Yarra CC v Roads Corporation (General) [2009] VCAT 2646

Mr Jeremy Whelen of Counsel instructed by Maddocks, Solicitors

Ms Debbie Mortimer SC and Mr Chris Young of Counsel instructed by DLA Philips Fox

1. Yarra City Council seeks access pursuant to the Freedom of Information Act 1982 from the respondent Roads Corporation to certain documents generated by it in the course of the implementation of a new clearways policy for metropolitan Melbourne. The same controversy was before me last October in Landes v VicRoads [2009] VCAT 2403. I take the liberty of reproducing here paragraphs [2] to [16] of my determination.

[2] On 29 April 2008 the Premier, Mr John Brumby issued a media statement headed 'New congestion plan to ease peak pressure'. The Premier announced the institution of a new plan entitled 'Keeping Melbourne Moving' which would according to his statement:

Standardise the more than 150 clearways within 10km of the Melbourne CBD from 6.30 am to 10.00 am and from 3.00 pm to 7.00 pm, helping traffic flows during peak traffic time. Clearways will also be more strictly enforced.

[3] According to this statement this plan emerged from the 'Premier's congestion roundtable' which was held earlier in 2008 'with community and industry leaders'.

[4] The 'clearway' system is one that has been used on arterial roads in metropolitan Melbourne for several decades adding extra available lanes during morning and evening peak periods by prohibiting parking during those periods. The clearway system has and remains a strictly enforced one with offender's vehicles being towed. The announcement represented a very substantial extension of the hours during which most clearways operated and caused some vigorous public debate.

[5] Predictably traders in strip shopping centres were strongly critical of the proposal which would reduce parking facilities for their customers.

[6] One of those critics was the applicant in this proceeding, Mr Howard Ian (Herschel) Landes whose company carries on retail businesses at 211 and 194 Bridge Road, Richmond. Bridge Road is one of the arterial roads subject to the clearway system. On 12 May 2008, Mr Landes attended a meeting with Mr Tim Pallas, the Minister for Roads and Ports at the Minister's office 'to discuss the announcement in regards to extended clearways times'. A Ms Nellie Dicks also attended the meeting. According to Mr Landes and Ms Dicks, the Minister announced that 'these changes were not negotiable' and the purpose of the meeting was to discuss 'issues such as parking arrangements, signage or other local implementation issues'.

[7] There was abortive legal action in this Tribunal and threatened legal action in the Supreme Court. On 5 June a Memorandum of Advice from Vicroads, the popular name of the Roads Corporation established by the Transport Act 1983 was submitted to the Minister for Roads and Ports. It was over the signature of Ms Dionne Lew, Director Media and Communications, Mr Ted Vincent, Executive Director, Regional Services and Mr Garry Liddle, Chief Executive. The memorandum noted amongst other things that the Victorian Government has announced that a 'Clearways Implementation Reference Group (CIRG) would be established'. It proposed a process whereby this group would receive submissions with the submission period open for some 28 days. The memorandum stated that the submissions would likely:

Highlight a number of local issues around which Vicroads or the Department of Transport may be able to offer support, potentially in association with others. For example, Vicroads may be able to assist in the development of additional signage to support local councils to raise awareness in the community around existing or alternative parking sites.

[8] Submissions were to be referred to the CIRG. Paragraph 18 stated:

It is advised that no extended clearways be implemented until after the submissions process has closed, the CIRG has had an opportunity to consider the submissions and Vicroads has had an opportunity to communicate the results of consultation to the community. This is consistent with legal advice which recommended a process as close as practicable to the Code of Practice for Clearways on Declared Arterial Roads.

[9] Vicroads had placed an advertisement in the press under the heading 'Keeping Melbourne moving have your say on extending clearway hours' included the following:

As part of the plan, the Government is considering extending and standardising clearway hours, to keep people moving on busy roads. Vicroads is now asking interested parties to submit their feedback, on local issues, around the implementation of extended clearway hours. (emphasis added)

[10] The advertisement stated that public submissions could be received between 16 June 2008 and 5 pm, 14 July 2008.

[11] According to the evidence of Mr Brown, Executive Director of Regional Services for Vicroads, a number of submissions arrived late but were still considered for the purposes of the CIRG. Upwards of 700 submissions were made. Vicroads engaged a consultant to 'digest' those submissions and to prepare a presentation to the CIRG which met on 4 August 2008. The CIRG apparently consisted of some 16 persons about four of whom were Vicroads officers. The Municipal Association of Victoria had a representative on the group, though the most affected inner city municipalities were not directly represented.

[12] On 4 August the consultants provided a Powerpoint presentation to the group. The group met under a set of guidelines which had been adapted from a Code of Practice on clearways on arterial roads published in the Victorian Government Gazette on 16 September 2004 under the provisions of the Road Management Act 2004 was the basis for those guidelines. The most significant departure from the procedure laid down in the Code was removal of the requirement for communication to all interested land owners and occupiers and the shortening of the consultation period from 60 days to 28 days. The group issued some 15 implementation recommendations set out in bullet point form on a single A4 sheet of paper. These recommendations directly tracked the Powerpoint presentation made to the group by the consultant.

[13] According to Mr Brown on 29 August 2008 the Minister for Roads and Ports announced that the extension of clearway hours in the morning would occur immediately with the extension of afternoon hours to occur 'early in 2009'.

