Victorian Civil and Administrative Tribunal|2003-01-30

Stewart v Dept of Tourism, Sport and the Commonwealth Games [2003] VCAT 45 (30 January 2003)

FREEDOM OF INFORMATION ACT 1982 - Commonwealth Games Contracts - information acquired etc - trade secrets - unreasonable disadvantage - breach of confidentiality per se - public interest

Department of Tourism, Sport and the Commonwealth Games

1. Application dismissed. Decision of Respondent of 9 August 2002 is affirmed.

1. This matter concerns an application brought by the applicant, Iain Stewart, seeking review of a decision of the respondent, the Department of Tourism, Sport and the Commonwealth Games. By letter dated 26 June 2002, the applicant sought from the respondent access to information contained in documents, such request being made pursuant to the provisions of the Freedom of Information Act 1982. The information so sought is referred to as being an agreement between the State of Victoria and the Australian Commonwealth Games Association ("the ACGA"), and an agreement between the ACGA and Melbourne 2006 Pty Ltd ("Melbourne 2006"), and any contracts, agreements and memoranda of understanding or like arrangements between those parties in relation to the staging of the Commonwealth Games in 2006.

2. By letter dated 30 July 2002 to the applicant, the respondent stated that the State Government had entered into two contracts in relation to the hosting of the Commonwealth Games. The first of these was the Endorsement Contract with the ACGA to which Melbourne 2006 subsequently became a party. The second contract was the Host City Contract, also executed by the Commonwealth Games Federation ("the CGF"). The letter went on to say that each of the contracts contained confidentiality provisions prohibiting disclosure, and also referred to s.34(4)(a)(ii) of the Act. By letter dated 5 August 2002 to the respondent, the applicant sought an internal review of the decision. By letter dated 9 August 2002 to the applicant, Mr Bill Zisimopoulos, senior legal counsel of the respondent, confirmed the decision to deny access to the documents and further referred to s.34(4) of the Act. The letter also contains a brief outline of the financial disadvantage which the State could allegedly suffer if the documents were made public. It is of this decision that the applicant seeks a review by this Tribunal.

3. By an order of Deputy President Galvin of 6 November 2002, Melbourne 2006 was joined as a party to this proceeding, it being determined that its interests would be affected by it.

4. I say at the outset that I am conscious of the objects of the Act as set out in s.3. I am conscious of the method of interpretation of the Act to be adopted as set out in s.3(2). I am aware of the various authorities which could be summarised as standing for the proposition that it is proper to give the relevant provisions of the Act a construction which would further, rather than hinder, free access to information, and that the Act is to be interpreted generally in favour of access, but not so as to override specific provisions. I am also aware that the respondent bears the onus of proof in attempting to establish that documents, or parts of them, are exempt. The party joined, being a private corporation, albeit one created by the State specifically for the purpose of running the 2006 Commonwealth Games, is not subject to the operation of the Act. It was separately represented and its interests considerably overlap those of the respondent. For the purposes of onus of proof, I consider it to be an adjunct of or in the same position as the respondent. I am also conscious of statements that have been made both inside and outside Parliament by Members, including the Attorney-General of the present Government, concerning the desirability of open and accountable government. I have borne the above matters in mind in coming to a decision in the present case.

5. There are four documents in dispute. These are:-

(i) The contract for the endorsement of the ACGA to the candidature to the CGF for the right to organise the XVIII Commonwealth Games ("the Endorsement Contract").

(ii) The Commonwealth Games Federation, XVIII Commonwealth Games 2006 Melbourne, Australia, Host City Contract ("the Host City Contract").

(iii) An agreement to amend the Endorsement Contract.

6. Documents (iii) and (iv) relate to the Endorsement Contract. For the purposes of the hearing, they were effectively treated as being part of the Endorsement Contract with their fate being linked to its, save for the possible application of s.25 of the Act and any deletions made thereunder. The case was conducted as if there were two principal documents in dispute. It is also a convenient way to deal with the documents in this decision.

7. In relation to the operation of s.25, the applicant indicated that he would wish to have access to a copy of the documents with deletions should the appropriate situation arise. Mr Niall, on behalf of the respondent, and Mr Hurley, on behalf of the party joined, both expressed the view that the situation was one of "all or nothing" and that this was not an appropriate case for deletions. I shall return to this aspect of the matter subsequently.

