Wells v DOP&C [2001] VCAT 1800

Victorian Civil and Administrative Tribunal|2001-09-04

Medium Neutral Citation [2001] VCAT 1800

1. The decision of the respondent made on 18 September 2000 refusing the applicant's request for access to documents 2 and 4 is affirmed.

2. The decision of the respondent made on 18 September 2000 refusing the applicant's request for access to handwritten annotations on document 3 is set aside and it is ordered that those handwritten annotations be released.

For the Applicant: Mr Cameron of counsel instructed by the applicant

For the Respondent: Mr K Bell QC and Mr C Smale of counsel instructed by

1. By application for review filed with the Tribunal on 16 November 2000, the applicant sought to review a decision of the respondent made on 18 September 2000 refusing his request for access to three documents pursuant to the Freedom of Information Act 1982 ("the Act").

2. The Australian Football League ("AFL") owns AFL Park ("Waverley") in Waverley. It is no longer used for AFL football games and in August 2000 it was placed on the Victorian Heritage Register. An advertisement for the sale of Waverley was inserted in The AGE newspaper of 27 April 2001.

3. The applicant is the Member for Wantirna and currently the Shadow Minister for Police and Emergency Services. On 26 June 2000, he made application under the Act for access to "all documents, including memoranda, file notes, diary notes or other records, relating to correspondence or meetings between The Hon. Steve Bracks MP, Premier of Victoria, the Premier's staff or authorized departmental officers and the AFL, including the AFL's Chief Executive Officer, Mr Wayne Jackson and any other AFL officer, AFL staff member or delegated authorized person/s, with regards to Waverley Park since October 20 1999".

4. On 11 August 2000, the senior freedom of information officer of the respondent wrote to the applicant advising that four documents relevant to his request had been identified. One of the documents (Document 1) was released in full and exemption was claimed for the remaining three documents. The applicant sought an internal review of the decision.

5. On 18 September 2000, Mr Tony Walsh, Principal Legal Adviser of the respondent, wrote to the applicant affirming the decision to refuse access to the documents on the basis that they were exempt. As indicated earlier, on 16 November 2000, the applicant sought a review of that decision by this Tribunal.

6. During the course of the proceedings before me, the respondent agreed to release to the applicant some factual material contained in the documents.

7. Document 2 is headed "The Cabinet Office". Its purpose is stated as being to provide the Premier "with information regarding Heritage Victoria's decision to propose AFL Park for listing on the Victorian Heritage Register ahead of your meeting with the AFL on April 17". It is from Mr Robert Atkinson, Policy Adviser, Resources and Infrastructure, Department of Premier and Cabinet ("DPC"), and Mr Kevin Love, Assistant Secretary, Resources and Infrastructure, DPC, dated 7 April 2000. The words "Noted - Steve Bracks 19/4/00" are handwritten at the foot of the document. Paragraph 5 of the document does not appear to fall within the applicant's request.

8. Document 3 is an unsigned copy of Document 4 with handwritten notes made by Mr Love beside paragraphs 9 and 10.

9. Document 4 is headed "The Cabinet Office". Its purpose is stated as being to brief the Premier "for your meeting with Mr Wayne Jackson (AFL chief executive) and Mr Ron Evans (AFL Commission Chief Executive) at 3.30 p.m. on 10 May 2000". Again, it is from Mr Atkinson and Mr Love and has the handwritten words "Noted - Steve Bracks 11/5/00" at the foot of the document. Only paragraphs 8, 9, 10 and 11 appear to fall within the applicant's request.

10. A written statement dated 19 March 2001 by the applicant was tendered in evidence. He stated that Waverley was located within his electorate and he represented many AFL fans residing within his and surrounding electorates. In the lead-up to the 1999 Victorian election, the Australian Labour Party made a written election promise to keep and improve Waverley as an AFL venue and in the first week of a Bracks Labor Government call in the AFL, clubs and local community to negotiate a means of achieving this purpose. The applicant said that following the election of the new government in 1999, government Ministers had maintained their position that Waverley would be retained as an AFL venue. However, the Government appeared to have had a change of heart. As far as he was aware, the new Government did not call in ALF clubs and local councils to negotiate a means of keeping AFL Park open for AFL games and there was no announcement made about the outcome of negotiations concerning the retention of Waverley as an AFL venue. In late August 2000, the Premier Mr Bracks stated on the occasion of the last AFL game at Waverley that clearly the last AFL game had been played at Waverley. Further, the Minister for Sport, the Hon J Madden, stated on 9 May 2000 that he had asked the Urban Land Corporation to look at potential creative solutions for the site.

