In late 2023, after almost a decade leading the state of Victoria, Premier Daniel Andrews announced he would be standing down. Within a matter of days, Jacinta Allan had secured the top job and went about assembling her first cabinet.
Every time a new minister comes into a portfolio, the relevant government department prepares an incoming ministerial briefing – a cheat sheet outlining all their areas of responsibility, key decisions they need to make in the coming months and the stakeholders they will have to work with.
Incoming ministerial briefings are routinely requested by journalists under Freedom of Information (FOI) laws
These incoming ministerial briefings are routinely requested by journalists under Freedom of Information (FOI) laws and, at least at a federal level, are routinely given out by government departments. In a previous job, I had requested incoming ministerial briefings for several departments and received them without fanfare. So I had no idea what I was in for this time.
As a journalist working on the consumer affairs beat, I thought it would be a useful document to get my hands on to understand the plans, priorities and challenges facing the new state Consumer Affairs Minister Gabrielle Williams.
So I lodged my FOI request with Consumer Affairs Victoria (CAV) for the document at the end of November 2023 and put a note in my calendar for the end of the year, when it was due back. Little did I know that this would be the start of an arduous battle that would drag on for 21 months and take me all the way a judge.
Our FOI system is supposed to facilitate an open and transparent democracy where citizens have a general right to access information
Our FOI system, enshrined in law in Victoria through the FOI Act 1982, and similar acts in different jurisdictions around the country, is supposed to facilitate an open and transparent democracy where citizens have a general right to access information.
The lofty goals stated in the early pages of the Act are quickly diluted with dozens of pages of exemptions, exceptions and legal obstacles that stand in the way of the simple principles. In total, the Act is 225 pages long.
When an FOI request is lodged, the relevant government department or agency has 30 days to respond. But the reality is never that simple.
Request denied
After a two-month delay, the Victorian Department of Government Services (DGS) flat-out denied my request, saying the document was produced for the deliberations of cabinet and was therefore exempt from the FOI Act.
This seemed dubious to me. Sure some parts of the document may be briefings on cabinet deliberations, but surely not every single page of the 29-page document was intended to be discussed by the full Victorian cabinet. I appealed the decision and after another extended delay of several months my appeal was denied by DGS on the same basis.
By this stage I was getting frustrated and I was also beginning to get stubborn. They expected me to lie down and just give up because they said so. That wasn't going to happen.
By this stage I was getting frustrated and I was also beginning to get stubborn
I filed an appeal to the independent umpire of FOI matters, the Office of the Victorian Information Commissioner (OVIC) and outlined that I would be willing to accept the redaction of cabinet deliberations in the document, but did not accept that the full document was exempt.
After another period of months, in October 2024, almost a year after I filed my original FOI request, the Information Commissioner Sean Morrison handed down his ruling in my favour.
"While I am satisfied some of the brief relates to matters to be considered by cabinet, I am not satisfied the whole of the brief contains such information. Rather, the document contains information about the consumer affairs portfolio, responsibilities of the Minister for Consumer Affairs, current issues for consideration by the Minister specifically (rather than cabinet)," he wrote.
Almost a year after I filed my original FOI request, the Information Commissioner Sean Morrison handed down his ruling in my favour
Commissioner Morrison allowed DGS to make eight redactions to the document, but ordered the rest be released to me.
I was overjoyed. But I celebrated too soon.
Our Freedom of Information request to Consumer Affairs Victoria turned into a 21-month legal battle.
Taken to VCAT
Despite the relatively uncontroversial nature of my request, and despite the fact the Information Commissioner had already heard their legal arguments and thrown out their request for a blanket exemption to the FOI Act, DGS really didn't want to hand over the document. If there was anyone more stubborn than me, it was them.
I was later told they didn't want to set a precedent. But for me, transparency of government is always a good precedent to set.
Days before they were due to hand over the documents, I was informed that DGS had filed an appeal in the Victorian Civil and Administrative Tribunal (VCAT) seeking to overturn the Commissioner's ruling.
For me, transparency of government is always a good precedent to set
What happened next was months of delays where mediation was attempted unsuccessfully, first between DGS and myself and then later between us in front of a VCAT member (essentially, a judge).
Going into VCAT was a nerve-wracking experience. I printed off my papers and prepared my legal arguments (arguing about the contents of a document which I hadn't been allowed to see, but which everyone else had read). I put on a suit and tie and headed down to King Street in Melbourne, not knowing what to expect.
The judge was friendly, kind and sympathetic to the fact that I was representing myself. The government sent five lawyers, including external counsel (a non-government lawyer assisting their case). I'm not allowed to discuss the substantive events of that hearing as it was confidential, but no successful mediation outcome was reached.
Last roll of the dice
With no successful mediation, the judge set down February 2026 as a rough date for our final hearing and asked us to prepare our witnesses and let the tribunal know when everyone was available.
Remember, I lodged this FOI in 2023.
A fellow journalist recommended a clever strategy to me and I wrote to the government letting them know of my intention to call the witnesses Consumer Affairs Minister Williams and the CAV Secretary. It was my last roll of the dice. I was betting on the fact that the mid-level bureaucrats obstructing my case wouldn't like having to stump up to their high level bosses and explain to them that they would need to give up half a day to attend court in person, over something so trivial.
I waited and waited and the day after their response to VCAT was due, 21 months after I had initially lodged for the document, DGS folded and withdrew their appeal.
Fighting on principle
Now that the document is in my possession and I've finally read it, it's hard to imagine why on earth they were so reluctant to release it. There is nothing so controversial or so scandalous in there to cause any real embarrassment to the government. It seems this fight was about the principle for them – they didn't want to set a precedent of transparency.
How much time and effort, how many thousands of taxpayer dollars for bureaucrat wages, advice and lawyers was spent fighting over something so mundane and routine?
On my part, there is a feeling of vindication. Sure, there is nothing in the document that has maintained its news value in the two years that has elapsed since I filed the FOI request. But the system isn't meant to take that long. It's meant to be timely and facilitate access and accountability.
If having fought and won will make the next government department think twice before embarking down this long and plainly wasteful path next time someone makes a reasonable request, then it will have been worth it.
Correction: A previous version of the article listed the respondent as Consumer Affairs Victoria (CAV). While our initial Freedom of Information request was lodged with CAV and CAV is part of the Victorian Department of Government Services (DGS), DGS is the body that both created the document in question and was the legal respondent to the FOI request.
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