Decision summaries

From 1 July 2019 OVIC commenced publishing de-identified FOI review decisions made by the Information Commissioner under section 49P of the Freedom of Information Act 1982 (Vic) (FOI Act) on both OVIC’s website and on the Australasian Legal Information Institute (AustLII) websites.

Each month, OVIC publishes summaries of recent decisions made by the Information Commissioner and Public Access Deputy Commissioner in the newsletter to improve understanding of the FOI Act and of the Commissioners’ functions.

Please note, it is open to the relevant parties to appeal the decisions made by OVIC’s Commissioners and some of the decisions published may have been subsequently subject to review by the Victorian Civil and Administrative Tribunal or other relevant jurisdictions.

We have compiled these summaries below.

2024

June 2024

‘FQ9’ and Ambulance Victoria (Freedom of Information) [2024] VICmr 40 (3 June 2024)

In this FOI request, the applicant requested documents relating to a tender for the provision of an Operations Improvement Plan which will provide advice on how emergency response time targets can be achieved. Also any business case, plan or report created for the Agency in relation the revised Ambulance dispatch project around [years], and any report produced by the successful tenderer for the Agency between [years].

The Agency identified 2 documents relating to the tender process, being a business case and a tender evaluation report. Access to both documents was refused under sections 30(1), 33(1) and 34(1)(b). However, during the review process, following enquiries from OVIC regarding the remainder of the request, the Agency located an additional 11 documents, 9 of which OVIC assessed as falling within the to the scope of the request. The agency did not seek to apply any exemptions to those documents.

In relation to the original 2 documents subject to review, the acting Public Access Deputy Commissioner decided that exemptions did not apply. In particular, section 30(1) did not apply. Rather, the purpose of producing a business case and tender evaluation report is to provide a clear and transparent record of the tendering process and subsequent appointment of the preferred supplier. The documents form an integral part of the probity requirements involved in the governance of procurement processes and therefore disclosure would not be contrary to the public interest.

Read the full review here.

May 2024

‘FP7’ and Boort District Health (Freedom of Information) [2024] VICmr 29 (17 May 2024)

The Applicant sought review of a copy of an internal workplace complaint made by a person other than the Applicant (a third party). The Agency refused access to the requested document in full under sections 33(1) and 35(1)(b) of the FOI Act.
The Acting Public Access Deputy Commissioner was satisfied that the document revealed the identity of the complainant and other third parties and disclosure would be unreasonable under section 33(1) for the following reasons:

(a) It can be inferred that the complaint was made with an expectation that the identity of the complainant would remain confidential.

(b) There is a public interest in ensuring that people are uninhibited from making complaints to their employer, so that any concerns are appropriately investigated and managed by their employer. It is likely that disclosing complaints under FOI processes, separate from an internal investigation process, would inhibit people from making complaints in future out of concern their identity could be revealed to the person to whom the complaint concerns.

(c) The Applicant’s interest in the document was personal, and disclosure would not promote an interest shared by the public.

(d) Disclosure under the FOI process is unconditional, and the document contained highly sensitive information about a third party. The third party’s privacy outweighed the Applicant’s personal interest in the document in this instance.

(e) It is reasonably likely that all third parties referred to in the complaint would object to the document being disclosed to the Applicant.

The Acting Deputy Commissioner was also satisfied that the document was exempt from release under section 35(1)(b) because confidentiality could be implied, and disclosure would reasonably likely impair the ability of the Agency to obtain similar information in future for the reasons set out in (b), above.
Accordingly, access was refused in full.

Read the full review here.

March 2024

‘FP6’ and Department of Energy, Environment, and Climate Action (Freedom of Information) [2024] VICmr 28 (22 March 2024)

The Applicant sought access to a work authority work plan variation for a quarry which the Agency refused access to in full under section 38 of the FOI Act in conjunction with section 119 of the Mineral Resources (Sustainable Development) Act 1990 (Vic) (MRSD Act).

Section 119(2) of the MRSD provides ‘a person to whom this section applies must not divulge or communicate to any person or publish any information obtained by him or her from an authority holder in the course of his or her official duties unless…’.
The Information Commissioner was satisfied the document was exempt from release under section 38 of the FOI Act in conjunction with section 119 of the MRSD Act because:
• the MRSD Act is an enactment in force for the purpose of sect ion 38 of the FOI Act;
• the document contained specific information described in section 119(2) of the MRSD Act, because the work authority work plan variation was submitted by a Work Authority holder, and was obtained by the Agency during the course of its official duties; and
• Section 119(2) of the MRSD Act prohibits the communication or publication of the type of information to which it applies, and there were no relevant exceptions that applied in this instance.

Accordingly, the Information Commissioner decided it was not practicable to provide the Applicant with an edited copy of the document with exempt information deleted in accordance with section 25 of the FOI Act. Therefore, access was refused.

Read the full review here.

‘FP4’ and Victoria Police (Freedom of Information) [2024] VICmr 26 (12 March 2024)

The Applicant sought body-worn camera footage taken by police officers obtained during an incident involving the Applicant.

The Agency refused access to the footage under section 38 of the FOI Act in conjunction with section 30D of the Surveillance Devices Act 1999 (Vic) (SD Act).

Section 38 of the FOI Act exempts information to which a secrecy provision in another Act applies.

The SD Act prohibits the disclosure of any information obtained from the use of a body-worn camera by a police officer, with limited exceptions.

OVIC’s decision was the same as the Agency’s as none of the exceptions applied.

Read the full review here

‘FO2’ and Victorian WorkCover Authority (Freedom of Information) [2024] VICmr 15 (1 March 2024)

The Applicant made a request for documents relating to an inspection conducted by the Agency in response to a complaint made by the Applicant. The Agency applies sections 33(1) and 35(1)(b) of the FOI Act to exempt information certain documents.

The Agency applied section 35(1)(b) to information provided to the Agency by the Applicant, internal notes and advice circulated between Agency officers, and information provided to the Agency by another third party Agency.

The Information Commissioner accepted that information that was acquired by a third party agency was communicated to the Agency in confidence. The Information Commissioner acknowledged there is a public interest in Agency officers being able to freely communicate their professional options and rationales to ensure decisions are subject to proper deliberations. However, the internal communications in the documents, which were referrals and recommendations circulated within the Agency, did not contain information that was communicated to the Agency by its own officers, rather, it was information that was communicated within the Agency during the ordinary course of its business.

Where the Information Commissioner was satisfied that information was communicated in confidence, they were not satisfied that disclosure would be contrary to the public interest. This is because the information exempted by the Agency was primarily information provided by the Applicant to the Agency concerning an alleged safety issue, and members of the public would not be dissuaded from making complaints in future and will continue to alert relevant authorities when it concerns unsafe work practices. The Information Commissioner also considered other factors, including that third party agencies would not be inhibited or deterred from disclosing similar information to the Agency in future, Agency officers will continue to consult with the government on issues they are concerned with, and the views of Agency officers in this matter were made during the course of their normal work duties.

With respect to personal affairs information of Agency officers who were a part of the decision-making process or had direct contact with the Applicant during the course of their complaint, the Information Commissioner was satisfied that disclosure would not be unreasonable because the Applicant was a party to the communications, the information concerned decision-making and complaint processing and the information was communicating during the course of their usual employment duties. Regarding the remaining personal affairs information, the Information Commissioner was satisfied that disclosure would be unreasonable for several reasons.

Read the full review here

April 2024

‘FP5’ and Department of Government Services (Freedom of Information) [2024] VICmr 27 (19 April 2024)

The Applicant made a FOI request seeking access to a copy of an updated policy and procedure document.

The Agency identified a relevant document and refused access to it in full under section 30(1) of the FOI Act. The document was marked as a draft, it did not contain any information concerning its author or business or document owner, nor any mark-ups or comments. The Agency submitted that there was no oversight, review or quality assurance applied to the document, and work on the document had ceased since machinery of government changes.