8. The factual background of this matter could be summarised as follows. As is well known, the State of Victoria was the successful bidder for the staging of the 2006 Commonwealth Games in Melbourne. The Games are owned by the CGF, which is incorporated in Britain, and its position could be said to resemble that of the IOC in relation to the Olympic Games. Years in advance of the staging of the Games, it called for bids from members of the Federation. In Australia, the relevant body which made such a bid was the ACGA. It in turn called for bids from the various States. Victoria was the successful bidder and accordingly gained the right to stage the Games should the bid of the ACGA be successful. The Endorsement Contract embodies the terms in relation to this. Accordingly, the Endorsement Contract is one between the ACGA and the State of Victoria.

9. One of the terms of the Endorsement Contract to which Mr Niall alluded in his opening, and concerning which there is obviously no secrecy, is to the effect that the State was required to set up what Mr Niall described as a bid company. This had various obligations pursuant to the Endorsement Contract. Pursuant to the Notice of Intervention (Document (iv) referred to above), the bid company assigned its rights to Melbourne 2006.

10. Document (ii) - the Host City Contract - was executed one month prior to the execution of the Notice of Intervention. The Host City Contract is one between the CGF, the ACGA and Melbourne 2006. The Respondent is not a party to that contract. The Host City Contract was executed on 10 October 1999.

11. One other feature of the Endorsement Contract and the Host City Contract which received considerable attention was that each contains a confidentiality clause. However, whilst the existence of such clauses was acknowledged and indeed relied upon, the precise wording of them was not disclosed, and they remain as contentious parts of the documents.

12. The precise mechanism by which the bid came to be successful is not of significance. Suffice to say that it was. The bid having been successful, the Host City Contract was executed. Again, it is no secret that it contains a considerable amount of what could be described as the "nuts and bolts" of the proposed staging of the games. It contains various provisions concerning such things as marketing and broadcasting and also concerning such matters as travel arrangements, accommodation, facilities, accreditation and the like.

13. During the hearing of the matter, oral evidence was given by Meredith Sussex who is the Executive Director of the Office of Commonwealth Games Co-ordination within the Department of Tourism, Sport and the Commonwealth Games. Oral evidence was also given by Greg Spierings, who is the Chief Financial Officer of Melbourne 2006. The applicant called oral evidence from Professor Graeme Hodge who adopted his written statement, and whose evidence could be described as relating to matters of general principle and broad application. A considerable number of statements and other documents were also tendered. These included documents tendered by the applicant. Amongst these were extracts from various reports of the Auditor-General relating to the finances of the State of Victoria; the annual report of Melbourne 2006 for the year ending 30 June 2001; and other contracts, including the template contract for the World Masters Athletics Championship and a template, unexecuted Endorsement Contract relating to the 2006 Commonwealth Games and which was tabled in the Western Australian Parliament in 1996. In part, the purpose of the tendering of these documents was to support the allegation that much of the information contained in the disputed documents was already in the public domain - particularly given that the reports of the Auditor-General and the annual report of Melbourne 2006 contain summations of the disputed documents and also various financial details.

14. It should be said that the fact that the applicant did not have legal representation posed both a problem for him and in relation to the conduct of the matter. There being no representation of the applicant by a qualified legal practitioner, it seemed to me inappropriate to make the type of order described in s.56(3) of the Act. Given the wording of that section, I was not prepared to make an order that the contents of the documents claimed to be exempt be disclosed to the applicant. In a situation where an applicant is represented by a qualified legal practitioner, the contents of the allegedly exempt document can be disclosed upon the giving of an undertaking that confidentiality will otherwise be observed. As I stated during the conduct of the hearing, the policy behind this can readily be understood. It also has additional benefits relating to the conduct of the proceedings. For example, the qualified legal representative of an applicant, upon viewing the documents, may come to the conclusion that there is little in them of interest. Alternatively, it may be agreed that large sections of the documents are not in dispute. It also assists greatly in relation to the taking of evidence, the making of submissions, and enquiries from the bench, all of which can be done in a more frank manner.

