Tilley v VicRoads

Victorian Civil and Administrative Tribunal|2010-04-23

the applicant wishes to have access to such a copy;

the agency shall grant access to such a copy of the document.

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.

VicRoads contends that Section 92(2) of the Road Safety Act (RSA) is a secrecy provision for the purposed of section 38 of the FOI Act. I set it out when I first consider section 38.

Under the Charter, in considering this application I must give proper consideration to any relevant human right. Mr Tilley did not raise the Charter. In my opinion, in this proceeding, the Charter does not apply as no right appears engaged.

I consider each document in turn (except Document 1, which I consider after Documents 2 and 3) with reference to the exemptions VicRoads claims for it. I set out the parties' contentions and my view as to applying the exemption where it first becomes relevant. I then refer to that view where I need to once again deal with the application of the exemption.
I then deal with the public interest override.

Document 2 - Part A of Company A's completed PBS application form

Document 2 is Part A of a standard application form for PBS registration for a heavy vehicle design completed by Company A. Pages 1 to 4 of the form name the applicant and others involved in the application, such as the assessor (see below) and vehicle manufacturer details. Pages 4 to 7 show information about the heavy vehicle the applicant wishes to register. Page 8 shows checklists for both the applicant and for "office use only". The applicant signs the application at page 9. Page 10 is intended as a contents page for any appendices.
VicRoads exempted this document under the trade secret exemption (section 34) and the secrecy provision exemption (section 38).

The Trade Secret Exemption - Section 34

Section 34 concerns trade secrets.
1. Documents relating to trade secrets etc.

(1) A document is an exempt document if its disclosure under this Act would disclose information acquired by an agency or a Minister from a business, commercial or financial undertaking and the information relates to -

(b) other matters of a business, commercial or financial nature and the disclosure of the information would be likely to expose the undertaking unreasonably to disadvantage.

(2) In deciding whether disclosure of information would expose an undertaking unreasonably to disadvantage, for the purposes of paragraph (b) of subsection (1), an agency or Minister may take account of any of the following considerations -

(a) whether the information is generally available to competitors of the undertaking;

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

In his written contentions dated 30 September 2009, Mr Tilley contended:

Document 2 was provided to VicRoads by the IRP and so VicRoads had not acquired the information from Company A; 2. The whole document should not be exempted. Those parts that did not relate to trade secrets or, "other matters of a business, commercial or financial nature and the disclosure of the information would not be likely to expose the undertaking unreasonably to disadvantage" and should be released; and

Given the public interest in releasing it, its release would not be likely to expose the undertaking unreasonably to disadvantage.
Mr Hurley started closing submissions on behalf of Mr Tilley by introducing a new theme that many documents related to the PBS were exempt under the trade secrets exemption, up until the time VicRoads issued a vehicle with a PBS permit so that it could operate on the public roads. He submitted that at this time many of the trade secrets became known as the trucks could be seen, measured and information about various aspects (such as length) could be discovered. He submitted that after the vehicle was on the road, documents were no longer exempt due to the trade secrets exemption.
In closing submissions, his position concerning Document 2 (where a permit was never issued; the vehicle has not been built) was refined to:

to the extent Documents 2 contains trade secrets as defined by legal precedent (see below), it is exempt from release. He conceded information in sections A2 "Number of vehicles applied for", A3 where it names an individual contact person (personal affairs exemption), A4 if the personal affairs exemption applies to the individual named", A7, A9 to A13, A14 (if it contained trade secrets) and the Appendix are exempt; 2. A5 Vehicle Owner Details was not relevant. It was not filled in as at the time of the application no vehicle was owned; and

the balance of the document should be released as it does not contain trade secrets. He sought Document 2 as far as it identified the identity of the applicant, a basic description of the proposal and the identity of the assessor.

VicRoads contends the exemption applies to all but A3, which names VicRoads as lead agency, identifies the VicRoads contact person and gives contact details. It says:

Releasing Document 2 would disclose information acquired by an agency (VicRoads) from a business, commercial or financial undertaking (Company A). The evidence indicated that Mr Tilley was mistaken in originally contending the information had come from the IRP; 2. The information relates to either: 1. trade secrets; or 2. other matters of a business, commercial or financial nature and the disclosure of the information would be likely to expose Company A unreasonably to disadvantage;

If Company A built the vehicle and VicRoads grants a permit, when the vehicle appears on the road, the observer may be unaware that is 'permitted' under PBS. The fact that it is, 'PBS permitted', is a secret. If a competitor could learn that a particular vehicle is PBS permitted, it may focus on discovering its advantages. Therefore, there is a potential commercial sensitivity in releasing any of Document 2;

VicRoads submitted the trade secret is a whole (Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VicRp 7; [1967] VR 37) and cannot be split up; and 2. The whole PBS is set up on the basis the commercial confidence will be maintained.

I understand Document 2, and the information in it was obtained by VicRoads from Company A. VicRoads as the lead agency then put the application to the IRP.
The disclosure of Document 2 would disclose information acquired by an agency (VicRoads) from a business, commercial or financial undertaking (Company A). The information is of a precise nature identifying those involved in the application and about the proposed heavy vehicle.
The central contended issues are whether disclosing Document 2 would disclose information relating to -

(b) other matters of a business, commercial or financial nature and the disclosure of the information would be likely to expose Company A unreasonably to disadvantage.

Dr Hans Prem, Director, Mechanical Systems Design Pty Ltd (MSD) gave evidence about the information in Documents 2 and 3. The documents contained information provided by MSD to VicRoads about a vehicle design. The design is innovative, has significant commercial value, cost significant time and money, is secret and would be valuable to MSD's competitors. The innovation should increase vehicle stability and thus improve safety and allow for an increased payload. The vehicle has not yet been built.
In my view, Document 2 contains much information relating to trade secrets. Mr Tilley concedes the point, if the vehicle is not permitted. I accept Dr Prem's evidence. That evidence satisfies the factors for a trade secret as set out in the case law, such as Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VicRp 7; [1967] VR 37 at 49 (as cited by VicRoads) and Re Organon (Aust) Pty Ltd v Department of Community Services and Health (1987) 13 ALD 558 (as cited by Pizer at [FOI.34.100]).
Document 2 also contains information relating to other matters of a business, commercial or financial nature and the disclosure of the information would be likely to expose Company A unreasonably to disadvantage. I understood Mr Tilley concedes the point, if the vehicle is not permitted.
As the vehicle has not been built and is not on the road, I leave the issue of whether the nature of the information changes at that point to Document 4, where the vehicle was permitted.

