Smeaton v Victorian Workcover Authority (General) [2010] VCAT 1908

1. The decision of the Tribunal is that 28 days from this day access is granted to:
   1. Document 13; and
   2. The "Note of conversation with the Ombudsman", being page 3 of Document 31,
2. Decision about pages 1 and 2 of Document 31 reserved to hear further submission on 9 December 2010, as discussed in the reasons below.
3. Costs reserved.

City Parking Pty Ltd v City of Melbourne (1996) 10 VAR 170

Lambert v VicRoads (General) [2008] VCAT 850 (20 May 2008)

Birnbauer v Inner and Eastern Health Care Network (1999) 16 VAR 9

Osland v Department of Justice [2005] VCAT 1648; 23 VAR 378

Osland v Secretary to the Department of Justice [2010] HCA 24

1. In November 2009, under the Freedom of Information Act 1982 (the Act), Mr Smeaton asked the Victorian Workcover Authority ("Workcover") for access to documents being "all TRIM files relating to Sue Smeaton". TRIM stands for, "Tower records and Information Management". Tower is a company that provides an electronic search facility with respect to the files.
2. In April 2010, Mr Smeaton applied to VCAT seeking review of WorkCover's deemed refusal (under section 53 of the Act) to grant access to the documents.
3. By letter dated 8 June 2010, WorkCover responded to the request providing released documents and advising it viewed 41 documents as exempt from release.
4. At this point, under section 53(5) of the Act, the proceeding at VCAT came to concern the review of WorkCover's decision of 8 June.
5. On 13 October 2010, I heard the application. Mr Smeaton represented himself. Mr Hurley of counsel represented Workcover. By this time, according to a schedule provided by WorkCover, 36 documents, of a schedule of 42 documents, were claimed as fully or partially exempt from release.
6. By the end of the hearing, I had heard submissions relating to a sample of 13 documents.
7. With respect to sample documents where WorkCover had decided telephone numbers of junior staff were exempt from release, Mr Smeaton refined his request to not include the telephone numbers. He maintained his request for names of junior staff, for reasons discussed below.
8. I reserved my decision about the sample documents. I adjourned other aspects of the application, as Mr Smeaton sees them, to a compulsory conference scheduled in other proceedings between the parties, which I plan to conduct with a view to settling all issues between the parties.

1. The sample documents (as described by WorkCover) are with reference to claimed exemptions (some documents appear twice below):

1. documents claimed fully exempt as internal working documents (section 30(1)), being Documents 12 (draft letter re preliminary responses to the Accident Compensation Conciliation Service's (ACCS') questions), 13 (file note regarding telephone discussion with Bill Forwood) , 16 (email enclosing draft consent letter from Sue Smeaton), 28 (draft document in response to ACCS' letter of 18 August 05) 31 (email regarding Sue Smeaton Ombudsman enquiry) and 36 (Draft letter to CGU regarding media attention of 4 May 2004); 2. documents claimed fully exempt and partially exempt (42) under legal professional privilege (section 32(1)), being Documents 16 (email enclosing draft consent letter from Sue Smeaton), 21 (legal advice from Minter Ellison), 40 (legal advice) and 42 (memo from WorkSafe to KPMG re Sue Smeaton's entitlement to interest on back payments containing legal advice);

1. documents claimed partially exempt as affecting personal privacy (section 33(1)), being Documents 9 (email regarding Sue Smeaton), 24 (email regarding Virginia Trioli's program (ABC), 30 (email regarding Sue Smeaton claim No. 04 03 59461 and 39 (email regarding the applicant's telephone call to Michael Ulbrick - note contains all document 38 being an earlier email); and

1. documents claimed exempt in full as contain material obtained in confidence (section 35(1)), being Documents 13 (file note regarding telephone discussion with Bill Forwood) and 31 (email regarding Sue Smeaton's Ombudsman enquiry).
2. During the hearing, it was discovered:

1. WorkCover had previously released a Note of Conversation, which was part of Document 31, which was a sample document. Mr Hurley conceded given this, the Note of Conversation should be released. As discussed below, I am unsure whether his concession extended to the other two pages of Document 31; 2. Mr Smeaton had a copy of Document 40. Mr Smeaton withdrew his request for a copy of Document 40; and

1. Mr Smeaton had a copy of Document 42. I decided the issue on the basis that Document 42 is part of a sample and so a guide to WorkCover making decisions about the 'unsampled documents'.

