‘CX2’ and Department of Premier and Cabinet (Freedom of Information) [2021] VICmr 102 (19 April 2021)

All references to legislation in this document are to the Freedom of Information Act 1982 (Vic) (FOI Act) unless otherwise stated.

Notice of Decision

I have conducted a review under section 49F of the Agency’s decision to refuse access to documents requested by the Applicant under the FOI Act.

While I am satisfied certain documents are exempt under sections 28(1)(b), 28(1)(c), 29(1)(a) and 30(1),
in relation to information in Documents 3 and 6, which the Agency exempted from release under sections 29(1)(a) and 30(1), I am not satisfied all such information is exempt.

Accordingly, my decision differs to that of the Agency as I have determined to release additional information to the Applicant.

The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.

My reasons for decision follow.

Joanne Kummrow

Public Access Deputy Commissioner

19 April 2021

Reasons for Decision

Background to review

1. The Applicant made a request to the Agency seeking access to the following documents:

…the policy under which the in-kind funding aspect of the coag [Council of Australian Governments] bilateral agreement between the Commonwealth of Australia and Victoria on the NDIS…

2. The documents concern government discussions regarding the transition to the NDIS from previous in-kind funding arrangements, which involved State, Territory and the Commonwealth Government providing pre-paid lump sums to service providers so they could provide support services to people with a disability.
3. Prior to the NDIS, the Commonwealth Government and State and Territory governments provided pre-paid lump sums to disability service providers to fund disability support services, known as ‘in-kind funding’ (previous funding scheme).
4. The documents concern government discussions regarding the transition to the NDIS from the previous funding scheme, which involved State, Territory and the Commonwealth Government providing pre-paid lump sums to service providers so they could provide support services to people with a disability.
5. On 17 June 2019, the Victorian Government entered into a bilateral agreement with the Commonwealth Government in relation to the agreed phase out pricing and deadlines regarding the former in-kind funding arrangements. A copy of the final agreement is available on the NDIS website.[1]
6. The Agency identified 21 documents falling within the terms of the Applicant’s request and refused access to all documents in full relying on the exemptions in sections 28(1)(b), 28(1)(c), 29(1)(a), 30(1) and 36(1)(b). The Agency’s decision letter sets out the reasons for its decision.

Review

7. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
8. I have examined copies of the documents subject to review.
9. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.

Preliminary view

10. On [date], the Agency was provided with a preliminary view in relation to the application of certain exemptions and the potential release of further information in the documents to the Applicant. The Agency was invited to provide a further submission in response to the preliminary view.
11. By email dated [date], the Agency advised it sought to rely on its original decision and information provided.
12. I have considered all communications and submissions received from the parties.
13. In undertaking my review, I have had regard to the object of the FOI Act, which is to create a general right of access to information in the possession of the Government or other public bodies, limited only by exceptions and exemptions necessary to protect essential public interests, privacy and business affairs.
14. I note Parliament’s intention the FOI Act must be interpreted so as to further the object of the Act and any discretions conferred by the Act must be exercised, as far as possible, so as to facilitate and promote the disclosure of information in a timely manner and at the lowest reasonable cost.

Review of exemptions

Section 28(1)(b) – Documents prepared for the purpose of submission for consideration by Cabinet

15. Section 28(1)(b) provides a document is an exempt document if it was prepared by a Minister or on his or her behalf or by an agency for the purpose of submission for consideration by the Cabinet.
16. Section 28(7)(a) defines ‘Cabinet’ as including a committee or sub-committee of Cabinet.
17. In Ryan v Department of Infrastructure,^[2] the Victorian Civil and Administrative Tribunal (VCAT) observed:

It has been said that 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 to 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 [(now five)]” in section 28(1) of the Act.

