VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE DIVISION
REVIEW AND REGULATION LIST / vcat reference No. Z336/2015CATCHWORDS
Freedom of information – Claims for exemption by public research body of datasets of scientific research – Plain packaging – Cigarette and tobacco use – Status of respondent – Internal working documents exemption – Incomplete research exemption – Information supplied in confidence exemption – Public interest – Public interest override – Redaction of exempt matter – Freedom of Information Act 1982 (Vic) ss 3, 5(1), 13, 25, 30(1)-(3), 34(4)(b)(iii), 35(1), and 50(4) – Improving Cancer Outcomes Act 2014 (Vic) ss 23, 25 – Interpretation of Legislation Act 1984 (Vic) s 14(2) – Tobacco Plain Packaging Act 2011 (Cth) s 3.
APPLICANT / Graeme Johnson
RESPONDENT / Cancer Council Victoria
WHERE HELD / 55 King Street, Melbourne
BEFORE / Justice Greg Garde AO RFD, President
HEARING TYPE / Hearing
DATE OF HEARING / 16-19 May 2016
DATE OF ORDER / 26 September 2016
CITATION / Johnson v Cancer Council of Victoria (Review and Regulation) [2016] VCAT 1596
Order
1 Pursuant to s 51(2)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’), the decision under review is affirmed in relation to Documents 1 and 3-6 (inclusive), as those documents are exempt under Part IV of the Freedom of Information Act 1982 (Vic).
2 Pursuant to s 51(2)(c) of the VCAT Act, the decision under review is set aside in relation to Document 2.
3 The Tribunal orders that the applicant be granted access to Document 2.
4 Costs are reserved.
Justice Greg Garde AO RFD
President
APPEARANCES:For the Applicant: / Mr C Scerri QC with Mr J Kirkwood of counsel instructed by Herbert Smith Freehills
For the Respondent: / Mr P Hanks QC with Ms E Latif of counsel
instructed by the Victorian Government Solicitor’s Office
Contents
Order 1
Contents 3
Reasons 5
Introduction 5
Background 5
Relevant statutory provisions 7
The Council 11
The effect of ss 23 and 25 of the ICO Act 11
The significance of the applicant’s purpose in seeking access 13
The Council’s evidence 14
Introduction 14
Professor Wakefield 14
Associate Professor White 30
Mr Harper 39
Professor Fox 42
Dr Timms 44
Professor Carapetis 45
Applicant’s evidence 47
Dr McKeganey 48
Professor Viscusi 49
Mr Gibson 52
The Council’s reply evidence 53
Professor Wakefield 53
Associate Professor White 54
Mr Harper 55
Professor Carapetis 55
The applicant’s reply evidence 56
Dr McKeganey 56
Professor Viscusi 56
Mr Gibson 56
Evidentiary Issues 56
Objections to evidence and witness criticisms 56
Absence of cross-examination 57
Internal working documents exemption 58
Introduction 58
Relevant case law 58
(1) Would disclosure of the document disclose matters in the nature of consultation of deliberation that has taken place between Council officers in the course of or for the purpose of the deliberative processes involved in the functions of the Council? 60
(2) Would disclosure of the document be contrary to the public interest? 62
(3) Does the document contain information that is not purely factual material? 70
Conclusion 70
Incomplete research exemption 70
Introduction 70
Relevant case law 70
(1) Does the document contain the results of scientific or technical research undertaken by an officer of an agency? 71
(2) Would the disclosure of the results before the completion of the research be reasonably likely to expose the Council or an officer of the Council unreasonably to disadvantage? 72
Conclusion 75
Information supplied in confidence exemption 76
Introduction 76
Relevant case law 76
(1) Would the disclosure of Document 1 divulge any information or matter communicated in confidence by or on behalf of a person to the Council? 77
(2) Would the disclosure of the information be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of the Council to obtain similar information in the future? 79
Conclusion 80
Other Issues 81
The public interest override 81
Can exempt matter be deleted from the disputed documents? 82
Conclusions 84
Conclusions as to exemptions 84
The public interest override 84
Redaction of exempt documents 84
Conclusion 84
Reasons
Introduction
Background
1 This is an application for review of a decision by the Freedom of Information Commissioner (‘the Commissioner’) exempting six documents (‘the disputed documents’) from production under the Freedom of Information Act 1982 (Vic) (‘FOI Act).
