VCAT

GENERAL LIST
28 February 2012

victorian civil administrative tribunal

&

VCAT Reference Number: Your Ref:

G315f2011

Ms Melissa Fyfe GPO Box 257 MELBOURNE VIC 3001

Dear Sir/Madam

Re: Ms Melissa Fyfe v Department of Sustainabllity & Environment-FOI Unit
I enclose a copy ofVCAT's Order in this matter.

Yours faithfully

Melissa Biram Registrar, Administrative Division

Encl:

Level 7,55 King Street, Melbourne Vic 3000 GPO Box 5408, Melbourne Vic 300 [

DX 2 [0160 Melbourne Internet: http.Zwww.vcat.vic.gov.au

Telephone Facsimile

03 9628 9755 03 9628 9788

VICTORIAN CIVIL AND ADMINISTRATIVE ADMINISTRATIVE GENERAL LIST DIVISION

TRIBUNAL

VCAT REFERENCE

NO. G315/2011

CATCHWORDS Freedom of Information Act 1982 - s 28(1)(ba) - whether briefing documents for an incoming government prepared by the public service are exempt because they were prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet

APPLICANT RESPONDENT WHERE HELD BEFORE .

Melissa Fyfe Department of Sustainability & EnvironmentFOI Unit Melbourne L'Proctor, Senior Member Hearing 23 January 2012 29 February 2012

HEARING TYPE DATE OF HEARING DATE OF ORDER CITATION

ORDER 1.

Ian Proctor Senior Member

APPEARANCES:

ForMsFyfe For DSE:

In person MrPHanks QC

REASONS Introduction

1.

In April 2011, VCAT received an application under the Freedom of Information Act 1982 (the FOI Act) from Ms Fyfe, a journalist with The Age newspaper. She makes the application as an employee of The Age. Therefore, I informally refer to The Age as the applicant. The Age sought from the Department of Sustainability & Environment (DSE) the post-election briefing documents prepared by DSE before the 2010 Victorian Election for briefing a new government, should the Victorian Liberal Nationals Coalition (the Coalition) win the election, which it did. These documents are known as the "Blue Book". DSE refused to release parts of the Blue Book, being the: a) Departmental Status Report (DSR) prepared in respect ofDSE; and b) Policy Implementation Action Plan (PIAP) prepared in respect of the election policies announced by the Coalition related to DSE.

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DSE claimed exemption under sections 28(1)(ba) (cabinet documents) and 30(1) (internal working documents) of the FOI Act. The Age submits VCAT should decide the documents are not exempt. At the nearly two day VCAT hearing, Ms Fyfe represented The Age. Mr Hanks QC represented DSE. The evidence from senior public servants and from The Age related to exemption under sections 28(1)(ba) and 30(1). The Age tendered a range of documents relevant to section 30(1). They included excerpts from a Blue Book released by the New South Wales Government, a Red Book released by the Commonwealth Government and media comment about those documents. For the reasons set out below, I decide the documents are exempt under section 28(1)(ba) of the FOI Act. Therefore, I need not decide whether they are also· exempt under section 30(1) and do not refer to evidence relevant to that exemption.

5. 6.

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Background

Undisputed facts 8. In Victoria, the State Government Election is held every four years in November. In early 2010, the Victorian Public Service turned its mind to the election due in November 2010. Labor was in government.

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9.

