United Firefighters Union of Australia - Victoria Branch v Country Fire Authority (Review and Regulation) [2018] VCAT 630

1. The decision of the respondent is varied in that:
   1. The name of a person appearing in Document 149, who consents to release, is to be released to the applicant (see from paragraph 157 of reasons below); and
   2. The name of the Radio Station 3AW staff member appearing in Document 155 is to be released (see from paragraph 81 below).
2. Under s 53A(3) of the Freedom of Information Act 1982, the respondent is directed to give notice of this decision to the Radio Station 3AW staff member whose name is to be disclosed (see paragraph 83).
3. Liberty for 28 days to Radio Station 3AW staff member to intervene to seek a stay of the order of release of the name.
4. Subject to Order 3, Order 1 takes effect 28 days from today.

1. The United Firefighters Union of Australia - Victoria Branch (UFU) is concerned about events in 2014 to 2017, when the Country Fire Authority (CFA) engaged Ms Sharon McCrohan, a media consultant, and Seyfarth Shaw, a legal firm, to provide it with advice.
2. The UFU questions whether the CFA acted appropriately in engaging Ms McCrohan and is critical of her involvement in the CFA's communications.
3. The UFU also criticises the CFA engaging Seyfarth Shaw, described by Senator Doug Cameron of the Australian Parliament as, "a Chicago-based union busting firm".
4. Over the relevant time, controversy surrounded the CFA, in part related to enterprise bargaining, the Fiskville Inquiry and the Fire Services Review (FSR).
5. In 2017, the UFU requested from the CFA under Freedom of Information Act 1982 (FOI Act):
   1. The following information and/or documents created between June 2014 and March 2017, regarding any contract, agreement or other relationship between the CFA and Ms McCrohan and entities related to her:
      1. the date of commencement of any and all contractual or other relationship;
      2. the date of termination of any and all contractual or other relationship;
      3. the nature of the services to be undertaken or performed.
   2. Any communications, electronic or otherwise, by the CFA, management and its staff and/or contractors to Ms McCrohan and related entities for the same period.
6. In June 2017, the CFA released 141 pages in full, 115 pages in part and denied access to 273 pages. The CFA sought review of the decision by the then Freedom of Information Commissioner. In August 2017, the CFA sought review of the decision by VCAT on the basis that the Commissioner was taken to have refused the UFU's request.[1]
7. When the CFA assembled the documents in dispute in this proceeding, 156 documents were in dispute. The majority were then either released or the UFU decided it did not seek documents.

1. Thirty documents remain in dispute:
   • Documents[2] 72, 74, 97, 103, 118, 120 and 155 - emails where the CFA has only redacted names of staff, ministerial staff or in the case of Document 155, the name of a staff member from the 3AW radio station; and
   • Documents 48, 52, 71, 80, 105, 132 and 133 - drafts of the CFA's Fiskville Inquiry Report communications plan;
   • Document 49 - draft of Fiskville Inquiry Q&A;
   • Documents 50 and 51 - May 2016 email chain from a CFA staff member to Ms McCrohan concerning, "Revised approach key lines for the Fiskville Inquiry Report";
   • Document 65 - May 2016 email from Ms Lucinda Nolan, then CEO of the CFA, to a legal practitioner seeking advice related to enterprise bargaining;
   • Document 91 - March 2016 email from one CFA officer to another, copied to Ms McCrohan, discussing draft material related to the FSR;
   • Document 93 - draft media release related to the FSR;
   • Document 95 - draft Q&A related to the FSR;
   • Documents 106 to 109 - March 2016 email chain involving Ms McCrohan and a CFA Officer;
   • Document 113 - March 2016 draft FSR - communications plan;
   • Document 114 - February 2016 email from a CFA officer to Ms Nolan, copy to Ms McCrohan, concerning enterprise bargaining;
   • Document 146 - CFA background paper related to what was referred to as presumptive legislation;
   • Document 147 - CFA issues paper related to what was referred to as presumptive legislation; and
   • Document 149 - list showing names and contact details for CFA staff working in communications and legal services (noting the UFU does not seek telephone numbers appearing in any documents in dispute).
2. The CFA submits the documents are exempt under s 30(1) - internal working documents exemption, s 32 - legal privilege exemption and/or s 33(1) - personal affairs exemption.
3. The UFU submits the exemptions do not apply and, in the alternative, if VCAT decides documents are exempt under s 30(1) or s 32, the documents should be released because the public interest requires disclosure under s 50(4) of the FOI Act.
4. This case was heard over 11, 12 and 16 April 2018. It is closely related to VCAT case Z565/2017 'UFU v MFB'. The decision in that case is published as United Firefighters Union of Australia - Victoria Branch v Metropolitan Fire and Emergency Services Board (Review and Regulation) [2018] VCAT 631.
5. While on the topic of the close relationship between the two cases, it is convenient to record here that with the parties' consent, the evidence in each case has been considered as evidence in both cases.

1. Under s 13 of the Act, the UFU has the right to obtain documents, unless a document is wholly or in part an exempt document as defined by the Act.
2. Section 3 says the object of the Act is to extend as far as possible the right of the community to access information in the possession of the Government of Victoria and other bodies constituted under the law of Victoria for public purposes and that any discretions conferred by the Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
3. Section 16 requires agencies to administer the Act with a view to making the maximum amount of information promptly and inexpensively available to the public.
4. The CFA bears the onus of satisfying VCAT the redacted text is exempt from disclosure under the Act.

