Turrisi v EPA [1999] VCAT 84

The Authority received 24 applications including one from Mr Turrisi, the applicant.

There was an assessment of all the applications against a list of criteria weighted with points, to decide who would be interviewed. Of the 24 applicants, 16 were selected for interview by the Audit Selection panel. Mr Turrisi was one of the applicants not selected for an interview at that point. Following further submissions from Mr Turrisi about his experience, he was interviewed.

Of the 17 interviewed, 13 were successful in being recommended for appointment and were appointed. Mr Turrisi was one of 4 interviewed, but not recommended for appointment.

Mr Turrisi is aggrieved about the outcome of his application and has sought access to all documents regarding the appointment process. He has complained to the Ombudsman about the process and was apparently advised that the Ombudsman was unable to conclude the Authority acted unreasonably in not appointing him as an environmental auditor. Mr Turrisi has also lodged a claim of racial discrimination with the Equal Opportunity Commission and says the Commission has been unable to conciliate the matter and has advised him of his right to have that matter referred to the Tribunal.

In June 1997, Mr Turrisi requested the Authority for access to :

"reports, guidelines, policy statements, file notes, records of meetings (whether type written or handwritten), records of deliberations (whether type written or handwritten), relating to or arising out of the process of interviewing, selecting and appointing persons including Mr Turrisi, for the position of Environmental Auditors to the EPA under s57 of the EP Act between July and December 1996".

The Authority released a number of documents. Access to 49 other documents identified was denied.

Mr Turrisi sought internal review of that decision. Further documents were released in full and some released in part with deletions. That decision was communicated to Mr Turrisi's solicitors on 15 September 1997.

On 10 November 1997, the Tribunal received an application for review of that decision.

By the time the matter came on for hearing, the Authority had determined to release further documents in part or in full and as the hearing progressed, Mr Turrisi withdrew his application with respect to a number of the remaining documents.

Attachment A to these reasons lists the documents still in dispute. They fall into discrete groups. Group A consists of various communications between Authority staff or panel members and draft letters for which exemption from release is claimed under s30(1) of the Freedom of Information Act (the Act).

Group B concerns documents which refer to the names of unsuccessful applicants (other than Mr Turrisi), or material which would identify them. Exemption from release for that documentation is claimed under s33(1) of the Act.

Group C consists of what can be described as "applicant assessment for interview lists". Those parts which refer to the name of unsuccessful applicants and every applicant's personal "score" (except for Mr Turrisi whose scores have been released), have not been released. Exemption from release is claimed under s33(1) of the Act.

Group D consists of all the applicants' (except Mr Turrisi whose material has been released) letters of application and accompanying curriculum vitae. The Authority claims these are all exempt from release under s33(1) of the Act.

The Authority has claimed exemption from release under ss30(1) and 33. Deputy President Macnamara in Re Pinder and Medical Practitioners Board (1996) 10 VAR 75 has set out the applicable legal principles related to those sections, as follows:

"Section 33(1) of the Freedom of Information Act provides

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

Sub-section (2) provides that the exemption does not operate

`In relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person'.

The classic exposition of the operation of this exemption appears in the Tribunal's decision in Re Page and Metropolitan Transit Authority (1988) 2 VAR 243, 245-6

`[The question of] whether a disclosure of ... information would be unreasonable ... requires a balancing of interest: the right to personal privacy of an individual whose personal affairs may be unreasonably disclosed by granting access to the information and the object of the Act to extend as far as possible the right of the community to access to information in the possession of the Government or agencies ... more particularly, this balancing of interest requires a consideration of all the circumstances, including the interests that the applicant has in the information in question, the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. It is apparent that the purpose of s.33(1) of the Act is to prevent the unreasonable invasion of the privacy of third parties.'

It will be seen from this formulation that this exemption is unusual or perhaps unique in that its operation depends upon the identity of the applicant and the purpose of which the applicant seeks the information. Kyrou Victorian Administrative Law Volume 1 page 626/15 [release 45] states

`Generally a curriculum vitae is a private of personal matter to which s.33(1) would apply. However details on the curriculum vitae which are a matter of public record are not exempt: Re Blums v Ministry of Consumer Affairs (1988) 3 VAR 69. Compare Re Knight v Medical Board of Victoria (1991) 5 VAR 171....'

