‘AD9’ and Monash University (Freedom of Information) [2019] VICmr 36 (24 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.

Sven Bluemmel

Information Commissioner

24 May 2019

Reasons for Decision

Background to review

1. The Applicant made a request to the Agency for access to the following documents:
   All documents between Monash staff members processing my remission of debt review application received on [date] and decided on [date]. Kindly refer to the letter attached.
2. In its decision, the Agency identified 10 documents falling within the terms of the request. It decided to refuse access to all documents in full. The Agency refused access to the document on the basis it believed the Applicant did not seek copies of edited documents with exempt information deleted in accordance with section 25.
3. On 19 February 2019, the Applicant made a review application under section 49A(1)(a),
4. During the review, the Applicant made a concession in [their] request – [the Applicant] advised this Office [they] would accept copies of edited documents with exempt information deleted. In effect, the Applicant agreed to narrow and reduce [their] request.
5. The Agency argued that I could not accept this concession. It argued that because both the request and decision dealt with unedited documents, I did not have power under sections 49F and 49P of the Act to conduct a review of what the Agency contended was an amended request.
6. I do not accept the interpretation adopted by the Agency.
7. Section 49F provides that I ‘may review the decision that is the subject of the application for review’ while section 49P provides that I ‘must make a fresh decision on the original application’. Neither section specifically prevents me from accepting the Applicant’s concessions.
8. Further, in interpreting sections 49F and 49P, I considered the objects and obligations in the FOI Act:
   1. Section 3(2) of the FOI Act states Parliament’s intention for the Act shall be interpreted to promote the object of the FOI Act and ‘facilitate and promote promptly and at the lowest reasonable cost the disclosure of information.’
   2. Section 3(1) makes clear the beneficial nature of the FOI Act and its object ‘to extend as far as possible the right of the community to access to information’.
   3. Section 6H(2) of the FOI Act requires me to perform my functions, including conducting reviews, with as little formality and technicality as possible.
   4. Section 49H(1) requires me to conduct a review in a timely, efficient and fair manner, with as little formality and technicality as possible.
9. In my view, the process of merits review is made more timely and efficient when issues are narrowed by agreement with the party affected. Consequently, taking a purposive interpretation of sections 49F and 49P, I consider I have power to conduct a review and make a fresh decision on the basis that the Applicant concedes to receiving copies of edited documents with exempt information deleted.

Review

10. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
11. I have examined copies of the documents subject to review.
12. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.
13. 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 review application; and
   3. the Agency’s submissions dated 14 March 2019 and 27 March 2019.

Review of exemptions

14. The Agency relied on the exemptions in sections 30(1), 32(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)

15. 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.

16. The exemption does not apply to purely factual material in a document.^[1]
17. 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 government information.
18. In deciding whether disclosure of the matter would be contrary to the public interest in 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 decision-making 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. the likelihood disclosure of the documents would inhibit the independence of officers or the making of proper and detailed research and submissions by them;
   7. the likelihood disclosure would create mischief in one way or another such as a risk of mischievous interpretation; and
   8. the significance of the document, for example whether it is or is not merely a draft document.

19. In its submission, the Agency provided the following information about the application of section 30(1) in this matter:

The following public interest grounds or factors have been relied upon by the University in relation to the documents for which this exemption has been claimed to determine that disclosure would be contrary to the public interest:

1. 1. 1. Officers of the University are entitled to hold frank and confidential consultations and provide frank, independent and confidential opinions, advice and recommendations during consideration of such student related matters. There is potential for such deliberations to be hindered if documents revealing these deliberations were to become public, particularly where you were provided with a decision and reasons for your unsuccessful application;
      2. It is likely that disclosure would lead to confusion, unnecessary debate or a mischievous interpretation of the documents having regard to the fact that they give merely a part explanation rather than complete explanation for the taking of a particular decision;
      3. Drafts of documents (such as a draft of a minute) ought not be released as drafts and internal documents are of their very nature likely to contain omissions or errors and may have needed further refinement;
      4. Final decisions made ought to be judged from their face and not from preliminary deliberations which occurred along the way which might be artificially inflated and not reflect the final, formal position of the University.