The Information Commissioner was satisfied the document contained matter in the nature of opinion, advice and recommendations prepared by an agency officer, as it was a draft document setting out recommendations for changes to the agency’s compliance framework. The Information Commissioner was also satisfied the document was prepared in the course of deliberative processes of the Agency.

However, the Information Commissioner was not satisfied that disclosure of the document would be contrary to the public interest for the following reasons:

(a) information in the document was not sensitive;

(b) the document was clearly a draft;

(d) given the generic nature of the document, there were not any strong reasons to consider the public interest weighed in favour of disclosure; however, the Information Commissioner could not be satisfied disclosure of the document would be contrary to the public interest, as they did not consider disclosure would have any effect on the agency, the broader public sector, or members of the public; and

(e) the FOI Act provides that where discretion applies, the Act is to be read to promote disclosure. That is, all government documents should be made available unless is it clear that they are exempt or excluded under a provision of the FOI Act.
Accordingly, the Information Commissioner decided to release the document to the Applicant in full.

Read the full review here.

‘FN4’ and Parks Victoria (Freedom of Information) [2024] VICmr 8 (12 January 2024)

Parks Victoria refused access to information relating to the management of horses in a national park.

On review, the Acting Public Access Deputy Commissioner acknowledged there has been extensive media coverage concerning the issue and that certain community groups and members of the public strongly oppose Parks Victoria’s actions.

In considering the application of section 30(1) (internal working documents), the Acting Public Access Deputy Commissioner was satisfied disclosure of certain information relating to the location of Parks Victoria’s operations and other operational information would be contrary to the public interest, as the information is highly sensitive and the public interest in favour of disclosure is outweighed by the public interest in protecting people whose lives or physical safety might be endangered if the material is released.

However, the Acting Public Access Deputy Commissioner was not satisfied it would be contrary to release other information, as release would not inhibit the provision of similar opinion, advice and recommendations in the future. There was also a strong public interest in disclosing information relating to the Agency’s functions and ensuring its operations comply with the law.

Read the full OVIC review here.

2023

November 2023

FJ7′ and South East Water (Freedom of Information) [2023] VICmr 93 (14 November 2023)

An Applicant, an estate developer, made a request seeking access to documents relating to an adjoining estate development. Negotiations had taken place between the Applicant and another developer with respect to the construction of a sewerage outlet on the Applicant’s estate to service the adjoining estate, which resulted in the other developer seeking an agreement with the Agency for the construction of the sewerage outlet.

In their review application, the Applicant indicated they sought access to the documents because they received an offer from the Agency that was conditional upon constructing a sewer within a stage of the Applicant’s development. The Applicant is seeking access to the documents to understand the reasoning for this, as they consider the Agency allowed another developer to undertake works on the Applicant’s land without their authority, and the Applicant considers they have experienced losses due to the delay and costs resulting from the Agency’s decision.

In the decision letter, the Agency identified 34 documents that predominantly comprises email correspondence between Agency officers and a third-party developer, a copy of a letter of offer and internal agency case notes. The Agency decided to grant access to the documents in part, denying access to certain information under sections 34(1)(b) and 34(4)(a)(ii).

Following consultation with the third-party developer, the Agency submitted the release of information in the documents would likely expose the business undertaking unreasonably to disadvantage as the documents contain specific, confidential details in relation to the development project, and if it were to be released to other parties in competition with the developer, there would be potential for commercial loss.

In relation to section 34(1)(b), the Public Access Deputy Commissioner determined the disclosure of certain information in many of the documents would be likely to expose the business undertaking unreasonably to disadvantage as it reveals detailed commercial information and may have an impact on the business undertakings relationship with its client(s). However, in relation to the letter of offer and documents comprising of case notes, these documents were considered distinguishable from the email communications.

The Deputy Commissioner determined the nature of these documents is not commercially sensitive and their release would not likely expose the undertaking unreasonably to disadvantage as they do not reveal the same level of detail as in the email correspondence between the Agency and the business undertaking,

In relation to section 34(4)(a)(ii), the Deputy Commissioner determined the Agency was not engaged in trade or commerce. The Deputy Commissioner considers the Agency’s statutory functions includes the management and maintenance of water and sewerage networks. The Agency’s approval is required for any land development, detailing all conditions for the provision of water supply, sewerage and/or recycled water. A developer is required to enter into a contractual agreement with the Agency for the undertaking of works relevant to water assets.

Where the Agency engages with or enters into a contractual relationship with a developer with respect to sewerage services for land development projects, it does not do so as an activity in the capacity of engaging in trade or commerce (for example, for a financial profit). Rather, it does so to fulfil its role in delivering its statutory functions in managing and maintaining the water and sewerage network. The information was therefore determined not to be exempt under section 34(4)(a)(ii).

October 2023

‘FJ5’ and Eastern Health (Freedom of Information) [2023] VICmr 91 (3 October 2023)

Eastern Health decided to refuse access to documents relating to the Applicant’s deceased family member. The Agency refused access to certain information in their medical record under sections 30(1) and 33(1) of the FOI Act. In her decision, the Acting Information Commissioner noted that while she was satisfied the documents contained opinion recorded by Agency officers during the course of providing healthcare to the patient, the disclosure of subjective observations of staff regarding the Applicant and their family would not be contrary to the public interest under section 30(1). While sensitive in nature, the Applicant was considered to be capable of understanding that observations may not reflect their own perspective.

Further, the Commissioner considered whether the release of personal affairs information of third parties, being contact details of staff, health information of unrelated third parties and observations of third parties would be unreasonable. The Commissioner considered the direct contact details of third parties to be unreasonable to disclose under section 33(1), however considered the remaining personal affairs information would not be unreasonable to disclose as it either related to the Applicant’s family member or was information that a third party had consented to the release of.

August 2023

Save Albert Park Inc and Australian Grand Prix Corporation (Freedom of Information) [2023] VICmr 84 (14 August 2023)

The applicant applied to the Agency under the FOI Act for documents showing the number of tickets sold to the Australian Grand Prix over the years 2017, 2018 and 2019. In response, the Agency identified some documents, and created some documents under section 19. Section 19 provides that an Agency can create a document in response to a request by the use of a computer or other equipment in order to collate the information requested by the Applicant.

The Agency released some of the documents and exempted two documents under section 34(4)(a)(ii) of the FOI Act.

For a document to be exempt under section 34(4)(a)(ii) an Agency must be engaged in trade or commerce, and disclosure of the information must expose it unreasonably to disadvantage.

The Deputy Commissioner decided that the Agency is engaged in trade or commerce, given its functions under the Australian Grands Prix Act 1994 (Vic), in particular its role in conducting the financial and commercial management of the Australian Grand Prix.

However, the Deputy Commissioner decided disclosure would not expose the Agency unreasonably to disadvantage. The Deputy Commissioner acknowledged a previous VCAT decision where similar documents had been determined exempt; however, noted that that decision had been made more than 10 years ago and that community expectations and standards regarding transparency and public accountability in the expenditure of public funds have increased in the intervening period.

‘FI3′ and Swinburne University of Technology (Freedom of Information) [2023] VICmr 83 (7 August 2023)

This decision concerns the Agency’s refusal to provide access to certain personal affairs information in documents under section 33(1). The documents were internal communications concerning a proposal for university students to undertake research or campaigning activities for the Teal candidate, for course credits. The Agency exempted names, position titles and academic qualifications of certain third parties under section 33(1), citing concerns held by those third parties around the possibility of having their names published online and possible personal repercussions if released. The Deputy Commissioner outlined that it is generally accepted that public sector employees are expected to withstand some level of public scrutiny in relation to carrying out their professional duties. However, such scrutiny must be carefully balanced with an individual’s right to personal privacy given the potential for them to be subject to an unwarranted or inappropriate level of public attention or harassment if their personal affairs information is disclosed under the FOI Act. Noting that the subject matter had been brought before an integrity body, and the issue had already been subject to previous media attention, the Deputy Commissioner did not consider there to be information before her to suggest greater public scrutiny was warranted or required to assist the public’s understanding of the documents.