[14] When this matter was heard in the Tribunal on 30 October 2009 the Premier's announcement of 29 April 2008 was yet to be fully implemented. Mr Landes' company carries on business in Bridge Road, Richmond, one of the city's major inner-arterial roads. Clearway restrictions on Bridge Road as at the date of hearing, far from having been moved forward to 3.00 pm, remained at their previous start time - 4.30 pm.

[15] Mr Brown's evidence as to when implementation of the Premier's announcement began was contradictory. In cross-examination by Mr Landes, he conceded that implementation had begun on Punt Road before the CIRG had met on 4 August. Being taken to some document in re-examination by Mr Young, Counsel for Vicroads, Mr Brown said that the implementation began after the 4 August meeting though it is fair to say that his evidence on both occasions was diffident and imprecise.

[16] The suggestion in cross-examination by Mr Landes that implementation began before 4 August was based on documentation before that date seeking quotations for the provision of signage, inter alia in Punt Road. Mr Brown said in re-examination that these quotations were sought before 4 August so that Vicroads would be prepared to implement when a decision to implement was taken.

1. Yarra City Council is the municipal council for an inner-suburban area immediately to the east of the City of Melbourne. It contains a large number of arterial roads and strip shopping centres. Council made a request by letter dated 28 December 2008 for access to the following documents under the Freedom of Information Act:
   1. All documents created between 1 January 2008 and 29 August 2009, which:

1.1 evidence or refer to a direction under section 22 of the Road Management Act 2004 relating to a proposed change to clearway times on arterial roads in the metropolitan area of Melbourne;

1.2 were sent by VicRoads' Chief Executive to the Minister for Roads and Ports (the Minister) relating to a proposed change to clearway times on arterial roads in the metropolitan area of Melbourne;

1.3 were sent by the Minister to the VicRoads' Chief Executive relating to a proposed change to clearly times on arterial roads in the metropolitan area of Melbourne;

1.4 were prepared by a member of staff of VicRoads and sent to another member of staff of VicRoads relating to a proposed change to clearway times on arterial roads in the metropolitan area of Melbourne;

1.5 were prepared by a consultant engaged by VicRoads and sent to another member of staff of VicRoads relating to a proposed change to clearway times on arterial roads in the metropolitan area of Melbourne;

1.6 were prepared by a member of staff of VicRoads and sent to a consultant engaged by VicRoads relating to a proposed change to clearway times on arterial roads in the metropolitan area of Melbourne;

1. minutes of and papers presented to any meetings of the Clearways Implementation Reference Group held between 1 January 2008 and 29 August 2008; and
2. minutes of and papers presented to any meetings of members of staff of VicRoads help between 1 January 2008 and 29 August 2008 relating to a proposed change of clearway times on arterial roads in the metropolitan area of Melbourne.
3. The respondent carried out an internal review following its initial determination as to the release of documents. Ultimately some 113 documents were left in dispute with exemptions being claimed as to the whole or part. Yarra City Council has disclaimed any desire to obtain information as to the personal affairs of any of the officers of the respondent. Hence in all cases the documents have been edited to remove the names of the offices.
4. In accordance with directions given by the Tribunal the parties carried out an exercise of sampling with the result that a far smaller number of documents are presented for determination. I will turn to those documents in detail in due course.

1. Before proceeding to a consideration of the documents in dispute it is necessary to say something as to the nature and structure of the respondent. The Transport Act 1983 by Section 15 establishes a body known as the 'Roads Corporation'. By virtue of Section 15A the Corporation has the trading name 'VicRoads'. The Corporation consists of a single member being the Chief Executive. By virtue of Section 16(1) of the Act the Corporation has multifarious functions as follows:

(1) The Roads Corporation has the following functions -

(a) to maintain, upgrade, vary and extend the State's declared road network in accordance with the Road Management Act 2004;

(b) in conjunction with municipalities, to assist in the maintenance, upgrading and construction of other roads;

(c) to purchase, design, construct, erect, install, maintain and operate traffic signals and other traffic facilities for the purposes of traffic management and control;

(d) to determine load limits and advisory speed limits for any road, bridge or culvert and to determine maximum speed limits for travel on roads under construction or repair or over bridges or culverts;

(e) to provide and maintain roadside reserves adjacent to any road for the use or enjoyment of people using that road;

(f) to establish guidelines and requirements for the issue of vehicle mass and dimension permits;

(g) to provide registration and licensing procedures and systems in connection with transport;

(h) to develop and implement road safety strategies, and to develop, promote and administer road safety education and training programs;

(i) to develop and implement traffic management strategies and practices;

(j) to specify road accident prevention practices and to promote the adoption of those practices within the community;

(k) to develop and supervise regulations applicable to road traffic;

(m) to investigate and to promote and undertake research into any matter related to the performance of its functions, powers or duties.

1. Section 16(3) requires inter alia that the Corporation:

... have regard to the achievement of the following objects

1. Section 31 of the Transport Act requires VicRoads to:

Exercise its powers and discharge its duties subject to the general direction and control of the Minister [of Roads and Ports], and to any specific direction given by the Minister.

