STATEMENT OF LEGAL CONTENTIONS 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) and Applicant DEPARTMENT OF JUSTICE AND REGULATION Respondent STATEMENT OF LEGAL CONTENTIONS OF THE RESPONDENT 1. INTRODUCTION 1.1 This Statement of Legal Contentions 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 ). The Department intends to rely on this Statement at the hearing. 1.2 The documents described in the Amended Schedule of Exempt 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). 2. SECTION 28 GENERALLY 2.1 The objects clause of the FOI Act makes it clear that the intention of Parliament is that the FOI Act be interpreted so as to further the object of extending as far as possible the right of the community to access information held in documentary form by the government of Victoria limited only by exemptions necessary for the protection of essential public interests and private and business affairs It is well established, however, that s 28 recognises that one of those essential public interests is in the proper and uninhibited operation of Cabinet decision-making 1 Section 3(2), FOI Act. Ryan v Department of Infrastructure [2004] VCAT 2346, [32] per President Justice Morris. 1

2 processes. 2 Section 28 was intended to provide complete protection from release of all documents connected with the deliberations of Cabinet Furthermore, s 28(1) of the FOI Act recognises that the documents that are protected by Cabinet confidentiality extend beyond documents that actually record any deliberation or decision of Cabinet SECTION 28(1)(b) 3.1 Section 28(1)(b) of the FOI Act provides that a document is an exempt document if it is: 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. 3.2 The exemption turns upon the purpose for which a document has been prepared. 5 In determining whether a document was prepared for the purpose of submission for consideration by the Cabinet, it is sufficient that one of the substantial purposes for which the document was prepared was for submission for consideration by the Cabinet. 6 It need not be the sole purpose. 7 It can be the dominant or one of a number of significantly contributing purposes. 8 The purpose could be one of a number of purposes provided it was a substantial purpose... The purpose identified in the relevant paragraph of s.28(1) may be the dominant purpose or one of a number of significantly contributing purposes. Notwithstanding that the objects of the Act set out in s.3 appear to me to warrant construing the rights conferred by the Act liberally and exemptions narrowly, in my view, as long as a purpose meeting the statutory description was causative in the sense that, but for its presence, the power would not have been exercised, it need not have been the sole purpose for the preparation of the document in question. I do not think that the Act requires release of a document disclosing material considered and dealt with by Cabinet merely because the document, which was principally prepared for submission to Cabinet or to brief a Minister in relation to Cabinet issues, 2 Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission [2013] VCAT 822, [18]; O Brien v Department of Treasury and Finance [2016] VCAT 1282, [17] per Vice President Judge Millane. 3 Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission [2013] VCAT 822, [19]; O Brien v Department of Treasury and Finance [2016] VCAT 1282, [17] per Vice President Judge Millane 4 Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission [2013] VCAT 822, [18]. 5 Ryan v Department of Infrastructure [2004] VCAT 2346, [34] per President Justice Morris; O Brien v Department of Treasury and Finance [2016] VCAT 1282, [17] per Vice President Judge Millane. 6 Dalla Riva v Department of Treasury and Finance [2005] VCAT 2083; Asher v Department of Infrastructure [2006] VCAT 1375; Ryan v Department of Infrastructure [2004] VCAT 2346, [34] per President Justice Morris; State Owned Enterprise for Irrigation Modernisation in Northern Victoria v Manners [2010] VSC 516, [12] per Hargrave J. 7 Donellan v Linking Melbourne Authority [2014] VCAT 1027, [62]. 8 Fyfe v Department of Sustainability and Environment [2012] VCAT 222, [30]; Secretary, Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11, [13], [24]; Asher v Department Premier and Cabinet [2008] VCAT 450, [55]-[56] per Vice President Judge Harbison; Ryan v Department of Infrastructure [2004] VCAT 2346, [34] per President Justice Morris; O Brien v Department of Treasury and Finance [2016] VCAT 1282, [17] per Vice President Judge Millane. 2