The Public Service began a process to create two briefing books, one for the Labor Government should it be re-elected (the Red Book) and the other for the Coalition should it be elected (the Blue Book). The Blue Book was to include DSRs and PIAPs from each government department. The Secretary, . Department of Premier and Cabinet (DPC) asked the Secretary, DSE to prepare a DSR and PIAP relating to DSE to be included in the Blue Book. At a general level, the Blue Book advises the new Premier about how to establish the operations of the new government, how to establish a functioning Cabinet, the processes of decision-making in government, cabinet decisionmaking and matters likely to be discussed at Cabinet, including the incoming government's pre-election commitments with advice about how they can be implemented. The DSRs generally dealt with structural questions and the PIAPs with policy questions. In early 2010, DPC issued guidelines about the creation of DSRs and PlAPs. They say in part,
A ... DSR is a document that sets out for the information of the Premier the current status of the department. The Premier may also provide the DSR to the relevant minister ... , The DSRs are prepared in confidence for the consideration of the Cabinet and will be presented to Cabinet by the incoming Premier .., preparation ofDSRs ... should be in strict accordance with guidelines for document and information security relating to Cabinet in confidence information .... If the Coalition is elected to government, the incoming premier and ministers are given the Blue Books. PIAPs provide advice to the incoming premier on how a particular policy can be implemented. :.. PIAPs are 'Cabinet-in- Confidence' documents and must be treated as such.
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During 2010, the Public Service wrote the Blue Book, of about 4,400 pages. Stringent document security was in place. The content of the DSR for each department focuses on the status of that Department. Its contents are drawn from internal sources in a predictable way. However, the content of each PIAP was based on policies announced by the Coalition before or during the election campaign. The Public Service did not seek further information from the Coalition about its policies: Advice about potential implementation necessarily involved educated guesswork. The Blue Book was completed the day before the election. Until then, it evolved in response to the election campaign. The Coalition won the election. The Secretary, DPC gave the Blue Book to the newly elected Premier at the first meeting between the Premier and the Secretary and deputy secretaries of DPC. No evidence was put to VCAT as to how the Blue Book was then used.

13. 14.

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Evidence on facts in dispute 15. 16. The purpose for the creation of the Blue Book and the DSR and PlAP from DSE is central to this proceeding. Mr Phillip, Deputy Secretary, DPC gave evidence that he was responsible for general oversight of the preparation of the Blue Book at DPC. He understood the primary audience was the incoming Premier, if the Coalition won the election. This was "discussed at senior levels within the Public Service, before the Blue Book was created. During the development of the Blue Book, Mr Phillip understood it (including the DSRs and PIAPs) would be considered by the new Cabinet, and that the Blue Book would be necessary for the Cabinet to be formed and to function efficiently. He approved the final version of the Blue Book and recommended to the Secretary, DPC that he provide it to the Premier. This was to enable the Premier to consider his options in forming a cabinet, to identify issues that ought to be considered by Cabinet and to establish a government agenda, particularly via the decision-making processes of Cabinet. However, how the Blue Book was in fact used, was for the Premier to decide. In cross-examination, Ms Fyfe asked him if in reality, only the material drafted by DPC was actually intended for submission to the new Cabinet. Mr Phillip disagreed, speaking of the Blue Book as a whole. She queried whether the Book was written for the relevant ministers of departments rather than predominantly for the Premier. Mr Phillips confirmed the Premier was the primary audience. Mr Clearihan, Director, Office of the Secretary, DSE was responsible for advice and high-level support to the Secretary, DSE in all functions and roles. He gave evidence that in 2010, he understood the DSR and PIAP being prepared by DSE to be highly confidential and to be treated as cabinet-in-confidence. In cross-examination, he confirmed his view that the Blue Book was prepared to go to DPC for the Premier who uses it to brief Cabinet. The relevant part of the Book, "eventually returns to the department and the ministers who are in place". Mr Fennessy, Acting Secretary, DSE, previously Deputy Secretary, Natural Resources and Environment Policy, DSE based his evidence on his experience in working with the government over a number of election cycles. He is familiar with the briefings given to incoming governments and in particular, the Blue Book. He described his responsibility for approving some of the content of parts of the Blue Book submitted by DSE to DPC. He said the Blue Book is written primarily for the incoming Premier. The Blue Book was prepared with the expectation that all the material would go to the Premier and then would go to Cabinet for discussion. He agreed those at DSE preparing it would "never mow ultimately if Cabinet would discuss and implement issues".

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22.

