1 The decision under review is affirmed, save that access is granted under section 25 of the Freedom of Information Act 1982 to document 1 in the proceeding, subject to the deletion of the main body of the document (the copy of the Powerpoint presentation) and the final appendix containing spreadsheets of various options.

2 This order is stayed for 28 days from 30 June 2006.

Mr R M Niall of counsel instructed by FOI Solutions

(given orally at the hearing and subsequently revised)

1 This case raises the question of whether four consultant reports concerning the Seal Rocks Sea Life Centre ("Seal Rocks Centre") on Phillip Island are exempt from disclosure under the Freedom of Information Act 1982 ("the Act").

2 In August 2002 an arbitrator made an interim award in relation to a dispute concerning the Seal Rocks Centre. As a result of that award the State Government was required to pay damages and legal costs in excess of $50 million. The size of this payout attracted considerable public interest.

3 Following the making of the award the government was faced with the problem of what to do with the Seal Rocks Centre. (In a sense the money which had been paid out by way of damages and legal costs were sunk costs.) To that end, in August 2002, it appointed a task force to advise the then Minister for Environment and Conservation. The task force was responsible for advising on means to put the Seal Rocks Centre on a sustainable business footing and also to provide other advice in relation to the penguin parade and Phillip Island Nature Park. The task force consisted of Mr John Laurie, as chairperson, and other eminent persons with a business and tourism background.

4 In order to fulfil its duties, the task force commissioned a report from the accountants KPMG. The full title of this report is "Phillip Island Nature Park Scoping Study Masterplan", but I will refer to it as the "KPMG report". The report, which was provided by KPMG to the task force in March 2003, is also known as "Document 1" in the present proceeding.

5 Upon receipt of the KPMG report the task force adopted the report. In April 2003 a copy of the report wasprovided by the chairman of the task force, via the department, to the Minister for Environment.

6 On 7 May 2003 the Minister for Environment signed a Cabinet submission, which was subsequently considered by the Sustainable Development and Environment Committee of Cabinet. This Cabinet submission contained very detailed consideration of the contents of the KPMG report and, in some parts, extracted verbatim contents of the report. Essentially both the KPMG report and the Cabinet submission set out options for the future of the Seal Rocks Centre and analysed the pros and cons of each option so as to facilitate the making of a decision. The relevant Cabinet committee held its meeting on 14 May 2003. The minutes of the Cabinet sub-committee meeting make it clear that the substance of the KPMG report was deliberated upon by the Cabinet committee. I am satisfied that the Cabinet committee deliberated upon the options set out in the KPMG report which were replicated and, to some extent, summarised in the Cabinet submission dated 7 May 2003.

7 On 14 May 2003 the Cabinet committee also decided that further work be undertaken concerning the future of the Seal Rocks Centre in order to assist Cabinet to make a more informed decision about the relative merits of the options presented. Root Projects Australia were engaged to undertake this work. Root Projects Australia then produced a report entitled "Addendum to the Phillip Island Nature Park Scoping Study Masterplan (March 2003)". This addendum report was dated July 2003. This is the second document which is the subject of the current proceeding. A Cabinet submission was prepared, although not ultimately submitted, in relation to this addendum report of Root Projects Australia.

8 In September 2003 a further report was provided by Root Projects Australia called "Attachment to the Addendum". Once again, this further report was the subject of a Cabinet submission which was prepared, although not actually submitted, to Cabinet.

9 On 13 April 2004, a third report was prepared by Root Projects Australia called "Future Use Options for the Former Seal Rocks Seal Life Centre".

10 The three reports prepared by Root Projects Australia must be considered together as each builds on earlier reports (including the KPMG Report).

11 The first Root Projects Australia report called "The Addendum" states in its introduction:

We understand that based on feedback from a recent Cabinet review committee the State Government requires additional information to assist in their assessment of the preferred option for the future use of the former SRSLC.

12 Following the receipt of the last of the three Root Project Australia reports a submission was prepared to the expenditure review committee of Cabinet ("the ERC") concerning the future of the Seal Rocks Centre. At its meeting to consider this submission the ERC directed the department to prepare a further submission based upon one of the options canvassed in the KPMG Report and the various Root Project Australia reports. On 15 March 2005 the department presented a further submission to the ERC. This submission drew on and was informed by the cumulative work in the various reports. Cabinet then made a decision on the matter and in May 2005 it announced, as part of the 2005/2006 Victorian budget, that $7.1 million would be spent on restoring the Seal Rocks Centre.