1. As well as relying on the documents in dispute and the documents previously in dispute, the CFA called two witnesses.

1. Mr Nicholas Koletsis has for the last 18 months been employed as Principal Adviser, Workplace Relations with the CFA. He has worked in workplace relations positions over the last 25 years in the public sector, private sector and with unions.
2. Mr Koletsis gave opinion evidence about the uncontentious proposition that sizeable organisations often engage external consultants to provide advice, to obtain independent views on issues and/or because the organisation does not have the relevant skills in-house.
3. In his opinion, full and frank and confidential communication with the consultant is required.
4. He gave his opinion on the need for internal debate via document, including drafts, to be an exercise concerning frankness and candour, such that draft documents should not be released under the FOI Act.
5. Cross-examination of Mr Koletsis confirmed he had no knowledge of past events relating to past enterprise bargaining, the Fiskville Inquiry or the FSR.

1. Mr Bruce Russell has been General Legal Counsel, CFA since March 2011, having been in legal practice since 1988. While he has responsibility for oversight of legal functions of the CFA and provides internal legal advice on a variety of matters, his evidence was that he had no involvement in or knowledge of past events relating to past enterprise bargaining, the Fiskville Inquiry or the FSR.
2. When asked how this could be, given the range of legal issues related to those events, he replied the CFA has a separate team of lawyers who deal with industrial relations matters. That said, Mr Russell gave evidence that he had provided some limited advice to the past CEO of the CFA about Fiskville. He could not recall when he did so.
3. Mr Russell provided a copy of a Scope of Engagement Document between CFA and McCrohan Consulting Pty Ltd dated 2 February 2016.
4. This is a single page said to define the scope of work provided by McCrohan Consulting to the CFA.
5. It speaks of "deliverables" including providing advice, attending meetings, reviewing current communication approaches to major issues and overseeing the development of the strategic communication plan/s focusing on but not limited to Fiskville and the Parliamentary Inquiry, the FSR, enterprise bargaining agreements and cultural reform.
6. It describes "the plan" to include reputation risk management, key messaging, identification and training of appropriate CFA spokespeople, recommendations concerning engagement with key stakeholders, communications management and development of communications material including speeches, media releases, social media posts, CEO updates and other content.
7. The scope document does not address payment of Ms McCrohan. However, tax invoices from Ms McCrohan's company to the CFA, disclosed as documents during this proceeding[3], indicate this was by way of monthly lump-sum payments.
8. Mr Russell gave his opinion about the importance of full and frank and confidential communication between the CFA and Ms McCrohan in order to obtain the maximum value from her services and that releasing the documents in dispute would have an adverse impact on future consultancy relationships between the CFA and consultants.

1. Concerning draft documents, in Mr Russell's opinion releasing drafts would fetter the drafting process. In his view such release would, "muddy the waters and do no more than promote some pointless debate about what might have happened rather than what did if the inherently preliminary views contained in drafts are released".
2. Concerning the documents in dispute, Mr Russell gave evidence about:
   1. Documents 146 and 147, a high-level discussion about what was then known as presumptive legislation, which was never enacted. In his view, confusion and ill-informed debate would arise if documents about options never realised were released; and
   2. Documents 106 to 109, and a passage not released in those documents related to what was known as a 'Red Paper'. This concerned a 10 year strategy plan the former CEO was developing, which never progressed because the CEO left the CFA. In Mr Russell's opinion, disclosure of the passage would give a misleading impression of the status of the Red Paper and plans about future communications, when the option was not pursued.
3. Mr Russell provided a confidential exhibit providing a list of CFA staff names, describing them as holding non-executive positions, where those names have been redacted from documents in dispute.

