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Terrill and The Department of Transport and Regional Services [2003] AATA 52 (17 January 2003)

Last Updated: 22 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 52

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V02/131

GENERAL ADMINISTRATIVE DIVISION	)
	Re	PAUL TERRILL

Applicant

And

THE DEPARTMENT OF TRANSPORT AND REGIONAL SERVICES

Respondent

DECISION

Tribunal

Mrs Joan Dwyer, Senior Member

Date 17 January 2003

Place Melbourne

Decision

The Tribunal varies the decision under review to provide that the only documents or parts of documents which are "exempt documents" are those shown as "exempt" or "partially exempt" in the following Schedule of Documents:

SCHEDULE OF DOCUMENTS

Doc No	File 2001	Pages	Date	Description of Document	Created By	Directed to	Decision
1	0129	180 178 177	Unknown 16.2.01	Fax advice requested by Minister's office 2pages	Office of the Minister Assistant Secretary, Roads Investment	Department officers Minister and Others	p180 release p178 release p177 exempt
2	0494	64 63 62	16.02.01	Minute to Minister -	Assistant Secretary Roads Investment	Minister	p64 release p63 release p62 release
21	1310	118 117	6.06.01	Minute to Minister 2 pages	Assistant Secretary Roads Investment	Minister	p118 exempt p117 exempt
24	1843	109 108 107 106	Prior to Visit of Minister on 14.8.01	Talking points for media	Unknown	Minister	p109 p108 p107 p106 release all 4 pages
		127 126 125 124		Briefing for talking to Councils Talking points for Councils Briefing for talk to Save our City	Department	Minister	p127 partially exempt delete 2 paras above last line p126 & p125 release p124 partially exempt delete material under headings Issue1 & Issue 2
		135-134 132-131	10 August 2001	Minute duplicate of 135-134	Assistant Secretary Roads Investment	Minister & another	p135-134 release pp132-131 release

(Sgd) Joan Dwyer

Senior Member

FREEDOM OF INFORMATION - whether documents are exempt under s 36(1) of the Freedom of Information Act 1982 - "deliberative processes involved in the functions of an agency" - "contrary to the public interest" - decision varied

Freedom of Information Act 1982 ss 11(1) and (2), 22(1), 36(1) and (5), 61(1) and (2), 64(1)

Re Sunderland and Department of Defence 11 ALD 258

Re Waterford and Department of Treasury No 2 (1984) 5 ALD 588

Secretary, Department of Work Relations and Small Business v The Staff Development & Training Centre Pty Ltd [2001] FCA 1375

Re McGarvin v APRA (AAT 585, 30 July 1998)

Re Howard and Treasurer of Commonwealth of Australia (1985) 7 ALD 626

Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs 1996)

23 AAR 142

Re Rae and Department of Prime Minister in Cabinet (1986) 12 ALD 589

REASONS FOR DECISION

17 January 2003	Mrs Joan Dwyer, Senior Member

1. This is an application under the Freedom of Information Act 1982 (" the Act") for review of a reviewable decision made under that Act on 12 December 2001 which granted Mr Terrill access to many documents the subject of his request for access made on 21 August 2001, but refused access to other documents on the ground that they were exempt documents under ss 33 and 36 of the Act.

2. By the time at the matter came on for hearing there had been further consideration and further documents had been released. The respondent no longer relied on s 33 of the Act. The only exemptions claimed were pursuant to s 36 of the Act. During the hearing document 22 pages 5-7 were released with the deletion of one name. Document 24 pages 116-123 were agreed to be outside the request. At the conclusion of the hearing the only documents remaining for consideration were:

Doc No	File 2001	Pages	Date	Description of Document	Directed to	Created By
1	0129	180 178 177	Unknown 16.2.01	Fax advice requested by Minister's office 2pages	Department officers Minister and Others	Office of the Minister Assistant Secretary, Roads Investment
2	0494	64 63 62	16.02.01	Minute to Minister -	Minister	Assistant Secretary Roads Investment
21	1310	118 117	6.06.01	Minute to Minister 2 pages	Minister	Assistant Secretary Roads Investment
24	1843	109 108 107 106	Prior to Visit of Minister on 14.8.01	Talking points for media	Minister	Unknown
		127 126 125 124		Briefing for talking to Councils Talking points for Councils Briefing for talk to Save our City	Minister	Department
		135-134 132-131	10 August 2001	Minute duplicate of 135-134	Minister & another	Assistant Secretary Roads Investment

3. Mr W. Friend of Counsel appeared for Mr Terrill at the hearing. Mr P Ginnane of Counsel appeared for the respondent. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and the exhibits tendered during the hearing. After the hearing the applicant, as discussed during the hearing, forwarded to the Tribunal the Executive Summary of a report referred to in the applicant's Statement of Facts and Contentions together with an explanation of a comment he had made about that report. The Tribunal received those documents as exhibit A4 and invited the respondent to make a submission in response. The Tribunal received and considered the respondent's response dated 16 October 2002.

4. Counsel agreed that the background facts were not in dispute. They are set out in the applicant's Statement of Facts and Contentions under the heading Background Information as follows:

BACKGROUND INFORMATION

1. The Commonwealth Government declared a National Highway System throughout Australia in 1974 and identified the Hume Highway between Melbourne and Sydney as a National Highway. In taking on the financial responsibility for the National Highway, the Commonwealth Government issued guidelines to the State Government agencies that undertake the planning and maintenance of the highway as agents of the Commonwealth Government.

2. The existing Hume Highway passes through the regional city of Albury-Wodonga, which is located on the Victorian-NSW Border.

3. The need for a bypass of Albury-Wodonga has been under consideration for over twenty-five years. There have been numerous studies carried out to gain an understanding of the potential traffic that would be attracted to a bypass and the relevant costs and benefits of the various options available to address the needs of the community and the road user.

4. A 1995 study identified two primary route options - an external bypass approximately 10km to the west of Albury-Wodonga and an internal bypass through the urban area (land for an internal bypass was reserved and acquired a number of years previously).

5. A 1996 independent panel inquiry, comprising representatives of the Commonwealth, Victorian and NSW Governments, recommended the internal bypass as the preferred option and to abandon the external bypass route. The Commonwealth Government accepted these recommendations

6. In 1998 the then Federal Minister for Transport and Regional Development, Mr Mark Vaile, announced that the internal bypass would proceed and the external bypass route would be abandoned.

7. On 22 May 2000, following community protests against the internal bypass and increases in its estimated cost, the Federal Minister for Transport and Regional Services, Mr John Anderson ("'the Minister"), announced that a review of the estimates for an external bypass and an internal bypass would be undertaken. The cost of an "internal boulevard" would also be considered (an internal boulevard, running along the same route as the internal bypass but being a lower standard road, was considered to be desirable if the external bypass was chosen because the second road link between Albury and Wodonga that would have been provided by the internal bypass would no longer be available).