1. The Corporation by virtue of Section 30 has a board but its role is purely advisory. Subject to ministerial directives by virtue of Section 30(1):

The chief executive of the Roads Corporation is responsible for the management of the affairs of the Corporation.

1. In addition to the provisions of the Transport Act just referred to the Road Management Act 2004 bestows further functions on VicRoads. Section 20(1) of the Road Management Act provides:

(1) The principal object of road management is to ensure that a safe and efficient network of roads is provided primarily for travel and transport and that road reserves are available for other appropriate uses.

1. Section 37 of the Act designates which body is the responsible road authority. In the case of arterial roads 'for the part of the roadway used by through traffic' VicRoads is the responsible road authority. The local municipal council is the road authority for other parts of the road such as portions not used by through traffic, service roads, median strips between the roadway and the service road etc. Section 3 defines the expression 'State road authority' to mean:

1. Section 44 gives such State road authorities which include VicRoads with respect to the through traffic portion of arterial roads in metropolitan Melbourne the powers set out in Schedule 4 which are headed 'specific traffic management powers of State road authorities'. Clause 2(2) of Schedule 4 states:

(b) make policy decisions in relation to traffic management after consultation with any affected municipal councils.

1. As a background to the announcement made by the Minister for Roads and Ports on 29 August 2008, VicRoads had sent the Minister a Ministerial Briefing Note. The note was 'signed off' by Mr Liddle, the Chief Executive on 18 August. It was noted by the Minister on 24 August. The purpose of the note was:

To advise the Minister of VicRoads' decision following the outcomes from the clearways public submission process, as part of the Keeping Melbourne Moving Plan.

1. At paragraph 20 the Note states:
   1. It is recommended that:

(i) VicRoads proceeds to implement the am clearway changes, in accordance with Clause 2(2)(b) of Schedule 4 of the Road Management Act on the nominated routes (see Attachment 3). Unless there are any major reasons arising from the next CIRG meeting, their implementation is scheduled to commence in the week ending Friday 29 August 2008.

(ii) VicRoads implements the ancillary measures that will mitigate the impact of the decision on the community (Attachment 1).

(iii) The release of the proposed wording and CIRG recommendations (Attachment 2) on the VicRoads' website for the week ending 29 August 2008, after the next CIRG meeting.

1. Prior to the despatch of the Ministerial Briefing Note Mr Liddle the Chief Executive had received an inter-office memo dated 7 August 2008. The purpose of that memo according to paragraph (1) was:

To seek the Chief Executive's approval to the proposed actions for VicRoads to implement clearway changes.

1. Presumably the 'clearway changes' are the ones announced by the Premier on 29 April 2008. Under the heading discussion/issues paragraph 8 appeared in the following terms:

The implementation timelines for the recommended actions have not yet been developed, but it is envisaged that the implementation of these actions will not all necessarily coincide with the clearway changes.

1. The memo noted that the next meeting of the CIRG was scheduled for 28 August 2008. An additional paragraph was added to the memorandum in manuscript somewhat confusingly assigned the number 14 which was also the number assigned to the last printed paragraph. The manuscript paragraph is as follows:

14(a) Clearway implementation is to start before the end of August. When CIRG moving forward if possible.

(b) Recommended actions for VicRoads to pursue are approved.

(c) MBN [Ministerial Briefing Note] as amended will be sent to the Minister.

1. Mr Liddle approved the memorandum with the additional manuscript paragraph (which appears to be in his writing) on 15 August 2008. According to Ms Mortimer SC who appeared with Mr C. Young of Counsel for the respondent VicRoads, the Chief Executive's 'sign off' of this internal memorandum is to be taken as an implementation decision by VicRoads relative to the clearway changes. The printed paragraph 14 of the internal memorandum referred to the implementation of clearway changes as being 'in accordance with Clause 2(2)(b) of Schedule 4 of the Road Management Act'.
2. Mr Brown the Regional Director wrote to each affected municipality of which there were apparently 13 by letters dated 8 September 2008. After setting out the background to the Keeping Melbourne Moving scheme, the letter stated:

As part of the implementation [of the Ministerial announcement 29 August 2008], existing parking signs will need to be altered for consistency with the extended clearway times. Regulation 311A of the Road Safety (Road Rules) Regulations (1999) requires that powers exercised by a Council under Part 3 of these Regulations must be consistent with relevant policy decisions made by VicRoads under the Road Management Act. In particular, the action of Council to 'erect, establish, display, maintain or remove, stopping and parking signs on arterial roads under Regulation 304 must be consistent with VicRoads;' policy decision to extend clearway times on arterial roads.

1. On 25 March 2009 the Minister for Roads and Ports made a further public statement on the clearway issues. It represented a modification of what had been announced for afternoon or 'pm' clearways in the August 2008 statement. According to the press release:

Mr Pallas [the Minister] said that under these pm clearway arrangements:

• All pm clearways at intersections with traffic lights would commence from 3 pm and extend for approximately 100m on either side of the intersection. All other pm clearways that currently start at 4 pm or later would start at 4 pm.
• Existing clearways that start earlier than 4 pm would all change to start at 3 pm along the full length of the road;
• All pm clearways would end at 7 pm; and
• AM extended clearway hours would continue to run from 6.30 am to 10 am.