Section 38 concerns secrecy provisions under other legislation. VicRoads claims exemption for documents 2, 3, 4, 5 and 6. Section 38 says,

38 Documents to which secrecy provisions of enactments apply

A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications.

VicRoads submits Section 92(2) of the Road Safety Act is such an enactment. The section says in part,

(2) Subject to this section, the Corporation or a relevant person must not -

(a) disclose information gained by the Corporation or in the course of the delegation, employment or engagement of the relevant person that is information of a personal nature or that has commercial sensitivity for the person about whom it is kept; or

(b) use the person's knowledge of any such information.

Section 92(3) sets out a list of exemptions from section 92(2). The exemptions generally relate to disclosing information for regulatory, safety and law enforcement purposes. The final exemption is 92(3)(m) which authorises, "the disclosure or use of which is required or authorised by law for another purpose".
Section 92(4) operates, with some exceptions, to require a person receiving information to enter into confidentiality agreement concerning information received unless an agreement already exists (92(5). It says,

(4) Subject to subsection (5) [which is not relevant in this proceeding], if -

(a) a person (other than a relevant person or a person referred to in subsection (3)(j), (k) or (l)) or an authority requests information from the Corporation; and

(b) the information may be disclosed or used under this section -

the Corporation must first enter into a confidentiality agreement with the person or authority -

(d) specifying the means by which the information will be provided by the Corporation; and

(e) specifying the means by which the confidentiality of the information will be protected; and

(f) including an undertaking by the person or authority that the information will only be used for the purposes specified in the agreement.

Section 92(6) prohibits "disclosure or use the information other than for a purpose specified in the agreement".

In written contentions dated 30 September 2009, Mr Tilley contended:
1. Section 92 is not sufficiently specific for the purposes of section 38; and/or
2. Section 92(3)(m) authorises disclosure under the FOI Act.
In closing submissions, his position was refined to:

Section 92 is not a secrecy provision as defined by section 38. It applies to almost all information obtained by VicRoads. Therefore, in the terms of section 38, section 92 is not, "an enactment applying specifically to information of a kind contained in the document". He cited Al Hakim v Ombudsman [2001] VCAT 1972; (2001) 18 VAR 102 in support; 2. Section 92(3)(m) authorises disclosure under the FOI Act. Disclosure is required by law for another purpose, under the FOI Act. Section 92(4) is subject to section 92(3)(m) because it is not engaged where disclosure is required by law for another purpose. Therefore, the confidentiality requirement in section 92(4) is not relevant;

The Road Safety (Disclosure of Information Act) (1997), which introduced the current section 92 was intended to allow disclosure for law enforcement and other specific purposes and create a confidentiality regime, not exempt VicRoads from the FOI Act "by side-wind"; and

Interpreting section 92 as a secrecy provision for the purposes of section 38 allows VicRoads to "leave the FOI Act". I should prefer an interpretation which avoids this result.

VicRoads contended;
1. Document 2 is exempt under section 38 because:
  1. there is in force an enactment, section 92 of the RSA;
  2. the enactment applies specifically to information of a kind contained in Document 2.

The current section 92 is narrower than the previous equivalent section.

the enactment prohibits persons referred to it from disclosing information of that kind (subject to exceptions and qualifications).

Section 92(3)(m) does not authorise disclosure of the information under FOI.

The word "purpose" in 92(3)(m) should be interpreted as a purpose of similar nature to the purposes of other permitted disclosure in 92(3) (a) to (l). Release under the FOI Act does not require the recipient to state a like purpose.

Parliament intended that information gained by VicRoads that that has commercial sensitivity for the person about whom it is kept only be disclosed for certain purposes. With three exceptions (not relevant here), under section 92(4), disclosure may only be made where the recipient has entered into a confidentiality agreement. If Parliament had intended section 92 to be subject to the Act, it would have included a clear exemption.

Section 92(4) is not subject to section 92(3)(m). Section 92(4) requires a person to who information is released under section 92(3)(m) must first enter into a confidentiality agreement (unless one already exists) with VicRoads (see 92(4)(a) which exempts only release under section 92(3)j, k or l from that requirement). Parliament intended that information be released subject to a confidentiality agreement. VicRoads has no capacity under the Act to release information subject to such an agreement. The 'FOI regime' is foreign to the scheme under section 92.

Section 92 was amended by the Road Safety (Disclosure of Information Act) (1997). The second reading speech indicates the previous provisions were seen as overly restrictive, with no control over information that was disclosed. The amendment was intended to allow disclosure for law enforcement and other specific purposes and create a confidentiality regime. Otherwise individual privacy and commercial sensitivity were to be protected.

In Telstra Corporation Ltd v VicRoads [2001] VCAT 1699, VCAT decided section 92 attracted the operation of section 38; and

Allowing the exemption would not free VicRoads from FOI. It receives a great range of information, only some of which would be effected. In any case, the effect of section 92 and the FOI Act to a great extent overlap. This is seen by the overlap in the claimed exemptions in this proceeding.

In my view, Document 2 is exempt under section 38, to the extent that it contains information gained by VicRoads that has commercial sensitivity for the person about whom it is kept.
I agree with Deputy President Davis' analysis in Telstra Corporation Ltd v VicRoads [2001] VCAT 1699. She viewed section 92 as attracting the operation of section 38. However, issues raised in this proceeding were not before her.
In my view:
1. There is in force an enactment, section 92 of the RSA.
2. The enactment applies specifically to information of a kind contained in Document 2.

I reject the contention that section 92 is not sufficiently specific. Section 92 is unlike the provisions which have not attracted the operation of section 38. For example in Al Hakim v Ombudsman [2001] VCAT 1972; (2001) 18 VAR 102, Deputy President Davis discussed section 20 of The Ombudsman Act. It provided that any person (other than a complainant) who obtains information in the course of, or as the result of, the exercise of the Ombudsman's functions shall not disclose the information except in limited circumstances. Deputy President Davis said (at para 37),

I agree with and adopt the analysis of Senior Member Preuss in Woodford outlined above. I consider that the effect of s.20 of the Ombudsman Act is to prohibit all persons (other than the complainant) from disclosing information that it obtained or received pursuant to the Act. The section makes blanket reference to "information" in such a manner as to suggest that it applies to any and all information obtained or received in connection with the functions exercised under the Ombudsman Act. To my mind, the language of s.20 contains no reference to the "kind" of information obtained and is materially different in this regard to the phrases which have been held to attract the exemption under s.38 of the Act.

Section 92 makes no such blanket reference. It only applies where information of a personal nature or that has commercial sensitivity for the person about whom it is kept.