8 Connell Wagner (Consulting Engineers) were appointed to conduct the review and FlagStaff Consulting were appointed as an independent auditor to review the work of Connell Wagner.

9. On 21 February 2001, the Minister announced that the external bypass had been selected as the route for the National Highway and that the Commonwealth Government would also contribute $70m to an internal boulevard, with the remaining $75m to be contributed by the NSW and Victorian Governments.

5. Mr Friend referred to paragraphs 19 and 20 of the applicant's contentions. He said that he understood that the factual matters set out in those paragraphs were not challenged. They read as follows:

19. The decision by the Minister on 21 February 2001 to fully fund the external bypass and contribute $70m to the internal boulevard involved a total commitment of approximately $400m in public funds, which is a very substantial amount of money. The decision also overturned the Government's previous decision to proceed with the internal bypass, which had been based on the recommendation of the independent panel inquiry. It is in the public interest that the Minister's decision and the reasons for it should be open to public scrutiny.

20. A number of landowners on the external route will be adversely affected by the decision to adopt the external bypass (the Applicant is acting on behalf of a number of these landowners in this matter). Significant decisions, investment and planning has been undertaken by these landowners in reliance on the Government's previous decision to adopt the internal bypass and to abandon the external bypass. They consider that the Minister has not adequately explained the reasons behind his decision to switch from the internal to the external bypass. The concept of natural justice would seem to indicate that these landowners should have access to the information upon which the Minister based his decision to adopt the external bypass.

6. Mr Ginnane did not disagree with Mr Friend's assertion that the background facts were not in dispute. Nor did he take any objection, at the commencement of the hearing to Mr Friend's reliance on paragraphs 19 and 20 of the applicant's contentions.

7. On that basis the hearing proceeded without evidence being given by Mr Terrill. During Mr Friend's submissions in reply, Mr Ginnane appeared to object to Mr Friend relying on the assertions as to factual matters set out in paragraphs 19 and 20 of Mr Terrill's Statement of Facts and Contentions. When Mr Friend and the Tribunal pointed out that those paragraphs had been read out by Mr Friend in his opening submissions, and that he had explained that it was his understanding that there was no dispute about the factual matters in those paragraphs, Mr Ginnane did not proceed to make any formal objection. Had he done so the only appropriate course would have been to allow Mr Terrill to give evidence and be cross examined by the respondent as to the facts set out in paragraphs 19 and 20.

8. Of course the contentions in paragraphs 19 and 20 as to the public interest and as to the concept of natural justice are issues as to which the Tribunal must form its own view.

GENERAL PROVISIONS OF THE ACT

9. Section 3 of the Act sets out the objects of the Act. It provides as follows:

3. (1) The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:

(a) making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and

(b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and

(c) creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.

(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this 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.

10. The right to access to documents is set out in s 11 of the Act which provides:

11. (1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a) a document of an agency, other than an exempt document; or

(b) an official document of a Minister, other than an exempt document.

(2) Subject to this Act, a person's right of access is not affected by:

(a) any reasons the person gives for seeking access; or

(b) the agency's or Minister's belief as to what are his or her reasons for seeking access.

11. There is no issue about the fact that the Act applies to the respondent or about the fact that Mr Terrill made a request on 21 August 2001 which complied with s 15 of the Act. He requested access to documents "relating to and connected with the proposed Victorian routes for the proposed Hume Freeway external bypass of Albury Wodonga". A number of decisions were made in response to his request, as Mr Terrill pointed to the existence of further documents meeting his request. Those decisions are helpfully set out and analysed in Mr Ginnane's document headed "Respondent's Supplementary Note of Argument". A reviewable decision was made on 12 December 2001, thus giving rise to a right to review by this Tribunal under s 55 of the Act.

12. It is important to bear in mind the role of s 22(1) of the Act. It provides:

22. (1) Where: (a) an agency or Minister decides:

(i) not to grant a request for access to a document on the ground that it is an exempt document; or

(ii) that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and

(b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:

(i) would not be an exempt document; and

(ii) would not disclose such information; and

(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy; the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.

13. The onus of proof is placed on the respondent by s 61(1) of the Act which provides:

61. (1) Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.

(2) In proceedings under section 58F, 59 or 59A, the party to the proceedings that opposes access being given to a document in accordance with a request has the onus of establishing that a decision refusing the request is justified or that the Tribunal should give a decision adverse to the applicant.

14. The Tribunal required production to it of the documents in issue as allowed for in s 64(1) of the Act which provides:

64. (1) Where there are proceedings before the Tribunal under this Act in relation to a document that is claimed to be an exempt document, section 37 of the Administrative Appeals Tribunal Act 1975 does not apply in relation to the document but the Tribunal, for the purpose of deciding whether the document is an exempt document, may require the document to be produced for inspection by members of the Tribunal only and if, upon the inspection, the Tribunal is satisfied that the document is an exempt document, the Tribunal shall return the document to the person by whom it was produced without permitting any person other than a member of the Tribunal as constituted for the purposes of the proceeding, or a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff, to have access to the document or disclosing the contents of the document to any such person.

THE EXEMPTION RELIED ON IN THIS MATTER

15. The only exemption relied on at the hearing was s 36. It provides so far as relevant:

36. (1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:

(a) would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and

(b) would be contrary to the public interest.

. . .

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

16. Mr Friend pointed out the documents fall into two categories. Some are Minutes from senior public servants to the Minister. In fact they are from Assistant Secretaries. Others are background briefing notes prepared for the Minister to use on a visit he made to Albury/Wodonga on 14 August 2001 at which he met with Councils and the media. There is also one handwritten faxed message from the Minister's office.

17. Section 36(1) requires consideration of two concepts in particular. The first is the meaning of "deliberative processes involved in the functions of an agency". The second is "the public interest" as referred to in s 36(1)(b).

(i) deliberative processes involved in the functions of an agency

18. The first concept that requires consideration is the meaning of "the deliberative processes involved in the functions of an agency." In Re Waterford and Department of Treasury No 2 (1984) 5 ALD 588 at pp 606-607 the term "deliberative processes" in s 36(1)(a) was held to refer to "the thinking processes of the agency". The Tribunal said:

58 As a matter of ordinary English the expression "deliberative processes" appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. "Deliberation" means "The action of deliberating: careful consideration with a view to decision": see The Shorter Oxford English Dictionary. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. Deliberations on policy matters undoubtedly come within this broad description. Only to the extent that a document may disclose matter in the nature of or relating to deliberative processes does s 36 (1) (a) come into play.

