STATEMENT OF PUBLIC INTEREST GROUNDS OF THE RESPONDENT

Transcription

1 IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ADMINISTRATIVE DIVISION REVIEW AND REGULATION LIST BETWEEN: No. Z184/2016 FOUNDATION FOR ALCOHOL RESEARCH AND EDUCATION (FARE) Applicant and DEPARTMENT OF JUSTICE AND REGULATION Respondent STATEMENT OF PUBLIC INTEREST GROUNDS OF THE RESPONDENT 1. INTRODUCTION 1.1 This Statement of Public Interest Grounds relates to an application for review made by the applicant in relation to a decision made by the Department of Justice and Regulation ( Department ) to refuse access to documents under the Freedom of Information Act 1982 ( FOI Act ). 1.2 The documents are exempt from access pursuant to one or more of the following provisions of the FOI Act: (a) Section 28(1)(b); (b) Section 28(1)(ba); (c) Section 28(1)(c); (d) Section 28(1)(d); (e) Section 30(1); (f) Section 33(1). 1.3 To the extent that the documents are exempt under any paragraphs of s 28(1) or s 33(1), the public interest override in s 50(4) is expressed to have no application. Accordingly, this statement only applies if the Tribunal finds that a document is exempt under s 30(1) of the FOI Act and no other basis For the reasons set out below, it is submitted that the public interest does not require that access be granted to such exempt documents under s 50(4) of the FOI Act. 1 Note that the Respondent s contentions that disclosure of a document would be contrary to the public interest under s 30(1)(b) of the FOI Act are contained in its Statement of Legal Contentions. 1

2 Interpretation principles 1.5 As a general approach it is well established that where ambiguity is encountered in the interpretation of the FOI Act the rights given by the FOI Act should be construed liberally and the exemptions narrowly However, it is equally clear that although the FOI Act ought to generally be interpreted in favour of an applicant where ambiguity arises, it should not be interpreted in a way which overrides the specific provisions of the Act and there should not be an artificial leaning approach to the construction of the FOI Act As was stated by the Supreme Court of Victoria in the context of an appeal from a Victorian Civil and Administrative Tribunal ( Tribunal ) decision about the FOI Act: 4 There can be no issue that the Court should strive to interpret the FOI Act in a manner harmonious with its objectives, doing so to the fullest extent that the text allows. Similarly, [a]n approach hostile to disclosure of information in documentary form must be eschewed. However, the approach required to be taken in interpreting [an exemption in] the FOI Act does not permit the Court to disregard or take liberties with the text of the Act. To the contrary, whilst the Court should strive to interpret the FOI Act in a manner harmonious with its objectives, it should do so only to the fullest extent that the text actually allows. 1.8 As is apparent, there is no ambiguity in the interpretation of the exemptions or the public interest override in this case and it is important, therefore, that the Tribunal does not adopt an artificial leaning approach in the interpretation and application of the exemptions and the public interest override to the documents in dispute and does not disregard or take liberties with the text of the FOI Act. 2. SECTION 50(4): NO PUBLIC INTEREST OVERRIDE 2.1 The High Court has acknowledged that the power in the public interest override in s 50(4) of the FOI Act is a significant and exceptional power and a most extraordinary provision. 5 It has also been considered a stringent test in which there must be a sense of the imperative for it to apply The High Court has also stated that the public interest override is a discretionary 2 Ryder v Booth [1985] VR 869, 877 (Young CJ). 3 Lapidos v Ombudsman (No.2) (1987) 2 VAR 148, Secretary to the Department of Justice v Western Suburbs Legal Service Inc [2009] VSC 68 at [20] (Beach J) (footnote omitted). 5 Osland v Secretary, Department of Justice (No.2) [2010] HCA 24 at [12] (French CJ, Gummow and Bell JJ); Osland v Secretary, Department of Justice [2008] HCA 37 at [100] (Kirby J); Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331 at 341 [28] (Phillips JA). 6 Secretary, Department of Justice v Osland [2009] VSCA 69 at [22]. 2