15. In the present case, however desirable such a course of action might seem, given the wording of the section, it did not appear to me to be appropriate.

16. This also had the effect that the applicant was, in essence, presenting his case "blindfolded". Those at the respondent's end of the bar table knew the contents of the documents. I knew the contents of the documents. The applicant did not. Therefore, considerable care had to be taken in relation to determining what questions (and answers) were permissible. This was well illustrated in the instance of the unexecuted Endorsement Contract tabled in the parliament of Western Australia. The applicant wished to know whether the Endorsement Contract in dispute was in similar or identical terms. Of course, such a question, or questions, relating to the differences between Endorsement Contracts, or differences between the Endorsement Contract and details revealed in the reports of the Auditor-General, go to the very heart of the dispute. They have the capacity, directly or indirectly, to reveal the very information which is in dispute. Accordingly, what was attempted during the conduct of the hearing was the striking of a balance between the necessity that the contents of the document not be disclosed pending final determination, whilst attempting the avoidance of undue and, what would be from the applicant's viewpoint, mysterious references to the contents of the document, and yet conducting the proceedings in a meaningful and intelligible fashion. I also considered it undesirable, even during submissions, that any part of the proceedings should take place whilst the applicant was ordered out of court. Overall, I attempted to follow the approach adopted by His Honour Judge Nixon in O`Sullivan v Victoria Police Department (unreported, 4 December 1984). Of necessity, there were doubtless occasions when what was being referred to could not be easily understood, if understood at all, by the applicant. Hopefully these were few. In one instance, the "coding" of the Endorsement Contract was necessary so that counsel for the party joined could elicit some evidence in relation to it without highlighting any parallels (or the lack thereof) to the Endorsement Contract tabled in Western Australia. No other means of eliciting the evidence without revealing the contents of the document could be envisaged or agreed upon. However, whilst the applicant was necessarily at some disadvantage, it seems to me that the issues and the basis for the alleged exemptions were relatively clear and ventilated as fully as they could be in the circumstances. Further, I should say at this stage that all concerned presented detailed and helpful submissions and did so in a professional and analytical manner. I appreciate the time and effort that Mr Stewart, not a legal practitioner, and those assisting him, had obviously expended in presenting the case in such a manner, and that Mr Stewart took a week off work so to do.

17. I am also conscious of the fact that a matter such as this could well be productive of an appeal and that therefore care has to be taken by me in formulating the wording of this judgement so that details of the information sought are not revealed. In other words, I am aware that, should the result be in favour of the applicant, I should not render the appeal process effectively useless by "letting the cat out of the bag" in my reasons. Similarly, should the result fall the other way, I should not descend into such detail as to give the applicant the information which he seeks whilst finding against him.

18. Bearing in mind all the above, I now turn to my findings in relation to the individual bases for exemption and the requirements thereof.

19. In relation to each document, the respondent, assisted by the party joined, firstly relies upon s.34(1). The first point then to be discussed is whether the disclosure of the documents "would disclose information acquired by an agency or a Minister". There is no argument but that the respondent is an agency or a Minister. The real argument relating to this portion of the section is whether the words "information acquired" are applicable when the documents under consideration are concluded contracts. The applicant argues that such words are not, and therefore any attempt at exemption pursuant so s.34(1) falls at the first hurdle. The respondent argues, in essence, that there is no reason why a concluded contract cannot have within it information acquired within the meaning of the section.

20. There have been a number of decisions in relation to this point. It certainly could not be said that there has been unanimity concerning it. However, I prefer the approach taken by Deputy President Macnamara in Holbrook and Another and Department of Natural Resources and Environment and Another (1997) 13 VAR 1 and by His Honour Judge Fagan in re Hulls and Department of Treasury and Finance (1998) 13 VAR 381. I agree that the fact that a document is a concluded contract does not disqualify it from exemption under s.34(1). I agree that a term of a concluded contract may indeed be information of a business nature and that to rule that a concluded contract cannot fall within s.34(1) "would be to read down the subsection considerably", as stated in Hulls, referred to above. In summary, I prefer the reasoning adopted in cases such as Holbrook and Hulls to that used in cases which have come to a contrary conclusion. I am of the opinion that both principal documents contain such information. The information has been acquired. In relation to the principal documents, I am of the opinion that the fact that each is a concluded contract does not of itself preclude reliance upon s.34(1). I am of the opinion that there has been information acquired within the meaning of the section.