1. Under section 13 of the Act, Mr Smeaton has the right to obtain documents from WorkCover unless a document is wholly or in part an exempt document as defined by the Act. I now set out the claimed exemptions.
2. Section 30 concerns internal working documents.

(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

(1A) Subsection (1) applies in relation to a council as if for "Minister" there were substituted "member of the council".

(2) In the case of a document of the kind referred to in section 8(1), the matter referred to in subsection (1)(a) of this section does not include matter that is provided for the use or guidance of, or is used or may be used for, the purpose of making decisions or recommendations, or enforcing enactments or schemes, referred to in section 8(1).

(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.

(5) Where a decision is made under Part III that an applicant is not entitled to access to a document by reason of the application of this section, the notice under section 27 shall state the public interest considerations on which the decision is based.

(6) Subsection (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.

(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.

1. Section 33 concerns document affecting personal privacy. It relevantly says,

(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).

(2) Subject to subsection (4), the provisions of subsection (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.

1. Section 35 concerns material obtained in confidence. It relevantly says,

35 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 -

(a) the information would be exempt matter if it were generated by an agency or a Minister; or

(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.

(a) acquired by an agency or a Minister from a business, commercial or financial undertaking; and

(b) that relates to trade secrets or other matters of a business, commercial or financial nature.

1. Section 50(4) (discussed below) is known as 'the public interest override'. It empowers me to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), or in section 33) where I am of opinion that the public interest requires that access to the document should be granted under this Act. After I consider all the exemptions, I consider this section.

Charter of Human Rights and Responsibilities Act 2006

1. Under the Charter, in considering this application I must consider any relevant human right. Mr Smeaton did not raise the Charter. In my opinion, in this proceeding, the Charter does not apply, as no right appears engaged.

1. I heard evidence from Mr Smeaton and Ms Doreen Wilby.
2. Ms Wilby is responsible for managing a branch of WorkCover that develops and implements claims management procedures. Her evidence about various documents is set out below. She also said TRIM Files are a collection of hard copies of documents which relate to complaints received by WorkCover, such as complaints by the Smeatons, and to policy development related to WorkCover. TRIM Files do not include 'claims files' which are files held by the agents engaged by WorkCover to handle claims. WorkCover staff place documents on TRIM files, including emails, if in their opinion the document is of some substance.
3. I admitted a variety of documents into evidence.

1. Document 9 has been released except that the name of a junior staff member and two telephone numbers were deleted. Mr Smeaton only seeks the name if the person is employed as a personal assistant. His only interest in their names is he is concerned personal assistants may hold in the 'email boxes' emails relating to his wife's claim which have not been searched by WorkCover. The staff member has objected to release of the name.
2. I affirm WorkCover's decision. In my view, disclosure of the name would involve the unreasonable disclosure of information relating to the personal affairs of a person. It would be unreasonable because the intrusion on the personal affairs of a junior staff member is not justified by the vary small chance that revealing the name would result in Mr Smeaton causing WorkCover to discover further emails. I accept Ms Wilby's evidence that it is highly unlikely personal assistants employed at WorkCover would have in their 'email boxes' any emails of substance which had not been passed on to the relevant responsible officer and/or copied to the TRIM files and so the emails would very likely already have been discovered.

Document 12 - draft letter re preliminary responses to the ACCS' questions

1. Document 12 is a draft which led to WorkCover sending a letter to the ACCS dated 14 October 2005, which has been released to Mr Smeaton. I affirm WorkCover's decision. Concerning the draft, in my opinion:

1. its release would disclose matter in the nature of opinion, advice and recommendation, in the sense that when one officer submits a draft to another, it is an expression of opinion recommendation or advice as to the appropriateness of the proposed draft. See City Parking Pty Ltd v City of Melbourne (1996) 10 VAR 170; 2. it was prepared in the course of and for the purpose of, the deliberative processes involved in the functions of an agency, being WorkCover.

1. its release and would be contrary to the public interest, in that it is a draft document. As SM Davis said in Lambert v VicRoads (General) [2008] VCAT 850 (20 May 2008)

It is important that public servants have the opportunity of drafting their documents in order to both consider whether what they have stated is correct and to enable them to review a situation. Public servants should be allowed to do this type of drafting, in the knowledge that the document which they drafted would not be put in the public domain. It matters little that the final version of this document which was tendered into evidence and released to the public has a number of similarities with Document 8. The fact is that it is important that a freedom be given to a drafter of the documents to make as many drafts as he or she considers desirable in order to create what they consider to be the best finished product. The fact that this document has a number of blanks, in my view, should not encourage it to be released, but the opposite. A reader reading a document with a number of blanks, is liable to become confused and gain the wrong impression of what the writer is actually trying to say.