3 power which can only be exercised if two conditions are satisfied: 7 (a) (b) First, as a matter of law, the material before the Tribunal is capable of supporting the formation by it of an opinion that the public interest requires that access to the documents should be granted. That is, can a reasonable decision-maker who correctly understands the law under which the decisionmaker acts form the opinion that the public interest requires disclosure. The second condition is that the Tribunal actually forms the opinion that the public interest requires that access to the documents should be granted. This is an evaluative and essentially factual judgment. 2.3 If the Tribunal forms the requisite opinion, the power to grant access is enlivened. The Tribunal still retains the discretion not to grant access. 8 First condition: whether capable of forming opinion 2.4 It is contended that the first condition is not satisfied unless three elements are satisfied: (a) (b) first, any interest asserted by the applicant in favour of disclosure must be a public interest; 9 secondly, any public interest asserted by the applicant in favour of disclosure must be a high-threshold 10 public interest. It must be one which is of such 7 Osland v Secretary, Department of Justice (No. 2) [2010] HCA 24 at [12], applied in Western Suburbs Legal Service Inc v Department of Justice [2010] VCAT 2009 at [16]-[17] (Coghlan DP); Styles v Victorian Workcover Authority [2010] VCAT 1815; Smeaton v Victorian Workcover Authority [2010] VCAT 1908; Elder v Worksafe Victoria [2011] VCAT 1029; McNamara v Deakin University [2011] VCAT 1089; Arundell v Department of Justice [2011] VCAT 1088; Millar v Department of Premier and Cabinet [2011] VCAT 1230 (Judge Lacava); Smeaton v Victorian Workcover Authority [2011] VCAT 1234; AB v Department of Education and Early Childhood Development [2011] VCAT 1263; The Herald and Weekly Times Pty Ltd v Department of Premier and Cabinet [2013] VCAT Osland v Secretary, Department of Justice (No. 2) [2010] HCA Arundell v Department of Justice [2011] VCAT 1088 at [16] (Senior Member Davis); Simons v Department of Justice [2006] VCAT 2053 at [73] (Judge Davis V-P); Western Suburbs Legal Service Inc v Department of Justice [2010] VCAT 2009 ( Coghlan DP; Stewart v Australian Grand Prix Corporation [2008] VCAT 167 at [103] (Judge Harbison); Save Albert Park Inc v Australian Grand Prix Corporation [2008] VCAT 168 at [82] (Judge Harbison); Dalla-Riva v Department of Treasury and Finance [2007] VCAT 1301 at [52] (Judge Harbison). 10 Osland v Secretary, Department of Justice (No.2) [2010] HCA 24 at [14] (French CJ, Gummow and Bell JJ); Asher v Department of Premier and Cabinet [2008] VCAT 450 at [145] (Judge Harbison); Western Suburbs Legal Service Inc v Department of Justice [2010] VCAT 2009 at [16] [17] (Coghlan DP); Styles v Victorian Workcover Authority [2010] VCAT 1815; Smeaton v Victorian Workcover Authority [2010] VCAT 1908; Elder v Worksafe Victoria [2011] VCAT 1029; McNamara v Deakin University [2011] VCAT 1089; Arundell v Department of Justice [2011] VCAT 1088; Millar v Department of Premier and Cabinet [2011] VCAT 1230 (Judge Lacava); Smeaton v Victorian Workcover Authority [2011] VCAT 1234; AB v Department of Education and Early Childhood Development [2011] VCAT 1263; The Herald and Weekly Times Pty Ltd v Department of Premier and Cabinet [2013] VCAT

4 significance or importance that it can be said metaphorically to get over a high bar ; 11 and (c) thirdly, the Tribunal must be satisfied that disclosure of the documents would advance or promote that asserted public interest. 12 Is there a public interest? 2.5 There will not be a public interest in disclosure if disclosure gratifies curiosity or merely provides information or amusement. That is, there is a distinction between what is in the public interest, and what is of interest to know. 13 Just because the public might be interested in a topic or subject matter does not mean that disclosure would be required in the public interest in the relevant sense. 2.6 The public interest looks to the benefit of the community in general, not the benefit or interest of any individual or group of individuals. 14 The Tribunal has previously described the public interest in s 50(4) as one which benefits the community as a whole and embraces matters of standards of human conduct and of the functioning of government and government instrumentalities. 