Victorian Civil and Administrative Tribunal|2001-01-31

Wilson v Department of Premier & Cabinet [2001] VCAT 663 (31 January 2001)

General List; Freedom of Information Act Section 25A(1) and (5), Whether Respondent Obliged to Process Request; Cabinet Documents Section 28(1) and (3); Internal Working Documents Section 30(1)

For the Respondent: Ms S. Cohen, instructed by Victorian Government Solicitor

1. Prior to the State election of 1999 the then Opposition, Australian Labor Party adopted an Employment and Skills Policy which included the following:

"A Labour Government will have a whole of Government push for growth in jobs, with every Cabinet proposal requiring a Jobs Growth Impact Statement."

2. As a result of the 1999 election a Government constituted by the Australian Labor Party came to power and the former Coalition Government became the Opposition.

3. Mr Ron Wilson was elected as Member for the Legislative Assembly Seat of Bennetswood in the 1999 election. He is a Member of the Opposition. On 12 April 2000 he requested the following documents from the Department of Premier and Cabinet under the provisions of the Freedom of Information Act, namely:

"All letters, file and diary entries, e-mails, tapes, briefing documents and memoranda held by the Department of Premier & Cabinet, in the offices of the Premier and the Parliamentary Secretary to the Premier, including staff, and dated from 19 October 1999 to the date on which this request was received regarding any proposals or plans to introduce a jobs and/or growth impact statement on every Cabinet proposal and any jobs and/or growth impact statements that have been prepared or submitted by Victorian Government Ministers, their staff or consultants and/or Victorian Government Departments or Agencies, their staff or consultants to Cabinet as part of the process of deliberation prior to decisions being made."

4. The request was considered by Ms Marisa Patitucci, Senior Freedom of Information Officer for the Department. She elected to consider the request in two parts. The first part relating to proposals or plans to introduce a Jobs and/or Growth Impact Statement on every Cabinet proposal and the second relating to Jobs and/or Growth Impact Statements which were prepared or submitted. In a letter dated 2nd June 2000 Ms Patitucci said that as to the first part of the request, 12 documents had been identified and that all were fully exempt. She referred to a range of exemptions under Section 28 of the Freedom of Information Act 1982 (Cabinet documents) and one under Section 30 (one relative to internal working documents generated as part of the deliberative processes of Government). Her letter continued:

"I intend to refuse you access to documents that relate to that part of the request regarding the Job/Growth Impact Statements prepared or submitted by Victorian Government Ministers, their staff or consultants and/or Victorian Government Departments or Agencies, their staff or consultants to Cabinet from 19 October 1999 to 18 April 2000.

These documents by their very nature, being Cabinet documents, are exempt under s.28 of the Act. An Agency may refuse to grant access to documents without having identified any of the documents to which the request relates and without specifying for each document the provision or provisions of the Act under which the document is exempt. If it is apparent from the nature of the documents described in the request that all the documents to that part of the request are exempt documents (s.25A(5)). Further to retrieve and copy these documents would substantially and unreasonably divert the resources of the Department from its other operations (in accordance with s.25A(1) of the Act). Pursuant to s.25A(6) of the Act I give you notice that I intend to refuse you access to the documents requested. Please write or contact me ... to discuss amending the terms of that part of the request so as to remove this ground for refusal."

5. The letter closed by referring Mr Wilson to his entitlement to seek an internal review pursuant to Section 51 of the Freedom of Information Act.

6. By a letter dated 2 June 2000 but apparently despatched by facsimile on 6 June 2000, Mr Wilson sought internal review from the Secretary of the Department of Premier and Cabinet, Mr Bill Scales. He suggested as a modification of his request to meet the objections under Section 25A the following proposal:

"I will accept as an initial measure a list of the Jobs and/or Growth Impact Statements provided to Cabinet showing:

(a) the name of the Departmental and Ministerial file in which it is contained;

(c) the date of creation of the file and if applicable, the date of either the latest document inserted on the file or the date the file was closed;

(d) the name of the Minister and/or Department to whom the file relates;

(e) whether a Jobs and/or Growth Impact Statement was submitted to Cabinet and if not, why not;

(f) the contents of any such Jobs and/or Growth Impact Statement;

(g) the date(s) the matter(s) were considered by Cabinet;

(h) how many pages and documents are contained in each file."