59 It by no means follows, therefore, that every document on a departmental file will fall into this category. Section 36 (5) provides that the section does not apply to a document by reason only of purely factual material contained in the document (see, in this regard, the Full Court decision in Harris (1984) 51 ALR 581). See also s 36 (6) relating to reports and the like. Furthermore, however imprecise the dividing line may first appear to be in some cases, documents disclosing deliberative processes must, in our view, be distinguished from documents dealing with the purely procedural or administrative processes involved in the functions of an agency. A document which, for example, discloses no more than a step in the procedures by which an agency handles a request under the FOI Act is not a document to which s 36 (1) (a) applies.

60 It is documents containing opinion, advice, recommendations etc relating to the internal processes of deliberation that are potentially shielded from disclosure - documents that might, perhaps, have been more aptly described in the headnote as "Internal Thinking Documents". Out of that broad class of documents, exemption under s 36 only attaches to those documents the disclosure of which is "contrary to the public interest": s 36 (1) (b) of the FOI Act and cf ss 35, 36, 37 (1) (b) and 37 (2) of the Administrative Appeals Tribunal Act 1975. (emphasis added)

19. In this matter Mr Friend did not of course have access to the documents in issue. He did not however challenge the assumption that Minutes to a Minister and briefing notes are capable of and likely to satisfying the requirements of s 36(1)(a).

20. Mr Ginnane, in his document setting out the respondent's Supplementary Note of argument, described each relevant document and examined a number of authorities as to what documents fall within s 36(1)(a). He relied on Re Sunderland and Department of Defence 11 ALD 258. In that matter, at p266, the Tribunal suggested that s 36 is concerned with the preservation of the integrity of the decision-making process as a counter-balance to the general right to know. In so far as the documents in question relate to any actual decision-making process they do fall within s 36(1)(a).

21. However the decision by the Deputy Prime Minister and Minister for Transport and Regional Services, the Hon. John Anderson MP to fund an external by-pass and to contribute to the cost of an internal boulevard was announced on 21 February 2001. Mr Terrill in his Statement of Facts and Contentions pointed out that four of the six documents in issue were prepared after that date. Mr Ginnane relied on the decision of the Full Court of the Federal Court in Secretary, Department of Work Relations and Small Business v The Staff Development & Training Centre Pty Ltd [2001] FCA 1375. As the Full Court explained at para 30, s 36(1) covers not only matter "in the nature of", but also matter "relating to" "opinion, advice or recommendation obtained, prepared or recorded , or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency". It will be necessary to examine each document to see whether its disclosure would disclose matter falling within s 36(1)(a).

22. Mr Ginnane submitted that in performing that task the Tribunal should adopt the approach outlined in Re McGarvin and APRA (AAT 585, 30 July 1998). He relied on paragraphs 38 and 43 of the decision in Re McGarvin. In paragraph 38 the Tribunal said that it should adopt a broad rather than a narrow interpretation of the words "consultation" and "deliberation" used in s 36(1)(a). In paragraph 43 the Tribunal said:

43. A reading of the document reveals that it canvasses a number of options open to the Victorian government as to how it fiscally managed public sector superannuation in Victoria. The memorandum covers options as to how correspondence to the Victorian Department, its representatives and the Australian Services Union may be answered. For reasons stated earlier in this decision, the Tribunal does not necessarily accept that documents should be found to be exempt from disclosure on the grounds that release would be contrary to the public interest merely because the documents concern correspondence/discussions at high levels of government. However there is a clear public interest in civil servants being able to communicate in confidence information directly to their responsible Minister on issues which are considered to be sensitive. Even if, as is the case now, some years have elapsed, it may still be considered contrary to the public interest that such correspondence be liable to be released. Having regard to the contents and nature of the advice in the deliberative processes of how government should deal with complex issues involving Commonwealth/State relations and relations with other parties, the Tribunal is satisfied that it would be contrary to the public interest for the document to be released. Accordingly, the exemption under s.36(1) of the FOI Act is made out.

23. Section 36(1)(a) requires that the Tribunal consider what are the deliberative processes involved in the functions of the Department. Mr Ginnane submitted on that issue:

27. The role of the Department is to provide policy advice to the Ministers for Transport and Regional Services portfolio and to deliver a variety of programs on behalf of the Commonwealth Government.

28. As a matter of ordinary English the expression "deliberative processes" is wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. The action of deliberating, in common understanding involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the process of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.

(ii) contrary to the public interest

24. On this aspect of s 36, Mr Friend's most substantial point was that the onus of proof is on the Department and the only evidence on this issue was that in the statement of Mr Wilson made on 5 July 2002. Mr Wilson in paragraph 20 of that affidavit said as to documents 1 and 2:

20. I formed an opinion that a public interest resides in the capacity of the Minister to receive advice from within his department which advice may include opinion or subjective assessment or analysis without concern that such advice will be liable to release into the public domain. I considered that a public interest exists in maintaining the capacity for the Minister to receive advice of such nature and that a release of the document would potentially limit the provision of future advice containing opinion or subjective analysis.

25. In regard to document 21, Mr Wilson stated in paragraph 27:

. . . the document comprises a Minute to the Minister. I regarded the Minute as properly a document that attracts the exempt status afforded by section 36(1)(a) and (b) of the Act. I do not believe that it is in the public interest that advice and opinion and recommendations to Ministers from within their Departments are made public. I made my decision in regard to this document for the same reasons as I determined the application of exempt status to those folios identified in Document 1 and 2 and referred to by me in this statement.

26. In regard to document 24 Mr Wilson stated in paragraph 30:

. . . In my opinion the document falls to be classified as a document that contains matters in the nature of strategy and advice to the Minister and in my judgment fairly and properly attracted the application of exempt status. In making my decision I had regard to the question of the public interest and I determined that it would contrary to the public interest to cause to be disclosed such internal communications and that to do so could adversely affect the manner of the necessary and appropriate transactions that occur within Commonwealth Departments and between Ministers and their advisers.

27. Mr Ginnane seemed to find in Re McGarvin some support for what he described as an "inherent" exempt status of documents falling into the class described in s 36(1)(a). The Tribunal in Re McGarvin did not use that term but there are passages in paragraphs 38, 43 and 49 which can be understood as Mr Ginnane read them. On the other hand in each of those paragraphs, the Tribunal did make reference to the contents of the relevant document.

28. In paragraph 38 the Tribunal in Re McGarvin said:

38. . . .. Given the contents of the paragraphs, the Tribunal is satisfied that it would be contrary to the public interest for them to be released in that if such material was to be released, officers may feel some reluctance to record sensitive issues if they thought those issues may be revealed for public scrutiny and consequently, would be inhibited from making a record. Since the making of a record is essential to allow government to operate in an informed way and disclosure would defeat that purpose, the Tribunal is satisfied that s.36(1)(b) is satisfied for the last two paragraphs.