3 also served another purpose or other purposes It is not necessary to prove that the document was actually submitted to the Cabinet. 10 document. 11 Nor is it necessary to prove that the Cabinet actually considered the 3.4 But the actual use made of the document may be relevant in ascertaining the purpose for which the document has been prepared (but is not decisive) It is not enough it the document was merely prepared for submission to Cabinet; must be for submission for consideration by the Cabinet The exemption applies if the document was prepared for the purpose of that document being submitted for consideration by the Cabinet. It is not sufficient if it was prepared for the purpose of preparing a second document for submission to the Cabinet The exemption is not made out just because a document is circulated to every Minister for information, and it may not require a Cabinet decision, but it must be likely of at least being discussed at a meeting of Cabinet: 4. SECTION 28(1)(ba) It might not be a matter on which an actual decision must be made, but it must be a matter which is likely to be considered to the extent, at least, of being discussed at a meeting of Cabinet. Unless the exemption is limited in that way it would extend to any documents circulated to Ministers for information Section 28(1)(ba) of the FOI Act provides that a document is an exempt document if it is: a document prepared for the purpose of briefing a Minister in relation to issues to be 9 Secretary, Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11, [13] per Buchanan JA. 10 Ryan v Department of Infrastructure [2004] VCAT 2346, [34] per President Justice Morris; Asher v Department of Premier and Cabinet [2002] VCAT 499 at [9]; Wilson v Department of Premier and Cabinet (2001) 16 VAR 455, 459; O Brien v Department of Treasury and Finance [2016] VCAT 1282, [17] per Vice President Judge Millane. 11 Pullen v Alpine Resorts Commission (Unreported, AAT of Vic, Deputy President Macnamara, 23 August 1996); Wilson v Department of Premier and Cabinet [2001] VCAT 663; Olexander v Department of Premier and Cabinet [2002] VCAT 497; Asher v Department of Premier and Cabinet (Unreported, VCAT, Vice President Judge Strong, 26 June 2001); Stewart v Australian Grand Prix Corporation [2008] VCAT Ryan v Department of Infrastructure [2004] VCAT 2346, [34] per President Justice Morris; Secretary to the Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11, [15]; State Owned Enterprise for Irrigation Modernisation in Northern Victoria v Manners [2010] VSC 516, [13] per Hargrave J; O Brien v Department of Treasury and Finance [2016] VCAT 1282, [17] per Vice President Judge Millane. 13 Ryan v Department of Infrastructure [2004] VCAT 2346, [36] per President Justice Morris. 14 Asher v Department of Infrastructure [2006] VCAT 1375, [35]-[37]; Secretary, Department of Infrastructure v Asher [2007] VSCA 272, [33], [55]. 15 Olexander v Department of Premier and Cabinet [2002] VCAT 497, [46] per Vice President Judge Strong. 3

4 considered by the Cabinet. 4.2 Section 28(1)(ba) goes beyond other categories of Cabinet exempt documents in other paragraphs of s 28(1) and in some ways is an extension of the concept of Cabinet documents. 16 This is because the exemption applies to documents which were neither prepared for the purpose of going into the Cabinet room, nor record what occurred in the Cabinet room Section 28(1)(ba) creates a two limb test. First, that a document was prepared for the purpose of briefing a Minister. Secondly, that the briefing of the Minister was in relation to an issue that was, as assessed objectively at the time the briefing occurred, an issue to be considered by the Cabinet. 18 First limb purpose of the briefing 4.4 The exemption turns upon the purpose for which a document has been prepared. 19 In determining whether a document was prepared for the purpose of briefing the Minister in the relevant sense, it is sufficient that one of the substantial purposes for which the document was prepared was to brief the Minister. It need not be the sole purpose. It can be the dominant or one of a number of significantly contributing purposes. 20 The purpose could be one of a number of purposes provided it was a substantial purpose... The purpose identified in the relevant paragraph of s.28(1) may be the dominant purpose or one of a number of significantly contributing purposes. Notwithstanding that the objects of the Act set out in s.3 appear to me to warrant construing the rights conferred by the Act liberally and exemptions narrowly, in my view, as long as a purpose meeting the statutory description was causative in the sense that, but for its presence, the power would not have been exercised, it need not have been the sole purpose for the preparation of the document in question. I do not think that the Act requires release of a document disclosing material considered and dealt with by Cabinet merely because the document, which was principally prepared for submission to Cabinet or to brief a Minister in relation to Cabinet issues, also served another purpose or other purposes It is not necessary to prove that the document was actually submitted to the Cabinet 16 Environment Victoria Inc v Department of Primary Industries [2013] VCAT 39, [29]; O Brien v Department of Treasury and Finance [2016] VCAT 1282, [17] per Vice President Judge Millane. 17 Ibid. 18 Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission [2013] VCAT 822, [18]; O Brien v Department of Treasury and Finance [2016] VCAT 1282, [17] per Vice President Judge Millane. 19 Ryan v Department of Infrastructure [2004] VCAT 2346, [34] per President Justice Morris; O Brien v Department of Treasury and Finance [2016] VCAT 1282, [17] per Vice President Judge Millane. 20 Fyfe v Department of Sustainability and Environment [2012] VCAT 222, [30]; Secretary, Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11, [13], [24]; Asher v Department Premier and Cabinet [2008] VCAT 450, [55]-[56] per Vice President Judge Harbison; Ryan v Department of Infrastructure [2004] VCAT 2346, [34] per President Justice Morris; O Brien v Department of Treasury and Finance [2016] VCAT 1282, [17] per Vice President Judge Millane. 21 Secretary, Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11, [13] per Buchanan JA. 4