15 As such, there is generally no public interest in disclosing documents that relate to a matter of personal significance only and do not benefit the community in general 16 or have wider social significance The fact that an individual or even a section of the public may be interested in the subject matter of a document does not equate with disclosure of that document being in the public interest. 18 Considerations personal to an applicant or an organisation on whose behalf the request for access was submitted are irrelevant 11 Asher v Department of Premier and Cabinet [2008] VCAT 450 at [145] (Judge Harbison); Dalla- Riva v Department of Treasury and Finance [2007] VCAT 1301 at [58] (Judge Harbison); Mann v Medical Board of Australia [2010] VCAT 1525 at [37] (Senior Member Davis); Stewart v Australian Grand Prix Corporation [2008] VCAT 167 at [103] (Judge Harbison). 12 Simons v Department of Justice [2006] VCAT 2053; Western Suburbs Legal Services Inc v Department of Justice [2010] VCAT 2009; Richards v Transport Accident Commission [2005] VCAT 1444 at [61]; Stewart v Australian Grand Prix Corporation [2008] VCAT 167 at [103]; Save Albert Park Inc v Australian Grand Prix Corporation [2008] VCAT 168; Dalla-Riva v Department of Treasury and Finance [2007] VCAT 1301 at [52]; Morgan v Department of Human Services [2008] VCAT 2420 at [105]; The Herald and Weekly Times Pty Ltd v Department of Premier and Cabinet [2013] VCAT DPP v Smith [1991] VR 63, 73; Smeaton v Victorian WorkCover Authority [2008] VCAT 166 at [35]; Royce v Department of Justice [2006] VCAT 1699 at [79]; Davis v Victoria Police [2008] VCAT 1343 at [148]. 14 Arundell v Department of Justice [2011] VCAT 1088 at [19]; Just v Department of Justice (1996) 10 VAR 126, Simons v Department of Justice [2006] VCAT 2053 at [73]. 16 Arundell v Department of Justice [2011] VCAT 1088 at [18]. 17 Baker v Department of Education and Training [2005] VCAT 2263 at [27] (Senior Member Megay). 18 Gibson v Latrobe City Council [2008] VCAT 1340 at [74] (Judge Ross V-P). 4

5 to consideration of the public interest under s 50(4) of the FOI Act. 19 It is well established that something more than the mere curiosity of the public is required Even if there has been some media interest or interest shown by members of the local community this does not, of itself, equate to public interest. 21 The extent to which the public is or is believed to be interested in a particular matter is not, of itself, relevant. 22 Were it otherwise, the question whether the override should be invoked would depend upon the ascertainment of the extent to which the public had been shown to be interested in the topic. 23 Court of Appeal by Bongiorno AJA: As was stated in the Victorian [E]ven if publicity suggests that the matter publicised is one in which the public is interested it does not, per se, demonstrate public interest in the sense that the term is used in s50(4) of the Act The operation of the override depends on the particular circumstances of the case and it is a question of fact in each case. 25 Abstract policy considerations have no role 2.10 What may be called abstract policy considerations are not within the purview of the provision in s 50(4). 26 Therefore, abstract policy considerations, such as the desirability of greater transparency in decision making are irrelevant in the application of s 50(4). 27 In the words of the Court of Appeal: abstract policy considerations such as these have no place in the s 50(4) analysis in this or any other case This is because, at the level of general policy, the FOI Act itself has already struck 19 Secretary, Department of Justice v Osland [2007] VSCA 96 at [98]. See also Ormonde v Darebin City Council [2008] VCAT 588 at [92]-[95] (Senior Member Preuss). 20 Specialist Diagnostic Services Pty Ltd v Western Health [2016] VCAT 17, [90]. 21 Gibson v Latrobe City Council [2008] VCAT 1340 at [74] (Judge Ross V-P). 22 Western Suburbs Legal Service Inc v Department of Justice [2010] VCAT 2009 at [26] (Coghlan DP); Asher v Department of Sustainability and Environment [2010] VCAT 601 at [70] (Senior Member Galvin); Johnson v Department of Primary Industries [2007] VCAT 1656 at [60] (Deputy Coghlan DP); Mitchell v Victorian Competition and Efficiency Commission [2009] VCAT 2218 at [115] (Senior Member Davis); Cichello v Department of Justice [2014] VCAT 340, [74], per Deputy President Lambrick. 