29. In paragraph 43, as set out in paragraph 22 above the Tribunal in Re McGarvin relied on "a clear public interest" in civil servants being able to communicate in confidence information directly to their responsible Minister on issues which are considered sensitive.

30. In paragraph 49 the Tribunal said:

49. In paragraph 101 of exhibit 1 Mr Kriz sets out six reasons as to why it would be contrary to the public interest (s.36(1)(b)) for the documents to be released. These reasons relate largely to concerns that, if the documents are released, the material may mislead the public. The Tribunal does not see it in quite the same light - rather the Tribunal has formed the conclusion that the documents set out the understanding of the position of the parties as at the date the documents were created. That that may not be the ultimate position taken by the respondent with respect to the issues raised in the documents does not, in the view of the Tribunal, lead to the conclusion that their release would necessarily mislead the public. As stated, the documents in as far as they record a view of the Victorian Government and of the respondent's response to it, indicate the position of those parties at that particular time. The fact that the position of the parties may change over time does not necessarily mean that the release of the documents would be misleading or confusing to members of the public. However, the Tribunal is of the view that it is desirable that departmental officers have the facility to record conversations and give advice and guidance when it is sought. It is desirable that the advices be notified to other members of the same Department who are, or may be, involved with the issues raised. Any such advice should be able to be given not only frankly, but in an atmosphere where the party recording the conversations should not have to be concerned that his or her record may subsequently be exposed to any other party who may also have an interest in the same subject matter. For this reason, in the view of the Tribunal it would be contrary to the public interest for the information to be released. Accordingly, the Tribunal is satisfied that the exemption is made out.

31. Mr Friend relied on the decision of the Tribunal in Re Murtagh v Federal Commissioner of Taxation (1984) 54 ALR 313, at p323, where the Tribunal, presided over by the President, Davies J, explained the role of s 36 as follows:

It is clear that the public interest is not to be limited by the prescription of categories or classes of documents the disclosure of which to the public would be contrary to the public interest. The public interest is not to be circumscribed. All documents must be examined to ascertain whether, having regard to the circumstances, their disclosure would be contrary to the public interest.

The Tribunal went on, at p325, to say:

In our opinion, the "public interest" looks to matters such as the overall need for confidentiality within the Australian Taxation Office and the nature of the documents to which access is sought, whether they are documents relating to a purely routine assessment or whether they are documents concerned with the investigation of taxation evasion or like matter in respect of which there is special reason for confidentiality. Broadly speaking, s 36 can be seen as an attempt by the legislature to protect the integrity and viability of the decision-making process. If the release of documents would impair this process to a significant or substantial degree and there is no countervailing benefit to the public which outweighs that impairment then it would be contrary to the public interest to grant access.

Moreover, public interest must be considered in the light of s 3(2) of the Act which provides that "... the provisions of this Act shall be interpreted so as to further the object set out in sub-section (1) ...". Section 3(1) provides:

"The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by--

(a) ...

Note the reference to "essential public interests".

32. In that passage the Tribunal expressed the view that some substantial impairment of the integrity and viability of the decision making process would be required and that even so it would only be if, "there is no countervailing benefit to the public which outweighs that impairment", that it would be contrary to the public interest to grant access. The Tribunal also reminded us that the objects of the Act favour release, limited only by the protection of essential public interests.

33. That decision is not consistent with any concept of an inherent public interest against access where documents fall within s 36(1)(a).

34. Davies J again explained how the public interest provision of s 36 operates in Re Howard and Treasurer of Commonwealth of Australia (1985) 7 ALD 626. The present Prime Minister, who was at that time the Deputy Leader of the Opposition, there sought to argue that s 36 did not protect from disclosure documents provided by the then Treasurer (and later Prime Minister) or his department to an ACTU Task Force in relation to the 1984/85 Budget. The Tribunal at pp634-5 set out five factors which are relevant to the decision as to whether disclosure of documents would be contrary to the public interest. Those factors were:

(a) the higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed;

(b) disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest;

(c) disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest;

(d) disclosure, which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest;

(e) 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.

35. The Tribunal in Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 23 AAR 142 suggested that those factors have now been narrowed. Deputy President McDonald there said:

The enunciation of the first four principles by Davies J has been criticised by some in subsequent decisions and academic critiques (see the citations at 41 of the decision in Eccelston's [Eccelston and Dept of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60] case and the detailed discussion carried out by the Information Commissioner with respect to the so-called "Howard principles"; also the discussion by the Information Commissioner of Western Australia in Veale and Town of Basendean (unreported, Decision No D00494, 25 March 1994)), but accepted by others. In the context of determining whether those principles are still of paramount consideration, what is often not recognised is the paragraph of the decision immediately following the statement of principles, which is in the following terms:

"The FOI Act has been in operation since 1 December 1982. As was said in Re Murtagh and Commissioner of Taxation (Cth) (1984) 1 AAR 419; Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN257, and Re Lianos and Secretary, Department of Social Security (1985) 2 AAR 503, the Tribunal has not yet received evidence that disclosure under the FOI Act has in fact led to a diminishment in appropriate candour and frankness between officers. As time goes by, experience will be gained of the operation of the Act. The extent to which disclosure of internal working documents is in the public interest will more clearly emerge. Presently, there must often be an element of conjecture in a decision as to the public interest. Weight must be given to the object of the FOI Act"

As is evident from the above passage, Davies J did not see the principles as being immutable but rather envisaged a flexible approach, governed by time and experience, being taken. A similar conclusion as to the significance of the above quoted paragraph was reached by the Queensland Information Commissioner in Eccleston's case at 38, par 106.

The difficulties associated with giving substance to the otherwise amorphous concept of public interest were highlighted in the Australian Law Reform Commission publication, Report No 70, Administrative Review Council, Report No 40, "Open Government: a review of the federal Freedom of Information Act 1982", at 96, in which the following factors were nominated as being of possible relevance in determining the public interest, namely:

"[Yuml] the general public interest in government information being accessible

[Yuml] whether the document would disclose the reasons for a decision

[Yuml] whether the disclosure would contribute to debate on a matter of public interest

[Yuml] whether disclosure would enhance scrutiny of government decision making processes and thereby improve accountability and participation."

and the following as possibly not being relevant:

"[Yuml] the seniority of the person who is involved in preparing the document or who is the subject of the document

[Yuml] that disclosure would confuse the public or that there is a possibility that the public might not readily understand any tentative quality of the information

[Yuml] that disclosure would cause a loss of confidence in the government

[Yuml] that disclosure may cause the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason."

As will be seen from the above, a number of the principles listed by Davies J in Re Howard stand, as time has passed and experience in administration of the FOI Act has grown, to be considered differently than was the case when they were first pronounced - a fact readily recognised by the learned judge at the time the decision was given.

