of the documents claimed to be exempt should be disclosed to Mr Williams the Legal Practitioner representing the Applicant on the basis that the contents of the document should not be disclosed except in accordance with an order of the Tribunal made under Section 51(2) of the Victorian Civil and Administrative Tribunal Act 1998.

6. In addition to the exemptions already claimed further exemptions under Sections 29 and 35 were claimed in respect of some of the documents.

7. Section 29(b) of the Act provides that a document is exempt if its disclosure would divulge information communicated in confidence by another State, Section 30(1) provides an exemption for documents if their disclosure would disclose matter in the nature of opinion, advice or recommendation prepared by an officer in the course or for the purpose of the deliberative processes of a Minister and would be contrary to the public interest. Section 33 of the Act provides that a document is exempt if its disclosure would involve the unreasonable disclosure of information relating to the personal affairs of any person. Finally Section 35 of the Act creates an exemption for documents if their disclosure would divulge any information or matter communicated in confidence to a Minister and the disclosure would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of a Minister to obtain similar information in the future.

8. Mr Gregory William McLeish, Senior Policy Adviser in the Economic Policy Branch of the Respondent Department and Ms Marisa Patitucci, Senior Freedom of Information Officer for the Respondent Department both filed witness statements and gave evidence and were subject to cross-examination.

9. Although the Respondent Mr Wilson filed a witness statement he was not called to give evidence.

10. The following is the statement of Heads of Public Interest Grounds filed by the Applicant prior to the hearing. The statement sets out the background of his application:

"1. Issues revolving around the granting of invitations by the Bracks Labor Government to a select group of senior executives from the private sector to meet with the Premier and Treasurer on a regularly scheduled basis to discuss business and economic matters have been extensively canvassed in the Melbourne media.

3. `The Age' articles have named a number of individuals purported to be members of this body, known as a `Business Round Table.'

4. The formation of this `Business Round Table' by the Bracks Labor Government replicated similar initiatives by the Cain Labour and Kennett Coalition Governments.

5. The names of members of the `Business Round Table' who met with the former Premier, the Hon Jeff Kennett, were a matter of public record.

6. Given the then Opposition Leader and now Treasurer the Hon John Brumby's condemnation of the then Kennett Coalition government in 1994 as allegedly engaging in cronyism, and claims at the time of the 1999 election that Victoria had become `The Secret State', similar disclosure of the names of members of the Bracks Labor Government's `Business Round Table' should occur.

7. Any disclosures of names of third parties through access to the requested documents would not be unreasonable but would establish the veracity of claims made by `The Age' as to purported members of the `Business Round Table', who have already been the subject of considerable publicity.

8. A written policy statement issued by the Australian Labor Party prior to the 1999 Victorian State election included an undertaking to require government agencies to make reasonable disclosures about their decision making processes.

9. The privileged access that members of the `Business Round Table' receive to the Victorian Premier and Treasurer is not available to other members of the Victorian business and general communities.

10. Transparency of executive decision making and the process of that decision making can only be served by full disclosure of all relevant documents. The present Attorney general has expressed this view a number of times since coming to office.

11. Given that the Australian Labor Party has continued to refer to what it claims was a culture of cronyism and secrecy established during the previous Kennett Coalition Government's years in office, I respectfully submit that the withheld documents should be released on the public interest grounds outlined above."

11. In his witness statement Mr McLeish advised that in the past that both ALP and Coalition Governments operated Business Round Tables (BRT's) as an informal source of advice from key members of the business community. Mr McLeish said that from his own knowledge under the Kennett Coalition Government BRT's were composed of individual leaders of industry and business invited by Government and meetings generally involved a working breakfast attended by the Premier, the Secretary of the Department and Chief Executive Officers of major Corporations. He said that the names of the individuals who were invited to attend or who actually attended were always confidential. The meetings covered a wide ranging discussions of major economic issues concerning the State of Victoria and the contents of these discussions always remained confidential and thus no minutes or other records were kept.

12. Mr McLeish said that soon after the Bracks Government took office following the election in October 1999 discussions took place concerning the possible maintenance of the BRT process and most of the documents in respect of which exemption is sought arise from discussions which took place within Government concerning the possible maintenance of the BRT process. There were also discussions among other high level consultative bodies including a possible strategic advisory mechanism on social issues. The discussions concern possible membership role and structure of these consultative arrangements.

