United Firefighters Union of Australia - Victoria Branch v Metropolitan Fire and Emergency Services Board (Review and Regulation) [2018] VCAT 631

1. The decision under review is varied in that the respondent is to release to the applicant:

1. In Document 1, the personal affairs information related to the journalist identified in that document (see from paragraph 70 in reasons below); 2. In Document 4, the personal affairs information related to the journalist identified in that document (see from paragraph 75 below); and

1. In Document 38 the personal affairs information related to an MFB officer (first initial D), another MFB officer (first initial R) and concerning another MFB officer (see from paragraph 130 below).

1. Under s 53A(3) of the Freedom of Information Act 1982, the Respondent is directed to give notice of this decision to the persons whose personal affairs information is to be disclosed (see paragraph 72 - Documents 1 and 4 - and paragraph 131 - Document 38).
2. Liberty for 28 days to persons referred to in Order 1 to intervene to seek a stay of these orders.
3. The applicant has liberty to make further application to seek access to a redacted version of Documents 24 and 25 (see from paragraph 100).
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 Metropolitan Fire and Emergency Services Board (MFB) engaged Ms Sharon McCrohan, a media consultant and Seyfarth Shaw, a legal firm, to provide advice to the MFB.
2. The UFU questions whether the MFB acted appropriately in engaging Ms McCrohan and is critical of her involvement in the MFB's communications.
3. The UFU also criticises the MFB 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 MFB, in part related to enterprise bargaining, the Fiskville Inquiry and the Fire Services Review (FSR).
5. In 2017, the UFU requested from the MFB under the 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 MFB and Ms McCrohan and entities related to her:
      1. the date of commencement of any and all contractual or other relationships;
      2. the date of termination of any and all contractual or other relationships;
      3. the nature of the services to be undertaken or performed; and
   2. Any communications, electronic or otherwise, by the MFB, management and its staff and/or contractors to and from Ms McCrohan and related entities for the same period.
6. In June 2017, the MFB denied access to documents it had located. The UFU sought review of the decision by the then Freedom of Information Commissioner. In August 2017, the UFU sought review of the decision by VCAT because the Commissioner was taken to have refused the UFU's request.[1]
7. Initially in this case before VCAT, 75 documents were in dispute. The majority were then either released or the UFU decided it did not seek them.

1. Thirty six documents remain in dispute:
   • Documents 1, 4, 6, 10, 15, 28, 33, 47 [2] - emails which the MFB has redacted only so as not to disclose personal information;
   • Documents 11, 12, 13 and 14 - emails with different versions of a draft internal paper related to the FSR;
   • Document 17 - email from MFB officer to others including Ms McCrohan, attaching a Facebook post critical of Ms Jane Garrett, then Minister for Emergency Services and others;
   • Document 24 - email from MFB officer to Ms McCrohan forwarding an email from another officer which was apparently sent to many individuals concerning a tragic event;
   • Document 25 - further email exchanges, broadly distributed, concerning that event;
   • Document 26 - email exchange concerning recruitment standards for firefighters;
   • Document 38 - email chain, the most recent email dated 30 March 2016, where Ms McCrohan is asked for and provides advice concerning final draft of the message from the MFB's president to the MFB concerning the FSR;
   • Document 39 - March 2016 email from MFB officer to Ms McCrohan, attaching a draft document for comment;
   • Document 40 - March 2016 email to Ms McCrohan seeking a comment on a draft communication concerning the FSR;
   • Document 41 - March 2016 email where Ms McCrohan provides comment on the above draft communication;
   • Document 42 - March 2016 email to Ms McCrohan;
   • Document 45 - April 2016 email from an MFB officer to Ms McCrohan, with attachments;
   • Documents 53, 54, 55 and 56 - emails and versions of a draft media release sent to Ms McCrohan;
   • Document 57 - August 2016 email from MFB officer to Ms McCrohan with draft document attached;
   • Documents 58 and 59 - August 2016 emails from MFB officer to Ms McCrohan related to the same draft document;
   • Document 62 - August 2016 email from Ms McCrohan to MFB officer commenting on a draft document;
   • Document 67 - November 2016 email and attached document concerning enterprise bargaining positions sent to Ms McCrohan;
   • Document 68 - November 2016 email from MFB officer to Ms McCrohan seeking comment on a draft document;
   • Document 69 - December 2016 email from MFB officer to Ms McCrohan seeking comment on a draft document;
   • Document 70 - December 2016 reply from Ms McCrohan to the MFB officer concerning document 69;
   • Document 73 - January 2017 email from MFB officer to Ms McCrohan seeking comment on a draft document; and
   • Document 74 - January 2017 reply from Ms McCrohan to the MFB officer concerning document 73.
2. The MFB submits the documents are exempt from release under s 30(1) - internal working documents exemption, s 33(1) - personal affairs exemption, and/or s 36(1)(b) - the rarely invoked disclosure of instructions 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 36(1)(b), the documents should be released because the public interest requires disclosure under s 50(4) of the FOI Act.
4. This case was heard on 16 April 2018.
5. It is closely related to VCAT case Z566/2017 'UFU v CFA'. The decision in that case is published as United Firefighters Union of Australia - Victoria Branch v Country Fire Authority (Review and Regulation) [2018] VCAT 630.
6. 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 MFB 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 MFB called one witness.