36. The Tribunal in Re Murtagh did express reservations about the "candour and frankness" argument pointing out, at pp325-6, that it is the duty of a departmental officer to express views both in favour of and against a proposed action so that the argument may be weighed up. Davies J expressed similar reservations in Re Howard at p635.

37. Davies J concluded in Re Howard that it would be contrary to the public interest to release the documents requested. His Honour held that the sensitivity of pre-budget consultations was such that their confidential nature should be preserved as part of the process of deliberation which enables a government to be judged by what it has decided to do rather than by material it has taken into account.

38. Mr Friend pointed out that in Re Rae and Department of Prime Minister in Cabinet (1986) 12 ALD 589, the Tribunal had rejected the submission that there is some inherent public interest in keeping confidential all documents which fall within s 36(1)(a), or that the disclosure of documents within that class should be resisted unless there is some public interest in favour of disclosure. Deputy President Todd said at paragraph 42 p603:

Although the fact of documents having been created in the course of policy-making is relevant to s 36 (1) (a), I am unable to see its relevance to the public interest. The existence of the separate, twin requirement of s 36 (1) (b) clearly suggests that the fact of a document being of a type referred to in s 36 (1) (a) is of no relevance to a consideration of the public interest. By creating two separate requirements in two separate paragraphs, as opposed to the method used in ss 33 (1), 33A (5) and 39 (2) and 40 (2), the legislature appears to have put the two in contradistinction to one another. To accept Mr Gardiner's submission would amount to a dilution of the public interest requirement in s 36 (1) (b). Similarly, I do not consider that because the documents are "high-level" correspondence their disclosure is necessarily contrary to the public interest. It may be that high-level correspondence is more likely than lower-level material to have characteristics which make its disclosure contrary to the public interest. If so, it is those characteristics, and not the mere fact of it being high-level, which makes its disclosure contrary to the public interest. . . . In each case where disclosure was considered to be contrary to the public interest, careful regard was had to the character of the document. In Harris [Harris v Australian Broadcasting Corporation and Others (1983) 5 ALD 545] at 563 Beaumont J, in finding that s 36 (1) (a) material contained in two interim reports on the respondent's legal department was exempt, stressed that the public interest is not a static concept and that full disclosure of the reports, at that stage, would, on balance, be contrary to the public interest. At that stage, the final report had not been released. Similarly, in Kavvadias [Kavvadias v Commonwealth Ombudsman (1984) 54 ALR 285] at ALR 303 it was found to be contrary to the public interest to disclose a draft report of the Ombudsman which criticised officers of the Department of Social Security where that criticism was no longer maintained. . . . I would agree with the observation made by Deputy President Hall in Re Chandra [(1984) 6 ALN N257] at para (67) that there are considerable difficulties in the way of a claim of public interest immunity in respect of a class of documents. In relation to high-level documents, or documents prepared in the course of policy-making, I find it difficult to accept that they can be classed in such a way that their disclosure will always be contrary to the public interest. (emphasis added)

39. Those authorities establish that s 36 of the Act provides a two step process for establishing whether a document is an exempt document. First there is the question whether its disclosure would disclose matter which falls within s 36(1)(a). If a finding is made that it would, there is a further question namely whether that disclosure would be contrary to the public interest. That question cannot be answered by a reference back to s 36(1)(a). It must be answered by reference to the contents of the document, and by considering the balance between the public interest in preserving the ability of public servants to communicate sensitive material to their Ministers or colleagues and to record that material and the public interest in the disclosure of the document. The degree of sensitivity of the material in the document and the anticipated problems which may result from disclosure should be considered and balanced in order to determine whether disclosure would be in or contrary to the public interest.

40. As a number of cases establish, there is a public interest in disclosure of documents as being consistent with the object of the Act as set out in s 3. That object is consistent with open and fair administration, except where there are exemptions necessary for the protection of essential public interests.

41. In this matter the agreed background facts and the applicant's exhibits establish that there has been a significant change of government policy in the relevant area. There was a media release by the Federal Minister for Transport and Regional Development, Mr Mark Vaile on 20 February 1998 which announced (A1):

The Federal Government has accepted the recommendation of the New South Wales and Victorian Government planning processes in favour of an inner Albury route for the Hume Highway and announced today that construction will start this year.

The outer bypass corridor will be abandoned.

The media release considered the matter in more detail and then concluded (A1):

"We owe it to the people of Albury-Wodonga to get on with the job and build it as soon as possible. The uncertainty had to end."

"This project will provide a four-lane divided National Highway standard road that will remove much of the traffic congestion resulting from the mix of through traffic, inter-regional transport movements and local traffic at Albury-Wodonga."

Mr Vaile said the route was preferred by the Commonwealth, New South Wales and Victorian Governments as best meeting the needs of National Highway road users, as well as those of the local community.

"It was the most cost-effective solution to the need for a new route of the Hume Highway at Albury-Wodonga", he said.

42. On 17 April 1998, shortly after that announcement, the Regional Manager of the Roads and Traffic Authority wrote a letter which was sent to landowners in the relevant area. It read:

The Hume Highway is a national highway and, as such, the Federal Government is responsible for funding its maintenance and improvement. The RTA manages the Hume Highway in NSW on behalf of the Federal Government..

On 20 February 1998, the Federal Minister for Transport and Regional development, the Hon. Mark Vaile MP, announced that construction of the inner Albury route for the Hume Highway will commence in 1998 and be finished by 2001.

Mr Vaile also announced that the outer bypass corridor will be abandoned.

These announcements mean that any effects on your property, previously identified in planning documents for the outer bypass, are now removed. You may make any plans and take any actions with regard to your property unencumbered by the outer bypass corridor.

You may recall the undertaking given in early 1994 that the RTA would be prepared to purchase property affected by the outer bypass corridor under hardship provisions in the Land Acquisition (Just Terms Compensation) Act 1991. As a result of the Federal Government's announcement of the abandonment of the outer bypass corridor, this undertaking has now been withdrawn.

43. On 21 February 2001, just three years after the media release of 20 February 1998, a new decision was announced by the Minister for Transport and Regional Affairs, Mr Anderson. He announced "a Federal Government decision to contribute funds for a core internal boulevard as well as construction of an external bypass of the city".

44. Thus the statement of 1998, "The uncertainty had to end", turned out to be an illusion. If landowners had relied on the advice in the letter of 17 April 1998 that they could "make any plans and take any actions with regard to your property unencumbered by the outer bypass corridor", they may have regretted doing so when that advice also turned out to be inaccurate.