In cross-examination, he said in a sense parts of the Blue Book are for ministers who will likely use them. However he said there was a, "specific process ... literally premier, Cabinet, ministers and then ongoing". Ms Fyfe attempted totender a statement about the use by the previous Labor Government of Red Books. She said the statement was from a confidential source, being a previous Labor Government minister. DSE objected to the tendering of this evidence. I ruled the evidence inadmissible on the basis that to admit it would deny DSE natural justice in that it would have no opportunity to cross-examine the confidential source. Beyond asking Ms Fyfe if she would agree to identify the source, so potentially giving the opportunity to crossexamine (she declined), DSE did not seek that Ms Fyfe identify the confidential source.

23.

Legal considerations

TheFOI Act
24. Under section 13 of the FOI Act, The Age has the right to obtain documents from DSE unless a document is wholly or in part an exempt document as defined by the Act. Section 3 says the object of the FOI Act is to extend as far as possible the right of the community to access to information in the possession of the Government of Victoria and other bodies constituted under the law of Victoria for public purposes and that any discretions conferred by the Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information. Section 16 says DSE shall administer the FOI Act with a view to making the maximum amount of information promptly and inexpensively available to the public. Section 28 of the FOI Act relevantly says:
28 Cabinet documents (ba) a document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet; (3) Subsection (1) does not apply to a document referred to in a paragraph of that subsection to the extent that the document contains purely statistical, technical or scientific material unless the disclosure of the document would involve the disclosure of any deliberation or decision of the Cabinet.

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(1) A document is an exempt document ifit is-

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In considering section 28(1)(ba) I considered Morris J's words in Re Ryan v Department of Infrastructure (2004) 22 VAR 226 at 234,
Certainly there is a potential for the exemption for Cabinet documents to manifest itself in a way that substantially affects the availability of politically sensitive documents. .,. it is the intention of the Parliament that .,. as far as possible, the right of the community to access to information in the possession of the Government of Victoria, limited only by exemptions necessary for the protection of essential public interests and private and business affairs . ... a document is not exempt merely because it has some connection with Cabinet, or is perceived by departmental officers or others as being of a character that they believe ought be regarded as a Cabinet document or because it has some Cabinet "aroma" about it. Rather, for a document to come within the Cabinet document exemption, "it must fit squarely within one of the four exceptions" in section 28(1) of the Act. .... '" the following principles have clearly emerged concerning the exemptions in paragraphs (b) and (ba) of sed ion 28(1) of the Act: • The exemptions tum upon the purpose for which a document has been prepared. • It is not necessary to prove that the document was actually submitted to Cabinet or a minister. • 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 of this question. • A document will only be exempt if the sole purpose, or one of the substantial purposes, for which the document was prepared was an exempt purpose. It has also been. said that having regard to the context of section 28(1) of the Act the expression ."consideration by the Cabinet" suggests consideration as a step in a deliberative process. On this basis, the exemption would not apply to documents circulated to all ministers forming the Cabinet merely for information purposes. (citations omitted) •

29.

Justice Morris went on to say at 236~
When it comes to section 28(1)(ba) of the Act ... In this case the purpose for which the document must be prepared, to be an exempt document, is the purpose of "briefing" a minister in relation to issues to be considered by the Cabinet. It is not enough for a document to be exempt for it to be placed before a minister and be in relation to issues to be considered by the Cabinet. Rather it is necessary that it be prepared for the purpose of briefing a minister; and this means much more than for the purpose of placing a document before a minister. In general parlance the word "briefing" means a short, accurate summary of the details of a plan or operation. The purpose of a briefing is to inform the person being briefed. Hence the exemption ought be limited to documents that have the character of briefing material. Generally a document will have such a character if it contains information or advice and is prepared for the purpose of being read by, or explained to, a minister. However a document will not have the character of briefing material merely because the document was prepared with the intention of physically placing the document before a minister. ... as observed by the Full Court of the Supreme Court of Victoria in Ryder v Booth, the Freedom of Information Act is remedial legislation and where ambiguity is encountered the rights given by the Act should be construed liberally and the exceptions narrowly. The Parliament would not have intended that virtually any document prepared by a department could be made exempt by simply placing it before Cabinet or a minister, or by forming an intention when it was prepared to place it before Cabinet or a minister.

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30.

