Recent Cases: Victoria

Davis v Department of Premier and Cabinet [2024] VCAT 317 (10 April 2024)

Facts

In August 2022, the Honourable Mr. David Davis MP (“applicant”) applied to WorkSafe for access to the minutes and agendas of the Interdepartmental WorkSafe Steering Committee (“Committee”), as well as a copy of the ‘Finity Report’ provided to the Committee.  The request was transferred to the Department of Premier and Cabinet (“Department”), as it was more closely connected to the Department’s functions.  The decision was made in December 2022 with exemptions applied in part to numerous documents.  In May 2023, the government announced WorkSafe reforms, following which the Department released additional documents.

The Tribunal considered the remaining documents claimed to be exempt under ss 28(1)(d) and 30(1) of the FOI Act, which included agendas and minutes of the Committee. 

Section 28(1)(d) - Cabinet Documents

The Tribunal confirmed that a document was exempt under s 28(1)(d) of the FOI Act if it revealed the Cabinet deliberations.  The Tribunal accepted evidence that some documents included a confidential title that went beyond the public matters of the WorkSafe reforms.  Therefore, the material within those documents that referred to the confidential title was exempt under s 28(1)(d) as release would have disclosed Cabinet deliberation.  Where material in the documents was general in nature, already publicly available or merely a prediction of when a report may have been completed, it was not exempt under s 28(1)(d) of the FOI Act, as it did not disclose Cabinet deliberations. 

The Tribunal considered that disclosure of deliberative material in the documents would have been contrary to the public interest.  In making this determination, the Tribunal considered the proximity of the material to the Cabinet process, as well as the benefit of providing the drafters of the material the ability to draft a record of important high-level government events without having to consider potential release under the FOI Act. 

Section 30(1) - Internal working documents

The Tribunal‘s focus was on whether disclosure was contrary to the public interest.  It accepted evidence demonstrating that documents contained confidential matter close to the Cabinet would be contrary to the public interest.  However, where documents were agendas, then a generic agenda item title that says nothing as to Cabinet’s deliberations, then its generic nature would mean it is not exempt under s 30(1). 

The Tribunal accepted evidence that the Department and its staff considered the names of Cabinet subcommittees and Cabinet submissions as confidential, however it held that this is not determinative as release under the FOI Act is a different matter, turning on the facts and circumstances surrounding each decision.

The Tribunal considered whether releasing material in documents would cause undue concern by the drafters of minutes on what constituted confidential material, and accepted that such material could be exempt.  The Tribunal accepted that the exemption applied to circumstances where disclosure of material would have been likely to mislead because it related to a hypothetical situation that never eventuated. 

Decision

The Tribunal varied the Department’s decision of December 2022, finding additional material that was not exempt under either ss 28(1)(d) or 30(1).  The decision was otherwise affirmed.