‘AE6’ and Victoria Police (Freedom of Information) [2019] VICmr 42 (30 May 2019)

All references to legislation in this document are to the Freedom of Information Act 1982 (Vic) (FOI Act) unless otherwise stated.

Notice of Decision

I have conducted a review under section 49F of the Agency’s decision to refuse access to documents requested by the Applicant under the FOI Act.

My decision on the Applicant’s request differs from the Agency’s decision in that I have decided to release additional information to the Applicant.

The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.

My reasons for decision follow.

Joanne Kummrow

Public Access Deputy Commissioner

30 May 2019

Reasons for Decision

Background to review

1. The Applicant made a request to the Agency for access to documents relating to an incident involving the Applicant on [date] at a [location].
2. In its decision, the Agency identified 34 documents totalling 127 pages. The Agency decided to release the documents to the Applicant in part.

Review

3. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
4. The Applicant narrowed [their] request for review to:

1. 1. certain passages that appear across 35 pages that were released in part. The Agency determined this information exempt from release under either section 30(1) or 33(1); and
   2. two statements.

5. I note also the Applicant advised [they]are not seeking personal affairs information.

6. I have examined copies of the documents subject to review.

7. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.

8. I have considered all communications and submissions received from the parties, including:

1. 1. the Agency’s decision on the FOI request; and
   2. the Applicant’s review application dated 31 January 2019 and submission received 1 March 2019.

9. In undertaking my review, I have had regard to the object of the FOI Act, which is to create a general right of access to information in the possession of the Government or other public bodies, limited only by exceptions and exemptions necessary to protect essential public interests, privacy and business affairs.

Review of exemptions

10. The Agency relied on the exemptions under sections 30(1) and 33(1) to refuse access to parts of the documents. The Agency’s decision letter sets out the reasons for its decision.

Section 30(1)

11. Section 30(1) has three requirements:

1. 1. the document must 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; and
   2. such matter must be made 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
   3. disclosure of the matter would be contrary to the public interest.

12. The exemption does not apply to purely factual material in a document.^[1]
13. I must also be satisfied releasing this information is not contrary to the public interest. This requires a ‘process of the weighing against each other conflicting merits and demerits’.^[2]
14. In deciding if release is contrary to the public interest, I must consider all relevant facts and circumstances remaining mindful the object of the FOI Act is to facilitate and promote the disclosure of information.
15. In deciding whether disclosure of the matter would be contrary to the public interest, I have taken the following into consideration^[3]:

1. 1. the right of every person to gain access to documents under the FOI Act;
   2. the degree of sensitivity of the issues involved;
   3. the state of the policy development process at which the communication was made;
   4. whether the disclosure would be likely to inhibit frankness and candour in the making of communications;
   5. whether disclosure would lead to confusion or unnecessary debate having regard to the possibilities discussed;
   6. whether the disclosure will give merely a part explanation rather than a complete explanation for the taking of a particular decision;
   7. the likelihood disclosure of the documents would inhibit the independence of officers or the making of proper and detailed research and submissions by them;
   8. the likelihood disclosure would create mischief in one way or another such as a risk of mischievous interpretation; and
   9. the significance of the document, for example whether it is or is not merely a draft document.

16. In [their] submission, the Applicant advised:

1. 1. [they] are a current police member;
   2. the provision of any investigative opinion or technique is not a risk in [their] possession;
   3. due to [their] extensive policing knowledge, it is reasonable that the Applicant is provided with the opinions of the police members and to judge those opinions;
   4. the Applicant is bound by the oath of office and the Agency can sanction the Applicant should [they] misuse the information received under the FOI Act;
   5. some of the information removed by the Agency relates to the Applicant’s welfare or directly to the Applicant;
   6. some of the information removed by the Agency is information provided by the Applicant to the Agency; and
   7. some of the information removed by the Agency relates to actions and events that concern the Applicant and, therefore, it is only reasonable it is released to the Applicant.

16. I also note the Applicant’s interest in the documents is as the victim of offences, and that [they] are seeking the information as [they] believe the threat level assessment the Agency conducted was inadequate, and the Applicant is seeking compensation for additional security measures [they] have taken at [their] residence to ensure the Applicant’s personal safety.

Section 33(1)

18. A document is exempt under section 33(1) if two conditions are satisfied:

1. 1. disclosure of the document under the FOI Act would ‘involve’ the disclosure of information relating to the ‘personal affairs’ of a person other than the Applicant;^[4] and
   2. such disclosure would be ‘unreasonable’.