13 Against this background the applicant, who is a member of Parliament, made a request in May 2005 to have access under the Act to various documents concerning the Seal Rocks Centre. Subsequently this request was refined to be a request for the KPMG Report and the three Root Projects Australia reports that I have referred to. This application under the Act was refused; and that refusal was upheld on internal review. The applicant then sought to have the matter reviewed by the tribunal.

14 In relation to the KPMG Report the department has relied upon two types of provisions. First, it has relied upon provisions in relation to Cabinet documents, in particular section 28(1)(b), (ba), (c) and (d). Second, it has relied upon provisions concerning internal working documents, namely section 30(1). In relation to the Root Projects Australia reports the department relies on section 28(1)(b) and (d) and also section 30(1).

15 In Ryan v Department of Infrastructure[1] I essayed the nature of the provisions of the Act concerning Cabinet documents. No doubt there are important policy reasons which found the exemption in relation to Cabinet documents. Equally this type of exemption at least has the potential to be misused so as to protect politically sensitive documents that might not be afforded protection if they were not regarded as Cabinet documents. Hence it is important that the tribunal faithfully interpret and apply section 28; and that it does so in the context of the object of the Act, particularly the object set out in section 3(2) that the Act be interpreted so as to further the making available of public information.

16 It is convenient to deal first with the three documents authored by Root Projects Australia. I find that each of these documents was prepared for the purpose of submission for consideration by the Cabinet. Further I find that each of these documents has been prepared by an agency within the extended meaning of that term.[2]

17 The finding that the documents have been prepared for the purpose of submission for consideration by Cabinet follows from the fact that these documents were the product of a Cabinet decision that further documents of this character be prepared. The first Root Projects Australia document acknowledges that this is the source of its preparation. Moreover my finding is reinforced by the fact that these documents, or at least a summary of them, were actually subsequently considered by Cabinet.

18 It follows that the three Root Project Australia documents are exempt pursuant to section 28(1)(b) of the Act. Hence it is unnecessary to consider whether these documents are also exempt under section 28(1)(d); although what I am about to say in relation to the KPMG Report would also seem to apply to the Root Projects Australia reports insofar as section 28(1)(d) is concerned.

19 Further, by reason of my conclusion, it is unnecessary to say much more about section 30. However, should the matter go further, I would tentatively record the following views. I find that the Root Projects Australia reports are documents that satisfy the requirement of paragraph (a) of section 30(1). Clearly these documents would, if released, disclose matters in the nature of advice for the purpose of the deliberative processes involved in the functions of government. I would also tentatively find that, as presently informed, I would not be satisfied that the disclosure of these documents would be contrary to the public interest. It is true that the witness called for the department, Ms McCoy, did observe that the material in the documents differs from the approach finally taken by government and the rationale underlying that decision. She also observed that disclosure of the documents would be confusing, distracting or potentially misleading. I found Ms McCoy to be an honest and reliable witness. But this part of her evidence is really in the nature of comment or judgment rather than evidence as to factual matters. And I choose to (tentatively) disagree with her on those matters. I think when substantial amounts of public expenditure are involved in resolving the future of a controversial site there is a public interest in revealing the analysis which lead to the government choosing one option rather than other options. But as I have decided that the Root Projects Australia documents are exempt under section 28 it is probably wise if I say no more about this.

20 I now turn to the KPMG Report. It is convenient to go straight to the exemption claim under section 28(1)(d) of the Act. This provides that a document is an exempt document if it is a document, the disclosure of which would involve the disclosure of the deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published. The KPMG Report can effectively be divided into five elements:

• First, there is the substance of the document which was presented in the form of a Powerpoint presentation.

• Second, there was an appendix that dealt with the strategic directions of the tourism industry in general.

• Third, there was an appendix which recorded the consultation that occurred with miscellaneous groups and surveys that were conducted to inform the preparation of the report.

• Fourth, there is a series of spreadsheets in relation to visitation to key Victorian tourist attractions.

• Fifth, there are detailed spreadsheets of the financial modelling of the various options analysed by KPMG, the substance of which is then contained in the Powerpoint presentation.

21 I see nothing in the second, third and fourth sections of the report that would disclose the deliberations or decisions of the Cabinet. Further, bearing in mind section 25 of the Act, I would regard it as practicable to grant access to those parts of the document, even though the document as a whole is exempt. Partial access was requested if full access was unavailable.