23 Secretary, Department of Justice v Osland [2007] VSCA 96 at [91], [113]. 24 Secretary, Department of Justice v Osland [2007] VSCA 96 at [129]. 25 Department of Premier and Cabinet v Hulls [1999] 3 VR 331 at 341, Secretary, Department of Justice v Osland [2007] VSCA 96 at [114]; Secretary, Department of Justice v Osland [2009] VSCA Secretary, Department of Justice v Osland [2007] VSCA 96 at [94]; See also Osland v Secretary, Department of Justice [2008] HCA 37 at [147], [150], [152] and [156] (Hayne J); Secretary, Department of Justice v Osland [2009] VSCA 69; McNamara v Deakin University [2011] VCAT 1089 at [43]-[44]. 28 Secretary, Department of Justice v Osland [2009] VSCA 69 at [40]. 5

6 the balance between the public interest in the maintenance of functionality and operations of government agencies, on the one hand, and the public interest in access to documents relevant to executive decision-making, on the other. 29 It is not for the Tribunal to decide whether, having regard to the subject matter in issue, the public interest in transparency should by means of s 50(4) be elevated to the status of an overriding public interest The High Court referred to and did not overturn this approach in the Osland cases. In fact a similar approach was also recognised by Hayne J of the High Court in the first Osland case: References to clearing the air, or more general references of the kind made in oral argument in this Court to a need for transparency in government are, at best, statements of the values that are to be understood as informing the structure and operation of the FOI Act. Neither reference to clearing the air, nor reference to a need for transparency in government, reveals the reasoning that supports a conclusion that the public interest requires disclosure of what otherwise is privileged from compulsory disclosure. 31 (Emphasis added) 2.13 That is, the High Court did not criticise as incorrect or otherwise disapprove the analysis of the Court of Appeal on that subject in either of the two High Court appeals. It has been accepted by the Supreme Court of Victoria and this Tribunal that the Court of Appeal and High Court views as to the interpretation and application of s 50(4) together (which are not inconsistent) represents the current state of the law on that provision 32. Asserted public interests 2.14 In the present case the applicant has asserted the following as public interests, all of which are merely abstract policy considerations about greater transparency and accountability. As the Court of Appeal in Osland twice stated and Hayne J in the first Osland case stated, these have no role in the consideration and application of s 50(4). (a) revealing the reason for a government decision, any background 29 Asher v Melbourne Water [2009] VCAT 1079 at [64] (Coghlan DP). 30 Secretary, Department of Justice v Osland [2007] VSCA 96 at [94] [95]; Secretary, Department of Justice v Osland [2009] VSCA Osland v Secretary, Department of Justice [2008] HCA 37 at [147]; Arundell v Department of Justice [2011] VCAT 1088 at [20]. 32 See Knight v Corrections Victoria [2010] VSC 338 at [27] per Bell J; XYZ v Victoria Police [2010] VCAT 255 at [346] per Bell J; Bergman v Department of Justice [2012] VCAT 363, [96]-[97] (Judge Jenkins V-P); Knight v Department of Justice [2012] VCAT 369 at [131], [139] (Judge Lacava V-P); Mond v Building Commission [2012] VCAT 796 at [73, [77] per Senior Member Steele; Tee v Department of Planning and Community Development [2013] VCAT 1150 at [60]-[65]. 6

7 information, and what information was considered in making it; 33 (b) enhancing scrutiny of government decision making and how government came to make a particular decision; 34 (c) ensuring government processes are transparent and accountable; 35 (d) enable the public to determine whether the Minister s decision was reasonably justifiable; 36 (e) facilitating public debate In essence these grounds comprise an assertion that there should be greater transparency or accountability, namely, that the public or certain persons should know and be able to discuss various matters and that the best way to facilitate this is through disclosure of the exempt documents to the applicant. Those abstract policy considerations or arguments are precisely of the kind considered by the Court of Appeal to be irrelevant in determining whether s 50(4) applies in the present circumstances. 