Roy Morgan Research Centre Pty Ltd v State Revenue Office [1999] VCAT 1369

Doc 1 - all but "initials" and the middle line with the word

Doc 8 - letter in full but not including draft Affidavit being Doc 9.

Doc A1 - all except from third line commencing "the

investigation" to the end of paragraph 2) concluding

2. The Respondent's determination is otherwise affirmed.

Roy Morgan Research Centre Pty Ltd (RMRC) is a company engaged in market research and public opinion polling. In the course of that business, it has engaged on a nationwide basis a large number of field interviewers. For a number of years, there has been a dispute between RMRC and the Commissioner of State Revenue (the Commissioner) about whether or not the persons who conduct those interviews are employees of RMRC and whether wages paid to them are taxable wages pursuant to the provisions of the Pay-roll Tax Act 1971.

In all, three separate assessments in respect of such tax have been issued :

(i) 16 December 1987 in respect of the period 1 July 1980 to 31 December 1986 (the First Assessment)

(ii) 4 January 1996 in respect of the period 1 January 1987 to 30 June 1995 (the Second Assessment)

(iii) 21 October 1996 in respect of the period 1 July 1995 to 30 June 1996 (the Third Assessment)

The objection to the first assessment was lodged on 2 February 1988. It was disallowed by Notice of Decision dated 16 April 1992. On 23 April 1992, RMRC applied to the Administrative Appeals Tribunal (the AAT) (the predecessor of the Victorian Civil and Administrative Tribunal (VCAT)). That application was determined on 23 January 1996 by the Tribunal affirming the Assessment.

RMRC appealed to the Supreme Court on 20 February 1996. On 13 August 1996, Byrne J rejected the appeal. On 23 August 1996, RMRC appealed the decision of Byrne J to the Court of Appeal.

On 24 October 1997, the Court of Appeal dismissed the appeal. On 21 November 1997, RMRC applied to the High Court of Australia for Special Leave to appeal. That application was not successful. It was refused on 19 May 1998.

Thus, whilst RMRC was exercising its rights of review and appeal in respect of the first assessment, the second and third assessments issued. RMRC applied to the AAT for review of those later assessments but those applications were held in abeyance until the Court applications concerning the first assessment were concluded.

However, the tax payable under the second and third assessments became due and payable and RMRC failed to pay the tax on the due date. On 21 February 1997, a Statutory Demand was served on RMRC. RMRC applied to the Supreme Court unsuccessfully to have that set aside. On 12 May 1997, the Commissioner applied to the Supreme Court to have RMRC wound up. That application was dismissed on 14 August 1997 as RMRC was able to demonstrate it was solvent.

The next step the Commissioner took with respect to recovery followed the decision of the Court of Appeal on 24 October 1997 regarding the first assessment. On 12 November 1997, the Commissioner sent a letter to RMRC about the outstanding debt for the second assessment. The letter referred to the issue of garnishee notices if payment was not received by a particular date.

On 21 November 1997, RMRC filed its Application for Special Leave to appeal to the High Court. Correspondence between the parties followed. On 15 December 1997, the Commissioner wrote to RMRC's solicitors saying it would not issue garnishee notices pending the High Court hearing. The letter including the following :

"Full payment of the entire outstanding amount must be made within 24 hours of any refusal by the High Court to grant approval of your client's application on 19 May 1998. In the event that your application for special leave is not heard on 19 May 1998, the Commissioner advises that he requires full payment on that day.

Failure to meet such payment will result in the immediate issuing of Garnishee Notice(s) without further notice".

Following the rejection of the Application for Special leave on 19 May 1998, the Commissioner sent RMRC a letter on 21 May 1998 demanding payment.

RMRC sought an urgent application for an interim injunction on 21 May 1998 to prevent the issuing of the garnishee notices. Chernov J, as he then was, declined to make the injunction sought. On 28 May 1998, the papers to formalise the matter were lodged by RMRC. As it turns out that writ was withdrawn on 27 July 1998.

Following the Court's refusal to grant the interim injunction the Commissioner issued garnishee notices to various persons whom the Commissioner believed owed monies to RMRC.

Fifteen Garnishee Notices were issued, one to RMRC's banker and fourteen on RMRC's debtors. According to RMRC these debtors were the debtors of the applicant at the time of the first audit in December 1995. Moreover, RMRC asserts that the service of the notices was not effected as required by legislation and believes that they are invalid insofar as they purport to operate on persons who owed RMRC money from outside the State of Victoria.

According to Mr James Wallace, RMRC's Chief Accountant, the service of the garnishee notices has been at great expense to RMRC. He states that the issuing prompted a series of actions by RMRC's banker, which caused RMRC to establish at great expense new banking arrangements with another bank. He states that many jobs were lost or made redundant as a consequence of the Notices and consequent rearrangements of RMRC's business activities.

Against that background, between 29 June 1998 and 28 October 1998, RMRC made in total, 21 separate requests to the State Revenue Office (SRO) for documents.

Attached to those reasons and marked "A" is a spreadsheet listing each request. The requests fall into several categories. The bulk of the requests relate to matters concerning the issue of the Garnishee Notices. The balance relate to requests for documents concerning communications between State Revenue Agencies about RMRC; instructions relating to obtaining documents from RMRC during audit and investigation and to the use of material so obtained; and documents which disclose the reasons why RMRC was assessed.

The requests were processed by the SRO and reviewed internally according to the provisions of the Freedom of Information Act 1982 (the Act). RMRC applied to the Tribunal for review of the decisions related to documents not released, and which the SRO claimed were exempt from release under various provisions of the Act.

By the time of the hearing, a schedule of the unreleased documents, classified by the exemption claimed, was produced. That schedule also noted a number of documents to which access had been granted since the original s49 materials were filed.

Mr T Hurley of counsel appeared for RMRC and Mr S O'Bryan of counsel appeared for the SRO.

The hearing proceeded on the basis that counsel for RMRC on the usual undertaking, had access to the documents for which exemption was claimed.

It was agreed at the hearing that the Tribunal would not make a decision in relation to a number of the documents referred to in the schedule at this time, the parties legal representatives being hopeful that they would be able to reach agreement about those documents once the Tribunal had made a decision on other documents. As it transpired, with the lodging of written submissions, SRO has released further material. One hundred and twenty six documents remain in dispute. These documents include those which require a decision and those with respect to which the Tribunal understands no decision is required to be made at this time.

SRO's submissions addressed the documents according to the various exemption categories. RMRC's submissions in response followed that format and also clarified whether or not it accepted that the document described met the exemption claimed. These reasons follow the same format.

DOCUMENTS FOR WHICH EXEMPTION UNDER S30 IS CLAIMED

Counsel for SRO's submissions fairly describe the type of document in this category, as follows :

"Most of the documents for which s.30 is claimed as a ground of exemption are internal memoranda (some being `hard copy communications' and others being computer e-mails and the like) dealing with recovery of tax issues, in particular, by way of garnishee notices. A number of the communications are with the respondent's Litigation Committee (which was, as the evidence revealed, involved in the decision making process concerning recovery issues). Some of the internal documents are minutes recording internal meetings on like issues".

Section 30 provides an exemption for what is referred to in the heading to the section as "internal working documents". The section so far as it is relevant states :

(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act -

(a) would disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers, or an officer and a Minister, in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government; and

(3) This section does not apply to a document by reason only of purely factual material contained in the document.

(4) This section does not apply to the record of a final decision, order or ruling given in the exercise of an adjudicative function, and any reason which explains that decision, order or ruling.

(6) Sub-section (1) shall cease to apply to a document brought into existence after the day of commencement of this section when a period of ten years has elapsed since the last day of the year in which the document came into existence".