1. Document 45 is described in the Schedule of Exempt Documents prepared by VicRoads as 'Internal VicRoads' email attaching draft Ministerial Briefing Note'. The exemption claimed is under Section 30(1) of the Freedom of Information Act. According to Mr Stephen Brown, Executive Director of Regional Services for VicRoads who gave evidence on behalf of the respondent, the document is constituted by two internal e-mails attaching a high level confidential draft Ministerial Briefing Note from the Chief Executive of VicRoads to the Minister. The e-mail relates to a process of editing the draft. A final version of the Ministerial Briefing Note was despatched and is also in dispute in this proceeding. I will deal with it in due course as Document 29A. Speaking of Document 45, Mr Brown said:

The document as a whole is about the implications of announcing changes to the proposed hours of operation of clearways. The document was prepared after the consultation process had closed and when VicRoads was in the process of making its decision about the implementation of clearways. The announcement made by the Minister on 29 August 2008 did not refer to any changes in the proposed hours of operation of the clearways. The proposed hours for the new clearways to operate was one of the most contentious aspects of the policy. Some seven months later, on 25 March 2009, when the Minister made a further announcement about clearways he announced a change in the afternoon hours of operation.

1. Section 30(1) of the Freedom of Information Act 1982 states:

(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

1. It is appropriate to note sub-sections (3) and (4) of Section 30:

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

(4) This section does not apply to the record of a final decision, order or ruling given in the exercise of an adjudicative function, and any reason which explains that decision, order or ruling.

1. The exemption claimed contains two distinct elements, the first set out in paragraph (a) of the sub-section marks out documents entitled to exemption by description of their nature. Popularly this description has been described in shorthand terms as 'internal working documents'. This is of course only an approximation and does not do full justice to the words of the paragraph. The second part of the exemption calls into operation considerations outside the four corners of the document in question by invoking the public interest. The public interest is also relevant in the operation of Section 50(4) of the Freedom of Information Act which entitles the Tribunal with respect to most of the exemptions established by the Act to override them where the public interest 'requires it'. An immediate question arises as to the relationship between the public interest referred to in the 'override' in Section 50(4) and the public interest criterion in the exemption established by Section 30(4). As I noted in Landes' case, McDonald J considered in Newnhan v Victoria Police Force (1997) 12 VAR 387 that the public interest in circumstances such as this should be considered exhaustively once and for all in the context of Section 30(1)(b) and should not thereafter be separately considered for the 'override' provision in Section 50(4). In an unreported decision in Pullen v Alpine Resorts Commission (Administrative Appeals Tribunal of Victoria 23 August 1996) I had expressed the view that the public interest considerations relevant to the Section 30(1) exemption were more narrowly focussed on the integrity of deliberative processes of Ministers and agencies and that the public interest consideration potentially available in the override provision, Section 50(4) could raise wider matters of concerns. As I read the judgment of Maxwell ACJ in Osland v Secretary Department of Justice [2007] VSCA 96; (2007) 26 VAR 425, 447 [77] His Honour favoured the view which I had expressed in Pullen's case. His Honour did not refer to Newnhan's case and unsurprisingly made no reference to my unreported utterance. I propose approaching the public interest criteria in Section 30(1) and Section 50(4) separately.
2. There is a long line of authority in this Tribunal and its predecessor, the Administrative Appeals Tribunal of Victoria to the effect that draft and incomplete documents which form part of the deliberative process are not appropriate for release. The rationale for that is that to release a draft implicitly attributed to a Government agency or perhaps a Minister or the Government as a whole of views or policies or determinations which were ultimately not taken at all or held at all or were taken or held only in a materially amended form. Hence in the case of a draft which is found to fall within Section 30(1)(a) of the Freedom of Information Act in terms of Section 30(1)(b), the public interest will generally come down against release and in favour of holding the document exempt. The cases are Western Mining Corporation v Department of Conservation, Forests and Lands (1989) 3 VAR 150, 160 per Deputy President Galvin and Member Handley; Brog v Department of The Premier and Cabinet (1989) 3 VAR 201; Wyman v Monash University (unreported Administrative Appeals Tribunal of Victoria, Judge A.F. Smith, President, 20 August 1991); and my own decision in Marple v Department of Agriculture (1995) 9 VAR 29, 43-4. More recently in this Tribunal reference may be made to Oostermeyer v The Alfred Hospital (1998) 13 VAR 449 and Moloney v Department of Human Services (2001) 18 VAR 238, 246.
3. The heading to Document 45 includes the word 'advice'. It canvasses issues and options and makes a recommendation. The document is still in draft form with tracking changes so that some text is struck through. Elsewhere there are references indicating that the drafting is preliminary leaving directives to those working on the draft to 'check' certain matters or to research certain matters further. By its very nature this document constitutes opinion, recommendation and advice. It is generated as part of the deliberative processes of the respondent which processes involve no more than the thinking processes of the agency and its policy formation. The draft nature of the document leads to the view that it is contrary to the public interest to release it.
4. The exemption under Section 30(1) of the Freedom of Information Act is made out with respect to Document 45.