7. Mr Wilson said he was prepared to accept this document "in an electronic format, to be electronically mailed". Apparently this same ground had been gone over in a telephone discussion between Ms Patitucci and Mr Wilson's Electorate Assistant, Mr Edmund Carew.

8. A list of the 12 documents for which exemption is claimed is attached to these reasons.

9. In the course of the hearing, Ms Cohen who appeared for the respondent Department, announced the release of Document 1 and those parts of Documents 2 and 3 which constituted e-mail covering letters or memoranda. The packages or attachments themselves representing the lion's share of the relevant item were not released.

10. Section 25A of the Freedom of Information Act 1982 provides inter alia:

"(1) The agency or minister dealing with the request may refuse to grant access to documents in accordance with the request, without having caused the processing of the request to have been undertaken, if the agency or minister is satisfied that the work involved in processing the request -

(a) in the case of an agency - would substantially and unreasonably divert the resources of the agency from its other operations; or

(b) in the case of a minister - would substantially and unreasonably interfere with the performance of the minister's functions

(5) Any agency or minister may refuse to grant access to the documents in accordance with the request without having identified any or all of the documents to which the request relates and without specifying, in respect of each document, the provision or provisions of this Act under which that document is claimed to be an exempt document if -

(a) it is apparent from the nature of the documents as described in the request that all of the documents to which the request is expressed to relate are exempt documents; and

(i) it is apparent from the nature of the documents as so described that no obligation could arise under Section 25 [to release in edited form with exempt matter deleted] in relation to any of those documents to grant access to an edited copy of the documents; or

(ii) it is apparent from the request or as a result of consultation by the agency or minister that the person making the request, that the person would not wish to have access to an edited copy of the document.

(6) An agency or a minister must not refuse to grant access to a document under sub-section (1) unless the agency or minister has -

(ii) identifying an officer of the agency or a member of staff of the minister with whom the applicant may consult with a view to making the request in a form that would remove the ground for refusal;

(b) given the applicant a reasonable opportunity so to consult;

(c) so far as is reasonably practicable, provided the applicant with any information that would assist the making of the request in such form."

11. Exemption for Cabinet documents is dealt with by Section 28 of the Freedom of Information Act which provides, inter alia:

(a) the official record of any deliberation or decision of the Cabinet;

(b) a document that has been prepared by a Minister or on his or her behalf or by an agency for the purpose of submission for consideration by the Cabinet;

(ba) a document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet;

(c) a document that is a copy or draft of, or contains extracts from, a document referred to in paragraph (a), (b) or (ba); or

(d) a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published.

(3) Sub-section (1) does not apply to a document referred to in a paragraph of that sub-section to the extent that the document contains purely statistical, technical or scientific material unless the disclosure of the document would involve the disclosure of any deliberation or decision of the Cabinet.

12. It will be seen that the apparent effect of Section 28(3) is to withdrew from the protection of exemption otherwise exempt Cabinet material to the extent that it contains "purely statistical, technical or scientific material". In Mildenhall v Department of Premier and Cabinet (1995) 8 VAR 284, 292-5 I considered at some length the effect of that sub-section in light not only of its text but of a number of submissions and reports which were current and apparently considered by Parliament when it enacted Section 28(3). These included submissions by individuals, by the Law Institute of Victoria and by the Victorian Bar and a report of the Legal and Constitutional Committee of the Victorian Parliament in November 1989. I concluded:

"In my view, taken as a whole this set of adjectives [viz. statistical, technical or scientific] is apt to render this sub-section applicable to documents other than those containing policy, opinion, advice or recommendations."