38 Are the asserted public interests of a sufficiently high threshold? 2.16 The High Court in the second Osland matter made it clear that s 50(4) of the FOI Act provides a high threshold. It requires a decision-maker to identify a highthreshold public interest before the power can be exercised. It is not enough that access to the documents could be justified in the public interest The public interest considerations in favour of disclosure must be so strong as to convincingly demand or necessitate release. The Tribunal does not simply decide whether it is in the public interest for the documents to be released the public interest must require release in the emphatic sense in which that term is used There is no evidence or contention that there exists any sufficiently high threshold public interest ground such as to be capable of supporting an opinion that the public interest requires disclosure. 33 Applicant s Statement of Public Interest Grounds, [8], [11], [13], [15]. 34 Applicant s Statement of Public Interest Grounds at [12]. 35 Applicant s Statement of Public Interest Grounds at [12]. 36 Applicant s Statement of Public Interest Grounds at [13]. 37 Applicant s Statement of Public Interest Grounds at [15]. 38 See Secretary, Department of Justice v Osland [2009] VSCA 69 at [40]. 39 Osland v Secretary, Department of Justice [2010] HCA 24 at [14]; JPP v Department of Health and Human Services [2016] VCAT 884, [50]. 40 XYZ v Victoria Police [2010] VCAT 255 at [575] (Bell J). 7

8 2.19 As stated, the applicant has asserted the need for greater accountability and transparency. In each instance, this raises abstract policy considerations which have no role in the consideration and application of s 50(4) There is no evidence of any ongoing public debate or public disquiet about any of the matters the subject of the exempt documents which would be meaningfully enhanced by release of the document. 41 Therefore, there is no relevant nonabstract public interest in the matters referred to by the applicant. 42 Is the asserted public interest advanced by disclosure? 2.21 In addition to the abstract public interest of greater transparency or accountability advanced by the applicant, the applicant also asserts that there is a public interest in preventing alcohol related harm. The Department accepts that there is a clear public interest in preventing harm to the community that is caused by or related to the consumption of alcohol However, the exempt documents do not address the public interests asserted by the applicant. There must be a public interest in the release of the document itself. 43 Even if any asserted non-abstract public interest exists, the override may not be exercised unless disclosure of the document is clearly adapted to achieve or calculated to promote that public interest. That is, the override may not be invoked unless disclosure of the document itself would actually advance or promote the asserted public interest Simons v Department of Justice [2006] VCAT Fyfe v Department of Primary Industries [2010] VCAT 240 at [45] (Macnamara DP); Marke v Office of Public Prosecutions (Unreported, Victorian Civil and Administrative Tribunal, Senior Member Megay, 20 May 2009) [16]ff; Ryan v Melbourne Water [2009] VCAT 2079 at [39]; Asher v Department of Premier and Cabinet [2008] VCAT 450 at [148] [154]; Save Albert Park Inc v Australian Grand Prix Corporation [2008] VCAT 168 at [114] (Judge Harbison); Bremner v Latrobe City Council [2010] VCAT 1435 at [28]-[29] (Member Proctor); Marke v Victoria Police [2006] VCAT 1364 at [107] (Senior Member Preuss); Biviano v Victoria Police [2006] VCAT 2542; Dalla-Riva v Department of Treasury and Finance [2007] VCAT 1301 at [59] (Judge Harbison); McDermott v Victoria Police [2008] VCAT 2183 at [44] (Senior Member Megay); Morgan v Department of Human Services [2008] VCAT 2420 at [96] (Senior Member Davis); Ryan v Melbourne Water [2009] VCAT 2079 at [39] ( Coghlan DP); Yarra City Council v Roads Corporation [2009] VCAT 2646 at [65] (Macnamara DP). 43 Munday v Transport Accident Commission [2015] VCAT 2023, [28]. 44 McNamara v Deakin University [2011] VCAT 1089 at [44]; Arundell v Department of Justice [2011] VCAT 1088 at [17]; Just v Department of Justice (1996) 10 VAR 126; Birnbauer v Inner & Eastern Health Care Network (1999) 16 VAR 9, 26; Simons v Department of Justice [2006] VCAT 2053; Conyers v Monash University, [2005] VCAT 2509 at [57]; Rosen v Department of Human Services [2006] VCAT 691 at [122]-[136]; Dalla-Riva v Department of Treasury and Finance [2007] VCAT 1301; Morse v Building Appeals Board (No. 2) [2007] VCAT 2344 at [34]; Geelong Community for Good Life Inc v Environment Protection Authority & Anor [2009] VCAT 2429 at [125]- [130]; The Herald and Weekly Times Pty Ltd v Department of Premier and Cabinet [2013] VCAT 250; Munday v Transport Accident Commission [2015] VCAT 2023, [28]. 8