The establishment of this exemption depends upon two things. First, it must be shown that the document is what may be described as an "internal working document" and second, that its release would be contrary to the public interest. The sub-section does not establish a principle that the release of internal working documents is contrary to the public interest without proof of more.

There are in all 11 documents in this application for which exemption under s30 is claimed. Those which require a decision are Nos 1, 2, 3 (including attachment), 5 and 11. The others do not require a decision at this time.

Evidence about the contents of these documents is contained in the statement of Mr Edward Haddad. Mr Haddad from March 1995 to February 1999 was employed in the Receivables Management Branch of the SRO as a Project Specialist and had the conduct of high profile complicated technical matters. He was the officer who actually signed the 15 garnishee notices. Where he refers in his statement to "the Branch", and "the Litigation Committee", I understand this to be a reference to the Receivable management Branch and a committee within SRO respectively.

Document dated 17 January 1996. Document is a memorandum from the Branch Manager of the Branch to the Executive of the Respondent. The subject of the document is concerning the issue of garnishee notices on the major banks and the various other debtors of the Roy Morgan Research Centre Pty Ltd, ("RMRC"). The memorandum is seeking the approval of the Executive of the Respondent to the issue of the Garnishee Notices.

Document dated 9 October 1996. Document is a memorandum from an officer of the Branch to the Litigation Committee of the Respondent. The document discusses the recovery action.

Document dated 21 August 1997. Document is a memorandum from an officer of the Branch to the Litigation Committee of the Respondent. The document discusses the nature of proposed recovery action to be taken against RMRC following the outcome of various appeals.

Document dated 27 November 1997. Document is from an officer of the Branch to the Litigation Committee. This document discusses the various recovery actions available to the SRO and seeks approval for issuing Garnishee Notices.

Document dated 9 January 1998. This document is from an officer of the Branch to the Litigation Committee. This document is seeking instruction from the Litigation Committee on the issue of whether the Respondent should remit penalties and/or interest to RMRC".

They are generally internal communications dealing with recovery of tax options and strategies for recovery. SRO concedes that much of the information appearing under the heading "background" may be regarded as purely factual and therefore warranting release. Otherwise, it claims material under headings such as "Issues", "Recommendations" and the like contain opinion, advice and recommendation.

RMRC concedes that these are internal working documents within s30(1)(a) and contends that as well as the portions which record "background", those parts described as "issues" are also recapitulations of purely factual material. Having perused the documents, I agree with RMRC's submission in regard to the "issues" section in Documents 1 and 5. The "issues" section in those two documents does no more than reiterate what is disclosed in Mr Haddad's statement or factual matters known to the parties. They should be released to RMRC. However, the "issues" sections in documents 2, 3 and 11 do not fall into the same category. They are not simply recapitulations of factual matters or describing matters already disclosed by Mr Haddad.

The key issue then with the unreleased balance of these documents is whether under s30(1)(b) release would be contrary to the public interest.

Mr Haddad in his written statement said of these documents :

"The Respondent contends that it would be contrary to the public interest that the contents of these documents be released, as the documents or parts thereof express findings in their formative stages which were subject to evaluation and further consideration by officers of the Respondent and may materially misinform and mislead if disclosed. Additionally the documents or parts thereof do not contain purely verified factual material and are not regarded as severable".

Mr O'Bryan submitted that Mr Haddad's oral evidence expanded on this further to the effect that many of the documents for which s30 was claimed reflected changes over time in terms of opinions, expressed advice given and recommendations made on the same subject matter being mainly the power to issue as well as the desirability and timing of the issue of garnishee notices. Having inspected the documents, I agree with these observations.

He submitted further on the public interest question :

"Ultimately this is a matter for the Tribunal, but it is contended that Mr Haddad's evidence in this regard is borne out by an examination of the contents of the documents to which he was referring. In essence, the public interest concern of the respondent is that documents of this nature are capable of causing mischief if released publicly because the information contained in them sometimes reflects one or more officers of an agency internally supporting or recommending one course of action that contradicts or is at variance with the action ultimately taken. This invariably undermines the integrity of the decision making process. In these submissions this ground of public interest will be referred to as `the integrity argument'.

The relevance of the integrity argument to s30(1)(b) is recognised in the Australian FOI cases and can be traced back to some passages in US case law. For example, in Jordan v Department of Justice [1978] USCADC 317; 591 F 2d 753 (1978) at 722-3, Wilkey J, delivering the opinion of the Federal Court of Appeals (in the context of addressing the US common law deliberative process privilege available to government) said that there were three policy bases for the privilege. These can be summarised as follows. First, protection of debate and consideration of alternatives within an agency improves the quality of agency decisions. Second, the privilege (leading to confidentiality) protects the public from confusion and third, it protects the integrity of the decision making process itself by confirming that officials should be judged by what they decide and not for matters they considered before making up their minds.

As to this third basis for the privilege, Judge Wald in Coastal States Gas Corporation v Department of Energy [1980] USCADC 76; 617 F 2d 854 (1980) at 866 expressed it in terms of protection against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency's action. These extracts from US case law are taken from longer passages referred to in the decision of the Commonwealth AAT in Re Murtagh [1984] AATA 249; (1984) 6 ALD 112 at 121-2.

As we approach the end of the second decade of FOI in Victoria, it is possible to point to many passages from many Tribunal decisions where there has been acceptance, in principle, of the integrity argument in one form or another. To take two examples of decisions made during the current decade, in Re Pescott (1991) 5 VAR 54 at 65, Mr Galvin DP concluded that `preliminary advices and opinions' ought not to be disclosed in the absence of a `greater public interest militating to the contrary'. In Re Thwaites (unreported, 4/4/96) Mr Macnamara said that `release might contribute to unnecessary public alarm in relation to a step which was considered but rejected'.

The public interest test ultimately applied in Re Murtagh_, a taxation related case, is found at p123 as follows :_

`In our opinion the public interest looks to matters such as the overall need for confidentiality within the ATO and the nature of the documents to which access is sought, whether they are documents relating to a purely routine assessment or whether they are documents concerned with the investigation of taxation evasion or like matter in respect of which there is special reason for confidentiality. Broadly speaking, s36 can be seen as an attempt by the legislature to protect the integrity and viability of the decision making process. If the release of documents would impair this process to a significant or substantial degree and there is no countervailing benefit to the public which outweighs this impairment then it could be contrary to the public interest to grant access'.

The Commonwealth Tribunal went on to stress that the public interest must be considered in light of s3(2) of the FOI Act (Cth) as well as s3(1) which, like the Victorian Act, are to the effect that each ground of exemption, including obviously s30, is necessary for the protection of essential public interests'. Accordingly the Tribunal took the view that there is a degree of inherent public interest to be found in documents that fit within s30(1)(a) and that the exercise in s30(1)(b) involves a balancing of competing considerations.

In Re Murtagh_, the public interest test posed above was regarded by the Commonwealth Tribunal as not having been met by the respondent because the documents in issue fitted the description of ones connected with routine assessments. In the proceeding presently before the Tribunal, the documents are not of that nature. Rather, they are documents relevant to the issue of garnishee notices as well as audit/investigation processes (which have been gathered by the respondent in answer to the fairly specific terms of the applicant's many FOI requests). These are tax investigation and recovery issues that legitimately open debate on the need for the maintenance of confidentiality during the relevant deliberative processes within the respondent"._

RMRC in its submissions disputed the integrity argument that release would invariably undermine the integrity of the decision making process. It submitted that where an activity has concluded, release of documents showing that all options were canvassed, would not be contrary to the public interest. It submitted that questions of public confusion or misinterpretation of events should be given little weight where the applicant is the taxpayer concerned and there could be a perception RMRC had been singled out.

