The second requirement is that the advice, etc was given in the course of, or for the purpose of, the deliberative processe_s_ of the Minister or the Government. These have been described as the 'thinking processes' of the Minister or agency.[3]
The applicant contended that a distinction should be drawn between two different potential purposes for the creation of the disputed document:
- An opinion that may have been prepared in the course of, or for the purposes of, a process associated with the selection of a chief executive of a major Victorian statutory entity, and
- An opinion prepared to explain why a director had determined to tender his resignation from the Board of that entity once that selection had been made. Mr Cohen said that his submissions were made on the basis of an assumption that the disputed document was a letter of resignation. He submitted that the decision to appoint Ms Cosgrove had already been made by the time the disputed document was sent (on 26 September 2012) - indeed, it had precipitated Mr Barker's resignation - and so that letter could not be said to be part of the deliberative process concerning the making of that appointment.
Mr Cohen properly conceded that this submission necessarily had an element of speculation about it, because he had not seen the disputed document.
Ms Bennett submitted first that it could not be said when the decision as to what recommendation the Minister would make to the Cabinet was made. Second, even if the letter of 26 September 2012 was written after that decision had been made, it could still form part of relevant deliberate processes of the Minister and the Government. Third, she submitted that it was a mischaracterisation of the letter to call it merely a letter of resignation. She said it was in actual fact a multifaceted letter.

Victorian Civil and Administrative Tribunal|2013-11-28

The applicant contended that the contents of the disputed document had already been disclosed publicly (that is, by publication of the article in the Age on 28 October 2012 referred to above). Mr Cohen pointed to authorities which state that this limb will not be satisfied where the information has already been disclosed publicly.[2] He conceded that to the extent the letter had not already been disclosed publicly, this first limb of s 30 is satisfied. That is, the applicant accepted that the letter was in the nature of opinion, advice or recommendation prepared by an officer, or consultation or deliberation between an officer and the Minister.
The respondent contended that the letter had not been disclosed publicly. It submitted there was a great deal of difference between the material which had been published in the newspaper article on the one hand, and the disputed document on the other. The newspaper article was written by a journalist following receipt of a tip-off, apparently in the form of an email from Mr Barker to colleagues at the VWA. It was unsourced and unverified. This is quite different from the disputed document itself, which is an actual letter from the Deputy Chair of the VWA to the Minister. The respondent said that each of the authorities referred to by the applicant were examples of disclosures in one form or another by Government, not 'disclosures' by way of media articles or leaks.
In my view, the respondent's contention is clearly correct. It cannot be said that the contents of the disputed document have already been disclosed. What has been disclosed is what the journalist believed was the import of the document. Mr Gastin's evidence disclosed one aspect of the article which was inaccurate - relating to the composition of the panel created to advise on the appointment of the VWA chief executive. This example reinforces the conclusion that the disputed document has not been disclosed.

The second requirement is that the advice, etc was given in the course of, or for the purpose of, the deliberative processe_s_ of the Minister or the Government. These have been described as the 'thinking processes' of the Minister or agency.[3]
The applicant contended that a distinction should be drawn between two different potential purposes for the creation of the disputed document:
- An opinion that may have been prepared in the course of, or for the purposes of, a process associated with the selection of a chief executive of a major Victorian statutory entity, and
- An opinion prepared to explain why a director had determined to tender his resignation from the Board of that entity once that selection had been made. Mr Cohen said that his submissions were made on the basis of an assumption that the disputed document was a letter of resignation. He submitted that the decision to appoint Ms Cosgrove had already been made by the time the disputed document was sent (on 26 September 2012) - indeed, it had precipitated Mr Barker's resignation - and so that letter could not be said to be part of the deliberative process concerning the making of that appointment.
Mr Cohen properly conceded that this submission necessarily had an element of speculation about it, because he had not seen the disputed document.
Ms Bennett submitted first that it could not be said when the decision as to what recommendation the Minister would make to the Cabinet was made. Second, even if the letter of 26 September 2012 was written after that decision had been made, it could still form part of relevant deliberate processes of the Minister and the Government. Third, she submitted that it was a mischaracterisation of the letter to call it merely a letter of resignation. She said it was in actual fact a multifaceted letter.

No definitive evidence was given as to when the decision to appoint Ms Cosgrove was made, or when the Minister decided to recommend her appointment to Cabinet. In relation to this Section 25(1) of the Accident Compensation Act 1985 (AC Act) states:

The Governor in Council must appoint a full-time Director of the Board, who is to act as Chief Executive of the Authority.