13. In Mildenhall's case I concluded that material forming part of the "Victorian Attitudes Monitoring Study" did not fall within the Section because they were not merely raw data but constituted opinion and judgment based on the interpretation of that data.

14. Section 28(3) would not withdraw from exemption purely factual material which was not statistical, technical or scientific. See Kyrou and Pizer Victorian Administrative Law paragraph [2314/4] page 602/2 (Update 66); Mildenhall v Department of Treasury and Finance (unreported 18 March 1996).

15. I also held that Cabinet deliberations could be disclosed not merely by release of the substance of debate in Cabinet or the exposure of disagreements between its members but also by the mere disclosure of a subject matter which would reveal what the Ministers in Cabinet "had on their minds".

16. The first of the exemptions created by Section 28(1)(b) appears to be established merely by proof that the document has been prepared for the purpose of submission for consideration by Cabinet whether it was in fact ever considered by Cabinet.

17. The final exemption relied upon by the respondent is the one constituted by Section 30(1). The section states, inter alia:

"(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."

18. It will be seen that this Section requires the establishment of two things - first, that the document in question is what has been described in shorthand as an "internal working document", that is, meets the requirements of paragraph (a) of Section 30(1) and secondly, that its release would be contrary to the public interest. In the present case two public interests are suggested. First, that release of the documents for which the Section 30 exemption is claimed would inhibit the candour and frankness of offices in furnishing opinion, recommendation and advice and secondly that it is generally contrary to public policy to release "drafts" which do not represent final adopted policy or the final shape of a transaction. To release these drafts may be unfair or misleading. This latter head of public interest is supported by a number of Tribunal decisions including Western Mining Corporation v Department of Conservation Forests and Land (1989) 3 VAR 150, 160; Brog v Department of Premier and Cabinet (1989) 3 VAR 201; Wyman v Monash University (unreported 20 August 1991).

19. The so called frankness and candour principle or public interest has been somewhat controversial. It has been accepted as being relevant but has frequently been treated with scepticism. See Murtagh v Federal Commissioner of Taxation [1984] AATA 249; (1984) 54 ALR 313, 326 per Davies J.; Coleman v Director-General Local Government Department Pentland (1985) 1 VAR 9, 11 per Judge Rowlands; Re Howard and the Treasurer of the Commonwealth [1985] AATA 100; (1985) 3 AAR 169, 177-8 per Davies J. In this last decision His Honour as a Member of the Commonwealth Administrative Appeals Tribunal said that the "frankness and candour" is more likely to be accepted the higher the office of the persons between whom the communications. His Honour once again expressed scepticism as to this principle.

20. Ms Cohen on behalf of the respondent submitted that both the Section 25A(1) and Section 25A(5) justified the respondent's refusal to process the second half of Mr Wilson's request. The very description of the documents in her submission showed them to fall squarely within the exemption created by Section 28(1)(b). Since the documents in question must have been prepared or submitted to the Cabinet she referred to and relied upon the evidence of Ms Patitucci, the Senior Freedom of Information Officer of the Department who said that processing of this request would require her to access and consider more than 500 documents including approximately 300 to 400 Cabinet submissions and copies of those documents which may be held in various places. She said that there was at least both a file and an archive copy of such document and copies may be held elsewhere outside the Cabinet Secretariat. Ms Patitucci said that the existing resourcing for freedom of information in the Department included her as a full time officer together with a part time (20 hours a week) assistant. In the past fortnight she had been given the ability to resort to another part time officer who was working 20 hours a week though this officer's primary duties were to work on other Departmental projects. She said that processing Mr Wilson's request would unreasonably divert her from her other projects within the Department, moreover to comply wit the request which appeared in Mr Wilson's letter of 2 June (transmitted by facsimile 6 June) would require the creation of a document which does not at present exist and would constitute little relief from the full burden of the task which an ordinary processing of the request would entail.