Generally, in assessing the public interest under s30(1)(b) RMRC referred to the determination of the question on the public interest being a balancing exercise and submitted release would not be contrary to the public interest because :

(b) tax-payers should be able to ascertain how their matters were determined by the respondent;

(c) tax-payers should be able to enquire of the treatment of their affairs under the FOI Act without resorting to applications to VCAT by lodging a tax appeal;

(d) if the applicant, or other tax-payer, were to make an application in respect of their taxation affairs the VCAT Rules relating to taxation matters require the respondent to provide all documents `on file in the Commissioner's office relating to the relevant ... assessment': see the amendment to s.49(1)9a) of the VCAT Act affected by clause 89(2) of Schedule 1 in respect of Taxation Act;

(e) the Tribunal should bear in mind that the FOI Act gives a right of access to applicants".

More specifically it was submitted that release would not be contrary to the public interest, on the following grounds :

"(i) The documents are dated - `the youngest' is three years old.

(ii) The matters canvassed in the documents are concluded and have been concluded for some time. All monies due by the applicant to the respondent have been paid. An applicant should not be denied access by reference to the fact that it will pay tax in the future.

(iii) The position of the applicant as a taxpayer should be given weight in determining the public interest. A taxpayer should be able to determine, after tax has been recovered from him or it, that the law was followed and, if relevant, he or it was not treated oppressively.

(iv) The recommendation `canvassed the obvious'. It would be apparent to any citizen or taxpayer that the respondent would choose between the options available to it under statute or as a litigant. There are no secret methods or matters referred to in the documents. They record matters that any creditor would consider.

(v) The attachment to document 3 records a matter of logic.

(vi) Within document 2 (page 2, second last paragraph) (at para 3) is a reference which shows that the applicant's concerns under s50(4) of FOI Act flowed through to the decision making process. The same is evident in document 11 page 2 in the first dot point under paragraph number 1.

(vii) Release of these documents would show whether, in a concluded matter, the respondent was given proper advice and whether or not the respondent acted on it or acted perversely. The fact that the documents record changes over time in opinions expressed, advice given and recommendations made, mean that release is in the public interest to show the vitality of the respondent's processes. The fact that officers may express different opinions at different times cannot determine that internal working documents are never released (respondent's submissions paras 10 and 11). The reverse is true: the essence of the FOI Act is to `open Government' to the public gaze. Officials are judged by what they decide but the point of the FOI Act is to enable the reasoning and process by which the decisions were arrived at to be examined".

I generally accept SRO's submissions concerning the "integrity argument" and note the principles raised in Re Murtagh and Commissioner of Taxation [1984] AATA 249; 6 ALD 112. That case considered the application of s36 of the Federal Act which corresponds with s30(1). The passage referred to at 123 in the submissions of RMRC is preceded by the sentence :

".... But we think nevertheless, that the `public interest' looks to broader concepts than the circumstances of `a particular case'."

I refer to that sentence because much was made by RMRC about its perception of being singled out and of being referred to in Hansard. It considered these were not routine assessments. Whilst it may have such concerns, I accept in considering public interest here, that one looks at broader concepts than the circumstances of a particular case. Even though the documents are dated and may relate to concluded matters, in my opinion, release would show how the SRO in a revenue collection context involving a very lengthy and public dispute, debated matters, considered alternatives, and expressed opinions and advice. Release would tend to expose its thinking process and threaten the integrity and viability of its decision-making process.

Balancing the interest of the parties, I am satisfied that it would be contrary to the public interest to release these documents. Other than the "background" sections in the documents and the "issues" section in documents 1 and 5, I find they are exempt from release under s30(1).

According to my understanding of the SRO's submissions, these documents are no longer in dispute.

There is one document remaining in this application which has been released in part.

"The document is dated 10 December 1997. This is a document from officers of the Branch to a team leader of the Branch. This document discusses the outcome of a Litigation Committee meeting of 10 December 1997. The issues raised in this document are in relation to recovery options open for the Respondent in relation to the outstanding payroll tax liability of RMRC".

SRO continue to claim exemption for the parts not released, headed "Discussion" and "Case 2" which refers to another party. I accept the document satisfies the internal working document description. Essentially, SRO submits that release of the "Discussion" material would expose the methods and procedures concerning recovery tactics. If released it could prejudice the SRO's actions in other matters. Mr Haddad supplemented this latter point by way of a confidential addendum. The SRO referred to this submission as the "prejudice" argument.

I accepted Mr Haddad's evidence and am not persuaded by RMRC's submissions that release of "historic documents" affecting the applicant would have no bearing on how the SRO, RMRC or other taxpayers will act within the framework of their legal rights and obligations in the future. I am satisfied its release would be contrary to the public interest. Nor am I persuaded the public interest is served by releasing documents which would show whether or not the SRO approaches its tasks conscientiously as RMRC submitted. I therefore find that the "discussion" material is exempt from release under s30(1).

I am also satisfied that it would be contrary to the public interest to release details about another "taxpayer", the "Case 2" referred it. That too, I find exempt from release under s30(1).

There is one document remaining in this application that has been released in part.

"Document dated 1 June 1998. This document is an e-mail from an officer from the Branch to the Executive of the Respondent. This e-mail discusses the response to the issue of the Garnishee Notices from a debtor of RMRC".

All but the final paragraph has been released. Mr Haddad the author of the e-mail in that paragraph is expressing an opinion about the response to the issue of the Garnishee Notices.

RMRC made no specific submissions on this document. I am satisfied it is an "internal working document" under s30(1)(a).

The SRO relied on both the "integrity" and "prejudice" arguments to establish that it would be contrary to the public interest for the purposes of s30(1)(b) to release the material. I accept its submission and find that the unreleased part is exempt from release under s30(1).

There are five documents in this application which have not been released. I have been asked to make a decision at this time in relation to Documents 1, 2 and 3.

These documents as described by Mr Haddad are as follows :

Document 1 dated 21 November 1997. Document is a memo from the Branch Manager of the Revenue Management Branch to the Divisional Manager of the Compliance Enhancement Division. This subject of the memo is RMRC's outstanding payroll tax liability. The memo seeks to review the recovery operations available to recover the debt and to confirm the action to serve garnishee notices.

Is an e-mail dated 17 June 1998 from an officer of the Revenue Management branch to the Divisional Manager of the Compliance Enhancement Division. The memo attaches a progress update regarding RMRC and details of compliance with garnishee notices issued against debtors of RMRC.

This document dated 19 June 1998. This document is a memorandum from an officer of the Branch to the General manager of the Compliance Enhancement Division. This memo is regarding a progress update of the garnishee notices issued to the debtors of RMRC""

RMRC concedes these are "internal working documents" for the purposes of s30(1)(a).

So far as Document 1 is concerned, the SRO does not seek to continue to claim an exemption for the matters under the heading "Background" and does not oppose its release.

The next section is headed "Issues". As it repeats Mr Haddad's description of the document, I agree with RMRC's submission that it too should be released.

However, I do not agree with RMRC's submission about the balance of the document which is that the material should be released as it contains essentially factual material. It is canvassing options on a range of matters. I accept the "integrity" and "prejudice" arguments which, in my view, persuades me that it would be contrary to the public interest to release this material. I am satisfied the balance is exempt from release under s30(1).

Document 2 has now been released save for the penultimate paragraph. Exemption is claimed for this paragraph under s32 of the Act. I will therefore return to this document later.

Document 3, like Document 1, is similar to a number of documents previously considered in that it deals with recovery strategies and options. The SRO relies on the "integrity" and "prejudice" arguments. The SRO also claims that certain parts also attract an exemption under s32.