1. The next document in dispute which is numbered 75 in the Schedule of Disputed Documents is the subject of a claim of partial exemption once again under Section 30 of the Act. The document is once again a Ministerial Briefing Note from the respondent to the Minister for Roads and Ports. Whilst the document is claimed to be partially exempt, the sidelining on the copy which I have indicates that almost the entire substance of the document is claimed to be exempt. Once again the document is a draft. The draft is an attachment to two internal VicRoads' emails. A final version of the Ministerial Briefing Note is numbered 72 in the Schedule of Exempt Documents. Ultimately it was released in full. The purpose of the draft document in Document 75 is the same as the purpose for Document 72 which has been fully released, namely:

To advise the minister on a process for managing the submissions for clearway changes associated with Keeping Melbourne Moving.

1. The draft canvasses issues and options. It is appropriately described as a piece of opinion, recommendation and advice and since it is directed toward the formation and implementation of policy by the Minister it clearly falls within Section 30(1)(a). All of the public interest considerations attaching to draft documents generated as part of the deliberative process apply to this document. They apply with particular force because the final version of the document has already been publicly released.
2. The exemption under Section 30(1) of the Freedom of Information Act is made out with respect to Document 75.

1. Document 110 is described in the Schedule as 'Internal VicRoads' email attaching legal advice'. According to Mr Brown's evidence the document which consists of two internal e-mails and refers to consultation with VicRoads' external and internal legal advisers:

Concerns the legal consequences that may follow from pursuing various options to implement the clearway policy.

1. The e-mails bear date in March 2008 before the announcement by the Premier. The possible legal consequences are set out in an attachment which includes copious tracking changes and notes indicating changes both in formatting and substance. The document considers options and provides advice, it is a classic piece of information, recommendation and advice and meets the criteria of Section 30(1)(a). The fact that it is in draft form bringing into effect the public interest considerations relative to drafts and the deliberative process, the exemption under Section 30(1) is made out with respect to 110. It is unnecessary for me to deal with the exemption claimed under Section 32 of the Freedom of Information Act relative to legal professional privilege.

1. Document 6 is described as an 'Internal VicRoads' email attaching legal advice'. The covering e-mails representing exchange between officers relative to a letter of advice dated 16 May 2008 from DLA Phillips Fox which incidentally is the firm acting for VicRoads in this proceeding.
2. Section 32(1) of the Freedom of Information Act provides:

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

1. A document is subject to legal professional privilege if it is brought into existence for the dominant purpose of giving or receiving legal advice. Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; (1999) 201 CLR 49. The letter from DLA Phillips Fox is a classic example of a legally privileged document. It is a letter of advice on legal questions, hence brought into existence for the sole purpose of giving that legal advice. The e-mails are also brought into existence for the purpose of circulating the advice and are privileged on that ground and also attract privilege insofar as the e-mails provide a summary of the legal advice. Standard Chartered Bank of Australia v Antico (1993) 36 NSWLR 87; City Parking Pty Ltd v City of Melbourne (1996) 10 VAR 170, 196-7.
2. Document 6 is exempt pursuant to Section 32(1).

1. Document 46 is described as an 'Internal VicRoads' email'. Mr Whelen on behalf of the applicant conceded that this document met the requirements of Section 30(1)(a). Hence it is conceded that to use the shorthand term it is an 'internal working document'. The remaining question to consider is whether the Section 30(1) exemption has been made out is whether its release would be contrary to the public interest. This document or rather the exchange of e-mails canvasses options with respect to clearways. It was generated in July 2008, that is, prior to the Ministerial announcement on the subject in August 2008 and well prior to the ultimate announcement in March of this year as to 'pm' clearway arrangements. According to Mr Brown's evidence the:

Opinions, advice and recommendations contained in the document were provided very early in the development of decisions about how to implement the clearways policy and disclose possibilities rather than the final position that was taken on any of the issues.

Would provide only partial information about the implementation of a clearways policy and that information would be taken out of context of the ongoing debate and deliberations within VicRoads about various aspects of the implementation process. Also, because of the time the document was prepared, it does not take account of further deliberations and consultations that took place between August 2008 and March 2009.

1. He said that disclosure of this document 'would not fairly disclose the reasons for decision subsequently taken'. Debate as to the application of the public interest criterion of the exemption established by Section 30(1) is frequently centred upon the proposition that release of internal working documents will inhibit the 'frankness and candour' of the advice which officers give. This view of things has in this Tribunal and elsewhere frequently, though not invariably been greeted with some scepticism. It is the duty of officers in the public sector to give frank and fearless advice and generally one would ask why would they shrink from being seen by the release of documents under the Freedom of Information system as doing that very thing. Here the issue is one of public confusion. The e-mails in question canvassed a number of policy options and policy rationales, releasing these exchanges under the Freedom of Information Act would give a spurious standing to what was no more than a very preliminary debate. In my view the exemption under Section 30(1) is made out with respect to Document 46.

1. Document 52 is described in the Schedule of Exempt Documents as 'Internal VicRoads' email attaching external email'. It is dated 30 June 2008. According to Mr Brown's evidence it was created:

During the consultation process ... and prior to the establishment of CIRG in July 2008. The communications between the officer and the Minister to which it refers took place even earlier and before a decision about the nature of the consultation process to be followed had been taken.