‘FH7′ and Department of Premier and Cabinet (Freedom of Information) [2023] VICmr 78 (2 August 2023)

This decision concerns the agency’s refusal to provide access to several documents concerning charges to be incurred for hotel quarantine during the COVID-19 pandemic. The documents were refused in full and in part under sections 28(1)(ba), 29(1)(a), 30(1), 32(1) and 33(1).

The Deputy Commissioner determined that by disclosing the conclusion of legal advice at a press conference, the Premier of Victoria acted inconsistently with the maintenance of privilege, and in doing so, waived privilege in the legal advice. Accordingly, communications relating to legal advice regarding the State’s ability to charge for hotel quarantine was not exempt from release under section 32(1).

The Deputy Commissioner was not satisfied documents relating to National Cabinet, the National Coordination Mechanism (NCM) and Australian Health Protection Principal Committee (AHPPC) were exempt from release under section 29(1)(a). The Agency stressed the sensitive and confidential nature of the documents and considered disclosure would undermine the effective operation of National Cabinet and may prejudice future Commonwealth or jurisdictional participation and reduce the effectiveness of the NCM. The Deputy Commissioner determined disclosure would not be contrary to public interest for several reasons, having considered the importance of the bodies with respect to Australia’s response to the COVID-19 pandemic, the public interest in the operations of government decision-making bodies being transparent and accountable for their decisions, and taking into account that the position on the issue of charging for hotel quarantine is no longer current.

The Department of Premier and Cabinet has appealed the decision of the Deputy Commissioner to VCAT.

July 2023

‘FH2’ and VicForests (Freedom of Information) [2023] VICmr 73 (14 July 2023)

The review decision examined the Agency’s application of section 25A(1) to a request for documents regarding the Agency’s salvage and timber recovery program, including a number of coupe plans, environmental surveys, logging schedules and Ministerial correspondence involving specific forests. The Deputy Commissioner sought submissions from the parties concerning the Agency’s compliance with section 25A(6) consultation requirements. Despite the consultation efforts of the parties, the Agency made a decision that the Applicant’s amended request did not remove the ground for refusal and refused access under section 25A(1). The Deputy Commissioner proceeded with the review on the basis of the Applicant’s amended request.

Following a thorough examination of the evidence provided, the Deputy Commissioner was satisfied the requirements under section 25A(1) to not process the Applicant’s request had been met as they:

determined the Agency had met their obligations under section 25A(6) to notify and to provide an opportunity to consult and assist the Applicant amend their request;
accepted evidence that the number of documents likely to be identified would exceed 3,290 documents, which would involve a substantial diversion of the Agency’s resources, noting the size of the Agency and likely need to consult with several internal and external stakeholders; and
overall, were satisfied that the processing of the amended request was not a reasonably manageable one, given the broad range of documents sought, noting the terms of the request seeking “all correspondence” and “any other information” complicating the work involved in manually searching documents, not readily accessible.

June 2023

‘FH5’ and Victorian Multicultural Commission (Freedom of Information) [2023] VICmr 76 (24 June 2023)

The Victorian Multicultural Commission (Commission) refused access to a document containing details regarding applications for grants, including unsuccessful grant applicants and the amount applied for by the successful applicants. The Commission exempted the information under sections 34(1)(b) (information acquired from a business) and 35(1)(b) (information obtained in confidence).

In considering the business and financial information, the Information Commissioner was not satisfied release would expose the businesses who applied for the grants unreasonably to disadvantage, as there was nothing sensitive about the information as it did not contain detail about those businesses.

The Information Commissioner was also not satisfied information relating to successful application grant amounts was exempt under section 35(1)(b) given the information was already publicly available. However, in considering the information of the unsuccessful grant applicants, the Commissioner was satisfied that due to the higher sensitivity surrounding the disclosure of information provided by unsuccessful grant applicants, release of this information would be likely to defer future applications. This information was exempt under section 35(1)(b).

Read the full OVIC review here.

‘FG2′ and Department of Government Services (Freedom of Information) [2023] VICmr 64 (23 June 2023)

This review decision examined whether section 18 of the Business Licensing Authority Act 1998 (Vic) (BLA Act) was a secrecy provision for the purpose of section 38 of the FOI Act and whether the requested documents were prohibited from being disclosed under the FOI Act.

The Applicant sought all documents pertaining to the professional engineer’s registration of a named third party. The Agency, in response to the FOI request, identified 61 documents and refused access to all documents in full on the basis that section 18(2) of the BLA Act prohibits the disclosure of any information relating to the ‘affairs of any person’ acquired under the BLA Act in relation to information on the register.

The Deputy Commissioner was satisfied that the BLA Act was an enactment in force for the purpose of section 38 of the FOI Act and that section 18(2) of the BLA Act prohibits disclosure of the information sought by the applicant. While section 18(3) provides for certain exceptions in which the information may be disclosed, for example for the purpose of legal proceedings, the Deputy Commissioner was satisfied that the exceptions in section 18(3) of the BLA Act did not apply in the circumstances. Accordingly, it was concluded that section 18(2) of the BLA is a secrecy provision for the purpose of section 38 of the FOI Act and all 61 documents were refused in full.

‘FF3’ and Emergency Services Telecommunications Authority (Freedom of Information) [2023] VICmr 56 (8 June 2023)

In this matter, the Applicant sought agendas and minutes of the Agency’s board, conducted throughout the 20/21 and 21/22 financial years. The Agency refused access to all documents in part under sections 30(1), 31(1)(a), 31(1)(d), 33(1) and 34(4)(a)(ii) of the FOI Act.

Following a preliminary view provided to the Agency that sections 30(1) and 34(4)(a)(ii) had not been established, the Agency agreed to release further information to the Applicant outside the FOI Act. Following this, the Applicant continued to seek review of the Agency’s decision to refuse access to information under sections 30(1), 31(1)(a) and 31(1)(d) in certain documents.

The Deputy Commissioner decided that disclosure of certain information in the documents, which relate to the Agency’s information technology infrastructure and telecommunications equipment used by emergency services personnel, was exempt from release under sections 30(1), 31(1)(a) and 31(1)(d). This finding was made on the basis that disclosure would be contrary to the public interest by potentially endangering the safety of emergency services workers, that the information could be exploited by nefarious actors, and would prejudice the agency’s enforcement or proper administration of the Emergency Services Telecommunications Authority Act 2004 (Vic) and disclose methods for preventing, detecting, investigating breaches of the law.

Disclosure of other information exempted by the Agency was found to be in the public interest as it would not mislead the public or negatively impact on the ability of Agency officers to provide advice and provide greater public scrutiny of the Agency’s conduct.

‘FF5’ and Victoria Police (Freedom of Information) [2023] VICmr 58 (5 June 2023)

The Applicant made an FOI request for CCTV footage of an assault committed against them at a social venue. The Agency decided to exempt the footage in full under section 33(1), on the basis that disclosure of the personal affairs information of persons other than the Applicant would be unreasonable in the circumstances.

During the review, the Applicant provided submissions to OVIC explaining their interest in the footage, and in particular, that it was required for their ongoing rehabilitation and recovery.

The Deputy Commissioner decided the footage was not exempt in full under section 33(1) and accepted the Applicant’s reasons represent a genuine personal interest in them seeking access to the footage as a victim of crime and that disclosure may assist the Applicant in their recovery.