2 The application is brought by Graeme Johnson (‘the applicant’), a partner of global law firm Herbert Smith Freehills. The application is brought to advance the interests of British American Tobacco, an international tobacco group.
3 The respondent is the Cancer Council Victoria (‘the Council’), a body that was until 1 October 2015 incorporated under s 7 of the Cancer Act 1958 (Vic). On this date, the Council became a company limited by guarantee under ss 23 and 25 of the Improving Cancer Outcomes Act 2014 (Vic) (‘the ICO Act’).
4 In September 2014, the applicant made a request under s 17 of the FOI Act for documents recording data and information gathered from surveys conducted by the Council regarding the implementation and potential implementation of plain packaging legislation within Australia created since 1 April 2012.[1]
5 The Council responded, stating that ‘7,128 documents relevant to your request have been identified’.[2] Access to all documents was denied.
6 In November 2014, the applicant applied to the Commissioner for review of the Council’s decision to deny access. In the written submission in support of the application for review, the applicant stated:
To be clear, the [applicant] does not seek each and every document in which reference is made to the existence or component part of any plain packaging survey or its results. The [applicant] simply wishes to obtain:
· the survey questions for each relevant survey conducted by [the Council]; and
· the consolidated response data for each of those surveys.
The [applicant] anticipates that, for each survey, [the Council] will have a single document (for example, in the form of an excel spreadsheet) that contains the survey questions and a consolidation of the responses received). If that is not the case, the [applicant] is aware that [the Council] produced template surveys containing the relevant survey questions and monthly progress reports containing consolidated survey responses. These are the documents that the [applicant] seeks.[3]
7 In December 2014, the Victorian Government Solicitor’s Office for the Council wrote to the applicant, stating:
We understand from this description that you seek to confine your request to the final master datasets for each relevant survey. Accordingly, we will compile a revised list of relevant documents and provide that list to the Freedom of Information Commissioner to assist her in determining your application for review.[4]
8 The applicant responded, stating:
I obviously do not know what ‘final master datasets’ are. However, to the extent that the ‘final master datasets for each relevant survey’ includes both the questions and responses for each survey, this is a correct description of my request.[5]
9 Following the intervention of the Commissioner, and with the disclosure by the Council of additional documents, there remain six disputed documents.
10 The Council claims exemptions under the FOI Act for each disputed document:[6]
No. / Description / Released/ denied / Exemptions claimed1 / Data file for Stata (statistical software). It contains data which comprises the working data file of research from the 2011 and 2013 collections phases of the Australian Secondary Student Alcohol and Drug Survey (‘ASSAD Survey’), plus computed and recoded variables developed from existing variables for data analysis purposes. The dataset contains the survey questions and participant answers. / Denied in full / ss 30(1),
34(4)(b)(iii),
35(1)(b)
2 / Data file for Stata (statistical software). It contains data which comprises the survey questions and uncleaned uncoded responses from all respondents over all months of the National Monthly Tracking Survey of Smokers and Recent Quitters. / Denied in full / s 30(1)
3 / Data file for Stata (statistical software). It contains data which comprises merged and cleaned data representing the results of Phase 1 (from October 2011 to April 2012) and Phase 2 (from October 2012 to April 2013) of the Silent Salesman Study. The dataset contains observational questions and the responses to those questions of persons conducting the survey. / Denied in full / ss 30(1), 34(4)(b)(iii)
4 / Data file for Stata (statistical software). It contains data which comprises cleaned data representing the results of Phase 3 of the Silent Salesman Study (January to April 2014), merged with the results of Phases 1 and 2. The dataset contains observational questions and the responses to those questions of persons conducting the survey. / Denied in full / ss 30(1), 34(4)(b)(iii)
5 / Data file for Stata (statistical software). It contains data which comprises the monthly results of retail store audits conducted from May 2012 to August 2013 for the purpose of the National Tobacco Retail Outlet Monitoring Study. / Denied in full / ss 30(1), 34(4)(b)(iii)
6 / Data file for Stata (statistical software). It contains data which comprises results of a subset of data collected every 3 months from May 2012 to July 2013 for the purpose of the National Tobacco Retail Outlet Monitoring Study. / Denied in full / ss 30(1), 34(4)(b)(iii)
11 The main issue before the Tribunal is whether the Council has shown that the disputed documents are exempt. The Council bears the onus of proving the claimed exemptions.[7]
12 By agreement between the parties, no witnesses were required to attend the Tribunal to give evidence or be cross-examined. Signed witness statements and expert reports were tendered into evidence. The hearing proceeded by way of submissions from the bar table.