11. The applicant said the fact that AFL games or football games had not been restored to Waverley placed greater public interest importance on what actions had been undertaken by the Bracks Government to honour its election promise. He had been contacted by numerous constituents and interested persons expressing concern about the inaction and he had raised the issue of Waverley's future in Parliament on a regular basis. He said that transparency of executive decision-making in the process of that decision making could only be served by full disclosure of all relevant documents concerning Waverley. The present Attorney-General had expressed this view a number of times since coming to office and most recently in Parliament on 22 November 2000.

12. The applicant said the disputed documents went to the heart of whether the Bracks Labour Government had kept its written election promises to "fight to keep and improve Waverley as an AFL venue" and "in the first week of a Bracks Labour Government to call in the AFL, clubs and local councils to negotiate a means of keeping AFL Park open for AFL games". He said the Bracks Government won office promising an open and transparent government. The withheld documents would provide the only way the public had to ascertain whether this important election policy had been honoured. AFL games had not returned to Waverley Park and the respondent's refusal to release documents indicated that the Government clearly had something to hide on the issue and that it was breaching its own code of conduct in not being an open and transparent government. He said the Victorian public had a right to know why the Government had broken a key election promise.

13. A bundle of letters and articles, a video tape and extracts from Hansard concerning Waverley were tendered in evidence on behalf of the applicant.

14. Mr Ian Killey, Director, legal within the respondent department, and solicitor to the respondent, gave evidence on behalf of the respondent and his written statement dated 30 March 2001 was tendered in evidence. His evidence can be summarized as follows.

15. The policy branches of the respondent are collectively known as the Cabinet Office. Written advices to the Premier from the Cabinet Office are referred to within Government as "blues" because of the colour of the paper they are printed on so as to readily distinguish them as confidential advices to the Premier. The vast majority of blues are "policy blues", that is, they provide policy advice, usually on sensitive issues. Only a small number of blues do not include policy advice, but merely present factual information. Documents 2, 3 and 4 are policy blues or copies of policy blues. Blues are prepared for the use of the Premier in the express belief that they are not to be subject to public scrutiny, unless the Premier considers it appropriate to so subject them. They are not provided to other Ministers or Departments without the approval of the Premier or the Secretary. Accordingly, they are written in a direct, candid and, at times, blunt style so as to allow the message to be conveyed in a clear and concise manner as shortly as possible bearing in mind the authors' appreciation of the Premier's familiarity with the facts and issues involved. In cases where the Premier is believed to be "up to speed", the advice can be quite terse and therefore open to misinterpretation by those who do not share the Premier's perceived knowledge base.

16. Mr Killey said that the Premier does not always adopt the advice of the Cabinet Office. The objective being pursued through the provision of blues is to ensure that the Premier is aware of the analysis of the Cabinet Office in reaching his decision. The authors of the policy blues are fully alive to the fact that they are not always cognisant of all of the information or other advice available to the Premier. At all times they are aware that even within the structure of the Government there will often be views held and expressed by officers and Departments which are contrary to their own.

17. Mr Killey said that the matters referred to above both underpin and reflect the long standing practice in Westminster democracies of seeking to ensure that internal advice to Ministers is confidential and to reinforce the principle that it is for the Minister to take responsibility for his or her decisions and to explain the reasons for them. This long standing practice is recognised in the convention which operates in this State and in other jurisdictions that advices to former governments are not available to current governments. He referred to several authorities including "Constitutional Conventions" by Geoffrey Marshall, Clarendon Press 1984 and a paper by Lord Hunt, "Access to a previous Government's papers" (1982) Public Law 514.