45. Where there has been such a significant change in government policy, which affects a town or towns and a number of landowners, there is a public interest in disclosing the reasons for the change. That is to say the public has a right to know why the external bypass, which had been conclusively rejected in 1998, again found favour in 2001, and why the internal bypass was no longer the preferred option. Of course that right of the public is not necessarily the only or even the most significant matter to be taken into account, but it is clearly a relevant public interest consideration.

CONSIDERATION OF THE DOCUMENTS IN ISSUE

46. The documents under consideration are parts of documents 1, 2, 21 and 24. The pages are numbered in reverse so that the first page to be considered has the highest number. Apart from considerations raised by a reading of the documents themselves, the only evidence as to how disclosure would be contrary to the public interest was contained in an affidavit of Mr Wilson who is now Assistant Secretary Non Self Governing Territories. He is the person who made the reviewable decision in this matter on 16 December 2001, when he was Assistant Secretary, Executive Service Group, Department of Transport and Regional Services.

DOCUMENT 1

47. There were 4 pages of document 1 in issue at the start of the hearing, but during the hearing p178A was released to Mr Terrill. The first page in issue is p180. As described in the schedule of documents it is an undated fax from the office of the Minister, The Hon. John Anderson MP to the Department.

48. It does, from its content, seem to relate to the seeking of advice for the purpose of the deliberative processes involved in the functions of the Minister of Transport and Regional Services and his department. Thus s 36(1)(a) is satisfied. As to s 36(1)(b), Mr Wilson did not in his affidavit (R1) specifically address that document, although paragraph 20, quoted in paragraph 24 above applies to it. As set out above that paragraph reads:

49. I indicated during the hearing that I could see nothing in that document which supports a finding that its disclosure would be contrary to the public interest. I find that p180 is not an exempt document.

50. Pages 178 and 177 are a two page Minute dated 16 February 2001 signed by an Assistant Secretary and sent to the Minister with a copy to the Secretary and others, including somebody with the same name as the person who has signed the Minute. It has been signed as noted by the Minister. It is a high level communication prepared before the announcement of the changed decision as to the type of bypass. It raises options and offers opinion and advice obtained as to the deliberative process involved in the functions of the agency in regard to the provision of roads and national highways. I find it is within s36(1)(a).

51. The advice offered is frank. Paragraph 20 of Mr Wilson's statement is general rather than specific. Mr Wilson was not required for cross-examination and did not give evidence. There is a question as to the weight to be given to a general expression of opinion like that in paragraph 20 of Mr Wilson's statement. I am not inclined to place a great deal of weight on such evidence, but when one looks at pages 178 and 177, and at what Mr Wilson has said, particularly when bearing in mind that the opinion and advice was given before the announcement of the decision, it is apparent that p177 deals with sensitive matters.

52. I do not find page 178 to be an exempt document as it simply sets out the background information as to the issue on which opinion and subjective analysis of a sensitive nature is offered on page 177, which is the second page of a two page Minute. I accept Mr Wilson's statement that there is a public interest in the Minister receiving advice of the character of that given in page 177, from within his Department, without concern as to the effects of such advice being released into the public domain. I accept that if such a document were to be disclosed it could potentially limit the provision of future advice containing opinion or subjective analysis.

53. Having seen page 177, I have concluded that its release would not shed such light on the decision announced in February 2001, as to outweigh the considerations set out in the preceding paragraphs. I have decided that the disclosure of page 177 would be contrary to the public interest for the reasons set out in paragraph 20.

54. I find that page 177 is an exempt documents under s 36 of the Act.

DOCUMENT 2

55. Pages 64, 63 and 62 are a Minute to the Minister from an Assistant Secretary dated 16 February 2001. A copy was sent to the Secretary and others, again including the signatory to the letter. This Minute from its content clearly relates to the deliberative process involved in the functions of the agency. It contains a considerable amount of factual material. Almost the whole of p64 is factual material, p63 contains advice as to analysis of options, p62 contains further advice and three recommendations. Mr Wilson's explanation of his decision is at paragraph 27 of his affidavit and is set out at paragraph 25 of these reasons.

56. I find that the disclosure of pages 64, 63 and 62 would disclose factual material, but would also disclose matter in the nature of opinion, advice and recommendation obtained in the course of the deliberative processes involved in the functions of the agency. Thus s 36(1)(a) applies to the document at least in part.

57. The next question is whether the release of the document, in so far as s 36(1)(a) applies to it, would be contrary to public policy. It is a high level communication, made prior to a decision being announced, and in the course of the development or the policy. But, save for one paragraph, starting at the bottom of page 64 and continuing on to page 63, there is little subjective analysis and little expression of opinion. Thus I do not see any likelihood, except for the one paragraph specified above, that disclosure would inhibit frankness and candour, or potentially limit the provision of future advice containing opinion or subjective analysis. Page 62 contains three recommendations. I see nothing in the characteristics of those particular recommendations which indicates that their release would be contrary to the public interest.

58. Bearing in mind the desirability of providing an explanation of the reasons for the change in government policy as to choice of route, I find that the release of most of the document would be in the public interest. In Re Murtagh at p329 the Tribunal stated in respect of a taxation matter:

We abhor the contention that mutual half-light should be the necessary pre-condition of negotiation and settlement.

Similarly there is much to be said for the view that where a government decision has been made, on a matter affecting the interests of a particular community and many people, such as the selection of the most desirable route for a highway, there should be full information available to the interested public as to the reasons why one route was selected rather than another. That applies even more strongly where the current decision replaces a decision, made only three years earlier, which had made a different choice after receiving a recommendation to that effect from the New South Wales and Victorian government planning processes.

59. As to the one specified paragraph starting at the bottom of page 64, I do accept that the opinion and advice in that paragraph is opinion and advice which the writer of the Minute has offered in an uninhibited manner to assist in the deliberative process. I accept that the Minister may wish to receive such opinion and advice without it being released to the public. But on the other hand, the information in that paragraph may have a bearing on the merits of the final decision.

60. Bearing in mind the subject matter of the document, and the object of the Act which is "to extend as far as possible the right of the Australian community to access information in the possession of the Commonwealth", on balance I am not satisfied that the release of that paragraph would be contrary to public policy. I consider that paragraph relates to a matter as to which there is a clear public interest, in the community affected by the decision having access to that relevant information. I consider that interest to be greater than any interest in keeping that paragraph hidden or "in the half-light". I accept the applicant's contentions in paragraphs 19 and 20 of his Statement of Facts and Contentions, as set out in paragraph 5 of these reasons. I consider that the public interest in favour of the public's right to access to information outweighs the public interest in the protection of the deliberative processes, in respect of this document.