1. The UFU called Ms Joanne Watson, National Industrial and Research Officer of the UFU, as its witness in this case and in case Z565/2017 concerning the MFB.
2. With substantial overlap between her evidence in the two cases, in United Firefighters Union of Australia - Victoria Branch v Metropolitan Fire and Emergency Services Board, I summarise her evidence as it focuses on the MFB. Here I summarise her evidence as it focuses on the CFA.
3. Ms Watson's substantial witness statement is highly critical of the CFA, the MFB and the former and current Victorian Governments.
4. The following summary is not intended as criticism of the CFA, the MFB or Government. Nor does it indicate acceptance of the evidence, apart from acceptance of evidence concerning matters on the public record.
5. Ms Watson describes what she views as ongoing attacks on Victoria's professional career firefighters and the UFU.
6. She describes what she views as attacks through litigation and other means on terms and conditions of employment and related issues.
7. Concerning a 2010 enterprise bargaining agreement and disputes from 2010 to 2014, Ms Watson gave evidence about what she describes as a failure of the CFA to fund 352 additional professional career firefighters as expressly provided for in the 2010 agreement. She spoke of the lost benefit to public safety by this failure.
8. Moving forward, in early January 2016 the Fair Work Commission issued draft recommendations for resolution of the CFA/UFU operational staff Enterprise Agreement. On 24 February 2016, the CFA was scheduled to hold a special general meetings concerning the recommendations. At 6am that morning Ms Nolan emailed all CFA employees making an offer to rollover the 2010 Operational Staff Agreement with a list of variations.
9. Ms Watson describes this as an aggressive bargaining strategy in an attempt to derail the Fair Work Commission process, in which the UFU was participating in good faith. Controversy surrounded this action, including involving the Minister for Emergency Services at the time, Minister Jane Garrett.
10. Ms Watson criticises the CFA for engaging Seyfarth Shaw who produced a document titled Rollover Roadmap Overview which the CFA has provided to the UFU.
11. Moving from Victoria to the Australian Parliament and turning to the engagement of Seyfarth Shaw, Ms Watson cited Ms Nolan giving evidence before an Australian Senate Committee Inquiry. Ms Nolan spoke of Seyfarth Shaw providing options for resolving the enterprise bargaining process, which the CFA did not implement.
12. Ms Watson describes Ms Nolan as being unclear, in her evidence to that Inquiry, concerning how the CFA came to receive the Overview. In Ms Watson's view this demonstrates the CFA's "deceptive conduct" to destabilise the UFU and undermined the enterprise bargaining process before the Fair Work Commission.
13. Staying with the Australian Parliament, following the Federal Liberal Party pledging in the 2016 Federal Election campaign to introduce laws to address the dispute in Victoria between the CFA and the UFU, the re-elected Turnbull Government enacted the Fair Work (Respect for Emergency Services Volunteers) Act 2016.
14. According to Ms Watson that Act amends the Fair Work Act such that provisions contained in enterprise agreements for emergency services workers can now be challenged by volunteers or organisations purporting to represent them at any time they determine the clause has, or is likely to have, an impact on them. She gave evidence that this means that the current CFA/UFU Operational Staff Agreement, the result of three years of bargaining, endorsed by the CFA Board, the Victorian Government and the UFU, consistent with all recommendations of Fair Work Australia can now be challenged. In her view, the CFA's professional career firefighters have less rights than any other workers in Australia.
15. Ms Watson described what she views as public attacks and denigration.
16. For example, Ms Watson described media stories in 2015 attacking the integrity of professional career firefighters by attacking the UFU and bargaining for a new enterprise agreement, leaks to the media from unknown sources and the failure of the CFA to rectify misinformation and incorrect claims. She described the media coverage as causing a public divide between volunteer firefighters and professional career firefighters and adverse reaction from the community to professional career firefighters.
17. Ms Watson attached to her witness statement substantial media coverage related to the events in question and various other related documents.
18. Ms Watson gives another example. In May 2016, the All Victorian Parliament Legislative Council Environmental and Planning Standing Committee (Legislation Reference) commenced an Inquiry into fire season preparedness for the 2016/2017 fire season. While terms of reference focused on practical issues to do with fire preparedness, Ms Watson described the UFU coming to the view that the Inquiry was never intended to be about fire preparedness but was used as a vehicle to attack the UFU's bargaining with the CFA and the MFB.
19. Turning to another topic, Ms Watson describes what she says were people in the CFA and in government resisting or delaying matters that would benefit professional career firefighters and others, accompanied by misinformation and cover-ups of the truth.
20. She includes in this what she describes as resistance to and misinformation and delay in prevention of the resolution of an enterprise bargaining process commenced in 2013.
21. Ms Watson's evidence turned to a series of public inquiries and reviews from 2014 to 2016, relevant to Victoria's fire services.
22. The FSR was commissioned in July 2015, scheduled for release in October 2015 before the summer bushfire season. While it was provided to Minister Garrett in October 2015, it was not released until March 2016, together with the Government's response.
23. Ms Watson provided a copy of "Report of the Victorian Fire Services Review, Drawing a Line, Building Stronger Services". The Executive Summary speaks of the need for interoperability between the CFA and MFB. It speaks of fire services morale being at its lowest ebb for decades, a trench warfare-like relationship between leadership and firefighters, structural issues contributing to disconnect between corporate and operational members, an unhealthy situation which must not be allowed to continue, fundamental collapse in trust and goodwill and the need to respond. It addressed the need to first put in place transitional arrangements to bring change, including the creation of a more respectful and inclusive environment essential to encourage diversity within the fire services.

1. Ms Watson drew attention to pages 33 and 34 of the Report. These were critical of actions of the then previous government, the CFA and the MFB with respect to industrial relations describing a, "deliberately ideological attack against the UFU".
2. Ms Watson's evidence turned to the Fiskville Report. The CFA operated the training facility from 1971 until March 2015. Over that time thousands of firefighters received training in firefighting techniques at Fiskville. In December 2011, the Herald Sun reported on carcinogenic chemical exposure related to Fiskville and cancers, all too often with fatal results. The CFA established an internal inquiry. That did not put an end to the controversy. The Parliament of Victoria's 'Inquiry into the CFA training College at Fiskville - Final Report - May 2016' followed. It is severely critical of the CFA and other State Government agencies.
3. Related to the above, Ms Watson alleges that a strategy or strategies have been conducted by one or more persons on an undisclosed basis, contrary to the values of good faith or transparency which is incumbent upon a statutory agency such as the CFA. She alleges these unknown strategies harmed professional career firefighters and members of the public.
4. Ms Watson expects documents released in this case will show the role played by each person in pursuing, driving, or carrying out strategies which have harmed professional career firefighters, the UFU's representation of its members, members of the public and public safety.
5. She understands Ms McCrohan was involved in communications related to the above, both before and after the CFA Board was dismissed and Minister Garrett had resigned.
6. In Ms Watson's opinion, the public interest requires that the identity of people she describes as engaged in underhanded tactics focusing on misusing the bargaining process to attack the union, rather than resolve the prolonged dispute over the terms and conditions of Victoria's professional career firefighters be known. She says the public expects CFA resources to be used to resolve disputes rather than escalating them for "the ulterior motive of union-busting".[4]

1. By the time the decision was reserved in this case, the scope of what the UFU seeks had narrowed. The CFA had released documents to the UFU, had released the name of a person previously redacted from Document 97 and the UFU had agreed some text in the documents in dispute was no longer sought.