5 or even used to actually brief a Minister. 22 But the actual use made of the document may be relevant in ascertaining the purpose for which the document has been prepared (but is not decisive) Related to this is that even if a matter is ultimately considered by Cabinet that does not clothe a briefing paper after the event with exemption; nor does knowledge that the issue might arise in the Cabinet at some stage in the future. 24 But it is sufficient if there is an intention and expectation that it will be considered by Cabinet, even if it is ultimately not considered by Cabinet. 25 Second limb in relation to an issue to be considered by Cabinet 4.7 The phrase in relation to requires a connection between the purpose of the briefing and issues to be considered by the Cabinet. 26 Further, it is clear that the use of the words in relation to means that any briefing needs to have no more than some relationship, whether direct or indirect, with the issues to be considered by the Cabinet. 27 It requires no more than some form of relationship between two things, here the briefing and the matter to be considered by the Cabinet, which need not be immediate It is sufficient to show that a document was prepared for the purpose of briefing a Minister if it was more than merely placing it before the Minister. If it contains information or advice and is prepared for the purpose of being read by, or explained to, the Minister and the purpose is to inform the person being briefed The reference to the phrase to be considered requires an intention and expectation that a particular issue will be considered in the Cabinet. But the exemption will apply even if the issue is not considered by Cabinet. It is sufficient that there was, at the 22 Ryan v Department of Infrastructure [2004] VCAT 2346, [34] per President Justice Morris; Asher v Department of Premier and Cabinet [2002] VCAT 499 at [9]; Wilson v Department of Premier and Cabinet (2001) 16 VAR 455, 459; O Brien v Department of Treasury and Finance [2016] VCAT 1282, [17] per Vice President Judge Millane. 23 Ryan v Department of Infrastructure [2004] VCAT 2346, [34] per President Justice Morris; O Brien v Department of Treasury and Finance [2016] VCAT 1282, [17] per Vice President Judge Millane. 24 Thwaites v Department of Health and Community Services (Unreported, AATA of Vic, Macnamara DP, 4 April 1996 at p9); O Brien v Department of Treasury and Finance [2016] VCAT 1282, [17] per Vice President Judge Millane. 25 Fyfe v Department of Sustainability and Environment [2012] VCAT 222 at [30]; Mildenhall v Department of Treasury and Finance (unreported AAT of Vic, Macnamara DP, 18 March 1996); Batchelor v Department of Treasury and Finance [1998] VICCAT Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission [2013] VCAT 822, [30]; O Brien v Department of Treasury and Finance [2016] VCAT 1282, [17] per Vice President Judge Millane. 27 O Grady v Northern Queensland Co Ltd (1990) 169 CLR 356, 376 per McHugh J. 28 Office of the Premier v The Herald & Weekly Times Pty Ltd [2013] VSCA 79, Fyfe v Department of Sustainability and Environment [2012] VCAT 222 at [29]; Ryan v Department of Infrastructure [2004] VCAT 2346, [41]; Cole v Department of Justice (1994) 8 VAR 114, 125; O Brien v Department of Treasury and Finance [2016] VCAT 1282, [17] per Vice President Judge Millane 5

6 time the document was prepared, an intention and expectation that the Cabinet would consider the issues raised in the document SECTION 28(1)(c) 5.1 Section 28(1)(c) of the FOI Act provides: A document is an exempt document if it is a copy or draft of, or contains extracts from, a document referred to in paragraph (a), (b) or (ba) 5.2 A document will be exempt under section 28(1)(c) if it is a reproduction or preliminary version or contains a quotation or paraphrase 31 of a document referred to in section 28(1)(a), (b) or (ba). 5.3 Where a document contains extracts from another document, although it may refer to that other document, a failure to do so is not fatal particularly where there is evidence of the process of extraction of content from the Cabinet document. Therefore, for example, a briefing note has been held to contain extracts from a Cabinet submission and was exempt under s 28(1)(c) where it was clear on the evidence that the latter was used to prepare the former This exemption has been made out even where a document merely contained only the titles of briefing papers prepared for the purpose of briefing a Minister in relation to matters to be considered by Cabinet. 33 This was so even though the evidence did not categorically guarantee that the title in each document was indicative of its contents. The Tribunal was satisfied that it was more probable than not that the titles indicate the subject matter of the briefing and thus more likely than not were extracts from documents referred to in s.28(1)(ba). 5.5 It is submitted that in the present case the connection between documents is even more obvious and more clear. 6. SECTION 28(1)(d) 6.1 Section 28(1)(d) of the FOI Act provides that a document is an exempt document if it is: 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. 30 Fyfe v Department of Sustainability and Environment [2012] VCAT 222 at [30]; Mildenhall v Department of Treasury and Finance (unreported AAT of Vic, Macnamara DP, 18 March 1996); O Brien v Department of Treasury and Finance [2016] VCAT 1282, [17] per Vice President Judge Millane. 31 Mildenhall v Department of Education (unreported, VCAT, Glover M, 16 April 1999); Honeywood v Department of Human Services [2006] VCAT 2048, at [19]. 32 Honeywood v Department of Human Services [2006] VCAT Pallas v Department of Premier and Cabinet [2013] VCAT 877, [34]. 6