RMRC submits that the first section and certain paragraphs variously record factual matters, matters of public knowledge, incorrect assertions and statements "of the obvious" On those grounds it submitted those parts should be released.

In isolation, apart from matters relating to the assertions, there may well be parts where that is so. However, I find that it would be contrary to the public interest to release those parts. Apart from simply a progress update, there are parts which refer to legal advice. Further, the factual information appears in a context and, in my view, it would be contrary to the public interest to release it in "isolation". I accept the SRO's "integrity" and "prejudice" arguments and find the document exempt from release under s30(1).

There are two documents remaining in this application which require a decision.

Document dated 11 January 1996. Minutes of a meeting between an officer of the Recovery Branch and a team leader in the Branch. The meeting discussed recovery options available to the Respondent in regard to the outstanding payroll tax liability of RMRC.

Document dated 18 June 1998. Document is an e-mail from a Legal Officer from the Recovery Branch to a Team Leader in the Branch regarding recovery options available to the Respondent".

RMRC conceded that documents 2 and 22 were "internal working documents". Would their release be contrary to the public interest?

So far as Document 2 was concerned the SRO relied on the same arguments against release as for the document in application 86603. It will be recalled that that submission concerned the exposure of the SRO's recovery methods and procedures.

RMRC submitted that it should be released and that it was of historic interest only, ceasing to have any current relevance. Whilst it may not have current relevance so far as RMRC is concerned, I am not satisfied that it has generally lost its relevance. Balancing the interests, I am satisfied it would be contrary to the public interest to release it and am satisfied it is exempt from release under s30(1).

Document 22 contains handwritten comments on a typed e-mail message about recovery options. I agree with SRO's submissions that the handwritten notes are very cryptic and without further explanation would be capable of confusion and be misleading if released. The typed parts expressed frank thoughts and opinions and the SRO relies on the "integrity" and "prejudice" arguments against it release.

RMRC contends that the document discloses that "advice may have been given to third parties as to legal questions on which there is great doubt". It submits that there is a profound public interest "where it can be said officials in government have knowingly given dubious or uncertain advice to third parties". So far as this submission is concerned, I agree with the SRO that apart from any proof of what the SRO describes as "this colourful contention", it is not the Tribunal's role in an FOI application to make findings on those matters.

I am satisfied that it would be contrary to the public interest to release either the typed or handwritten parts of the document. I find that document 22 is exempt from release under s30(1).

Three documents numbered 1, 3 and 5 remain in this application. A decision at this time is required with respect to documents 1 and 5.

Document dated 27 September 1997. The document is a file note prepared by the then Manager of the Branch. This document discusses recovery action available to the respondent to recover the payroll tax debt of RMRC.

Document dated 18 June 1998. The document is an e-mail from the Branch Manager of the Branch to a legal officer of the Branch. The Branch Manager requests the legal officer of the branch to investigate the issue of servicing garnishee notices on interstate debtors".

RMRC concedes they are internal working documents for the purposes of s30(1)(a).

As with other similar communications dealing with recovery issues, SRO relies on the "integrity" and "prejudice" arguments to support its submission that release would be contrary to the public interest.

RMRC submitted that save where the document may refer to the activities of a person other than RMRC the document should be released. It submitted they were dated and prosaic.

I agree with the submission of RMRC that it is prosaic or matter of fact and more in the form of an instruction. Apart from the various sets of initials which may refer to others and which should not be released and the middle line containing the word "advised", I find that it would not be contrary to the public interest to release the balance. I am not satisfied that it would disclose any important deliberative processes concerning recovery of tax options or strategies for recovery.

Document 5 on the other hand does touch on those issues and I accept the "integrity" and "prejudice" arguments put forward to support the submission that release would be contrary to the public interest. I find Document 5 is exempt from release under s30(1).

Documents 1, 4, 5 and 9 in this application have not been released. I have been asked to make a decision at this time in relation to Documents 1, 4 and 9.

The documents are described by Mr Haddad as follows :

Document dated 11 October 1996. Document is from an officer of the Branch to the Branch Manager of the Branch. The document is a summary of the Litigation Committee meeting on RMRC.

Document dated 3 September 1997. Document is from an officer of the Branch to the Branch Manager of the Branch. The document is a summary of the Litigation Committee meeting on RMRC.

Document dated 20 may 1998. Document is a draft letter of demand prepared by a legal officer of the Branch to the solicitors of RMRC".

Document 1 is a memorandum communicating opinions expressed, advice discussed and recommendations within the SRO. I am satisfied it is passing on such material and is not merely the recording of a decision as submitted by RMRC. The matters relate to the course of action concerning recovery. I accept the "integrity" and "prejudice" arguments to support the submission that release would be contrary to the public interest. I find Document 1 is exempt from release under s30(1).

Document 4 is similar in nature to Document 1. For the same reasons as for Document 1, I find Document 4 is exempt from release under s.30(1).

Document 9 is a draft letter that was not sent. The letter sent instead is Document 10 which is not in issue. The draft is quite different from the final version. It is clearly an internal working document. I do not accept RMRC's submission that because it received the final version, there is no public interest reason why a non-contentious draft of the letter sent should not be released. The whole style of the letter is different and I find that it would be contrary to the public interest to release the draft.

I am satisfied Document 9 is exempt from release under s30(1).

Documents 3, 4, 5, 8, 10, 16 and 17 have not been released to date. A decision is required at this time for all of those with the exception of Document 16.

Document dated 29 June 1997. Document is a file note prepared by an officer of the Review Branch of the respondent. The memorandum is an 11 page report into the objections lodged by RMRC in respect to its payroll tax assessment".

Having perused the document, I am satisfied it is an internal working document. SRO is prepared to release the material under the heading "Background". So far as the balance is concerned, it relies on the "integrity" and "prejudice" arguments in support of its submission that release would be contrary to the public interest.

RMRC submits that the document contains essentially factual matters concerning RMRC and its structure and records the basis and fate of objections lodged by RMRC.

I do not accept the submission that it falls within the s30(3) exemption. It is the author's own report into all those matters and contains recommendations about how to respond to an objection.

I accept the "integrity" and "prejudice" arguments put forward with respect to this document and am satisfied its release would be contrary to the public interest. I am satisfied it is exempt from release under s30(1).

Documents 4, 5, 8 and 10 are described by Mr Haddad as follows :

Document dated 15 July 1997. Document is a letter from an officer of the Branch to Pitcher Partners Chartered Accountants. The letter was sent to Pitcher Partners as they were retained by the respondent to provide insolvency advice in regard to the winding up application of RMRC.

Document dated 18 July 1997. Document is a file note prepared by an officer of the Branch regarding a meeting held at Pitcher Partners offices on 18 July 1997. The meeting presented information to Pitcher Partners and requested expert opinion on whether RMRC is solvent.

Document dated 22 July 1997. Document is a letter from Pitcher Partners to a team leader of the Branch. The letter encloses a draft affidavit in regard to the winding up application of RMRC.

Document dated 7 August 1997. Document is a faxed letter from Pitcher partners to a legal officer of the respondent. The letter provides advice on the solvency of RMRC".

The SRO submits that they reflect an aspect of internal consultation within the meaning of s30(1). Pitcher Partners acted in the capacity as consultants to the respondent (for the purposes of advising about solvency) and therefore fit within the s5 definition of officer. RMRC concedes that point.

The "integrity" and "prejudice" arguments were relied on for the public interest question.

Document 4 is basically an introductory letter with a handwritten list of attachments. It does not contain opinion, advice or recommendation. It could not be regarded as controversial or disclosing recovery methods etc. Nor am I satisfied that its release would be contrary to the public interest and that the section 30(1) exemption is made out.

