The Court found that a document 'relates to the affairs of an agency' if it bears a direct or indirect relationship to
- the business and activities of an agency, or
- the agency's area of governmental responsibility, or
- arrangements between government departments or other agencies and external entities, including arrangements between agencies and Ministerial advisers from the Premier's Office.
A Vice-President of the Victorian Civil & Administrative Tribunal determined that the Premier's Office was incorrect at law to refuse access to the diary. The determination was that the diary was amenable to the request because it was an ‘official document of a Minister’, and as such was subject to a legally enforceable right of access under s 13(b) of the Act.
The Tribunal made orders setting aside the refusal and remitting the request to the Premier's Office for consideration in accordance with the Tribunal's finding. The Office responded with an application to the Court for leave to appeal. That application was heard at the same time as the appeal.
There was agreement that Kapel's diary was not 'a document of an agency’ and thus does not come within the ambit of s 13(a) of the Act, so that if it was to be subject to the state's FOI regime it must be 'an official document of a Minister', defined in s 5(1) of the Act as "a document in the possession of a Minister, or in the possession of the Minister concerned, as the case requires, that relates to the affairs of an agency, and, for the purposes of this interpretation, a Minister shall be deemed to be in possession of a document that has passed from his possession if he is entitled to access to the document and the document is not a document of an agency".
The Office had argued that for a document to be an ‘official document of a Minister’ there had to have been specific authorisation in some way by a Minister. The Office argued alternatively that before a document could be held to be a document ‘in the possession of a Minister’ (thus satisfying the first limb of the definition of ‘an official document of a Minister’) that document had to be in the possession of the Minister in his capacity as a person exercising ministerial functions. For a document to relate to the affairs of an agency, it was argued, it must have a direct connection to the affairs of an agency, ascertainable through assessing the character of a document by reference to the purpose for which it was generated, rather than its content.
The Tribunal indicated that "that Parliament intended to give members of the public access to information held by the Government and other public bodies; and that the legislation be interpreted so as to further this objective. A member of the public therefore has a right of access to information, unless the FOI Act expressly or by necessary implication, provides otherwise."
The Court concluded that
While the word ‘operations’ does not appear in the phrase there is nothing to preclude the ‘affairs of an agency’ from including its operations, but there is also nothing to support restricting those operations to internal operations. Indeed, the submission ultimately made by the OTP, that a document which relates to the ‘affairs of an agency’ must be one that ‘require[s] the document to relate to acts or actions being done by or within an agency’, to my mind, would extend to the external operations of an agency. In particular, the ‘affairs of an agency’ would include actions taken, including meetings arranged, between an officer of a government department, or other agency, and an external entity (regardless of whether the external entity was also an agency). Such an arrangement is an action taken by the agency. Arrangements made between, on the one hand, officers of a government department, or other agency, and, on the other hand, a ministerial adviser from an external entity, including the OTP, are included within the ‘affairs of an agency’. Documents that bear a direct or indirect relationship to those arrangements are thus included within the documents that ‘relate to the affairs of an agency’.
In summary, a document ‘relates to the affairs of an agency’, and thus falls within the second limb of the definition of an ‘official document of a Minister’, if it bears a direct or indirect relationship to the business and activities of an agency, or the agency’s area of governmental responsibility, or to arrangements between government departments or other agencies and external entities, including arrangements between agencies and Ministerial advisers from the Office of the Premier.
It can be inferred from the general character of the diary, as well as from its content, as described by the Tribunal, that it bears a direct or indirect relationship to arrangements made between officers of government departments, other agencies, and Mr Kapel as the Premier’s Chief of Staff. It follows that the diary satisfies the second limb of the definition of ‘an official document of a Minister’.The application for leave to appeal was granted, with the Office having identified a question of law (the construction of the definition of ‘an official document of a Minister’) that is "a matter of general or public importance". The diary satisfies both limbs of the definition and is thus an ‘official document of a Minister’, subject to the rights of access under the FOI Act. The appeal by the Office was dismissed.
Importantly, "This is not to conclude that the diary must be disclosed to the HWT. It will be necessary for consideration to be given to the question of whether any exemptions are applicable and also whether any irrelevant or exempt material can be deleted" so that the Office can grant access to a redacted copy.