1. Ms Elizabeth Holley has, since February 2017, held the position of the Executive Director, People and Culture with the MFB. She has held positions in "people and culture or related areas", in the public and private sectors over the last 20 years.
2. Ms Holley gave evidence that, similar to many government agencies and across the whole of Government, the MFB regularly engages consultants to assist with a wide range of work from time to time. She understands the MFB engaged Ms McCrohan to provide general communications advice, which is confirmed by her reading of the documents in dispute.
3. In Ms Holley's opinion, it is necessary that MFB officers and consultants engaged by the MFB are able to communicate in confidence. She noted MFB officers have duties to maintain confidentiality about such communications, as do consultants.
4. In her opinion, release of the documents would disclose confidential communications resulting in MFB officers being much less frank and candid in their written communications both internally and externally. This would effectively hamstring the MFB when it sought to engage outside expertise.
5. Ms Holley regards Documents 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29, 32, 34, 35, 36, 37, 38 and 46 as examples of frank and open communications with Ms McCrohan, made possible by the expectation that the communications will remain confidential.
6. Ms Holley spoke of the need to carefully protect the confidentiality of draft documents. In her view, release has the inherent danger of misleading those who read or who are provided information extracted from them concerning the MFB's position on a topic, where the draft does not represent the MFB's final position.
7. She used Documents 11 to 14 as examples of confidential communications where drafts were exchanged over several days concerning the outcome of the FSR.
8. She described Documents 39, 40, 41, 42, 53, 54, 55, 56, 62, 67, 69, 70, 73 and 74 as other examples where drafts were sent internally and/or to Ms McCrohan for opinion and/or were part of deliberative processes.
9. According to Ms Holley, the need to protect the confidentiality of draft communications is of particular concern in the emergency services area given the need for clear communication with Government and community, and between the MFB and the CFA.
10. She spoke of the risk of disclosing communications concerning action initially intended which did not eventuate; citing Document 39 as an example.
11. She gave evidence that in her position she has a general understanding of disputation over recent years between the UFU and the MFB concerning the operational enterprise agreement governing work conditions for operational staff of the MFB such as firefighters.
12. At the time Ms Holley gave evidence in this case, Fair Work Australia was considering ratification of an agreement.
13. Ms Holley gave evidence that Documents 45, 57, 58, 59, 67, 68 and 69 relate to MFB internal communications about the negotiation process.
14. In her view, the documents appear to disclose the preferred MFB position or potential positions in relation to topics which were, and in the future are almost certain to be, the subject of bargaining and negotiation between the MFB and the UFU.
15. In Ms Holley's opinion, the MFB should not be forced to disclose its position concerning negotiation positions, past, current as ratification by Fair Work Australia is awaited, and likely relevant to future rounds of negotiation.