21. I turn now to the argument based upon the next words of s.34(1), namely whether the information is acquired "from a business, commercial, or financial undertaking". In my opinion Melbourne 2006 is such an undertaking. It may be that it is an entity specifically set up for the conduct of one project and that it will be wound up following the completion of that project. It may also be that it has other unusual features in relation to its constitution and operations, and that it is subject to a considerable element of control by government officers. Matters such as these were considered by His Honour Judge Fagan in re Mildenhall and Department of Treasury and Others (1994) 7 VAR 342. That case, which involved access to documents relating to the Melbourne Grand Prix, has a number of similarities to the present case. His Honour had no difficulty in arriving at the conclusion that the companies therein described, and which bear considerable resemblance to Melbourne 2006, were clearly business, commercial or financial undertakings. Even without turning to the documents in dispute, it seems to me that the documents tendered by the applicant support this proposition. The annual report of Melbourne 2006 refers to such things as the grant of licences to commercially exploit the Games on a worldwide basis, broadcast rights, and world-wide sponsorship rights. It seems to me that Melbourne 2006 is clearly a business, commercial or financial undertaking.

22. There is also correspondence in evidence from the CGF. That body did not avail itself of the opportunity to become a party joined in the proceedings. However, correspondence from it is in evidence. The matters contained in that correspondence have not been subject to testing by way of cross-examination, and their weight is reduced accordingly. On the material before me, including the documents in dispute, and upon what is generally known concerning the CGF, its objects and its activities, I would have little doubt but that it is also a business, commercial or financial undertaking. Thus, to summarise the situation so far, I am of the opinion that:

* It has been acquired by an agency or a Minister;

* It has been acquired by an agency or a Minister from a business, commercial or financial undertaking.

23. I turn now to another area of dispute which involves the next words in s.34(1). That dispute is, does the information relate to "trade secrets"?

24. The argument that such information does relate to trade secrets is one principally advanced by Mr Hurley on behalf of the party joined. He argues that if the information so acquired relates to trade secrets, the wording of the section means that there is then no need to move on to s.34(1)(b) and consider disadvantage.

25. The latter limb of this argument seems to me to be correct. If the information does relate to trade secrets, there seems to me to be no need to move on to sub paragraph (b). The issue thus becomes whether the information is information which relates to trade secrets.

26. During submissions, I made it clear that I was struggling in relation to the acceptance of this proposition. Mr Hurley advanced an argument based upon various authorities and upon an extract from a text, "The Law of Trade Secrets" by Robert Dean. I accept that information may be a trade secret even if it is not of a technical character. However, I also accept that such expression does not include every piece of commercially sensitive information - see Byrne v Swan Hill Rural City Council (2000) 16 VAR 366. If every item of commercially sensitive information or if every inclusion of a confidentially clause rendered something a trade secret, there would be no need for large parts of the Act. In the present case, considerable information as to how to run the Commonwealth Games is included in the "CGF Constitution, Games Management Protocols, Regulations and Code of Conduct" - a document which is Exhibit "A" tendered by the applicant. That document, which is in the public domain, includes such fine detail as the sequence in which representatives of various countries shall march, the furling of flags, and the words of the oath to be taken by competitors. If one was considering trade secrets as "know how", the "know how" is basically contained in this public document.

27. Further, in Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111, the Federal Court found that, to be a trade secret, the information must be secret and must be used or useable in trade. In that case, at page 119, there is considerable reference to the employee/employer relationship and it is further stated that "In protection of information, the law is concerned primarily with the relationship between the parties and the circumstances for disclosure", and "The determination of what is a trade secret is primarily a question of fact for the administrative decision-maker".

28. In my opinion, having inspected the documents in dispute and listened to the arguments, the documents do not contain information which relates to trade secrets. I am against the respondent and the party joined in relation to this argument.