22 Insofar as the first and final parts of the document are concerned, the substance of these matters was canvassed in the Cabinet submission which was made following the preparation of the KPMG Report; and, indeed, significant matters are simply extracted into that Cabinet submission. As I am satisfied that the Cabinet deliberated over the options identified and articulated in the KPMG Report, including over the financial modelling of those options, I am satisfied that the disclosure of the first and fifth parts of the KPMG Report would disclose deliberations of the Cabinet.

23 This is not the occasion to precisely ascertain what is meant by the concept of "deliberation". Others have identified that concept to embrace the thinking processes of Cabinet and what ministers "had on their minds". Frankly I would not regard those elaborations as particularly helpful as they do not inform what might be the boundaries of deliberation. Be that as it may, this is a clear case that the Cabinet did choose between various options and deliberated over various options. The options the subject of the deliberations originated in the KPMG Report. The options were not in the nature of background information, such as a census study or weather figures, but were substantial options put before government with the intention of assisting government to make a decision about which course to prefer. Hence I am satisfied that the KPMG Report is an exempt document under section 28(1)(d). I am also satisfied that there are parts of that report, namely the second, third and fourth parts that I have identified, which could be released because none of those parts would disclose any deliberation of a decision of the Cabinet.

24 The respondent pointed out that part of the Cabinet submission concerning the KPMG report involved the adequacy of the consultation process. Hence the respondent said that the third part of the KPMG report would disclose the deliberations of Cabinet in that respect. I do not agree. I think it is drawing a long bow to say that Cabinet deliberated over the question of consultation. Rather I think that part of the Cabinet submission was designed to inform Cabinet of the extent of consultation so as to give it confidence that any decision it made was not premature.

25 Having regard to my conclusion it is strictly unnecessary to consider the other grounds of exemption; but I should say something about them.

26 One of these provisions is section 28(1)(b) of the Act. This turns on the purpose for which a document has been prepared. The respondent submitted that the KPMG report was prepared for the purpose of submission for consideration by Cabinet. In that respect, reliance was placed upon a scoping study prepared in September 2002, which identified as one of the functions of the report to be prepared that, in conjunction with the Phillip Island Nature Park Board, the consultants were to develop for government consideration a new business plan incorporating Seal Rocks Centre. However "government" is an amorphous concept. It certainly includes Cabinet. But most government decisions are not in fact made by Cabinet, but by ministers or by departmental officers or by persons exercising delegated power. Hence the fact the KPMG Report was prepared for "government" consideration does not mandate the conclusion that it was prepared for the purpose of submission for consideration by Cabinet. Indeed, having regard to the fact that the body commissioning the report, although not paying for it, was the task force, not the government; and the fact that the Minister was asking the task force, not KPMG, to provide advice; my inclination, were I required to decide this point, would be to find that the KPMG report is not exempt under section 28(1)(b).

27 Similarly, if I was required to determine the claim for exemption under section 28(1)(ba), I would have been inclined to a similar conclusion for essentially the same reasons.

28 There was another claim for exemption advanced that I will briefly comment on. This was a claim under section 28(1)(c) of the Act. The respondent submitted that the KPMG report (dated March 2003) contained "extracts from" the Cabinet submission dated 7 May 2003. Clearly the Cabinet submission dated 7 May 2003 is a document that was prepared by a minister for the purpose of submission for consideration by Cabinet. However I cannot accept the argument that the KPMG Report contains "extracts from" that Cabinet submission. It is true that the Cabinet submission contains passages which are identical to passages in the KPMG Report. I would characterise the Cabinet submission as containing "extracts from" the KPMG Report. However I cannot accept the argument that the reverse would apply, as the KPMG Report was a predecessor in time of the Cabinet submission. Notwithstanding what might have been said by Deputy President Macnamara in Mildenhall No (2),[3] I would doubt that the expression "extracts from" could operate so as to apply to a document that was a predecessor of the document that was referred to in paragraphs (a), (b) or (ba) of section 28(1).[4]

29 Finally, in relation to the exemption based on section 30, I would repeat what I have already said in that regard.

30 The outcome is that the decision under review is varied. The decision under review will be affirmed, save that I find that the KPMG Report is a document where it is practicable to grant access to a copy of the document with deletions so as to make the copy not an exempt document: namely the deletion of the Powerpoint presentation and the KPMG spreadsheets that form the analysis behind the options considered in the Powerpoint presentation.

[1] [2004] VCAT 2436.

[2] As explained in Hulls v Department of Treasury and Finance (1998) 14 VAR 295 at paragraph [101].

[3] 1995 8 VAR 478

[4] Of course these comments are in the nature of obiter dictum because I am not deciding the matter on section 28(1)(c).