1. The UFU called Ms Joanne Watson, National Industrial and Research Officer of the UFU, as its witness in this case and in Case Z566/2017 concerning the CFA.
2. With substantial overlap between her evidence in the two cases, in United Firefighters Union of Australia - Victoria Branch v Country Fire Authority, I summarise her evidence as it focuses on the CFA. Here I summarise her evidence as it focuses on the MFB.
3. Ms Watson's substantial witness statement is highly critical of the MFB, the CFA and the former and current Victorian Governments.
4. The following is not intended as criticism of the MFB, the CFA or Government. Nor does it indicate acceptance of her evidence, apart from acceptance of evidence concerning matters on the public record.
5. Ms Watson described what she views as ongoing attacks on Victoria's professional career firefighters through litigation and other means on terms and conditions of employment and related matters.
6. Concerning a 2010 Enterprise Bargaining Agreement and disputes from 2010 to 2014, Ms Watson focused on an unsuccessful 2014 application by the MFB to Fair Work Australia to terminate the MFB UFU Chief Fire Officers Agreement 2010, noting that the FSR described the aggressive approach then taken by the MFB to industrial relations, demonstrated by a number of, as Ms Watson describes, ill-conceived decisions.
7. She described what she views as attacks through public attacks and denigration. Ms Watson described media stories in 2015 as 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 MFB 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.
8. She attached to her witness statement substantial media coverage related to the events in question and various other related documents.
9. Ms Watson referred to evidence of what she described as the MFB directly communicating with journalists, resulting in what she described as sensational and incorrect media articles, and to evidence of low morale.
10. Ms Watson gave what she says is an example. In May 2016, the Victorian Parliament Legislative Council Environmental and Planning Standing Committee (Legislation Reference) commenced an Inquiry into fire season preparedness for 2016/2017. 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 that, but was used as a vehicle to attack the UFU's bargaining with the CFA and the MFB.
11. In Ms Watson's opinion, such circumstances lead to the conclusion that information regarding the MFB's media strategies, communication plans and communications with the media should be released. She says:

If there was a media strategy by the state's fire agencies to undermine the confidence of the [community] in professional career firefighters then it is in the public interest to know who was driving or assisting that strategy. ... The public interest requires disclosure of who was involved in any decision-making in relation to these strategies, what recommendations or decisions were made or not made, or steps that were taken or not taken, in pursuance of such strategies.[3]

1. Turning to another topic, Ms Watson describes what she views as people in the MFB and in Government resisting or delaying matters that would benefit professional career firefighters and others, accompanied by misinformation and cover-ups of the truth.
2. She includes in this what she describes as resistance, misinformation and delay in prevention of the resolution of an enterprise bargaining process commenced in 2013.
3. Ms Watson's evidence turned to a series of public inquiries and reviews from 2014 to 2016, relevant to Victoria's fire services.
4. 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.
5. 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.
6. 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".
7. 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 (including from the MFB) received training. 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.
8. 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 MFB.
9. 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 union members, members of the public and public safety.
10. She understands Ms McCrohan was involved in the communications related to the above.
11. In her 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 UFU, rather than resolve the prolonged dispute over the terms and conditions of Victoria's professional career firefighters, be known. She says the public would expect MFB resources to be used to resolve dispute rather than escalating it 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 MFB had released documents to the UFU, and the UFU had agreed some text in the documents in dispute was no longer sought.
2. The UFU does not seek:

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 are made under s 33(1) and then turns to documents with redactions under 30(1) s 33(1) and/or s 36(1)(b).

Documents which the MFB has redacted only so as not to disclose personal information (Documents 1, 4, 6, 10, 15, 28, 33, 47)

1. 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.