Document 5 is a file note, recording certain actions taken and to be taken. I cannot see that its disclosure would disclose or be reasonably likely to disclose material in the nature of opinion, advice or recommendation. I am not satisfied the exemption claimed under s30(1) is made out.

Document 8 is a letter with a draft affidavit. RMRC does not seek access to the draft affidavit. Otherwise, I agree with RMRC's submission that the letter is purely factual. It does not contain any material in the nature of opinion, advice or recommendation. I am not satisfied the exemption claimed under s 30(1) has been made out.

However, as s32 is also claimed in relation to documents 4, 5 and 8 need to be considered further.

Document 10 is different. It contains matter in the nature of advice or opinion. It does not express purely factual matters. I do not accept RMRC's submission that it records a fact within s30(3). I am satisfied its release would be contrary to the public interest and that the exemption claimed under s30(1) is made out.

There were no submissions in relation to Document 17 and I make no finding at this time in relation to that document.

There are five documents in this application none of which have been released. I have been asked to make a decision at this time for documents A1, A2, A3 and A4.

A description of these documents is contained in the statement of Mr Christos Vittas. From July 1994 to February 1999, he was employed in the Investigations Branch of the SRO. He currently works as an investigator in the Investigations Branch of the SRO. That Branch is part of the Compliance Enhancement Division of the SRO. It conducts investigations into the operations of taxpayers to determine compliance with Victoria's taxation legislation.

During 1995, he was instructed to conduct an investigation into the Pay-roll Tax affairs of RMRC. The investigation involved the examination of financial records and related documents. It took several days to complete and involved numerous discussions with the financial controller of RMRC and several visits to its premises. A follow up investigation was requested in 1996 which again involved the examination of various financial documents and visits to RMRC's premises.

Mr Vittas describes the documents in dispute as follows :

Document dated 30 November 1995. Document is a memorandum from an officer of the payroll tax branch to a team leader in the Investigations Branch. The document instructs the Investigations Branch to commence an investigation of RMRC within the next 48 hours.

Document is a memorandum dated 24 January 1996 from an officer of the Payroll Tax Branch to the Branch Manager of the Investigations Branch. The memorandum requests a further investigation to be conducted of RMRC.

Document is a memorandum dated 14 March 1996 from an officer of the Payroll Tax Branch to the Branch Manager of Investigations branch. The memorandum instructs the Investigations Branch to commence a further investigation of RMRC.

Document is an e-mail from the Branch Manager of the Revenue Management Branch to an officer of the Payroll Tax Branch. Document is an e-mail dated 31 January 1996. The e-mail contains recommendations in respect of the ongoing investigation of RMRC".

Perusal of Document A1 would indicate that apart from the third line commencing with "The investigation" to the end of paragraph (2), it is simply an instruction. Other than the parts mentioned it should be released.

Even if the balance are instructions, those very instructions expose the internal workings of the SRO in relation to how it approaches an investigation and shows the opinion of the author on those matters. Adopting the principles outlined in Murtagh's case, I find those parts exempt from release under s30(1).

The contents of A2, A3 and A4 are similar communications containing instructions and or advice or recommendations or opinion on how the investigation is to be approached. I am satisfied for the same reasons as for A1 that they are exempt from release under s30(1).

There are four documents which have not been released. A decision is required at this time in relation to documents B6 and E1.

Document is a handwritten file note providing a history of the ongoing payroll tax litigation between RMRC and the Respondent at the time.

Document dated 29 April 1996. Document is a report prepared by an officer of the Review Branch in regard to an assessment issued by the Respondent to RMRC on 4 January 1996".

B6 is dated 3 May 1989 and is an internal working document. SRO did not seek to maintain the exemption for purely factual material. Thus the section titled "History" should be released.

The other sections discuss current actions and recommendations. For the same reasons referred to earlier, I accept the arguments of SRO of "integrity" and "prejudice" that release of those other parts would be contrary to the public interest.

E1 is a memorandum similar to others already considered. The section headed "Background" should be released. RMRC concedes it is an internal working document but submits as I understand it, that release cannot be contrary to the public interest because RMRC has the right to review the relevant assessment in which event the memorandum would be made available under the provisions of the VCAT legislation. It is not clear to me what the outcome of the memorandum was. The mere fact that a document might potentially be required to be produced in some other proceeding pursuant to the procedures in that jurisdiction, does not persuade me that this overrides the public interest provision in s30(1)(b).

It is open to RMRC to pursue access in another forum. I accept the "integrity" and "prejudice" arguments of the SRO and find that all but the "Background" is exempt from release under s30(1).

There are seven documents remaining in this application which have not been released. I have been asked to make a decision at this time on two documents, L3 and M1.

Document dated 4 February 1997. Document is a memorandum from the Branch Manager and an officer of the Branch to the litigation committee considering the recommendation from the officers of the Branch to commence winding up proceedings.

Document dated 23 October 1998. Document is a briefing prepared by a Manager of the Receivables Management Branch of the Respondent to a Senior Policy Adviser in the Department of Premier and Cabinet. This briefing note is in response to the allegations raised by Mr Gary Morgan in a letter dated 29 September 1998. The briefing note prepares a background of the ongoing litigation between the Respondent and RMRC and addresses the assertions raised by Mr Gary Morgan in his letter of 29 September 1998".

RMRC concedes L3 is an internal working document. Again the SRO does not seek to maintain the exemption so far as the "Background" is concerned.

RMRC submits, as it has in relation to many other documents, that the matters raised have been acted upon and the document is only of historic interest. I do not accept the submission that parts of the first page other than "Background" are purely factual.

I accept the "integrity" and "prejudice" arguments of the SRO for reasons already canvassed. I am satisfied the balance of the document is exempt from release under s30(1).

Document M1 is a briefing to the Premier. It satisfies s30(1)(a). Again, the SRO does not seek to maintain the exemption for the section headed "Background". It expresses views and opinions of the SRO about a number of matters concerning RMRC.

RMRC submits release of what it calls "arguments" put to the Premier and which it says were accepted by him, cannot be "contrary to the public interest". As I understand it, RMRC has particular views about the way the SRO may have interpreted and applied the law and how it has proceeded to assess and recover payroll tax from RMRC.

RMRC has availed itself of the opportunity to tests its views of the law through the Court system. If there are some matters left unclear in RMRC's mind, it is not the Tribunal's role in the FOI jurisdiction to re-open disputes already concluded in the courts. RMRC's position has been adjudicated on the basis of matters brought before the Tribunal and the courts, not on any memorandum to the Premier.

As the balance of the memorandum contains matters of deliberations and opinions in the context of recovery and enforcement proceedings, I accept the "integrity" and "prejudice" arguments submitted by the SRO which persuade me that release of the balance of this document would be contrary tot he public interest. I therefore find such balance exempt from release under s30(1).

There are 10 documents in this application which have not been released. A decision is required at this time for three of those documents : A1, C1 and C2.

Document dated 13 February 1997. Document is a Minute to the Treasurer regarding the wind up action that is to be taken by the Respondent against RMRC for RMRC's failure to pay payroll tax liability for the period 1 January 1987 to 30 June 1995.

Document dated 11 October 1996. Document is from an officer of the Branch to the Branch Manager of the Branch. The document presents a summary of the Litigation Committee meeting regarding RMRC. The memorandum provides a background of the issues considered by the Litigation Committee and then provides a summary of the action to be taken to recover the outstanding payroll tax liabilities owned by RMRC.

Document dated 9 October 1996. Document is from an officer of the Branch to the Litigation Committee. The document provides a background into the outstanding payroll tax liabilities of RMRC and presents a number of recommendations to the Litigation Committee in regard to the recovery options available to the Respondent for the outstanding payroll tax liability".