1. The telephone numbers redacted from the documents; 2. Ms McCrohan's email address appearing in the documents (though it seeks enough information to understand that in fact a document went to Ms McCrohan); or

1. The name of the person who printed the documents for the purposes of this case.
2. It is recorded here, that each of the documents in question involved the sending to or the receiving from Ms McCrohan. It was one or both of these actions which brought the document in question within the scope of the UFU's FOI request.
3. These reasons first deal with documents where the only redactions claimed are under s 33(1) and then turns to documents with redactions claimed under s30(1), s 32 and/or s 33(1)

Documents 72, 74, 97, 103, 118, 120 and 155 - emails

1. The CFA has released these documents, leaving only redaction of some names under s 33(1) of the FOI Act in issue.
2. A document is exempt under s 33(1) if two tests are met:
   1. The document in question must contain information relating to the personal affairs of a person (including a deceased person); and
   2. Disclosure of that information must be unreasonable.
3. Under s 33(9), information relating to the personal affairs of any person includes information:
   1. That identifies any person or discloses their address or location; or
   2. From which any person's identity, address or location can reasonably be determined.
4. As Butcher SM said in Coulson v Department of Premier and Cabinet [2018] VCAT 229 with the increasing prominence of privacy rights over the years, the correct and preferable approach under s 33(1) is to redact the names of staff holding non-executive positions as unreasonable. I add the qualifier, unless there is countervailing evidence in the documents such as evidence of questionable conduct.
5. Here, the UFU seeks to discover which CFA officers were involved in the events discussed in Ms Watson's evidence as it seeks to discover what it believes to be unknown CFA actions and strategies.
6. The UFU submits reasonableness at the very least supports the disclosure of the names of all people involved in decision-making around actions by the CFA to break the UFU, to refuse to comply with previously agreed enterprise agreements, to criticise firefighters and the UFU, to withhold material and information and to engage in any hidden strategies were contrary to the CFA's public representations and statutory functions.
7. That said, the UFU concedes that if a person named in the documents had nothing to do with any decision-making it may be unreasonable to disclose that person's name.
8. This is in the context that the UFU is aware of the evidence in this proceeding that the staff identified are said to be non-executive staff. The names of executive staff appearing in documents have been released.
9. The decisions to redact names in each of the following documents are affirmed.
10. Document 72 is a 6 April 2016 email chain from Ms Nolan to people in the CFA Communications team. There is nothing in the material before me to indicate it is reasonable to depart from the usual approach concerning redaction under s 33(1).
11. In Document 74, in a 30 March 2016 email chain, the CFA redacted the name of a member of ministerial staff. Ministerial staff, perhaps with the exception of minister's chief of staff (not apparently relevant here), appear to fall into the classification of non-executive staff as discussed above. There is nothing in the material before me to indicate it is reasonable to depart from the usual approach.
12. Documents 97 (naming CFA staff) and 103 (naming CFA staff and a ministerial staff member) appear to be inconsequential emails, the substance of which have been released to the UFU. There is no basis to conclude it is reasonable to release the names of non-executive staff in this document.
13. The names in Documents 118 and 120 are of ministerial staff. I take the same view as with Document 74.
14. To the extent Document 155 names ministerial staff. I take the same view as with Document 74.
15. Document 155 also contains the name of a staff member of radio station 3AW which is claimed exempt. The document relates to a press release being sent to the media. As is evident from the version of the document released to the UFU, there is no discussion between ministerial staff and 3AW staff member recorded on the document. I see no basis to regard the identity or position of the 3AW staff member as confidential such that it is unreasonable to disclose that information.
16. VCAT has not received a notice under s 53A of the FOI Act (the mechanism where people named in documents can object to being identified) from the journalist.
17. Having decided personal affairs information is to be disclosed, with the 3AW staff member not having intervened in this proceeding, s 53A(3) of the FOI Act requires that if practicable the staff member be given notice of this decision. Adapting a procedure previously used by VCAT in similar circumstances,[5] the MFB is directed to give notice to the staff member such that the staff member has the opportunity to object to release.

Names of non-executive staff in the other documents in dispute

1. Various of the remaining documents in dispute contain the names of non-executive CFA staff, ministerial advisers and a few other staff of other agencies, which the CFA has redacted from released versions of the documents.
2. While each document has been considered individually, unless otherwise indicated below, based on the principles discussed above, the personal affairs information is exempt under s 33(1).