18. Mr Killey said policy blues often contain information provided by persons who have been in contact with the Department. That information is generally provided on a confidential basis solely for the purpose of it being conveyed to the Premier. Much of the information in policy blues about the thinking and proposals of persons external to the Government is provided in the course of conversations between such persons and officials during which wide ranging options are discussed and the participants feel free to "think aloud". There is a strong likelihood that, if the participants in such conversations with government believed that officers' accounts of their tentative views and their "off the record" comments were to be publicly disclosed, they would not participate in such frank discussions in future.

19. Mr Killey said that the release of policy blues and similar documents is likely to have a negative impact on the provision of full and candid advice. Subjecting policy blues and similar documents to public scrutiny has the potential to cause Ministerial embarrassment by disclosing instances when the advice of the Cabinet Office was not adopted. Such calls distract from the real issue of concern to the public which centres on whether the decisions made were correct in the circumstances. The fact that the author of a policy blue gave particular advice is not relevant to those issues. He said that from his experience in working with two Governments, if access is to be given to documents such as policy blues it is likely that, to avoid such unjustified embarrassment :

(a) Ministers will not seek such candid advice from Departments;

(b) the public service staff will temper their advice so that it is not, or is less, candid; and/or

He said the release of policy blues and similar documents has the potential to undermine and impede the function of the public service in providing impartial advice to governments. This is not in the public interest and is likely over time to cause a diminution of Ministerial responsibility for decision making. This is because the release of policy blues carries with it the risk that an expectation will arise that Ministers should act in accordance with public service advice or else be criticised for not acting in accordance with that advice. Such an expectation would inevitably cause Ministers to feel constrained in making decisions which depart from the recommendations of their public service advisers. The release of policy blues, therefore, has the potential of transferring part of the "ownership", but not the accountability or responsibility, for the eventual decision to the public service advisers. It has the potential, therefore, of inflating the importance and significance of public service advice well beyond that which is appropriate and of constraining Ministerial freedom to reach conclusions contrary to that advice. This is not considered to be consistent with Ministerial responsibility and accountability or in the public interest.

20. Mr Killey said that public service advisers have two primary duties which necessarily exist in a state of tension with each other. They are firstly, the duty to advise and inform Ministers during the policy formation and decision making processes and secondly, to faithfully and loyally implement the policies arrived at and carry out the decisions made by Government. Under ordinary circumstances public service advisers should refrain from critically reflecting on Government decisions in public. However, the present system of confidential briefings and advices, such as the policy blues, allow public service advisers to offer advice that may be inconsistent with a statement made, or decision announced publicly by, a Minister. The reader of such an advice may take the view that the inconsistency constitutes an implied criticism of the statement or decision. This highlights in an extreme form the tension that can arise between the two primary duties of public service advisers. If policy blues and similar documents are to be released, it is unlikely that policy blues containing such inconsistent advice will be prepared. This is because, public service advisers will consider that, if policy blues containing advice which may be perceived as implied criticism are likely to be made public, the advisers may, in effect, be seen as contributing to the public criticism of an announced government statement or decision. This is not an appropriate role for public service advisers. Indeed, if such a criticism was directly made by the adviser in a public forum, it would be a breach of the Code of Conduct issued by the Commissioner of Public Employment. To allow policy blues to be used for the public criticism of government positions is not considered to be in the public interest. The release of policy blues and similar documents provides little, if any, material which is in the "public interest" and will be potentially misleading as to the programs and intentions of the Government. It will not provide the Minister's rationale for any particular action. All it will provide is public service analysis and advice which will not necessarily reflect the view of the Minister, even when the Minister adopts the course proposed by in the policy blue. This is not considered to be in the public interest.

