Below are extracts from the VCAT decision on Penhalluriack’s application for FOI access to council documents. The full decision is available at: http://www.austlii.edu.au/au/cases/vic/VCAT/2012/370.html
The report indicated sampling and testing of the mulch itself had not been carried out. Rather, NAA’s report referred to the results of air testing conducted around the mulch storage facility (including at the adjacent playground) and compared with a neutral reference location. This was on the basis that it was NAA’s view that air testing was the most effective way to assess any threats to the health of the public, or Council employees working at the facility.
The report concluded that it was likely that workers and mulch users would potentially be exposed to bacteria (eg legionella) and fungi as a result of handling mulch. It stated however that air testing of the levels of bacteria and fungi at various locations around the mulch facility indicated that these were not elevated when compared with general environmental exposure. Nevertheless, it recommended a series of simple steps be taken to minimise the risks associated with the levels of bacteria and fungi which Council workers and the public would be exposed to. These included preventing buildup of large quantities of mulch, providing training and personal protection equipment for workers, installing a fine mist spray system and providing warning information to members of the public, by way of signs and flyers, about the risks of handling the material, equivalent to those provided on commercially available products.
Cr Penhalluriack was also concerned that the NAA report may have been compromised as a result of consultations between Council staff and NAA. This concern arose in circumstances where Cr Penhalluriack became aware that the report had been through a number of drafts, in consultation with Council officers, and also in the light of his concerns that Council officers had not taken the issue seriously when he had raised it prior to November 2010.
Cr Penhalluriack made an FOI request to the Council on 21 March 2011 (ie before to the 5 April 2011 resolution to remove the facility) in the following terms: I would like copies of all records relating to the Mulch storage facility from the time it was installed in Glen Huntly Park in or about August 2009 until now. These records should include documents arising from, or relating to, an enquiry to the Audit Committee on the 19th November 2010, and include diary, telephone, email and discussion notes, including a list which outlines the nature of any “complaints” or “comments/feedback” that have been received by Council and which were submitted by residents, contractors, or employees in relation to the Mulch storage facility
Cr Penhalluriack was also denied access to twenty-six documents. These were said to constitute internal working documents, and to be exempt under section 30 of the Act.
By the commencement of the hearing, consultations between the parties resulted in only six documents remaining in dispute.
This case is a little unusual in that the respondent is a Municipal Council, and the applicant is a Councillor of that Council. One would expect councillors to be provided with a deal of information by councils, on occasion including documents which would be exempt under FOI. However, there is nothing preventing councillors pursuing documents under FOI from their own council
30 Internal working documents
(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act—
(a) would disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers, or an officer and a Minister, in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government; and
(b) would be contrary to the public interest.
the key requirements of section 30(1)(a) are that the matter in the documents in question must be in the nature of opinion, advice or recommendation. Alternatively, they must comprise consultation or deliberation between officers, councillors or between an officer and a councillor.
It is well accepted that the term “officer” includes independent consultants retained by agencies to assist in carrying out their functions
This is perhaps the most significant document in terms of the controversy between the parties. It is described in the schedule of documents in dispute as “Email and Draft Report” dated 10 February 2011. The author is NAA. This document comprises first, a short covering email and second, the enclosed draft report. This was an earlier draft of the report which was provided to the Audit Committee at its meeting on 25 February 2011. This version is marked “V2”. The version produced to the Audit Committee which was publicly released is marked “V3”.
Although it has the same basic structure, the 10 February version of the Report (V2) differs from V3 in a number of ways.
In my view, it is a typical example of the type of document the Tribunal has frequently determined is a pre-completion draft, which should not be released. The final version represents the considered view of its authors, on the matters which the Council had asked it to advise about. To release the draft version would confuse readers, and could cause mischief or unnecessary concern, especially in the light of the fact that the report is dealing with an issue of public health (including investigating the prevalence of legionella, which has the potential to cause alarm in the community). What should and what should not be included in the final version of such a document are important in terms of the message which is conveyed to the public. As was discussed in Brog, it is in the nature of preliminary drafts that they are reviewed and polished- corrected by alteration, substitution and addition.
It was also submitted on behalf of the applicant that the desire to obtain an independent view by experts outside the Council was of significance here. It was argued in effect that it was in the public interest to be able to examine communications with the consultants, to shed light on whether their independence was compromised – whether they were unduly influenced by Council officers. However, this runs contrary to the concession which the applicant made, rightly, that NAA is to be regarded as an “officer” of the Council for the purposes of section 30.
Further, the facility was closed about 12 months ago. It might be said that this suggests any confusion or mischief is lessened with the passage of time. On the other hand, this could also be said to militate in favour of not releasing a draft version of the report, because it could be said to be stirring up something in the past which in itself creates mischief and confusion now. On balance, I do not believe the passage of time is a strong factor in favour of release in this case.
The applicant contended that only the first sentence of the second last paragraph could properly be described as an opinion expressed by a Council officer. I disagree. In my view, a fair reading of this document as a whole is that it is discussing the appropriate content of the report to be put to Council, and then, presumably, released publicly. It is part of the process of determining what the appropriate content of the report is, in order to fulfil its purpose, which is, broadly, to advise Council on any risks associated with the facility, and to recommend steps to deal with such risks.
The applicant invoked the high public interest in ensuring the protection of public health. His counsel, Ms Currie, submitted that the public are entitled to know what tests are being carried out to be able to scrutinise them and form a view as to their effectiveness and as to the quality of the report by NAA. She also referred to authority in relation to the need to be able to test expert evidence in legal proceedings, saying that the public interest here is akin to the rationale for scrutiny of expert material in litigation between parties where expert evidence is being relied on. Thirdly, she relied on the public interest in the integrity of independent advice publicly proffered to Council in relation to a matter of public health and safety. It was contended “that interest is of particular prominence in circumstances where the independence of the risk assessment and the reporting from the Council’s own processes was an essential reason for commissioning the independent risk assessment and report”.
I do not accept that any of these aspects of public interest are of sufficient magnitude to satisfy the threshold required for section 50(4). I do not accept the suggested analogy with the need for scrutiny of expert evidence in litigation. In relation to public health, of course this is important, but there is nothing in the content of the documents which suggests that an issue arose in the conduct of this matter by the Council, which gives rise to an overriding concern, or a need to expose the Council’s internal processes beyond what would normally occur in applying section 30. Whilst the spectre of “legionella” was raised, I do not accept there was a potential threat to public health of sufficient magnitude to outweigh the public interest against release, let alone require release of the document. Also, of course, the facility was closed down 12 months ago and so such public health concerns are no longer current.
