Office of the Premier v The Herald and Weekly Times Pty Limited
[2013] VSCA 79
•12 April 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2012 0152
| OFFICE OF THE PREMIER | Applicant |
| v | |
| THE HERALD AND WEEKLY TIMES PTY LIMITED | Respondent |
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| JUDGES | TATE and WHELAN JJA and KAYE AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 7 February 2013 |
| DATE OF JUDGMENT | 12 April 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 79 |
| JUDGMENT APPEALED FROM | The Herald and Weekly Times Pty Limited v The Office of the Premier [2012] VCAT 967 (Judge Jenkins) |
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ADMINISTRATIVE LAW – Freedom of information – Whether diary of Premier’s Chief of Staff is an ‘official document of a Minister’ subject to legally enforceable right of access – Document must be ‘in the possession of a Minister’; that is, in actual or constructive possession of a Minister in his or her capacity as a Minister – Document must be one that ‘relates to the affairs of an agency’; that is, bearing a direct or indirect relationship to the business and activities of an agency, or the agency’s area of governmental responsibility, or to arrangements between government departments or other agencies and external entities including Ministerial advisers from the Office of the Premier – Freedom of Information Act 1982, ss 3(1)(a), 3(1)(b), 3(2), 5(1), 13(b) – Application for leave to appeal granted – Appeal dismissed – Request remitted to the Office of the Premier for consideration according to law.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Dr G Griffith QC with Dr C O Parkinson | Victorian Government Solicitor |
| For the Respondent | Dr M J Collins SC with Mr S Mukerjea | Kelly Hazell Quill Lawyers |
TATE JA:
Introduction
This proceeding raises the question of the meaning of the expression ‘official document of a Minister’ in the Freedom of Information Act 1982 (‘the FOI Act’). It also raises the question of whether the electronic private diary of Mr Michael Kapel (‘the diary’), at the relevant time the Chief of Staff to Mr Ted Ballieu, the then Premier of Victoria,[1] is an ‘official document of a Minister’ and thus subject to the FOI Act and the rights of access it provides.
[1]Mr Kapel was Mr Ballieu’s Chief of Staff from about December 2010 to 23 January 2012.
A delegate of the Premier refused a request made by the Herald and Weekly Times (‘the HWT’) to the Office of the Premier (‘the OTP’) for access to the diary. A Vice-President of the Victorian Civil and Administrative Tribunal (‘the Tribunal’), determined that the OTP was incorrect at law to so refuse.[2] Her Honour found that the diary was amenable to the request because it was an ‘official document of a Minister’, and as such was subject to a legally enforceable right of access, pursuant to s 13(b) of the FOI Act. She made orders setting aside the OTP’s determination and remitting the request to the OTP for consideration in accordance with her finding. It is from those orders that the application for leave to appeal was brought.[3] The application for leave to appeal was heard at the same time as the appeal (henceforth referred to collectively as ‘the appeal’).
[2]The Herald and Weekly Times Pty Limited v The Office of the Premier [2012] VCAT 967 (‘Reasons’) (Judge Jenkins).
[3]Pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’). The application for leave was not opposed.
In my opinion, the diary is an official document of a Minister. I would dismiss the appeal. The application by the HWT for access to the diary under the FOI Act should be remitted to the OTP for consideration in accordance with law and in accordance with any exemptions upon which the OTP seeks to rely.
I set out my reasons.
The application for access to the diary
The HWT is the publisher of several newspapers, including the Sunday Herald Sun. On 15 November 2011, Ms Ellen Whinnett, the Deputy Editor of the Sunday Herald Sun, sent the OTP a letter requesting access to the diary. Access was sought to the diary for the period 1 February 2011 to 28 February 2011.
The request was refused by Mr Don Coulson, the Senior FOI Officer of the OTP, in a letter dated 27 January 2012. Mr Coulson did so on the basis that the diary was not ‘an official document of a Minister’ and as such did not give rise to a right of access pursuant to s 13(b) of the FOI Act.
Rights of access to documents in the FOI Act
Before turning to a consideration of the Tribunal proceeding, it is useful to set out the legislative framework under which decisions about the rights of access to documents are made.
The object of the FOI Act is to be found in s 3(1):
… extend as far as possible the right of the community to access to information in the possession of the Government of Victoria and other bodies constituted under the law of Victoria for certain public purposes by -
(a)making available to the public information about the operations of agencies and, in particular, ensuring that rules and practices affecting members of the public in their dealings with agencies 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 and agencies 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 agencies.
Section 3(2) expresses a legislative direction that the FOI Act is to be interpreted to facilitate the disclosure of information:[4]
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.
[4] See also Victorian Public Service Board v Wright (1986) 160 CLR 145, 153 (Gibbs CJ, Mason, Wilson, Deane, Dawson JJ).
Section 13 confers an enforceable right of access:
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.
An ‘agency’ is defined to mean a department, council or a prescribed authority.[5] The OTP is not an agency. Both parties have accepted that the diary is not ‘a document of an agency’ and thus does not come within the ambit of s 13(a).[6] If it is subject to the regime of the FOI Act at all, it must be as ‘an official document of a Minister’. That expression is defined in s 5(1) of the FOI Act:
official document of a Minister or official document of the Minister means a document in the possession of a Minister, or in the possession of the Minister concerned, as the case requires, that relates to the affairs of an agency, and, for the purposes of this interpretation, a Minister shall be deemed to be in possession of a document that has passed from his possession if he is entitled to access to the document and the document is not a document of an agency.
[5]A department is defined by s 5(1) as ‘a department within the meaning of the Public Administration Act 2004 or an office specified in section 16(1) of that Act’. Departments are defined by s 4 of that Act as being those bodies so established by the Governor in Council by an Order published in the Government Gazette, pursuant to s 10 of that Act. A council is defined by s 5(1) of the FOI Act as having ‘the same meaning as in section 3(1) of the Local Government Act 1989’. Section 3(1) of that Act defines council as meaning ‘a municipal council … whether constituted before or after the commencement of this section’. A variety of definitions are set out in s 5(1) of the FOI Act in respect of what constitutes a ‘prescribed authority’, the core requirements being that the authority be a body corporate established by, or in accordance with, the provisions of an Act; a body unincorporate created by the Governor in Council or by a Minister; or any body prescribed by the Freedom of Information Regulations 2009; other than the specific bodies exempted by the definition. The Police Force of Victoria is deemed to be a prescribed authority (FOI Act, s 5(4)) and is thus an ‘agency’ under the FOI Act.
[6]Reasons, [103] (emphasis added).
The definition has two limbs that are both material to this appeal. The first limb provides that an official document of a Minister is a document that is ‘in the possession of a Minister’ (including those documents which have ‘passed from his possession if he is entitled to access the document’). The second limb requires that the document ‘relates to the affairs of an agency’.