21. He said the release of policy blues and similar documents will impact on other practices as it will affect the logic underpinning those practices. For example, the logic underpinning the convention regarding the access to previous government papers seems likely to be undermined. There would seem no basis for continuing to prevent the current Government from seeing the papers of previous Governments, if the current Opposition is able to have access to the policy blues of the current Government. Similarly, there would seem to be no basis for maintaining a system that the current Opposition can have access to the papers of the current Government when the issues are current and then, should the Opposition become the Government, placing greater restrictions on their access to the former Government's documents at that time. This change to the constitutional arrangements between the Government and the Opposition, in a piecemeal ad hoc way, is not considered to be in the public interest. The release of policy blues could also have the effect of causing outside persons and bodies to be less forthcoming about options and possibilities in their discussions with the authors of policy blues for the Premier. Such matters would be more likely to be raised for the first time in face to face meetings with the Premier at which only decided outcomes were minuted. It would not be in the public interest for the Premier to have to conduct a meeting with such persons and bodies without the advantage of considered briefings by the Cabinet Office on tentative proposals and wide ranging options which may be raised at the meetings.

22. Exemption is claimed for the documents pursuant to s.30(1) and 35(1)(b) of the Act .

23. Section 30(1) of the Freedom of Information Act 1982 provides as follows :

"(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act -

(a) would disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers, or an officer and a Minister, in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government; and

(3) This section does not apply to a document by reason only of purely factual material contained in the document".

24. In Re Mildenhall v Department of Education (1998) 14 VAR 87 at p.4 Deputy President Macnamara made the following observations :

"It will be seen that the exemption requires two things to be established. First, that the document meets the requirements of sub-paragraph (a) (sometimes described briefly though not entirely accurately as requiring that the document be `internal working document') and secondly, that its release would be contrary to the public interest. Merely to establish the requirements of sub-paragraph (a) does not without more prove that release would be contrary to the public interest.

To qualify for the exemption the `matter in the nature of opinion, advice or recommendation' must have been prepared by an officer for the purposes of or in the course of `the deliberative processes' of the relevant agency or be in the nature of `consultation or deliberation'.

What are the `deliberative processes' of the Department? The formulation by the Commonwealth Tribunal in Waterford v Department of the Treasury (No 2) [1984] AATA 67; (1984) 5 ALD 588, 606 has been approved over and over again and in particular by Mr Galvin, Deputy President in Brog v Department of the Premier and Cabinet (1989) 3 VAR 201, 208 :

`[Deliberative processes] is wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency ... in short ... its thinking processes - the processes of reflection, for example, upon the wisdom and experience of a proposal, a particular decision or a course of action'.

It is important to note that it is not necessary the document for which exemption is sought itself must be in the nature of opinion, advice or recommendation, rather, it is required that release of the document would `disclose matter of that nature'.

What then is required to satisfy the `public interest' criterion laid down in the second limb of the exemption? The most widely quoted synthesis on this subject is a formulation by a Commonwealth Administrative Appeals Tribunal presided over by Davies J in Howard v The Treasurer of the Commonwealth (1985) 3 ALR 169, 178. The formulation is as follows :

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

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

3. Disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest.

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

5. 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'.

In Murtagh v Federal Commissioner of Taxation [1984] AATA 249; (1984) 54 ALR 313, 326 Davies J. expressed some reservations about the argument as to public interest based upon `candour and frankness', saying that it `has been largely limited to high level decision making and to policy making'. In Howard's case the Commonwealth Tribunal continued on the same page as already quoted :

`The Tribunal has not yet received evidence that disclosure under the FOI Act has in fact led to a diminishment in appropriate candour and frankness between officers'.

I myself made so bold as to express scepticism at the `candour and frankness' argument as constituting a public interest against release of internal working documents. Marple v Department of Agriculture (1995) 9 VAR 29, 48-9. Accordingly the third paragraph of the formulation in Howard's case should be treated with some caution. Nevertheless, paragraphs 4 and 5 of the formulation do not seem to have attracted the same critical attention as paragraph 3".

"It follows that, to obtain exemption, the appellants must prove that the disclosure of the reports would be `contrary to public interest' within the meaning of s30(1)(b).

As was pointed out in argument there is always difficulty in identifying what is public interest in a particular situation. In the present context I consider that there are only two aspects of public interest which fall to be considered. One is the public interest in persons having access to documents, including confidential documents which concern them but which are the hands of an agency. The second is the public interest in the efficient and economical conduct of a government agency. In relation to the issue raised under s 30(1)(v) (sic) I consider that the appellants must prove disclosure would be contrary to public interest after balancing of the two considerations I have mentioned".