1. 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.
2. 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.
3. Here, the UFU seeks to learn which MFB officers, whose names are redacted, were involved in the events discussed in Ms Watsons' evidence as it seeks to discover what it believes to be unknown MFB actions and strategies.
4. 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 MFB to break the UFU, refuse to comply with previously agreed enterprise agreements, criticise firefighters and the UFU, withhold material and information and engage any hidden strategies, were contrary to the MFB's public representations and statutory functions.
5. 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.
6. This is in the context that the UFU is aware of the evidence in this case that the staff identified are said to be non-executive staff. The names of executive staff appearing in documents have been released.
7. The decisions to redact names in each of the following documents are affirmed.
8. Document 1 is a 9 March 2016 email where an MFB officer emails Ms McCrohan about the opportunity for an MFB representative to talk with a journalist concerning the MFB's Diversity Recruitment Program.
9. Concerning the name of the MFB officer, there is nothing in the material before me to indicate it is reasonable to depart from the usual approach.
10. Concerning the name of and some text describing the journalist, also claimed exempt under s 33(1), the substance of Document 1 is already released. It gives no sense of confidentiality concerning the fact the journalist was contacting the MFB. 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.
11. The personal affairs information redacted concerning the journalist is not exempt from release.
12. Having decided personal affairs information is to be disclosed, with the journalist not having intervened in this case, s 53A(3) of the FOI Act requires that if practicable the journalist be given notice of this decision. Adapting a procedure previously used by VCAT in similar circumstances,[5] the MFB is directed to give the journalist notice such that the journalist has the opportunity to object to release.
13. Document 4 is a 10 March 2016 email chain. It identifies the Director, Media and Communications, which is an executive position (and is disclosed to the MFB here and in other documents). The names of a MFB officer, a ministerial staff member and a journalist are redacted.
14. As with Document 1, the name of the MFB officer remains exempt. The name of the journalist is not exempt. Again, the journalist may object to release.
15. Concerning the ministerial staff member, 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.
16. Document 6 is a 10 March 2016 email chain. The names of a MFB officer and a ministerial staff member are redacted.
17. As discussed above, the names of the MFB officer and the ministerial staff member remain exempt.
18. Document 10 is a 10 March 2016 email chain. The names of four MFB officers and a ministerial staff member are redacted.
19. As discussed above, the redacted text is exempt.
20. Document 15 is a 15 March 2016 email chain. The names of a MFB officer and a ministerial staff member are redacted.
21. As with Document 1, the redacted text is exempt.
22. Document 28 is a 24 March 2016 email chain. The names of three MFB officers and one ministerial staff member are redacted.
23. As discussed above, the redacted text is exempt.
24. Document 33 is a 24 March 2016 email chain. The names of one ministerial staff member and a staff member of Emergency Management Victoria are redacted.
25. As discussed above, the redacted text is exempt.
26. Document 47 is 6 April 2016 email chain. The names of one ministerial staff member and a staff member of Emergency Management Victoria are redacted.
27. As discussed above, the redacted text is exempt.

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

1. Various of the remaining documents contain the names of non-executive MFB staff, ministerial advisers and a few other staff of other agencies, which the MFB 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. Document 17 is a 22 March 2016 email from the Director, Media and Communications (whose name is disclosed to the UFU), to Ms McCrohan and two other people, attaching a satirical Facebook post critical of Minister Garret and others. The Director makes a short comment, mildly critical of the authors of the Facebook post.
2. The two lines of redacted text are claimed exempt, under s 30(1), the internal working documents exemption.
3. A document is exempt under s 30(1) if:
   • (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 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:[6]
   • (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. The text is exempt under s 30(1).
6. Concerning s 30(1)(a), disclosure of the sentence would disclose matter in the nature of opinion prepared by an officer for the purpose of the deliberative processes involved in the functions of the MFB.
7. Concerning s 30(1)(b), disclosure would be contrary to the public interest.
8. In Coulson v Freedom of Information Commissioner (Review and Regulation) [2016] VCAT 1521, I said 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.
9. It is also difficult to imagine a world where officers could not provide short comment to each other on their view on a situation related to their work without being concerned about the release of the email.
10. That said, the position could be different if the email contained some form of inappropriate content, such that releasing it would not be contrary the public interest. The comment in Document 17 is not inappropriate.

1. This is a 24 March 2016 email from an MFB officer to Ms McCrohan. The MFB officer makes a short comment about an attached email.
2. For the reasons concerning Document 17, the brief comment in the email from the MFB officer to Ms McCrohan is exempt under s 30(1).
3. The attached February 2016 email is from an MFB member which it appears widely sent within the MFB, including to MFB management, concerning a tragic event. The email broadcasted the author's blaming of MFB management for the tragedy.
4. If the attached email had been an exchange between two people or a limited number of people, it may well have been exempt under s 33(1) given the substance relates to personal affairs. In the context of being attached to the email to Ms McCrohan, it may well have been exempt under s 30(1).
5. However, the highly sensitive email was broadly distributed. It seems highly likely the email reached the UFU. If disclosed to the UFU, the UFU would no doubt use it responsibly, avoiding detriment of the victim, the email's author and another MFB officer named in the email. VCAT has not received objections under s 53A to release of the email.
6. These factors in favour of release outweigh those against such as a highly sensitive nature of the topic of the email, that it was written soon after the tragedy and perhaps the author in 2018 takes a different view, that the UFU is probably not focused on obtaining such a document, the email having being caught up in the scope of the FOI request and the lack of any public interest in disclosure.
7. If on understanding the above, the UFU continues to seek the attached email, it would be appropriate to release it with limited redactions concerning the identity of the email's author, the victim and a person named in the fourth paragraph. The identity of two members of MFB management would not be redacted.
8. However, because the substance of the email contains information related to personal affairs, under s 53A(3) of the FOI Act, VCAT would then direct the MFB to contact the author of the email and the executor of the estate of the victim (s 33(1) applying to personal affairs of deceased persons), giving them the opportunity to object to release similar to the opportunity to be given to the journalist discussed above.