9 2.23 The documents concerned do not address, advance or promote the matters asserted by the applicant. That is, if disclosed, the document would not advance the matters put forward by the applicant as purported public interests. 45 particular, disclosure of the documents would not of themselves advance the prevention of harm to the community that is caused by or related to the consumption of alcohol The High Court has recognised that the public interest override in the Act is unique in freedom of information legislation in Australia. It is a significant and exceptional power and a most extraordinary provision 46 and: it must be accepted that the word "requires" which appears in s 50(4) directs the decision-maker to identify a high-threshold public interest before the power can be exercised. It is not enough that access to the documents could be justified in the public interest. The terminology of the sub-section does not define a rule so much as an evaluative standard requiring restraint in the exercise of the power. It is, like many common law standards, "predicated on fact-value complexes, not on mere facts", to be applied by the decision-maker. (footnotes omitted) (emphasis added) 2.25 An example of where this concept was applied illustrating the high-threshold public interest that is required to be identified in the context of documents exempt on the basis of legal professional privilege is the second Osland decision of the High Court. In the facts and circumstances of that particular case the Court stated: 47 The exercise of the prerogative of mercy in relation to a person convicted of murder engages the public interest at a high level of importance The nature of the differences between the [legal] advices was such as to be capable of supporting the formation of an opinion that the public interest required the disclosure of the documents. It was, at the very least, arguable, in the circumstances of the case, that the high-threshold public interest standard was met and that the public interest required disclosure of the contending, essentially normative propositions which the Attorney- General had before him when he recommended that Mrs Osland's petition be denied The applicant has, it is submitted, not raised any public interest of a sufficiently high threshold which would be advanced by disclosure. 48 In As the Tribunal has 45 See, for example, the reasoning of Senior Member Davis in the following decisions: Mann v Medical Board of Australia [2010] VCAT 1525 at [35] [37]; Mitchell v Victorian Competition and Efficiency Commission [2009] VCAT 2218 at [116]-[119]; The Herald and Weekly Times Pty Ltd v Department of Premier and Cabinet [2013] VCAT 250 (Senior Member Smithers). 46 Osland v Secretary, Department of Justice (No.2) [2010] HCA 24 at [14] (French CJ, Gummow J and Bell J); Osland v Secretary, Department of Justice [2008] HCA 37 at [100] (Kirby J); Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331 at 341 [28] (Phillips JA). 47 Osland v Secretary, Department of Justice (No.2) [2010] HCA 24 at [47]-[48]. 48 See also Bremner v LaTrobe City Council [2010] VCAT 1435 at [29] (Member Proctor). 9