See also Re Mildenhall v Department of Planning and Development (unreported AAT of Vic. Preuss PM, 16 August 1995). It will be seen that His Honour Judge A.F. Smith in Knight's case regarded a curriculum vitae as relating to the personal affairs of the subject.

Section 30(1) provides an exemption for what are referred to in the heading to the section as "internal working documents". The sub-section provides

`(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 purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government; and

It will be seen that the establishment of this exemption depends upon two things. First, proof that the document is indeed what may be described in shorthand form as "an internal working document" and further, that its release would be contrary to the public interest. The sub-section does not establish a principle that the release of internal working documents is contrary to the public interest without proof of more. It will be seen that a document to fall within the description of sub-paragraph (a) must be a memorandum including opinion, advice or recommendation exchanged between officers `for the purposes, of the deliberative processes involved in the functions of an agency'. In Re Coleman v Director-General Local Government Department Pentland (1985) 1 VAR, a complaint was made as to municipal administration and an inspector carried out an investigation and made a report to the Minister. The Minister accepted the recommendation. Exemption was claimed for the report under Section 30(1). Judge Rowlands, then President of this Tribunal, said

`I find it difficult to accept that a person in the position of the inspector writing his final and considered report after an investigation is involved in the creative debate which comprises part of a Governmental decision-making process, as that concept is understood in policy-forming activities.

Further, a working document may lose its protected status when, as in the present case, it is publicly cited by an agency as the sole basis for its action.

... I have determined that the deliberative process was over when the Minister accepted the report's reasons as his or those of the agency.'

The usual basis upon which it is contended that release of internal working documents is contrary to the public interest is that their release would be contrary to the public interest. I take the liberty of quoting what I said in relation to this view of the operation of the exemption in Re Marple and Department of Agriculture (1995) 9 VAR 29, 45-6

`Another ground relied upon as indicating that it was contrary to the public interest to release working documents was that release of those internal working documents would inhibit candour by departmental officers in furnishing their opinions or advice. In Murtagh v Federal Commissioner of Taxation [1984] AATA 249; (1984) 54 ALR 313 at 325, the Commonwealth Tribunal presided over by Davies J, said:

`The candour and frankness argument is not new. It achieved pre-eminence at one time but now has been largely limited to high level decision making and to policy making.'

These remarks were quoted with approval by Judge Rowlands, the then President of the Tribunal in Re Coleman and Director-General Local Government Department Pentland (1985) 1 VAR 9 at 11, and are referred to at 611 of Kyrou (release 33).

In Re Howard and Treasurer of the Commonwealth [1985] AATA 100; (1985) 3 AAR 169, Davies J returned to the same issue. At 177-178, he said:

`It is possible to postulate that in each case the whole of the circumstances must be examined including any public benefit perceived in the disclosure of the documents sought but that:

1. The higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed.

2. Disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest.

3. Disclosure which will inhibit frankness and candour in future professional discussions is likely to be contrary to the public interest.

4. Disclosure which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not be in the public interest.

5. Disclosure of documents which do not fairly disclose the reasons for decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making program.

The FOI Act has been in operation since 1 December 1982 ... The Tribunal has not yet received evidence that disclosure under the FOI Act has in fact led to a diminishment in appropriate candour and frankness between officers. As time goes by, experience will be gained of the operation of the Act. The extent which disclosure of internal working documents is in the public interest will more clearly emerge. Presently, there must be an element of conjecture in a decision as to public interest. Weight must be given to the object of the FOI Act."

There are four documents in this group and the Authority claims they are exempt from release under s30(1) of the Act. They are documents numbered 1, 5, 38 and 42, and can generally be categorised as internal working documents.

Document 1 is 2½ pages of e-mail correspondence between officers of the Authority about settling the Environmental Auditors (Industrial Facilities) Guidelines for Applicants. It contains information in the nature of opinion and advice and recommendations and records consultation between officers about draft guidelines. It does not include a draft of the guidelines, and is more in the nature of a series of comments, opinions, advice, suggestions and recommendations.

Having considered the evidence of Mr Wayne Saunderson, Secretary of the Environment Protection Authority contained in a comprehensive statement filed and his oral evidence at the hearing and having examined the document, I am satisfied that it discloses matter in the nature of opinion, advice and recommendation prepared by officers of the Authority in the course of the agency's deliberative processes and thus satisfies s30(1)(a) of the Act.