1. This is another 24 March 2016 email from an MFB officer to Ms McCrohan, forwarding Document 24 and two related emails. In the forwarding email, the MFB officer makes no short comment.
2. It attaches a three-email chain, the earliest email being the attached email forming part of Document 24, a broadcast reply email from MFB management and a response to the MFB management email from another MFB officer.
3. Taking the same approach as with Document 24, if the UFU, understanding the above, continues to seek the email chain, it would be appropriate to release it with limited redactions concerning the identities of the email's author and the victim.
4. As with Document 24, the authors of the emails and the executor of the estate of the victim would be provided with the opportunity to object.

1. This is another 24 March 2016 email from an MFB officer to Ms McCrohan, exempting only a very brief comment attaching a broadly-distributed email exchange concerning recruitment standards for firefighters.
2. For the reasons concerning Document 17, the brief comment in the email from the MFB officer to Ms McCrohan is exempt under s 30(1).

1. This is an email chain, the most recent email dated 30 March 2016. Ms McCrohan is asked for and provides advice concerning drafts of substantial emails from the MFB's President and the MFB's Chief Executive Officer to MFB officers concerning the FSR and EBA negotiations. The bulk of the text is released. The MFB decided Document 38 is exempt in part under s 30(1) - concerning three passages of text - and s 33(1).
2. Concerning s 30(1)(a), the release of each of the passages 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 involved in the functions of the MFB.
3. The UFU's submission that Document 38, and other documents where the MFB claims exemption under s 30(1), cannot fall within the meaning of deliberative processes under s 30(1)(a), 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 MFB, is rejected.
4. The UFU contrasts what it described as key aspects of the MFB's statutory responsibilities under the Metropolitan Fire Brigade Act 1958. Section 2 says the MFB is established for the more effective control of the prevention and suppression of fires in metropolitan Melbourne.[7] Sections 7 and 7A describe the MFB's functions and duties, including to provide for fire suppression and prevention, emergency prevention, to contribute to a whole of sector approach to emergency management and promote a culture within the emergency management sector of community focus, interoperability and public value.
5. The UFU submits Ms Watson's evidence establishes the MFB was involved in strategies contrary to and/or 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 for a new enterprise bargaining agreement and either collaborating with the media or deciding not to defend the interests of firefighters when media reports denigrated them.[8]
6. First, the submission that Ms Watson's evidence establishes the above is rejected. This case is not a Royal Commission into the MFB. 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 MFB answer the allegations put against it. The MFB simply bears the onus of proof on the question of whether or not the documents before VCAT are exempt.
7. 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.
8. 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.
9. Concerning s 30(1)(b), disclosure of the redacted text would be contrary to the public interest. This text was created as part of the drafting process.
10. The release of email text where officers work together on a draft document, is of the same nature as releasing a draft document.
11. As Hampel J observed in Friends of Mallacoota, there is a long case law history 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.
12. 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. In this case the MFB cited authorities taking the same approach.[9]
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. Relevant to this case, media advisers are an accepted part of public life. This is so whether one considers their widespread use as positive - because such advisers assist with accurate messaging, or negative - taking the view they assist agencies to mislead and deceive, in part the allegations here, or somewhere in between.
4. The MFB's decision is affirmed.

1. There is no indication that one MFB officer (first initial D) would object to release. He has not advised VCAT that he objects. The text is not particularly sensitive, being a calm discussion of industrial relations issues. His name should not be redacted under s 33(1). 2. The other MFB officer (first initial R) has advised that he does not object to release. His name should not be redacted under s 33(1).

1. Neither should text concerning a female officer and a workplace issue be redacted. The officer is not identified. Her situation is discussed simply with respect to a broad industrial relations issue.
2. As discussed above, s 53(3) requires the MFB officer (first initial D) and the female officer to be advised of this decision and to be provided with the opportunity to object to release.

1. This is a 31 March 2016 email from a MFB officer to Ms McCrohan, attaching a draft document for comment.
2. On the basis of the above reasons concerning draft documents and related emails, the text redacted from the actual email and the attached draft document are exempt from release under s 30(1).