26. In DPP (Vic) v Smith [1991] VicRp 6; [1991] 1 VR 63 at 75 a decision of the Full Court of the Supreme Court of Victoria, the Court stated at p.75 :

"The public interest is a term embracing matters, among others, of the 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 ... Sinclair v Mining Warden at Maryborough (1975) 1 32 CLR 473 at p.480 per Barwick CJ".

27. In Re Hulls and Victorian Casino and Gaming Authority (1997) 12 VAR 483 at 488, Judge Fagan summarized the kinds of factors to be taken into account in the assessment of public interest. His Honour said they included such matters as :

"* the right of every person to obtain access to documents as provided by s 13 of the Freedom of Information Act

* the degree of sensitivity of the issues involved in the consideration

* the stage of the policy development process at which the communication was made

* whether the disclosure would be likely to inhibit frankness and candour in the making of communications

* whether disclosure would lead to confusion or unnecessary debate having regard to possibilities discussed

* disclosure of documents which give merely a part explanation rather than complete explanation for the taking of a particular decision (See Re Howard and Treasurer (Cth [1985] AATA 100; (1985) 3 AAR 169 per Davies J and Re Tanner and Department of Industry, Technology and Resources (1987) 2 VAR 65 per Judge Rowlands).

* the likelihood that disclosure of the documents would inhibit the independence of officers or the making of proper and detailed research and submissions by them

* the likelihood that disclosure would create mischief in one way or another such as a risk of mischievous interpretation (See Re Western Mining Corp v Department of Conservation, Forests and Lands (1983) 3 VAR 150)

* the significance of the document eg whether it is or is not merely a draft document (See Re Brogg and Department of Premier and Cabinet_, above, and the_ Western Mining Corp case, above)".

28. Senior counsel for the applicant, Mr Bell QC, relied on a number of legal authorities in support of the respondent's claim under s.30 including Murtagh, Howard, Hulls and Ryder v Booth. Mr Bell also referred to a decision of Deputy President Galvin in Pescott v Department of Conservation and Environment (1991) 5 VAR 54. At p.65 Mr Galvin stated :

"It remains to consider whether the release of the information would be contrary to the public interest. The purpose of the exemption is to protect the deliberative processes of Government and to preserve confidentiality so as to enable full and frank exchange of opinion : Penhalluriack v Department of Labour & Industry (County Ct, 19 December 1983, pp 29, 33 unreported) and Re Coleman and Director-General, Local Government Department, Pentland (1985) 1 VAR 9 at 11. The respondent maintains that the release of the information would be against the public interest: first because the contents of the paragraph do not necessarily reflect the true opinion of the respondent nor the final decision made by it in the matter thereby having a potential to mislead the public and, secondly, because release would constitute a threat to the free flow of information among officers.

The evidence is that paragraph 20 contains information involving unresolved scientific controversy. Mr Stewart expressed concern that the release of paragraph 20 `could cause confusion and unnecessary debate in the community'. He also gave evidence that the release of paragraph 20 would inhibit frankness and candour in future communications between officers.

The respondent relies upon Re Western Mining Corporation and Department of Conservation, Forests and Lands (1989) 3 VAR 150. In that case the Tribunal said (at 160) :

`We accept that draft documents calculated to contribute to or lead to a final determination are generally inappropriate for publication: see Re Borthwick and Health Commission of Victoria (1985) 1 VAR 25 at 31; Re Birrell and Department of the Premier and Cabinet (No 1) (1986) 1 VAR 230 at 241 and Re Pescott and Auditor-General of Victoria_'._

Notwithstanding a degree of speculation in Mr Stewart's evidence as to the likely consequences of the release of paragraph 20, I am conscious of the close parallel to be drawn between preliminary advice and opinion of the kind to that held by this Tribunal to be exempt in other cases where a final determination has ultimately been made. (In that regard I refer to the Western Mining case and other cases cited therein (above)).