The enactment prohibits persons referred to it from disclosing information of that kind (subject to exceptions or qualifications).

I reject the contention that 92(3)(m) allows the FOI Act to operate, such that section 38 is not relevant. I am persuaded by the logic of VicRoads' contentions.
I reject the contention that the confidentiality requirement in section 92(4) is not here relevant to the operation of disclosure under section 92(3)(m) because disclosure is here required by law for another purpose, being disclosure under the FOI Act.
On a plain reading of section 92(4):

a person (Mr Tilley, who is not a relevant person referred to in subsection (3)(j), (k) or (l)); 2. requests information from VicRoads; and

if the information may be disclosed or used under the section;

VicRoads must first enter into a confidentiality agreement with Mr Tilley.
As to which information is exempt, I once again accept Dr Prem's evidence on the issue, that much of the Document contains information of a personal nature or that has commercial sensitivity for the person about whom it is kept (Company A).

If I do not grant access to all of Document 2, Mr Tilley wishes to have access to it with deletions I see as required. I decline to do so.
Section 25 says,

(a) a decision is made not to grant a request for access to a document on the ground that it is an exempt document or that to grant the request would disclose information that would reasonably be regarded as irrelevant to the request;

(b) it is practicable for the agency or Minister to grant access to a copy of the document with such deletions as to make the copy not an exempt document or a document that would not disclose such information (as the case requires); and

(c) it appears from the request, or the applicant subsequently indicates, that the applicant would wish to have access to such a copy -

the agency or Minister shall grant access to such a copy of the document.

The issue is whether it is practicable to grant access to a copy of Document 2 with such deletions as to make it not an exempt document.
I reach this view after considering previous decisions and commentary about section 25. Pizer (para FOI.25.40) leads off his discussion of "practicable", saying',

The primary meaning of "practicable" given by the Shorter Oxford English Dictionary is "capable of being carried out in action; feasible. The primary meaning of "feasible" given is capable of being done, carried out, or dealt with successfully in any way; possible; practicable.

I regard Document 2 as exempt because a great amount of its content contains information relating to trade secrets, information relating to other matters of a business, commercial or financial nature and the disclosure of the information would be likely to expose Company A unreasonably to disadvantage and information which VicRoads is prohibited by statute from disclosing.
Deciding which portions of Document 2 would be deleted and what is to remain (producing a 'redacted document') would be fraught with risk that the redacted document would unintentionally disclose some of the very information that justifies the exemption. On the other hand, taking an overly cautious approach and making wholesale deletions would produce a meaningless document. It may simply tell the reader that someone filled out a PBS application form and VicRoads was the lead agency.
In the context of the PBS scheme, which I accept was premised on maintaining the confidentiality of applicants, it is not practicable to produce a meaningful redacted Document 2 while being confident that secrets are not being disclosed. If a mistake or error of judgement occurs and the document is released, it is probably not practicable to get the information back.
I note the blank application form is available to Mr Tilley.

Document 3 - Part B of Company A's completed PBS application form

Document 3 is Part B of a standard application form for PBS registration for a heavy vehicle design completed by Company A. Pages 1 and 2 name the applicant and others involved in the application, such as the assessor (see below) and vehicle manufacturer details. Pages 3 and 5 are for information about the heavy vehicle the applicant wishes to register. In this document, the reader is referred to an attached report. Page 6 shows checklists for both the applicant and for "office use only". The applicant signs the application at page 7. Pages 8 to 13 is "Table 1: Assessment Against Performance Based Standards. The applicant has completed the "Performance Results" column. Page 14 is intended as a contents page for any appendices.
VicRoads exempted this document on the trade secret exemption (section 34) and the secrecy provision exemption (section 38), citing section 92(2) of the Road Safety Act 1986 (the RSA).

The Trade Secret Exemption - Section 34

In closing submissions, Mr Tilley's position was refined to:

To the extent Documents 3 contains trade secrets as defined by legal precedent (see below), it is exempt from release. He conceded information in sections B1 "Identity of each performance standard assessed by the above assessor", B2 "Identify each of the PBS standards assessed by the sub assessor" and the balance of the document, apart from the check list (page 6) and the declaration (page 7), are exempt; 2. Turning to the appendix to Document 3, he conceded the "Performance Results" column of Table 1 was exempt, the rest of the table being part of the standard form and the Part B: Appendix was exempt.

The balance of the document should be released as it does not contain trade secrets.
In my view, Document 3 contains information relating trade secrets and contains information relating to other matters of a business, commercial or financial nature and the disclosure of the information would be likely to expose Company A unreasonably to disadvantage. My reasoning as regards Document 2 applies.

The secrecy provision exemption - section 38

In my view, Document 2 is exempt under section 38, to the extent that it contains information gained by VicRoads that that has commercial sensitivity for the person about whom it is kept. My reasoning as regards Document 2 applies.

As with document 2, I do not regard it as practicable to release a redacted document.

Document 1 - Internal VicRoads document relating to the application set out in Documents 2 and 3

Document 1 is a graph followed by a hand written file note about pavement wear. The note records deliberation between VicRoads Officers about a policy. Document 1 relates to company A's application. The policy was not adopted.
VicRoads exempted this document on the basis it is an internal working document (section 30(1) and it contains material obtained in confidence (section 35(1)(a)).

Internal Working Documents Exemption - Section 30

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.

In his written contentions dated 30 September 2009, Mr Tilley contended:

Section 30(1) does not exempt the graph as it is "purely factual material", see 30(3); 2. The document is "not of high public policy development ... in the development of high level public policy that would be adversely effected by its release"; and /or

Its release would not be contrary to the public interest, see section 30(1)(b).
In closing submissions, his position was refined to releasing the graph is releasing purely factual information (not exempt under section 30(3)) and its release would not be contrary to the public interest. He contended it is not contrary to the public interest to see a document which was part of a policy debate, where the policy proposed by the document was not accepted.

VicRoads submitted Document 1 meets the criteria set out in section 30(1)(a). It did not contain purely factual material. Its release would be contrary to the public interest.
VicRoads submitted the graph is not purely factual. The line on the graph represents a mean average relating to pavement wear by the Australian fleet. It relates to the policy proposed in the Document.
Mr Hogben gave evidence that the policy under discussion in the document was rejected. It placed undue emphasis on the protection of infrastructure at the expense of productivity. In his opinion, releasing Document 1 would be contrary to the public interest as a reader may think it represented policy under the PBS and that it was a formal view of VicRoads (page 12 of his witness statement).
VicRoads submitted disclosing Document 1 would be contrary to the public interest (section 30(1)(b)) for reasons including:
1. Disclosing Document 1 would show at least one officer held a view which was not adopted which would undermine the integrity of the VicRoads' processes; and
2. Disclosing tentative views, which were not adopted could mislead and cause unnecessary debate and could undermine considered professional judgement of the kind found in rough working notes.