However, to satisfy the exemption, s30(1)(b) needs to be met. It must be established that release would be contrary to the public interest. Mr Saunderson stated that release would be "contrary to the public interest as it would, inter alia, inhibit frankness and candour in future pre-decisional communications". On the other hand, Mr Turrisi submitted that it was in the public interest to know how the final guidelines were arrived at. He suggested that the public has an interest in finding out how public audits are carried out. It followed, if I understand his submission correctly, that if considerations that are not relevant, for example, there was evidence that bias entered into the preparation of guidelines, the public interest is served by knowing this occurred.

Given the description of the document above, the fact that the document does not include a draft of the Guidelines themselves and without which the document makes little sense; that the Guidelines were indeed published and that having perused the document I am satisfied there is nothing which shows bias, I am satisfied that it would be contrary to the public interest to disclose the document. I did not accept Mr Turrisi's view that the public interest would be served by its disclosure.

I therefore find that Document 1 is exempt from release under s30(1) of the Act.

Document 5 is a short e-mail again between officers about the Guidelines. According to Mr Saunderson it was communicated at a stage where the Guidelines were still to be settled. The same considerations were put to me by both parties about whether disclosure would be contrary to the public interest.

Whilst the document has been created as part of the process settling the Guidelines, given the content of the communication being primarily one of comment, as distinct from comments on drafting, it is difficult to see that its release would inhibit frankness and candour in the deliberative process, such that its release would be contrary to the public interest. I am therefore not satisfied that the exemption claimed under s30(1) has been made out with respect to Document 5.

Document 38 is a letter/fax to the Authority from one panel member to another. It makes two comments. One about the content of the Audit Panel Report, and the other about a draft letter. According to Mr Saunderson's evidence it discusses the drafting of a letter. The Authority is prepared to release the document with certain deletions. The deletions include the addressee of the letter and the comments about the content of the Panel report.

Mr Saunderson's evidence again was that it was prepared in the course of processes involved in the functions of the Authority and that release would be contrary to the public interest in that it would inhibit frankness and candour in future pre-decisional communications.

Having perused the document, again I have difficulty accepting Mr Saunderson's evidence that release would inhibit frankness and candour, and thus release would be contrary to the public interest. All the author is communicating are his views and agreement. He is properly fulfilling his role as a panellist. I am not satisfied the exemption from release under s30(1) has been made out.

Document 42 is a draft letter to Mr Turrisi from the Authority. It is in the same terms as the letter sent to him dated 11 November 1996 except for the wording in paragraphs 4 and 5 and some handwritten comments by an officer. Thus he has its contents except for paragraphs 4 and 5 and those comments.

I am satisfied those parts not released form part of the consultation process between officers, in the course of the deliberative process. The very fact that they are different from what was sent to Mr Turrisi underlines their status as a tentative position. I am satisfied that it would be contrary to the public interest to release the paragraphs and comments not released and accept Mr Saunderson's evidence that release of the draft paragraphs would inhibit frankness and candour in pre-decisional communications.

I am satisfied that Document 42 is exempt from release under s30(1).

This group consists of 10 documents numbered 15, 23, 24, 25, 39, 40, 44, 45, 46 and 47. They are described in the attachment and have mostly been released with deletions. The parts of these documents which have not been released, are those parts which list the names and addresses or material particular to those named persons, who were unsuccessful applicants for the position of auditor. During the hearing Mr Turrisi said he was not interested in pursuing the addresses of these people. Exemption from release is claimed pursuant to s33(1).

In relation to all of them, Mr Saunderson's evidence was that release would involve unreasonable disclosure of information relating to the personal affairs of those unsuccessful applicants.

The fact that this was information relating to the personal affairs of these people was not challenged by Mr Turrisi. The bare fact of making an application for a position can be a personal affair (see Re Mildenhall and Department of Planning and Development (unreported, AAT of Vic, Preuss PM, 16 August 1995) and Re Perrin and Department of Labour (unreported, AAT of Vic, Harding PM, 22 June 1990)). I find that it is information within the meaning of the section. However, before the s33 exemption is made out, I have to be satisfied that disclosure would involve the unreasonable disclosure of such information.