The term ‘Minister’ is not explicitly defined in the FOI Act. ‘Responsible Minister’ is defined in s 5(1) as being the Minister responsible for administering a department or prescribed authority. As the OTP submitted, however, a definition can be found in section 38 of the Interpretation of Legislation Act 1984, which provides that:
Minister means the responsible Minister of the Crown for the time being administering the provision in which, or in respect of which, the expression is used or, if, for the time being, different Ministers are administering that provision in different respects, each of those Ministers to the extent that he or she is administering that provision in the relevant respect, and where a Minister of the Crown is referred to by the title of his or her Ministerial office, the reference shall be construed as including a reference to a Minister of the Crown for the time being acting for or on behalf of that Minister.
The FOI Act also sets out a range of exemptions that protect certain documents from disclosure. An ‘exempt document’ means:[7]
(a)A document which, by virtue of a provision of Part IV, is an exempt document; or
(b)an official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a department.
[7]FOI Act, s 5(1).
The exemptions set out in Part IV include Cabinet documents;[8] documents concerning a matter communicated by any other State;[9] documents affecting national security, defence or international relations;[10] internal working documents, the disclosure of which would be contrary to the public interest;[11] law enforcement documents, including those the release of which would prejudice an investigation;[12] documents that would be subject to legal professional privilege or client legal privilege;[13] documents the disclosure of which would unreasonably disclose the personal affairs of any person;[14] documents relating to trade secrets;[15] documents containing material obtained in confidence;[16] documents of a department or prescribed authority the disclosure of which would have a substantially adverse effect on the economy of Victoria;[17] documents arising out of companies and securities legislation;[18] documents to which secrecy provisions of enactments apply;[19] and documents which pertain to closed council meetings.[20]
[8]FOI Act, s 28.
[9]FOI Act, s 29.
[10]FOI Act, s 29A.
[11]FOI Act, s 30.
[12]FOI Act, s 31.
[13]FOI Act, s 32.
[14]FOI Act, s 33.
[15]FOI Act, s 34.
[16]FOI Act, s 35.
[17]FOI Act, s 36.
[18]FOI Act, s 37.
[19]FOI Act, s 38.
[20]FOI Act, s 38A.
Where a document contains material that is exempt or is otherwise irrelevant, it can still be released once exempt material has been deleted, pursuant to s 25 of the FOI Act:
Where -
(a)a decision is made not to grant a request for access to a document on the ground that it is an exempt document or that to grant the request would disclose information that would reasonably be regarded as irrelevant to the request;
(b)it is practicable for the agency or Minister to grant access to a copy of the document with such deletions as to make the copy not an exempt document or a document that would not disclose such information (as the case requires); and
(c)it appears from the request, or the applicant subsequently indicates, that the applicant would wish to have access to such a copy -
the agency or Minister shall grant access to such a copy of the document.
The Tribunal Proceeding
The HWT applied to the Tribunal for review of Mr Coulson’s decision[21] on the ground that he was wrong in concluding that the diary was not ‘an official document of a Minister’.
[21]Pursuant to the FOI Act, s 50(1)(a).
Both parties agreed before the Tribunal that the questions for determination were:[22]
[22]Reasons, [10].
(a)whether the Document [the diary] falls within the meaning of ‘an Official document of a Minister’, for the purpose of s 13 of the FOI Act; and
(b)if the Document is ‘an Official document of a Minister,’ whether the Applicant has a legally enforceable right to obtain access to it under s 13(b) of the FOI Act.
The Tribunal was only called upon to answer the first question. It was accepted by the parties that if the first question was answered in the affirmative, the latter question would be remitted to the OTP for redetermination.[23]
The submissions before the Tribunal
[23]Ibid [11].
The OTP submitted to the Tribunal that for a document to be an ‘official document of a Minister’ it had to have been specifically authorised in some way by a Minister. Alternatively it was submitted that before a document could be held to be a document ‘in the possession of a Minister’, for the purposes of satisfying the first limb of the definition of ‘an official document of a Minister’, it was necessary for the document be in the possession of the Minister in his capacity as a person exercising ministerial functions. The OTP contended that ‘Minister’ was given this meaning by virtue of the definition set out in s 38 of the Interpretation of Legislation Act, in particular the use in that provision of the phrase ‘the responsible Minister of the Crown for the time being administering the provision in which, or in respect of which, the expression is used’.[24] As the Minister administering particular legislation changed from time to time, it was only during the time a person was occupying the position of Minister, and only when performing ministerial functions, that could be relevant to the question of identifying those documents in his or her possession that were official documents of a Minister. The documents had to be in the Minister’s possession ‘qua Minister’.
[24]Emphasis added.
The OTP further submitted that the effect of the words ‘relates to’ and ‘affairs’ in the second limb was to limit the range of documents capable of being possessed by a Minister in his or her capacity as a Minister.[25] For a document to relate to the affairs of an agency, it was argued, it must have a direct connection to the affairs of an agency. This could be ascertained by assessing the character of a document by reference to the purpose for which it was generated, rather than its content.[26]
[25]The OTP relied in this respect upon the decisions of North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 and New South Wales Crime Commission v Murchie (2000) 49 NSWLR 465: Reasons, [85]-[88].
[26]As the OTP had submitted that the content of the diary was not material to determining its character, it was not initially disclosed to the Tribunal.
The diary had been generated by Mr Kapel in his capacity as a ministerial officer employed directly by the Premier to provide him with partisan political advice. As a party-political adviser, he dealt with matters that did not come within the scope of the responsibility of an agency. The diary was used in order to assist Mr Kapel to manage his prospective appointments.
At the hearing before the Tribunal, the OTP relied on the evidence of Mr Tony Nutt, the Chief of Staff to Mr Ballieu as Premier at the time of the Tribunal proceeding. Mr Kapel had been appointed Victoria’s Commissioner in the Americas, based in San Francisco, in January 2012 and departed overseas early in May 2012.[27] Before the Tribunal the OTP submitted that no adverse inference should be drawn from Mr Kapel’s failure to give evidence.[28] The Tribunal ultimately relied on the failure by Mr Kapel to give evidence when concluding that the OTP had failed to discharge the onus imposed by s 55 of the FOI Act.[29]
[27]Reasons, [18].
[28]Reasons, [18].
[29]Section 55(2) of the FOI Act provides: ‘In proceedings under this Division [Division 3 of Part VI, ‘Review by the Tribunal’], 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’. See further below [48].
Mr Nutt gave evidence both orally and in a witness statement about the historical evolution of the role of ministerial officers. His evidence was to the following effect. Before the election of the Whitlam Labor Government in 1972, the private offices of a head of government or minister would be staffed mainly by public servants, whose primary responsibility would be administrative. After 1972, however, these offices were likely to operate as political, policy and strategy units the staffers of which would undertake political functions and policy work on behalf of the head of government or minister. This had the effect of separating the disinterested functions of public servants from the partisan functions of ministerial advisers.