Document 13 (file note regarding telephone discussion with Bill Forwood)

1. Mr Bill Forwood is a retired member of the Victorian Parliament. As a local member, he attempted to assist the Smeatons. Document 13 appears to be a file note prepared by a WorkCover officer (although the author is not identified and it is it is not signed) recording a discussion with Mr Forward. WorkCover is unable to say why the file note was made.
2. I have decided to disclose Document 13.
3. First, WorkCover claims exemption under section 30(1) of the Act. In my view, that exemption is not available. The file note is largely a recording of what Mr Forwood is said to have said and in small part what the author of the note said.
4. In my opinion, its disclose would not disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister. I agree with the approach of DP Macnamara in City Parking Pty Ltd v City of Melbourne 10 VAR 170 where he found a handwritten file note of a conversation was not opinion, advice or recommendation (see discussion of Document 119 in that proceeding at p. 213). There is no evidence that the file note in any way used in interactions between relevant minister and officers of WorkCover. Therefore, I am not satisfied its disclosure would disclose 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.
5. Second, WorkCover claims exemption under section 35(1)(b) of the Act in that disclosure would be reasonably likely to impair the ability of WorkCover to have frank communications with members of Parliament.
6. Ms Wilby gave evidence that members of Parliament contact WorkCover on behalf of constituents. She did not know why Document 13 was created. In her opinion, its release could deter parliamentarians from contacting WorkCover about constituents' concerns.
7. Mr Hurley described the opinions recorded in the note as broad ranging and frank and such that Mr Forwood clearly intended the conversation to be in confidence. While Ms Wilby said she understood Mr Forwood would did not wish the note to be released, she had no direct knowledge on the issue. While not criticising Ms Wilby, I do not give her understanding any weight.
8. Mr Smeaton expressed surprise at the idea Mr Forwood would make statements to WorkCover which he did not wish Mr Smeaton to discover. He described them having ongoing email communication appearing on talkback radio together and attending meetings together. He also submitted there are no grounds for concluding the release of the Document 13 will impair dealings between parliamentarians and WorkCover.
9. Whether information or matter has been communicated in confidence is a question of fact for the Tribunal to consider. I am not satisfied the information was communicated in confidence.
10. In my opinion, there is not sufficient information in the file note to indicate it was provided in confidence. WorkCover, which bears the onus of proof under section 55 of the Act, did not in my view provide persuasive evidence to that effect.
11. I had regard to the following factors:

1. The words, "In confidence" or similar do not appear. 2. There is no surrounding statutory framework which may indicate confidentiality. The "framework" or context of the communication does not of itself indicate whether Mr Forwood intended the call to be confidential. I would not be surprised if sometimes a member of Parliament will wish to speak in confidence and sometimes not.

1. In my view, the text of the file note does not with the requisite clearness indicate the information was given in confidence. In my view, a member of parliament may have elected to provide the information in confidence but then again may not have. In reaching this view, I also considered Document 14 (not part of the sample) which appears to be another file note, this time being the WorkCover officer recording a conversation with Mr Forwood where the officer made the call. While I have not heard submissions on Document 14, it appeared relevant. Its only potential significance was that it may have drew me toward a finding the communication was in confidence, in which case I may have considered inviting written submissions about it.

1. I note Mr Smeaton said he had a good relationship with Mr Forward, including appearing on Melbourne radio with him. He would be surprised if Mr Forwood was communicating with WorkCover in confidence. For clarity, I indicate I do not rely on Mr Smeaton's statement in reaching my view. However, if anything it supports my view.
2. Also, I am not persuaded disclosure of Document 13 would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of WorkCover to obtain similar information in the future.
3. The question of whether disclosure would be reasonably likely to impair the ability of WorkCover to obtain similar information in the future is a question of fact for me to decide, with WorkCover bearing the onus of proof.
4. I do not find disclosure of Document 13 would be reasonably likely to impair the ability of WorkCover to obtain similar information in the future. I agree with the approach of DP Macnamara in Birnbauer v Inner and Eastern Health Care Network (1999) 16 VAR 9, as described by Pizer in Victorian Administrative Law at [FOI.35.180],

... where the VCAT observed that the requirements of s 35(1)(b) will not be satisfied if the evidence goes no further than "the people involved would be somewhat less candid than they otherwise might be" if the document were disclosed.