1. The CFA released to the UFU the final Fiskville Inquiry Report Communications Plan.[6] It describes the CFA's planned approach to responding to the release of the Fiskville Report, outlining the CFA's planned narrative, setting out "key lines" and a timeline for responding. The CFA also released a late draft of the communications plan.[7]
2. The CFA submits Documents 48, 52, 71, 80, 105, 132 (pages 7 & 8), 133 (pages 1, 8 and 9) are earlier drafts of the Communications Plan and exempt under s 30(1).
3. A document is exempt under s 30(1) if, relevant to this case:
   • (a) Disclosure of the document would disclose matter in the nature of:
     1. opinion, advice or recommendation prepared by an officer; or
     2. consultation or deliberation that has taken place between officers; and
   • (b) The opinion, advice, recommendation, consultation or deliberation was prepared or took place 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
   • (c) Disclosure would be contrary to the public interest.
4. In Friends of Mallacoota Inc v Department of Planning and Community Development [2011] VCAT 1889, Hampel J summarised the considerations that might arise when deciding whether disclosure would be contrary to the public interest:[8]
   • (a) The nature of the information and the nature of the document. The more sensitive or contentious the issues involved in the communication, the more likely it is that the communication should not be disclosed;
   • (b) Draft internal working documents or preliminary advices and opinions are more generally than not inappropriate for disclosure, particularly when the final version of the document has been made public;
   • (c) It is contrary to the public interest to disclose documents reflecting possibilities considered but not eventually adopted, as such disclosure would be likely to lead to confusion and ill-informed debate, to give a spurious standing to such documents or promote pointless and captious debate about what might have happened rather than what did;
   • (d) Decision-makers should be judged on the final decision and their reasons for it, not on what might have been considered or recommended by others in preliminary or draft internal working documents;
   • (e) It is contrary to the public interest to disclose documents that would have an adverse effect on the integrity or effectiveness of a decision-making, investigative or other process;
   • (f) Disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making process; and
   • (g) Public interest concerns the interest of the public as distinct from the interest of individuals.
5. Concerning s 30(1)(a), the release of each of these drafts would disclose matter in the nature of at least consultation and deliberation that has taken place between officers in the course of and for the purposes of the deliberative processes, working toward a final document, involved in the functions of the CFA.
6. The drafts were circulated between the CFA officer and Ms McCrohan, Ms McCrohan clearly being an officer within the meaning of s 30(1).
7. This is evidenced by:
   • an 18 May 2016 email from a CFA officer to Ms McCrohan,[9] attaching Document 48;
   • an 11 May 2016 email from a CFA officer to Ms McCrohan,[10] attaching Document 52;
   • a 22 April 2016 email from a CFA officer to Ms McCrohan,[11] attaching Document 71;
   • a 16 March 2016 email from a CFA officer to Ms McCrohan,[12] attaching Document 80;
   • an 8 March 2016 email from a CFA officer to Ms McCrohan,[13] attaching Document 105; and
   • a 5 February 2016 email from a CFA officer to Ms McCrohan,[14] attaching Documents 132 and 133.
8. On this point, the UFU's submission that Document 48, and other documents where the CFA claims exemption under s 30(1), cannot fall within the meaning of deliberative processes under the section, if the document reflects discussions that have occurred in the course of, or for the purpose of, matters which do not relate to the functions of the CFA is rejected.
9. The UFU contrasts what it described as key aspects of the CFA's statutory responsibilities under the Country Fire Authority Act 1958. Section 6(1) says the CFA is established for the more effective control of the prevention and suppression of fires in the country area of Victoria. Section 6B describes the CFA's objectives, including contributing a whole sector approach to emergency management and promoting a culture within the sector of community focus, interoperability and public value.
10. Section 20 describes the CFA's general duty:

The duty of taking superintending and enforcing all necessary steps for the prevention and suppression of fires and for the protection of life and property in case of fire and the general control of all stations and of all brigades and of all groups of brigades shall, subject to the provisions of this Act, so far as relates to the country area of Victoria be vested in the Authority.

1. The UFU submits Ms Watson's evidence establishes the CFA was involved in strategies contrary to and outside its statutory functions. These strategies are submitted to include matters such as refusing to comply with agreed terms of an enterprise bargaining agreement, engaging in aggressive and unnecessary litigation, frustrating "good faith" negotiations discerning enterprise bargaining and either collaborating with the media or deciding not to defend the interests of firefighters when media reports denigrated them.[15]
2. First, the submission that Ms Watson's evidence establishes the above is rejected. This proceeding is not a royal commission into the CFA. It would not be appropriate for VCAT, on the limited evidence before it, to make findings on such matters. While the UFU may put its case as it wishes, within the boundaries of reasonableness, there is no requirement that the CFA answer allegations put against it. The CFA simply bears the onus of proof on the question of whether or not the documents before VCAT are exempt.
3. Second, the submission that documents are only exempt under s 30(1), with respect to s 30(1)(a), only where the opinion, advice, recommendation, consultation or deliberation related to activities within the functions of the agency is rejected.
4. Section 30(1)(a) does not require such judgement. The UFU cited no decided cases to support its proposition. That said, there may be instances where consideration of whether the actions of those creating documents was, with respect to functions of an agency, proper or improper may have a role to play in deciding whether, under s 30(1)(b), disclosure would be contrary to the public interest.

1. Concerning s 30(1)(b), disclosure of these documents would be contrary to the public interest. There are a series of drafts leading to the creation of Document 39.
2. As Hampel J observed in Friends of Mallacoota, there is a long history of decisions that draft internal working documents are more generally than not inappropriate for disclosure, particularly when the final version of the document has been made public.
3. In Victorian Administrative Law, Nekvapil says that the correct approach to draft documents was stated in Penhallurick v Glen Ira CC [2012] VCAT 370 at [25]:

In relation to the second limb of section 30, there are numerous decisions of this Tribunal, its predecessor and the courts which indicate that draft documents will, on consideration, generally turn out to be inappropriate for release where the final version was published (see for example Western Mining Corporation v Department of Conservation Forests and Lands (1989) 3 VAR 151 and the authorities cited therein). This is not an absolute proposition, however. Every disputed document must be examined on its own merits.

1. The CFA cites other decisions taking the same approach.[16]
2. The fact that a media adviser is involved causes no difference in approach.

1. Media advisors are an accepted part of public life. This is so whether one considers their widespread use as positive - because such advisors assist with accurate messaging, negative - taking the view they assist agencies to mislead and deceive, in part the allegations here, or somewhere in between.
2. Beyond briefly stating generalities, such that non-disclosure enables the people and agencies involved to hide strategies which have been engaged in against the public interest, the UFU had little to say against the principle.
3. Having examined each of these documents, it is abundantly clear they are either fully or in part, as indicated above, the earlier drafts leading to the creation of the final Document 39, which the CFA provided to the UFU. The evolution of the drafts does not support any finding of inappropriate conduct in the creation of each of them.
4. Consistent with the principles set out above, the release of each of the documents would be contrary to the public interest. Such release of each of the documents would create an undesirable precedent for release, unreasonably hampering future drafting processes between CFA officers and between CFA officers and consultants.
5. Therefore, the CFA's decisions on exemption under s 30(1) concerning these documents are affirmed.