Mr Nutt relied upon a variety of sources[30] in support of these propositions, including comments from Dr Peter Shergold AC:[31]
Public servants are non-partisan. We are … a professional administrative class…Over a career we are likely to serve successive Ministers and Prime Ministers of different political persuasions.
By contrast, the political adviser is necessarily and appropriately partisan. The fortunes of a ministerial adviser are tied to the political career of a Prime Minister, Minister or government.
[30]These sources were R F I Smith, ‘Ministerial Advisers: The Experience of the Whitlam Government’ (1977) 27 Australian Journal of Public Administration 133; M Maley, ‘Ministerial Advisers and the Royal Commission on Australian Government Administration’ (2002) 61 Australian Journal of Public Administration 103; Prime Minister John Howard, ‘A Healthy Public Service is a Vital Part of Australia’s Democratic System of Government’, (Sir Robert Garran Oration, 1997); Dr Peter Shergold AC, ‘Two Cheers for the Bureaucracy: Public Service, Political Advice and Network Governance’, (Address to the Australian Public Service Commission, 13 June 2003); Dr Peter Shergold AC, ’The Need to Wield a Crowbar’: Political Will and Public Service’, (Don Dunstan Oration, 2005).
[31]‘Two Cheers for the Bureaucracy: Public Service, Political Advice and Network Governance’, (Address to the Australian Public Service Commission, 13 June 2013) 4.
In his statement, Mr Nutt set out the manner in which the Public Administration Act 2004 establishes separate regimes for the employment of ministerial officers and public servants in Victoria. Mr Nutt suggested that these statutory arrangements reflect the ‘completely separate hierarchies’ within which
public servants and ministerial officers operate.[32]
[32]Ministerial officers are employed pursuant to s 98(1) of the Public Administration Act, which provides that ‘The Premier may employ a person as a Ministerial officer for a term, not exceeding 4 years, and on terms and conditions specified in the person's contract of employment’, the 4 years reflecting a parliamentary term of government. In contrast, public servants are employed under Part 3 of the Public Administration Act which provides principles for the recruitment of public servants, including provisions relating to the exercise of powers, authorities and duties of an employer over a public service body’s employees (Section 20); restrictions on public service employees in performing other work (Part 3 Division 7); and provisions relating to the termination of a public servant’s employment (Part 3 Division 8).
Mr Nutt described the OTP as a ‘stand-alone entity responsible to the Premier that is distinct from the DPC [Department of Premier and Cabinet] and all other departments and agencies’:
The OTP is staffed by ministerial officers, including administrative staff, secretarial staff and advisers. Consistent with past practice, the OTP is assisted by two Department Liaison Officers (DLOs), who are public servants employed by the Department of the Premier and Cabinet (DPC) to supervise document flow between the DPC and the OTP. DLOs perform an administrative function.
The OTP is located over a single level that also comprises the Premier’s office. The OTP has its own administration, telephone system and secure IT system, but ultimately each is linked to the DPC for budget efficiency reasons. However, the OTP IT system cannot be accessed by the DPC or by any other department.
The functions of the OTP are to support and serve the Premier in his various capacities, including:
in his parliamentary role as the Premier of Victoria and Minister for the Arts;[33]
in his ministerial role as head of the government and Minister for the Arts; and
in his party political role as the leader of the Coalition and of the Parliamentary Liberal Party in Victoria.
[33]At the relevant time Mr Ballieu was Minister for the Arts as well as Premier.
As Chief of Staff of the OTP, Mr Nutt described his role as the manager of the OTP, with day to day duties and responsibilities including:
·Provision of political, policy and strategic advice and opinion to ministers and, in particular, the Premier in his roles as the leader of the elected government of Victoria, of the Coalition and of the Parliamentary Liberal Party of Victoria;
·Management of political issues and events involving the Premier and Ministers;
·Development of relationships and consultation with government stakeholders, including ministers, members of the government, party officials, agency heads, and senior Victorian public servants (at the level of Director and above), and a wide range of non-government stakeholders;
·Cooperation and collaboration with ministerial offices to ensure consistency in the delivery of government messages;
·Directing ministerial staff as instructed by the Premier;
·Liaising and consulting with the Liberal Party and its senior office holders;
·Direction of the Cabinet Office;
·Coordination of the Cabinet process; and
·Work closely with the Cabinet Secretary to ensure effective administration of Cabinet.
Mr Nutt described Mr Kapel’s role as being similar in its day-to-day duties.[34]
[34]However, Mr Kapel did not direct the Cabinet Office personally but would go through the Director of the Cabinet Office (at the relevant time Mr Nutt was the Director).
Mr Nutt described the character of the diary and the uses to which it was put. This description was based upon the information given to him by Ms Colleen Carney, who was a ministerial officer and had acted as the personal assistant to both Mr Kapel and Mr Nutt. In his written statement, Mr Nutt described the diary as follows:
·Mr Kapel’s diary during the relevant period related to appointments made in his role as Chief of Staff to the Premier;
·Mr Kapel’s diary was used by Mr Kapel to manage his time in performing his duties as Chief of Staff by recording his intentions as to future activities; it did not record whether he in fact used his time as recorded;
·Mr Kapel’s diary was maintained in electronic form;
·Mr Kapel or Ms Carney made all entries in his diary;
·The only persons with control of and access to Mr Kapel’s diary were Mr Kapel and Ms Carney; the diary was password protected; and
·Mr Kapel’s diary was never provided to any department or other such public service entity, nor to any public servant.
In cross-examination, Mr Nutt was asked about his own diary. In dismissing an objection to the question, the Tribunal observed that this was relevant to determining the character of a Chief of Staff’s diary in general. Mr Nutt accepted that, although only he and his secretary had access to his diary, if the Premier had asked him for access to it for whatever reason, he would have provided it, and presumed that Mr Kapel would have done the same.
During Mr Nutt’s oral evidence particular attention was given to the degree to which his role required him to interact with, or coordinate the functions of, the DPC. In particular, the Tribunal was interested as to whether there was a degree of overlap between the functions performed by the OTP and DPC. Mr Nutt denied ‘overlap’. However, he gave evidence that occasionally there were FOI requests referred to the OTP from the DPC in accordance with established processes because those requests related to the OTP’s specific duties and responsibilities. He also gave evidence that he would meet with the Head of the DPC, Ms Helen Silver, as well as other senior public servants, for the purposes of consulting with respect to issues of public policy.
