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Wednesday, November 25, 2009

Victorian Tribunal equates public service advice with legal advice

On several occasions the approach taken in some Victorian court and Tribunal decisions when applying public interest considerations in Freedom of Information exemptions, particularly in respect to internal working documents, has been the subject of comment here, this post for example. In a recent decision ( Landes v Vicroads (General) [2009] VCAT 2403) Deputy President Macnamara of the Victorian Civil and Administrative Tribunal suggested there is a presumption against disclosure of high level advice on a sensitive matter, and gave things a new twist by equating the rationale for confidentiality of public service advice documents with client legal privilege:
  1. In the present case I accept the submission that if the Minister has sought opinion, recommendation and advice from Vicroads through its Chief Executive on a highly sensitive and highly contentious issue this is significant as to where the public interest lies. If under the Freedom of Information Act it were generally possible for critics of a Government to trawl through the advice which a Minister received in those circumstances with a view to detecting consistencies or inconsistencies between what a Government has done and what advice it has received, or perhaps seeking support for some of the criticisms made in the advice which the Minister received, the ability of Ministers to obtain that sort of advice would be prejudiced. Either Ministers would be deterred from seeking it at all or they would seek it in some unwritten form so that it could not thereafter be canvassed following release under freedom of information legislation. The public interest rationale here is to some degree along the same lines as the rationale for the high value which the law attaches to client legal advice privilege.
The rationale for legal professional privilege is the importance attached to the administration of justice. The reasoning here seems to be that seeking and receiving high level advice in the administration of the state is analogous and should enjoy the same protection. I haven't seen this view advanced elsewhere- in fact the relevance of the high level of those involved and what amounts to protection to ensure frank and candid advice isn't automatically accepted, if at all.

The case has a number of interesting angles, and highlights [18] another familiar feature of contested FOI applications: the dribble effect. Vicroads initially identified 10 documents within the scope of the request granting access to one and refusing access to nine. On internal review, part of one of the documents claimed to be exempt was also released but the initial determination was otherwise affirmed. It's not clear whether the applicant soldiered arms on some of the other documents in dispute or the agency conceded, but by the time the proceeding came on for final hearing before the Tribunal the one document remaining in dispute was a memorandum from the Chief Executive of Vicroads to the Minister for Roads and Ports re
‘Advice on clearway hours.’ Access had been granted to the document with the exception of paragraphs 5 to 11.

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