Document 16 (email enclosing draft consent letter from Sue Smeaton)

1. Document 16 is an email from Eric Windholz, General Counsel, WorkCover to an officer at WorkCover enclosing a draft consent letter from Sue Smeaton and the draft letter. WorkCover claims exemption as an internal working document and under legal professional privilege. The draft letter evolved into a letter from WorkCover to Mrs Smeaton dated 2 November 2005, which was released to Mr Smeaton.
2. According to Ms Wilby, Document 16 is in part an email recording a conversation between a lawyer employed by WorkCover and a lawyer employed by Minter Ellison acting for WorkCover and in part a draft letter draft by Minter Ellison as amended by the lawyer employed by WorkCover.
3. I affirm WorkCover's decision. For essentially the reasons set out concerning Document 12, I regard the draft document as exempt as an internal working document.
4. Regarding the claimed exemption under section 32(1) of the Act, usually referred to as "legal professional privilege" exemption, Pizer (at para 2345), after referring to the High Court case of Esso Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49 and Daniels Corp v ACCC [2002] HCA 49; (2002) 213 CLR 543 says,

... a document will be privileged (and thus exempt under s 32(1) of the Act) if :

1. it contains a confidential communication between the client (or the client's agent) and the client's professional legal advisers that was made for the dominant purpose of obtaining or providing legal advice or is referrable to pending or completed litigation;
2. it contains a confidential communication between the client's professional legal advisers and third parties that was made for the dominant purpose of pending or contemplated litigation; or

1. it contains confidential communication between the client (or the client's agent) and third parties that was made for the purpose of obtaining information to be submitted to the client's professional legal advisers for the dominant purpose of obtaining advice on pending or completed litigation.

1. I accept Document 16 is confidential communication between the client (or the client's agent) and the client's professional legal advisers that was made for the dominant purpose of obtaining or providing legal advice.
2. In doing so I have considered Mr Smeaton's submission that I must be satisfied that the person described as the legal adviser must hold a practising certificate.
3. Pizer discusses the issue of legal professional privilege ate [FOI.32.40]. he says in part,

Legal professional privilege attaches to confidential professional communications between government agencies and their salaried legal officers: Attorney-General (NT) v Kearney (1985) 158 CLR 5000 ... Nevertheless, an in-house lawyer must possess the requisite measure of independence for legal professional privilege to attach: Waterford v Commonwealth (1987) 163 CLR 163

1. I have no reason to doubt that Mr Windholz, as an 'in-house lawyer', in providing advice, has the requisite measure of independence that is required to attract legal professional privilege.

1. I affirm WorkCover's decision. In my opinion, as with Document 16, Document 21 is exempt as it confidential communication between the client (or the client's agent) and the client's professional legal advisers that was made for the dominant purpose of obtaining or providing legal advice.

Document 24 - email regarding Virginia Trioli's program (ABC)

1. I affirm WorkCover's decision. WorkCover only claims exemption for the telephone number of the communications manager. At hearing, Mr Smeaton said he did not seek the number.

Document 28 - draft document in response to ACCS' letter of 18 August 05

1. I affirm WorkCover's decision. For the essentially the reasons set out concerning Document 12, I regard the draft document as exempt as an internal working document. I note the final version of the letter was released to Mr Smeaton.

Document30 - email regarding Sue Smeaton claim No. 04 03 59461

1. I affirm WorkCover's decision. WorkCover only claims exemption for the mobile telephone number of an officer. At hearing, Mr Smeaton said he did not seek the number.

Document 31 - email regarding Sue Smeaton Ombudsman enquiry

1. As discussed above WorkCover no longer claims the Note of conversation with the Ombudsman is exempt, as a copy was previously released to Mr Smeaton.
2. I am less clear as to WorkCover's position with respect to the balance of Document 31. Unless WorkCover advises me before or at the compulsory conference scheduled with respect to outstanding issues in this proceeding and related proceedings that they agree to the release of the balance of Document 31, I will order it be released. If it opposes release, I will consider the issue. It is convenient to deal with the issue at the upcoming compulsory conference.