1. Document 49 is a draft of the Q&A (a question and answer document).
2. The CFA has released a later draft of the Q&A[17] and the final Fiskville Inquiry Q&A[18] to the UFU.
3. I understand the Q&A was used by Ms Lucinda Nolan, then CEO of the CFA, as a basis for answering media questions after the release of the Parliament of Victoria's 'Inquiry into the CFA training College at Fiskville - Final Report - May 2016'.
4. Document 49 was circulated between a CFA officer and Ms McCrohan. This is evidenced by the 18 May 2016 email referred to above from a CFA officer to Ms McCrohan,[19] also attaching Document 49. Ms McCrohan was clearly an officer within the meaning of s 30(1).
5. Document 49 is a draft document in some ways different from the released final version of the Q&A. Those differences are not startling nor supportive of any finding of inappropriate conduct in its creation.
6. Consistent with the principles set out above its release would be contrary to the public interest.
7. Document 49 is exempt under s 30(1).

1. The CFA has redacted the substance of an email chain between a CFA staff member working in its Communications & Legal Services Area and Ms McCrohan concerning "Revised approach key lines for the Fiskville Inquiry Report".
2. In Document 50, Ms McCrohan provides some paragraphs of advice and the same CFA officer replies discussing that advice and intended actions, again in some paragraphs. There is no reason to conclude any of the content is inappropriate.
3. Document 51, starts the email chain where a CFA officer, in a single sentence, asked Ms McCrohan for advice.
4. Bearing in mind the 'Mallacoota factors', the redacted text would be contrary to the public interest. The content is a fragment of discussions whereby the CFA decided its response to the Fiskville report. The discussion is unguarded, practical and of a transient nature, aimed at producing a final document.
5. As I said in Colson v Freedom of Information Commissioner (Review and Regulation) [2016] VCAT 1521 at [36]:

It is difficult to imagine a world where officers could not collaborate via email toward a final version of a document, without being concerned about the release of the email. That said, the position could be different if the email contained some form of inappropriate content, such that releasing it would not be contrary to the public interest.

1. Applying the principles discussed above, the redacted substance of Documents 50 and 51 are exempt under s 30(1).

1. This is an email from Ms Nolan to an external legal practitioner.[20]
2. Ms Nolan writes that she is seeking legal advice about text that then follows in the email.
3. Section 32(1) says,

(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege or client legal privilege.

1. Concerning the scope of legal professional privilege,[21] Nekvapil in Victorian Administrative Law [at para FOI.32.50], after referring to the High Court case of Esso Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49 and Daniels Corp v ACCC [2002] HCA 49; (2002) 213 CLR 543 says,

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

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

(b) it contains a confidential communication between the client's professional legal advisers and third parties that was made for the dominant purpose of pending or contemplated litigation; or

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

1. The content of Document 65 shows it is exempt from release under s 32. It is a confidential communication between the client and the clients' professional legal advisers that was made for the dominant purpose of obtaining legal advice.

1. A March 2016 email from a senior officer of the CFA (name released) to a CFA officer discussing draft material related to the FSR contains a few sentences addressing minor drafting details for the Fire Services Review Q&A.
2. Applying the principles discussed above, the redacted substance of Document 91 is exempt under s 30(1).

Document 93 - draft media release related to the FSR

1. The CFA submits this draft media release is exempt under section 30, it having released to the UFU a later draft, titled "Draft Media Release, CFA Welcomes Victorian Fire Services Review".[22]
2. Document 93 was circulated between the CFA officer and Ms McCrohan. This is evidenced by the 11 March 2016 email from a CFA officer to Ms Nolan, other CFA officers and Ms McCrohan.[23]
3. In the absence of any inappropriate content in this document, this is another example of the type of document which an agency and its outside consultants must be able to efficiently draft leading to either a document which enters the public arena, that document being a media release, or perhaps a decision that the proposal to comment on a topic was ill-considered and the agency should say nothing.
4. Applying the principles discussed above, Document 93 is exempt under s 30(1).

1. The CFA submits this draft Q&A is exempt under s 30, it having released to the UFU a later draft.[24]
2. It was circulated between the CFA officer and Ms McCrohan. This is evidenced by the 11 March 2016 email from a CFA officer to Ms Nolan, other CFA officers and Ms McCrohan.[25]
3. In my view, consistent with the principles set out above its release would be contrary to the public interest. Such release of this document would create an undesirable precedent for release, unreasonably hampering future drafting processes between CFA officers and with consultants.
4. Applying the principles discussed above, Document 95 is exempt under s 30(1).

Documents 106 to 109 - Some content of a March 2016 email chain involving Ms McCrohan and a CFA Officer related to the "Red Paper"

1. In this email chain a CFA officer and Ms McCrohan very briefly and, appropriately casually in terms of the writing style, discuss their work programs with respect to issues, including the Red Paper.
2. Concerning s 30(1), disclosure of the documents would disclose matter in the nature of consultation between the officers which took place in the course of deliberative processes involved in the functions of the CFA.
3. The evidence before me provides the basis to decide that disclosure of the text in question, in each of Documents 106 to 109 is contrary to the public interest. It is particularly so in the circumstance where discussion about an option is never progressed.
4. Applying the principles discussed above, the redacted text is exempt under s 30(1).