The Deputy Commissioner considered the objects in section 4(1) of the Victims’ Charter Act 2006 (Vic) and the VCAT case of Evans v Victoria Police (Review and Regulation) [2020] VCAT 426, ultimately deciding that disclosure of the footage would not be unreasonable in the particular circumstances of the matter.

In accordance with section 25, the Deputy Commissioner further decided the footage could be edited by reducing its length to the relevant part only, being the actual assault committed against the Applicant. It was decided editing the footage strikes a reasonable balance between the right of the Applicant to obtain access to the footage, and the disclosure of third party personal affairs information captured in the footage.

May 2023

‘FD2’ and Department of Justice and Community Safety (Freedom of Information) [2023] VICmr 37 (3 May 2023)

The documents in this matter detail the engagement of an external consultant to review the delivery of the Agency’s fines IT system (known as the ‘Victorian Infringement Enforcement and Warrants (VIEW) system), through to issues in the delivery and fulfilment of IT systems contracts entered into by the Agency, on behalf of the State, and the process for designing solutions to address those issues.

The Agency released some of the documents and refused access to certain information in the documents under sections 28(1)(ba), 28(1)(d), 30(1), 32(1), 33(1), 34(1)(b) and 34(4)(a)(ii) of the FOI Act. The Deputy Commissioner decided that it was evident, based on their contents, that sections 28(1)(ba), 28(1)(d) and 32(1) applied to some of the information in the documents.

However, the Deputy Commissioner decided section 30(1) applied to the documents. In making her decision, the Deputy Commissioner acknowledged some of the information may be considered sensitive in nature. However, given this project was ‘high value nature’, involved the expenditure of substantial public funds in the procurement of and addressing the issues with the new IT system, and the impact and importance of a proper functioning fines system in Victoria, she considered there is a strong public interest in the community being better informed about and able to publicly scrutinise the way in which the Agency carries out its functions. This includes the advice the Agency provides to Ministers and its deliberative, consultative and decision making processes.

The Deputy Commissioner also decided that sections 34(1)(b) and 34(4)(a)(ii) do not apply to the documents, noting she was not satisfied disclosure would cause the agency harm, and that disclosure would not be unreasonable where it is in the public interest.

April 2023

‘FD1’ and Department of Health (Freedom of Information) [2023] VICmr 36 (26 April 2023)

This FOI request involved accounts for a named cemetery trust (the Trust). Such trusts are created under the Cemeteries and Crematoria Act 2003 (Vic) (Cemeteries Act). A Class B cemetery trust, such as the Trust in this matter, is a public entity, governed by the Cemeteries Act and Ministerial directions, which among other things, outline the financial reporting and expenditure obligations. Expenditure by a cemetery trust is done under the guidance of the Victorian Government Purchasing Board, to ensure a fair and competitive tendering process when considering any public construction.

The Agency decided to exempt certain information under sections 34(1)(b) and 35(1)(b). The Agency explained it had applied section 34(1)(b) to both the Agency and a named business undertaking that prepared a document on behalf of the Agency. The Deputy Commissioner decided that only the information provided by the business undertaking could be considered under section 34(1)(b) as the Agency is a public entity and not a business undertaking. Further, the Deputy Commissioner decided disclosure would not unreasonably expose the business to disadvantage as it was general in nature and as the agency did not consult with the business, there was insufficient information before her to be satisfied the exemption applied.

The Deputy Commissioner also found that section 35(1)(b) did not apply to the documents because while she accepted the information was provided voluntarily, given that it was supplied to qualify for a grant, that disclosure would not impair the agency from obtaining similar information in the future.

While the Agency did not apply section 35(1)(a) to the documents, given the content of the documents the Deputy Commissioner considered it was appropriate to consider that exemption. The Deputy Commissioner decided that section 35(1)(a) did apply to some information in the documents, as it was provided in confidence and would be exempt under section 30(1) if it had been generated by the Agency. She decided it amounted to opinion or advice, that it was prepared for the deliberative processes of the Agency, and that at that particular stage in the proposed development, the public interest lies in maintaining confidentiality of the Trust’s financial and commercial information to maximise the Trust’s bargaining position, to the benefit of the taxpayer.

‘FB5’ and Department of Education (Freedom of Information) [2023] VICmr 22 (5 April 2023)

The Applicant is representing a client who alleges they were sexually abused by a teacher while attending a Victorian primary school. Access to historical documents, including photographs, lists of certain staff members and any relevant misconduct reports, were sought to assist in confirming the identity of the alleged perpetrator to then seek redress.
During the review, in consultation with OVIC, the Applicant provided further information to the Agency which enabled it to reconsider its original section 25A(5) decision. Under its fresh decision, the Agency granted access in full to several documents and refused access to others in full under section 33(1).

Noting the sensitive nature of the request, OVIC provided a preliminary view to the Agency that the Deputy Commissioner considered further information in the photographs was not unreasonable to release. In part this view was formed based on considering the circumstances and reasons for the documents’ creation. The Deputy Commissioner considered school staff voluntarily participated in such photographs with no expectation of confidentiality or further control over the resulting photographs. In the Deputy Commissioner’s view, school staff likely had an understanding that others would view the photographs or they may be publicly disseminated such as in a newsletter, year book or displayed within school grounds. Following consideration of the preliminary view, the Agency released these documents directly to the Applicant during the review.

The Applicant advised their client would like OVIC to continue to review the remaining documents only. The Deputy Commissioner decided the remainder of the information was irrelevant under section 25 or exempt under section 33(1). In making her decision, the Deputy Commissioner considered there is strong public interest in individuals who have suffered child abuse in public institutions, such as schools, being able to seek justice and seek to protect others. However, also noted that there is public interest weighing in favour of preserving the Agency’s ability to record sensitive and personal information about third parties for the purpose of being able to appropriately address and respond to allegations of abuse or misconduct made against staff. In the event such information were to be routinely released under the FOI Act in circumstances where allegations had not been tested or substantiated, the Deputy Commissioner was satisfied the Agency’s ability to perform its functions may be compromised.

‘FB4’ and Moonee Valley City Council (Freedom of Information) [2023] VICmr 21 (5 April 2023)

This decision relates to the Agency’s refusal to disclose certain documents relating to its internal appeal and review process following the issuing of a Planning Infringement Notice (the PIN) regarding alleged noise emissions from a commercial premises.

The Applicant indicated they sought access to the documents to better understand the Agency’s internal review process when a decision was made to revoke a PIN and to ensure the process was not subject to any conflicts of interest.

The Applicant narrowed the scope of their review application to certain information which the Agency reused access under sections 33(1), 30(1) and 25 of the FOI Act. During the review, the application of sections 32(1) and 34(1)(b) was also considered to certain information in the documents.

The Public Access Deputy Commissioner decided additional information could be released which was not exempt under sections 30(1), 33(1) and 34(1)(b). The Deputy Commissioner determined disclosure of certain information in the documents would be reasonably likely to inhibit communications between Agency officers essential for it to address and respond to PIN appeal matters thoroughly and efficiently. However, disclosure of other information would not be contrary to the public interest where the information merely discloses general discussions between Agency officers relating to the ordinary handling of the PIN appeal that merely demonstrates officers carrying out their usual administrative duties and responsibilities on behalf of the Agency.