19. Information relating to a person’s ‘personal affairs’ includes information that identifies any person, or discloses their address or location. It also includes any information from which this may be reasonably determined.^[5]
20. The concept of ‘unreasonable disclosure’ involves balancing the public interest in the disclosure of official information with the personal interest in privacy in the particular circumstances of a matter.
21. The proper application of section 33(1) involves consideration of ‘all matters relevant, logical and probative to the existence of conditions upon which the section is made to depend’.[6]
22. In this case, I have considered the following factors[7] when determining if the release of the personal affairs information in the documents would be unreasonable in the circumstances:

1. 1. the nature of the personal affairs information that would be disclosed;
   2. the circumstances in which the information was obtained;
   3. the Applicant’s interest in the information;
   4. the likelihood of further disclosure of the information, if released;
   5. whether the individuals to whom the information relates object, or would be likely to object to the release of the information;
   6. whether disclosure would cause the individuals stress, anxiety or embarrassment;
   7. whether the information has any current relevance; or
   8. whether disclosure would, or would be reasonably likely to, endanger the life or physical safety of any person.

24. The nature of disclosure of a document under the FOI Act is unconditional and unrestricted, which means an applicant is free to disseminate widely or use a document as they choose.[8]
25. Section 33(2B) requires that, in deciding whether the disclosure of a document under the FOI Act would involve the unreasonable disclosure of information relating to the personal affairs of any person, the agency must:

1. 1. notify the person who is the subject of that information (or if that person is deceased, that person’s next of kin), that the agency has received a request for access to the document;
   2. seek that person’s view as to whether disclosure of the document should occur; and
   3. state that if the person consents to disclosure of the document, or disclosure subject to deletion of information relating to the personal affairs of the person, the person is not entitled to apply to the Tribunal for review of a decision to grant access to that document.

25. However, compliance with the consultation requirements under section 33(2B) is not required in certain This includes if the notification would be reasonably likely to cause that person undue distress or is otherwise unreasonable or it is not practicable to do so in the circumstances.[9]
26. The Agency did not advise whether or not it consulted with third parties whose personal affairs information was exempted in the documents to obtain their views on disclosure.
27. While the Applicant advised [they] are not seeking the personal affairs of other people, [they have] advised [they] are seeking access to a number of passages the Agency exempted under section 33(1).
28. In summary, the Applicant states:

1. 1. the record of the offence relates to the Applicant as the victim; there are no requirements for this information to remain private;
   2. some of the information relates to words spoken to the Applicant;
   3. some of the information relates to the Applicant;
   4. [they] believe the observations of third parties about [their] behaviour is not exempt from release [to them].

25. I note the Applicant advised [they seek] two ‘statements’ [they] believe the Agency exempted under section 33(1). For clarity, having reviewed the documents, I note there are no formal witness statements among the documents, however, there are other notes that include information provided by third parties to the Agency.

Deletion of exempt or irrelevant information

30. Section 25 requires an agency to grant access to an edited copy of a document when it is practicable for the agency or Minister to delete exempt or irrelevant information and the applicant agrees to receiving such a copy.
31. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’^[10] and the effectiveness of the deletions. Where deletions would render the document meaningless they are not ‘practicable’ and release of the document is not required under section 25.^[11]
32. I have considered the effect of deleting exempt information from the documents. In my view, it is practicable for the Agency to delete the exempt information, because it would not require substantial time and effort, and the edited documents would retain meaning.

Conclusion

33. On the information available, I am satisfied the exemptions in sections 30(1) and 33(1) apply to some of the documents. However, I have decided to grant access to certain documents in part.

Review rights

34. If either party to this review is not satisfied with my decision, they are entitled to apply to the Victorian Civil and Administrative Tribunal (VCAT) for it to be reviewed.^[12]
35. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[13]
36. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[14]
37. Information about how to apply to VCAT is available online at www.vcat.vic.gov.au. Alternatively, VCAT may be contacted by email at admin@vcat.vic.gov.au or by telephone on 1300 018 228.
38. The Agency is required to notify the Information Commissioner in writing as soon as practicable if either party applies to VCAT for a review of my decision.^[15]

When this decision takes effect

39. My decision does not take effect until the relevant review period (stated above) expires, or if either party applies to VCAT for a review, until the VCAT proceeding is concluded.

Annexure 1 – Schedule of Documents

Endnotes

[1] Section 30(3).

[2] Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473 at 485, adopted in Department of Premier and Cabinet v Hulls [1999] VSCA 117 at [30].

[3] Hulls v Victorian Casino and Gambling Authority (1998) 12 VAR 483.

[4] Sections 33(1) and (2).

[5] Section 33(9).

[6] [2008] VSCA 218 at [104].

[7] A number of these factors were identified in Page v Metropolitan Transit Authority  (1988) 2 VAR 243.

[8] [2008] VSCA 218 at [68].

[9] Section 33(2C).

[10] Mickelburough v Victoria Police (General) [2009] VCAT 2786 [31]; The Herald and Weekly Times Pty Limited v The Office of the Premier (General) [2012] VCAT 967 [82].

[11] Honeywood v Department of Human Services [2006] VCAT 2048 [26]; RFJ v Victoria Police FOI Division (Review and Regulation) [2013] VCAT 1267 [140], [155].

[12] The Applicant in section 50(1)(b) and the Agency in section 50(3D).

[13] Section 52(5).

[14] Section 52(9).

[15] Sections 50(3F) and (3FA).