13. Mr McLeish stated that the Premier ultimately established a BRT similar to that operated by the Kennett Government and it was referred to as the Premier's Private Business Initiative Group.

14. In pages 4 to 18 of his witness statement Mr McLeish dealt with each of the documents in chronological order explaining the nature of each document and the reasons why they were generated.

15. In his oral evidence to the Tribunal Mr McLeish stated that one of the objectives of having the meetings was to allow the Premier to receive frank and candid advice from senior decision makers within the business community which might involve matters which were critical of the Government and that these persons might not be prepared to give such advise if it were thought that their identity would be made public. Secondly he stated that he believed that if the names of the persons attending these meetings were made public there would be a danger that they might be "lobbied" by outside persons which might also discourage them from participating. Finally persons attending such meetings from smaller businesses might feel that there is a possibility that if their participation were know that might be seen as associating themselves with the Government of the day and they might not wish this to be known as it might indicate that they were supportive of the Government.

16. In her witness statement Ms Patitucci, the Senior Information Officer of the Respondent Department, likewise dealt with each of the relevant documents outlining the reasons why she considered the exemptions or partial exemptions were appropriately claimed.

"I have been advised that a meeting of the Premier's Private Business Initiative was and is intended to be conducted in confidence. Public exposure of the matters for discussion at such a meeting and the names of possible invitees or attendees may attend to inhibit discussions in future and to make it more difficult to secure the attendance of major business leaders. The identity of the business people mentioned in the document is part of their personal affairs."

18. Ms Patitucci went on to say that she considered that disclosure of documents, the persons who were invited to attend such meetings and the matters to be discussed at the meetings were exempt under Sections 30 and 33 of the Act.

19. As already indicated at the conclusion of the evidence of Mr McLeish and Ms Patitucci, Mr Williams, appearing on behalf of the Applicant, indicated that he did not wish to call any evidence nor did he propose to call the Applicant. The representative of both parties indicated their preference to make written submissions and initially written submissions were filed and served by Mr Lane on behalf of the Respondent and written submissions were then received from the Applicant. On 24 May 2001 written submissions of the Respondent in reply were received.

20. Document 21 is an undated list of names and the assertion put by the Respondent's representative is that the document was created on the 11 May 2000 subsequent to the request made by the Applicant on 23 March 2000. The Respondent asserted that as document 21 was not in existence at the date of the request it was not subject to that request and this was not challenged by the Applicant.

21. The Respondent asserted that some of the documents listed in the schedule fell outside the subject matter of the request. The Respondent asserted that some of the documents earlier in the sequence were created prior to the distinction being drawn in the Office of the Premier between two separate business consultative groups and that the request by the Applicant deals only with the industry associations forum which later became known as the Business Round Table. The evidence of Mr McLeish was to the affect that he regarded documents relating to the Business Round Table as irrelevant to the Applicant's request and that all or part of documents 12, 42, 15, 41, 18, 19, 20, 22 and 30 fell within this category as they did not relate to the Premier's Private Business Initiative.

22. The Applicant asserted that the documents relating to the forum that later became known as the Business Round Table were relevant to the Applicant's request as they showed the genesis of how the Premier's Private Business Initiative came into existence.

23. In view of the findings made by this Tribunal that documentation relating to the latter forum is exempt under the Act it is not necessary to pursue the distinction as even if the Tribunal determined that the former documents were included in the request they would likewise be exempt.

24. At the hearing Counsel for the Applicant raised the question of the appropriate treatment of partially irrelevant documents and this issue was dealt with by both parties in their written submissions. The Applicant argued that the whole of any document should be released if any part of the document falls within the Applicant's request except to the extent that the Tribunal determines the document is an exempt document. It was argued that this conclusion flows from the right of access under Sections 13 and 20 of the Act and from the fact that Section 25 authorises deletion of the exempt matter and not irrelevant matter. This issue was dealt with at some length with both parties' written submissions. The Tribunal accepts that, having regard to the facts of this application, it is appropriate to read Section 20 as creating an obligation relating to the relevant parts of the document. The Tribunal adopts the following argument put by the Respondent:

"If a document relates to subject - matters A, B and C, and the Applicant's request is for documents relating to subject - matter A, those parts of the document that relate to B and C are not "the document" requested by the Applicant. The intention of the Applicant is to obtain access only to information relating to subject matter A. It would require a strained, even contrived, construction of a request for documents relating to subject matter A to read it as extending to the whole of any document in which A was raised, however tangentially, including those parts that relate only to B and C."