March 2023

‘FA7’ and Department of Health (Freedom of Information) [2023] VICmr 15 (17 March 2023)

This decision concerns the agency’s refusal to release certain pages, containing third party statements, in an old psychiatric record under sections 33(1) and 35(1)(b) of the FOI Act. The applicant in this matter was a relative of the patient, who is now deceased.
With respect to section 33(1), the Deputy Commissioner considered the importance of examining surrounding information in a document to better understand the context in which information was provided, which may alter the meaning of certain information if it is only viewed in isolation. The Deputy Commissioner was satisfied it would not be unreasonable to release the personal affairs information of third parties having considered the purpose for which the information was provided and the reduced sensitivity in releasing the information now, as opposed to when the document was initially created.
In relation to section 35(1)(b), the Deputy Commissioner had regard to the significant passage of time (over 50 years) to bear upon the question of whether it would be contrary to the public interest to release information and that each case must be considered in its own merit. The Deputy Commissioner considered the exempted information held no current relevance. That is, it did not relate to the ongoing treatment of a patient, or complaint, or any matters involving the agency. Importantly, the exemption under section 35(1)(b) is not made out if the impairment of an agency goes no further than mere lack of candour or greater circumspection by those in the position of the communicator. The Deputy Commissioner further considered the information already released to the Applicant by the agency, which included similar statements made by a third party. Therefore, in the particular circumstances of this case, the Deputy Commissioner was not satisfied the information was exempt under sections 33(1) or 35(1)(b) of the FOI Act.

February 2023

‘EZ8’ and Glen Eira City Council (Freedom of Information) [2023] VICmr 8 (16 February 2023)

This decision relates to the agency’s refusal under section 25A(5) to process a request for minutes of an Ordinary Council meeting and documents submitted for consideration on a particular project tender. The agency considered the tender documents submitted and minutes recording the agency’s discussion of the project tender would reveal Council business information and private commercial information, if the meeting was made public. Accordingly, the agency undertook a process allowed for under section 66(2)(a) of the Local Government Act 2020 (Vic) (LG Act) to close this Council meeting to the public where leaving the meeting open would disclose ‘confidential information’ within the meaning of sections 3(1)(a) and 3(1)(g) of the LG Act.
The Public Access Deputy Commissioner accepted the agency’s submission that the documents requested by the Applicant would fall within the definition of ‘confidential information’ under section 3(1)(h) of the FOI Act, which makes records of meetings closed to the public under section 66(2)(a) in the process described above exempt under section 38 of the FOI Act in conjunction with section 125(1) of the LG Act.
Importantly, the agency’s process in closing the council meeting was a separate determination to their decision on the FOI request, although both processes required a consideration of section 3(1) of the LG Act.

January 2023

‘EZ2’ and Department of Treasury and Finance (Freedom of Information) [2023] VICmr 2 (4 January 2023)

This decision relates to the agency’s refusal of access to ministerial briefings to the Treasurer concerning various matters including a Treasurer’s Indemnity for the Victorian Managed Insurance Authority (VMIA) and funding to Melbourne and Olympic Parks Trust (MOPT) under sections 30(1), 34(1)(b) and 34(4)(a)(ii) of the FOI Act.
The Information Commissioner was not satisfied section 34(1)(b) applied to information concerning the VMIA because it is a statutory body. With respect to section 34(4)(a)(ii), the Information Commissioner was satisfied the VMIA is engaged in trade and commerce in the context of providing insurance to Government and non-governmental entities and disclosure would expose it unreasonably to disadvantage as the information could be used to inflate claims and gain strategic advantages to the VMIA’s commercial detriment. The Information Commissioner was satisfied MOPT is engaged in trade and commerce as it has commercial functions and is in competition with other sports and recreational entities. The Information Commissioner was not satisfied disclosure of forecasted cash deficit figures for MOPT in the context of potential cancellation of commercial operations would be likely to expose MOPT unreasonably to disadvantage. This was because the situations to which the estimated case deficits relate did not eventuate, it was not unexpected or controversial that entities would anticipate impacts on revenue generating events due to COVID-19 restrictions, there was no information before the Information Commissioner to suggest disclosure would impact MOPT’s future commercial negotiations and the public interest weighed in favour of disclosure. The Information Commissioner’s decision directed that further information in relevant documents be released.

2022

December 2022

‘EY4’ and Department of Treasury and Finance, on behalf of Invest Victoria (Freedom of Information) [2022] VICmr 250 (22 December 2022)

This decision relates to the agency’s refusal in full to disclose a document about investment in ‘urban air mobility’ in Victoria under section 34(4)(a)(ii) of the FOI Act. During the review, the Deputy Commissioner requested the agency also consider the application of section 30(1) to the document and supplementary submissions were provided. Ultimately, the Deputy Commissioner was not satisfied that either exemption applied and varied the agency’s decision.
While the Deputy Commissioner accepted the agency was engaged in ‘trade or commerce’ and the document contained ‘information of a business, commercial or financial nature’ for the purposes of section 34(4)(a)(ii), there was insufficient evidence to suggest that release of the document would unreasonably expose the agency to disadvantage. The Deputy Commissioner stated that for section 34(4)(a)(ii) to apply, an agency must clearly articulate an actual disadvantage that is reasonably likely to occur and further noted that government agencies have considerable bargaining power in the provision and procurement of services to government.
In considering the application of section 30(1), the Deputy Commissioner was satisfied the document was prepared in the course of the agency’s deliberative processes in relation to planning and developing investment in urban air mobility. The Deputy Commissioner was however not satisfied disclosure of certain information would be contrary to public interest as members of the public were unlikely to mistake the document for a policy statement and the agency’s concerns in that respect could be alleviated by providing further explanatory information alongside the document. The Deputy Commissioner further noted the key public interest in the community being better informed about the way in which the agency carries out its decision making processes with respect to investments of public money on behalf of the State of Victoria. The document was released in part.

‘EX8′ and City of Melbourne (Freedom of Information) [2022] VICmr 245 (19 December 2022)

This decision relates to the agency’s refusal to grant access to internal and external correspondence about its decision to suspend its sister city relationship with the City of Saint Petersburg, Russia under sections 29(1)(b), 30(1), 33(1) and 35(1)(b). The Public Access Deputy Commissioner (Deputy Commissioner) determined section 29(1)(b) did not apply to the documents, because the phrase ‘government of the State’ applies to the State of Victoria and does not include a Victorian local government agency. With respect to both sections 29(1)(b) and 30(1), the Deputy Commissioner was not satisfied disclosure would be contrary to the public interest because the decision to suspend the sister city relationship was neither unexpected nor controversial, it is unlikely to further undermine diplomatic relations between the cities and there is a public interest in the outcome of a decision of this nature being accessible to the public. However, the Deputy Commissioner found it would be contrary to the public interest to disclose internal correspondence between agency officers because there is a public interest in agencies being able to undertake a thorough and considered approach in its internal deliberation and there was nothing to suggest the correspondence required greater scrutiny.
With respect to section 35(1)(b), the Deputy Commissioner decided confidentiality was neither expressed nor implied and was satisfied the agency would not be impaired from obtaining similar information in future because the content of the correspondence from the City of Saint Petersburg is neither unexpected nor controversial and does not reveal information that representatives of Russia have not otherwise been communicated publicly with respect to the war in Ukraine.

November 2022

‘EX5’ and Department of Treasury and Finance (Freedom of Information) [2022] VICmr 242 (30 November 2022)

This decision relates to the agency’s refusal to disclose a briefing document to the Treasurer regarding Native Title compensation under sections 28(1)(d) and 30(1) of the FOI Act. The Deputy Commissioner was satisfied the release of certain information in the document would disclose a deliberation of the Cabinet and found this information exempt from release under section 28(1)(d). However, the Deputy Commissioner was not satisfied other information in the document was exempt from release under section 28(1)(d) as it was not sufficiently detailed to record a decision of the Cabinet and was so broad in nature such that its release would not reveal the Cabinet’s ‘thinking processes’ on competing arguments or options.
In considering the application of section 30(1), the Deputy Commissioner was satisfied the document was prepared in the course of the agency’s deliberative processes about native title compensation under the Traditional Owners Settlement Act 2010 (Vic) (TOS Act). The Deputy Commissioner was however not satisfied disclosure of certain information would be contrary to public interest as the document is now more than two years old, brief and general in nature, and would not have a material impact on similar deliberations in the future. The Deputy Commissioner further noted the key public interest in transparency in the way the government models and formulates payable compensation under the TOS Act. The document was released in part.