Document 113 - draft Fire Services Review communications plan

1. The CFA submits part of page 2 and pages 3 and 4 of this draft are exempt under s 30(1), it having released various documents to the UFU.
2. Applying the principles discussed above, Document 113 is exempt under s 30(1).
3. It was emailed by a CFA officer to Ms McCrohan. This is evidenced by 4 March 2016 email.[26]
4. In my view, consistent with the principles set out above its release would be contrary to the public interest. Such release of this document would create an undesirable precedent for release, unreasonably hampering future drafting processes between CFA officers and with consultants.

Document 114 - email from a CFA officer to Ms Nolan, copy to Ms McCrohan, concerning enterprise bargaining

1. This email from a senior CFA officer (whose name is disclosed to the UFU) to Ms Nolan contains deliberative material which the CFA submits is either exempt under s 30(1) - as a notation on the document indicates - or is irrelevant to this proceeding, as the schedule of exempt documents indicates.
2. Document 114 is exempt under s 30(1).
3. It is clearly of a deliberative nature, falling within s 30(1)(a).
4. Concerning s 30(1)(b), its release would be contrary to the public interest because it is another example of collaboration via email as material for a document to be published is prepared.

Document 146 - background paper concerning 'presumptive legislation'

1. Document 146 is an undated issues paper discussing potential CFA positions related to "presumptive legislation", which the CFA advised the Government did not continue with. The CFA considers the Issues Paper highly sensitive and confidential.
2. This paper is exempt from release under s 30. It is clearly of the deliberative nature, falling within s 30(1)(a). It reached Ms McCrohan via an email from a CFA officer dated 8 December 2015.
3. This is the type of document which should not be released, to paraphrase the oft quoted observations of Maxwell P, in Secretary Department of Justice v Osland [2007] VSCA 96, in support of the efficient and economical conduct of government and protection of the deliberative processes of government in relation to sensitive issues in the preservation of confidentiality so as to promote the giving of full and frank advice.

Document 147 - issues paper concerning presumptive legislation

1. Document 147 is a related paper concerning the presumptive legislation again considered highly sensitive and highly confidential. It also reached Ms McCrohan via the 8 December 2015 email.
2. For the reasons given concerning Document 146, Document 147 is exempt under s 30.

Document 149 - CFA Communications and Legal Services Staff Contact List

1. This is a contact list as described in the heading. If it were released, the names and positions of CFA staff would be disclosed. The accompanying telephone numbers would not be disclosed because the UFU does not seek telephone numbers.
2. The CFA has released a redacted version of this document to the UFU showing the names of executive staff and their internal telephone numbers. The names of non-executive staff, their positions and their internal and mobile telephone numbers have been redacted.
3. One of those persons has through the s 53A consultative processes, advised she consents to release of her name, which is to be released.
4. Otherwise, consistent with the reasons above as to non-release of personal affairs information of non-executive staff, the decision by the CFA to redact the information is affirmed.

1. The UFU sought to invoke the public interest override under s 50(4) of the FOI Act to release the documents not found to be exempt under s 30(1) and s 32.[27]
2. Section 50(4) says:

On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power 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 the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.

1. The High Court of Australia has said decision-makers must be satisfied to a high threshold that the public interest requires release of the document. In Osland v Secretary to the Department of Justice [2010] HCA 24, French CJ, Gummow and Bell JJ said at [12] to [14]:

Relevantly to this appeal, the exercise of the power conferred by s 50(4) requires satisfaction of two conditions. The first is the condition that, as a matter of law, the material before the Tribunal is capable of supporting the formation by it of an opinion that the public interest requires that access to the documents should be granted. That condition may also be expressed as a limitation, namely, that the opinion referred to by the sub-section is an opinion which is such that it can be formed by a reasonable decision-maker who correctly understands the meaning of the law under which that decision-maker acts. The second condition is that the Tribunal actually forms the opinion that the public interest requires that access to the documents should be granted. This is an evaluative and essentially factual judgment. If the Tribunal forms the requisite opinion, its power to grant access is enlivened. In the ordinary case, the exercise of the power will be subsumed in the formation of the necessary opinion.

The FOI Act neither defines nor expressly limits the range of matters relevant to the 'public interest' which may require that access should be granted. As was said in the joint judgment in this Court on the first appeal, "[t]here are obvious difficulties in giving the phrase 'public interest' as it appears in s 50(4) a fixed and precise content". The nature of "public interest" determinations in the exercise of statutory powers was described in O'Sullivan v Farrer:

"the expression 'in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view".

The power to grant access on public interest grounds is not, in terms, vested in the relevant Minister or agency. By virtue of s 16 they retain their freedom to grant access to exempt documents. Rather, it is a power included in the powers conferred on the Tribunal. In this respect it is unique in freedom of information legislation in Australia. It has been called a "significant and exceptional" power and "a most extraordinary provision". These epithets do not justify its characterisation, propounded by the Secretary, as a power to be exercised only in "exceptional circumstances". Those words are not in the statutory text. Their use may misdirect the inquiry required by s 50(4). They may be taken erroneously to limit the range of matters relevant to the public interest. Nor do they sit easily with the proper approach to the construction of the FOI Act, which is to "further, rather than hinder, free access to information" under it.

1. Their Honours continued with the oft quoted statement:

Having said that, it must be accepted that the word "requires" which appears in s 50(4) directs the decision-maker to identify a high-threshold public interest before the power can be exercised. It is not enough that access to the documents could be justified in the public interest. The terminology of the sub-section does not define a rule so much as an evaluative standard requiring restraint in the exercise of the power. It is, like many common law standards, "predicated on fact-value complexes, not on mere facts", to be applied by the decision-maker.