It was suggested from the bar table by Mr Cohen that a Cabinet decision for an appointment such as this is normally made on the Monday of the week prior to the Governor in Council appointment. It was common ground between the parties that the Governor in Council made the appointment of Ms Cosgrove under s 25 of the Accident Compensation Act on 2 October 2012. The Monday of the week prior to that was 24 September 2012. It is noted that Mr Barker's resignation was on Wednesday 26 September 2012.
As Mr Cohen conceded, however, it is speculative as to when the Minister actually decided what recommendation would be made to the Cabinet, and when the Cabinet made its decision. Mr Gastin was specifically asked about this. He was unable to state when the Minister decided what recommendation he would make as to the appointment of the VWA chief executive.
Ms Bennett, for the respondent, submitted that under the AC Act, the relevant date was the date of the Governor in Council appointment, which was 2 October 2012, and it was not appropriate to speculate as to what the various preliminary decision making steps were and when they were taken. This submission leads to the conclusion that the disputed document was created prior to the decision as to the appointment of the VWA chief executive. This would in turn support the conclusion that the disputed document was part of the deliberative process.
Ms Bennett further argued that it did not matter even if the disputed document post-dated the decision. She put this on two bases: First, she said that the disputed document could serve as a 'record' of what was said as part of the deliberative process, even if that occurred at an earlier time. The requirement under s 30(1)(a) is only that the matter relates to the deliberative processes, not that it comprise those processes. It could be a subsequent record of what occurred during earlier deliberative processes or deliberations. Second, she said that a document created subsequent to the Minister deciding who he wished to appoint as the VWA chief executive could nevertheless relate to deliberative processes in the sense of the Minister's ongoing consideration of the management and operations of the VWA. Commentary on how a particular process was conducted was relevant to the ongoing consideration by the Minister of the exercise of his portfolio responsibility for the VWA.
I have some concern about the proposition put by Ms Bennett in paragraph 23 above that in the circumstances of this matter, merely because the final decision by the Governor-in-Council was made on 2 October 2012, I should regard that as strongly supporting a conclusion that the letter of 26 September 2012 was part of the deliberative process.
However, I accept the submissions made by the respondent in paragraph 24 above. Having inspected the disputed document, it is clear that it does record matters raised in earlier communications between Mr Barker and the Minister. And those communications did relate to the deliberative processes concerned in the appointment of the chief executive.
I also accept that the content of the document does relate to the management and operations of the VWA into the future. It conveys Mr Barker's opinions about those matters. This does concern the deliberative processes involved in exercising Ministerial and Governmental responsibility for the VWA.

Both parties referred to the list of public interest considerations which might potentially be applicable as set out in Hulls v Victorian Casino and Gaming Authority.[4]
The applicant contended that the public interest is served by:

Open and accountable Government and, in particular, access to information held by Government. Informed public debate and accountability will be jeopardised if relevant information is not adequately disclosed. 2. Transparent, consistent and appropriate governance arrangements for all Victorian public entities, including WorkSafe, and in highlighting circumstances in which enhanced governance arrangements are warranted.

Transparency of decision-making with respect to the selection and appointment of chief executives to Victorian public entities, including WorkSafe, so as to ensure consistent and appropriate processes are followed.