The general position taken by the Tribunal in such cases has been that, in the absence of some greater public interest militating for the contrary position, such preliminary advices and opinions are inappropriate for release. No such greater public interest is apparent in this case""

"(1) A document is an exempt document if its disclosure under this Act would divulge any information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister, and -

(c) the disclosure of the information under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future".

30. King J observed in Ryder v Booth [1985] VicRp 86; [1985] VR 869 at 883 that whether information is communicated in confidence is a question of fact and it is not necessary to consider whether legal obligations of confidence are set up by the communications in question. Gray J observed in the same case at 878 :

"It is necessary to look at the terms of the document, the nature of the information, the purpose for which and the circumstances in which it was provided, in determining its confidentiality".

"First, it is clear that under the paragraph we are not concerned with the public interest except in the limited sense described in the paragraph, that is to say, that the disclosure would be reasonably likely to impair the ability of the State Superannuation Board to obtain similar information in the future. The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the Board to obtain similar information in the future. Put in terms of the present appeals this means that the question is, would the disclosure of the information damage the ability of the Board to obtain frank medical opinions in the future. It may be noted that it is the ability of the Board that it must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. There may well be feelings of resentment amongst those who have given information `in confidence' at having the confidence arbitrarily destroyed by the operation of the legislation, but it is another thing altogether to say that they or others will not provide such information in future. It is not sufficient to show that some people may be inhibited from reporting so frankly if they know that their report may be disclosed. More is required to satisfy the onus cast upon the agency by section 55(2) of the Act".

31. The public interest grounds of the respondent can be summarized as follows :

1. It is contrary to the public interest to release policy blues because of the nature of such documents.

2. By convention policy blues are generally not available for the examination by successive governments of a different political party. The important positive public interest features in the convention include that authors of the briefs are free to give candid and independent advice to the incoming Premier free of any possibility of criticism arising out of decisions previously adopted and free of any risk of criticism by the later incoming Premier and the incoming Premier can be confident that the advice given will not be available to his opposition successors and therefore he is more likely to expect the advice to be robust and independent. Release of the documents would undermine these features of the convention.

3. The documents were written by high level officers and concern sensitive issues of policy.

4. The documents contain information and views provided by persons from outside the Government for consideration by the Premier. If the material is released such persons could not be confident they can provide information or views in a robust or candid way which would have the effect of impairing the capacity of the Premier to obtain information and views of the same quality in the future.

5. The material contains advice and information given in the context of the consideration by the Premier of an ongoing policy issue. Release of the material would be confusing and cause unnecessary debate concerning the views of the Premier's advisers, and mischief and misinterpretation could result.

6. Release of the material may undermine and impair the system of ministerial responsibility and accountability.

7. Advisers in the Cabinet office are free to be critical of government policy or decision making. Release of such material would reveal any such criticism and would place advisers in public conflict with the Premier and could impair their relationship with him. This could result in the advisers not feeling as free to be critical of government policy or decision making in the future.

8. There is a general public interest in protecting the integrity of the government's deliberative and policy formulation processes and ensuring that advice regarding policy and development can be expressed without inhibition and in a frank and candid manner.

32. The applicant, in his statement of heads of public interest grounds argued that at issue were the actions undertaken by the Bracks Government to honour its 1999 election promise to "fight to keep and improve Waverley (Park) as an AFL venue". He raised a number of questions which he said required to be answered, including the Government's proposal for the development of Waverley, whether there has been a change of policy, the powers possessed by the Government to ensure that Waverley is retained as a venue for any AFL games, the outcome of meetings between AFL clubs and local councils to ensure that Waverley be retained as an AFL venue, the failure to inform the Victorian football public about the future of Waverley, the nature of advice it had received about Waverley and the refusal for the Government to release documents detailing its actions in relation to Waverley. He argued that the withheld documents would provide the only way members of the public have to determine exactly what the Bracks Government had or had not done to honour a critically important promise.

33. I am satisfied that the documents were prepared by an officer of the Victorian public service and as such fall within s.30(1)(a). It was undisputed that the respondent is an agency within the meaning of the section.