I view Document 1 as exempt under section 30.
Disclosing it would disclose matter in the nature of opinion, advice and recommendation prepared by an officer and in the nature of consultation and deliberation that has taken place between officers in the course of and for the purpose of, the deliberative processes involved in the functions of an agency (VicRoads).
I think it contrary to the public interest to release Document 1. As Pizer discusses at FOI.30.220 and 30.240, VCAT has on a number of occasions ruled a document exempt because:

it set out "tentative views of Departmental Officers where those views were subsequently overtaken by events"; 2. it contained, "incomplete views and information concluded in an inconclusive file note, in circumstances where the respondent's investigations were still open and where there was no evidence about the respondent's concluded views; and

"handwritten documents on a document were "very cryptic" and to release them without further explanation would be "misleading" and "capable of confusion"
I also agree with VicRoads' submission (with reference to Brog v Department of Premier and Cabinet (1989) 3 VAR 102 at 116) that disclosure could undermine considered professional judgement of the kind found in rough working notes because of the fear that they may find their way into the public arena and be dissected.
In my view, Document 1 falls within those descriptions. Further, it was part of the deliberative process. The Tribunal has on many occasions exempted such documents (see Pizer, FOI.30.120).
In my opinion section 33(3) does not require that the graph be disclosed. It says, "This section does not apply to a document by reason only of purely factual material contained in the document". I am not exempting Document 1 under section 33 by reason only of the graph (assuming the graph is purely factual material). Further, I find the graph is not purely factual material. The first handwritten point refers to the graph as "the above approach is supported'. While the graph contains within it some factual material ( eg. a line representing mean average pavement wear), it appears as a whole the graph is part of a policy recommendation.
I note Deputy President Macnamara's statement in Pullen v Alpine Resorts Commission (unreported, AAT of Vic, 23 August 1996),

Where ... the graphic ... material includes numbers and values which are described as "potential" or "recommended", the document may represent an expression of opinion or advice.

Material Obtained in Confidence Exemption - section 35(1)(a)

The obtained in confidence exemption - section 35

While VicRoads contended Document 1 was exempt under section 35(1)(a) (not section 35(1)(b)), neither party focused on the issue either in written or oral submissions. Given I have exempted Document 1 under section 30, I will not deal with this alternate claim. I discuss section 35 when considering Document 7.

I do not see it as practicable to under section 25 of the Act produce a redacted Document 1. To make any sense, the file note must be read as a whole.

Document 4 - A letter from VicRoads to Company B about its application under the PBS

Document 4 is a two page letter with an attached one page specification of the vehicle. It is from VicRoads to Company B advising that the vehicle the subject a PBS application may operate on Victorian roads, with operating conditions. A permit will be granted once a satisfactory report is provided addressing aspects of the vehicle.
VicRoads exempted this document on the trade secret basis (section 34) and that it is subject to the secrecy provision (section 38).

In his written contentions dated 30 September 2009, Mr Tilley contended:
1. the letter cannot be wholly exempt as it contains information created by VicRoads which was not provided by Company B to VicRoads; and
2. repeated the contentions concerning Document 2.
In closing submissions, Mr Tilley's position was refined to:
1. Document 4 contains trade secrets and is exempt from release when VicRoads grants a permit.

With respect to section 34, if an FOI request is made before a permit issues, it is exempt.

However, if the application is made after the vehicle is permitted, the exemption does not apply. Therefore, Document 4 is no longer exempt because the vehicle has a permit. Many documents related to the PBS were exempt under the trade secrets exemption, up until the time a vehicle with a PBS permit drove on the public roads. He submitted that at this time many of the trade secrets became known as the trucks could be seen, measured and information about various aspects (such as maximum load) could be discovered.

He also submitted that once the permit issues, in terms of section 34(1)(b), disclosure of the information would not be likely to expose the undertaking unreasonably to disadvantage. Any disclosure would be reasonable. In exchange for disclosing the information to VicRoads and VicRoads being able to disclose it to the public, Company B had received a permit.

Given the vehicle has been permitted, Document 4 should be released, except for the name of the person ("W") to who the letter is addressed (personal affairs exemption).

concedes the first two pages of Document 4 should be disclosed, subject to any personal information and information which links to applicant and the application being removed. It seeks to remove personal information under section 92 of the RSA. VicRoads does not object to disclosure of the names of officers in the letter; 2. submits the attachment should be disclosed because the appearance of a vehicle on the road does not, by its appearance, allow the public to discover the trade secrets. The trade secret aspects of a vehicle is a combination of factors. Seeing a factor does not disclose the secrets. Further, when a vehicle appears on the road, the observer is unaware if it is permitted under PBS or traditional registration; and

submits that in no sense does the issuing of a permit create a situation where disclosure would be reasonable as in exchange for disclosing the information to VicRoads, The scheme was designed to maintain confidentiality, not to give it away in exchange for a permit. If this submission has any relevance, it is to the public interest override.

In my view, the attachment to Document 4 contains information relating trade secrets. Mr Tilley concedes the point, if the vehicle is not permitted.
I accept Mr Lovf's evidence that the vehicle design was an innovative improvement to an existing vehicle. The design had significant commercial value and a significant amount of time and money had been spent on developing it. The information had been kept secret and would be valuable to Company B's competitors.
The evidence satisfies the factors for a trade secret as set out in the case law, as discussed above.
The attachment to Document 4 also contains information relating to other matters of a business, commercial or financial nature and the disclosure of the information would be likely to expose Company A unreasonably to disadvantage. I understood Mr Tilley concedes the point, if the vehicle is not permitted. I reject Mr Tilley's submission that disclosure becomes not unreasonable because that is the price paid to gain a permit. I see no basis for this contention in the Act or with reference to the design of the PBS.
I agree with VicRoads that the appearance of a vehicle on the road under PBS does not by that appearance disclose the trade secrets which led to its creation. Mr Tilley focused on the secrecy dissolving at the time the permit issues. It seems to me, the more logical point would be said to be once the vehicle is on the road. The submission revolved around when the secrets may be discovered. That is not necessarily when the permit issues. However, the distinction does not bear on my decisions.
I accept the evidence of Mr Lovf that the appearance of the vehicle has not disclosed the trade secrets. Numerous components and measurements could not be discovered by seeing or photographing the vehicle. The vehicle is either in operation or parked in a secure depot, to physically measure it would require access and a significant amount of time. Drivers have entered into a confidentiality agreement with Company B with their employer with regard to their knowledge of the vehicle.
I accept that a person set on investigating the vehicle, could by observation and investigation discover a number of aspects of the vehicle's design. Mr Lovf conceded this.
However, I do not accept it is more likely than not that the trade secrets relevant to Document 4 nor information relating to other matters of a business, commercial or financial nature the disclosure of which would be likely to expose Company A unreasonably to disadvantage would be discovered.