25. The Respondent asserted that part of document 25 which is an email re PBI, draft options and proposed participants is not an official document of a Minister and therefore not subject to the Applicant's request. The Respondent submitted that the heading to the last seven lines of an attachment to that document shows that part of the document was not in the possession of the Premier as a Minister but in his capacity as a member of a political party. After examining the relevant document the Tribunal accepts that such a distinction can be drawn and accepts the submission of the Respondent that:

"17. The concept of "an official document of a Minister" and the qualification that a document must relate to the affairs of an agency would appear to import a distinction between a document in the possession of the Minister as a Minister and a document in the possession of a Minister in some other capacity_, such as his or her capacity as a member or office-holder of a political party or as a local member. Were it otherwise, all manner of party political or constituency documents in the possession of Ministers might be subject to FOI, a result that was plainly not intended. Support for this distinction can be found in_ Stewart and Minister for Transport [1995] QICmr 13; (1995) 2 QAR 571 and Said and Dawkins [1993] AATA 9; (1993) 17 AAR 144; 30 ALD 242. (The Commonwealth Act under consideration in Said was, following an amendment in 1983, more explicit than the Victorian Act is, but the Commonwealth AAT expressed the view (at [27] to [28] that the position had been the same prior to the amendment, when the Commonwealth Act used the same words as the Victorian Act."

26. The Respondent asserts that documents 1, 3, 4, 5, 6, 12, 13, 14, 15, 18, 19, 20, 22, 28, 29, 30, 33, 34, 37, 38, 39, 40, 41 and 42 are exempt under the provisions of Section 30 of the Act as "internal working documents".

27. From the evidence of Mr McLeish and Ms Patitucci and from an examination of the documents the Tribunal accepts that the documents fall within the Section as asserted by the Respondent and are therefore exempt. As indicated later in these reasons the public interest considerations under Section 30(1)(b) do not require the disclosure of these documents.

28. The Applicant asserted that for the relevant documents to be exempt under Section 30(1)(b) it is necessary for the document to be in the nature of "opinion, advice or recommendation" of an officer or Minister and that the submission by an officer of a draft of what the officer considers to be the appropriate context of a final document is too wide a formulation to come within the words of the section. Contrary to the submission of the Applicant the Tribunal believes it appropriate to follow City Parking Pty Ltd v City of Melbourne (1996) 10 VAR 170 at 228 - 9 and Wilson v Department of Premier and Cabinet (VCAT, Macnamara Deputy President, 5 January 2001 unreported). The Tribunal adopts the comment of Deputy President Macnamara that:

"The very submission of a draft is an implicit piece of recommendation or advice."

29. The Tribunal finds that the following documents fall within the first limb of s.30(1)(a): Documents 1, 3, 4, 5, 6, 12, 13, 14, 15, 18, 19, 20 (the opinion advice or recommendation of Dr Maddock), 22, 28, 29, 30, 33, 34, 37, 38, 39 (both officers and the Premier), 40 (both officers and the Premier), 41 and 42 (both officers and the Premier).

30. Tribunal also accepts the submission made on behalf of the Respondent that document 12 for which exemption is claimed is "opinion, advice or recommendation". The Tribunal finds that its disclosure would disclose consultation between Mr McLeish and the recipients of the email, other officers Mr Carstairs and Dr Maddock and that the email falls within the second limb of Section 30(1)(a) as being consultation between officers.

31. The personal affairs exemption is claimed in relation to Documents 2, 12, 13, 15, 17, 19, 20, 21, 22, 25, 28, 30, 31, 38 and 40.