13 Both parties made an application under s 18 of the Open Courts Act 2013 (Vic) (‘Open Courts Act’) concerning a document entitled ‘Standard Funding Agreement between the Commonwealth of Australia as represented by the Department of Health and Ageing ABN 86 605 426 759 and the Anti-Cancer Council of Victoria trading as The Cancer Council Victoria ABN 61 426 486 715’ (‘the agreement’).[8] The Tribunal granted an interim suppression order under s 20(3) of the Open Courts Act on the grounds set out in s 18(1)(f)(i) and (ii).[9] A permanent suppression order was subsequently made on the same basis.[10]
Relevant statutory provisions
14 Section 3 of the FOI Act sets out the object of the Act:
(1) The object of this Act is to extend as far as possible the right of the community to access to information in the possession of the Government of Victoria and other bodies constituted under the law of Victoria for certain public purposes by—
(a) making available to the public information about the operations of agencies and, in particular, ensuring that rules and practices affecting members of the public in their dealings with agencies are readily available to persons affected by those rules and practices; and
(b) creating a general right of access to information in documentary form in the possession of Ministers and agencies limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies.
(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
15 Definitions are found in s 5(1) of the FOI Act. There are two definitions of importance in this proceeding:
In this Act, except insofar as the context or subject-matter otherwise indicates or requires:
…
agency means a department council or a prescribed authority;
…
prescribed authority means
(a) a body corporate established for a public purpose by, or in accordance with, the provisions of an Act … other than –
(i) an incorporated company …
16 Section 13 of the FOI Act confers a legally enforceable right to obtain access to a document of an agency, other than an exempt document.
17 Section 25 of the FOI Act provides for access to be given to documents following the deletion of exempt or irrelevant material, provided that certain requirements are met. It states:
Where—
(a) a decision is made not to grant a requestfor access to a documenton the ground that it is an exempt documentor that to grant the requestwould disclose information that would reasonably be regarded as irrelevant to the request;
(b) it is practicable for the agencyor Minister to grant access to a copy of the documentwith such deletions as to make the copy not an exempt documentor a documentthat would not disclose such information (as the case requires); and
(c) it appears from the request, or the applicantsubsequently indicates, that the applicantwould wish to have access to such a copy—
theagencyor Minister shall grant access to such a copy of thedocument.
18 Section 30(1) of the FOI Act confers an internal working documents exemption, and relevantly provides:
(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 consultation or deliberation that has taken place between officers, … in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency … or of the government; and
(b) would be contrary to the public interest.
…
(3) This section does not apply to a document by reason only of purely factual material contained in the document.
19 Section 34(4)(b)(iii) confers an incomplete research exemption, and provides:
(4) A document is an exempt document if—
…
(b) it contains the results of scientific or technical research undertaken by an officer of an agency, and—
…
(iii) the disclosure of the results before the completion of the research would be reasonably likely to expose the agency or the officer of the agency unreasonably to disadvantage.