The HWT submitted before the Tribunal that the evidence of Mr Nutt indicated that the functions of the Chief of Staff typically overlap and relate to the activities of the DPC. It submitted that the Tribunal ought to draw an adverse inference from the failure of the OTP to produce the diary. (Eventually the diary was produced to the Tribunal, after the hearing.[35]) In any event, it was submitted, the operation of the FOI Act was that, to the extent that there was material in the diary that did not relate to the affairs of an agency, that material could be redacted.
[35]Reasons, [102]. See below [42].
With respect to the meaning of the word ‘Minister’ in the expression ‘official document of a Minister’, it was submitted that the term under s 5(1) of the FOI Act was broader than the language used in s 38 of the Interpretation of Legislation Act, and it was not intended to mean ‘responsible Minister of the Crown for the time being administering the provision’. In the alternative, it was argued that adopting the requirement that the document be in the possession of a Minister in the performance of his ministerial functions (the Minister ‘qua Minister’ approach), would still result in the diary being an ‘official document of a Minister’ because it was not a personal document but a document relating to the Premier’s ministerial functions.
The HWT also submitted that it was the second limb of the definition of ‘official document of an agency’, namely, ‘relates to the affairs of an agency’, that invokes the capacity in which the relevant document came into the possession of the Minister[36] and that a document need only relate in any way to an agency to satisfy the definition.[37]
The Tribunal’s reasons
[36]Reasons, [44].
[37]Ibid [53].
In finding in favour of HWT, the Tribunal understood that a construction that would promote the object of the FOI Act was to be preferred to one that would not.[38] Her Honour accepted that s 3 of the FOI Act made it plain:[39]
that Parliament intended to give members of the public access to information held by the Government and other public bodies; and that the legislation be interpreted so as to further this objective. A member of the public therefore has a right of access to information, unless the FOI Act expressly or by necessary implication, provides otherwise.
(i) The first limb - ‘in the possession of a Minister’
[38]Interpretation of Legislation Act, s 35(a); Project Blue Sky v Australia Broadcasting Authority (1998) 194 CLR 355 (‘Project Blue Sky’): Reasons, [29]-[30].
[39]Reasons, [28].
The Tribunal rejected the OTP’s submission that in order to be ‘official’ the document had to be properly authorised by a Minister, on the basis that there was no authority in case law or the extrinsic materials to support that view.[40]
[40]Ibid [39]-[42].
The Tribunal further rejected the Minister ‘qua Minister’ approach to the first limb.[41] The first limb was held to be entirely concerned with a question of possession, either actual possession or deemed possession, not the capacity in which a Minister possessed a document. A Minister has deemed possession of a document if he or she has ‘a right and power to deal with the document in question’.[42] The Tribunal held that it was not necessary for a Minister to have come into possession of the document in the performance of ministerial functions. It was irrelevant that Mr Kapel created the diary for his own purposes.[43]
[41]Ibid [43].
[42]Ibid [47]-[48], [75], the Tribunal relying on Re Schubert v Department of Premier and Cabinet (2001) 19 VAR 35 (‘Schubert’), [19]; Re Guide Dog Owners and Friends Association and Northern Thanet Pty Ltd and Commissioner for Corporate Affairs (1988) 2 VAR 405, 408.
[43]Reasons, [45].
The question of possession was a question of fact.[44] The Tribunal found that the diary was in the possession of the Premier on the basis of Mr Nutt’s evidence that the Premier was entitled to access his diary and he assumed that the same situation would have applied between the Premier and the diary.[45] The inference was also supported by the evidence that established that (1) Mr Kapel created the diary in the performance of his duties within the OTP; (2) ministerial staff would act in accordance with the instructions of their Minister; and (3) the purpose of the diary was to assist Mr Kapel in the course of the performance of his duties as the Premier’s adviser.
[44]Ibid [50].
[45]Ibid [50]-[51].
The Tribunal found the first limb satisfied.
(ii) The second limb – ‘relates to the affairs of an agency’
The Tribunal accepted the HWT’s submission that it was the second limb of the definition of ‘official document of a Minister’, namely, that it ‘relates to the affairs of an agency’, that made relevant ‘the capacity in which the relevant document comes into possession of a Minister’.[46] The Tribunal also adopted the HWT’s broad view that the phrase ‘affairs of an agency’ meant ‘relates in any way to any of the affairs of any agency’, defining it as including ‘anything that could be considered the business of government or the exercise by a Minister of his or her Ministerial functions’.[47] The Tribunal adopted this approach because, in her Honour’s view:[48]
Ministerial capacity and all that relates to that role, are synonymous with the affairs of an agency. While there may be specific statutory discretions vested in a Minister, it is only through a relevant agency that Ministerial functions, duties or other statutory discretions, can be performed. It is only for the purpose of the second limb that one has regard to definitions of Minister and relevant Minister.
[46]Ibid [44].
[47]Ibid [52]-[53].
[48]Ibid [54], relying on Davis v Office of the Premier (General) [2011] VCAT 1629 (‘Davis’).
On this approach, the second limb does not limit the range of official documents of a Minister to documents produced or developed by an agency, or documents that direct an agency to undertake a particular action,[49] the word ‘relates’ in conjunction with the word ‘affairs’ not being viewed, on this approach, as a word of limitation. Any document is captured which ‘records any act, matter or event which falls within the Minister’s responsibilities as a Minister of the Crown’.[50] Documents that would be excluded under the second limb included documents: (1) relating to the Minister’s private affairs; (2) received solely in a Minister’s capacity as a member of a political party; or (3) relating to the administration of his or her electoral office.[51]
[49]Ibid [74].
[50]Ibid [75].
[51]Ibid [77]. These examples were taken from previous Tribunal decisions: Wilson v Department of Premier and Cabinet [2001] VCAT 1769, Schubert (2001) 19 VAR 35, and the decision of the New South Wales Administrative Decisions Tribunal in Parnell v Office of the Premier of NSW [2009] NSWADT 42.
A document relating to the performance of ministerial functions was, on the Tribunal’s view, necessarily related to the affairs of an agency.[52] Mr Kapel’s responsibilities included assisting the Premier in the exercise of his ministerial responsibilities. At meetings the Chief of Staff might on occasion represent the Premier and communicate the Premier’s instructions.[53] As the diary contained appointments recorded, prospectively, about meetings Mr Kapel was to have in his role as Chief of Staff, the Tribunal inferred that the diary entries thus related to the support given by the Chief of Staff to the Premier in the exercise of his ministerial functions.[54]
[52]Ibid [71].
[53]Reasons, [83].
[54]Ibid [67]-[70].
This was confirmed upon the Tribunal’s reading of the diary.[55] The Tribunal treated each separate entry in the diary as a relevant ‘document’ for the purposes of s 13 of the FOI Act.[56] The diary was described by her Honour as follows:[57]
[55]Ibid [70].
[56]Ibid [104].
[57]Ibid [102].
