Victorian Government loses battle over big dollar project reports

This report in The Age provides a summary of a Victorian Court of Appeal decision that progress reports on major projects, prepared by government agencies to provide the basis for a subsequent report to a Cabinet Committee, are not exempt from disclosure under the Freedom of Information Act. The decision comes two and a half years after the documents were sought by the Deputy Leader of the Opposition.

In Secretary, Department of Infrastructure v Asher (2007) VSCA272, the Court dismissed the agency's appeal from a Civil and Administrative Tribunal decision that the documents did not qualify as Cabinet documents. The documents had not been prepared for submission to Cabinet, and would not disclose any deliberation or decision of Cabinet.

The Court found that even though the information contained in the departmental reports ended up in a submission to the Cabinet Expenditure Review Committee, and the evidence was that the matter was discussed by the Committee, the documents would not disclose any deliberation by ministers in the Cabinet room, or what was decided by them.

Importantly, the decision also gives weight to the objects of the Act and the description in Section 3 of exemptions as those "necessary for the protection of essential public interests".

Justice Buchanan (at 7) commented:

"I can readily understand that it is necessary for the protection of an essential public interest to prevent the disclosure of documents revealing views expressed by members of Cabinet as to a matter and the manner in which Cabinet treats and uses information placed before it. I am unable to see, however, that the disclosure of a document placed before Cabinet, without any indication that Cabinet even read the document, let alone how Cabinet dealt with the document, could jeopardise any public interest".