‘AD2’ and Department of Education and Training (Freedom of Information) [2019] VICmr 29 (16 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 in the documents.

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

16 May 2019

Reasons for Decision

Background to review

1. The Applicant made a request to the Agency for access to certain documents. Following consultation with the Agency, the Applicant amended the initial request to the following:

…documents relating to a current incident involving my child, [named individual] and [named] Primary School. The date of the specific incident was [date] so any documentation/statements from teachers and principal from then onwards.

I am requesting statements from all teachers [named individuals] and the principal [named individual] and any other relevant documentation, in relation to the investigation and my complaint.

2. In its decision, the Agency identified 30 documents falling within the terms of the Applicant’s request.
3. It decided to grant access to eight documents in full, nine documents in part and refuse access to 13 documents in full.

Review

4. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
5. I have examined copies of the documents subject to review.
6. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.
7. I have considered all communications and submissions received from the parties, including:

1. 1. the Agency’s decision on the FOI request;
   2. the Applicant’s submission dated 6 March 2019 and information provided with the Applicant’s review application; and
   3. all communications between this office and the Applicant and the Agency.

8. 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

9. The Agency relied on the exemptions in sections 30(1), 33(1) and 35(1)(b) to refuse access to the documents. The Agency’s decision letter sets out the reasons for its decision.

Section 30(1)

10. 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.

11. The exemption does not apply to purely factual material in a document.^[1]
12. The documents in this matter comprise emails, letters, file notes and statements prepared by third parties. Having examined the documents, I am satisfied they contain information in the nature of opinion, advice and recommendation relating to a complaint made by the Applicant to the Agency. Further, I am satisfied the information in the documents was provided in the course of, and for the purpose of, the Agency’s deliberative process concerning its response to the Applicant’s complaint.
13. The final requirement of section 30(1) is to determine whether release of the advice, opinions and recommendations in the documents would be contrary to the public interest. 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 limited only by exceptions and exemptions necessary to protect essential public interests.
14. In relation to this matter, I have taken the following into consideration:^[2]

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 the disclosure will give merely a part explanation rather than a complete explanation for the making of a particular decision;
   6. the likelihood disclosure of the documents would inhibit the independence of officers or the making of proper and detailed research and submissions by them; and
   7. the likelihood disclosure would create mischief in one way or another such as a risk of mischievous interpretation.