'Clearing the air' with respect to governance and leadership of Victorian public entities in circumstances where board members resign and those resignations are the subject of media attention and public controversy. 2. Transparency about strategic direction and risk management of WorkSafe under any Minister or chief executive. WorkSafe is a very significant public entity which in 2011/12 held $11.387 billion in public assets, and its 29,261 injury enormous claims, undertook 41,781 workplace visits and received $1.878 billion in premium revenue from Victorian employers according to WorkSafe Victoria Annual Report 2012.
The applicant also contended that to the extent it is said disclosure may discourage 'frankness and candour', such contentions should be treated with scepticism.[5]
Through submissions put, documents tendered and questions asked of Mr Gastin in cross-examination, the applicant was critical of the arrangements in place for the appointment of the WorkCover chief executive. The applicant said that the preferable corporate governance arrangement was that the board of an agency such as the WVA should appoint the chief executive, rather than the Governor-in-Council. It said this is the governance structure set out by the State Services Authority (SSA) in its guidelines on legal form and governance arrangements for public entities (revised May 2013). This makes the chief executive accountable to the board, which in turn is accountable to the Minister. The applicant submitted that the arrangement whereby the chief executive of WorkSafe is appointed by the Governor-in-Council is an anachronism. It arises out of changes made by the Kennett Government in 1992. Of all the numerous Victorian public financial corporations and non-financial corporations, the VWA is one of only three[6] where the chief executive is appointed by the Governor in Council. Thus, there is a particular need for transparency in relation to the appointment of the chief executive of VWA - so that judgements can be made about whether the current arrangements are suboptimal, and could be improved upon.
In relation to this matter of the process for the appointment of the chief executive, Mr Gastin's evidence was that this was the only such process he had been involved in during his time at DTF. He said that while there might be more than one governance structure which is appropriate for a particular organisation, the VWA's present governance structure is a robust one. The VWA's performance over the last 12-18 months did not give rise to concern.
In my view the respondent has demonstrated that it would be contrary to the public interest to disclose the disputed document. The main public interest considerations applicable here are as follows:
- The nature and degree of sensitivity of the issues discussed in the document. The issues are highly sensitive as they involve Mr Barker's views on matters concerning the appointment of the new VWA chief executive. This is a factor pointing against disclosure.[7]
- The persons involved in the provision and receipt of the opinion are clearly very senior. The letter is from the Deputy Chairman of the VWA to the Minister. This is a factor tending against release.[8]
- Disclosure would inhibit frankness and candour in communications between officers at a very high level and ministers. While the frankness and candour argument is overused in some circumstances, it is an appropriate consideration here.[9] It is undesirable to discourage high level officials[10] from committing their views to writing when communicating with the relevant Minister.[11]
- It is likely that disclosure would create mischief or undermine confidence in the VWA and the appointment process. It would reveal advice that was not adopted or acted upon.[12] Second, disclosure of comments made (and impliedly made) on successful or unsuccessful applicants for a position would have the potential to lead to ill-formed and unbalanced debate about the ultimate decision taken,[13] with potential adverse implications for the operation of the VWA now.
In my view it is clear that the general public interest factors relied upon by the applicant relating to transparency and clearing the air are outweighed by the specific public interest factors against release referred to above. Indeed, given the present circumstances - a high level communication from a very senior office holder in one of Victoria's biggest statutory authorities to his Minister about sensitive matters - this is a good example of a document which it would be quite undesirable to release. That would send a message to people in equivalent positions that they could not freely commit their opinions, advice and recommendations to Ministers in writing, and this would harm the effective operation and Government supervision of those agencies.[14]
I regard the applicant's submissions about the need to expose the existing arrangements for the appointment of the WorkCover chief executive as being unsatisfactory, as being a long bow. Those arrangements were determined by Parliament in enacting s 25 of the AC Act. Whether they are appropriate or not can be considered by reference to many considerations, and public release of the disputed document would make some contribution to that debate, in my view, that benefit is outweighed by the public interest in protecting the confidentiality of documents such as this.
I find the disputed document is exempt under s 30.

Section 35 of the FOI Act relevantly provides:
1. Documents containing material obtained in confidence

(1) A document is an exempt document if its disclosure under this Act would divulge any information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister, and -

(b) the disclosure of the information under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.

I accept that the disputed document was communicated in confidence by Mr Barker to the Minister. Mr Gastin gave evidence to that effect. He said this document was particularly sensitive and confidential, given that Mr Barker sent it direct to the Minister without sending a copy to the Department. He said ordinarily correspondence to the Assistant Treasurer would be copied into the Department for noting action and brief, but this did not happen in the present case. Mr Gastin said he only saw this document for the first time in the course of preparation for this FOI case.
Mr Gastin said that communications between the Assistant Treasurer and Chairpersons or Deputy Chairpersons are ordinarily made in confidence. This is normal administrative practice. He said the Victorian Public Entity Directors Code of Conduct 2006 made under s 63 of the Public Administration Act 2004 imposes duties on officials to use information appropriately, including to maintain confidentiality. He said that the Assistant Treasurer regularly meets with such officers on a formal and private basis. He indicated that to operate effectively, there needed to be a relationship of trust between the Minister and such senior officers.
Further, Mr Gastin said that in line with normal practice for recruitment, especially high level recruitment, it is standard that information about candidates was kept confidential. All persons involved in the appointment process were aware of the need to maintain confidentiality and not disclose their opinions outside the formal process.
Mr Gastin also referred to Mr Barker's position as Chairperson of TAC, and his membership of a number of committees including the Joint Financial and Investment Strategies Committee of VWA, and its sister organisation, TAC.
Mr Barker remained chairperson of the TAC until 31 August 2013 (shortly prior to the hearing). Accordingly, the matters referred to in Mr Gastin's witness statement relating to the potential effect of release of the disputed document on the TAC specifically, no longer have the significance they had previously.
As stated, I am satisfied that the disputed document was communicated in confidence to the Assistant Treasurer. The submissions on behalf of the applicant referred to authorities to the effect that information may not be confidential where it is already in the public arena.[15] However, in the course of dealing with the s 30 claim above, I have already found that the material in the public arena is quite distinct from the disputed document.