1. This is another 31 March 2016 email from a MFB officer to Ms McCrohan seeking a comment on a draft document.
2. On the basis of the above reasons concerning draft documents and related emails, the text redacted from the actual email and the attached draft document are exempt from release under s 30(1).

1. This is a short 31 March 2016 email chain involving Ms McCrohan and MFB officers, concerning a draft document.
2. On the basis of the above reasons concerning draft documents and related emails, the text redacted from the actual email and the attached draft document are exempt from release under s 30(1).

1. This is a 4 April 2016 email from a MFB officer to Ms McCrohan, with two attachments.
2. As described above, Ms Holley gave evidence that Documents 45, 57, 58, 59, 67, 68 and 69 relate to MFB internal communications about the industrial negotiation processes. She expects the MFB's position as discussed in those documents will be the subject of further negotiation between the MFB and the UFU. In Ms Holley's opinion, the MFB should be able to not disclose its position.
3. Concerning Document 45, the one page email itself is exempt under s 30(1). Its disclosure would disclose matter in the nature of opinion and/or advice prepared by an officer in the course of, or for the purpose of, the deliberative processes involved in the functions of the MFB. This is evident from the nature of the text in the context of Ms Holley's evidence.
4. I accept Ms Holley's evidence that the subject matter of the text is related to ongoing industrial relations negotiations and disclosure would place the MFB as a negotiating party at disadvantage. A person holding the position of Executive Director People and Culture in the MFB sufficiently credentialed to provide that evidence.
5. Therefore, disclosure of page 1 would be contrary to the public interest.
6. However, the same cannot be said for the attachments. They contain much numerical information which appears to be purely factual. Section 30(3) says section 30(1) does not apply by reason only of purely factual material contained in the document.
7. It is therefore necessary to turn to the exemption claimed under s 36(1)(b). The section says:

(b) in the case of documents of a department or prescribed authority its disclosure under this Act would be contrary to the public interest by reason that it would disclose instructions issued to, or provided for the use or guidance of, officers of an agency on the procedures to be followed or the criteria to be applied in negotiation, including financial, commercial and labour negotiation, in the execution of contracts, in the defence, prosecution and settlement of cases, and in similar activities relating to the financial property or personnel management and assessment interests of the Crown or of an agency.

1. In City Parking Pty Ltd v City of Melbourne (1996) 10 VAR 170 the Administrative Appeals Tribunal of Victoria considered s 36(2)(b) which applies to local councils. Section 36(1)(b), submitted applicable here, is an equivalent provision which applies to the MFB as a prescribed authority.
2. The Administrative Appeals Tribunal of Victoria said:

I was referred to no authorities with respect to the operation of this exemption. Accordingly, one can only be guided by the text of the paragraph itself.

In my view this exemption only protects instructions which lay down general practices and procedures. An instruction to one officer from another in relation to one particular matter would not be protected unless its disclosure would reveal some generalised system of procedures which have been followed in the particular case. ... (my emphasis)

1. The AAT went on to consider claimed exemptions concerning approximately 100 documents. Concerning a large number, the AAT viewed a submission the document in question was exempt under s 36(2)(b) as "misconceived". Concerning eight documents, it rejected the submission that s 36(2)(b) applied. The AAT took the view that an instruction was specific with regard to a specific series of transactions, and so lacked the "generality" required under s 36(1)(b).
2. In describing the general principle and in considering exemption of each of the documents, the AAT provided no explanation as to how it drew from the text the requirement for exemption that instructions lay down general practices and procedures.
3. In Dobbings v Shire of Murrindindi (1997) 11 VAR 227, after noting the democratic imperative on which FOI legislation is based, "an imperative of open and accountable government", the AAT agreed, without further explanation, with the City Parking interpretation.
4. The MFB submitted the AAT's interpretation of s 36(1)(b), in light of modern precepts of statutory interpretation, is wrong. The MFB submitted text of the provision leads to the conclusion that s 36(1)(b) applies to a document the disclosure of which would disclose instructions or guidance in relation to a particular transaction or contractual negotiation, as well as instructions that lay down general practices and procedures.
5. Having considered the text of s 36(1)(b), there appears no basis in the text itself to conclude the exemption does not extend to instructions with respect to a particular transaction, nor limit the exemption to only exempting instructions which lay down general practices and procedures.
6. This interpretation is supported by the principle that in interpreting legislation, unless the contrary intention appears in the legislation, words in the singular are presumed to include the plural and vice versa.[10]
7. As the MFB submitted, in Esso Australia Pty Ltd V Australian Workers Union [2017] HCA 54, the High Court observed:

