‘AV5’ and Country Fire Authority (Freedom of Information) [2019] VICmr 195 (12 December 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.

While I am satisfied certain information in the documents is exempt under sections 33(1) and 35(1)(b),
I have determined certain information is not exempt and is to be released. As I am satisfied it is practicable to provide the Applicant with an edited copy of certain documents releasing this information, I have granted partial access to further 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

12 December 2019

Reasons for Decision

Background to review

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

Copy of all correspondence in relation to member [Applicant’s name & membership number] – during [their] membership at [suburb] Brigade between [date] and [date] from:

1. 1. 1. [Suburb] Brigade Management Team (BMT) to [district] Head Quarters (HQ)
      2. Suburb BMT to Agency HQ – People and Culture; and
      3. [District] to Agency HQ – People and Culture.
2. In its decision, the Agency identified 55 pages of documents falling within the terms of the Applicant’s request. It decided to grant access to 24 pages in full, 20 pages in part and deny access to 11 pages.

Review

5. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
6. The Applicant indicated they seek access to all information denied by the Agency. Accordingly, this review relates to the 31 pages where the agency refused access either in part or in full.
7. I have examined copies of the documents subject to review.
8. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.
9. I have considered all communications and submissions received from the parties, including:

• 1. the Agency’s decision on the FOI request;
  2. information provided with the Applicant’s review application; and
  3. discussions/correspondence between the Applicant, the Agency and OVIC staff in the course of the review.

10. 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

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

Section 25(a)

12. Section 25(a) of the Act provides an Agency may delete information irrelevant to an applicant’s request.
13. The Agency deleted certain information in the documents as irrelevant where it determined it falls outside the scope of the Applicant’s request. Having reviewed the documents, I am satisfied certain information that relates to processing the Applicant’s request, such as the name, user ID and email address of officers who processed the FOI request, is irrelevant information and is to be deleted in accordance with section 25.
14. The Agency also determined certain emails in Documents 7, 9, 10, 12 and 13 as ‘out of scope’. In my view, these emails are relevant to the Applicant’s request as they relate to the Applicant. While
    I acknowledge the content of certain emails relates to the Applicant in a limited way, I consider the email subject lines place them within the scope of the request. Further, I have determined this information is not exempt under the Act.
15. Annexure 1 sets out my decision with respect to each of the abovementioned documents.

Section 33(1)

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

• 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;^[1] and
  2. such disclosure would be ‘unreasonable’.

Do the documents contain personal affairs information?

17. 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.^[2]
18. I am satisfied information in the documents discloses personal affairs information of third parties. Such information includes the names, position titles, email addresses, contact telephone numbers and the whereabouts of individuals at specific times.

Would release of the personal affairs information be unreasonable?

19. The concept of ‘unreasonable disclosure’ involves balancing the public interest in the disclosure of official information with the personal interest in privacy in the circumstances of a matter.
20. It is apparent from the face of the documents and the context of this matter, the Applicant may be aware of the identity of some of the individuals whose personal affairs information appears in the documents. However, the fact an applicant is aware of an individual’s identity does not necessarily mean release of a third party’s personal affairs information would be reasonable.[3]
21. Whether release of personal affairs information is reasonable must be considered in its own context without adopting what would effectively be a ‘class exemption’ to deleting every instance of a particular name or names without considering the circumstance and context in which it appears.
22. For example, in Country Fire Authority v McGregor[4] (McGregor decision), the Victorian Civil and Administrative Tribunal (VCAT) drew a distinction between release of personal affairs information from emails compared with formal and perhaps contentious documents, such as investigation reports.
23. In the McGregor decision, VCAT heard sworn evidence from an Agency witness that the local community context can mean ‘issues are more sensitive than might otherwise be apparent from the face of the documents’.[5] I consider this factor to be relevant in this matter as these documents also concern a small community volunteer fire brigade.
24. In the circumstances of this matter, and having regard to VCAT’s reasoning in the McGregor decision, I consider it would be unreasonable to release the personal affairs information and comments of the persons named in Documents 1, 2 and 3 (statement notes).
25. I note the release of the statement notes in part would likely lead to the identification of parties who were present at or witnessed the events. I am concerned if such information were to be disclosed without context, inferences or assumptions may be made that may have a negative impact in the context of a small community volunteer fire brigade.
26. I note for the majority of emails released in part, the only information exempted under section 33(1) is Agency officers’ mobile telephone numbers. I consider it would be unreasonable to release this personal affairs information as it would allow persons to contact those individuals outside of their work environment.
27. Section 33(2A) requires that, in deciding whether the disclosure of a document would involve the unreasonable disclosure of information relating to the personal affairs of any person, I must take into account whether the disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person. On the information before me, I do not consider this to be a relevant factor in the circumstances.
28. In deciding whether disclosure of a documentwould involve the unreasonable disclosure of a third party’s personal affairs information, an agency must notify that person an FOI request has been received for documents containing their personal information and seek their view as to whether disclosure of the document should occur.[6] However, this obligation does not arise if:
    1. the notification would be reasonably likely to endanger the life or physical safety of a person, or cause them undue distress, or is otherwise unreasonable in the circumstances;
    2. the notification would be reasonably likely to increase the risk to the safety of a person experiencing family violence; or
    3. it is not practicable to do so.[7]
29. The Agency did not provide any information about consultation under section 33(2B). In any case,
    I consider most third parties would object to their mobile telephone numbers being disclosed.
30. In the absence of specific advice from the Agency as to why additional personal affairs information was deleted from Documents 13 and 14, it is my view, consistent with its approach to other internal communications, the name, position title, office telephone number and email address of the author and email recipient should be released to the Applicant.
31. Documents 10, 11, 12 and 15 appear to include emails to and from an Agency officer’s personal email address. I acknowledge the content of the emails relate to the Applicant and CFA matters, and the email address may already be known to the Applicant. However, based on the limited information before me and the McGregor decision, I consider it would be unreasonable to release the individual’s personal email address in the circumstances.
32. Annexure 1 sets out my decision with respect to each document and the application of section 33(1).