My examination of the Document, made available after the hearing, confirms that entries have been made in a manner consistent with the evidence given by Mr Nutt in relation to his own diary. Some entries have more description as to the nature and purpose of a particular meeting. No entries appear for the period Tuesday 1 February to Tuesday 8 February 2011 inclusive. Entries otherwise appear to encompass:
(a)Matters of a clearly personal nature;
(b)Staff meetings;
(c)Meetings apparently concerning Government business;
(d)Variously described meetings including and/or chaired by the Premier;
(e)Meetings with third parties, including media personnel; and foreign dignitaries; some also including the Premier;
(f)Airline flight bookings;
(g)Meetings with other Ministers; and
(h)‘FYI’ entries.
There were entries in the diary that did not relate to the affairs of an agency and these were held not to constitute an ‘official document of a Minister’:[58]
[58]Ibid [106].
An examination of the Document reveals certain entries which are clearly not relevant to the Premier’s capacity as Premier or other Minister of the Crown, and accordingly do not relate to the affairs of an agency. These are entries which:
(a) are apparently personal in nature;
(b) relate to the internal administration of the OTP, such as staff meetings and staff appointments;
(c) could possibly relate to the affairs of the Premier’s electoral office;
(d) could possibly relate to the Premier’s membership or leadership of his political party; and
(e) could possibly relate to the administration of the Parliament.
In making this determination, the Tribunal described as ‘irrelevant’ whether:[59]
[59]Ibid [109].
(a)The Document originates from an agency or constitutes a direction to an agency;
(b)The Document was ever provided to an agency or a public servant;
(c)The Premier was involved in or contributed to the entries made in the Document;
(d)The Premier attended any particular appointment entered in the Document;
(e)The Premier ever accessed the diary or the Document, although it is quite conceivable, as submitted by the Applicant, that the Premier may need to access the diary to verify the timing of meetings attended by the Chief of Staff, on his behalf, and the main attendees;
(f)The diary entry contains any substantive information about the content of any meeting; that is, the diary entries do not need to constitute stand alone documents; and
(g)Any recorded meeting was in fact cancelled or not attended by the Chief of Staff.
The Tribunal described as ‘the critical determinant’ for determining whether entries in the diary related to the affairs of an agency as being:[60]
whether the Chief of Staff, by the diary entry, has recorded an attendance or other event which is referable to the Ministerial responsibilities of the Premier or any other Minister, as a Minister of the Crown.
[60]Ibid [110].
Applying this formulation, the Tribunal concluded that the second limb was satisfied in respect of a certain number of entries in the diary:[61]
[61]Ibid [110].
[T]he range of entries which qualify for release include:
(a)attendances involving a range of stakeholders, both with and without the Premier; and both with and without public servants;
(b)interaction with public servants, both with and without the Premier;
(c)attendances involving Parliamentary colleagues; the media, unions; community, business and ethnic parties and organisations;
(d)attendances involving foreign dignitaries, including politicians and diplomats;
(e)other entries which may record events, whether or not attended by the Chief of Staff; and
(f)entries in the nature of descriptions, observations or outcomes.
Accordingly, as the diary satisfied the first limb of the definition of an ‘official document of a Minister’, and many of its entries satisfied the second limb, and those which did not could be redacted, the Tribunal remitted the decision to the OTP to be dealt with according to law.[62]
[62]Ibid [112]-[113].
Her Honour was fortified in her conclusions by the failure of Mr Kapel to give evidence. She found that s 55 of the FOI Act, which imposes an onus upon the agency or Minister to whom a request is made to justify non-disclosure, was applicable to the proceeding.[63] She went on to conclude that the absence of direct evidence from Mr Kapel contributed to the failure of the OTP to discharge the onus imposed upon it. In language that was critical of the OTP, she said: [64]
[T]here was no direct evidence as to the nature of the actual contents of Mr Kapel’s diary or the manner in which he used and relied upon it. In my view, this was inexcusable.
Mr Kapel was still Chief of Staff both at the time of the original request [15 November 2011] and at the time when the belated determination was made [27 January 2012]. He was still available to the Respondent [the OTP] at the time when it filed a Statement pursuant to s 49 of the VCAT Act [6 March 2012] and according to Mr Nutt did not depart for overseas until sometime early May 2012. Accordingly, there was ample time within which the [OTP] could have obtained a statement from Mr Kapel and indeed a statement from Ms Carney, who was reportedly responsible for making entries in the diary. In my view the [OTP] has not taken all reasonable steps to discharge the onus imposed by s 55.
[63]Ibid [98]. Her Honour rejected the submission of the OTP that no question of onus arose because the proceeding involved only a question of law. (Similar submissions had founded the OTP’s reluctance to produce the diary to the Tribunal.) The submission was rejected on the basis that it appeared that the original decision-maker refusing the request had examined the diary prior to making a determination and the submission was inconsistent with the OTP’s reliance on evidence from Mr Nutt about the nature and content of the diary he kept, in support of the construction it proposed.
[64]Ibid [99]-[100].
The Appeal
The OTP relied on four grounds of appeal.[65]
[65]The questions of law OTP identified for the purpose of s 148 of the VCAT Act were: (1) Whether the term ‘Official document of a Minister or Official document of the Minister’ in sub-s 5(1) of the FOI Act, which is relevantly defined to mean ‘a document in the possession of a Minister, or in the possession of the Minister, as the case requires, that relates to the affairs of an agency’, on its proper construction has, as a condition, the requirement that the document must be in the possession of the minister in his capacity as a minister and the character that it must relate to the affairs of an agency? (2) Whether, on its proper construction, an ‘Official document of a Minister or Official document of the Minister’ within sub-s 5(1) of the FOI Act includes the private diary of the Premier’s Chief of Staff, who does not work within or for an agency?
(1) The Learned Vice President misdirected herself as to the meaning of ‘Official Document of a Minister’ or ‘Official document of the Minister’ in sub-s 5(1) of the FOI Act by construing the words ‘in the possession of a Minister’ or ‘in the possession of the Minister’ as meaning a document will be in the possession of a Minister (or the Minister) regardless of whether a Minister (or the Minister) possesses the document in his or her capacity as a Minister or ‘qua Minister’;
(2) The Learned Vice President misdirected herself as to the meaning of ‘Official document of a Minister’ or ‘Official document of the Minister’ in sub-s 5(1) of the FOI Act by construing the words ‘in the possession of a Minister’ or ‘in the possession of the Minister’ to include every document created by a Minister’s Chief of Staff or other Ministerial officer employed under s 98(1) of the Public Administration Act 2004 (Vic) in the course of their employment;
(3) The Learned Vice President misdirected herself as to the meaning of ‘Official document of a Minister’ or ‘Official document of the Minister’ in sub-s 5(1) of the FOI Act by construing the words ‘relates to the affairs of an agency’ as meaning ‘relates in any way to any of the affairs of any agency’;
(4) The Learned Vice President erred in reasoning that, because:
i. The Premier’s exercise of ministerial functions relates to the affairs of an agency;
ii. The Premier’s Chief of Staff supports the Premier, inter alia, in his exercise of ministerial functions;
iii. The Premier’s Chief of Staff used his private diary by making entries to manage his time to support the Premier in his ministerial functions,
it follows that each entry in the Chief of Staff’s private diary made to manage the Chief of Staff’s time to support the Premier in his Ministerial functions itself must also relate to the affairs of an agency.