The principles 1should consider are: a) whether the dominant or one of the substantialpurposes for which the DSR and PIAP were prepared was to brief a minister in relation to issues to be considered by the Cabinet. See Morris J in Ryan at 226 and Department of Treasury and Finance v Dalla Riva 26 VAR 96 at 100 concerning, "dominant purpose or one of a number of significantly contributing purposes"; whether that dominant purpose was causative in the sense that but for its presence the DSR and PlAP would not have been prepared. See DallaRiva (2007) 26 VAR 96; whether the documents were prepared for the purpose of briefing a minister in relation to issues to be considered by the Cabinet. See Cole v Department of Justice (1994) 8 VAR 114 at 125 and Ryan quoted above; whether the documents were created with an intention and expectation that Cabinet would consider issues raised in them and that they were not simply placed before Cabinet for information purposes. See Ryan quoted above; . whether the purpose of the documents in terms of their connection with the Cabinet process goes beyond some unsubstantiated belief that the documents ought to be regarded as Cabinet documents or because they have some Cabinet "aroma" about them. See Re Birnbauer and Department of Industry, Technology and Resources (1986) 1 VAR 297 at 286 as referred to in Mildenhall v Department of Premier and Cabinet No.1, 8 VAR 1995 284 at 291 and Ryan quoted above; and it is enough that there be an intention and an expectation that the issue will be considered by the Cabinet even if it is ultimately not considered by the Cabinet (Mildenhall v Department of Treasury and Finance (unreported AAT,ofVic, Macnamara DP, 18 March 1996).

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c)

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f)

The Documents

31. 32.

In my view, the whole of both the DSR and the PIAP fit squarely within the section 28(1)(ba) exemption. I found DSE's witnesses to be truthful and reliable. Their evidence withstood cross-examination. My findings are based on their evidence. I also found Ms Fyfe to be truthful and reliable. However, understandably she was unable to provide direct evidence about the internal workings of the Victorian Public Service before the 2010 Election.

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The dominant and one of the substantial purposes to which the DSR and PIAP were created was to brief a minister (the incoming Premier, should the Coalition gain office) in relation to issues to be considered by the Cabinet. That purpose permeated the Public Service's actions in early 2010, commencing a complex process to prepare for a potential change of government or the re-election of the current government. When the new Government was elected, within a very short time, senior officers ofDPC held a meeting with the new Premier and his staff at which the Blue Book was handed to the Premier for consideration by him and presumably his staff with the expectation that he would consider using the documents to brief the new Cabinet. The documents were also created for another purpose, being to eventually reach the minister of DSE once appointed. However, that purpose does not displace the dominant purpose. The dominant purpose led to the documents being created in a generic form across government departments in the manner which they were created. It appears likely that if DSE prepared the documents to brief its new minister, they would have taken a very different form, likely allowing for more detail. Perhaps they would not have been called DSR or PIAP.

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36. - The DSR was written to brief the Premier, as the chair of Cabinet, to: a) consider and determine the appropriate structure of Cabinet subcommittees having regard to the resources available and issues facing the Government; and

b) - provide the necessary context in which decisions in Cabinet can be made. 37. The PIAP was written to brief the Premier to: a) b) inform him of issues likely to form part of the Cabinet agenda; provide advice on issues connected with the incoming government's preelection promises, in anticipation that they will be discussed in Cabinet shortly after its establishment; and provide an informed assessment of pre-election promises that can be considered by Cabinet for the purposes of determining what its position ought to be in government.

c)

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While it was ultimately up to an incoming Premier to decide whether to in fact use the documents to brief a new Cabinet, the purpose at the time the documents were created was formed with the realistic expectation that the documents would be put to Cabinet to consider issues raised in them. They were not intended to be placed before Cabinet only for information purposes. The Age submitted parts of the documents should be released under section 28 (3), if they contain" purely statistical technical or scientific material the release of which would not involve the disclosure of any deliberation or decision of the Cabinet. With Macnamara DP's discussion of section 28(3) in Mildenhall No. 18 VAR 1995 284 at 293 in mind, I have reviewed the documents and find no such information. "

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Ian Proctor Senior Member

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