7 6.2 A document is exempt under section 28(1)(d) if its disclosure would involve the disclosure of a decision or deliberation of Cabinet. 6.3 The provision does not state that the exemption applies if disclosure of the document would itself disclose any deliberation or decision of the Cabinet; it applies if disclosure would involve the disclosure of any deliberation or decision of the Cabinet. Parliament must have intended the word involve to have operation according to its ordinary meaning and be seen as expanding rather than narrowing the reach of the exemption. 6.4 The word involve is a verb that means: 34 to include; to contain, imply To include as a necessary (and therefore unexpressed feature, circumstance, antecedent condition, or consequence Therefore, a document is exempt under section 28(1)(d) where a necessary consequence of disclosure of the document would be the disclosure of any deliberation or decision of the Cabinet. 6.6 As has been stated by the President of the Court of Appeal, 35 when used in s 28(1)(d), the word involve means imply, entail, make necessary 36 or contain implicitly; include as essential; imply, call for, entail Disclosure of a document may involve disclosure of a deliberation of Cabinet not just by what is contained in the document itself, but also when considered in the light of what may already be known Whether the documents were prepared before or after the meeting of Cabinet at which deliberations occurred is not determinative of the issue. 39 Disclosure of a document that was created before a meeting of Cabinet to which the document relates, may disclose a deliberation of Cabinet in the subsequent meeting Deliberation of an issue or matter or options includes consideration, discussion 41 or evaluation 42 of that issue or matter or those options. It means more than mere 34 Oxford English Dictionary 35 Victoria Police v Marke [2008] VSCA 218 at [7], [8] and footnote The Australian Concise Oxford Dictionary (4 th ed, 2004) The New Shorter Oxford English Dictionary (4 th ed, 1993) Victoria Police v Marke [2008] VSCA 218 at [94] (Pagone AJA). 39 Dalla-Riva v Department of Treasury and Finance (2005) 23 VAR 396; [2005] VCAT 2083 (Judge Davis VP). 40 See Ryan v Department of Infrastructure [2004] VCAT 2346 (Morris J, P); Toomer v Department of Agriculture, Fisheries and Forestry [2003] AATA 1301 at [96]; City Parking Pty Ltd v City of Melbourne (1996) 10 VAR 170. In National Tertiary Education Industry Union v Commonwealth (2001) 188 ALR 614, 630 the Court found that a document that was created prior to the Cabinet meeting in question and did not actually record the deliberations of Cabinet, nevertheless disclosed those deliberations. 41 Secretary to the Department of Infrastructure v Asher [2007] VSCA 272 at [6] (Buchanan JA), with whom Vincent and Redlich JJA agreed at [52], [54] respectively. 7

8 receipt of information in the Cabinet room, and connotes careful consideration with a view to the making of a decision. 43 It means Cabinet s treatment of a subject matter Primary emphasis should be placed upon the content of the document in determining the consequences of its disclosure for the purposes of section 28(1)(d). 45 However a document need not disclose on its face that it was considered by Cabinet in order to be exempt under s 28(1)(d). 46 Indeed, the whole of the evidence, including the document, must be examined in order to determine whether it in fact discloses deliberations or decisions of Cabinet. 47 It is not restricted to arguments or evidence taken into account by the respondent agency. 48 It would be inappropriate for the Tribunal to not take into account all the relevant evidence but merely rely on the face of the documents themselves to determine whether disclosure had a particular effect in determining whether any document is exempt or not It is submitted that in determining whether disclosure of a document would involve a decision or deliberation of Cabinet is a question of fact to be decided in the light of all the circumstances. 49 The whole of the evidence, of which the document is only a part, must be examined in order to determine the question of whether it in fact disclosed deliberations or decisions of Cabinet. A document need not disclose on its face that it was considered by Cabinet in order to be exempt under section 28(1)(d) extrinsic evidence can properly be taken into account A document will be exempt under section 28(1)(d) if there is evidence that Cabinet discussed various options contained in the document and chose between those options. 51 Similarly, it would be exempt if it was a document that disclosed that 42 Secretary to the Department of Infrastructure v Asher [2007] VSCA 272 at [58] (Redlich JA). 43 Dalla-Riva and Department of Treasury and Finance [2005] VCAT 2083; Birrell v Department of Premier and Cabinet (No. 3) (1987) 2 VAR 32, 34; Asher v Department of Sustainability and Environment [2010] VCAT 601, [42]. 44 Secretary, Department of Infrastructure v Asher [2007] VSCA 272 at [6] (Buchanan JA). 45 Secretary to the Department of Infrastructure v Asher ([2007] VSCA 272 at [61] (Redlich JA). 46 Secretary to the Department of Infrastructure v Asher [2007] VSCA 272, [2007] VSCA 272: this was assumed by Buchanan JA for the sake of argument at [4]. 47 Dalla-Riva v Department of Treasury and Finance; [2005] VCAT 2083 (Judge Davis VP). 48 Ryder v Booth [1985] VR 869, 887, 885; Ambikapathy v Victorian Legal Aid (unreported, VCAT, Macnamara DP, 27 August 1999); Towie v Medical Practitioners Board of Victoria [2004] VCAT 2545 at [20]. 49 Anderson v Department of Special Minister of State (No. 2) [1986] AATA 81 at [27]. 50 Secretary, Department of Infrastructure v Asher [2007] VSCA 272 at [4] (Buchanan JA), at [47] - [52] (Vincent JA); at [61] (Redlich JA) on the facts of that case there was no evidence to draw inferences of what may have been the subject of deliberation or decision. See also Asher v Department of Premier and Cabinet [2008] VCAT 450 at [89]-[94] (Judge Harbison VP). 51 Smith v Department of Sustainability and Environment [2006] VCAT 1228 at [23]; Asher v Department of Infrastructure [2006] VCAT 1375 at [27]. 8