18. However, section 28(1)(b) does not apply to purely statistical, technical or scientific material in a document unless disclosure of the document would involve the disclosure of any deliberation or decision of the Cabinet.[3]
19. In Department of Infrastructure v Asher,[4] the Victorian Court of Appeal stated:

At one end of the spectrum, a document may reveal no more than that a statistic or description of an event was placed before Cabinet. At the other end, a document on its face may disclose that Cabinet required information of a particular type for the purpose of enabling Cabinet to determine whether a course of action was practicable or feasible or may advance an argument for a particular point of view. The former would say nothing as to Cabinet’s deliberations, the latter might say a great deal.

20. Therefore, a document will be exempt under section 28(1)(b) if the sole purpose, or one of the substantial purposes, for which it was prepared, was for submission to Cabinet for its consideration only. In the absence of direct evidence, the sole or substantial purpose for a document being brought into existence may be determined by examining the use of the document, including whether it was submitted to Cabinet.[5]
21. VCAT has recognised section 28(1)(b) turns upon the purpose for which a document was created, and it is not necessary to show the document was submitted to Cabinet.[6] Nor is it necessary to prove Cabinet considered the document to satisfy the requirements of section 28(1)(b).[7]

Were the documents prepared by a Minister, or on their behalf by an agency?

22. Having examined Documents 18, 19, 20 and 21, I am satisfied each document was prepared by an Agency officer, being the Agency and the [government agency].

Were the documents prepared for the sole, or one of substantial purpose, for the consideration by Cabinet?

23. As outlined above, the key consideration under section 28(1)(b) is whether, at the time a document was created the sole or the substantial purpose for which it was prepared was for submission for consideration by Cabinet.
24. Documents 18, 19, 20 and 21 are Cabinet submissions. I am limited in the amount of information
    I can provide about these documents without disclosing exempt information.
25. On the information before me, and based on my examination of the documents, I am satisfied Documents 18, 19, 20 and 21 were created for the sole, or the substantial purpose of being submitted for consideration by Cabinet.

Do the documents contain purely statistical, technical or scientific material?

26. From my review of the documents, I am satisfied the documents do not contain purely statistical, technical or scientific material.
27. Accordingly, I am satisfied Documents 18, 19, 20 and 21 are exempt under section 28(1)(b).
28. The Schedule of Documents in Annexure 1 sets out my decision in relation to section 28(1)(b).

Section 28(1)(c) – A copy or draft of or extract from a Cabinet document

29. Section 28(1)(c) provides a document is an exempt document if it is a copy or a draft of, or contains extracts from, a document referred to in paragraph (a), (b) or (ba).
30. Sections 28(1)(a), (b) and (ba) refer to:

A document is an exempt document if it is—

(1)     the official record of any deliberation or decision of the Cabinet;

(b)       a document that has been prepared by a Minister or on his or her behalf or by an agency for the purpose of submission for consideration by the Cabinet;

(ba)     a document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet;

…

31. A draft is a ‘preliminary version’ of a document. A document is not in draft form simply because it was created before the relevant submissions or because there is information common to both sets of documents. It should be the actual document, preferably marked as being in ‘draft’ and not documents of ‘different kinds prepared by different agencies’.^[8]
32. The Agency applied section 28(1)(c) to Document 17. Having examined the document and information provided by the Agency, and I am satisfied it constitutes a draft, or contains extracts from a document described in paragraph 27. Therefore, I am satisfied Document 17 is exempt from disclosure under section 28(1)(c).
33. The Schedule of Documents in Annexure 1 sets out my decision in relation to section 28(1)(c).

Section 30(1) – Internal working documents

34. Section 30(1) has three requirements:

1. 1. the document must disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers or an officer and a Minister;
   2. such matter must be made in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government; and
   3. disclosure of the matter would be contrary to the public interest.

Do the documents disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers or an officer and a Minister?

35. In terms of content, the documents are deliberative in that they describe considerations made by the NDIS Bilateral Steering Committee (Steering Committee), as well as advice and recommendations about the State of Victoria’s position in relation to the recommended ‘in-kind funding’ programs, proposed payments and phase out deadlines.
36. I am satisfied the documents disclose matter in the nature of opinion, advice and recommendation prepared by Agency officers.