15. The circumstances of this matter are quite sensitive, as they discuss a complaint made by the Applicant to the Agency regarding the conduct of teachers, raise allegations of bullying towards the Applicant’s child and discuss the ongoing interactions between the Applicant and Agency staff at a school previously attended by the Applicant’s child. For the Applicant, I acknowledge there is a strong personal interest in obtaining access to the documents.
16. In addition to this personal interest, I consider there is a broader public interest in release of certain information that is shared by the broader community in relation to the proper management of complaints received by the Agency in relation to students and/or teachers. This includes ensuring those who are responsible for the education and supervision of children in schools are responsive to complaints and parents who make complaints regarding a child should be informed of the outcome of any inquiry or investigation undertaken by the Agency into the complaint.
17. In this case, the Applicant was informed of the outcome of the Agency’s investigation into a complaint. A detailed letter was provided to the Applicant that set out the investigation process and provided a summary of findings and recommendations made by the investigating officer. The letter also advised the Applicant of the right to seek review by the Deputy Secretary of the investigation outcome.
18. In summary, the Agency submits that due to the highly sensitive and contentious nature of the deliberative material and the confidential manner in which the information was obtained, disclosure would be contrary to the public interest as it would undermine the Agency’s complaints processes.
19. I accept investigations into complaints regarding the conduct of Agency officers, including potential misconduct by teachers, will contain information that is inherently sensitive, particularly in the context of a school community.
20. I acknowledge when allegations into misconduct are raised it is imperative the Agency thoroughly investigate the allegations ensuring the investigative process accords with all relevant complaint handling policies.
21. Investigations of this nature rely on frank and full information being provided to the investigating officer by witnesses and other relevant third parties. A related issue is the need to provide confidentiality to encourage all relevant persons to voluntarily and fully participate in the investigative process. I consider there is a real risk persons with relevant information may refuse or be reluctant to fully participate due to fear their identity and the information they provide may be disclosed.
22. Without an open information flow through the provision of a confidential investigative process, an investigation may not be successful in obtaining complete, accurate and detailed information. This could reasonably result in incomplete, inaccurate or inconclusive findings and recommendations, which may have detrimental consequences. For example, an ineffective investigation may allow the alleged misconduct to continue or further escalate, which could pose a risk of harm or to the safety and wellbeing of students, teachers and staff to who the Agency owes a duty of care.
23. Therefore, the ‘essential public interests’ that limit disclosure of information under the FOI Act, in my view, include confidentiality of the Agency’s deliberations to maintain the integrity of investigative processes for these reasons.
24. In some instances, I consider confidentiality of deliberations may continue after an outcome is reached, as Agency officers may need to communicate information, opinions and seek advice from one another to discuss the implementation of any recommendations arising from an investigation outcome.
25. I also give weight to the overall content and context of the documents in this case. I am of the view the local school community setting increases the sensitivity of matters and that documents of this nature would likely retain sensitivity for the relevant parties involved despite the conclusion of an investigation. I believe release of particular issues raised in the documents would likely serve to promote what may continue to be contentious and sensitive issues within a local community.
26. In summary, having balanced the Applicant’s personal interest in accessing information with the broader public interest concerns set out above, I am satisfied certain documents are exempt under section 30(1) as it would be contrary to the public interest to release those documents.
27. However, where information in the documents does not divulge sensitive aspects of the investigative process or deliberation between the Agency and its officers (eg. where the documents generally describe updates on actions taken or intended to be taken) I am satisfied this information is not exempt under section 30(1) and can be released.
28. Annexure 1 details my decision in relation to the application of section 30(1) in relation to each document.

Section 35(1)(b)

29. I do not need to consider the application of this section to information that I have already determined is exempt under section 30(1).
30. A document is exempt under section 35(1)(b) if two conditions are satisfied:

1. 1. disclosure would divulge information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister; and
   2. disclosure would be contrary to the public interest as it would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.

31. When determining whether information was communicated in confidence, it is necessary to consider the position from the perspective of the communicator.[3] Further, confidentiality can be express or implied from the circumstances of the matter.^[4]
32. Section 35(1)(b) is capable of operating with respect to information communicated to an agency not only by those external to the agency, but also information or matter communicated between officers within the agency. The Victorian Civil and Administrative Tribunal (VCAT) gave consideration to this issue in Birnbauer and Davies v Inner and Eastern Health Care Network (Birnbauer decision) in which VCAT held:

… in my view, where an officer of an agency records a matter and reports it to his superior or makes the information available through some established reporting channel within the agency, the information in question is properly to be regarded as “communicated” to the agency…

Section 35(1)(b) is capable of operating with respect to information communicated to an agency not only by outsiders but also by its own officers. [5]