In my view, the attachment to Document 4 is exempt under section 38, to the extent that it contains information gained by VicRoads that that has commercial sensitivity for the person about whom it is kept. My reasoning as regards Document 2 applies.
Much of the attachment to Document 4 contains information that has commercial sensitivity for the person (Company B) about whom it is kept.

As with Document 2, I do not regard it as practicable to release a redacted attachment to Document 4. Even if some aspects of the vehicle could be observed, how is the decision maker to anticipate which aspects would be observed?

Document 5 - Memorandum from VicRoads to the IRP about Company B's application

Document 5 is a memorandum from VicRoads to the IRP. It is in the form of a "case study" for the IRP to consider. VicRoads created it after Company B applied to VicRoads, VicRoads passed the application to the IRP and the IRP requested further information. Document 5 is the response to that request. It was expected the IRP would consider Document 5 and make a recommendation which VicRoads would consider in deciding whether to approve the application.
It contains specifications for a vehicle, discussion about the application, a recommendation to the IRP and attachments. Attachment 1 is a set of specifications about the vehicle. Attachment 2 is a table. The first six columns set out performance based standards. The sixth column sets out the results for the vehicle. Attachment C (although not labelled as such) is a letter from Company B to VicRoads about the PBS application.
Since Document 5 was created, VicRoads has issued a permit and the vehicle has been on the road.
VicRoads exempted this document on the internal working document exemption (section 30), trade secret exemption (section 34), obtained in confidence exemption (section 35) and the secrecy provision exemption (section 38).

The Internal Working Document Exemption - (section 30)

In his written contentions dated 30 September 2009, Mr Tilley contended:
1. to be exempt as an internal working document, the release of Document 5 must disclose matter in the nature of an opinion, advice or recommendation between officers (no Minister was involved) in the course of or for the purposes of, the deliberative processes involved in the functions of an agency. This is not so. The IRP is not an agency for the purpose of the FOI Act. Its officers are not officers for the purposes of section 30(1)(a); and/or
2. the document is "not of high public policy development ... in the development of high level public policy that would be adversely affected by its release.
In closing submissions, Mr Tilley's position was refined to Document 5 is not exempt under section 30 as it's release would not be contrary to the public interest.

VicRoads contended Document 5 (in particular paragraphs 2,3,4,6,8 and 9:

was prepared by staff members of VicRoads 2. the above function was a deliberative function of VicRoads in that it was in the course of and for the purposes of VicRoads considering Company B's application; and

its disclosure would be contrary to the public interest. On this point, VicRoads general contentions are: 1. The PBS is governed by a set of rules which are public; 2. The IRP was "replete with checks and balances" with the lead agency and the IRP forming views. The lead agency was not obliged to follow an IRP recommendation; 3. PBS is a superior registration system compared with traditional registration in that it is more rigorous; 4. It is the role of VicRoads to register vehicles. It would be impractical and inappropriate for the public to have a role in monitoring individual compliance; 5. There is no persuasive evidence of safety problems with PBS registered vehicles; 6. The IRP no longer exists. It is not in the public interest to release deliberations and dialogue between it and VicRoads; and 7. The risk of commercially sensitive information or information generally about applications by commercial entities falling into the hands of competitors is not outweighed by any public interest factor.
Mr Hogben gave evidence that disclosure of Document 5 would be contrary to the public interest. It would impair the willingness to those involved freely express different opinions. Release could lead to confusion as to the roles of those involved.

I view Document 5 as an internal working document and therefore exempt from disclosure under section 30(1)(a).
Disclosure would disclose:
1. matter in the nature of opinion, advice and recommendation prepared by an officer, in that it appears to have been prepared by one or more officers of VicRoads; and
2. the opinion, advice and recommendation and consultation and deliberation were in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency (VicRoads). The IRP provided advice to VicRoads for its deliberative purpose of deciding whether to register the vehicle; and
The disclosure of Document 5 would be contrary to the public interest. VicRoads has persuaded me that it is in the public interest that the PBS be allowed to operate in the knowledge that the confidentiality in which it was intended to operate can be maintained.
I accept that PBS is intended to produce economic and environmental benefit. It can only do so if applicants are confident their applications will be kept confidential. Otherwise, they may well not make applications. That confidentiality would be undermined if the relevant paragraphs of Document 5 were released.
Given my view, there is no need to consider the "frankness and candour" aspect of Mr Hogben's evidence. I note the AAT and then VCAT has been cautious about it. See Re Coleman v Director General, Local Government Department, Pentland (1987) 1 VAR 9.

In his written contentions dated 30 September 2009, Mr Tilley contended:
1. the letter cannot be wholly exempt as it contains information created by VicRoads which was not provided by Company B to VicRoads; and
2. repeated the contentions concerning Document 2.
In closing submissions, his position was refined to:

If the vehicle is not permitted, most of Document 5 is exempt as it contains trade secrets and is exempt from release. What could be released is enough of Document 5 to show that these was a memorandum about a case study on a particular date which showed it was set out in the purpose, background, discussion, recommendation format. There may also be some non-controversial passages which could be released. However, Mr Hurley acknowledged after deletions there may be little left and that a practical approach must be taken. 2. However, VicRoads has granted a permit for the vehicle to operate. Therefore, much "is known", as Mr Hurley put it. The "Purpose" as set out in paragraph 1, the "Background: as set out in paragraphs 2 and 3 (which includes a diagram showing proposed vehicle measurements) and much of the remaining content should be released. It was submitted I should prefer evidence that the features are observable. Attachments 1 and 2 and a one page attachment to the letter, with three photographs of the vehicle should be released, (if the photographs show the vehicle as observable on the road). Concerning Attachment 2, once the vehicle is on the road every PBS assessment should be released. He noted Mr Lovf had given evidence that Attachment 2 could be released.

