‘DX6’ and Department of Justice and Community Safety (Freedom of Information) [2022] VICmr 6 (20 January 2022)

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.

I am satisfied the exemptions in sections 28(1)(b), 28(1)(ba), 28(1)(c), 28(1)(d) and 32(1) apply to the documents.

As it is not practicable to edit the documents to delete exempt information, I have determined to refuse access to the documents in full.

Accordingly, my decision on the Applicant’s request is the same as the Agency’s decision.

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

My reasons for decision follow.

Sven Bluemmel

Information Commissioner

20 January 2022

Reasons for Decision

Background to review

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

… all correspondence, reports, advice and departmental briefs, either received or forwarded, to the Attorney-General and/or the Department of Justice and Community Safety, regarding the issue of victim-survivors being legally constrained from self-identifying as victims to the media and others, as a result of enacted legislative amendments contained in the Open Courts and Other Acts Amendment Bill 2019, during the period, [date range].

2. Following consultation, the Applicant clarified the terms of the request to:

A copy of all briefs or advice to the Attorney-General, regarding the issue of victim-survivors being legally constrained from self-identifying to the media and others, as a result of amendments to the Open Courts and Other Acts Amendment Bill 2019, from [date range].

3. The Agency identified 19 documents falling within the terms of the Applicant’s request and refused access to all documents in full. The Agency relied on the exemptions in sections 28(1)(ba), 28(1)(d), 30(1), 32(1) and 33(1) to refuse access to the documents.
4. The Agency’s decision letter sets out the reasons for its decision.

Review application

5. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
6. In their review application, the Applicant stated they did not seek a review of the Agency’s application of section 33(1) to the documents.
7. I have examined copies of the documents subject to review.
8. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.
9. I have considered all communications received from the parties.
10. 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.
11. 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.

Documents subject to review

12. According to the Victorian Government’s Cabinet Handbook, legislation proposals come to Cabinet in at least two stages. First, submission to Cabinet for Approval in Principle (AIP) for the drafting of the Bill and second, approval of the Bill by the Cabinet (BAC), prior to its introduction to Parliament.[1]
13. The documents subject to review concern, among other things, the Agency’s recommendations with respect to reforming the law of contempt.
14. Following inquiries by OVIC staff, the Agency located 3 additional documents that are subject to review (Documents 16 to 18 in the Schedule of Documents in Annexure 1).

Review of exemptions

Section 28(1) – Cabinet documents

15. Section on 28(1) provides:

28 Cabinet documents

(1)     A document is an exempt document if it is—

(a)           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;

(c)           a document that is a copy or draft of, or contains extracts from, a document referred to in paragraph (a), (b) or (ba); or

(d)           a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published.

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. Notwithstanding, where a document attracts the Cabinet exemption, the exemption in section 28(1) provides complete protection from release of the document.

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

19. In determining whether the exemptions in section 28(1) would apply, section 28(3) provides a document will not be exempt under subsection (1) to the extent the document contains 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.
20. From my review of the documents, I am satisfied they do not contain purely statistical, technical or scientific material.

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

21. Section 28(1)(b) provides a document is an exempt document if it was prepared by or on behalf of a Minister or by an agency for the purpose of submission for consideration by the Cabinet.
22. The Agency did not apply this exemption, however, having carefully examined the documents, in particular Document 17, which is a submission to the Cabinet, I consider its examination to be appropriate in the circumstances.
23. The exemption in section 28(1)(b) is focused on the purpose for which a document was prepared. A document will be exempt if the sole purpose, or one of the substantial purposes for which it was prepared, was for submission for consideration by Cabinet.[3] In the absence of direct evidence, the sole or substantial purpose of a document may be determined by examining the use of the documents, including whether it was submitted to Cabinet.[4]
24. VCAT has recognised section 28(1)(b) turns on the purpose the document was created, as it is not necessary to show a document was submitted to Cabinet[5], or to prove Cabinet considered the document to satisfy the requirements of section 28(1)(b).[6]
25. Section 28(1)(b) will not apply to a document circulated to Cabinet ministers ‘merely for information purposes’.[7] As stated by Morris J in Ryan v Department of Infrastructure:[8]

It is important to observe that section 28(1)(b) of the Act does not extend to a document merely because the document has been prepared for the purpose of submission to the Cabinet. Rather the purpose of the preparation of the document must be for submission for consideration by the Cabinet. Hence documents will not fall within the exemption in section 28(1)(b) of the Act just because they were prepared with the intention of physically placing them before the Cabinet. Rather it is necessary to ask whether, at the time a document was prepared, the only purpose, or one of the substantial purposes, for the preparation of the document was for the purpose of submission for consideration by the Cabinet.