As set out earlier, the question of whether disclosure would be unreasonable requires a balancing of interest : the right to personal privacy of an individual and to extend as far as possible the right of the community to access. This balancing exercise includes a consideration of all the circumstances, including Mr Turrisi's interest in the material.

Mr Saunderson's evidence was that disclosure would be unreasonable. From his experience, applicants for such a position apply with an expectation that their application would be treated in the strictest confidence.

On the other hand, Mr Turrisi, as set out in his statement, seeks the information to assist his claim of irregularities in the selection, assessment and appointment process which he states have led him to submit a case of racial discrimination to the Equal Opportunity Commission.

I accepted Mr Saunderson's evidence that applicants and particularly unsuccessful applicants would have an expectation that their applications would be treated in the strictest of confidence. Mr Turrisi's reasons for seeking access are to assist him with his own claims about the process. Balancing the interests, in my view, it would be extremely detrimental to the public appointment process if unsuccessful applicants did not have that fact kept confidential. On the other hand, Mr Turrisi seeks the information he says, to assist him to run his Anti-Discrimination case. In that forum there would be procedures in place for production of material. If those procedures do not allow him access to the information he seeks, it would be quite inappropriate for that process to be circumvented by the Freedom of Information process.

I find that all the information not released that remains in Documents 15, 23, 24, 25, 39, 40, 44, 45, 46 and 47 to be exempt from release under s33(1).

This group of 4 documents are numbered 26, 27, 35 and 36 in the attachment. Exemption for release is claimed under sections 30(1) and 33(1).

Documents 26 and 27 are applicant assessment sheets. One is typed and the other handwritten. According to Mr Saunderson, these were assessments of applications by the Panel to determine who should be offered an interview. They contain scores for each applicant. The column containing the maximum possible score, and describing what is scored, together with what Mr Turrisi scored has been released.

Document 27 on examination appears to be an incomplete version of Document 26. The information in it so far as it goes, corresponds with the information in Document 26. They are clearly documents which show the deliberations of an officer or officers in an agency. They contain individual names and assessment of that individual's application against particular criteria. They were created before the applicants had been selected for interview, let alone been interviewed. Clearly, in my view, it is information that relates to a person's personal affairs.

Mr Saunderson stated that disclosure would be unreasonable in that it would unreasonably disclose personal information, and being working documents that release would inhibit candour and frankness between officers.

I agree that disclosure of this personal information including names and the scoring against the criteria would be unreasonable and contrary to the public interest. I note that these were only assessments for the purpose of selection for interview and that Mr Turrisi was in fact interviewed. Release in any form would, in my view, have the potential to create misunderstanding.

I find that the exemptions claimed under both sections 30(1) and 33(1) are made out with respect to Documents 26 and 27.

Document 35 is a copy of a document already released. The released document is the agenda for an Authority meeting held on 6 November 1996.

Document 35 differs from the released agenda in that it is annotated. The annotations are the individual scores of each person who was listed for recommendation for appointment plus the names and scores of others. According to Mr Saunderson, at that point the appointment process was not completed. I am satisfied that the individual scores are personal information in relation to the particular individuals. I accept Mr Saunderson's evidence which was that release would inhibit candour and frankness among officers.

As the document was created before the appointment process was complete, and taking into account Mr Turrisi's reasons for seeking the material and my observations about those matters made earlier, I am satisfied that it would be contrary to the public interest and unreasonable to disclose the written annotations.

I find those written annotations in Document 35 exempt from release under sections 30(1) and 33(1).

Document 36 is the report of the Environmental Audit Panel. As set out in Mr Saunderson's statement, the Authority appoints an expert panel to assess the applications for interviews; the panel interviews the applicants and then makes a recommendation to the Authority as to which applicants are suitably qualified to be appointed. If the Authority accepts a recommendation in favour of appointment, the person concerned will be appointed after that person has paid a particular statutory fee. Document 36 is the panel's recommendation to the Authority.

Much of the report has been released. The parts for which exemption is still claimed under sections 30(1) and 33(1), and which Mr Turrisi still seeks access to, include -

- a table listing names of applicants not selected for interview, together with comment

- the names and comments about unsuccessful applicants

Mr Saunderson stated that apart from the personal information about those applicants -

"the exempt information also consists of officers' opinion and recommendation to the Authority, the release of which would be contrary to the public interest as it would, inter alia, inhibit frankness and candour in future pre-decisional communications, lead to an ill-informed and unbalanced debate as to the decision itself and would be contrary to the statutory framework in which the Authority functions".