33. In this case, the Agency applied section 35(1)(b) to exempt information communicated in the context of a complaint investigation. As previously mentioned, I consider the information to be sensitive and it is clear from the content and context of the information it was conveyed in confidence by one Agency officer to another to provide information for the Agency to properly investigate the allegations raised by the Applicant’s complaint. In my view, the communicating officers’ position is equivalent to that of a source external to the Agency.
34. Accordingly, I am satisfied certain documents divulge material which was communicated in confidence by Agency officers through established reporting channels of the Agency.
35. However, the relevant consideration with respect to section 35(1)(b) is whether disclosure of information containing confidential material would be reasonably likely to impair the Agency’s ability to obtain similar information in the future.
36. The public interest test with respect to section 35(1)(b) is narrow, in that it is directed toward the impact release would have on an agency’s ability to obtain the same or similar information in the future. The provision does not permit me to have regard to other matters, such as any public interest in favour of release, or the extent to which the Applicant’s personal interest in the documents would be served by granting access to the documents. Rather, the section is confined to the effect disclosure would have on the flow of communication to an agency.
37. I acknowledge the information would have been communicated to the investigator with the expectation it would only be disseminated to the extent necessary to finalise the complaint investigation. The individuals would not likely expect the information to be communicated to anyone outside of that process. Further, I appreciate the investigation has concluded and the outcome communicated to the Applicant.
38. I accept if third parties, who voluntarily provide information or statements to the Agency, were aware their identity and the information provided would be disclosed in response to an FOI request, they would be less likely to communicate similar information to the Agency in the future. I consider this to be a significant and detrimental outcome that would impede that ability of the Agency to investigate complaints made against its employees. I am satisfied in these circumstances it would be contrary to the public interest to release information communicated in confidence.
39. However, having carefully examined each document, I am not satisfied that, in all instances, the information is ‘information or matter communicated in confidence’ for the general purpose of section 35(1)(b) or is of the kind contemplated in the Birnbauer
40. For example, documents that capture email chains between Agency officers, which are fairly innocuous and administrative in nature or instances where the information recorded is matter communicated by the Applicant to the Agency. There is nothing in particular about this information that would denote a quality of confidence that as a result of disclosure would prevent the Agency from receiving information of a similar nature in the future.
41. Accordingly, I am satisfied section 35(1)(b) applies to information in the documents. However, I am not satisfied the Agency’s application of the exemption in section 35(1)(b) is upheld in all instances.
42. Annexure 1 contains details of my decision in relation to section 35(1)(b) with respect to each document.

Section 33(1)

43. To clarify the scope of the review, OVIC staff made enquiries with the Applicant who confirmed, both verbally and by email received on 6 March 2019, that [they]do not press access to personal affairs information being names, email address and telephone information contained in the documents. Accordingly, any personal affairs information in the documents is not subject to review.

Deletion of exempt or irrelevant information

44. 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.
45. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’^[6] and the effectiveness of the deletions.
46. I have considered the information that the Agency has deleted from the documents as irrelevant in accordance with section 25. I agree the names of Agency staff who performed the administrative task of printing the documents falls outside the scope of the Applicant’s request and should remain deleted.
47. I have also considered the effect of deleting irrelevant and exempt information from the documents. In my view, it is practicable for the Agency to delete the irrelevant and exempt information, because it would not require substantial time and effort, and the edited documents would retain meaning.

 Conclusion

48. On the information available, I am satisfied the exemptions in sections 30(1) and 35(1)(b) apply to exempt some documents in full. However, I have determined that sections 30(1) and 35(1)(b) do not apply in all instances. As the Applicant does not seek access to personal affairs information exempted by the Agency, I am not required to review information exempt under section 33(1).
49. As I consider it is practicable for the Agency to delete exempt and irrelevant information, I have also determined to grant access to some documents in part with this information deleted in accordance section 25. However, where deletions would render the document meaningless they are not ‘practicable’ and release of the document in part is not required under section 25.^[7]

Review rights

50. If either party to this review is not satisfied with my decision, they are entitled to apply to VCAT for it to be reviewed.^[8]
51. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[9]
52. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[10]
53. 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.
54. 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.^[11]

When this decision takes effect

55. I have decided to release documents that contain information provided in confidence by or on behalf of a third party.
56. The relevant third party will be notified of my decision and is entitled to apply to VCAT for a review within 60 days from the date they are given notice.
57. For that reason, my decision does not take effect until that 60 day period expires, or if an application to VCAT is made, until the VCAT proceeding is concluded.

Annexure 1 – Schedule of Documents

Endnotes

[1] Section 30(3).

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

[3] Victoria Police v Marke [2008] VSCA 218.

[4] Ibid.

[5] Birnbauer & Davies v Inner & Eastern Health Care Network [1999] VCAT 1363 at [15].

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

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

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

[9] Section 52(5).

[10] Section 52(9).

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