20. My decision with respect to the application of section 30(1) to each document is set out in Annexure 1.

Section 32(1)

21. Section 32(1) provides a document is an exempt document ‘if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege or client legal privilege’.
22. A document will be subject to legal professional privilege and exempt under section 32(1) where it contains a confidential communication:^[3]

1. 1. between the client (or the client’s agent) and the client’s professional legal advisers, that was made for the dominant purpose of obtaining or providing legal advice or is referrable to pending or contemplated litigation; or
   2. between the client’s professional legal advisers and third parties, that was made for the dominant purpose of pending or contemplated litigation; or
   3. between the client (or the client’s agent) and third parties that was made for the purpose of obtaining information to be submitted to the client’s professional legal advisers for the dominant purpose of obtaining advice on pending or contemplated litigation.

23. The Agency advised that section 32(1) applies to Documents 2, 5, 6 and 10 which contain communications between Agency officers and its in-house legal advisers for the purpose of giving or obtaining legal advice, including the preparation of draft documents. The Agency advised these documents contain communications that are subject to legal professional privilege, and accordingly are exempt from disclosure under section 32(1).
24. My decision with respect to the application of section 32(1) to each document is set out in Annexure 1.

Section 33(1)

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

(a)  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

(b)  such disclosure would be ‘unreasonable’.

26. 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]
27. 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.
28. The Agency advised it consulted with relevant Agency staff whose personal affairs information features in the documents. I have considered the views expressed by those third parties in relation to each document in Annexure 1
29. In its submission, the Agency provided the following information to support its view it would be unreasonable to disclose the personal affairs in the documents:

1. 1. It is unreasonable to disclose the names of staff holding non-executive positions.[6]
   2. Disclosure is less likely to be unreasonable where the applicant’s motives are commendable; disclosure is more likely to be unreasonable where the applicant’s reason for seeking access is out of some particular personal crusade, or for the purpose of embarrassing or otherwise harming the third persons concerned.[7]
   3. The absence of any public interest in disclosure of personal affairs information or where disclosure is not in the public interest.[8]
   4. The existence in s 13 of the Charter of the right of a person not to have his or her privacy, family or home arbitrarily interfered with.
   5. It is unreasonable to release the personal affairs information of persons who have said that they did not want their names and personal information released, as apparent by the outcome of the s 33(2B) consultations.

30. Information the Agency decided was exempt under section 33(1) includes Agency staff names, Agency position titles and email addresses. While I accept this information is personal affairs information, I must also determine whether it would be unreasonable to release it.