The submissions made by the OTP on the appeal largely reflected those made to the Tribunal below. The first two grounds related to the first limb of the definition of ‘Official document of a Minister’ and grounds three and four related to the second limb. It is convenient to deal with the issues by reference to that definition.
A preliminary point arose with respect to the first limb, namely, was her Honour correct to treat every entry in the diary as a separate document?
Was the diary a single document?
The HWT argued that her Honour’s approach was correct because the FOI Act invites attention to the character of information contained in a document, or its content. As the content may vary from entry to entry in the diary it was consistent with the purposes of the FOI Act to treat each entry as a single document.
I reject her Honour’s approach. In my view the diary should be considered as a single document.
I do not accept that the FOI Act focuses exclusively, or primarily, upon the character of the information contained in a document. The legally enforceable right of access conferred by s 13 is a right of access to ‘documents’ not to ‘information’ despite the short title of the FOI Act, the long title being ‘An Act to give the Members of the Public Rights of Access to Official Documents of the Government of Victoria and of its Agencies and for other purposes’.[66] This is reinforced by s 3(1)(b), which identifies the relevant object of the FOI Act as ‘creating a general right of access to information in documentary form’. Some of the exemptions, for example, Cabinet documents, depend upon the purpose for which the document was created not its content, or the circumstances under which the information was provided, for example, documents containing material obtained in confidence. The definition of ‘document’ includes, ‘in addition to a document in writing’ any (a) book, (b) photograph, (c) label, (d) disc, tape, sound track, (e) film; (f) anything on which meaningful symbols are marked; and (g) a copy, reproduction, or duplicate of any thing referred to in (a)–(g); and (h) any part of a copy, reproduction or duplicate referred
to in (g).[67] The definition assumes that at least the original document is to be treated as an integrated whole.
[66]Emphasis added.
[67]FOI Act, s 5(1) (emphasis added). The full definition of document ‘includes, in addition to a document in writing— (a) any book map plan graph or drawing; and (b) any photograph; and (c) any label marking or other writing which identifies or describes any thing of which it forms part, or to which it is attached by any means whatsoever; and (d) any disc tape sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and (e) any film negative tape or other device in which one or more visual images are embodied so as to be capable (as aforesaid) of being reproduced therefrom; and (f) anything whatsoever on which is marked any words figures letters or symbols which are capable of carrying a definite meaning to persons conversant with them; and (g) any copy, reproduction or duplicate of any thing referred to in paragraphs (a) to (f); and (h) any part of a copy, reproduction or duplicate referred to in paragraph (g)— but does not include such library material as is maintained for reference purposes’.
This is supported by the operation of s 25, upon which the HWT relied, which, as mentioned above, permits the deletion of exempt or irrelevant material from a document where practicable. The capacity for such deletion also assumes that a document is to be treated as an integrated whole, parts of which can be redacted if necessary. Moreover, if each entry of the diary was to be treated as a separate document, the question arises whether entries which contain reference to a meeting made for multiple purposes (ministerial as well as party-political and personal), or a visit to a department to meet multiple personnel separately, ought to be divided into sub-entries and each sub-entry treated as a separate document to be measured against the definition of an ‘official document of a Minister’? The absurdity of this supports the view that the diary should be treated as a single document.
Did the Tribunal err in construing the first limb – ‘in the possession of a Minister’?
On the appeal, the OTP reiterated its submission that the Tribunal had erred in failing to give ‘Minister’ the meaning set out in s 38 of the Interpretation of Legislation Act and thus in failing to accept that a document was only in the possession of a Minister when it was in his or her possession in the person’s capacity as a Minister. It was argued that without this limitation (including a temporal limitation), the first limb would be satisfied by any document in the possession – actual or constructive – of a person who became a Minister, including, for example, the person’s marriage certificate, driving licence, or a diploma or prize the person had retained, or had a right of access to, from primary school. So too, it was argued, if a Minister was sent a car registration renewal from VicRoads for a private car, or received a party political policy paper about, for example, party fund raising, on the Tribunal’s approach, the document would satisfy the first limb, the only question being whether a person who is a Minister has actual possession of the document, or a right to possess it.
The HWT submitted that the FOI Act was intended to pick up all documents in the possession of a person who was a Minister, regardless of the capacity in which the documents came into the person’s possession, because of the public role he or she performed at the time of the request. It was argued that the problem of over-reach adverted to by the OTP was of no consequence because, although the first limb would be satisfied, the second limb would invariably not be satisfied for truly private documents and the Minister would have no obligation to disclose the document.
I do not agree. A problem arises because some documents may be possessed by a person in an entirely private capacity, who later becomes a Minister, and the document may incidentally ‘relate to the affairs of an agency’, for example, if the marriage certificate, or school prize, or driver’s licence, is signed by the head of a government department. On a broad construction of the second limb the document might, as it were inadvertently, become an ‘official document of a Minister’. The second limb thus may not serve to restrict access to a personal document that satisfies the first limb. This cannot be what the FOI Act intended, no matter how much emphasis is placed on the need to construe its provisions in accordance with its purpose. Nor is it a sufficient answer, as the HWT contended, that an exemption might ultimately be relied upon, such as the unreasonable disclosure of information relating to the personal affairs of a person.[68]
[68]FOI Act, s 33.
I do not consider that it was the intention of the FOI Act to bring within its scope all the personal documents of a person who at some stage in his or her life has become a Minister, no matter at what time in the person’s life the document was produced or came to be in the person’s possession. It is not an object of the FOI Act to impose a disclosure obligation of that magnitude upon Ministers simply by reason of the fact that at some stage in their lives, they have assumed the burdens of public office. I do not consider that the public accountability which the FOI Act effects extends that far, nor do I consider that the potential to rely upon an exemption at some stage in the FOI process would be adequate protection, or was ever intended to be adequate protection, against the public disclosure of the whole range of documents which a person has ever possessed, or has a right to possess, simply because he or she happens to be a Minister at the time an FOI request is made.
The consequence of the Tribunal’s approach, identified by the OTP, is counter-intuitive and supports the OTP’s submission that there is a need for a more restrictive reading of the first limb.