34. I am further satisfied that the disputed material falls within s.30(1)(a) in that it contains matter in the nature of opinion, advice or recommendation prepared by an officer and that such matter was made in the course of or for the purposes of the deliberative processes involved in the functions of an agency.

35. The documents also contain information from persons outside the agency upon which the advice and recommendation was given, and some factual material. However, I accept Mr Bell's submission that the information and factual material is so intertwined with the advice and recommendation that it would be hard to separate them to produce an expurgated document of any meaning (see Re Kosky and Department of Human Services (1998) 13 VAR 420 at 424.)

36. I am satisfied from the evidence of Mr Killey and from my examination of the documents in dispute as to the following matters :

(a) The documents are policy blues and the withheld information is in the nature of high level policy advice on a sensitive issue from senior departmental officers to the Premier via the head of the Cabinet office and secretary to the Department.

(b) The material was prepared on a confidential basis for the Premier.

(c) The advice is in the nature of preliminary advice and opinion and does not reveal the final determination of the Government or the reasons for its determination.

(d) Disclosure of material such as this is likely to inhibit frankness and candour by agency officers in the making of such communications.

(e) A convention exists that policy blues are considered to be advice for the personal attention of the Premier and they are not generally available for the examination by successive governments of a different political party. There are public interest considerations in abiding by the terms of that convention which may be undermined if the material is released.

37. I accept that the public interest is not to be limited by the prescription of a class of documents the disclosure of which would be contrary to the public interest. As the Tribunal observed in Re Murtagh (p.121) "(T)he public interest is not to be circumscribed". However, in weighing up the competing public interest considerations in this case I have formed the view that the public interest factors in the efficient functioning of government to which I have referred in my findings far outweigh the public interest in the public's right to have access to the material. In my view, the observations of Judge Wood in Re Bracks and Department of Premier and Cabinet 15 VAR 83 at 89 are apposite. His Honour stated :

"I am conscious of decisions of this Tribunal and of the Administrative Appeals Tribunal of Victoria in which consideration is given to the often expressed view of public servants that disclosure of their opinions and advice as part of the deliberative process would be detrimental to the public interest, because it would discourage them from frankness and candour. This was described as `problematic' in Marple's case and doubted in Re Bracks and the Department of State Development (unreported, AAT of Vic, 10 December 1996) and indeed by the Full Court of the Supreme Court of Victoria in Ryder v Booth [1985] VicRp 86; [1985] VR 869 at 882. In short, it has been suggested that this consideration has been overworked. Contrary views have been expressed in Re Wagen and Community Services Victoria (unreported, Judge Smith, AAT of Vic, 21 November 1991) and Re Tanner and Department of Industry, Technology and Resources (1987) 2 VAR 65 in which the Administrative Appeals Tribunal approved of the statement of the Commonwealth Administrative Appeals Tribunal in Re Howard and Treasurer of the Commonwealth [1985] AATA 100; (1985) 3 AAR 169. In my view, the last case is significant because the consideration it raises is apposite to those in this instance. The committee and Mr McConville are senior advisers to the government who were providing advice upon a matter which was in all likelihood to become highly contentious. In addition, Mr McConville's evidence was that he relied upon confidentiality in expressing his view. Finally, although doubts may be expressed as to the vice inflicted upon the community as a consequence of preliminary or tentative opinion which was not reflect in a decision, it is nevertheless a consideration I take into account".

38. I accept the submission for the applicant that there is a public interest in knowing the decision reached by the Government in relation to Waverley and the reasons for its decision. However, release of the material will not provide that information or any satisfactory answers to the questions raised by the applicant in his statement of public interest grounds. In particular release will not enable the public to determine what the Government has or has not done to honour an election promise.

39. I make the following observations in relation to the submission made by Mr Cameron, counsel for the applicant, as to the need for the Government to operate in an accountable and transparent manner. Deputy President Macnamara observed in dealing with a somewhat similar submission in Bill Birnbauer and Julie Anne Davey v Inner and Eastern HealthCare Network (unreported 1998/082805 24 August 1999 at p.23), that if such a submission was accepted, "the whole of the rest of the Freedom of Information Act including all the exemptions except those specifically excluded from the operation of s.50(4), namely the Cabinet exemptions and the personal affairs exemptions would become irrelevant. The Freedom of Information Act as a whole represents an attempt to balance competing policies. A primary commitment to disclosure of information generated by public agencies tempered by a right to retain certain (exempt) material controversial with the ultimate gloss of an ability vested in this Tribunal to override most of the exemptions in the public interest".