9 Cabinet required information of a particular type for the purpose of enabling Cabinet to determine whether a particular course of action was practicable or feasible Cabinet deliberations could be disclosed not merely by the release of the substance of debate in Cabinet or the exposure of disagreement between its members, but also by the mere disclosure of the subject matter that would reveal what Ministers in Cabinet had on their minds Where there is evidence that a document was considered by Cabinet, that is sufficient to justify a claim for exemption under section 28(1)(d). 54 It is submitted that where the contents of a document were considered by and deliberated on by Cabinet the exemption would equally be satisfied Decision means any conclusion as to the courses of action that Cabinet adopts whether they are conclusions as to the final strategy on a matter or conclusions as to the manner in which a matter is to proceed In Smith v Department of Sustainability and Environment, 56 Justice Morris P concluded that parts of a report generated by KPMG were exempt under section 28(1)(d) even though the report itself was not before the relevant Cabinet Committee. He found that the Committee had deliberated over the options identified and articulated in the Report, those options having been extracted in a submission that was considered by the Committee. 7. SECTION 30(1) 7.1 Section 30 of the FOI Act provides: Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act (a) (b) 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 would be contrary to the public interest. 52 Secretary, Department of Infrastructure v Asher [2007] VSCA 272 at [8] (Buchanan JA). 53 Mildenhall v Department of Premier and Cabinet (No. 1) (1995) 8 VAR 284; Mildenhall v Department of Premier and Cabinet (No. 2) (1995) 8 VAR 478); Wilson v Department of Premier and Cabinet (2001) 16 VAR 455; Asher v Department of State and Regional Development (2002) 19 VAR Honeywood v Department of Innovation, Industry and Regional Development [2004] VCAT 1657 (Judge Dove VP); Asher v Department of Infrastructure [2005] VCAT Dalla-Riva and Department of Treasury and Finance [2005] VCAT 2083; Asher v Department of Infrastructure [2006] VCAT [2006] VCAT

10 7.2 There are therefore three conditions that must be satisfied before the exemption in s 30(1) is made out: disclosure of the document must disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister; or disclose matter in the nature of consultation or deliberation that has taken place between officers, Ministers, or an officer and a Minister; and the opinion, advice or recommendation, or the consultation or deliberation, must have come about 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 disclosure of the document must be contrary to the public interest. 7.3 The purpose of the exemption is: to protect the deliberative processes of government and to ensure that measure of confidentiality which will enable policy and the like decisions to be taken after the frankest possible interchange of views and ideas between officers of the public service and between them and their Minister, as well as between members of the ministry 57 The first condition opinion, advice etc. 7.4 Section 30(1) is concerned with information generated within an agency rather than information obtained from outside the agency. 58 However, it is sufficient if the opinion, advice or recommendation is expressed by an officer of an agency (and not necessarily the agency whose deliberations are protected) A document will not be exempt under s 30(1) by reason only of purely factual material contained in that document: s 30(3). However, material is not purely factual if its release would have the consequence of disclosing what is not factual and what the legislation aims to protect, namely, the deliberative processes of an agency Information will be generated within an agency if it comes from an officer or a Minister. Officer includes not only a member of the agency and a member of the staff of the agency, but also any person employed by or for the agency, whether that 57 Penhalluriack v Department of Labour and Industry (Unreported, County Court of Victoria, Lazarus J, 19 December 1983), p Ryder v Booth [1985] VR 869 at Delta-Riva v Department of Treasury and Finance (2005) 23 VAR 396 at [30]; Moloney v Department of Human Services (2010) 18 VAR 238 at [55]. 60 Brog v Department of Premier and Cabinet (1989) 3 VAR

11 person is one to whom the provisions of the Public Administration Act 2004 apply or not The expression opinion, advice or recommendation conveys a meaning of matters in the nature of a personal view, an opinion recommended or offered, or a presentation worthy of acceptance In order to satisfy s 30(1), it is only necessary to show that the document in question would disclose matter in the nature of opinion, advice or recommendation, consultation or deliberation. The document need not actually record or contain matter of such nature, let alone be in the nature of opinion, advice or recommendation, consultation or deliberation. 63 It is sufficient if the documents in question need only relate to the relevant deliberative processes and need not comprise those processes Where consultation or deliberation has occurred, it is sufficient that the discussions take place between officers of different agencies, as long as they relate to the deliberative processes of one of those agencies or a Minister or the government. 65 The second condition deliberative processes 7.10 The second condition of the internal working documents exemption is that the opinion, advice or recommendation was prepared, or the consultation or deliberation took place, in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government : s 30(1)(a) The expression deliberative processes is a term of wide ambit. It includes any of the processes of deliberation or consideration involved in the functions of an agency (Minister or government) [i]n short its thinking processes the processes of reflection, for example, upon the wisdom and experience of a proposal, a particular decision or a course of action s 5, Freedom of Information Act 1982 (Vic). 62 Johnson v Cancer Council of Victoria [2016] VCAT 1596, [216], per President Justice Garde; Halliday v Office of Fair Trading (unreported, AAT of Vic, Coghlan PM, 20 July 1995) at Mildenhall v Department of Education (1998) 14 VAR 87, 90; Akers v Victoria Police (No.2) [2003] VCAT 398 at [24]. 64 Scott v Office of the Assistant Treasurer [2013] VCAT 2015, [24]-[26]. 65 Brog v Department of Premier and Cabinet (1989) 3 VAR 201; Thwaites v Department of Health and Community Services (1995) 8 VAR 361, Johnson v Cancer Council of Victoria [2016] VCAT 1596, [218], per President Justice Garde; Brog v Department of Premier and Cabinet (1989) 3 VAR 201 at 208; Wells v Department of Premier and Cabinet [2001] VCAT 1800 at [24]; Mildenhall v Department of Education (1998) 14 VAR 87, 90. See also Corry v Victoria Police [2010] VCAT 282 at [39]. 11