The Court's ability to construe a statutory provision in a manner that departs from the natural and ordinary meaning of the terms of the provision in the context in which they appear is limited to construing the provision according to the meaning which, despite its terms, it is plain that Parliament intended it to have. It is not the Court's function to attempt to overcome unintended consequences of the intended operation of a provision by construing the provision as if it had a meaning that Parliament did not intend it to have. To do so would go beyond the judicial function of construing legislation according to established precepts of statutory construction and into the legislative realm of amending the Act by reference to what it may be supposed Parliament might have provided if it had considered the specific circumstances before the Court. ... (footnotes removed)

1. Taking that approach, s 36(1)(b) can be broken down, to say, concerning this case, that a document is an exempt document if, disclosure under the FOI Act would be contrary to the public interest by reason that:

1. it would disclose instruction/s issued to, or provided for 2. the use or guidance of, officer/s of the MFB; on

1. the procedure/s to be followed or the criteria (or criterion) to be applied in negotiation/s, including: 1. financial, commercial and labour negotiation/s; 2. in the execution of contract/s, 3. in the defence, prosecution and settlement of case/s, and 4. in similar activity/ies;

1. relating to the financial property or personnel management and assessment interests of the MFB.
2. Either considering the text as a whole, or broken into parts, there does not appear to be any limitation on the exemption as described in City Parking and Dobbings.
3. There also is no basis for the limitation when one considers the objectives of the FOI Act. The right to obtain documents (s 13), the FOI's object to extend as far as possible the right to access information (s 3) and administering the Act to provide the maximum amount of information (s 16) are subject to the Act's exemptions. The overlap between exemptions, such as between s 30(1) and s 36(2)(b) is not of itself a matter of concern, but rather one of the variety of overlaps in the operation of exemptions that regularly occur.
4. The following passage from Beach J's decision in Secretary to the Department of Justice v Western Suburbs Legal Service Inc [2009] VSC 68 at [20], provides useful guidance:

There can be no issue that the Court should strive to interpret the FOI Act "in a manner harmonious with its objectives, doing so to the fullest extent that the text allows". Similarly, "[a]n approach hostile to disclosure of information in documentary form" must be eschewed. However, the approach required to be taken in interpreting s 38 of the FOI Act does not permit the Court to disregard or take liberties with the text of the Act. To the contrary, whilst the Court should strive to interpret the FOI Act in a manner harmonious with its objectives, it should do so only to the fullest extent that the text actually allows. (footnote removed)

1. With the greatest of respect for two long-standing interpretations of s 36(1)(b), apparently not discussed in Tribunal decisions since then, I view the interpretation as incorrect.
2. I accept Ms Holley's evidence that Document 45 was one of the documents which formed part of internal communications as to the MFB's negotiating positions. Document 45 itself (one page email and the attachments) is strong evidence that its disclosure would be contrary to the public interest by reason that it would disclose instructions issued to, or provided for, the use or guidance of MFB officers concerning the criteria to be applied in labour negotiation relating to the financial and/or personnel management interests of the MFB.
3. Similar to the view taken above concerning s 30(1), it is contrary to the public interest to disclose information which it appears could undermine the MFB's industrial negotiations with the UFU.

1. These are emails attaching versions of a draft media release sent between an MFB officer and Ms McCrohan. The emails contain no discussion concerning the evolving versions of the draft.
2. On the basis of the above reasons concerning draft documents and related emails, the text redacted from the actual email and the attached draft document are exempt from release under s 30(1).

1. This 4 August 2016 email from an MFB officer to Ms McCrohan with a draft document attached (the draft nature of the document is evident from its lack of layout) is one of the documents where Ms Holley has given evidence its contents relate to ongoing industrial relations negotiations.
2. The email, without comment, provides a document to Ms McCrohan.
3. Document 57 is exempt under s 30(1).
4. It is evident from the nature of the text of the attached paper, in the context of Ms Holley's evidence, that disclosure of the attached paper would disclose matter in the nature of opinion and/or advice prepared by an MFB officer in the course of, or for the purpose of, the deliberative processes involved in the functions of the MFB.
5. I accept Ms Holley's evidence that the subject matter of the text is related to ongoing industrial relations negotiations and disclosure would place the MFB as a negotiating party at disadvantage.
6. Therefore, disclosure of the paper would be contrary to the public interest given its draft nature and the disadvantage which its disclosure would cause to the MFB.
7. Applying the approach taken above concerning Document 45, the document is also exempt under s 36(1)(b).