‘EW6’ and Development Victoria (Freedom of Information) [2022] VICmr 234 (8 November 2022)

This decision relates to the agency’s refusal to grant access to certain information in text message documents relating to Development Victoria matters or a specified project proposal. The agency granted access to 59 documents in full, and refused access to certain information under sections 30(1), 33(1), 35(1)(a) and 35(1)(b).
The Public Access Deputy Commissioner considered the disclosure of certain information would not be contrary to public interest under section 30(1), as despite the informal nature of the text messages, the documents remained a written record of communication between agency officers engaged in agency-related discussions where there is a reasonable expectation that written record is documented and open to public scrutiny. In addition, the Deputy Commissioner considered that while the documents contain informal and frank opinions exchanged between executive officers, their disclosure would not have a detrimental or lasting impact upon the agency’s relationships with other agency contacts or external stakeholders. Further, the Deputy Commissioner considered that although certain information was communicated to the agency in confidence by a third party under section 35(1)(b), the disclosure of the text messages would not inhibit its ability to receive similar information in the future.

October 2022

‘EW7’ and Victorian Building Authority (Freedom of Information) [2022] VICmr 235 (27 October 2022)

This decision relates to the agency’s refusal to provide access to an investigation file arising out of a complaint made by the applicant in relation to a building practitioner. The agency refused access to information in the documents under sections 30(1), 31(1)(d), 32(1) and 33(1). The Public Access Deputy Commissioner was not satisfied deliberations between officers in the course of its investigation of a complaint made under the Building Act 1993 (Vic) (the Building Act) were exempt under section 30(1). The Deputy Commissioner considered there was a public interest in the community being given information about the way in which the agency exercises it statutory functions and deliberates on matters of jurisdiction. Regarding section 31(1)(d), the Deputy Commissioner noted the importance for the agency to conduct efficient and effective regulatory investigations. However, the Deputy Commissioner did not accept disclosure of the documents would enable registered practitioners to avoid detection by the agency or its regulatory activities under the Building Act. In addition, the Deputy Commissioner was satisfied a memorandum of legal advice was exempt under section 32(1), however, email discussions following the provision of advice containing the officer’s own opinions arising from the legal advice was not exempt from release under section 32(1), as it was not a summary of the advice nor could the contents of the advice be inferred.

‘EV7’ and Major Transport Infrastructure Authority (Freedom of Information) [2022] VICmr 225 (13 October 2022)

This decision relates to the agency’s refusal to provide access to documents relating to level crossing removal projects in Surrey Hills and Mont Albert. The Deputy Commissioner was satisfied the documents contained information in the nature of opinion, advice or recommendation under section 30(1) prepared by agency officers relating to noise assessments and modelling for proposed rail infrastructure for the lower Crossing Removal Project. Having considered the agency’s views on ongoing investigation and review of noise assessments, the Deputy Commissioner was satisfied there is a public interest in the public, who may be affected by infrastructure-related decisions, being better informed about the options considered by the agency, regardless of whether an option was ultimately adopted or a decision made. The Deputy Commissioner therefore decided the information was not exempt under section 30(1).
With regard to the application of section 28(1)(b) to an ‘Options Appraisal’ for level crossing removals at Union Road, Surrey Hills and Mont Albert Road, Mont Albert, the Deputy Commissioner considered a recent decision by the VCAT Vice President Judge Marks, who accepted sworn evidence provided to the Tribunal by senior agency officers that Options Appraisal documents were prepared as part of a process involving the documents being submitted for consideration to the Cabinet. The Commissioner was satisfied the document forms part of a suite of documents that were prepared by the agency as part of a process that contemplated the document would be submitted to the Cabinet for its consideration. Consequently, the Deputy Commissioner was satisfied the document was exempt under section 28(1)(b).

Bass Coast Ratepayers and Residents Association Incorporated and Bass Coast Shire Council (Freedom of Information) [2022] VICmr 227 (12 October 2022)

This decision relates to the agency’s refusal in part to contracts relating to waste management and operation and waste collection services under section 38 of the FOI Act in conjunction with section 125 of the Local Government Act 2020 (Vic) on grounds the contracts contain ‘confidential information’. Council information is confidential where it was provided to Council or a special committee in relation to a matter considered at a closed Council meeting or is designated ‘confidential information’. The Deputy Commissioner considered copies of minutes from a Closed Ordinary Council meeting which recorded the award of the contracts that were subject to review and that recorded the meeting was closed to the public. Accordingly, the Deputy Commissioner was satisfied the contracts contain information that was submitted and/or considered at a Closed Council Meeting, and therefore fall within the definition of ‘confidential information’ for the purposes of section 77 of the LG Act 1989 and the definition of ‘confidential information’ in section 3(1)(l) of the LG Act 2020.

September 2022

‘EU3’ and Department of Jobs, Precincts and Regions (Freedom of Information) [2022] VICmr 212 (9 September 2022)

This decision relates to the agency’s refusal under sections under sections 34(1)(b) and 34(4)(a)(ii) to provide access to the contract and tender documents for the Digital Skills and Jobs Program.
The Information Commissioner decided the documents were not exempt from release under section 34(1)(b) or 34(4)(a)(ii) because neither party to the contract would be reasonably likely exposed to disadvantage for several reasons. For example, the Information Commissioner was satisfied there is a public interest in favour of disclosure of the documents to provide transparency and accountability around government procurement and tendering processes in the expenditure of public funds and disclosure would not impact future contractual negotiations in good faith.
In considering section 34(4)(a)(ii), the Information Commissioner was of the view that while there is a contractual relationship between the agency and the business undertaking, where the Government enters into a contract on behalf of the State of Victoria with a private entity in exchange for the provision of services for the benefit of the public, it does not do so as an activity in the capacity of engaging in trade or commerce, but rather to fulfil its role to deliver governmental services, functions and deliver publicly funded projects on behalf of the community.

August 2022

‘ET5’ and Department of Premier and Cabinet (Freedom of Information) [2022] VICmr 205 (26 August 2022)

This decision is a review of the agency’s decision to refuse access to a Quarterly Assets Investment Report (QAIR) under section 28(1)(ba). In their decision, the Public Access Deputy Commissioner also considered whether the document would be exempt under sections 28(1)(b), 28(1)(c), 28(1)(d) and 30(1) of the FOI Act. This summary explains the decision in relation to sections 28(1)(ba) and 28(1)(b).
In its response to the review, the agency advised that Victorian government departments are required to submit quarterly information to the Department of Treasury and Finance. Information ‘extracted’ from these documents is used to inform its decision making. The agency considered the clear or at least dominant purpose of such documents is to provide detailed information for Cabinet deliberation.
The Deputy Commissioner accepted the QAIR has a connection to the Cabinet process but was not satisfied it was a document prepared for the purpose of briefing a Minister in relation to an issue to be considered by government. While the document may be used in this process, the document itself was not exempt under section 28(1)(ba).
Further, the Deputy Commissioner, citing Secretary to the Department of Infrastructure v Louise Asher MP [2007] VSCA 272, determined the document was not prepared for submission to Cabinet and therefore not exempt under section 28(1)(b). For section 28(1)(b) to apply, the actual document must have been prepared for the purpose of submission to the Cabinet. The Deputy Commissioner found that the document subject to review was created to enable Department of Treasury and Finance to create another and separate document and that was to be submitted for consideration by the Cabinet. Ultimately, the Deputy Commissioner determined the document was not exempt from release.