29. That being so, I now turn to an argument which consumed considerable time. This is the dispute as to whether the information acquired relates to "other matters of a business, commercial or financial nature" and whether the disclosure of the information "would be likely to expose the undertaking unreasonably to disadvantage". I am satisfied that the information relates to "other matters of a business, commercial or financial nature". The Endorsement Contract deals with matters of revenue, expenditure, cost, marketing and the like. I have already described the contents of the Host City Contract. To my mind, the real dispute is as to whether such disclosure would be likely to expose the undertaking unreasonably to disadvantage. The undertaking here referred to is Melbourne 2006 and, arguably, the CGF.

30. In relation to disadvantage, one of the principal arguments of the respondent and the joined party, and advanced by Ms Sussex and Mr Spiering in evidence, relates to the timing of disclosure of information. The argument which is advanced is that, in early 2003, the "commercial exploitation" will begin. Apart from the sale of various items related to the Commonwealth Games, this will also involve the sale of various television and broadcasting rights. It is argued that, if it is demonstrated that a breach of confidentiality clauses in important contracts occurs, that very occurrence, relating as it does to matters of a business, commercial or financial nature, will expose Melbourne 2006 unreasonably to disadvantage. There is an additional argument in relation to particular items contained in both the Endorsement Contract and the Host City Contract, but the general proposition has been put that, at this particular time, the demonstrated inability of the undertaking to keep confidential the information in the documents will expose it unreasonably to disadvantage.

31. Further, evidence was given that the CGF is, at this time, involved in the bidding process for the 2010 Commonwealth Games. It is argued that, if details of the contracts for the 2006 Games are disclosed, the bidding process for the 2010 Games is jeopardised and the CGF becomes an undertaking that is likely to be exposed unreasonably to disadvantage. The correspondence from the CGF and the oral evidence is relied upon in relation to these submissions.

32. Obviously a confidentiality clause cannot simply be inserted in every contract involving an agency so as to defeat the purposes of the Act. The circumstances of each case and document must be considered. However, the timing of events does seem to me to be a legitimate argument. In the context of such timing, it seems to me to be at least arguable that the disclosure of relevant information in breach of a confidentiality clause and impacting upon the anticipation of confidential dealings may of itself be sufficient to satisfy the requirement that it "would be likely to expose the undertaking unreasonably to disadvantage".

33. Of course, the arguments advanced by the respondent and the party joined went beyond that of disadvantage resulting from the impact of breach of confidentiality per se. Particularly in relation to the Host City Contract, the detailed financial and operational information relating to commercial rights and the like was emphasised as material which supported the argument that the documents should remain exempt. I should say that particular provisions of the Endorsement Contact and documents (iii) and (iv) were also advanced as reasons for non-disclosure.

34. The applicant argues that the evidence of disadvantage is inadequate and that, for example, no evidence has been forthcoming from potential licensees or other stakeholders which evidence might establish that the disclosure of the contents of the documents in dispute will inhibit or deter them in their dealings with the respondent or the party joined.

35. Whilst it is true that no such evidence was called from individual licensees, the evidence of Ms Sussex and Mr Spierings in this regard seems to me to make sense. In her evidence, Ms Sussex adopted her written statement of 24 October 2002. That statement includes the assertion that "The risk of disclosure of detailed financial and operational information contained in the Endorsement Contract and the Host City Contract could discourage rightsholders and event promoters from engaging in business in Victoria." Mr Spierings, who also adopted his statement in evidence, is even more specific. He has stated that "...it is my understanding that many sponsors and rightsholders are unwilling to have the details of their commercial arrangements made public. The ability to maintain those agreements confidential therefore increases the number of companies who would be prepared to negotiate such commercial agreements with Melbourne 2006 which therefore increases the potential revenues from Melbourne 2006".

36. In the particular circumstances of this case, this proposition seems to me to make sense, particularly when negotiations for the sale of various rights are about to commence as opposed to the various arrangements having already been put in place.

37. I accept the evidence of both Ms Sussex and Mr Spierings. They were convincing witnesses. I am satisfied that, particularly given the timing of events, the perceived breach of confidentiality per se would be likely to expose the undertaking unreasonably to disadvantage. In other words, I accept that the disclosure would be likely to expose the undertaking to disadvantage. I further accept that such exposure to disadvantage would, in the circumstances, be unreasonable.

