Allens

Litigation & Dispute Resolution

Client Update: Victorian Government 'blue book' exempt under FOI laws

21 March 2012

In brief: The Victorian Civil and Administrative Tribunal has confirmed that briefs prepared by the public service for an incoming government will be exempt from disclosure under Victorian Freedom of Information laws. Partner Alex Cuthbertson (view CV) and Lawyer Naomi Snyder report.

Background

Following the election of the Baillieu Coalition Government in November 2010, a journalist from The Age newspaper sought access under the Freedom of Information Act 1982 (VIC) (the FOI Act) to briefing documents prepared by the Department of Sustainability and Environment (the DSE) for inclusion in the so-called 'Blue Book'. The 'Blue Book' is a set of briefing papers prepared by the public service for the Coalition, should it be elected. A similar set of briefing papers, known as the 'Red Book', is prepared for the Labor Party.

Among other things, these briefing papers contain policy implementation plans for the election policies announced by each party during the election. More generally, the Blue Book (or Red Book) is prepared to advise the incoming Premier about how to establish the operations of the new Government, including the Cabinet. The evidence before the Victorian Civil and Administrative Tribunal in this case was that the Blue Book was prepared for the incoming Premier, with the expectation that he would use it to brief Cabinet.

The DSE refused access to the documents, on the basis that they were 'Cabinet documents' and were, therefore, exempt documents under section 28(1) of the FOI Act. Specifically, the DSE submitted that the documents fell within s28(1)(ba), which exempts a document 'prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet'. The DSE also submitted that the documents were exempt under the 'Internal working documents' exemption in s30(1) of the FOI Act.

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The decision

In Fyfe v Department of Sustainability & Environment 1, Senior Member Ian Proctor decided that the documents fitted squarely within the 'Cabinet documents' exemption. It was, therefore, not necessary for him to decide whether the documents were also exempt under the 'Internal working documents' exemption.

In his decision, the Senior Member confirmed and applied the principles established by previous authorities in relation to the 'Cabinet documents' exemption. In particular:

  • the exemption turns upon the purpose for which a document was prepared;
  • it is not necessary to prove that the document was actually submitted to Cabinet or a Minister;
  • the actual use of a document may be relevant to ascertaining the purpose for which the document was prepared, but is not decisive of this question; and
  • a document will only be exempt if the sole purpose, or one of the substantial purposes, for which the document was prepared was an exempt purpose.

The Senior Member also confirmed that, for the purposes of s28(1)(ba), the expression 'consideration by Cabinet' suggested some form of deliberation or consideration by Cabinet of the issues contained in the documents. It was not enough that the documents were intended to be placed before Cabinet for information purposes.

Based upon the evidence before him, Senior Member Proctor found that the dominant and one of the substantial purposes of the documents was to brief a Minister (that is, the incoming Premier, should the Coalition be elected) in relation to issues to be considered by Cabinet. He found that the documents were created for another purpose, being to eventually reach the Minister of the Department. That second purpose did not, however, displace the dominant purpose.

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FOI reform – Victoria lagging behind?

The Victorian Government's approach to the disclosure of the Blue Book can be contrasted with the Federal Government's.

In response to a number of FOI requests, the Federal Government released significant parts of the Red Book prepared before the election of the Gillard Labor Government in 2010. This release, in part, recognised the public interest in this information and reflected the 2010 reforms to the federal FOI legislation. The principal object of these reforms was to promote a pro-disclosure culture across government. Similar reforms have been enacted in New South Wales, Queensland and Tasmania.

Legislation that would have enacted similar reforms in Victoria was defeated in 2008 and, as a result, the state is yet to adopt the same open and transparent approach to the disclosure of government information as these other jurisdictions.

Footnotes
  1. Unreported, 29 January 2012, VCAT Reference No. G315/2011.

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