32. In respect of all of those documents, other than Document 12, the exemption is claimed in respect of the names, organisations and other personal details of persons mentioned in connection with what became the Premier's Private Business initiative. (In some of them, names are mentioned in connection with other consultative mechanisms, and therefore fall outside the Applicant's request).

33. In respect of Document 12, the exemption is claimed in respect of the two names in the second paragraph of the covering email, and the organisation with which those persons are associated.

34. From the evidence of the witnesses and an examination of the documents the Tribunal finds that the information contained in them includes the name, style and title, organisation, address, telephone and fax number of a number of persons and that all of this information falls within the amendments made to the Act by the inclusion of Section 33(9).

35. The Tribunal notes that of significance in this case is that many of the persons named in the documents are persons with positions of seniority in their respective organisations and the disclosure of the identity of the organisation would in many instances provide a ready means of identifying the person. In the circumstances the Tribunal finds that the disclosure of these documents would represent an unreasonable disclosure of personal affairs.

36. The Tribunal also finds that document 41 contains information obtained in confidence from another State Government and is therefore exempt under Section 29(b) of the Act.

37. In respect of documents 2, 13, 15, 19, 20, 33, 37 and part of 39 the Tribunal finds that the disclosure of these documents would divulge information or matter communicated in confidence by a person or agency and would be exempt if it were generated by an agency or a Minister. Aside from the direct evidence called by the Respondent in relation to the particular documents in question the Tribunal is of the view that the confidentiality of the communication may be inferred from the nature of the information communicated, the role and functions of the persons by and to whom it was communicated, the apparent purpose of the communication and other circumstances surrounding the communication. The Tribunal accepts the submission by the Respondent that there is no difficulty concluding that in each case the relevant information was communicated in confidence and is therefore exempt under Section 35 of the Act.

38. Dealing next with public interest considerations, the Tribunal accepts the submission by the Respondent as to the factors relevant to the determination of where the public interest lies, that matters of particular significance are:

(a) the public interest in maintaining confidentiality in high level deliberative processes in the Government, to encourage frankness and candour in those processes and

(b) the public interest in maintaining the integrity of the deliberative processes by avoiding the release of material that would tend to be misleading or confusing or otherwise liable to cause mischief.

39. The Tribunal's attention was drawn to the useful comments made by Judge Wood in Bracks and Department of Premier and Cabinet (1999) 15 VAR 83 at 93-4 where he said:

"The formulation of policy by Government entails a consideration of a host of factors, the execution of a balancing process in order to ascertain whether amendment to legislation is required and rests, in part, upon the advice of many people and bodies. This is part of the consultative or investigative processes, and if government cannot conduct this process freely and confidentially there is potential for the impairment of the consultative process because government, or for that matter, any member of parliament, may not seek and canvas a range of views on the subject under consideration, whether from public servants, consultants or review committees if those communications may ultimately become public. The merits and demerits of any effects of a change to legislation should, in order to maintain the efficiency of government, remain within the confidence of the party seeking the advice.

In my opinion, there remains a real potential for the conduct of government to be inhibited in the investigative process involved in the formulation of policy if the opinions of those persons or bodies from whom or from which the Government seeks advice, was sought in circumstances where it may become public. This may result in a reluctance on the part of Government to canvas advice from appropriate sources, or on the other it may result in inhibited advice from those persons or authorities providing it. The issue must be resolved on a case by case basis. Based upon the evidence before me and my examination of the documents in my view it would be contrary to the public interest for these documents to be released."

40. Mr Lane on behalf of the Respondent stated that documents 42, 41, 40 and 39 and part of document 38(prepared in that order) are briefings to the Premier and documents 12, 13, 15, 18, 19., 20, 22, 30, 28, 14, 29, 33, 6, 34, 3, 5, 4, (in chronological order) were prepared by senior public servants in the formulation, or arising from, these ministerial briefings. He said that documents 38 and 37 are briefings to the secretary of the department and document 1 was prepared in the formulation of document 37.

41. Mr Lane noted that the Tribunal has not always been persuaded by evidence of officers that the release of particular documents would have an adverse affect on the frankness and candour of similar communications in future. However the Tribunal accepts that care should be taken not to expect public servants in these circumstances unrealistic level of robustness and resistance to the affects of the release of documents created in the course of high level deliberative processes.