1. He said it was part of VicRoads' deliberative processes. The document in question has been largely released. It includes by way of e-mail from Councillor Fristacky or Yarra City Council. The councillor was writing as Chair of the Metropolitan Transport Forum and commenting on the terms of reference for the consultation. Paragraph 2 states:

The terms of reference do not make any reference to the existing Code of Practice on clearways implemented under the Road Management Act, although the Minister advised at our meeting on 6 June 2008, that the Code of Practice is to be applied.

1. The passage in the e-mail sought to be held exempt is a comment on that passage in Councillor Fristacky's letter. It cannot be said in my view that the passage in question either constitutes or reveals matter in the nature of opinion, recommendation or advice; however closer attention to the text of Section 30(1)(a) of the Freedom of Information Act shows that its requirements are met not merely if release of the document would disclose matter in the nature of opinion, advice or recommendation but also if it would disclose:

Consultation or deliberation that has taken place between officers, Ministers or an officer and a Minister, in the course of, or for the purposes of, the deliberative processes,

1. The passage in question if released would disclose consultation between the two officers being the sender and the receiver of the relevant e-mail. The requirements of Section 30(1)(a) are made out. Mr Brown said that disclosure of the exempt passage would constitute disclosure of high level communication and the Minister's strategy. I am somewhat sceptical of and dubious about these propositions. With some hesitation I accept that insofar as the officer makes reference to something which the Minister might or might not have said, disclosure could be regarded as disclosure of high level communication. The matter here relates to Ministerial strategy therefore with some diffidence I conclude that the Section 30(1) exemption has been made out with respect to this document.

1. Document 39 is described in the Schedule of Exempt Documents as internal VicRoads' email attaching CIRG presentation'. A partial exemption is claimed for this document under Section 30(1). According to Mr Brown's evidence these e-mail exchanges represent a debate on the form of what I take to be a proposed Powerpoint presentation to the second meeting of CIRG. The material for which exemption is sought is the draft presentation itself and a particular comment describing the nature of the revision undertaken by the relevant Minister.
2. The substance of this communication therefore is the proposal by one officer that the presentation to the second meeting of CIRG should take a particular form. It is therefore practically a piece of opinion, recommendation and advice given in the course of the deliberative processes of the agency. The requirement that Section 30(1)(a) had been made out with respect to this document. The more difficult issue is whether the public interest criterion is established.
3. According to Mr Brown the final version of the presentation has been released. The e-mail exchange is therefore part of a drafting process and includes a draft document. In my view the public interest considerations which attend drafts generated as parts of deliberative process referred to above apply to this document. The exemption under Section 30(1) has been made out with respect to Document 39.

1. Document 29A is described as 'Final Ministerial Briefing Notes including attachments'. A partial exemption is claimed under Section 30(1). This document is the final Ministerial Briefing Note draft of which was considered above described as Document 45. Once again the exemption claimed here is under Section 30(1). The matters pertaining to draft documents in the deliberative process which I relied upon to uphold the exemption with respect to Document 45 have no application here.
2. The portions of the note for which exemption is claimed canvass options and entail the expression of opinions by the officer who is the author. They deal with sensitive policy questions as to the implementation of the extended clearways scheme.
3. The exempt portions clearly do fall within the description of Section 30(1)(a).
4. The remaining question then is whether the public interest criterion of Section 30(1)(b) has been satisfied. The Minister has elected to move forward with the clearways scheme in a particular manner. He necessarily must except responsibility for the decision that he has taken and the steps which he has implemented. As I observed in Landes' case a Minister should be free to seek and receive advice on policy options as a prelude to making important decisions. Ministers would be deterred from receiving this advice on options or at any rate receiving it in writing if opponents of Ministerial decisions could after the event, trawl through internal working documents with a view to exposing any advice or expression of opinion within the relevant agency which might be though inconsistent with the Minister's decision or actions.
5. The exemption under Section 30(1) is made out with respect to Document 29A.

1. Document 112 is described as a Ministerial Briefing Note. It was brought into existence on 13 February 2008. The exemptions claimed are under Section 30(1) and under Section 32(1) of the Freedom of Information Act.
2. According to Mr Brown this document being a Ministerial Briefing Note concerned action_:_

(including legislative action) that the Chief Executive said would need to improve VicRoads' ability to manage clearways. It features handwritten annotations by the Minister.

1. Mr Brown observed that this document was prepared before the Minister's most recent statement in March of this year relative to pm clearway times.
2. A consideration of the text of the document shows that it lives up to Mr Brown's description of it. It is properly to be regarded as part of the deliberative process in so far as it canvasses policy options. It is pre-eminently a piece of opinion, recommendation and advice, hence the requirements of Section 30(1)(a) are met.
3. In my view the requirements of Section 30(1)(b) are also met. The documents are evidence of consultation which in the State context is at the highest level between the Chief Executive of VicRoads and the responsible Minister. A number of options for further action and policy are considered and advantages and disadvantages are weighed. The same considerations which led me to conclude with respect to the previous document that it would be contrary to the public interest in the integrity of the deliberative process to release it.
4. The exemption under Section 30(1) is made out.
5. In the circumstances I do not need to consider the exemption claimed under Section 32(1) which is claimed if the matter were to be determined solely on the legal professional privilege on the footing that the note summarises legal advice it may be that it could be released subject to deletion. It is unnecessary for me to pursue this matter however.