26. My decision in relation to the application of section 28(1)(b) to the documents is set out in the Schedule of Documents Annexure 1.

Section 28(1)(ba) – Document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet

27. Section 28(1)(ba) provides a document is an exempt document if it is a document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet.
28. A document will be exempt under section 28(1)(ba) if the sole purpose, or one of the substantial purposes, for which the document was prepared was to brief a Minister in relation to issues to be considered by Cabinet.[9] In the absence of direct evidence, the sole or substantial purpose of a document may be determined by examining the use of the document, including whether it was submitted to Cabinet.[10]
29. The Cabinet briefing purpose must be ‘immediately contemplated’ when the document is created. The exemption cannot apply merely because Cabinet ultimately considered the issue.^[11]

30. The word ‘briefing’ means a ‘short accurate summary of the details of a plan or operation. The purpose…is to inform’.[12]

31. Therefore, the document should have the character of briefing material.[13] A document will be of such character if it contains ‘information or advice…prepared for the purpose of being read by, or explained to, a minister’.[14] It requires more than having ‘placed a document before a minister’.^[15]

32. The term ‘issues to be considered by the Cabinet’ within the meaning of section 28(1)(ba), requires that it must be more than just ‘likely’ the Cabinet will consider it. There must be an intention or expectation the relevant issue will be considered by the Cabinet, even if not ultimately considered. Evidence that a matter was included on the agenda for a Cabinet meeting will meet this test.^[16]
33. My decision in relation to the application of section 28(1)(ba) to the documents is set out in the Schedule of Documents in Annexure 1.

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

34. 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 sections 28(1)(a), 28(1)(b) or 28(1)(ba).

35. A document will be a copy if it is a reproduction of the document, for example, a photocopy.

36. A draft is a ‘preliminary version’ of a document. A document will not be a draft simply because it was created before the relevant Cabinet document finalised, or because there is information common to each of the draft and final documents. The draft document must be an actual draft of a document created for submission to the Cabinet for its consideration, and may be marked with ‘draft’, but not a document or documents of ‘different kinds prepared by different agencies’.^[17]

37. My decision in relation to the application of section 28(1)(c) to the documents is set out in the Schedule of Documents in Annexure 1.

Section 28(1)(d) – Disclosure of any deliberation or decision of the Cabinet

38. Section 28(1)(d) provides a document is an exempt if its disclosure would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published.
39. A document will be exempt under section 28(1)(d) if there is evidence that Cabinet discussed various options contained in the document and chose between those options.^[18]
40. A ‘decision’ means any conclusion as to the course of action the Cabinet adopts whether that are conclusions as to final strategy on a matter or conclusions about how a matter should proceed.^[19]
41. Where a decision or the recommendation of Cabinet has been made public, releasing information would not disclose the Cabinet decision or deliberation.^[20]
42. My decision in relation to the application of section 28(1)(d) to the documents is set out in the Schedule of Documents in Annexure 1.

Section 32(1) – Documents subject to legal professional or client privilege  

43. Section 32(1) provides, a document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege or client legal privilege.
44. A document will be subject to legal professional privilege and exempt under section 32(1) where it contains a confidential communication:^[21]

1. 1. between the client (or the client’s agent) and the client’s professional legal advisers, that was made for the dominant purpose of obtaining or providing legal advice or is referrable to pending or contemplated litigation;
   2. between the client’s professional legal advisers and third parties, that was made for the dominant purpose of pending or contemplated litigation; or
   3. between the client (or the client’s agent) and third parties that was made for the purpose of obtaining information to be submitted to the client’s professional legal advisers for the dominant purpose of obtaining advice on pending or contemplated litigation.