1. On the public interest override, the UFU submitted:

1. On the evidence now before VCAT there are at least serious questions as to whether the CFA and/or individuals employed or engaged by it have at relevant times complied with their statutory obligations; 2. Given the CFA's statutory functions, duties and obligations, it is not within the statutory jurisdiction of the CFA to spend funds on "union-busting" activities, including by engaging consultants to promote a particular political or industrial relations outcome, or to actively seek to discredit the union to which the CFA's employees belong;

1. The history of the CFA's relationship with Ms McCrohan, as disclosed by the release of further documents, shows that she has been heavily involved in matters which go to the heart of the CFA's responsibilities, and in matters involving the UFU and community safety;

1. The CFA's actions in engaging Ms McCrohan ought to be fully transparent so that the public can be clear about whether or not, or to what extent, the CFA has behaved in accordance with statutory obligations and intent, as well as in the interests of the public; and 2. With reference to various elements of the High Court's decision in Osland, analogies between the situations in that case and in this case lead to a conclusion that the public interest requires release of the documents.
2. The CFA submitted that the UFU had done no more in this proceeding by way of evidence than to present material already on the public record, engage in speculation about and make allegations about misconduct concerning the engagement of Ms McCrohan and Seyfarth Shaw. Therefore, it submitted, there is no evidentiary basis on which the Tribunal could form an opinion that the public interest requires access given to any of the material exempt from release.

1. I am not of the opinion that the public interest requires access to the documents in question should be granted under s 50(4) of the Act.
2. On the meaning of public interest, it is sufficient to quote the appeal division of the Supreme Court in Director of Public Prosecutions v Smith [1991] 1 VR at 75;

The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.

1. There is high public interest in the CFA operating effectively and efficiently to safeguard Victoria from fire.
2. Turning to the operation of s 50(4), as Brooking J said in as Brooking J said in Melbourne University v Robinson [1993] VicRp 67; [1993] 2 VR 177 at [182], 'One of the strongest public interests that may be relied upon to invoke the public interest override is the interest in the purity of public administration.'
3. In Gill v Department of Industry, Technology and Resources (1985) 1 VAR 197, the AAT's president said concerning the then newly-enacted public interest override:

It is not necessary here to dwell on the possible circumstances that may cause this discretion to be exercised in favour of an applicant. Clearly the revelation in the documents of iniquities such as illegal or sharp practices detrimental to the welfare of the State and its citizens would be amongst them.

1. Over the years in question, controversy has surrounded the operations of the CFA. Any Victorian who pays any attention to the news is well aware that such controversy continues to this day, much of it involving the UFU.
2. Ms McCrohan has been involved in some of that controversy as a media consultant to the CFA, and to the MFB, engaged in broad terms as shown in the scope document, which has been released to UFU and it seems paid on a monthly lump-sum basis, given the invoices also released to the UFU.
3. However, the public interest override issue in this case requires consideration of whether access should be granted to documents and/or parts of documents decided to be exempt documents under s 30(1) and 32, because the Tribunal forms the opinion that the public interest requires that access to that material should be granted under the FOI Act.
4. Following its original FOI request and in this proceeding, the UFU has obtained substantial documents, including the majority of 156 documents identified as relevant to this proceeding. The UFU may pursue whatever interests it wishes with those documents in its possession.
5. What remains is a relatively small collection of names of people in non-executive positions which have been redacted, a collection of draft documents where final versions have been provided to the UFU, discussion along the way in drafting processes, text redacted in a document under s 32 and evidence of drafting processes about options never adopted.

1. There is no basis to conclude that the public interest requires access to these documents in furtherance of the public interest in the CFA operating effectively and efficiently to safeguard Victoria from fire or in the proper public administration related to CFA operations.
2. Neither on the basis of the documents themselves, nor in context of the evidence before the Tribunal in this case, is there a basis to conclude the existence of illegal or sharp practices or some other reason to invoke s 50(4).

[2] Document numbers refer to the number identifying the relevant document in the Schedule of Exempt Documents provided by the CFA in this proceeding.

[4] Paraphrasing Ms Watson's witness statement, paragraph 60.

[5] Mond v Department of Justice (General) [2005] VCAT 2817 (22 December 2005)

[15] UFU written submissions, paragraph 30.

[16] Johns v Cancer Council of Victoria [2016] VCAT 1596 [243] - [244], per Garde J - Wyman v Monash University (unreported, AAT of Vic, Judge Smith P, 20 August 1991) - Lambert v VicRoads [2008] 850, [38] - Yarra City Council v Roads Corporation [2009] VCAT 2646, [24] and my decisions in Country Fire Authority v Hicks [2017] VCAT 1880, [54], Country Fire Authority v McGregor [2017] VCAT 582, [74] and Coulson v Freedom of Information Commissioner [2016] VCAT 1521, [31 and 36].

[20] A short email which was part of a two email chain forming Document 65 has already been released as has the attachment to the email, which is Document 66.

[21] Section 32 refers to an exemption on the basis of "legal professional privilege" or "client professional privilege". The term "client professional privilege" is a reference to Part 3.10, Division 1 of the Evidence Act 2008 (Vic). As Nekvapil describes in Victorian Administrative Law, [FOI.32.40], there are minor differences between the scope of client legal privilege and legal professional privilege. They are not material here.

[27] S 50(4) does not apply to the s 33(1) exemption.