Document A1 is a Minute to the Treasurer. It satisfies s30(1)(a). SRO does not seek to claim the exemption with respect to the section headed "Background".

I do not accept RMRC's submissions that the balance simply informs of a proposed event which subsequently occurred. It contains material in the nature of opinion. I am satisfied that the "integrity" and "prejudice" arguments of the SRO apply and that its release would be contrary to the public interest. I find the document, apart from background, is exempt from release under s30(1).

Document C1 records the thoughts, views, advice and decisions of members of the Litigation Committee. I reject RMRC's submissions about historical interest only. I accept the SRO's submissions about "integrity" and "prejudice". I find it is exempt from release under s30(1).

Document C2 is another memorandum. The SRO does not seek to maintain the exemption in respect of the part headed "Background". I do not accept that the matters listed under "issues" is purely factual, nor do I accept that even if a recommendation may have been overtaken by events, that this would persuade me that to release it would not be contrary to the public interest. In the context, I accept the SRO's submissions about "integrity" and "prejudice". I find the document, apart from the "background" section is exempt from release under s30(1).

DOCUMENTS FOR WHICH EXEMPTION IS CLAIMED UNDER SECTION 31

The SRO has claimed that a number of documents are exempt from release under s 31(1)(d) of the Act. The relevant parts of the section state :

(1) Subject to this section, a document is an exempt document if its disclosure under this Act would, or would be reasonably likely to -

(d) disclose methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or".

There are nine documents remaining in this category. I have been asked to make a decision at this time about Document 15 in application 86654 and documents A24 and E2 in application 5051.

Document dated 27 May 1998. Document is a hand written note of a telephone conversation between SRO officers concerning which officers of the Respondent are authorised to access the Austrac database".

Mr Vittas expanded on the background and context of the notes as follows :

"There is a Memorandum of Understanding which has been entered into by the Respondent and Austrac which describes the use of the confidential information obtained from the Austrac database. There are strict provisions regarding the release of information and the purposes for which the information can be used. The use of the information from the Austrac database is also governed by the Financial Transactions Reports Act 1988 (Cth).

The Respondent contends that these documents contain information which if freely available to the public would prejudice the effectiveness and compromise the procedures and methods used by the Investigations Branch. This document reveals methods and procedures used by the Investigations Branch to monitor compliance with the various taxation Acts of Victoria. If details regarding the methods employed in the investigation process are revealed to the public, taxpayers may structure their affairs in a manner which may impede the audit process for future investigations. This would hinder the Investigations Branch's ability to monitor compliance with the taxation laws of the State of Victoria".

RMRC responded that the document contains nothing that is not available to the public by studying the relevant legislation. It is a matter of public record, it contended, that the Commonwealth has investigative machinery which can produce information which in future can be put to lawful purpose.

However, the document contains more than that. It contains the author's views about certain matters. If it were not exempt from release under s31, I am satisfied it is exempt from release under s30(1).

Document dated 5 June 1987. Document is a report prepared by the Investigations Branch in regard to an audit of RMRC in February 1987 conducted to determine whether payments to part time interviewers were being included for payroll tax and whether such payments were assessable under the Payroll Tax Act 1971".

SRO again relied on Mr Vittas's evidence set out above to submit the document was exempt from release.

The concern of the SRO about its release is that the document reveals the SRO's approach and methods in a way that would be potentially prejudicial to it, if released publicly (in the sense of there being a sufficient risk of prejudice to the effectiveness of future investigations). Moreover, the SRO relied on the confidential addendum to Mr Haddad's statement.

RMRC submitted that the document should really be categorised as an internal working document and because it is more than 10 years old, s30(1) ceases to apply by virtue of s30(6) which says the exemption ceases to apply when 10 years has elapsed. It further submits it contains nothing which would disclose any method of investigating matters in that they are really matters of common accounting practice.

Irrespective of any arguments about s30(1) it is under s31(1)(d) that exemption is claimed. The document discloses the SRO's procedures for investigating and dealing with matters arising out of breaches or evasions of the law relating to pay-roll tax. I accepted the evidence of Mr Vittas that its release would be reasonably likely to prejudice the effectiveness of those methods and procedures.

I am therefore satisfied that the document is exempt from release under s31(1)(d).

This document is an investigation report dated 22 December 1995. This report provides detailed analysis of the findings of investigation into RMRC".

Again the SRO relied on Mr Vittas's evidence as set out above in relation to Document A24.

RMRC submitted, in relation to the exemption claimed under s31, that the report did not disclose any methods or procedures relevant to investigating breaches of the law where release would prejudice future investigations. It submitted the report records application of basic accounting methodology to the records of the applicant. RMRC further contended that the :

"document should be released under s31(2)(a) as revealing that the effect of the instructions given to Mr Vittas was to require him to exercise a function given to him under Revenue Law to advantage the applicant as a creditor and therefore coercive power given under the former Pay-Roll Tax were exercised beyond limit imposed by law within s31(2)(a). Alternatively, if document E2 is a report on the law enforcement investigation the substance of the report has been disclosed to the applicant in the assessment proceeding within s31(2)(f) of FOI Act".

I reject RMRC's submissions. Even if it simply recorded basic accounting methods, which I make no finding about, it contains more than that. Disclosure would expose the procedures and methods used by the SRO with the potential of prejudicing future activities. I accepted Mr Vittas's evidence.

Nor do I find the argument that s36(2)(a) applies attractive. To be satisfied it applies, I would need more than the assertions of RMRC that the scope of law enforcement investigations have exceeded the limits imposed by law. Particularly so, as RMRC had the opportunity to canvass those matters elsewhere. Nor is there any evidence before me that the substance of the report has been disclosed to RMRC such as to attract to exception under s31(2)(f). I am satisfied Document E2 is exempt from release under s 31(1)(d).

DOCUMENTS FOR WHICH EXEMPTION IS CLAIMED UNDER SECTION 32

Altogether there are 31 documents for which the exemption is claimed. Under s32, RMRC has conceded that it applies to 19 of the documents but relies for their release on a consideration of the application of s50(4) of the Act which I will return to later. There remain five with respect to which a decision is required and seven in respect of which no decision is required at this time.

(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

(2) A document of the kind referred to in section 8(1) is not an exempt document by virtue of sub-section (1) of this section by reason only of the inclusion in the document of a matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in section 8(1).

The nature of legal professional privilege has been closely examined by the High Court in a number of decisions, in particular Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52, Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500, Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475, and Waterford v The Commonwealth [1987] HCA 25; (1986-1987) 163 CLR 54.

Those cases establish the following principles relevant to this application:

(1) To determine whether a document attracts legal professional privilege consideration must be given to the circumstances of its creation. It is necessary to look at the reason why it was brought into existence. The purpose why it was brought into existence is a question of fact.

(2) To attract legal professional privilege the document must be brought into existence for the sole purpose of submission to legal advisers for advice or for use in legal proceedings. Submission to legal advisers for advice means professional legal advice. It includes the seeking or the giving of advice. Use in legal proceedings includes anticipated or pending litigation.

(3) The reason for legal professional privilege is that it promotes the public interest. It assists and enhances the administration of justice by facilitating the representation of clients by legal advisers. There are eloquent statements of the importance of this public interest in each of the cases referred to above.

(4) Legal professional privilege attaches to confidential professional communications between salaried legal officers and government agencies. It must be a professional relationship which secures to the advice an independent character. The reason for the privilege is the public interest in those in government who bear the responsibility of making decisions having free and ready confidential access to their legal advisers. Whether or not the relationship exists is a question of fact.