45. In its decision letter, the Agency decided:

The document exempt from release is a joint Memorandum of Advice in the matter of a proposed new contempt of court act which was prepared by the Solicitor-General for Victoria and a [legal officer] from [specified Chambers]. The document was created for the purposes of providing legal advice to the Attorney-General.

46. My decision in relation to the application of section 32(1) to the relevant document is set out in the Schedule of Documents in Annexure 1.

Section 25 – Deletion of exempt or irrelevant information

47. 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 the applicant agrees to receiving such a copy.
48. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’^[22] and the effectiveness of the deletions. Where deletions would render the document meaningless, they are not ‘practicable’, and release of the document is not required under section 25.^[23]
49. I am satisfied it would not be practicable to edit the documents to delete exempt and irrelevant information as it would render the documents meaningless.

Conclusion

50. On the information before me, I am satisfied the exemptions in sections 28(1)(b), 28(1)(ba), 28(1)(c), 28(1)(d) and 32(1) apply to the documents. Given this, it is not necessary to consider the application of the exemption under section 30(1) to the documents.
51. As it is not practicable to provide an edited copy of the documents with exempt and irrelevant information deleted, I have determined to refuse access to the documents in full.
52. My decision in relation to each document is set out in the Schedule of Documents at Annexure 1.

Review rights

53. If either party to this review is not satisfied with my decision, they are entitled to apply to VCAT for it to be reviewed.^[24]
54. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[25]
55. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[26]
56. 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.
57. 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.^[27]

Annexure 1 – Schedule of Documents

Endnotes

 [1] Victorian Government, Cabinet Handbook at https://www.vic.gov.au/cabinet-handbook.

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

[3][3] Mildenhall v Department of Premier and Cabinet (No 2) (1995) 8 VAR 478 at 290; Herald & Weekly Times v Victorian Curriculum & Assessment Authority [2004] VCAT 924 at [72]; Ryan v Department of Infrastructure [2004] VCAT 2346 at [34].

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

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

[6] Pullen v Alpine Resorts Commission (unreported, AAT of Vic, Macnamara DP, 23 August 1996); Wilson v Department of Premier and Cabinet [2001] VCAT 663; (2001) 16 VAR 455; Olexander v Department of Premier & Cabinet [2002] VCAT 497 at [28]; Asher v Department of Premier and Cabinet [2002] VCAT 499 at [9]; Stewart v Australian Grand Prix Corporation (General) [2008] VCAT 167 at [30]–[31].

[7] Olexander v Department of Premier Cabinet [2002] VCAT 497 at [46].

[8] [2004] VCAT 2346 at [36].

[9] Ryan v Department of Infrastructure (2004) 22 VAR 226; [2004] VCAT 2346 at [34]. See also Department of Treasury and Finance v Della-Riva (2007) 26 VAR 96; [2007] VSCA 11 at [13].

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

[11] Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission [2013] VCAT 822.

[12] Ryan v Department of Infrastructure (2004) 22 VAR 226; [2004] VCAT 2346 at [41].

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Mildenhall v Department of Treasury and Finance (unreported, AAT of Vic, Macnamara DP, 18 March 1996). See also Batchelor v Department of Premier and Cabinet (unreported, AAT of Vic, Fagan P and Coghlan M, 29 January 1998); Hulls v Department of Treasury and Finance (No 2) (1994) 14 VAR 295 at [320]-[321]; reversed on other grounds by the Court of Appeal: Department of Premier & Cabinet v Hulls [1999] 3 VR 331; 15 VAR 360; [1999] VSCA 117.

[17] Asher v Department of Infrastructure (2006) 25 VAR 143; [2006] VCAT 1375 at [43].

[18] Smith v Department of Sustainability and Environment (2006) 25 VAR 65; [2006] VCAT 1228 at [23].

[19] Della-Riva v Department of Treasury and Finance (2005) 23 VAR 396; [2005] VCAT 2083 at [30].

[20] Honeywood v Department of Innovation, Industry and Regional Development (2004) 21 VAR 1453; [2004] VCAT 1657 at [26].

[21] Graze v Commissioner of State Revenue [2013] VCAT 869 at [29]; Elder v Worksafe Victoria [2011] VCAT 1029 at [22]. See also Evidence Act 2008 (Vic), section 119.

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

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

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

[25] Section 52(5).

[26] Section 52(9).

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