I have already found the release of the names of unsuccessful applicants exempt under s33.

There basically remains comments about both successful and unsuccessful applicants. Even if one were able to release the comments in a way that did not identify any particular person, they are clearly expressions of opinion prepared in the course of a recommendation for consideration by the Authority. I agree with Mr Saunderson that release would have the potential to lead to an ill-informed and unbalanced debate as the Authority's ultimate decision and would be contrary to the public interest.

I am satisfied that the comments themselves are exempt from release under s30(1).

The final group of documents consists of all the letters and applications from applicants for the position of environmental auditor including each applicant's curriculum vitae. They are documents 54-76 (inclusive) listed in Attachment A. The names and business addresses of the applicants who were appointed have been released. The Authority claims that the balance of the material is exempt from release under s33.

The unreleased parts of the document include the home addresses of those appointed, and all letters and accompanying documentation including curriculum vitae in support of all those who applied. Mr Turrisi's application and accompanying material has been released to him.

I accepted Mr Saunderson's evidence that the Authority treated all these applications and accompanying material as being received on a confidential basis and that the Authority regarded its disclosure as unreasonable. I note that it is also material submitted prior to appointment. In that respect, I cannot accept so far as it concerns the successful applicants, that it arises from any position, office or public activity and in that sense might not be considered to relate to a person's personal affairs (see The University of Melbourne v Robinson [1993] VicRp 67; [1993] 2 VR 177). Moreover, the curriculum vitae of the successful applicants have not been made public by the Authority.

On a number of occasions, the Tribunal has held that a curriculum vitae relates to a person's personal affairs (see Re Knight and Medical Board of Victoria (1991) 5 VAR 171). Letters of application and the bare fact of making an application have also been held to be related to a person's personal affairs (see Re Mildenhall and Department of Planning and Development (unreported, AAT of Vic, Preuss PM, 16 August 1995) and Re Perrin and Department of Labour (unreported, AAT of Vic, Harding PM, 22 June 1990)).

I am satisfied that the unreleased material relates to a person's personal affairs and thus one limb of s33 is satisfied. Is its release an unreasonable disclosure of those affairs?

I have already found that the disclosure of the names of unsuccessful applicants would be unreasonable. In my view, release of any other material relating to their personal affairs would also be unreasonable.

There remains the consideration of whether disclosure of the applications and curriculum vitae of the successful applicants would involve the unreasonable disclosure of those persons' personal affairs.

Such a consideration involves a balancing of interests. On the one hand, Mr Saunderson referred to the expectation that applicants have that their applications and accompanying material would be treated in strict confidence.

That expectation, which in my view encourages frankness in an applicant, outweighs the public interest in releasing the material, given Mr Turrisi's personal interest which I have already commented upon in relation to the

Group B documents, such as to satisfy me that disclosure would be unreasonable.

I find that documents 54-76 (inclusive) are exempt from release under s33(1) of the Act.

Section 50(4) of the Act gives the Tribunal power to grant access where it is of the opinion that the public interest requires that access be granted.

It applies with some exceptions, one of which is where a document is found to be exempt under s.33. In this case, I have found all but documents 1 and 42 and parts of document 36 exempt from release under s33.

Does the public interest require the release of documents 1, 42 and part of 36?

The thrust of Mr Turrisi's submissions on "the public interest" as opposed to his own interest was that the duties of an environmental auditor are to safeguard the public from the unlawful discharge of pollutants from industrial premises that appointment of these auditors should be open to full public scrutiny to ensure that the appointments being made are free from extraneous interference or considerations.

Whilst one would not doubt that an environmental auditor is an important appointment, it is the process of appointment that Mr Turrisi seeks to challenge. He has already had that process checked through the office of the Ombudsman. He is now pursuing a complaint through the Equal Opportunity Commission, which I have referred to earlier. I am not satisfied that it has been established that the public interest requires documents 1, 42 and parts of 36 be released, under s50(4) of the Act.

I certify that this and the preceding 22 pages are a true and correct copy of the reasons for decision of Mrs Anne Coghlan, Deputy President of the Victorian Civil and Administrative Tribunal.