Document 36 - Draft letter to CGU regarding media attention of 4 May 2004

1. WorkCover claims exemptions for handwritten annotations to the letter. However, during the hearing, it was discovered that Mr Smeaton already has a copy of the letter and the handwritten annotations on it. Mr Smeaton was not aware of this, because he necessarily had not had an opportunity to view the handwritten written comments on Document 36. He submitted the document as an example of WorkCover previously releasing letters with handwritten comments in place. WorkCover appeared unaware it had previously released the document.
2. I consider this document with respect to the general issue of whether handwritten notes on letters as appear in the schedule of documents should be released.
3. Ms Wilby describes the notes as by the proposed author and as partially illegible and recording only snippets of thoughts and conversations. In Ms Wilby's opinion, release of such notes are likely to create further controversy based on incomplete and unclear notes.
4. Mr Smeaton submitted WorkCover had released various documents to him with handwritten annotations. As he had a copy he observed the writing was reasonably legible and had to be so as it was a draft and the writing was apparently instructions by the named author to change the letter before signing.
5. I affirm WorkCover's decision. For the essentially the reasons set out concerning Document 12, I regard it as a draft document and exempt as an internal working document.

Document 39 - email regarding the applicant's telephone call to Michael Ulbrick

1. As discussed above, Mr Smeaton sought the staff member's name.
2. I affirm WorkCover's decision. As I discuss with respect to Document 9, in my view, disclosure of the name would involve the unreasonable disclosure of information relating to the personal affairs of a person.

Document 42 - memo from WorkSafe to KPMG re Sue Smeaton's entitlement to interest on back payments containing legal advice

1. WorkCover claims exemption to the extent that the document says it first quotes legal advice from WorkCover's corporate legal division and then summarises the advice.
2. Ms Wilby wrote Document 42. She gave evidence that she quoted legal advice provided by lawyers employed by WorkCover.
3. However, similar to the situation with document 36, during the hearing it was discovered that Mr Smeaton already has a copy of the letter. Mr Smeaton was not aware of this.
4. I consider the document as a sample document about which my decision has relevance to the documents named in the schedule. I affirm WorkCover's decision.
5. On its face, Document 42 is exempt as it reproduces confidential communication between the client (or the client's agent) and the client's professional legal advisers that was made for the dominant purpose of obtaining or providing legal advice.
6. However, Mr Smeaton submits WorkCover has waived that privilege by releasing the gist of the advice to him in a file note by Ms Wilby dated 17 November 2005.
7. Pizer described the approach of the Victorian Court of Appeal in Osland v Department of Justice [2005] VCAT 1648; 23 VAR 378 [FOI.32.60] as,

In Osland, the Court of Appeal held that disclosure of the conclusion (or gist, substance or effect) of legal advice may, or may not, amount to a waiver of privilege in respect of the advice as a whole. Whether it does in a particular case will depend on whether in the circumstances of the case, the requisite inconsistency exists between the disclosure on the one hand and the maintenance of confidentiality on the other.

1. The 'released gist' on which Mr Smeaton relies is in a file note by Ms Wilby dated 17 October 2010 headed "Claim No. 09-92.50790, Worker - Sue Smeaton". The relevant parts are, in my opinion,

Reviewed to ascertain whether there has been any formal application for interest following the agent's decision to recalculate PIAWE after provision of relevant documents to support the recalculation. ...

Previous VWA advice is that interest is not payable due to the common law release with TAC. ...

• Advise [Mrs Smeaton] (based on advice) that interest is not payable.

1. If Document 42 had not already been released to Mr Smeaton, I would not have ordered the disclosure of the claimed exempt material on page 2 from "Following the review, ... to the end of the text of letter on page 3. In my opinion, the above quoted material in the File Note does not disclose the gist of the advice as described in Document 42. The File Note gives the conclusion of the advice but does not disclose how the conclusion was reached.

1. Turning to the public interest override, the High Court of Australia recently confirmed that decision-makers must be satisfied to a high threshold that the public interest necessitates release of the document. In Osland v Secretary to the Department of Justice [2010] HCA 24, French CJ, Gummow and Bell JJ. said at paragraph 14,

It must be accepted that the word "requires" which appears in section 50(4) directs the decision-maker to identify a high-threshold public interest before the power can be exercised. It is not enough that access to the documents could be justified in the public interest.

1. The Court said the high threshold existed (at para 48) where,

The nature of the differences between the advices, throwing up opinions about the fairness and authority of the criminal justice system, the circumstances of Mrs Osland 's situation, and asserted inadequacies in the law in relation to chronic domestic violence, was such as to be capable of supporting the formation of an opinion that the public interest required the disclosure of the documents. It was, at the very least, arguable, in the circumstances of the case, that the high-threshold public interest standard was met and that the public interest required disclosure of the contending, essentially normative propositions which the Attorney-General had before him when he recommended that Mrs Osland 's petition be denied.

1. I do not accept that the public interest requires the release of any of the sample documents. In my view, the high threshold has not been reached.