1. These 4 August 2016 emails (each email contains no message from the sender to the receiver) from an MFB officer to Ms McCrohan and her reply both attached draft material.
2. On the basis of the above reasons concerning draft documents this draft material is exempt from release under s 30(1).
3. Applying the approach taken above concerning Document 45, the document is also exempt under s 36(1)(b).

1. This is a short email chain, the most recent email dated 1 May 2016, involving MFB officers and Ms McCrohan concerning a draft document.
2. On the basis of the above reasons concerning draft documents and related emails, the text redacted from the actual email and the attached draft document are exempt from release under s 30(1).

1. This is a 29 November 2016 email from an MFB officer to Ms McCrohan seeking comment on a draft document.
2. On the basis of the above reasons concerning draft documents and related emails, the text redacted from the actual email and the attached draft document are exempt from release under s 30(1).
3. Applying the approach taken above concerning Document 45, the document is also exempt under s 36(1)(b).

1. This is a 30 November 2016 email from an MFB officer to Ms McCrohan seeking comment on a draft document.
2. On the basis of the above reasons concerning draft documents and related emails, the document is exempt from release under s 30(1).
3. Applying the approach taken above concerning Document 45, the document is also exempt under s 36(1)(b).

1. This is a 1 December 2016 email from an MFB officer to Ms McCrohan seeking comment on a draft document.
2. On the basis of the above reasons concerning draft documents and related emails, the document is exempt from release under s 30(1).
3. Applying the approach taken above concerning Document 45, the document is also exempt under s 36(1)(b).

1. This a 1 December 2016 reply from Ms McCrohan to the MFB officer concerning Document 69.
2. On the basis of the above reasons concerning draft documents and related emails, the document is exempt from release under s 30(1).

1. This is a 10 January 2017 email from an MFB officer to Ms McCrohan seeking comment on a draft document.
2. On the basis of the above reasons concerning draft documents and related emails, the document is exempt from release under s 30(1).

1. This is the 10 January 2017 reply from Ms McCrohan to the MFB officer concerning Document 73.
2. On the basis of the above reasons concerning draft documents and related emails, the document is exempt from release under s 30(1).

1. The UFU sought to invoke the public interest override under s 50(4) of the Act to release the documents not found to be exempt under s 30(1) and 36(1)(b).
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 MFB and/or individuals employed or engaged by it have at relevant times complied with their statutory obligations; 2. Given the MFB's statutory functions, duties and obligations, it is not within the statutory jurisdiction of the MFB 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 MFB's employees belong;

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

1. The MFB'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 MFB 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 MFB submitted that the UFU had done no more in this case 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 MFB operating effectively and efficiently to safeguard Victoria from fire.
2. Turning to the operation of s 50(4), 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.' In Gill v Department of Industry, Technology and Resources (1985) 1 VAR 197, the AAT's President said:

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 MFB. 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 MFB, and to the CFA.
3. However, the public interest override issue in this case is whether the public interest requires that access be granted to documents decided to be exempt documents under s 30(1) and s 36, 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 case, the MFB has obtained substantial documents, including the majority of 75 documents identified as relevant to this case. The UFU may pursue whatever interests it wishes, possessing those documents.
5. What remains redacted is a collection of documents redacting the names of non-executive staff, draft documents where final versions have been provided to the UFU, discussion along the way in drafting processes, documents relevant to industrial relations and negotiations, short comment in email, and documents concerning options never adopted.
6. There is no basis to conclude that the public interest requires access to these documents in furtherance of the public interest in the MFB operating effectively and efficiently to safeguard Victoria from fire or in the proper public administration related to MFB operations.

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

[3] Ms Watson's witness statement, paragraph 32.

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

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

[7] More accurately referred to as the "Metropolitan Fire District" established under section 4 of the Act.

[8] UFU written submissions, paragraph 30.

[9] Including 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].

[10] See Interpretation of Legislation Act 1984 (Vic) and discussion of the principle [from 6.39] in Statutory Interpretation in Australia, 8th Ed, D.C. Pearce and R.S. Geddes. Lexis Nexis Butterworths.