Were the documents prepared in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government?

37. I am satisfied the documents were prepared in the course of the Agency’s deliberative processes involved in the functions of the Agency, namely its negotiating process for NDIS funding arrangements.

Do the documents contain purely factual material?

38. Section 30(3) provides purely factual information will not be exempt under section 30(1). This provision must be considered in conjunction with section 25, which allows for an edited copy of a document to be released with exempt or irrelevant material deleted.
39. While I am satisfied most of the documents detail Agency deliberations, after carefully examining the documents, I am satisfied certain documents contain purely factual information or information that is general and descriptive in nature, and which is capable of being extracted from the deliberative content.
40. Accordingly, I am satisfied certain information in Documents 3 and 6 is not exempt by virtue of section 30(3).

Would disclosure of the documents be contrary to the public interest?

41. I must also be satisfied disclosure of this information is not contrary to the public interest. This requires a ‘process of the weighing against each other conflicting merits and demerits.’^[9]
42. In determining whether the information exempted by the Agency would be contrary to the public interest, I have given weight to the following relevant factors:^[10]

1. 1. the right of every person to gain access to documents under the FOI Act;
   2. the degree of sensitivity of the issues discussed in the documents and the broader context giving rise to the creation of the documents;
   3. the stage or a decision or status of policy development or a process being undertaken at the time the communications were made;
   4. whether disclosure of the documents would be likely to inhibit communications between agency officers, essential for the agency to make an informed and well-considered decision or participate fully and properly in a process in accordance with the agency’s functions and other statutory obligations;
   5. whether disclosure of the documents would give merely a part explanation, rather than a complete explanation for the taking of a particular decision or the outcome of a process, which the agency would not otherwise be able to explain upon disclosure of the documents;
   6. the impact of disclosing documents in draft form, including disclosure not clearly or accurately representing a final position or decision reached by the agency at the conclusion of a decision or process; and
   7. the impact disclosure would have on the efficient and economical conduct of government,
      in particular, the deliberative processes of high levels of government in relation to sensitive issues, and the preservation of confidentiality to promote the giving of full and frank advice.[11]

43. In its submission, the Agency advised:

It would be contrary to the public interest to disclose such information as these documents were created as part of the iterative processes of determining the funding arrangements of the NDIS
between Victoria and the Commonwealth. As such, they detail a variety of options posed and tested
by [the Agency] and the DHHS [former Victorian Department of Health and Human Services] staff during the course of determining the funding arrangements of the NDIS.

44. I acknowledge there is a broad public interest in disclosure of official information to promote transparency and accountability in government decision making. This notion is reflected in the objects of the FOI Act, which is to create a general right of access to information, limited by exceptions necessary to protect essential public interests only.
45. Having regard to the issues and competing policy interests and considerations, I am of the view disclosure of departmental advice provided to Minsters and department heads in preparation for government negotiation processes for intergovernmental agreements, including advice about possible discussions and responses, could undermine future negotiations, the Victorian Government’s negotiating position and consequently lead to detrimental outcomes.
46. In this case, I consider the ‘essential public interests’ that limit disclosure of information under the FOI Act, weigh in favour of protecting high level government deliberation and decision making documents, the disclosure of which would reasonably disrupt the efficient and economical conduct of government.
47. Accordingly, I am satisfied certain information in the documents is exempt under section 30(1).
48. The Schedule of Documents in Annexure 1 sets out my decision in relation to section 30(1).

Section 29(1)(a)

49. A document is exempt under section 29(1)(a) if:

1. 1. disclosure under the Act would be contrary to the public interest; and
   2. disclosure would prejudice relations between the State and the Commonwealth or any other State or Territory.

50. The Agency refuse access to certain documents under section 29(1)(a) on grounds their disclosure under the FOI Act would prejudice relations between the Victorian and Commonwealth Governments.
51. Section 29(2) provides, in determining whether a document is an exempt document under section 29(1), if practicable, an agency must notify the relevant government agency, authority or Minister of the request,[12] and seek their views as to whether the document should be disclosed.[13]
52. The Agency consulted with the Commonwealth Department [portfolio details] to seek its views on disclosure of the documents. A copy of the Agency’s consultation documents was provided for my consideration.