Also, substantial parts of the letter from Company B to VicRoads concerned Company B's hope that it would, "enable the IRP to finalise the approval process", were conceded as exempt under section 34(1)(b). Mr Tilley did not seek, "operations information", the disclosure of which would be likely to expose Company B unreasonably to disadvantage. The conceded exempt parts were: 1. all but paragraph 1, sentence 1 under a heading "Worst Case Loading" and all but the words "In the unlikely event" in paragraph 2 under the heading; and 2. paragraph 2 under a heading "Trailer Coupling".

VicRoads submissions were similar to those made concerning Document 4. It added that while Mr Lovf had said Attachment 2 could be released, in re-examination he had said if something had to be released, Attachment 2 would cause the least harm. VicRoads submitted Mr Lovf was a careful and honest witness. He was initially under a misapprehension that something had to be released, thus his earlier evidence. I should be persuaded that the essence of his evidence was that its release would unreasonably disadvantage Company B.

Following my reasoning set out above, in my view, Document 5 contains information relating to trade secrets. Mr Tilley concedes the point, if the vehicle is not permitted.
Document 5 also contains information relating to other matters of a business, commercial or financial nature and the disclosure of the information would be likely to expose Company B unreasonably to disadvantage. Mr Tilley concedes the point, if the vehicle is not permitted.
I agree with VicRoads that the appearance of a vehicle on the road under PBS does not by that appearance disclose the trade secrets which led to its creation. I accept the evidence of Mr Lovf that the appearance of the vehicle has not disclosed the trade secrets. Numerous components and measurements could not be discovered by seeing or photographing the vehicle. The vehicle is either in operation or parked in a secure depot, to physically measure it would require access and a significant amount of time. Drivers have entered into a confidentiality agreement with Company B with their employer with regard to their knowledge of the vehicle.
I accept that a person set on investigating the vehicle, could by observation and investigation discover a number of aspects of the vehicle's design. Mr Lovf conceded this. However, I do not accept it is more likely than not that the significant secrets as contained in Document 5 would be discovered.
On the issue of Attachment 2, I accept Mr Lovf's view was that releasing Document 5 would disclose information which would be likely to expose Company B unreasonably to disadvantage.

The Obtained in Confidence Exemption - Section 35

It appears this exemption was claimed as an alternative to the claimed exemption under section 30, which I have affirmed. I discuss section 35 with respect to Document 7. Therefore, I will not deal with this claim.

In my view, much of Document 5 is exempt under section 38, to the extent that it contains information gained by VicRoads that that has commercial sensitivity for the person about whom it is kept. My reasoning as regards Document 2 applies.

As with Document 2, I do not regard it as practicable to release a redacted Document 5.

Document 6 - A report from an assessor (Company A) about the compliance of Company B's application with the PBS

Six companies are registered as "assessors" under the PBS. They are engaged by applicant companies to provide expert reports about the proposed vehicle design and the projected performance. An assessor may also play the roles of applicant and assessor for an application. It conceives a design and provides the expert report.
Document 6 is a 29 page report from an assessor. As it happens the assessor is Company A discussed above. The report is about a PBS application by Company B[1]. The fist five pages are the cover title page "PBS Analysis of the ... Carrier" showing the names of Company B and Company C and the Assessor and the report date, a page showing the report authors, a commercial in confidence notice and two contents pages. A 19 page report follows. There are three appendices spanning four pages. A page with assessor contact details is the last page.
VicRoads exempted this document on the trade secret basis (section 34) and the secrecy provision exemption (section 38).

In closing submissions, Mr Tilley's position was:
1. The fist five pages allow the public to see who is making an application, who is assessing it and in the broadest terms the type of application. This is not exempt.
2. Once the vehicle is permitted, the appendices A and B are not exempt as the information to which they relate can be seen. Appendix C is exempt, except for the heading.

VicRoads contentions were:
1. Document 6 is exempt under section 34(1)(a). It's disclosure would disclose information VicRoads acquired from Company B and the assessor (Company A) which relates to their trade secrets.
2. Alternately, Document 6 is exempt under section 34(1)(a\b). It's disclosure of the information would be likely to expose Company A unreasonably to disadvantage.

Mr Lovf gave evidence that disclosing the first five pages of would not unreasonably disadvantage Company B. Dr Prem gave evidence that disclosing the first five pages of would unreasonably disadvantage Company A. This would flow from the pages giving an indication as to Company A's methodology in making assessments.

Document 6 contains information acquired by VicRoads from Company B, either directly or through Company A as assessor and from Company A. As Pizer states in Victorian Administrative Reports, Volume 2 [FOI. 34.80][2],

The information need not come directly from the commercial undertaking; s34(1) can apply where the information is acquired by an agency through a third party acting as agent for the undertaking.

Following my reasoning set out above, in my view, Document 6 contains information relating trade secrets. Mr Tilley concedes the point, if the vehicle is not on the road.
Document 6 also contains information relating to other matters of a business, commercial or financial nature and the disclosure of the information would be likely to expose Companies A and B unreasonably to disadvantage. I understood Mr Tilley concedes the point, if the vehicle is not permitted.
I accept the evidence of Mr Lovf and Dr Prem on these points.
The vehicle to which Document 6 relates is or has been on the road.
I agree with VicRoads that the appearance of a vehicle on the road under PBS does not by that appearance disclose the trade secrets which led to its creation. I accept the evidence of Mr Lovf that the appearance of the vehicle has not disclosed the trade secrets. Numerous components and measurements could not be discovered by seeing or photographing the vehicle. The vehicle is either in operation or parked in a secure depot, to physically measure it would require access and a significant amount of time. Drivers have entered into a confidentiality agreement with Company B with their employer with regard to their knowledge of the vehicle.
I accept that a person set on investigating the vehicle, could by observation and investigation discover a number of aspects of the vehicle's design. Mr Lovf conceded this. However, I do not accept it is more likely than not that the significant secrets as contained in Document 6 would be discovered.
I do not agree that the first five pages should be released. There is evidence before me that one element of the trade secret with a PBS registered vehicle that the very fact that it is registered under PBS is a trade secret. The release of the five pages may well give that secret away. Further, I accept Dr Prem's evidence that releasing the five pages would cause Company A unreasonable disadvantage.

In my view, the whole of Document 6 is exempt under section 38, to the extent that it contains information gained by VicRoads that that has commercial sensitivity for the person about whom it is kept. My reasoning as regards Document 2 applies.
The information in Document 6 was gained by VicRoads from Company B and Company A.
The information that has commercial sensitivity for the person about whom it is kept (Company B and Company A).

As with Document 2, I do not regard it as practicable to release a redacted Document 6.