Section 35(1)(b)

33. The Agency exempted part of Document 4 under section 35(1)(b). It also relies on this exemption to refuse access to the statement notes, Documents 10, 11 and 12 (which form part of the same email chain) and Document 15 in full.
34. A document is exempt under section 35(1)(b) if two conditions are satisfied:

• 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.

35. When determining whether information was communicated in confidence, it is necessary to consider the position from the perspective of the communicator.[8] Further, confidentiality can be expressed or implied from the circumstances of the matter.[9]
36. The Agency did not advise if it consulted with third parties regarding their views on disclosure.
37. The statement notes comprise statements of incidents or events, as provided by third parties to the Agency.
38. I have considered information in the documents, including the likely perspective of the third parties who provided the information. In the context of this matter, I am satisfied the third parties provided the information in circumstances where confidentiality would reasonably be implied. Consistent with the McGregor decision, I am of the view releasing statements of incidents or events would impair the ability of the Agency to obtain similar information in future. This would be contrary to the public interest as members within the Agency may not be comfortable reporting issues or concerns via a chain of command.
39. In the McGregor decision, VCAT accepted evidence from an Agency witness in relation to section 35(1)(b), which I consider is also relevant in this matter:

… I accept Mr O’Day’s evidence that disclosure of such information would significantly impair the CFA’s ability to obtain such further information in future investigations. This impairment would likely go beyond potential witnesses being less forthcoming than they otherwise would be. I accept the evidence that it could well amount to refusal to provide evidence.[10]

40. I also consider information exempted by the Agency in Document 4 was provided in confidence and disclosure of this information would be reasonably likely to impair the ability of the Agency to obtain similar information in future. Again, if this information was to be released, members within the Agency would be disinclined to report issues or concerns via a chain of command and this would impair the ability of the Agency to obtain similar information in future.
41. However, with respect to Documents 10, 11, 12 and 15, having reviewed the documents, I am not satisfied information exempted by the Agency was communicated in confidence. I am of the view the internal emails between Agency officers concerning Agency procedures rather than the provision of confidential information to the Agency. Accordingly, I am not satisfied these documents are exempt under section 35(1)(b).
42. I note the email sent at [time] on [date] is not legible and was exempted in full by the Agency. OVIC staff have made multiple attempts to source a copy of the email in its original format, however, the Agency advised by email on 15 October 2019 the email is corrupt, and no original can be sourced. OVIC staff have made multiple attempts to source a copy of the email in its original format, however, the Agency advised by email on 15 October 2019 the email is corrupt, and no original can be sourced. In these circumstances, I am not satisfied the document, in its available form, contains exempt information.
43. Annexure 1 sets out my decision with respect to each document and the application of section 35(1)(b).

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’^[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]
46. I have considered the effect of deleting exempt or irrelevant information from the documents. In my view, it is practicable to delete such information as to do so would not require substantial time and effort, and the edited documents would retain meaning.
47. Annexure 1 sets out my decision with respect to each document.

Conclusion

48. On the information before me, I am satisfied certain information in the documents is exempt under sections 33(1) and 35(1)(b). However, I have determined certain information is not exempt and have decided to release additional information to the Applicant. As I am satisfied it is practicable to provide the Applicant with an edited copy of certain documents releasing this information, I have granted partial access to further documents.
49. The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.

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

Other matters

55. Section 49P(5) states if I decide to disclose a document claimed to be exempt under section 33(1),
    I must, if practicable, notify any person who has a right to apply to VCAT for a review of my decision of their right to do so.
56. In considering the meaning of ‘practicable’ in relation to other sections of the FOI Act, VCAT has held:

The use of the word ‘practicable’ in the legislation to my mind connotes a legislative intention to apply common sense principles. ‘Practicable’ is not a term of art or a term of precise meaning.

…. The use of the word indicates there should be imported into the process the exercise of judgment by the agency concerned. It does not allow for the conclusion that because a task is possible, it must, ergo, be undertaken.^[17]

57. VCAT also considers the possibility of an unnecessary intrusion into the lives of third parties is relevant when assessing the practicability of notifying them.^[18]
58. In this case, I consider it is practicable for OVIC to attempt to notify the relevant third parties.
59. Therefore, the relevant third parties will be notified of my decision and are entitled to apply to VCAT for a review within 60 days from the date they are given notice.
60. However, I note it is possible certain third parties may not be able to be contacted due to the passage of time given the age of the documents subject to review.

When this decision takes effect

61. My decision does not take effect until the relevant review period (stated above) expires. If a review application is made to VCAT, my decision will be subject to any VCAT determination.

Annexure 1 – Schedule of Documents

Endnotes

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

[2] Section 33(9).

[3] AB v Department of Education and Early Childhood Development [2011] VCAT 1236 at [58].

[4] [2017] VCAT 582.

[5] [2017] VCAT 582 at [27].

[6] Section 33(2B).

[7] Section 33(2C).

[8] XYZ v Victoria Police [2010] VCAT 255 at [265].

[9] Ibid.

[10] [2017] VCAT 582 at [41].

[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).

[17] Re Schubert and Department of Premier and Cabinet (2001) 19 VAR 35 at [45].

[18] Coulston v Office of Public Prosecutions Victoria [2010] VCAT 1234 at [42].