12 7.12 Deliberative processes are no more than the processes of thinking and discussion leading to a decision about how to act in a particular situation. 67 The language of s 30 is sufficient to extend its operation to deliberative processes which lead to a decision as to how to act in a particular situation Section 30(1) is not confined to documents which form part of the process of determining government policy or relating to agency policies, 69 even though the process of broad policy formulation is regarded as the clearest example of the kind of deliberative process contemplated by section 30(1). 70 The third condition contrary to the public interest 7.14 In order for the public interest requirement in section 30(1)(b) to be met, it is necessary for the agency to show that release of the document would harm the public interest in some way The Tribunal does not need to be satisfied to an extreme degree of satisfaction that public harm would follow, but the standard of satisfaction required should reflect the seriousness of the issue in question. 72 The respondent does not need to provide overriding and compelling reasons to the effect that disclosure would be contrary to the public interest In particular, under section 30(1)(b), the Tribunal must be satisfied that disclosure would be contrary to the public interest, not that the public interest would require nondisclosure In deciding whether release would be contrary to the public interest, all of the relevant circumstances must be examined and weighed up. Inevitably that determination will involve a judgement as to where the public interest lies, made in the context of the objects of the FOI Act set out in s In Sportsbet Pty Ltd v Department of Justice, 76 the Tribunal described the public interest test as follows: 67 Corry v Victoria Police [2010] VCAT 282 at [39] [40] per Dep Pres Macnamara. 68 Ibid at [40]. 69 Ibid; Gordon v Commissioner for Corporate Affairs (1985) 1 VAR 114 at 116; Moloney v Department of Human Services (2001) 18 VAR 238 at [67]; Hoskin v Department of Education and Training [2003] VCAT 946 at [25]-[28]. 70 Pullen v Alpine Resorts Commission (unreported, AAT of Vic, Macnamara DP, 13 June 1996); Hoskin v Department of Education and Training [2003] VCAT 946 at [25]. 71 Thwaites v Department of Human Services (unreported, VCAT, Nedovic PM, 15 December 1998) at [28]; Simons v Department of Justice [2006] VCAT 2053 at [17]. 72 Thwaites v Department of Human Services (unreported, VCAT, Nedovic PM, 15 December 1998) at [28]. 73 Marshall v Country Fire Authority (unreported, VCAT, Walker SM, 9 June 2000) at [33]. 74 Forwood v Department of Human Services [2001] VCAT 1995 at [24]. 75 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 at [5] per Gleeson CJ and Kirby J (who were in dissent but not on this issue). 12

13 the application of the public interest in s 30(1)(b) involves a balancing of various considerations. The starting point is the object of the Act in s 3(1), which emphatically recognises the right of the community to access information, limited only by exemptions which protect essential public interests. Those purposes are always directly relevant when considering the public interest, but may be especially strong, and outweigh other aspects of the public interest, where access to the information is necessary to address questions that have acquired a particular importance in the mind of the community Among the relevant considerations, the Tribunal identified the purpose of the exemption in s 30 as set out by the President of the Court of Appeal, Maxwell P, 77 as follows: the efficient and economical conduct of government, protection of the deliberative processes of government, particularly at high levels of government and in relation to sensitive issues, and the preservation of confidentiality so as to promote the giving of full and frank advice The Tribunal has also held that although a matter may not concern the high workings of government, it was nonetheless important in an agency that there be efficient and economical conduct and protection of the deliberative process Of course, the onus is on the agency to show that on balance disclosure would be contrary to the public interest under s 30(1)(b) of the FOI Act. 79 There is, of course, a need to carefully look at where the public interest balance lies in each particular case what is required in each case is a consideration of where the public interest lies relative to the particular document or documents in dispute. There is no universal answer as to where the public interest lies with respect to internal working documents The following (non-exhaustive) list of factors have been identified as being relevant to the balancing exercise to be carried out in the application of s 30(1)(b): the degree of sensitivity of the issues involved. The more sensitive or contentious the issues involved in the communication, the more likely it is that the communication should not be disclosed. 81 Sensitive issues can 76 [2010] VCAT 8 at [34], quoting from McIntosh v Department of Premier and Cabinet [2009] VCAT 1528, [17] [19]. 77 Secretary, Department of Justice v Osland [2007] VSCA 96 at [77]. 78 Mees v University of Melbourne [2009] VCAT 782 at [38]; Styles v Victorian Workcover Authority [2010] VCAT 1815; Benson v La Trobe University [2012] VCAT 717 at [29]. 79 Costa v Mildura City Council [2014] VCAT 1360, [26]; Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission & Anor [2013] VCAT 822, [38]. 80 Graze v Commissioner of State Revenue [2013] VCAT 869, [27]; Johnson v Cancer Council of Victoria [2016] VCAT 1596, [239], per President Justice Garde. 81 Friends of Mallacoota Inc v Department of Planning and Community Development [2011] VCAT 1889; Tee v Department of Planning and Community Development [2013] VCAT 1150, [13]; Scott v Office of the Assistant Treasurer [2013] VCAT 2015, [33]; Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission & Anor [2013] VCAT 822, [86]. 13