Document 7 - Draft minutes of a meeting of the IRP in December 2006

Document 7 is the "draft minutes" of an IRP meeting over two days in December 2006. The first two pages are the draft agenda. A two page "Summary of Actions" follows. The minutes and attachments follow. The document lists date and time of the meeting, attendees and records the meeting's deliberations. The meeting considered seven applications and an issue to do with another vehicle class. The bulk of the minutes relates to these issues.
While it is titled "draft", it appears to be in fact the last version in existence. As I said I would do at the hearing, I proceed on the basis it is the final version.
VicRoads exempted this document on the basis it is an internal working document (section 30(1)(a)) and contains information obtained in confidence (Section 35(1)(a)).

In his written contentions dated 30 September 2009, Mr Tilley contended:

the IRP is not an agency for the purpose of the FOI Act. Its officers are not officers for the purposes of section 30(1)(a); and/or 2. while some of the material contained in the minutes may reveal matters in the nature required by section 30(1)(a), the whole minutes cannot; and/or

the release of Document 7 is in the public interest.
In closing submissions, with respect to the records of the IRP's deliberations Mr Tilley's sought only those parts that related to PBS applications where VicRoads was the lead agency. His position was:
1. The release of Document 7 would not disclose matter in the nature of opinion, advice or recommendation. Specifically:
  1. The agenda does not contain such;
  2. The summary of actions is a 'to do list' and not opinion, advice or recommendation;
  3. Section 1 of the minutes shows who attended (Mr Tilley conceded that names of people who did not hold public office should be exempt), acceptance of previous minutes, and actions arising;
  4. Section 2 of the minutes concerned PBS applications for consideration. Mr Tilley only sought these where VicRoads is the lead agency. However, while 2.2.1 was such a case, Mr Tilley did not seek it. Document 7 is a sample in a wider dispute. There was no evidence before me about that application.

Mr Tilley invited me to focus on 2.2.2 (which related to the application by Company B). Mr Tilley invited me to find this is a record of what happened at the meeting, not matter in the nature of opinion, advice or recommendation.

The minutes do not record consultations or deliberations between officers. The fact that the chair (Mr Hogben) and a VicRoads officer attended the meeting does not bring Document 7 within section 35.

Releasing the minutes is in the public interest. The vehicle is permitted.

The minutes disclose matter in the nature of opinion, advice or recommendation or consultation and deliberation between IRP members, who are relevantly, "officers". They are officers because: 1. All members of the IRP were officers in the sense their professional services were used for the purpose of advising VicRoads in relation to PBS applications. Given the definition of officer in the Act this has been said to include independent consultants and advisers (eg. Roy Morgan Research Centre Pty Ltd v State Revenue Office [1999] VCAT 1369; 2. All members of the IRP were "officers" because they were servants of the Crown (being the crown in the sense of the crown with respect to any Australian State); and 3. As it happened there were two officers employed by VicRoads at the meeting, Mr Hogben as chair and another VicRoads officer as an attendee. 2. The above function was a deliberative function of VicRoads in that it was in the course of and for the purposes of advising VicRoads (and others) about whether PBS applications were, in the IRP's view' compliant; and

Disclosure would be contrary to the public interest. I should accept Mr Hogben's gave evidence that the meeting were intended to and were largely held in confidence (guests were sometimes present at part of a meeting). This was essential to allow a frank exchange of views. Their release could allow competitors of applicants to glean valuable information. Releasing the draft letters (the attachments) would be misleading. They could be taken as final decisions, not recommendations to VicRoads. In a sense minutes which may lead to written statements of VicRoads decision, the minutes are preliminary working documents.

Given Mr Tilley does not seek release of Document 7 as it relates to applications where VicRoads is not the lead agency, I have proceeded on the basis VicRoads will not release such information and I need not consider the issue.
I view parts of Document 7 as exempt under section 30, only because two officers of VicRoads were present at the meeting. If there had only been one VicRoads Officer present at the meeting I would not have viewed Document 7 as exempt under section 30.
It should be noted that, but for the presence of the two officers, I would have disclosed more of Document 7 under section 35 (discussed below) than I have under section 30. Therefore, my orders reflect my reasons under section 30.
I view the:
1. first page, which shows the "Draft Agenda", down to and including the line, "Venue: National Transport Commission, Level 15, 628 Bourke Street Melbourne; and
2. the Draft Minutes (page 5), 1. Introduction and Welcome, 1.1 Apologies and 1.2 Introductions and Attendees (except the list of guests) which shows the officers of various governments who apologised or attended;

as not exempt from disclosure under section 30(1)(a). Apart from any other issue, I do not view it as contrary to the public interest for an applicant under the Act to discover the email address of the executive officer (in box) and when and where IRP meetings were held and which officers attended.

I do not see the names of the officers of various governments as exempt because I do not view the release of the names of these public officials meeting their professional capacity as unreasonable. As is required by section 33(3) of the Act before the names are released VicRoads is to advise those involved of my decision and provide those concerned with a reasonable opportunity to appeal against release of their names under section 50(2)(e) of the Freedom of Information Act 1987.

I view the balance of the first and second pages (the agenda), the Summary of Actions (pages 3 and 4), the list of guests in Item 1.2, Item 1.3 Acceptance of Previous Minutes and Item 2 PBS Applications for Consideration by IRP, Item 7 Other Business, Attachment 1, Attachment 2, Attachment 3 and Attachment 4 of Document 7 as an internal working document and therefore exempt from disclosure under section 30(1)(a).
In my view, disclosure would disclose:
1. consultation and deliberation that has taken place between the two officers of VicRoads who attended the meeting.

However, I do not agree with VicRoads' contention that the other members of the IRP were officers in the sense their professional services were used for the purpose of advising VicRoads in relation to PBS applications.

The term , "officer" is relevantly defined in section 3 of the Act to include in relation to VicRoads,

a member of the agency, a member of the staff of the agency, and any person employed by or for the agency, whether that person is one to whom the provisions of the Public Administration Act 2004 apply or not.

While the definition of officer in the Act has been said to include independent consultants and advisers, the decided cases do not extended the concept to include members of a committee who attend on behalf of other states and the territories not "employed" by the State of Victoria. The heading of section 30 Internal Working Documents, while only an aid to interpretation does not draw me to interpret "officer" in sense urged by VicRoads. Neither it is sufficient to draw me away from my view that the consultation and deliberation between the two officers of VicRoads is sufficient.

I disagree with VicRoads' contention that the members of the IRP were servants of the Crown (being the crown in the sense of the crown with respect to any Australian State). I view Parliament as intending to refer to officers of the crown in its embodiment in Victoria. The title "Internal Working Document" draws me to this view.