10 recognised since the final High Court Osland decision, the public interest override is a very stringent test and creates a very high barrier Where disclosure has possible adverse consequences and would not significantly contribute to public debate, it is not apparent that the information in the documents is of such an order that their release is required in the public interest. 50 Second condition: the public interest does not require release 2.28 Even if the grounds put forward are public interest grounds, of a sufficiently high threshold, and they would be advanced by the documents (which is denied), the override cannot be invoked simply because the Tribunal holds the opinion that it is in the public interest that the exempt document be released; 51 rather, the question is whether the public interest requires the release of the document: that is, convincingly demands or necessitates disclosure The public interest will only require release of the document if, after examining the strengths of the competing interests, the Tribunal finds that the considerations of the public interest are so strong as to override (and not simply outweigh) those factors that confer exempt status on the document in the first place. 53 How strong the public interest factors must be to prevail in a particular case depends on the nature and strength of the factors that confer exempt status on the documents in question From the observations by the Court of Appeal in the Osland case (which were not disapproved of by the High Court and which represent good law), it is clear that this aspect of the public interest override namely that the public interest requires disclosure will only be satisfied in exceptional cases: See for example Mann v Medical Board of Australia [2010] VCAT 1525 at [37] (Senior Member Davis). 50 Elsing v Department of Justice (Unreported, Victorian Civil and Administrative Tribunal, Dep Pres Galvin, 3 December 1998) Wells v Victoria Police [2006] VCAT 1644 at [31] (Judge Bowman V-P). 52 Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, , 353. See also Stewart v Australian Grand Prix Corporation [2008] VCAT 167 at [103]-[108] (Judge Harbison V-P); Coulson v Department for Victorian Communities (Unreported, Victorian Civil and Administrative Tribunal, Senior Member Galvin, 4 October 2007); Ormonde v Darebin City Council [2008] VCAT 588 at [93] (Senior Member Preuss); XYZ v Victoria Police [2010] VCAT 255, [575]. 53 Williams v Victoria Police [2007] VCAT 1194 at [69] (Judge Bowman V-P); Morse v Building Appeals Board (No. 2) [2007] VCAT 2344 at [32] (Senior Member Davis); Chadwick & Department of Property & Services (1987) 1 VAR 444 at Department of Premier and Cabinet v Hulls [1999] 3 VR 331, 340, 342, Arundell v Department of Justice [2011] VCAT 1088 at [29]; Currie v Building Commission [2008] VCAT 979 at [32]; Mees v University of Melbourne [2009] VCAT 782 at [103]; Mitchell v Victorian Competition and Efficiency Commission [2009] VCAT 2218 at [120]; Rogers v Chief Commissioner 10

11 (a) (b) it is a stringent test and the case for release must, in effect, be irresistible. 56 The word required in the context of s 50(4) of the FOI Act connotes obligation, necessity or compulsion. 57 (c) There is a notion of the imperative involved. 58 Having regard to the fact that consideration of s 50(4) only arises after a determination has been made that a document is exempt, it is not surprising that the legislature should set the criterion for the operation of the section by reference to a concept of necessity. 59 (d) (e) To apply s 50(4) properly the Tribunal has to be able to express itself in terms which conveyed that it had no practical alternative but to allow access and that result has to be emphatic. 60 The Tribunal must be of the opinion that unless access was granted the public interest would suffer or be diminished in some way. Short of such a state of satisfaction the public interest would not require that there be access to the documents Justice Bell, then President of this Tribunal, has described the operation of s 50(4) as follows: The public interest considerations in favour of disclosure must be so strong as to convincingly demand or necessitate release. The tribunal does not simply decide whether it is in the public interest for the documents to be released the public interest must require release in the emphatic sense in which that term is used. Nor does the tribunal simply consider the brute fact that the documents are exempt it must consider the interests protected by the exemptions as well. The public interest considerations of Police [2009] VCAT 2526 at [99]; Osland v Secretary, Department of Justice [2008] HCA 37 at [116] (Kirby J). 