21. Mr McIntosh who appeared on behalf of Mr Wilson submitted that there was no basis for a blanket objection to his client's suggestion as conveyed in the 2nd of June letter. He referred to at least one other instance in which the same Freedom of Information Officer had in response to a request from Mr Wilson as to the Department's use of consultants, created a document being a list of consultants which had not previously existed. According to Mr McIntosh, conformably with Section 25A(6) it was a proper and reasonable step for a freedom of information officer to be required to prepare what might be described as a "road map" of a large volume of material which it was judged unreasonable to acquire to be processed in the traditional manner. Ms Patitucci had said that the preparation of a so called road map would be objectionable for another reason, namely that in so far as it would tend to disclose agenda items or subject matters which had been considered by Cabinet it would tend to reveal Cabinet's deliberation.

22. Mr McIntosh said that in the nature of things there must be some, albeit a minority of submissions, perhaps the proverbial "wish list" prepared for submission by Cabinet which for one reason or another were never actually submitted. The "road map" in so far as it referred to such a document would reveal nothing as to Cabinet's deliberations. Moreover, Mr McIntosh submitted that some at least of the submissions would contain matter which would be withdrawn from exemption by Section 28(3).

23. In my view the Department is authorised by Section 25A(5) to decline to process the second part of Mr Wilson's request. It must be conceded that in reviewing a determination of an agency made under Section 25A(5) the Tribunal is "at large" and has power to require the production of the documents the request for which has not been processed or the preparation of a list. See Victorian Casino and Gaming Authority v Hulls [1998] 4 VR 718. The Court of Appeal reached this decision based on the then Section 56(1) of the Freedom of Information Act which has since been repealed. Nevertheless, the learned editors of Kyrou and Pizer Victorian Administrative Law conclude that this Tribunal's power to give directions under Section 80 of the Victorian Civil and Administrative Tribunal Act 1998 bestows the same powers as the repealed Section 56(1). See paragraph [2263/7A] page 596/8 (Update 65). The learned editors are somewhat critical of the Court of Appeal's judgments in Hulls observing:

"It is submitted that the powers of an agency set out in s.25A(1) and (5) are threshold powers that allow an agency to refuse to process a request. The stated purpose of s.25A is to "curb unreasonable demands on agency resources". The purpose would be severely undermined if the Tribunal on review of a decision under s.25A could (and - as the Court seems to suggest - should) simply force the agency to process the request without first considering whether the agency's decision should be affirmed. ...

Accordingly, it is to be hoped that the VCAT recognises that, whilst its role on review is technically "at large", it is nevertheless preferable to consider whether the agency's decision to refuse to process the request should be affirmed as a preliminary or threshold question." (ibid)

24. In my view the description of the documents requested shows ineluctably as Ms Cohen submitted that any document falling within the description would be exempt under Section 28(1)(b). Moreover, since Section 50(4) does not extend to or authorise a public interest override of a Section 28 Cabinet exemption there can be no question of requiring production of the documents or their listing, to consider the use of a public interest override. That is a key distinction between the present proceeding and Hulls' case where the public interest override was available if the Tribunal were persuaded it was a proper case for its application. Mr McIntosh observes there remains at least a logical possibility that some part of the documents requested will be withdrawn from exemption by the operation of Section 28(3). Nothing short of a perusal of every single one of hundreds of documents could prove absolutely or beyond reasonable doubt that Mr McIntosh is correct. In my view however, it is apparent from the nature of the documents requested, namely Jobs/Growth Impact Statements that they will consist of projections of the future, expressions of opinion upon likely effects of particular matters, not scientific, technical or statistical material of the sort dealt with by Section 28(3). In my view it is unnecessary either for an agency or this Tribunal upon review to be satisfied either absolutely or beyond reasonable doubt that there could be no question of some part of the material sought being apt for release in edited form under Section 25. For the reasons already given I think it most unlikely that this would be the case here. Presumably the agency was of the same mind. That in my opinion is sufficient for reliance to be placed in circumstances such as these on Section 25A(5).