(5) If a document contains material that does not fulfil the required test, that does not necessarily deny the document the protection of the privilege. What matters is the purpose for which the document was brought into existence. If it was for the required purpose, it is not to the point that the document may contain advice which relates to matters of policy as well as law. However, an analysis of the document may assist in determining its moving purpose.

(6) Legal professional privilege does not attach to documents brought into existence for the purpose of guiding or helping in the commission of crime or fraud, or for the furtherance of an illegal purpose, including an abuse of statutory power, or for the purpose of frustrating the process of the law itself (see Kearney).

Document 2 it will be recalled was included in the documents for which exemption was claimed under s30(1). It is an e-mail with an attachment concerning matters considered by the SRO's litigation committee. The penultimate paragraph has not been released. That paragraph records the advice of counsel, and I am satisfied it is exempt from release under s32.]

There are two documents in this application requiring a decision. Documents 12 and 13. They are internal e-mails, one to and the other from Mr Ou-Young. Mr Kim Chye Ou-Young is a solicitor employed in the office of the Solicitor for the Commissioner of State Revenue and he has had the care and conduct of a number of proceedings relating to RMRC under the supervision of his principals.

The documents on their face appear to be communications solely connected with legal recovery proceedings, namely the issue of garnishee notices. The SRO submits that attracts legal professional privilege regardless of its contents.

RMRC submits in essence that these documents record or advise of events and do not contain any legal advice. When one looks at the purpose of the document and considers their content and context, I consider that they are doing more than simply recording or advising of events. I am satisfied that they are exempt from release under s32.

It will be recalled that Documents 4, 5 and 8 claimed under s30(1) were also claimed to be exempt from release under s32. In addition some notes on Document 13 require a decision.

On Document 13 are some handwritten notes. The author Ms Georgiou, a legal officer, is in the SRO's Legal Department who was noting a decision of the Litigation Committee. The note contains advice about how to proceed in the legal proceedings. The SRO contends they form part of privileged communications concerning legal proceedings (being garnishee proceedings).

RMRC contends that while the document on which the notes appear contains legal opinion, release of the notes would not necessarily release the advice given.

However, as they are notes of Ms Georgiou and are prepared in the course of legal proceedings and, in my view, record advice, I am satisfied that the exemption under s32 is made out with respect to those notes.

So far as Documents 4, 5 and 8 are concerned which I have described earlier, no specific submissions were made by the SRO with respect to the exemption claimed under s32. Given my findings about the documents set out earlier, I am not satisfied they are exempt from release under s32.

There are four documents in this application. Two documents are in issue. A decision is respect of both is required at this time. First, are the handwritten notes attached to B9, a memorandum in respect of which s32 is conceded.

The SRO relies on the same arguments advanced with respect to the last document considered. RMRC contends that the notes do not record the advice of a lawyer or a legal question, but that they record the advice of a lawyer on an administrative question. I disagree with that categorisation. I am not satisfied that it is advice on just an administrative question. I am satisfied the notes are exempt from release under s32.

Document L24 is also in issue. Mr Vittas describes the document as follows :

Document dated 29 August 1996. This document is a legal advice from a legal officer of the Legal Branch to a member of the Executive of the Respondent. This memorandum sets out a chronology of relevant stages in the payroll case between RMRC and the Respondent this includes the brief summary of the decisions given in the AAT and the Supreme Court".

RMRC does not dispute that the document was prepared by a legal officer. It contends that the advice given extends beyond legal questions and raises administrative or management questions. Further, that it could have been written by any person.

The author is an internal legal officer and the document relates to legal proceedings. I agree with the submissions of the SRO that it appears to proffer legal advice and assistance particularly on pages 4 and 5. I am satisfied it is exempt from release under s32.

DOCUMENTS FOR WHICH EXEMPTION IS CLAIMED UNDER SECTION 29

There are 20 documents not released which the SRO claims are exempt from release under s29(b).

"29. Documents containing matter communicated by any other State

A document is an exempt document if disclosure under this Act would be contrary to the public interest and disclosure -

(a) would prejudice relations between the State and the Commonwealth or any other State or Territory; or

(b) would divulge any information or matter communicated in confidence by or on behalf of the government of another country or of the Commonwealth or of any other State or Territory to the government of the State or Territory or a person receiving a communication on behalf of that government".

I am asked to make a decision at this time with respect to three of the documents - A1, A3 and A4 in application 97281. RMRC does not seek access to any part of the document that relates to the affairs of others.

The documents are related and in chronological order, Mr Vittas describes them thus:

Document dated 4 May 1998. Document is a letter from the State Revenue Department of Western Australia to the respondent requesting information regarding RMRC.

Document dated 26 May 1998. Document is a memorandum from an Investigator in the Investigations Branch to an officer in the Management Support Unit of the Investigations Branch. This memorandum is a request for a covering letter to sign off information requested under a reciprocal powers request from the State Revenue Department in Western Australia.

Document dated 28 May 1998. Document is a letter from a team leader in the Investigation Branch to the Assistant Commissioner of Compliance in the State Revenue Department of Western Australia. This information provides information to the State Revenue Department of Western Australia in respect of RMRC".

"Section 29(b), which is relied upon as the ground of exemption, has two elements. Firstly, communications in confidence (which element was addressed by Mr Vittas and not challenged in cross examination) and secondly, a public interest test. In re O'Sullivan (no 2) (1995) 9 VAR 1 it was held that it would be contrary to the public interest to do anything calculated to impede the free and candid exchange of information between State departments on child protection matters. It is submitted that the exchange of information on matters related to the affairs of taxpayers (bearing in mind that taxpayer related matters carry with them an inherent acceptance of the need for confidentiality) would likewise be contrary to the public interest.

Matters relating to taxation (or at least its recovery) are matters connected with law enforcement. Two authorities which confirm there is a public interest in not jeopardising uninhibited exchange of intelligence between government law enforcement agencies of different states are Re Nilsen (unreported, Megay DP, 15/1/97) and Re Rich (No 2) (unreported, Preuss PM, 16/5/97) - see Kyrou at para [232]. Although it involved a letter, Re Rich was decided in a taxation context (ie letter from ATO to another agency)".

RMRC's submission relevant to the application of s29(b) was that the documents do not contain information which has been communicated in confidence. Further, that as RMRC's affairs

"are subject of the information conveyed to the other State there is a public interest akin to `natural justice' in it discovering that the applicant had been required by law to convey to other States. The applicant submits the public interest would accept that the applicant should know what other authorities have been told about it. It would not be `contrary to the public interest' within s29 of FOI Act to release those parts of these documents that refer only to the applicant".

I accepted Mr Vittas's uncontradicted evidence that these communications were on a strictly confidential basis. I do not accept RMRC's submissions. I am not satisfied that the mere fact that one's affairs are communicated gives rise to some public interest akin to natural justice requiring the disclosure of the information.

I am satisfied the documents are exempt from release under s.29.

Although the Tribunal has found many of the document exempt from release, that is not the end of the matter.

Section 50(4) of the Freedom of Information Act gives the Tribunal power to grant access where it is of the opinion that the public interest requires that access be granted.

Section 50(4) states:

"50(4) On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, Section 3(3), or in Section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act".

Section 50(4) is subject to some exceptions, which are not relevant in this case.

The task of the Tribunal is to decide whether the public interest has been demonstrated to the extent that it outweighs the competing interest of documents protected from disclosure by specific provisions of the Act and requires that access should be granted.

"Public interest" is a term not defined in the legislation. However, the case law is clear in that we need to distinguish between what is in the public interest and what is of interest for the public to know.