61. I find that document 2 pages 64, 63 and 62 are not exempt documents.

DOCUMENT 21 PAGES 118 AND 117

62. This is a Minute dated 6 June 2001 to the Minister from an Assistant Secretary, with a copy to the Secretary and a First Assistant Secretary. It forwarded a draft letter for signature by the Minister, and explained the background to the draft letter, and the reasons for the suggested response. The notation shows that the letter was signed by the Minister.

63. Although the major decision as to the chosen route for the freeway had been announced on 21 February 2001, there were still related matters requiring deliberation which was part of the functions of the Department. The disclosure of this Minute would disclose matter relating to advice and recommendation prepared by the Department for the Minister in the course of or for the purpose of the deliberative processes involved in the functions of the agency.

64. Mr Wilson stated in paragraph 27 of his statement:

The document comprises a Minute to the Minister. I regarded the Minute as properly a document that attracts the exempt status afforded by section 36(1)(a) and (b) of the Act. I do not believe that it is in the public interest that advice and opinion and recommendations to Ministers from within their Departments are made public. I made my decision in regard to this document for the same reasons as I determined the application of exempt status to those folios identified in Document 1 and 2 and referred to by me in this statement. . . .

65. The authorities do accept that there is a public interest in protecting the integrity of the decision making process by clearly separating the final decision-making or policy-making step and the reasons therefor, from the opinions and advice of the officials who contributed to the consideration (Re Murtagh p324). That public interest consideration may be outweighed by a contrary public interest in favour of disclosure. In regard to pages 118 and 117, some of the information is of a sensitive nature and I do not find that there is any contrary public interest in favour of disclosure. The letter sent by the Minister is the relevant document and that has not been claimed as an exempt document. There is no public interest in disclosing the public servant's reasons for drafting the letter in its final form.

66. I find that document 21, (pp118 and 117) is an exempt document.

DOCUMENT 24 PAGES 109, 108, 107 AND 106

67. This "document" in fact contains a number of different documents. Each must be separately considered.

68. This four page document is headed "Talking Points for Media". The date must be prior to 14 August 2001 as the talking points relate to the day when the Minister signed a declaration relating to the external by-pass. Page 123 of documents which were produced as documents claimed to be exempt, but which is no longer in contention, shows that the declaration was signed on 14 August 2001.

69. There is no evidence as to how much or how little of what is contained in this document was actually said by the Minister in Media interviews on that day.

70. The statement of Mr Wilson is as usual non-specific and hence not helpful on the issue. He stated in paragraph 30:

In my opinion the document falls to be classed as a document that contains matters in the nature of strategy and advice to the Minister and in my judgment fairly and properly attracted the application of exempt status. In making my decision I had regard to the question of the public interest and I determined that it would contrary to the public interest to cause to be disclosed such internal communications and that to do so could adversely affect the manner of the necessary and appropriate transactions that occur within Commonwealth Departments and between Ministers and their advisers.

71. Mr Ginnane in his supplementary note of argument submitted at paragraphs 35 and 36:

35. The respondent submits that public interest considerations of the type identified in Zacek [[2002] AATA 473] are of lesser relevance than in the matter currently before the Tribunal. The current application is not one whereby the release of the documents would throw light on departmental processes or identify flaws in procedures that may warrant reform or remedy. Rather they are documents that concern matters of strategy and choice and consideration within the ambit of stated government policy and its implementation.

36. Furthermore the respondent contests the proposition that there must be evidence as to disclosure actually leading to diminution in appropriate frankness and candour as a necessary condition for making good a claim that disclosure would not be in the public interest. The respondent contends that it has never been an exemplar of a public interest per se that internal working documents be disclosed. There is a recognised public interest in government departments being free to express a raft of opinion and recommendations without concern that they will be disclosed. . . . It is respectfully submitted that evidence that discloses actual or likely damage to such a public interest is not always required. In some instances, the proposition speaks for itself. In Re Howard and Treasurer of Commonwealth of Australia Davies J, rather than ruling that evidence of actual adverse effect on disclosure was required, determined the matter of claimed exempt documents by having regard to the nature of the documents themselves. His Honour's comments that the Tribunal had not received evidence that disclosure under the FOI Act had in fact led to a "diminishment" in candour and frankness, was not intended to be elevated to a rule of law.

72. Mr Ginnane submitted that the release of documents "that form a piece of advice in the greater mosaic of decision-making" when there is no evidence as to whether or not the advice was taken "is apt to obfuscate and not clarify any matter of public interest in the Albury/Wodonga Bypass".

73. Deputy President Todd considered what would appear to have been a similar sort of briefing note in Re Rae. He said as to a s 36 claim in respect of that document at paragraph 66 p610:

(66) Document 20 is what is known as a topical brief. It is similar in form to a PPQ but it was said by Mr McInnes to be prepared for a visit that the Prime Minister was making to an area where the question might come up, although, curiously enough, it is described in the certificate as "Possible Parliamentary on Daintree rainforest area". Similar public interest considerations were advanced for its non-disclosure as were advanced for documents 15, 17, 18 and 19. It is, however, on the evidence unrelated to the parliamentary process and I do not consider that there are reasonable grounds for the claim on the footing propounded.

Deputy President Todd did find the document to be exempt because certificates had been issued by the Secretary under the Act, which meant that the document was exempt if reasonable grounds existed for the issue of the certificate.

74. I understand Deputy President Todd to have concluded that the briefing notes for public questions which might come up were unrelated to the parliamentary process, or to the deliberative processes involved in the functions of an agency.

75. The point was not really addressed in argument before me. Mr Friend did not challenge the proposition that the preparation of a briefing note for a Minister is a function of a department or, as Mr Ginnane suggested, of the Minister's staff (para 44). If one accepts a broad definition of "deliberative processes" as the thinking processes of a department, it is part of these thinking processes. I find the document is within s 36(1)(a) of the Act.

76. The next question is whether its disclosure would be contrary to the public interest. Mr Ginnane made no submission on this point specific to this document (see para 44). I am not satisfied that its disclosure is contrary to the public interest. It was prepared for a media briefing - it is written in the form of notes for a speech. It has no sensitive nature or characteristics indicating that its disclosure would be contrary to the public interest.

77. In so far as the Minister said what is in the briefing notes they will no doubt be reflected in his recorded media interviews. Mr Ginnane did not call evidence as to any parts which the Minister chose to leave out. Had he done so there might have been an argument that release would give rise to confusion and unnecessary debate. There was no specific submission that any part of the briefing notes had not been said on the record. I find pages 109 to 106 are not exempt.

PAGES 127, 126, 125 AND 124

78. There is no longer any issue as to pages 123 back to 116. The next four pages which remain for consideration are also briefing notes and talking points for the Minister. They cover briefings and talking points for meetings with Councils, p127, 126 and 125, and briefing notes for a meeting with an interested organisation p124.