56 Secretary, Department of Justice v Osland [2007] VSCA 96, [92], [113]; Secretary, Department of Justice v Osland [2009] VSCA 69; Stewart v Australian Grand Prix Corporation [2008] VCAT 167 at [103] (Judge Harbison); Ormonde v Darebin City Council [2008] VCAT 588 at [92] (Senior Member Preuss); Geelong Community for Good Life Inc v Environment Protection Authority & Anor [2009] VCAT 2429 at [134] (Coghlan DP). 57 Secretary, Department of Justice v Osland [2007] VSCA 96 at [122]; Secretary, Department of Justice v Osland [2009] VSCA Mees v University of Melbourne [2009] VCAT 782 at [105]. 59 Mees v University of Melbourne [2009] VCAT 782 at [105]; Simons v Department of Justice [2006] VCAT 2053 at [72] (Judge Davis V-P); McDermott v Victoria Police [2008] VCAT 2183 at [42] (Senior Member Megay). 60 Secretary, Department of Justice v Osland [2007] VSCA 96 at [123]; Asher v Department of Premier and Cabinet [2008] VCAT 450 at [147]. 61 Secretary, Department of Justice v Osland [2007] VSCA 96 at [123]; McNamara v Deakin University [2011] VCAT 1089 at [44] (Senior Member Billings); Duncan v Victoria Police [2011] VCAT 1000 at [28]. 11

12 in favour of disclosure must extend beyond generalised statements and be reasonably particularised. Section 50(4) is to be applied after the consideration of any public interests which arise under the exemptions. 62 (emphasis added) 3. CONCLUSION 3.1 This is not a case where any public interests in favour of disclosure are so strong as to convincingly demand or necessitate release or override those factors that confer exempt status on the documents in the first place. Such a conclusion is not irresistible and this is not a case where there is no practical alternative but to allow access. 63 Nor is this a case where unless access was granted the public interest would suffer or be diminished in some way. As we have seen, short of such a state of satisfaction the public interest would not require that there be access to the exempt documents. 3.2 Mere advancement of accountability or transparency or satisfaction of the curiosity of an individual applicant is not sufficient to satisfy the Tribunal that there is an overriding public interest that requires the release of the document. 64 The applicant has not put forward any public interest reason in favour of disclosure which may be of such sufficient importance or weight to override the exemptions applicable to the documents. 3.3 Further, any matters of concern to the applicant (which have not been specifically articulated and are merely stated generally) can be fully raised and debated in public fora and elsewhere without access to the disputed documents; 65 it is submitted that there is no requirement of the public interest for the purposes of s 50(4) XYZ v Victoria Police [2010] VCAT 255 at [575]. See also, Williams v Victoria Police [2005] VCAT 2516 at [55] (Coghlan DP). 63 Asher v Department of Premier and Cabinet [2008] VCAT 450 at [154] (Judge Harbison V-P). 64 Arundell v Department of Justice [2011] VCAT 1088 at [29]; Asher v Melbourne Water [2009] VCAT 1079 at [64] (Coghlan DP); Donnellan v Casey City Council [2009] VCAT 915 at [29]; Geelong Community for Good Life Inc v Environment Protection Authority & Anor [2009] VCAT 2429 at [134]; Dalla-Riva v Department of Treasury and Finance [2007] VCAT 1301 at [54], [56] (Judge Harbison); Marke v Office of Public Prosecutions (Unreported, VCAT, Senior Member Preuss, 20 May 2009). 65 Western Suburbs Legal Service Inc v Department of Justice [2010] VCAT 2009 at [31] (Coghlan DP); Save Albert Park Inc v Australian Grand Prix Corporation [2008] VCAT 168 at [113] (Judge Harbison V-P). 66 Landes v VicRoads [2009] VCAT 2403 at [51] (Macnamara DP); Just v Department of Justice (1996) 10 VAR 126 at 129 (Macnamara DP). 12

13 3.4 It cannot be said that public knowledge of the contents of the documents will lead to specific, identifiable and substantial public benefit. There is nothing in the documents that is essential or important for the public to know In short, this is not one of the exceptional cases in which the public interest override operates. Indeed, the public interest considerations in favour of not disclosing the documents far outweigh any interests asserted by the applicant. 3.6 Accordingly, it is submitted that the decision of the respondent to refuse access to the exempt documents ought to be affirmed. Dated: 4 October 2016 FOI Solutions Solicitors for the Respondent 67 Dalla-Riva v Department of Treasury and Finance [2007] VCAT 1301 at [55], [57] (Judge Harbison V-P). 13