14 include information about the workings of high levels of government, contentiousness of the subject matter, or sensitive economic analysis; 82 the stage of the policy development process at which the communication was made; whether disclosure would be likely to inhibit frankness and candour in the making of communications; whether disclosure would lead to confusion and/or unnecessary debate having regard to possibilities discussed; whether disclosure would give merely a part explanation, at best, rather than a complete explanation, for the making of a particular decision; whether disclosure would be likely to inhibit the independence of officers or the making of proper and detailed research and submissions by them; whether disclosure would be likely to create mischief in one way or another, such as a risk of mischievous interpretation; and the significance of the documents, such as whether they are or are not merely draft documents. 83 Draft internal working documents or preliminary advices and opinions are more generally than not inappropriate for release. 84 Especially when the final version of the document has been made public The Commonwealth AAT has found, in relation to the equivalent Commonwealth provision, that: the higher the office of the persons between whom the communication passes and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed. If the author is very senior, it tends towards disclosure being contrary to the public interest. 86 The same logic applies where the intended readers of a document (such as a briefing) were at the highest levels of government, particularly where they related to matters of significance of 82 Herington v Department of Transport Planning and Local Infrastructure [2014] VCAT 1026, [51], [73]; Environment Victoria Inc v Department of Primary Industries [2013] VCAT 39, [67]. 83 Hulls v Victorian Casino and Gaming Authority (1998) 12 VAR 483, Herington v Department of Transport Planning and Local Infrastructure [2014] VCAT 1026, [51]; Environment Victoria Inc v Department of Primary Industries [2013] VCAT 39, [59]-[60]. 85 Friends of Mallacoota Inc v Department of Planning and Community Development [2011] VCAT Scott v Office of the Assistant Treasurer [2013] VCAT 2015, [33]. 14

15 which the government needed to be aware. 87 It is undesirable to discourage high level officials 88 from committing their views to writing when communicating with the relevant Minister; 89 disclosure of communications made in the course of the development and consequent promulgation of policy tends not to be in the public interest; disclosure which will inhibit frankness and candour in future predecisional communications is likely to be contrary to the public interest; disclosure which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest; and disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making process It is contrary to the public interest where a document has a reasonably proximate relationship to a Cabinet process Where a Ministerial decision about a sensitive issue is the subject of public debate and controversy, release of Ministerial briefings by a department could have the effect of discouraging the department from including useful detail in future Ministerial briefings Where a document does not of itself contain a complete explanation why an agency takes or does not take a particular decision or course of action, it is likely that release of such a document gives rise to the risk of mischievous interpretation In considering whether disclosure is contrary to the public interest it is relevant for the Tribunal to consider what sort of information is being sought and for what purpose it 87 The Herald and Weekly Times Pty Ltd v Department of Premier and Cabinet [2013] VCAT 250, [44]; Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission & Anor [2013] VCAT 822, [86]; Environment Victoria Inc v Department of Primary Industries [2013] VCAT 39, [67]. 88 Murtagh v Federal Commissioner of Taxation (1984) 54 ALR 313 at 326 per Davies J. 89 The Herald and Weekly Times Pty Ltd v Department of Premier and Cabinet [2013] VCAT 250, [44]; Landes v VicRoads [2009] VCAT 2403; Scott v Office of the Assistant Treasurer [2013] VCAT 2015, [33]. In other contexts see also 89 Frugtniet v Legal Services Board [2014] VCAT 1299, [69]. 90 Howard v Treasurer of the Commonwealth (1985) 3 AAR 169 at Applied in Western Mining Corporation v Department of Conservation, Forests and Lands (1989) 3 VAR Environment Victoria Inc v Department of Primary Industries [2013] VCAT 39, [68]; Herington v Department of Transport Planning and Local Infrastructure [2014] VCAT 1026, [51]. 92 Tee v Department of Planning and Community Development [2013] VCAT 1150, [12], [19]. 93 Mann v Medical Board of Australia [2010] VCAT 1525 at [22] and [32]. 15