31. In summary, I have determined the personal affairs information in the documents can be released on the grounds that:

1. 1. Many of the Agency staff hold relatively senior positions.
   2. In relation to non-executive staff, I generally agree that, consistent with decision of the Victorian Civil and Administrative Tribunal (VCAT) in Coulson v Department of Premier and Cabinet[9] (Coulson decision), whether agency staff personal affairs information is exempt under section 33(1) must be considered in the context of the particular circumstances of each matter.
   3. In the Coulson decision, the respondent’s submission noted the fact the non-executive staff were not the decision makers in relation to the case. In relation to the document subject to this review, however, the personal affairs information relates to Agency staff who made the initial decision to refuse the Applicant’s remission of debt application.
   4. In this matter I have decided to release the names of two Agency staff who made a decision not to approve the Applicant’s remission of debt application. In my view, where a person is affected by the decision of a public officer, the affected person should be able to assure themselves the decision was properly made, and by a duly authorised person. The disclosure of these staff members’ names fulfils this purpose and provides for accountability by decision makers.
   5. The personal affairs information is not particularly sensitive.
   6. Nor is the content or nature of the documents sensitive – they relate to and arise from an application of an administrative nature that was made by the Applicant to the Agency for remission of debt associated with [their] university studies.
   7. Work contact details for Agency staff are either publicly available, or available to staff or students working at or attending the university.
   8. For the most part, the third parties who were consulted did not object to the release of their personal affairs information.
   9. I note one of the Agency staff members advised they object to the release of their personal affairs information. However, for the reasons set out above, I consider the right of access to information under the FOI Act outweighs that staff member’s personal privacy in the particular circumstances of this matter.
   10. While I note the Agency’s submission in relation to section 13 of the Charter of Human Rights and Responsibilities 2006 (Vic) (Charter), and in addition I note the obligation on public authorities to interpret provisions in Victorian legislation consistent with human rights in the Charter,[10] I do not consider my decision to disclose personal affairs information of Agency staff contravenes section 13 of the Charter as disclosure of the information in the documents subject to review is not of a nature that would provide for an arbitrary interference with those individuals’ ‘privacy, family or home’ given it arises solely in the context of their professional employment.

Section 35(1)(b)

32. A document is exempt under section 35(1)(b) if two conditions are satisfied:

(a)  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

(b)  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.

33. In relation to the application of section 35(1)(b), the Agency advised that:

One of the University’s functions is the assessment of remission of debt applications by students based on certain criteria. Communications between University officers in considering these applications necessarily involve discussions of sensitive and personal matters of students and their circumstances. Accordingly, confidentiality, both implied and express, applies to such communications.

Further, the University relies on such communications to be frank and fearless in order to properly exercise its functions, assist it to make informed decisions and to take appropriate action where necessary. Therefore, the University could not properly process and assess remission of debt applications if confidentiality were not guaranteed to communications relevant to that. If the documents were disclosed, there is a serious risk that such communications or their quality or nature could diminish and affect the effectiveness of the University’s decision-making.

34. My decision with respect to the application of section 35(1)(b) to each document is set out in Annexure 1.

Deletion of exempt or irrelevant information

35. 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.
36. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’^[11] 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.^[12]
37. I have considered the effect of deleting exempt and irrelevant information from the documents. In my view, it is practicable for the Agency to delete this information, because it would not require substantial time and effort, and the edited documents would retain meaning.

Conclusion

38. On the information available, I am satisfied the exemptions in section 32(1) applies to two of the documents. I have decided to grant access to the remaining documents in full and in part as set out in Annexure 1.

Review rights

39. 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.^[13]
40. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[14]
41. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[15]
42. 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.
43. 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.^[16]

When this decision takes effect

44. I have decided to release documents that contain the personal affairs of two third parties.
45. The third parties will be notified of my decision and each is entitled to apply to VCAT for a review within 60 days from the date they are given notice.
46. 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] Graze v Commissioner of State Revenue [2013] VCAT 869 at [29]; Elder v Worksafe Victoria [2011] VCAT 1029 at [22]. See also section 119 of the Evidence Act 2008 (Vic).

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

[5] Section 33(9).

[6] Coulson v Department of Premier & Cabinet [2018] VCAT 229 at [124]–[127]; Proctor v Mornington Peninsula Shire Council [2018] VCAT 638 at [102]-[103]; Cowen v Monash University [2018] VCAT 694; Smeaton & Smeaton v Victorian WorkCover Authority [2018] VCAT 914.

[7] Gunawan v Department of Education (unreported, Victorian Civil and Administrative Tribunal, Member Davis, 15 December 1998) 18; Proctor v Mornington Peninsula Shire Council [2018] VCAT 638.

[8] Mildenhall v Department of Planning and Development (unreported, Administrative Appeals Tribunal, Member Preuss, 16 August 1995) at [6].

[9] Ibid.

[10] Section 38 of the Charter.

[11] 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].

[12] 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].

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

[14] Section 52(5).

[15] Section 52(9).

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