79. Mr Ginnane submitted at paragraph 45 of his supplementary argument:

45. The folios were created to "prep" the Minister on a series of potential issues that might have been raised with him in discussions with local Albury/Wodonga Councils in relation to the progress of the bypass and associated matters. It is particularly in regard Folio 124 and 127 that the argument is pressed that the release would be contrary to the public interest. Folio 124 is in the nature of a discursive advice to the Minister on issues that may be raised with him by the organization identified. It would be contrary to the public interest that exists in Ministers being able to receive strategy from within their departments for dealing with ongoing policy that Folio 124 be released. In itself it is not a significant document. Rather its significance and its attendant public interest arise from its very ordinariness. If Ministers are unable to be briefed by their departments and be given strategy for advancing policy matters that support government decision making without concern that they will be made public, there is a real risk that administration will become more onerous and that the flurry of bits of information that find their way into the public arena will obscure rather than reveal reasons for decision making.

80. I find that these documents are covered by s 36(1)(a) of the Act for the reasons set out in paragraph 75 above.

81. I do not accept that the "very ordinariness" of the document gives a reason why its disclosure would be contrary to public policy. I do however accept the argument that Ministers should be able to receive suggestions as to strategy to be adopted in meetings promulgating policy, without concern that the strategy suggestions and suggested talking points will be publicly released, whether or not they are adopted.

82. The last two paragraphs on page 127, above the bottom line, do have characteristics which indicate that their disclosure could inhibit frankness and candour in future briefings. More importantly this is an example of the considerations raised in Re McGarvin at paragraph 43, where there is a "clear public interest" in the public servants being able to communicate, in confidence and in a frank and candid manner, information directly to their responsible Minister on issues which are considered sensitive. There should not be concern about such advice being released. Insofar as the document contains suggestions which were not adopted by the Minister their disclosure would be confusing and unfair to the Minister and the public servant. Insofar as the Minister adopted suggestions in the documents, his statements and actions are relevant, rather than the suggestions made to him.

83. I cannot see that there is any public interest in favour of disclosing a Ministerial briefing of the sort contained in the specified two paragraphs on page 127. I find the last two paragraphs on page 127, above the last line, to be exempt.

84. As to page 126, which is headed "TALKING POINTS FOR MEETING WITH COUNCILS - NATIONAL HIGHWAY BYPASS", Mr Ginnane again submitted that, "its significance and its attendant public interest arise from its very ordinariness". It, like pages 109 to 106, is written in the form of notes for a speech and does not disclose any matter of a sensitive nature or have any characteristics which indicate that its disclosure would be contrary to public policy. Mr Ginnane submitted (p13-14 of his supplementary note of argument):

. . .. If Ministers are unable to be briefed by their departments and be given strategy for advancing policy matters that support government decision making without concern that they will be made public, there is a real risk that administration will become more onerous and that the flurry of bits of information that find their way into the public arena will obscure rather than reveal reasons for decision making.

I can see no reason on its face why a Minister would have concern about the disclosure of page 126. If it contained sensitive material there could be a concern, but because of its "very ordinariness", I consider it does not satisfy s 36(1)(b). Page 126 is not an exempt document. There is nothing to balance the right of the public to access to information.

85. Page 125 is a similar document headed "TALKING POINTS FOR MEETING WITH COUNCILS - INTERNAL BOULEVARD". The same considerations apply as in relation to page 126. For the same reasons I find that page 125 is not an exempt document.

86. Page 124 is a briefing for discussions with "SAVE OUR CITY" (SoC). It contains analysis and advice to the Minister as to what issues are seen as likely to be raised at his meeting with SoC. The two large paragraphs above the heading "TALKING POINTS" contain frank opinions offered to the Minister about matters of some sensitivity. Their release could inhibit frankness and candour in advice to Ministers. As explained in paragraph 82 above, there is a public interest in public servants being able to communicate such advice and opinions to Ministers in confidence without concern as to such advice being released. The three bullet points setting out "TALKING POINTS" do not have the same characteristics.

87. I find that page 127 is partially exempt. It should be released with the deletion of the material under the headings "Issue 1" and "Issue 2".

PAGES 135 AND 134 WHICH ARE DUPLICATED AT 132 AND 131

88. This is a Minute dated 10 August 2001 from an Assistant Secretary to the Minister, with a copy to a First Assistant Secretary. The documents at pages 127 to 124 were attachments to this Minute.

89. The Minute does contain opinion, advice and recommendation obtained, prepared or recorded for the purposes of actioning the policy announced on 21 February 2001. I find that the Minute is covered by s 36(1)(a) of the Act.

90. However, I do not see any way in which its release would be contrary to public policy. The issue covered in the Minute is not sensitive. It relates to action which was taken in the promulgation of a decision previously announced. I do not consider that there is a likelihood that disclosure of the content of this Minute would inhibit frankness and candour in future. Mr Ginnane did not point to any way in which disclosure would lead to confusion or unnecessary debate or otherwise be contrary to public policy.

91. I find that pages 135 and 134 are not exempt documents under s 36 of the Act. I make the same finding as to pages 132-131.

92. The decision under review will be varied to provide that the only documents or parts of documents which are "exempt documents" are those shown as "exempt" or "partially exempt" in the following Schedule of Documents.

SCHEDULE OF DOCUMENTS

Doc No	File 2001	Pages	Date	Description of Document	Created By	Directed to	Decision
1	0129	180 178 177	Unknown 16.2.01	Fax advice requested by Minister's office 2pages	Office of the Minister Assistant Secretary, Roads Investment	Department officers Minister and Others	p180 release p178 release p177 exempt
2	0494	64 63 62	16.02.01	Minute to Minister -	Assistant Secretary Roads Investment	Minister	p64 release p63 release p62 release
21	1310	118 117	6.06.01	Minute to Minister 2 pages	Assistant Secretary Roads Investment	Minister	p118 exempt p117 exempt
24	1843	109 108 107 106	Prior to Visit of Minister on 14.8.01	Talking points for media	Unknown	Minister	p109 p108 p107 p106 release all 4 pages
		127 126 125 124		Briefing for talking to Councils Talking points for Councils Briefing for talk to Save our City	Department	Minister	p127 partially exempt delete 2 paras above last line p126 & p125 release p124 partially exempt delete material under headings Issue1 & Issue 2
		135-134 132-131	10 August 2001	Minute duplicate of 135-134	Assistant Secretary Roads Investment	Minister & another	p135-134 release pp132-131 release

I certify that the 92 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member

Signed: G.A. Carney

Personal Assistant

Date/s of Hearing 14 October 2002

Date of Decision 17 January 2003

Counsel for the Applicant Mr W. Friend

Counsel for the Respondent Mr P. Ginnane

Solicitor for the Respondent Australian Government Solicitor

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