The submission of the OTP also derives some little support from the use of the word ‘official’ in the definition[69] which might be thought to require that the document be ‘derived from or vouched for by person(s) in office’,[70] not in the sense that the document must be a formal record or authorised document (such a reading being overly narrow given the object of the FOI Act and its express interpretive direction to facilitate access) but as supporting the view that a document which is in the possession of a Minister must be a document which the Minister possesses in his or her ministerial capacity.
[69]In accordance with the interpretive rule that all words in a statute must be given some effect and meaning and not treated as superfluous: Project Blue Sky (1998) 194 CLR 355, 382 [71].
[70]Following The Australian Concise Oxford English Dictionary (Oxford University Press, 1st ed, 1987). While this Dictionary definition goes on to state ‘properly authorised’ I consider that the context of the FOI Act negatives any suggestion that the document need be authorised or a formal record, in accordance with the rule that the dictionary meaning of a defined term is, at least to some extent, displaced by the act of defining the term: Pearce & Geddes, Statutory Interpretation in Australia (LexisNexis, 7th ed, 2011) [6.60] 247.
The HWT also submitted, however, that, if a Minister ‘qua Minister’ formulation was accepted, it would potentially allow Ministers to avoid the operation of the FOI Act by recording matters that concerned the exercise of their ministerial functions in documents that were predominantly of a private nature. But the requirement that a document be ‘in the possession of a Minister’ does not implicitly incorporate a test about what was the predominant purpose for which a Minister possessed a document, and nor did OTP submit that this was so. Nor is it a test about the capacity in which a document first came into the possession of a Minister (although if it came into his or her possession as a Minister it does not matter that it has since left the Minister’s possession[71]). As far as the first limb is concerned it is a simple test of determining, at the time the request under the FOI Act is made, whether the Minister has actual possession, or a right to possess, a document in the performance of his or her ministerial functions. If a Minister has recorded matters relating to ministerial functions on a private document he or she will have actual or constructive possession of that document ‘qua Minister’. It is irrelevant whether the Minister also has possession of the document in a private capacity. I do not consider that the intent behind s 13(b) of the FOI Act, or the definition of ‘official document of a Minister’, could be frustrated in the way envisaged by the HWT.
[71]See the full definition of ‘official document of a Minister’ set out in [11] above.
In my view, a document only satisfies the first limb if the document is in the actual or constructive possession of a Minister in his or her capacity as a Minister. It follows that I consider that her Honour erred in her construction of the first limb of the definition of an ‘official document of a Minister’. However, it is necessary to consider whether, nevertheless, the diary satisfies the first limb in accordance with the preferred construction.
The OTP accepted that the Premier could call for the diary but maintained that nonetheless the diary did not satisfy the first limb, either because the diary was of a private or personal nature which did not fall under the scope of an ‘official’ document or because the reason the Premier could call for the diary was due to the relationship of employer to employee he had with Mr Kapel.
The flaw in the first submission is that, while the diary was described as Mr Kapel’s ‘private’ diary, it was apparent from its purpose, in particular, to facilitate the performance by the Premier of his ministerial functions, that it was a diary of Mr Kapel’s professional appointments and was only ‘private’ in the sense that only Mr Kapel and his personal assistant had day to day access to it. This conclusion is reinforced by the description of the content of the diary, as set out by her Honour. I should add that this Court found no need to examine the diary and did not call for its production, preferring instead to resolve the appeal on the basis of legal argument and with the benefit of the Tribunal’s observations.
The flaw in the second submission is that the particular employment relationship at issue was that of Minister to ministerial adviser and it was by virtue of that particular relationship, about which Mr Nutt gave evidence, that the inference of constructive possession could be drawn. Accordingly, the Premier had constructive possession of the diary in his capacity as a Minister.
On my view, the diary satisfies the first limb of the definition of an ‘official document of a Minister’.
Did the Tribunal err in construing the second limb – ‘relates to the affairs of an agency’?
The OTP argued that it was a consequence of a restrictive reading of the first limb that the second limb must also be given a restrictive reading. If the first limb invited attention to all the ministerial functions a Minister performed, the second limb focused upon a sub-set of those functions, namely, only those functions which related to the affairs of an agency. It was argued that the second limb could not extend to the entire range of ministerial functions performed by a Minister, or the whole of the business of government, as the Tribunal had concluded, because several of those functions were not performed by or through an agency.[72] For example, the Premier has power to advise the Queen in relation to the exercise of powers and functions in respect of Victoria and the Governor in relation to certain powers and functions.[73] The Premier may exercise those powers directly and without the intervention of an agency. So too there are aspects of government, including statutory entities such as the Director of Public Prosecutions, the Public Advocate and the Solicitor-General, that are expressly excluded from the scope of the definition of ‘agency’[74] yet a Minister, particularly the Attorney-General, may have ministerial functions to perform directly in relation to those entities. Ministerial capacity was thus not synonymous with ‘affairs of an agency’.
[72]In this respect, OTP’s position appeared to have subtly shifted between the hearing before the Tribunal and the hearing of the appeal. Before the Tribunal, OTP appeared to argue that all documents in the possession of a minister in his or her capacity as a minister will necessarily relate to the affairs of an agency and hence the words ‘relate to the affairs of an agency’ in the second limb would be redundant unless they were read as words of limitation, requiring the documents to relate to actions or acts being done within an agency. The Tribunal adopted the assumption that all ministerial functions are performed through an agency to hold that ‘relates to an agency’ includes ‘anything that could be considered the business of government or the exercise by a Minister of his or her Ministerial functions’ (Reasons, [44]). On the appeal, OTP was keen to ensure that ‘ministerial capacity’ was not understood as synonymous with ‘affairs of an agency’.
[73]Australia Act 1986 (Cth), s 7(5); Constitution Act 1975, s 87E.
[74]FOI Act, s 5(3)(a); Freedom of Information Regulations 2009, s 6.
Furthermore, the OTP submitted that the word ‘relates’ must be given its full meaning, which depends upon the context in which it appears. In this context, it was argued, it was being used to identify the requirement that a document in the possession of a Minister must have a direct connection with the affairs of an agency before becoming subject to a right of access. The word ‘affairs’ must also be given a narrow meaning; it would be redundant if it referred to every aspect of government business in which an agency was involved – if that was intended, the second limb could have been replaced by the words ‘relates to an agency’. Thus, something narrower must have been intended and in the context, it was submitted, the word ‘affairs’ should be read as referring to the internal operations of an agency.[75] Ultimately, it was contended that for a document to satisfy the second limb of the definition an ‘official document of a Minister’ requires the ‘document to relate to acts or actions being done by or within an agency’.
[75]The OTP relied in this respect upon the narrow meaning given to the word ‘affairs’ in the decision of New South Wales Crime Commission v Murchie (2000) 29 NSWLR 465.