‘ES3’ and Barwon Health (Freedom of Information) [2022] VICmr 194 (8 August 2022)

This decision relates to the agency’s refusal under sections 33(1) and 35(1)(b) to provide access to medical record documents relating to the applicant’s deceased parent. The document subject to review contained information of third-parties and also notes relating to the care of the applicant’s parent. As the Deputy Commissioner was satisfied the applicant was the parent’s next of kin, information concerning the patient’s care and the names and position titles of relevant medical professionals was found to be not unreasonable to release. When considering whether the document contained confidential information under section 35(1)(b), the Deputy Commissioner was satisfied the information was communicated with the expectation of confidence. However, noting the applicant’s status as the deceased person’s next of kin and the content of the specific document, the Commissioner was not persuaded the information was of a particularly sensitive nature and that its disclosure would impair the agency’s ability to obtain similar information in future. The Deputy Commissioner determined certain information was not exempt under section 35(1)(b).

June 2022

‘EC3’ and Department of Jobs, Precincts and Regions (Freedom of Information) [2022] VICmr 47 (27 June 2022)

This decision relates to the agency’s refusal under sections 30(1), 34(1)(b) and 34(4)(a)(ii) to provide access to a contract for the Digital Skills and Jobs Program and parts of a Privacy Impact Assessment (PIA) for the program.
The applicant sought access to a behavioural interview tool assessment they undertook as part of the recruitment process that the agency had outsourced. The Information Commissioner decided the agency did not have constructive possession of the document, having considered the contractual relationships between the various parties involved and the ability of the agency to access or request the document.
The Information Commissioner decided disclosure of a risk assessment table in the PIA is in the public interest because it shows that the agency has considered various privacy risks during the design and implementation of the program, has controls in place to mitigate or manage such risks, the commitment to respecting and protecting privacy, and would contribute to public scrutiny in how the agency handles personal information.
The Information Commissioner also decided the contract was not exempt under sections 34(1)(b) or 34(4)(a)(ii), because neither party to the contract would be reasonably likely exposed to disadvantage. Disclosure would promote transparency in the use of public funds and would not impact future negotiations in good faith.

May 2022

‘DZ3’ and Victoria Police (Freedom of Information) [2022] VICmr 21 (24 May 2022)

This decision relates to the agency’s refusal under sections 31(1)(a) and 33(1) to documents relating to the applicant’s custody and release. The applicant’s request included CCTV footage of the applicant while in custody. The agency did not locate any such footage in response to the applicant’s request. The Deputy Commissioner was satisfied the agency undertook a thorough and diligent search for relevant documents and accepted that the requested footage no longer existed; noting the Victoria Police Manual, Safe management of persons in police care or custody, stipulates a 30-day retention period for footage where no incident has occurred. In this case, that period had elapsed at the time the applicant made their FOI request and the footage had been deleted as no incidents were recorded for the specified date.
Having considered the remaining documents, the Deputy Commissioner was satisfied the disclosure of the documents would be reasonably likely to prejudice the proper administration of the Corrections Act 1986 (Vic) regarding the management and security of the prison and prisoners, and therefore found these documents exempt under section 31(1)(a). Certain documents also contained the personal affairs information of individuals other than the applicant. The Deputy Commissioner was satisfied disclosure of third parties’ personal affairs information would be unreasonable and therefore determined this information exempt from release under section 33(1).

‘DZ6’ and Victoria Police (Freedom of Information) [2022] VICmr 24 (17 May 2022)

This decision relates to the agency’s refusal to process an FOI request under section 25A(5) of the FOI Act on the grounds that should any documents exist, they would all be exempt in full. The applicant requested access to documents containing statistics of hospitalisation, infections, deaths and intensive care unit (ICU) admissions as a result of COVID-19. The agency refused access to the documents as it considered it was apparent the essential quality of the documents was that of documents affecting personal privacy under section 33(1). The Information Commissioner was not satisfied it was apparent from the terms of the applicant’s request that all documents relevant to the request would be exempt in full under section 33(1) as the requested documents may contain information related to individuals that does not allow their identity to be reasonably determined. For example, release of the age, gender and date of infection of an individual is unlikely to allow for the re-identification of a person, depending on the number of infections reported in the community at that time. The Information Commissioner was therefore not satisfied the requirements for the application of section 25A(5) are met. As a result, the agency is required to search for and identify documents relevant to the request and assess those documents under the FOI Act.

‘CZ7’ and Bayside City Council (Freedom of Information) [2021] VICmr 125 (11 May 2021)

This decision relates to the Council’s refusal under section 33(1) to provide access to documents relating to planning and building decisions at a certain address. During the course of the review, the applicant clarified they were not seeking access to personal affairs information of third parties. However, the Deputy Commissioner determined that they were seeking such information given the broad definition of personal information. The Commissioner considered it appropriate to consider the application of section 38 of the FOI Act in conjunction with section 125 of the Local Government Act to the documents. The Commissioner was satisfied the documents contained personal information of a third party other than the applicant. The Commissioner was satisfied certain information concerning the external construction and council processes did contain personal affairs information however was not unreasonable to release, and not exempt under section 38 of the FOI Act. The Commissioner however was satisfied that information such as internal floor plans and addresses were exempt under section 38 of the FOI Act.

April 2022

‘CX9’ and Department of Transport (Freedom of Information) [2021] VICmr 109 (22 April 2021)

This decision relates to the agency’s refusal under sections 28(1)(b), 30(1), 34(1)(b) and 34(4)(a)(ii) to a Business Case Review document and its attachments for a specific rail project. The Commissioner was satisfied the document was prepared by both agency officers and external officers on behalf of the agency. Upon receiving further contextual information about the purpose of the document’s creation, the Commissioner was satisfied the document was created for the purpose of submission for consideration by the Cabinet. As the document did not contain purely statistical, technical or scientific information, the exception in section 28(3) does not apply. Consequently, the Commissioner was satisfied the document was exempt under section 28(1)(b). As the document was exempt under section 28(1)(b), it was not necessary to consider the application of the other exemptions. As the Commissioner was satisfied it was not practicable to provide an edited copy of the document to remove exempt information, the document was denied in full.

March 2022

‘DY7’ and Department of Families, Fairness and Housing (Freedom of Information) [2022] VICmr 16 (25 March 2022)

This decision relates to the agency’s refusal to grant access to documents contained in the applicant’s wardship file, created prior to their adoption. The agency refused access in full to relevant documents under section 38 of the FOI Act in conjunction with section 83(1) of the Adoption Act 1984 (the Adoption Act). Section 83 of the Adoption Act restricts access to records in the possession of an agency relating to an adoption arranged by an agency. The Public Access Deputy Commissioner was satisfied section 83 of the Adoption Act is an enactment in force for the purpose of section 38 of the FOI Act. The Commissioner considered submissions from both the agency and the applicant, and understood the agency’s position that the applicant’s wardship file ‘relates’ to the applicant’s adoption insofar as the agency relied on these records as part of the adoption process. The Deputy Commissioner did not agree with the agency’s interpretation of section 83(1), stating that the requested documents are personal medical records of the applicant created prior to their adoption and its process. The Deputy Commissioner also noted that in the event the agency kept a person’s wardship files together with a person’s adoption file, they did not consider there to be a sufficient nexus between the two files to enliven section 83(1) on the wardship files. The documents were therefore released to the applicant with irrelevant information deleted.

‘DY4’ and Barwon Health (Freedom of Information) [2022] VICmr 13 (21 March 2022)

This decision relates to the health agency’s refusal to amend a medical record of a deceased third party under section 39. The applicant sought to amend the medical record to reflect the deceased person’s lack of tattoos. Section 39 provides that a deceased person’s next-of-kin is entitled to request a correction or an amendment. After requesting evidence the applicant was the deceased person’s next-of-kin, the applicant was unable to provide evidence to confirm, and as such was not entitled to request the amendment. Nevertheless, the Deputy Commissioner considered whether the information in the document the applicant sought to amend was inaccurate, incomplete, out of date or misleading. The Deputy Commissioner considered the information in the document referencing tattoos was not a diagnosis or medical opinion rather a clinician’s observation of appearance. The Deputy Commissioner further considered that the additional letter created by the Funeral Director/Embalmer that clarified the incorrect observation had been placed on file by the agency and therefore the medical record was no longer inaccurate, incomplete, out of date or misleading.