38. In my opinion the likelihood of such unreasonable disadvantage is not confined to the effects of the perceived breaches of confidentiality clauses per se. The evidence establishes that, in each instance, disclosure of particular material contained in each contract is also likely to produce such a result. I again accept the evidence of Ms Sussex and Mr Spierings in this regard. This is particularly so of the Host City Contract, although I am of the opinion that the evidence establishes that it is also true of the Endorsement Contract.

39. In my opinion, in respect of each of the principal documents and the subsidiary documents related to them, the respondent and the party joined have discharged the burden of proof which they bear in relation to the exemption claimed pursuant to s.34(1). In arriving at that conclusion, I have also borne in mind the provisions of s.34(2). In my view, at this particular time information sought could not be disclosed without causing substantial harm to the comparative position of the undertakings, and I am not of the view that s.34(2)(d) has application.

40. I turn now to the exemption claimed pursuant to s.34(4). In this section, the focus is upon the agency (the respondent) rather than the undertaking (Melbourne 2006 and the CGF). Turning to the specific wording of s34(4), for the reasons already expressed I am not of the view that the documents contain a trade secret of the agency. Therefore, any exemption claimed under s.34(4)(a)(i) fails.

41. Turning to s.34(4)(a)(ii), I am of the view that the agency is one which is engaged in trade or commerce. There have been a number of decisions in relation to the meaning of this phrase. They are sufficiently numerous to make it unnecessary to list them here. Suffice to say that agencies such as the Department of Agriculture, the Metropolitan Ambulance Service, the Department of Industry, Technology & Resources, the Department of Treasury, the Public Transport Corporation and the City of Melbourne have been found to be agencies engaged in trade or commerce at the relevant time. Many of these cases are referred to and set out in volume 2 of "Victorian Administrative Law" by Kyrou and Pizer in paragraph 2538/1. Obviously whether or not an agency is one engaged in trade or commerce will depend upon the facts and circumstances of the particular case. I agree with the approach adopted by His Honour Judge Fricke in re Wells and Victorian Health Promotion Foundation (unreported, 3 April 1990) that the fact that an agency's predominant activities may be described as "governmental" does not preclude its reliance upon the exemption as long as it did engage in trade or commerce. I accept that, in the present case, the agency is involved in the commercial exploitation of the rights associated with the Commonwealth Games. I accept it plays a role in the staging of major events in this State. A necessary corollary of the staging of events such as the Commonwealth Games is the question of funding. I accept that, in arranging such funding, the agency is engaging in trade or commerce. Accordingly, I find that the respondent is an agency of the type described in s.34(4)(ii).

42. The next issue is whether the documents contain information of a business, commercial or financial nature. As is probably apparent from my earlier broad description of the contents of the documents, in my opinion they do. Matters relating to broadcasting and sponsorship rights and licences, marketing and fundraising seem to me to be clearly of a business, commercial or financial nature.

43. If those conditions precedent are satisfied, which they have been, the basic question is whether the information, if disclosed, would be likely to expose the agency unreasonably to disadvantage. In my opinion, it would. Similar reasoning seems to me to be applicable to arguments concerning an exemption under this provision as under s.34(1). It seems to me that the release of this information at this particular time will expose the agency unreasonably to disadvantage, bearing in mind its marketing endeavours and its dealings with sponsors, suppliers and licensees. Not only am I of the view that, at this particular time, the safeguarding of confidentiality is important in order to ensure that the agency is not exposed unreasonably to the disadvantage which it is otherwise likely to be exposed to, but it seems to me that there are particular provisions in the principal documents which would be likely to expose the agency unreasonably to such disadvantage. I accept the evidence of Ms Sussex and Mr Spierings and the submissions of Mr Niall and Mr Hurley in this regard.

44. In summary, I am of the opinion that the burden of proof in relation to s.34(4) has also been discharged by the respondent and the joined party.

45. Whilst the possible application of s.35 was also raised in argument, it seems to me to be unnecessary to turn to it in any detail. In my opinion the information contained in the documents is, insofar as it is relevant to this application, information acquired by an agency from a business, commercial or financial undertaking, and it does relate to matters of a business, commercial or financial nature.