16 is being used. 94 Disclosure would be contrary to the public interest due to possible mischievous conduct by an applicant including, for example, where an applicant desires to continue on a futile course of action to overturn some action or decision taken by an agency, create inconvenience, cause disruption to governmental bodies and agencies or require officers of agencies to suffer insults The nature of the information is a relevant factor in determining whether disclosure would be contrary to the public interest. If the information is sensitive, tentatively expressed or unclear, it is more likely that its disclosure would be contrary to the public interest. 96 In the absence of some greater public interest militating for the contrary position, preliminary advices and opinions are inappropriate for release Where a final decision is made, it would be inappropriate to release drafts and preliminary exchanges of views and opinions, 98 and in relation to such documents, an applicant ordinarily has a significant hurdle to jump in order to achieve disclosure. 99 Therefore, where a draft is superseded by events and not developed further or to a final version, and does not represent a final position, disclosure would be contrary to the public interest as it could be incomplete and contain inaccurate information Release of drafts may impede the preparation of future advice. Departmental officers should have the opportunity to make drafts of a document and improve upon them without the risk that the drafts will be released to the public. 101 It is important that a freedom be given to a drafter of the documents to make as many drafts as he or she considers desirable in order to create what they consider to be the best finished product The Tribunal has observed that the dangers of releasing documents that do not necessarily represent the final views or opinions of the agency, Minister or government were obvious ; release of such documents could be misleading and 94 O Connor v State Superannuation Board of Victoria (Unreported, County Court, 27 August 1984) p 24, Judge Dixon referred to in Billinghurst v Department of Industry Technology and Resources (1986) 1 VAR 299, Billinghurst v Department of Industry Technology and Resources (1986) 1 VAR 299, Thomas v Department of Natural Resources and Environment [2002] VCAT 533 at [27]. 97 Pescott v Department of Conservation and Environment (1991) 5 VAR 54, Western Mining Corporation v Department of Conservation, Forests and Lands (1989) 3 VAR 150, 160. Agreed with in Wyman v Monash University (unreported, AAT of Vic, Judge Smith P, 20 August 1991). 99 Wyman v Monash University (unreported, AAT of Vic, Judge Smith P, 20 August 1991). 100 Honeywood v Department of Innovation, Industry and Regional Development [2004] VCAT 1657 at [16], [29]; Moloney v Department of Human Services (2001) 18 VAR 238, 243, Id [28]. 102 Lambert v Vicroads [2008] VCAT 850, [38]. 16

17 confusing and, rather than assisting public confidence, may have the opposite effect As has been succinctly stated by this Tribunal: 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 It is contrary to the public interest to release the views of officers or a recommendation where those views or the recommendation were subsequently overtaken by events. 105 Particularly where they do not reflect what finally occurred Decision-makers should be judged on the final decision and their reasons for it, not on what might have been considered or recommended by others in preliminary or draft internal working documents The potential to mislead and cause unnecessary debate is heightened when matters contained in the documents do not accurately reflect the final outcome of the decision making process SECTION 33(1) 8.1 Section 33 of the FOI Act relevantly provides: (1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person). (2A) An agency in deciding whether the disclosure of a document under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person, must take into account, in addition to any other matters, whether the disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person. (9) In this section information relating to the personal affairs of any person includes information 103 Moloney v Department of Human Services (2001) 18 VAR Yarra City Council v Roads Corporation [2009] VCAT 2646 at [24] per Dep Pres Macnamara. 105 Thomas v Department of Natural Resources and Environment [2002] VCAT 533 at [27]; Roy Morgan Research Centre Pty Ltd v State Revenue Office (unreported, VCAT, Coghlan DP, 17 June 1999) p 35; Tilley v VicRoads [2010] VCAT 483, [88] per Member Proctor. 106 Dalla Riva v Department of Justice [2007] VCAT 660, [26] per Judge Bowman VP. 107 Ibid. 108 Thomas v Department of Natural Resources and Environment [2002] VCAT 533 at [27]; Dalla Riva v Department of Justice [2007] VCAT 660 at [56]. 17

18 (a) that identifies any person or discloses their address or location; or (b) from which any person's identity, address or location can reasonably be determined. 8.2 A document is therefore exempt under s 33(1) if the following two limbs are satisfied: if access were granted to the document, it would involve the disclosure of information relating to the personal affairs of any person (including a deceased person); and such disclosure would involve the unreasonable disclosure of that information. First limb personal affairs information 8.3 The first limb is satisfied if the document would involve disclosure of information relating to the personal affairs of any person, including a deceased person (other than the applicant: see s 33(2)). That phrase is defined in s 33(9) to include information: (a) (b) that identifies any person or discloses their address or location; or from which any person's identity, address or location can reasonably be determined. 8.4 The words personal affairs have a wide interpretation and mean matters of private concern to an individual 109 or that something affects or concerns a person as an individual. 110 It is clear that s 33(9) applies to all natural persons, including officers of agencies; 111 to read down the expression any person to exclude agency officers is impermissible The Tribunal has stated that: The simple removal of a names (sic), dates places etc, in effort to remove the [s 33] exemption assumes an extremely narrow definition of information relating to personal affairs. The authorities are clear that material arising out of a person s work performance can relate to the personal affairs of a person. The Tribunal adopts a broad definition of personal affairs that extends beyond a name or simple personal identification See for example Hutchison v Department of Human Services (1997) 12 VAR 422, ; F v Health Department (1988) 2 VAR 458, Hanson v Department of Education and Training [2007] VCAT 123 at [9]. 111 See, for example, Geelong Community Good Life Inc v Environment Protection Authority & Anor [2009] VCAT 2429 per then Deputy President Coghlan at [48]. 112 Morgan v City of Port Phillip [2008] VCAT 978 at [42]. 113 Mickelburough v Victoria Police (unreported, VCAT, 19 February 2009), per Member O Halloran at [39]; Gunawan v Directorate of School Education (1994) 6 VAR 418,