25. In the circumstances it is unnecessary for me to express any view as to the validity of the reliance placed by the respondent upon Section 25A(1).

26. A schedule of the documents identified is set out as an annexure to this decision.

28. Document 2 is described as "E-mail and attachment re: Jobs and Growth Impact Statements". The e-mail covering memorandum from Mr Michael Kirby, the Director, Financial and Economic Analysis Branch, Economics and Financial Policy Division of the Department of Treasury and Finance. It is addressed to Mr Rod Maddock, Assistant Secretary of the Economic Policy Branch of the Department of Premier and Cabinet. The memorandum states

"All Cabinet submission cover sheets are required to contain a statement on the impact of jobs and growth, which within DTF is scrutinised in my Branch. Attached is a draft set of guidelines which may end up in the Cabinet handbook. Any comment/suggestions would be appreciated. A day or two?"

29. Exemptions are claimed under Section 30(1), Section 28(1)(b), (ba) and (c). According to Mr Kirby the attachment "is a version of the draft statement prepared under my supervision". According to Mr Kirby this "draft" is the subject of further revision. It is implicit in Mr Kirby's evidence that this document was not in fact submitted to Cabinet.

30. The effect of Mr Kirby's evidence is that this document was a "first cut". There was no question of it being submitted in its then form to Cabinet. In those circumstances it cannot be said that it falls within the exemption constituted by Section 28(1)(b). There is no distinct evidence that the document was prepared for the purpose of briefing a particular minister and so the exemption under Section 28(1)(ba) does not seem to be attracted either. However the effect of the evidence of Mr Kirby is that the document is a draft of a document prepared for the purpose of submission or consideration by Cabinet and I uphold the exemption claimed under Section 28(1)(c).

31. The evidence shows that this is a draft, was not the final version and that there are later and more advanced drafts. In those circumstances, in my view, the document is also exempt under Section 30(1). The very submission of a draft is an implicit piece of recommendation or advice. The recommendation being that the draft is one proper for its purpose either in its then form or subject to further consideration. The authorities as to draft documents quoted earlier demonstrate that it is generally contrary to the public interest to release superseded drafts because it may be unfair to those involved in the drafting process and also misleading to the public to have in circulation a document which does not represent final adopted practice or policy.

32. Document 3 is in the same case as Document 2, that is, the e-mail covering memorandum has been released. The text of the attachment is the same as the text of the unreleased portion of Document 2. I uphold the same exemptions with respect to Document 3.

33. Document 4 is describe as "draft response re: Jobs and Growth Impact Statements", its author is Richard Brice and it is to Mr Maddock. According to Ms Cohen's submission

"Document 4 is a memorandum between the named officers and on its face discloses opinion, advice or recommendation prepared by an officer in the course of or for the purposes of the deliberative processes involved in the function of the respondent Department. Its disclosure would be contrary to the public interest because

(i) it contains the type of comments or material which officers of departments ought to feel free to commit to document form to properly fulfil their functions without fear of its being disclosed, and further, potentially out of context [the frankness and candour principle]

(ii) it is unsigned and undated and is classified as a draft as it may never have been forwarded to the named recipient

(iii) it discloses opinion in relation to a draft of a proposal which may mislead and confuse as:

(x) it may not bear upon or relate to the eventual version which may have been subject to deliberations or a decision of Cabinet

34. Ms Patitucci said that when she came to process Mr Wilson's request both Mr Brice and Mr Maddock had left the public service. She concluded that since the document was both unsigned and undated it was to be regarded as a draft.