Would disclosure under the FOI Act be contrary to the public interest?

53. As per my considerations in relation to section 30(1) above, I am satisfied disclosure of the documents under the FOI Act would be contrary to the public interest.
54. However, I am satisfied parts of Documents 3 and 6 contain information that is factual or descriptive in nature, and its disclosure would not be contrary to the public interest.

Would disclosure prejudice relations between the State and the Commonwealth or any other State or Territory?

55. Section 29(1)(a) also requires that I be satisfied disclosure of a document would prejudice the relations between the State and Commonwealth governments.
56. In my view, the use of ‘would’ requires certainty that an event will occur, rather than a mere possibility or likelihood.
57. In determining whether disclosure of a document would prejudice relations between the Victorian and Commonwealth Governments, I have had regard to the following factors:[14]

1. 1. protecting uninhibited communications between the Commonwealth and Victorian Governments;
   2. encouraging cooperative Federalism in Australia;
   3. protecting processes that contribute to high quality government policy and decision making;
   4. ensuring the public have access to accurate and reliable information that gives a true indication of the basis for a government policy or decision;
   5. protecting against unnecessary confusion or debate by avoiding premature release of a document that represents a stage of a negotiation or decision making process; and
   6. ensuring the Victorian Government meets its obligations and expectations for confidentiality under binding agreements with other Australian governments.

58. In summary, the Agency submits disclosure of the documents would prejudice relations between the Victorian and Commonwealth Governments as the documents canvas options forecast by the Agency and the former Victorian Department of Health and Human Services regarding ‘potential positions the Commonwealth may take during the negotiations’. Further, disclosure would reveal negotiations that took place at a preliminary stage of negotiations.
59. Having carefully considered the documents, I am satisfied they contain information, the disclosure of which would be contrary to the public interest as do to so would prejudice Commonwealth and State relations. I consider release would be likely to prejudice the confidence necessary for the proper functions of the ordinary business of government, which requires Agency officers to provide cursory advice on the basis that the advice provided will remain confidential, as circumstances may alter the certainty of that advice.
60. Importantly, I am mindful in this matter that the NDIS scheme is subject to individual agreements set up between the Commonwealth Government and each State and Territory, which are in effect competing for federal funding to aid in the administration of the scheme. It seems detrimental to the State’s negotiation if its position or potential position become known to its competitors, being the other States and Territories or negotiating party, the Commonwealth Government.
61. Accordingly, I am satisfied section 29(1)(a) applies to refuse access to the documents.
62. However, for the reasons provided above, I am not satisfied section 29(1)(a) applies to refuse access to Documents 3 and 6 in full.
63. The Schedule of Documents in Annexure 1 sets out my decision in relation to section 29(1)(a).

Section 36(1)(b) – Disclosure of instructions provided in the negotiation and execution of contracts

64. A document is an exempt under section 36(1)(b) if:

(b)     in the case of documents of a department or prescribed authority its disclosure under this Act would be contrary to the public interest by reason that it would disclose instructions issued to, or provided for the use or guidance of, officers of an agency on the procedures to be followed or the criteria to be applied in negotiation, including financial, commercial and labour negotiation, in the execution of contracts, in the defence, prosecution and settlement of cases, and in similar activities relating to the financial property or personnel management and assessment interests of the Crown or of an agency.

65. The Agency submits the documents are exempt under section 36(1)(b) on grounds:

… The disclosure of these documents would be contrary to the public interest as they detail the instructions issued to agency officers for guidance on procedures to be followed or criteria to be applied during the financial negotiations between Victoria and the Commonwealth for the funding agreements for the NDIS.