Turning to s 35(1)(b), the public interest test is expressed in narrower terms than in s 30. The disclosure must be reasonably likely to impair the ability of the Minister to obtain similar information in the future.
Mr Gastin's evidence included the following, relevant to this question of public interest:
- He expressed the view that if executives were not able to provide frank and candid advice to their Ministers because they knew it would become public, they would be more likely to give verbal advice, which would make it more difficult for Ministers to act on that advice.
- Factors influencing assessments of candidates need to remain confidential. Otherwise candidates might tailor the information they provide, which has the potential to distort the appointment process.
- If information about the process and reasons for a particular decision were known, this could pose a reputational risk for Government. If candidates are concerned about the integrity of the process, including the potential for it to become known that they have applied, and how they were assessed during the process, then that could dissuade potential applicants for nominating. This would be contrary to public interest because it would reduce the quality of the pool of applicants for such positions.
The applicant submitted that to the extent the information in the disputed document relates to Mr Barker's reasons for resigning, disclosure would not be reasonably likely to impair the ability of the Minister to obtain similar information in the future. It was said that any board member sufficiently moved to tender his or her resignation could be expected to be willing to provide the reasons for doing so.
No specific authority was cited for this proposition. I do not accept that a board member would be expected publicly to provide his or her reasons for resignation.
Mr Cohen also submitted that the 'class' of potential suppliers of information to be considered for the purposes of s 35 is board members or chairs of Government agencies who are resigning. Ms Bennett, on the other hand submitted that the relevant class of persons was senior members of Government agencies engaging in communications with their relevant Minister.
Applicable authorities make it clear that too narrow an approach should not be adopted to the categorisation of 'similar information' in s 35(1)(b).[16] The disputed document in this case relates to the processes for the selection of the VWA chief executive, and matters relating to the characteristics appropriate to be emphasised when selecting the appropriate candidate, rather than just being limited to matters personal to Mr Barker himself. Given this, the type of 'similar information' which would be discouraged from being provided is much broader than just factors relating to Mr Barker himself. This in turn increases the significance of the public interest factors at play.
Although the public interest factors in s 35 are differently described to those in s 30, in this case, the applicable public interest factors under both provisions are similar. In my view, it is more probable than not (applying the test in Ryder v Booth[17]) that the disclosure of the disputed document would impair the Minister's ability to obtain similar information in the future. The key factor is that the disclosure of a frank letter written to the Assistant Treasurer by the Deputy Chair of the VWA, in the context of the appointment of its new chief executive, and his own resignation, would send a message that officers in such high level positions could not communicate freely with their Ministers on the assumption that their views will remain confidential. This impairment to obtaining information in turn would be contrary to the public interest in that it would undermine the effective working relationship between Ministers and senior officers of Government agencies.
I find that the disputed document is exempt under s 35.

SECTION 33 - PERSONAL AFFAIRS

Section 33 of the FOI Act relevantly provides:
1. Document affecting personal privacy

(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).

information relating to the personal affairs of any person includes information -

(a) that identifies any person or discloses their address or location; or

(b) from which any person's identity, address or location can reasonably be determined.

The applicant's submission acknowledged that it is generally unreasonable to release the names of unsuccessful applicants for employment in public entities. The applicant's submission also said:
1. it may be unreasonable to release information relating to both successful and unsuccessful candidates: Turrisi v Environment Protection Agency[18]. In part this is because even for successful job applicants, it is highly likely ordinary members of the community would experience considerable disquiet if it were thought that applications for employment and supporting documentation might be the subject of public scrutiny: see Birrell v Department of State and regional Development.[19]
The applicant submitted that where specific aspects of 'personal affairs' had already been disclosed to the public, s 33 would not apply.[20] However, apart from the Sunday Age article of 28 October 2012 which refers to Ms Cosgrove and Mr Barker, no evidence was led indicating that relevant personal information of any other person referred to in the disputed document had already been released.
The applicant, however, argued that to the extent the release of the document in dispute would disclose information relating to the successful candidate, or an unsuccessful candidate, or to Mr Barker himself, this was information relating to their professional capacity rather than their personal affairs.[21] Mr Cohen was of course making his submissions from the standpoint of a person who has not seen the disputed document.
Having viewed the disputed document, I find that it does contain components which identify or could lead to the identification of some individuals. To the extent these are references to candidates for the position of chief executive, I find it would be unreasonable to disclose that information. Applicants have an expectation that their applications will be treated in the strictest confidence. Mr Gastin confirmed that was the case here. It would be unreasonable to breach that confidence.
One could attempt to separate out the material which is exempt under s 33 from that which is not, for the purposes of s 25 of the FOI Act, but it would not be easy. In any event, it is not necessary to do seek to redact the document in the manner provided for in s 25 because I have found that the whole of the document is exempt under s 30 and 35.