46. I turn now to s.50(4) of the Act - the "public interest override". In my opinion, the operation of this provision is not applicable. The respondent and joined party have satisfied me that the public interest does not require that access to the documents be granted. I certainly accept that, as submitted by the applicant, there is general public interest in such matters as knowing how public funds are spent, and that there be transparent, open and accessible government, proper and public accountability and the like. Doubtless there are also members of the public interested in evaluating the costs and benefits of the staging of the games and debating the effects of such staging. However, whilst some interest on the part of some members of the public may exist, I am not of the opinion that the public interest requires or necessitates access to the documents in question. Indeed, I am more of the view that, as submitted by the respondent and the joined party, it is in the public interest that such access not be granted. I might say that, in considering the public interest, I am also of the view that there are no such considerations of sufficient weight to bring into operation the provisions of s.34(2)(d) in relation to the exemption claimed pursuant to s.34(1).

47. As mentioned earlier, there was also some argument concerning s.25 of the Act and whether or not deletions could, in essence, render a document otherwise exempt not so exempt. The applicant, after I had raised the topic, indicated that he would wish to have access to a copy of the document with deletions. The respondent and the joined party, as previously mentioned, both were of the view that it was an "all or nothing" situation. In my view, they are correct. I have come to that conclusion for a number of reasons. Firstly, substantial parts of the documents have already been released in summary form in the reports of the Auditor-General and the annual reports of Melbourne 2006. I might say that the release of this information in that form, and the fact that the activities of the respondent and the party joined are subject to the scrutiny of the Auditor-General and the requirements of the Corporations Law, is also of some relevance to public interest generally. In any event, there has already been to some extent, what could be described as a deletion process carried out, and summations of the documents made available to the public. Secondly, the "all or nothing" argument seems to me to be supported by the evidence concerning the adverse impact of a breach of the confidentiality provisions at this time, whether such breach be voluntary or by way of an order. I have determined that the documents are exempt documents. Part, although by no means all, of the reasoning behind that ruling related to the disadvantage that may be suffered by the agency and the joined party as a result of any perceived lack of confidentiality. Such argument is also relevant in relation to deletions. Thirdly, and again bearing in mind those parts of the documents which have already effectively been disclosed, it does not seem to me that the contents of the documents are readily separable so as to render them non-exempt. I appreciate that it was I who raised with the applicant the question of deletions. I wished to ascertain his approach in relation to them. However, having considered the matter, I am of the view that this is not an appropriate case where it is practicable to grant access with such deletions as to make the document no longer exempt. In my opinion, and bearing in mind the nature of this application and the material to which the applicant already has access, to attempt to do so would effectively reduce the document to something which was either meaningless, misleading or unintelligible. Alternatively, if the material which I consider renders the document exempt was removed, and the material which is already in the public domain was excluded, there would, in my opinion, be next to nothing left. Accordingly, I am not prepared to apply the provisions of s.25 so as to give the applicant access to the document with deletions.

48. As stated earlier, documents (iii) and (iv) were effectively treated as adjuncts to the principal documents. In my opinion, the application fails in relation to all documents. The respondent and joined party have discharged the burden of proof. I might say that the timing of the application had some bearing upon my thinking. Without in any way prejudging the matter, it might be that an application such as this would have greater prospects of success if the financial arrangements referred to, and, for that matter, the selection of a successful candidate for the staging of the 2010 Commonwealth Games, were concluded matters. The fact that such matters are not concluded seems to me to have bearing upon the disadvantage likely to be suffered unreasonably by the undertakings and on the part of the agency. In applications such as this, there are many factors to be considered. Doubtless in some applications the degree of alleged disadvantage remains a constant. In others, the degree of disadvantage may increase, decrease or disappear altogether with the effluxion of time.

49. In any event, on the basis of the evidence and the material before me, the burden of proof has been discharged by the respondent and by the joined party which effectively acted in concert with it, and the application is dismissed accordingly. The decision of the respondent of 9 August 2002 is affirmed.

Information Act 1982

Stewart v Dept of Tourism, Sport and the Commonwealth Games [2003] VCAT 45

At a glance

Court

Decision date

Source

Judgment (59 paragraphs)

Stewart v Dept of Tourism, Sport and the Commonwealth Games [2003] VCAT 45 (30 January 2003)

Parties

Legislation Cited (1)

Cases Cited (1)