35. In my view the exemption under Section 30(1) has been made out. I am prepared to infer from the fact that the document is neither signed nor dated that it is a draft. Moreover, it clearly does express opinion, recommendation and advice. The memorandum is perhaps more than a mere bland report. In my view the public interest militates against its release because of its uncertain status and its lack of context.

36. Document 5 is described as "e-mail re: Jobs Growth and Impact Statements". Once again the exemption claimed is under Section 30(1). The e-mail contains opinion, recommendation and advice and by its nature it is evidently part of the deliberative processes of the Department. According to Mr Kirby "

"Release of these comments would be likely to be misleading because they relate to draft proposals and might not accurately reflect on what was ultimately put to or decided on by Cabinet".

37. In my view the exemption under Section 30(1) is made out with respect to this document.

38. Document 6 is described as "e-mail re: Jobs and Growth Impact Statement", its author is said to be Mr Jamie Carstairs. The exemption claimed is under Section 30(1). In my view the same considerations apply to this document as to the previous document. I uphold the exemption claimed with respect to it under Section 30(1).

39. Document 7 is described as "e-mail and attachment re: Jobs and Growth Impact Statements". The exemptions are claimed under Section 30(1) of Section 28(1)(b). The author is Mr Michael Kirby. Once again both according to Mr Kirby and on the basis of the form of the document itself, it contains opinion, recommendation or advice and is part of the deliberative process. The same considerations which have led to the previous documents being held exempt apply to this document, namely the e-mail cover. The e-mail attachment was the final version of the Department of Treasury and Finance's proposal for amendment to the Cabinet Handbook to give effect to the new policy as to Jobs and Growth Impact Statement. As such it was intended to be submitted to Cabinet and is accordingly subject to the exemption under Section 28(1)(b).

40. Accordingly I uphold the exemption under Section 30(1) with respect to the e-mail coversheet and under Section 28(1)(b) as to the attachment both of which constitute Document 7.

41. Document 8 is described as "e-mail re: Jobs Growth and Impact Statement and Cabinet Handbook", the author is Robert Wright. Exemptions are claimed under Section 30(1) and Section 28(1)(d). According to Ms Barbara Ann Poland, the Assistant Director of the Cabinet Secretariat in the Department of Premier and Cabinet, if Document 8 were released it would "disclose the deliberations of Cabinet as the balance of the document must be read in the context of the first sentence". The memorandum discloses a subject matter of deliberation in Cabinet and what is on the Cabinet agenda in a particular week. With some hesitation and conformably with what I said in Mildenhall's case, I conclude that to disclose this information would amount to the disclosure of the deliberations of Cabinet. In my view the exemption claimed under Section 28(1)(d) is made out.

42. Document 9 is described as "letter and attachment re: Cabinet Coversheet", its author is Ms Poland and exemptions are claimed under Section 30 and Section 28(1)(d). Ms Poland said that she prepared the document as a proforma letter notifying the Cabinet and Legislation Officer in each Department of the decision of Cabinet and how it was to be implemented. It said that if it were released it would involve disclosure of the deliberations of Cabinet and is therefore exempt under Section 28(1)(d). In my view Ms Poland's view is correct and the exemption is made out.

43. Document 10 is described as "letter and attachment re: Cabinet Coversheet". In my view the same considerations apply to this document as was applied to Document 9. The exemption under Section 28(1)(d) is made out.

44. Documents 11 and 12 are copies of the Cabinet submission dated 21 October 1999. According to Ms Poland the submission is signed by the Premier and was submitted to Cabinet. The exemption under Section 28(1)(b) is therefore made out.

45. It follows that the respondent's determination should be affirmed.

Information Act 1982

Civil and Administrative Tribunal Act 1998

Wilson v Department of Premier & Cabinet [2001] VCAT 663

At a glance

Court

Decision date

Source

Judgment (89 paragraphs)

Wilson v Department of Premier & Cabinet [2001] VCAT 663 (31 January 2001)

Parties

Legislation Cited (2)

Cases Cited (1)