1. Document 38 is described in the schedule of exempt documents as 'internal VicRoads' email attaching briefing notes'. Exemption is claimed for the document in full and the exemption relied upon is Section 30(1). According to Mr Brown:

Document 38 is a chain of email correspondence between VicRoads and DOT [Department of Transport] officers. The e-mails attached draft briefing notes were a meeting of metropolitan council and request input on the briefing notes. The briefing note includes a list of questions and answers, which largely deals with the implementation of the clearways policy.

1. This document was generated as part of the deliberative processes of the Department of Transport which is the Department of the Victorian Government portfolio responsibility for VicRoads. The document includes an exchange of suggestions between officers of VicRoads and officers of the Department. Insofar as drafts are being proposed they implicitly entail opinion, recommendation and advice to the effect that the relevant portion of draft material put forward is suitable in all the circumstances. This is part of the deliberative process, not merely within the Department but also between the Department and VicRoads. The document is a draft document hence the considerations referred to earlier in these reasons as to where the public interest lies relative to the release of draft documents generated as part of the deliberative process indicates that the requirements of not only Section 30(1)(a) but also Section 30(1)(b) are made out and the exemption under Section 30(1) is established.

1. Document 103 is a draft letter from VicRoads to the Metropolitan Transport Forum in response to a letter received on 30 April 2008. That letter was not in evidence before me but it appears to have been made in response to the Premier's statement on clearway extensions on 29 April 2008. I do not believe that the applicant ultimately pressed for release of this document.
2. Lest I have misunderstood the situation however, I express my views briefly as to the document. The exemption claimed is under Section 30(1). Mr Brown said the draft:

Constitutes an opinion or recommendation about what should be said to the Forum in response to its letter. It is a proposed form responding to the Forum's letter. The document was created as part of VicRoads' deliberations about how to deal with the implementation of the policy.

1. I accept that evidence. Acceptance of the evidence necessarily entails the establishment of the requirements of Section 30(1)(a). The consideration as to draft documents generated in the deliberative process referred to earlier in these reasons would establish the balance of the Section 30(1) exemption.

1. Section 50(4) of the Freedom of Information Act 1982 states:

(4) 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. In a document styled 'applicant's statement of public interest grounds' filed 24 September 2009 the solicitors for Yarra stated inter alia:

In the particular circumstances of this case, disclosure of the documents in dispute will advance the public interest in knowing:

9.1 That the respondent - charged as it is with the management of clearways and making of 'policy decisions' concerning clearways - discharges its functions in accordance with statutory obligations placed on it and otherwise in accordance with law;

9.2 All persons engaged or employed by the respondent discharged their duties and functions in accordance with the statutory obligations placed on them and otherwise in accordance with law;

9.3 Whether there has been an illegality by or on behalf of the respondent; and

9.4 Whether there was sufficient evidence available to the respondent to demonstrate that the extension of standardised clearway times was financially, economically, socially, and environmentally justifiable.