It was submitted by the OTP that the diary did not ‘relate to the affairs of an agency’ because it was used by Mr Kapel to organise his own appointments and while this may have related to the affairs of the OTP, the OTP was not an ‘agency’. The appointments included meetings with public servants, and may have included meetings with heads of government departments, including the head of the DPC, but, it was submitted, the diary had no direct connection with the internal operations of the departments of which the public servants were officers or heads, including the internal operations of the DPC. As the Premier had a general supervisory obligation over the whole of government, the appointments made by his Chief of Staff, as recorded prospectively, were sufficiently divorced from the affairs of any specific agency so as to fail to satisfy the second limb.
In response the HWT submitted that the phrase ‘relates to’ is a broad expression that requires no more than some form of relationship between two things, which need not be immediate. As McHugh J said in O’Grady v Northern Queensland Co Ltd:[76]
The prepositional phrase ‘in relation to’ is indefinite. But, subject to any contrary intention derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters.
[76](1990) 169 CLR 356, 376.
I agree. The breadth of the expression is supported by its context, included, as it is, within an Act which has as its object ‘to extend as far as possible’ the right of the community to access to information and which contains the express interpretive direction set out above[77] to interpret all the provisions of the FOI Act to further its object.
[77]At [9].
With respect to the phrase ‘affairs of an agency’, the HWT accepted that it contained words of limitation but submitted that it did not follow that the phrase was to be given the overly narrow construction for which the OTP contended. The ordinary meaning of the word ‘affairs’ encompasses ‘ordinary pursuits of life; business dealings; public matters’.[78] In this context the plain meaning was said to be the business, activities or concerns of an agency. There was no statutory indicia or ambiguity that required departure from that meaning.
[78]Relying upon the Australian Oxford Dictionary (Oxford University Press, 2nd ed, 2004) the New Shorter Oxford English Dictionary (Oxford University Press, 1993) and the Macquarie Complete Australian Dictionary (Macquarie Dictionary Publishers, 5th ed, 2009).
In particular, the HWT emphasised, the definition of an ‘official document of an agency’ contained no express or implied reference to the ‘operations’ of an agency. Nor does s 3(1)(b), which identifies the object of granting access to information in a documentary form, make reference to the ‘operations of an agency’. By contrast, s 3(1)(a) identifies as an additional object of the FOI Act the making available to the public of ‘information about the operations of agencies’, especially their rules and practices affecting the public. It is Part II that gives effect to this object, not Part III with is concerned with access to documents.
Furthermore, it was submitted, the diary contains records of prospective appointments relating to the business, activities or concerns of one or more agencies and thus falls within the second limb of the definition.
I agree that the diary relates to the affairs of one or more agencies.
However, I consider that the Tribunal was wrong to construe the phrase ‘relates to the affairs of an agency’ as ‘includ[ing] anything that could be considered the business of government or the exercise by a Minister of his or Ministerial functions’.[79] In my opinion, the phrase is clearly restricted to the business of those entities that fall within the definition of ‘agencies’ and not more generally to the business of government. Moreover, it is restricted to the ‘affairs’ of an agency which must include at least the business and activities of the agency. In addition ‘affairs’ must include an agency’s ‘concerns’ in the sense of the area of governmental responsibility the agency is designed to discharge, or the area of government policy it is designed to implement, in keeping with its function of supporting the Minister with respect to a ministerial portfolio.
[79]Reasons, [52].
While the word ‘operations’ does not appear in the phrase there is nothing to preclude the ‘affairs of an agency’ from including its operations, but there is also nothing to support restricting those operations to internal operations. Indeed, the submission ultimately made by the OTP, that a document which relates to the ‘affairs of an agency’ must be one that ‘require[s] the document to relate to acts or actions being done by or within an agency’, to my mind, would extend to the external operations of an agency. In particular, the ‘affairs of an agency’ would include actions taken, including meetings arranged, between an officer of a government department, or other agency, and an external entity (regardless of whether the external entity was also an agency). Such an arrangement is an action taken by the agency. Arrangements made between, on the one hand, officers of a government department, or other agency, and, on the other hand, a ministerial adviser from an external entity, including the OTP, are included within the ‘affairs of an agency’. Documents that bear a direct or indirect relationship to those arrangements are thus included within the documents that ‘relate to the affairs of an agency’.
In summary, a document ‘relates to the affairs of an agency’, and thus falls within the second limb of the definition of an ‘official document of a Minister’, if it bears a direct or indirect relationship to the business and activities of an agency, or the agency’s area of governmental responsibility, or to arrangements between government departments or other agencies and external entities, including arrangements between agencies and Ministerial advisers from the Office of the Premier.
It can be inferred from the general character of the diary, as well as from its content, as described by the Tribunal, that it bears a direct or indirect relationship to arrangements made between officers of government departments, other agencies, and Mr Kapel as the Premier’s Chief of Staff. It follows that the diary satisfies the second limb of the definition of ‘an official document of a Minister’.
Conclusion
The application for leave to appeal should be granted. It is clear that the OTP has satisfied the test for leave as set out in Secretary to the Department of Premier and Cabinet v Hulls,[80] as reaffirmed in Myers v Medical Practitioners Board of Victoria,[81] namely, having identified a question of law (here, the construction of the definition of ‘an official document of a Minister’) there is a real or significant argument to be put that error exists and, as a relevant consideration supporting a grant of leave, it is apparent that the question of law identified is a matter of general or public importance. As the decision of the Tribunal was final in its effect it can be readily discerned that to allow the error to go uncorrected would result in substantial injustice.
[80][1999] 3 VR 331, 335.
[81](2007) 18 VR 48, 55-6 [28]-[30].
In my view, the Tribunal fell into error in the construction adopted of both limbs of the definition of an ‘official document of a Minister’.
Nevertheless, on the proper construction of the definition of an ‘official document of a Minister’ the diary satisfies both limbs of the definition. It is therefore an ‘official document of a Minister’ and subject to the rights of access under the FOI Act.
The appeal should be dismissed.
The Tribunal granted a Stay on 13 August 2012 of the orders it made on 10 July 2012 (1) setting aside the decision of the OTP refusing access to the diary, and (2) remitting the request to the Minister to be reconsidered according to law. That
Stay should be lifted.
This is not to conclude that the diary must be disclosed to the HWT. It will be necessary for consideration to be given to the question of whether any exemptions are applicable and also whether any irrelevant or exempt material can be deleted so that the OTP can grant access to the HWT to a redacted copy of the diary.
WHELAN JA:
I agree with Tate JA.
KAYE AJA:
For the reasons stated by Tate JA, I agree that the application for leave to appeal should be granted, but that the appeal should be dismissed. I also agree that the stay, granted by the Tribunal on 13 August 2012, should be lifted.
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