66. Having reviewed the documents, I am not satisfied they contain recommendations for the consideration of the Steering Committee, or the Cabinet for the purpose of making policy decisions, or that constitute instructions or detail criteria to be applied during negotiations for intergovernmental agreements, as required by section 36(1)(b).
67. Further, on the information before me, I am not satisfied the Agency has provided sufficient evidence to satisfy me the documents are exempt under section 36(1)(b).
68. Accordingly, I am not satisfied the documents are exempt under section 36(1)(b).
69. The Schedule of Documents in Annexure 1 sets out my decision in relation to section 26(1)(b).

Deletion of exempt or irrelevant information

70. Section 25 requires an agency to grant access to an edited copy of a document when it is practicable to delete exempt or irrelevant information and an applicant agrees to receiving such a copy.
71. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’^[15] and the effectiveness of the deletions. Where deletions would render a document meaningless, they are not ‘practicable’, and release of the document is not required under section 25.^[16]
72. I have considered whether it is practicable to provide the Applicant with an edited copy of the documents with exempt information deleted in accordance with section 25.
73. I am satisfied it is practicable to delete exempt information in Documents 3 and 6, as to do so would not require substantial time and effort and the edited documents would retain meaning. However,
    I am satisfied it is not practicable to delete exempt information in the other documents, as to do so would render the documents meaningless.

Conclusion

74. On the information before me, I am satisfied certain documents are exempt in full under sections 28(1)(b), 28(1)(c), 29(1)(a) and 30(1).
75. However, in relation to information in Documents 3 and 6, which the Agency exempted from release under sections 29(1)(a) and 30(1), I am not satisfied all such information is exempt. As I am satisfied it is practicable to delete exempt information in Documents 3 and 6, I have determined to grant access to these documents in part.
76. Accordingly, my decision differs to that of the Agency as I have determined to release additional information in Documents 3 and 6 to the Applicant.
77. The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.

Review rights

78. If either party to this review is not satisfied with my decision, they are entitled to apply to VCAT for
    it to be reviewed.^[17]
79. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[18]
80. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[19]
81. Information about how to apply to VCAT is available online at www.vcat.vic.gov.au. Alternatively, VCAT may be contacted by email at admin@vcat.vic.gov.au or by telephone on 1300 018 228.
82. The Agency is required to notify the Information Commissioner in writing as soon as practicable
    if either party applies to VCAT for a review of my decision.^[20]

Annexure 1 – Schedule of Documents

Endnotes

[1] The NDIS Intergovernmental Heads of Agreement are available at https://www.ndis.gov.au/about-us/governance/intergovernmental-agreements#victoria.

[2] [2004] VCAT 2346 at [33].

[3] Section 28(3).

[4] [2007] VSCA 272 at [8].

[5] Secretary to the Department of Treasury and Finance v Della Riva [2007] VSCA 11 at [15].

[6] Ryan v Department of Infrastructure [2004] VCAT 2346 at [34].

[7] Ibid.

[8] Asher v Department of Infrastructure (2006) 25 VAR 143.

[9] Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473 at [485], adopted in Department of Premier and Cabinet v Hulls [1999] VSCA 117 at [30].

[10] Hulls v Victorian Casino and Gambling Authority (1998) 12 VAR 483.

[11] Secretary, Department of Justice v Osland [2007] VSCA 96.

[12] Section 29(2)(a).

[13] Section 29(2)(b).

[14] Millar v Department of Premier & Cabinet [2011] VCAT 1230 at [62].

[15] Mickelburough v Victoria Police (General) [2009] VCAT 2786 at [31]; The Herald and Weekly Times Pty Limited v The Office of the Premier (General) [2012] VCAT 967 at [82].

[16] Honeywood v Department of Human Services [2006] VCAT 2048 at [26]; RFJ v Victoria Police FOI Division (Review and Regulation) [2013] VCAT 1267 at [140] and [155].

[17] The Applicant in section 50(1)(b) and the Agency in section 50(3D).

[18] Section 52(5).

[19] Section 52(9).

[20] Sections 50(3F) and (3FA).