1. Mr Whelen explained that the illegality referred to was a civil illegality in the sense of action taken ultra vires or without jurisdiction. There was no allegation made of criminal wrongdoing. I cannot see that public interest considerations of the type quoted above on their own and without more could ever justify the invocation of the public interest override under Section 50(4). Every time a citizen or private or public body perceives a decision by Government or an agency of Government with which it disagrees it would quite legitimately wish to raise all of the questions set out in Yarra's statement quoted above. Acceptance of these considerations on their own as the proper basis for invoking Section 50(4) would mean that whenever a citizen, private or public body disagreed with a Government decision it could ask such questions and thereby roll over most of the exemptions provided for in the Freedom of Information Act with respect to further documents to which it sought access. More is required. Clearly if strong evidence of wrongdoing were put before the Tribunal there may be grounds for using the public interest override to release documents either showing that misgivings as to wrongdoing were justified or potentially 'clearing the air' by demonstrating the lack of such. A concept of 'clearing the air' has to be used with some care however. To use it uncritically would leave it open to a freedom of information applicant simply to make allegations of wrongdoing and to say 'release the exempt documents either they will prove I am right or they will clear the air'. This strategy could be used in the face of almost any exemptions and almost any circumstance. The recent Osland litigation both in the Victorian Court of Appeal and the High Court of Australia have once again emphasised the imperative nature of the word 'requires' in the sub-section. The public interest consideration which would countervail an established exemption must be established with particularity and be an interest of weight and substance Secretary Department of Justice v Osland (No. 2) [2000] VSCA 69 [43]. Whilst the public interest override has been employed to override legal professional privilege and the exemption under Section 32(1) in some notable cases such as Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63 and Chadwick v Department of Property and Services (1987) 1 VAR 444 (the Nunawading by-election case) Judge Rowlands as President of the former Administrative Appeals Tribunal of Victoria said in Chadwick's case that it requires public interest considerations of a high order to countervail the doctrine of legal professional privilege in the balancing process under Section 50(4). A statement to this effect was referred to by the Full Court in Smith's case with apparent approval [1991] VicRp 6; [1991] 1 VR 63, 70-1. Mr Whelen conceded that were a public interest override to operate it must be possible for the Tribunal to find that release of the documents will forward the relevant public interest.
2. What then are the matters of illegality or inappropriate conduct which I referred to? At one stage Mr Whelen drew attention to what he said was a disconformity between the Minister's statement on 29 August and the decision said to have been made by VicRoads on 15 August. This latter decision he said did not deal with the 'pm' clearway issue at all, a matter which was conceded neither by Mr Brown in cross-examination nor in submissions by Ms Mortimer SC and Mr Young who appeared for VicRoads. I will not trouble to recite the competing arguments as to the true construction of VicRoads' determination. Ultimately this matter was not pressed, indeed it was expressly withdrawn by Mr Whelen. Mr Whelen drew attention to the fact that in a number of places some of which are quoted above, VicRoads referred to itself as exercising a power under Clause 2(2)(b) of Schedule 4 of the Roads Management Act 2004. This paragraph is quoted above and contains within it a reference to consultation with local municipalities. Again, I need not trouble to follow out the detail of this matter. It goes to whether in the circumstances the affected municipalities are as VicRoads in its letter to them quoted above are required to erect parking signs in conformity with the new clearways requirements or not. This is said to turn crucially upon the terms of the regulations referred to in the letter which had since 'sunsetted' and be re-made in somewhat different terms from their 1999 version quoted in the letter. The argument seemed to be that if a consultation of the necessary type had not taken place the municipal councils were not obliged to fall in with VicRoads' requirements. Mr Whelen said as VicRoads had announced it acted under Schedule 4 Clause 2(2)(b) it could not justify its actions under a different power such as the power to manage clearways Clause 2(2)(a) which required no consultation. He referred to Abbott v Shire of Heidelberg [1927] VLR 199 per Cussen J. Ms Mortimer and Mr Young said any available power could be relied on. They referred to Eastman v DPP (ACT) (2003) 214 CLR 318, 362 [124] per Heydon J with whom Gleeson CJ, Kirby, Gummow, Hayne and Callinan JJ concurred. Mr Whelen said that if these matters were taken up in the documents held to be exempt the public interest would require the override of that exemption. [In a subsequent written memorandum Mr Whelen noted that Kyrou J had recently refused to follow Abbott's case Multinet Gas (DB No. 1) Pty ltd v Alinta Asset Management Pty Ltd [200] VSC 18 [87] and Footnote 18].
3. I do not agree. The terms of the letters to the municipality strongly imply that VicRoads has taken legal advice on this subject. Given that the co-operation of local municipal councils with parking signage whether willingly or unwillingly is essential to the success of the clearways initiatives it would be astonishing if VicRoads had not taken legal advice on this subject. There was I am told no current litigation on the subject but Yarra City Council and Stonnington City Council had not fallen into line with signage for the pm clearways initiative. The fact that there is a live legal dispute on this very issue which has the potential at any time to become litigious is in my view a reason which reinforces the importance of VicRoads' legal professional privilege. It is no reason to undermine it. Therefore I am not persuaded that any document the subject of legal professional privilege should be released under the public interest override.
4. The answer to the question whether the Minister's action was ultra vires for lack of consultation with councils is not answered by the exempt documents. It depends upon general principles of administrative law and regulations. The applicant and the other municipalities know the extent of consultation or lack of consultation they have had with the Minister on these matters.
5. For the rest, whilst I accept that a total release of all documents would necessarily inform the public generally and key actors such as strip traders on inner Melbourne arterial roads and affected municipalities, I do not believe that the public interest in that further information of such parties is so strong as to 'require' the exemptions which I have found to be established to be overridden. I am fortified in that view by the knowledge that each of the exemptions whether it be under Section 30 or Section 32 is itself based on a public interest considerations. On the one hand the maintenance of the integrity of deliberative processes of Government and on the other the maintenance of legal professional privilege.

1. The respondent's determination should be affirmed.

1. It has for many years been common to allow Counsel and other legal practitioners acting for applicants acting in freedom of information review proceedings to inspect the documents for which exemption is claimed subject to a secrecy undertaking. In the present proceeding neither Counsel nor his instructing solicitor gave such undertaking or carried out such inspection. There were certain hiccups with the sampling process which seemed to have resulted from this. Indeed it is difficult to see how a fully effective sampling process can be undertaken unless someone acting for the applicant views the disputed documents. In the present case Mr Whelen informed me that his instructor had not viewed the documents because he believed that this would put a barrier or wedge between him or her and the client. Mr Whelen says he had no instructions to inspect the documents. I took this to mean that he was instructed not to inspect.
2. I accept that there are burdens imposed upon a practitioner who does whilst acting for an applicant, view documents which are claimed to be exempt. He or she may feel compromised or morally burdened. Certainly he or she comes under a burden to avoid saying anything in open hearing or elsewhere which might disclose the content of the documents which are the subject of the secrecy undertaking. This latter burden of course is borne by those acting for the applicant and by the presiding Tribunal member.
3. Each solicitor or member of Counsel involved in a freedom of information proceeding must necessarily make his or her own decision based on matters of strategy and conscience as to whether to inspect subject to a secrecy undertaking or not. My own experience over a large number of years in this jurisdiction is that where an inspection has taken place applicant's cases can be more effectively presented and the entire hearing is more tightly and effectively focussed. In addition the prospect of settlement or at least narrowing of the field of dispute at compulsory conference is enhanced. Applicants, respondents and the entire community may be spared the expense of the lengthy pursuit of documents which ultimately may be of little use to the applicant even if produced.