I see Parliament as intending that Document 7 be exempt as permitted by section 35 (see below).

That consultation and deliberation is recorded in the body of the draft agenda (what has been and is to be discussed), the summary of actions, which closely reflects consultation and deliberation which has occurred) and the minutes. The Guest section of Item 1.2 reveals companies about who consultation and deliberation took place. The balance is a direct record of consultation and deliberation. The attachments are letters to and from the IRP. They arise from and reflect consultation and deliberation.

the consultation and deliberation was in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency (VicRoads). The IRP provided advice to VicRoads for its deliberative purpose of deciding whether to register the vehicle; and

the disclosure of the above parts of Document 7 would be contrary to the public interest. VicRoads has persuaded me that it is in the public interest that the PBS be allowed to operate in the knowledge that the confidentiality in which it was intended to operate can be maintained.

I accept that PBS is intended to produce economic and environmental benefit. It can only do so if applicants are confident their applications will be kept confidential. Otherwise, they may well not make applications. That confidentiality would be undermined if the relevant parts of Document 7 were released.

The obtained in confidence exemption - section 35

Section 35 concerns material obtained in confidence. VicRoads claims exemption for Document 7. Section 35 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.

Mr Tilley repeated his submissions concerning section 30 as it relates to section 35. Also, Attachment 3 is a letter from the executive officer of the IRP to VicRoads setting out the IRP's "recommendations". It concerns Company B's application discussed above. As the vehicle is permitted, Mr Tilley contended that the trade secrets and any disadvantage had dissolved. Releasing the letter would not deter future PBS applicants.
By his written contentions dated 30 September 2009 and in closing submissions, Mr Tilley contended that section 35 does not apply to Document 7 to the extent it contains information acquired by an agency (VicRoads) from business (the applicants referred to in the minutes) that relates to trade secrets or other matters of a business, commercial or financial nature. Mr Hurley noted the scope of section 35(2) is wide.

VicRoads contended that to the extent Document is not exempt under section 30(1), it is exempt under section 35(1)(a). It says if the IRP was an agency, Document 7 would be exempt under section 30(1) because:

It would contain matter in the nature of opinion, advice or recommendation by, and in the nature of consultation and deliberation between officers; 2. The matter would have been in the course of the deliberative purposes of the agency; and

Disclosure would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of VicRoads to obtain similar information in the future.

Disclosure under the Act would divulge information or matter communicated by or on behalf of the IRP to VicRoads in confidence; and 2. release is not in the public interest. It was always intended the IRP would conduct its business in complete confidence to protect who was applying and the nature of their applications. Applicants and their competitors should not have access of a record of frank discussion about the merits of proposals.

I again note that Mt Tilley does not seek information where VicRoads is not the lead agency.
Concerning section 35, Pizer says (at FOI.35.80),

Section 30 is the most relevant of all the other sections of the Act. Section 30 deals with internal agency communications but section 35(1)(a) has the effect that section 30 can apply if the information was communicated in confidence to an agency from outside so long as all other requirements of section 30 ... are met"

I exempted parts of Document 7 to the extent that I see disclosure divulging any information or matter communicated in confidence by the IRP to VicRoads and disclosure of the information would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of VicRoads to obtain similar information in the future.
The minutes were clearly communicated by the IRP to VicRoads in confidence.. They also contain information that was originally communicated in confidence to VicRoads from companies seeking registration under the IRP.
The evidence of Mr Hogben, Dr Prem and Mr Lovf leads me to conclude applicants would be deterred from applying under the PBS, if they feared discussion of their secrets by the IRP (or now the PBS Review Panel) could be released.
I view:

Page 1; 1. down to and including the heading, "Existing Case Studies" but excluding items 2.1 and 2.2 (VicRoads the lead agency) which identify the applicant; 2. the heading "New Applications" but excluding items 2.3 to 2.5 (VicRoads not the lead agency) and the notes to 2.6 and 2.7 (VicRoads the lead agency) which identify the applicant and/or are excluded as personal affairs. (The name adjacent to 2.6 and 2.7 (a VicRoads Officer) is not exempt as discussed above.); and 2. Page 2, Items 3 to 7 (excluding the note to 7 - personal affairs)

the Draft Minutes, 1. Introduction and Welcome, 1.1 Apologies, 1.2 Introductions and Attendees (except the list of guests) which shows the officers of various governments who apologised or attended (page 5) and Items 3, 4, 5 and 6 (headings with no discussion noted), the time the meeting closed and the name and address details of the IRP Executive Officer (disclosure of personal affairs not unreasonable);

as not exempt from disclosure under section 30(1)(a). Apart from any other issue, I do not view it as contrary to the public interest for an applicant under the Act to discover when and where IRP meetings were held and which officers attended. Disclosure of this information would not deter future applicants.

As discussed above, I view the Summary of Actions (pages 3 and 4), the list of guests in Item 1.2, Item 1.3 Acceptance of Previous Minutes and Item 2 PBS Applications for Consideration by IRP, Item 7 Other Business, Attachment 1, Attachment 2, Attachment 3 and Attachment 4 of Document 7 as exempt from disclosure under section 30(1)(a).
Of those, in my view disclosure of:

the Summary of Actions (pages 3 and 4 - Items 2,1, 2.2, 2.6 and 2.7 have VicRoads as lead agency); 2. Item 1.3 Acceptance of Previous Minutes;

Item 2 PBS Applications for Consideration by IRP (Items 2.1, 2.2, 2.6 and 2.7 have VicRoads as lead agency);

Item 7 Other Business; and 2. Attachment 1, Attachment 2, Attachment 3 and Attachment 4 of Document 7 as exempt from disclosure under section 30(1)(a);

would be reasonably likely to impair the ability of VicRoads to obtain similar information in the future, being PBS applications. Therefore, but for my decision under section 30, these would be the exempt parts.

As I am not persuaded that trade secrets and potential disadvantage dissolve when the vehicle appears on the road, I do not accept Attachment 3 should be released for that reason.
I now turn to Mr Hurley's submission that to the extent Document 7 contains information relating to trade secrets or other matters of a business, commercial or financial nature, section 35 does not apply. I agree. However, in my view where section 35 did not apply for this reason, section 34 would apply. Therefore, nothing by way of disclosure of documents turns on the issue.

Section 50(4) is known as 'the public interest override'. It says,

At a glance

Court

Decision date

Source

Judgment (214 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (4)

Tilley v VicRoads (General) [2010] VCAT 483 (23 April 2010)