Section 50(4) confers a power on the Tribunal to grant access to a document where the public interest is required. It is clear the Tribunal must identify to a high threshold public interest before a document can be released under s 50(4).[22] The override does not operate where s 33 applies. The applicant conceded that if he did not succeed on the public interest grounds under s 30 then the public interest override would not apply. He did not however abandon reliance on s 50(4) in relation to the s 35(1)(b) claim. He contended, although not with great emphasis, that the lack of consistency in governance arrangements applying to the VWA compared with other Victorian Government agencies gave rise to an overriding public interest in disclosure. For the reasons set out above, I do not regard that as a strong argument in this case, and certainly not such as to suggest that the override should apply.
For the above reasons, I find that the disputed document is exempt under sections 30, 33 and 35. The respondent's decision is affirmed.

[2] Honeywood v Department of Innovation, Industry and Regional Development [2004] 21 VAR 453; [2004] VCAT 1657; [26]; Ryan v Department of Infrastructure (2004) 22 VAR 226; [2004] VCAT 2346, [46]; Pallas v Department of Premier and Cabinet (2013) VCAT 877, [19].

[3] Brog v Department of Premier and Cabinet (1989) 3 VAR 201 at 208.

[5] Re Marple v Department of Agriculture (1995) 9 VAR 49, 44-45, 48-49 (per Macnamara DP); Re Kotsiras v Department of Premier and Cabinet [2003] VCAT 472 [12] per Megay SM.

[6] The others being the Director of Housing, and SECV (being the rump of the former State electricity provider).

[7] Howard v Treasurer of the Commonwealth (1985) 3AAR 169; Landes v VicRoads (2009) VCAT 2403.

[8] Howard v Treasurer of the Commonwealth (1985) 3AAR 169.

[9] AB v Department of Human Services [2001] VCAT 2020.

[10] Murtagh v Federal Commissioner of Taxation [1984] AATA 249; (1984) 54 ALR 313 at 326 per Davies J.

[11] Landes v VicRoads (2009) VCAT 2403.

[12] Bracks v Department of State Development (unreported, AAT of Victoria, Megay GP, 10 September 1996).

[13] Turrisi v Environment Protection Authority (unreported, VCAT, Coghlan Deputy President, 20 March 1999).

[14] See Landes v VicRoads [2009] VCAT 2403 at [47] and Friends of Malacoota Inc v Department of Planning [2011] VCAT 1889 at [67].

[15] Re Pepperell and Ministry of Housing and Construction (1989) 3 VAR 191, 199 (per Galvin DP) and Stewart v Victoria Police (1987) 2 VAR 192, 198 (per Rowland J and Rosen N).

[16] Sifredi v Medical Practitioners Board of Victoria [1999] VCAT 87; and Richards v Law Institute of Victoria (unreported, County Court, Vic, 13 August 1984, 9 per Dixon J).

[17] [1985] VicRp 86; [1985] VR 869, 880 (per Gray J).

[19] [2001] VCAT 1258, [29] (Megay SM).

[20] DPP v Smith [1991] VicRp 6; [1991] 1 VR 63, 69 and Mildenhall v Department of Planning and Development (unreported, AAT of Victoria, 16 August 1985, [8] per Preuss M).

[21] University of Melbourne v Robinson [1993] VicRp 67; [1993] 2 VR 177 (per Eames J).

[22] Osland v Secretary to Department of Justice [2010] HCA 24 [14] (per French CJ, Gummow and Bell JJ).

Scott v Office of the Assistant Treasurer (Review and Regulation) [2013] VCAT 2015 (28 November 2013)

Scott v Office of the Assistant Treasurer

At a glance

Court

Decision date

Source

Judgment (43 paragraphs)

Parties

Cases Cited (2)

Scott v Office of the Assistant Treasurer (Review and Regulation) [2013] VCAT 2015 (28 November 2013)