The Full Court of the Supreme Court in DPP v Smith [1991] VicRp 6; [1991] VR 63 made the following comments on the meaning of "public interest" in s50(4):

"The [FOI Act] does not contain any definition of public interest. Nevertheless used in the context of this statute it does not mean that which gratifies curiosity or merely provides information or amusement ..... Similarly it is necessary to distinguish between `what is in the public interest and what is of interest to know' ....

[There is a] distinction between the public interest and a matter of public interest. The public interest is a term embracing matters, amongst others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the wellbeing of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals. .... Thee are several and different features and facets of interest which form the public interest. On the other hand, in the daily affairs of the community events occur which attract public attention. Such events of interest to the public may or may not be ones which are for the benefit of the public; it follows that such form of interest per se is not a facet of the public interest".

The SRO referring particularly to the evidence of Mr Haddad and Mr Vittas contended that the public interest did not require the release of the documents found to be exempt.

"The Respondent is the primary revenue collection agency for the State of Victoria, as such the Branch is charged with the recovery of outstanding taxation liabilities of defaulting taxpayers. The Branch collected in excess of $87 million for the year ended 30 June 1998. This results in the Branch operating in a commercial environment where sensitive details of the recovery procedures utilised by the Branch are carefully guarded and only discussed amongst officers of the respondent.

The respondent contends if the Tribunal were to permit the release of the procedures and mechanisms used by the Branch to pursue defaulting taxpayers, it would create a precedent for the future release of similar information. This would enable taxpayers to become aware of the procedures and mechanisms used by the Respondent to pursue outstanding taxation liabilities. If such information were freely available to taxpayers they could structure their affairs in such a manner so as to avoid the recovery procedures employed by the Respondent.

In addition defaulting taxpayers who become aware that the Respondent was pursuing them for outstanding taxation liabilities, could submit a Freedom of Information (`FOI') request which would reveal details of the impending recovery action that has been contemplated by the Respondent. This would provide a opportunity for the defaulting taxpayer to circumvent and frustrate the intended recovery procedures of the Respondent.

For example, if the Respondent has issued a letter of demand and has had confidential discussions amongst officers regarding the impending issue of garnishee notices to certain bankers, the defaulting taxpayer would become aware of this information via the FOI process. The taxpayer could then take immediate action to frustrate the recovery process by the immediate withdrawal of funds from that particular bank which the Respondent intended to garnishee.

It is therefore intended by the Respondent that the release of these documents would not be in the public interest as they would prejudice the ongoing collection activities of the Respondent and jeopardise the revenue stream of the State of Victoria".

Mr Vittas particularly referring to the public interest in protecting from release intra-state communications stated:

"... the material in the documents is such that its disclosure would, or would be reasonably likely to prejudice relations between the State of Victoria and other States. The documents are communications between officers of the Respondent and officers from other inter-state revenue authorities which were made in confidence. These communications would divulge matters which were communicated in confidence by the State of Victoria to other states on the understanding that the information contained therein would remain confidential.

The information that was provided by the Investigation Branch was done under the provisions of the Taxation (Reciprocal Powers) Act 1987 (Vic). In addition the provision of information to the inter-state revenue authorities is governed by a `Memorandum of Understanding Between Participating Commonwealth, State and Territory Taxation/Revenue Offices Concerning The Exchange of Confidential Information' (`the MOU'). Both the MOU and the Taxation (Reciprocal Powers) Act contain secrecy provisions which prevent the disclosure of the information contained in these documents is released, it would prejudice relations between the State of Victoria and other States and would jeopardise the future exchange of confidential information under the MOU and the Taxation (Reciprocal Powers)Act".

RMRC filed exhaustive material in support of its contention that the public interest required release of the material. Twenty-four grounds were articulated in a statement dated 4 February 1999. Two of those grounds were further elaborated upon in a statement by Mr Wallace dated 22 April 1999.

The thrust of RMRC's contentions are contained in its submissions filed in response, dated 26 May 1999. RMRC contended that after considering the documents and the evidence given at the hearing, I should conclude that the public interest requires release of documents which address the following questions :

"1. Whether it is proper for the respondent, when exercising compulsory powers given to it by Parliament, to routinely enquire into documents and issues not related to tax liability.

2. Whether legal deficiencies in the collection methods available to the respondent were identified as early as 1996 and remain un-addressed.

3. Whether the applicant was either unfairly targeted because its affairs were raised in Parliament or unfairly favoured because of its commercial and social significance.

4. Whether there is a gap in the legislative scheme in which the respondent operates whereby information obtained under the Pay-Roll Tax Act 1971 (Vic) (as it existed before 1 July 1997) can be used after the relevant provisions were repealed.

5. Whether officers of the respondent paid proper consideration to the issues involved in issuing the garnishee notices or whether they behaved in an unconscionable fashion".

Those general propositions were considered in greater detail particularly in relation to :

* whether "bluff" in collecting revenue is appropriate

in further support of RMRC's contentions that the public interest required that the documents and particular documents should be released.

The SRO responded to those more detailed matters. It submitted :

"* the heading `routine abuse of statutory powers' is unnecessarily inflammatory, not proven and again a matter that is not strictly relevant to an FOI case such as this. All of the documents in dispute in this case, as well as the evidence that was led, is consistent with the respondent having used its statutory powers for the purpose of investigation, assessment and recovery in respect of taxation matters.

* The allegation ... that the respondent resorts to bluffing when collecting revenue is unnecessarily inflammatory and, as a matter of fact, wrong. The respondent, provided it is not acting in bad faith is entitled to utilise such statutory powers for taxation recovery as it believe it has at its disposal. As mentioned earlier, it is fully open to the taxpayer, as it was in this instance, for it to challenge the use of those powers in Court proceedings. In fact, the taxpayer in this instance made a preliminary challenge and failed. In these circumstances there was no bluff involved.

* It would not be relevant for the Tribunal in a case like the present to embark on deciding whether information had been unlawfully used. The respondent contends, and the applicant denies, that it was entitled to use information obtained in the investigation and assessment process when seeking to recover assessed tax. As discussed above, the applicant sought to challenge aspects of the respondent's recovery process in the court proceedings and that was the proper forum for such a matter to be argued".

In short, RMRC contends that because it considers it has been unfairly and improperly treated and singled out by the SRO and asserts that the SRO has exceeded its statutory powers, the public interest requires the release of the documents.

I am not satisfied that the RMRC's contentions about impropriety etc are any more than assertions, based on its interpretation of events from its perspective. I agree with the SRO's submissions that there is nothing in the material which suggests bad faith nor anything to suggest that the SRO had done more than use its powers for the investigation, assessment and recovery in respect of taxation matters.

It is not the Tribunal's role to carry out an investigation into the behaviour of the SRO. Such matters would more appropriately be a matter for the Ombudsman. So far as the assertions that the SRO has exceeded its statutory powers or unlawfully used information obtained, I agree with the SRO's submissions that these are not matters for the Tribunal to decide in an FOI application. The parties have different views on a number of matters. Indeed, RMRC has unsuccessfully exercised its legal rights on certain aspects through to the High Court of Australia. It could also have tested other matters in the courts in proceedings which RMRC issued, but subsequently withdrew. It is not the Tribunal's role to "second guess" those matters, particularly where they have been or could have been argued in the courts, and where the documents in question may have been available through the discovery process.

Whilst RMRC has its own interest in the release of the documents, I am not satisfied that the public interest requires their release such that s50(4) should be applied to override the specific exemptions made out. Nothing has been placed before me to show that RMRC's concerns are part of a wider controversy rather than merely the grievances of an individual taxpayer.

I certify that this and the preceding 57 pages are a true and correct copy of the reasons for decision of Mrs A Coghlan, Deputy President of the Victorian Civil and Administrative Tribunal.