42. The Tribunal finds that an examination of the documents indicates they reveal and reflect a continuing and unfinished process of policy development and implementation and that many of the discussions in the documents about possible invitees to a business round table do not appear to have resulted in invitations being extended. Document 38 contained briefing material apparently provided to the Premier in relation of the first meeting of the Premier's private business initiative and it is unclear whether the Premier used any of the material in any way. The Tribunal accepts the assertion made by the Respondent that to release the document would tend to give the misleading impression that it had some status or that it indicates things actually said by the Premier at the meeting.

43. The Tribunal also accepts the submission made by the Respondent that the passage of time since the creation of the documents does not diminish the need to maintain the integrity of the process and that as the Premier's Private Business Initiative continues to meet and its membership continues to change that deliberative process continues and that the exemptions claimed should be upheld.

44. From the evidence and an examination of the documents the Tribunal accepts that documents 13, 15, 19, 20, 33, 37, 39 and 41 record information communicated to the Respondent in confidence. The Tribunal is of the view that the public interest weighs more heavily in favour of non-disclosure in the circumstances of this application as there is a public interest in maintaining the confidentiality of communications of this nature so as to avoid the risk that relationship between the Respondent and the person who provided the information may be damaged by disclosure of a confidential communication and that it may be more difficult in the future for the Respondent to obtain information of a similar nature.

45. As regards document 41 the Tribunal finds that the information contained in this document was obtained in confidence from another jurisdiction and that its release would be contrary to the public interest because it would tend to impede the free exchange of information between Governments in future.

46. The Tribunal notes that the attendees referred to in the various documents are not public officials but members of the private business community and that attendance at the Premier's private business initiative involved no payment or reward and was not the carrying out of a statutory function. It was put to the Tribunal that it is common ground between the parties that successive governments have considered it a matter of importance to maintain high level consultation between Government and Business and that under at least the Kennett and Bracks Governments (and possibly also under the Caine and Kernot Governments) there have been business round tables to achieve this. The Tribunal was informed that under both the Kenneth and Bracks Governments the business round tables have taken the form of confidential discussions attended by the Premier and major business leaders and the Tribunal accepts that there is a public interest in maintaining the effectiveness of such fora.

47. In relation to the heads of public interest spelt out by the Applicant the Respondent asserted that first they are not in a proper form being argumentative rather than containing reference to relevant factors. Second they make or depend upon factual assertions that are not supported by evidence and that the Applicant having decided not to give or call evidence the only factual material upon which the Tribunal may act is that adduced by the Respondent or by the Applicant in cross examination of the Respondent's witnesses.

48. Although the public interest override contained in Section 50(4) of the Act is not available in respect of a document that is exempt under Section 33, the other exemptions relied upon under Sections 29, 30 and 35 all require consideration of the public interest. In respect of this application the Tribunal accepts the submission made by the Respondent that the weighing of the public interest considerations relied upon by the Applicant as favouring disclosure would produce no difference in result when considered under Section 50(4) rather than under the relevant exemption provisions.

49. The Tribunal notes that the Tribunal may only release a document under Section 50(4) if, in the opinion of the Tribunal, "the public interest requires" access.

50. In Secretary to the Department Premier and Cabinet v Hulls [1999] VSCA 117; (1999) 3 VR 331 Phillips JA said:

"....... Given that the test must be whether at the end of the day the Tribunal is of opinion that the considerations of the public interest (to which no doubt it is referred by the applicant for access) are so strong as to override the factors which in the first place are such as to accord the document exempt status, the meaning of "requires" is clear enough. In D.P.P. v Smith_, the tribunal found that the public interest "necessitated" disclosure, and the decision was confirmed on appeal. To my mind that test was wholly appropriate under s.50(4)._

51. In this application the Tribunal having found that the various documents are exempt under Sections 29, 30 and 35 1A finds that there is nothing advanced by the Applicant which to use the words of Phillips JA are "so strong as to override the factors which in the first place are such as to accord the document exempt status".

52. For the reasons set out above the decision of the Respondent is affirmed.

53. The issue of costs was not raised during the course of the hearing and the question is therefore reserved.