40. Further, as Phillips JA observed in Hulls case at p.381 :

"Now, while there may well be a public interest in the disclosure of documents held by Ministers and agencies (as was recognised by Mason CJ in Esso Australia Resources at 31-32), it is the FOI Act which is Parliament's express declaration of the extent to which such disclosure is in the public interest. The Act contains exceptions, exemptions and discretions, and each is entitled to full weight. Section 50(4) contains `an override' in specific terms and, as already mentioned, that sub-section cannot be construed as authorising the Tribunal to grant access to a document which is otherwise exempt merely if the Tribunal is of opinion that it is in the public interest that the document be released".

41. There was little direct evidence concerning the handwritten annotations in Document 2. Although an unsigned statement by Mr Love was filed by the respondent, it was not relied upon and Mr Love was not called to give evidence. It appears from the final submissions made by Mr Bell that Mr Love made the annotations during the course of the meeting on 10 May 2000 between the Premier, Mr Jackson and Mr Evans. My examination of the material suggests that it records, in abbreviated form, statements made or advice given by Mr Jackson and Mr Evans during the course of the meeting. As such, the material records either factual assertions or statements of opinion made by an outside person and it does not fall within s.30(1)(a). (see Ryder v Booth [1985] VicRp 86; [1985] VR 869 per Gray J. 877). Accordingly, the material is not exempt under s.30.

42. In relation to s.35(1)(b) I accept Mr Killey's evidence that policy blues often contain information that has been provided in confidence by people outside the agency. Whilst there was no direct evidence as to the basis upon which information was provided by Mr Jackson and Mr Evans at the meeting on 10 May 2000, I am prepared to accept that the information was provided in confidence.

43. I have had regard to Mr Killey's evidence that release of policy blues containing information from outside persons is likely to have a negative impact on the provision of full and candid advice from those persons. In the end however, each case turns on its own facts. In the present case I am not satisfied that disclosure of the material in question would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of the respondent or the Premier to obtain similar information in the future. No evidence was called from Mr Jackson or Mr Evans as to any concerns they might have regarding release of the material. It is not apparent from perusing the material that it is of a particularly sensitive nature. Even if release of the material had the effect of making the provision of the information more guarded, and this has not been established in the present case, this would be insufficient to establish exemption in the light of the observations of the Chief Justice in Ryder v Booth earlier referred to.

44. The material does not fall within s.35(1)(b) and accordingly it is not exempt.

45. Pursuant to s.50(4) of the FOI Act the Tribunal has the power to decide that access should be granted to an exempt document where it is of the opinion that the public interest requires that access to the document should be granted under the Act.

46. The Court of Appeal in Department of Premier and Cabinet v Robert Hulls [1999] VSCA 117 considered the operation of the public interest override constituted by s.50(4). Phillips JA concluded that the public interest override was invoked only in a case of imperative necessity. The word "requires" in the sub-section means "demands" or "necessitates" (see p.372-3). Further, the establishment of an exemption with respect to a document created a presumption against release under the public interest override (see p.381).

47. Having determined that the material is exempt under s.30 it is difficult to see how the Tribunal could order the release of a document found to be exempt under s.30 on the basis that the public interest required it. Deputy President Macnamara in Re Mildenhall indicated that there may be grounds for consideration of a wider range of public interests under s.50(4) than s.30(1) where "the focus of public interest is upon the integrity of the deliberative process". However, in the present case, I am not satisfied that there are public interest considerations which require release.

48. In view of my findings, I make the following orders :

1. The decision of the respondent made on 18 September 2000 refusing the applicant's request for access to documents 2 and 4 is affirmed.

Information Act 1982

At a glance

Court

Decision date

Source

Judgment (111 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)