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Wednesday, November 09, 2011

Frank and candid rule in Victorian jurisprudence

Victorian Civil and Administrative Tribunal Deputy President Judge Hampel in Friends of Mallacoota Inc. v Department of Planning and Community Development (General) [2011] VCAT 1876 decided the documents in dispute were internal working documents and disclosure would be contrary to the public interest. Refusal of access was necessary in order to protect the independence and quality of advice of public servants. The automatic acceptance and weight given to this argument, and some principles listed in the decision as accepted parts of the law in Victoria illustrate the "old style" FOI practiced in that state. Some of this just wouldn't fly elsewhere particularly in the FOI reform jurisdictions.

At the risk of repetition, Victorian FOI could do with a major legislative overhaul.

Deputy President Judge Hampel in Friends concluded:
67....it is in my view, of great importance that the independence and quality of advice provided to Ministers or other ultimate decision-makers by departmental officers in the discharge of their obligations or the functioning of the agency is not compromised. Public servants must feel free to give robust and independent advice to Ministers and other decision-makers, to test and challenge assumptions, to canvass options, and to consider all possibilities. This freedom is of fundamental importance that the integrity or effectiveness of the decision-making process. It is essential that frank and fearless advice and expression of opinion be provided to Ministers and other decision-makers, so they are fully informed before they discharge their responsibility to make a decision. In my view, none of the matters raised by the applicant in support of its submission there is a public interest in favour of disclosure in respect of the release of draft and working documents, which form part of the deliberative process outweighs the public interest in this case in protecting the independence and quality of advice provided to decision makers by departmental officers (sic).
Accepted principles regarding the public interest test listed in her decision, drawn from binding or persuasive precedent were as follows-with a brief comment from me on each.

Regard must be had to both the nature of the information and the nature of the document. (Comment: widely accepted that content and context are both relevant.)

The more sensitive or contentious the issues involved in the communication, the more likely it is that the communication should not be disclosed.[5] 
( Citing the "famous" Howard principles. A contentious principle in itself.)

Draft internal working documents or preliminary advices and opinions are more generally than not be inappropriate for release.[6] That is particularly so when the final version of the document has been made public.[7]
(A draft is just that. The Full Court of the NSW Supreme Court decided some years ago there should be no presumption against disclosure of a draft simply for that reason.)

It is contrary to the public interest to disclose documents reflecting possibilities considered but not eventually adopted, as such disclosure would be likely to lead to confusion and ill informed debate,[8] to give a spurious standing to such documents[9] or promote pointless and captious debate about what might have happened rather than what did.[10]
(Confusion and unnecessary debate are irrelevant considerations in Commonwealth and other reform state legislation.)
Decision-makers should be judged on the final decision and their reasons for it, not on what might have been considered or recommended by others in preliminary or draft internal working documents.[11]
( Somewhat contentious.Documents, what they contain and the effect of disclosure are the relevant issues.)
It is contrary to the public interest to disclose documents that would have an adverse effect on the integrity or effectiveness of a decision-making, investigative or other process.[12] 
(Generally accepted.)

The following passage from Secretary to the Department of Justice and Osland,[13] where Maxwell P said the public interest considerations underlying the exemption for internal working documents included:"[T]he efficient and economical conduct of government, protection of the deliberative processes of government, particularly at high levels of government and in relation to sensitive issues, and the preservation of confidentiality so as to promote the giving of full and frank advice.[14]
(Special consideration of high level communication ruled out in some reform legislation. No presumption that disclosure would impact on full and frank advice-evidence is required.)

Disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making process; and public interest concerns the interest of the public as distinct from the interest of individuals. (Senior Member Preuss in Wells v Department of Premier and Cabinet.[15)
( There are precedents elsewhere that support these statements. The first is somewhat contentious. As to the second, there is an accepted public interest in justice to the individual.)

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