‘DY2 and Department of Health (Freedom of Information) [2022] VICmr 11 (18 March 2022)

This decision relates to the agency’s refusal to grant access to three documents in full under sections 28(1)(c), 29(1)(a) and 29(1)(b). The documents related to the return of international students to Victoria created by and provided by the Chief Health Officer. The agency claimed one page of guidelines prepared by the Australian Health Protection Principal Committee (AHPPC) as exempt sections 29(1)(a) and (b). The agency submitted that information provided by AHPPC members was confidential and release would likely prejudice the willingness of member states to share information. Ultimately, the Information Commissioner was not satisfied the documents contain information that is exempt under sections 28(1)(c), 29(1)(a) or 29(1)(b). Rather, the Information Commissioner found the exemption under section 28(1)(b) applied to certain content and the remaining documents fell outside of the terms of the applicant’s request and were irrelevant. While the Commissioner’s decision differed from the agency’s decision, the Commissioner’s decision did not result in the release of any further information in the documents.

‘DY5’ and Victoria Legal Aid (Freedom of Information) [2022] VICmr 14 (17 March 2022)

This decision relates to the agency’s refusal under section 38 in conjunction with section 43 of the Legal Aid Act 1978 (Vic) (Legal Aid Act) to provide access to documents relating to the appointment of an Independent Children’s Lawyer. The Legal Aid Act provides that persons such as officers employed by the agency shall not communicate information relating to applications for legal assistance to any person. The Deputy Commissioner was satisfied section 43 of the Legal Aid Act is an enactment of the kind covered by section 38, and that the section’s intention is to maintain the confidentiality of information received by the agency in relation to an application for legal assistance. The Deputy Commissioner was satisfied the documents contained the above information and section 43 of the Legal Aid Act applied specifically to the documents. The Deputy Commissioner was further satisfied the relevant section prohibited persons from disclosing the information in the documents and as such were exempt from release in full.

February 2022

‘DY1’ and Fire Rescue Victoria (Freedom of Information) [2022] VICmr 297 (8 February 2022)

This decision relates to the agency’s refusal to grant access to a document in part under section 34(a)(ii). The document is relates to an advertising campaign paid for by the agency, including the total expenditure for the campaign.
For the exemption to apply, the agency must be engaged in trade and commerce. The Public Access Deputy Commissioner noted the agency’s submission, which stated the agency engages external suppliers to provide specialist services and engages in trade and commerce with third parties. The Commissioner was however of the view that the total expenditure amount is part of the process of trade and commerce as part of the agency carrying out its governmental functions. Although the Commissioner was satisfied the document contained commercial and financial information, she considered disclosure would ultimately promote accountability for government’s use of public funds and consequently found the information to be not exempt. The Commissioner determined to grant access to the document in full.

January 2022

‘DX9’ and Safer Care Victoria (Freedom of Information) [2022] VICmr 9 (31 January 2022)

This decision relates to the agency’s refusal to grant access to two documents in part held by the agency under section 33(1). The documents are records relating to the agency’s Clinical Leadership Expert Group, including a list of members, meeting minutes and the modelling of COVID-19’s impact to health services. The applicant advised during the review they sought the list of members only.
The Public Access Deputy Commissioner noted the exempted personal affairs information was of senior clinical practitioners and administrators representing Victorian public health sector organisations. The Commissioner was satisfied the document contained personal affairs information other than the applicant under section 33(1). The Commissioner determined disclosure of the personal affairs information of third parties would be not unreasonable having considered the context of the names being recorded in a professional capacity, and that disclosure would serve the public interest as it would provide greater public transparency relating to the agency’s response to the COVID-19 pandemic. The document was therefore granted in part.

‘DW3’ and Racing Victoria Limited (Freedom of Information) [2022] VICmr 1 (13 January 2022)

This decision relates to the agency’s decision to refuse access in full to an audio recording (the document) of a telephone call between the applicant and an agency officer which was in connection with the agency’s regulatory powers under the Racing Act 1958 (Vic). The agency claimed this document was exempt under section 38 of the FOI Act in conjunction with section 11(1) of the Surveillance Devices Act 1999 (Vic) (SD Act). Section 11 of the SD Act provides, in summary, that a person must not knowingly communicate or publish a record or report of a private conversation or private activity that has been made as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device. There are penalties associated with breaching this provision, including imprisonment.
The Public Access Deputy Commissioner considered the definition of a ‘listening device’ under the SD Act and determined that a mobile telephone is a listening decide for the purposes of the SD Act. With respect to the term ‘private conversation’, the SD Act defined it to mean ‘a conversation carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be heard only by themselves, but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it may be overheard by someone else’. The Commissioner accepted the agency officer recorded their conversation with the applicant in connection with their professional duties and obligations on behalf of the agency, and as such, considered an argument could be made that the conversation was not ‘private’. However, the Commissioner noted the legal precedents for a broad definition of ‘private conversation’. The Commissioner was ultimately satisfied the telephone call between the applicant and the agency officer constituted a ‘private conversation’ for the purposes of section 3 of the SD Act. Therefore, the Commissioner was satisfied the document was a record of a ‘private conversation’ that was made as a result of a listening device and is information to which the secrecy provision under section 11(1) of the SD Act applies. As such, section 38 applied to the document.

Read the extended summary of this decision.

‘DW5’ and City of Melbourne (Freedom of Information) [2022] VICmr 2 (11 January 2022)

This decision relates to the agency’s fresh decision to refuse access to CCTV footage depicting a motor vehicle incident in the Melbourne CBD, under section 25A(5), stating that should any documents exist they would be exempt from release under sections 29A(1C), 31(1)(a), 31(1)(d), 33 and 38 the FOI Act in conjunction with the Local Government Act 2020 (Vic) (LG Act).

The Public Access Deputy Commissioner was not satisfied that information in any relevant documents could reasonably be expected to endanger the security of a ‘premises’ for the purposes of 29A(1C) as it applied in conjunction with section 6 of the Emergency Management Amendment (Critical Infrastructure Resilience Act) Act 2014 (Vic).In considering the application of sections 31(1)(a) and 31(1)(d), the Commissioner was not satisfied the agency had established that disclosure of the requested footage would prejudice the enforcement or proper administration of the law in a particular instance (per section 31(1)(a)) or undermine procedures for preventing, detecting, investigating or dealing with matters arising out of breaches or evasions of the law would be prejudiced by disclosure of the requested footage (per section 31(1)(d)).

Further considering the application of section 33(1) to the likely content captured in any relevant CCTV footage, the Commissioner was not satisfied disclosure of all personal affairs information would be unreasonable. For similar reasons, the Commissioner was also not satisfied the entire content of any relevant CCTV footage would constitute ‘confidential information’ as defined by the section 125 of the LG Act and therefore any relevant document would not be exempt in full under section 38 of the FOI Act in conjunction with the LG Act. Accordingly, the Commissioner was not satisfied it was apparent from the face of the applicant’s request that all documents relevant would be exempt in full. As such, the agency was required to search for, identify and assess all documents relevant to the terms of the applicant’s request.

2021

November 2021

‘DW7’ and Commercial Passenger Vehicles Victoria (Freedom of Information) [2021] VICmr 330 (5 November 2021)

This decision relates to the agency’s decision to refuse access to 73 documents relating to the Multi Purpose Taxi Program expansion program under sections 28(1)(d), 30(1), 34(1)(b), 34(4)(a)(ii). According to the agency’s submission, the Multi-Purpose Taxi Program (MPTP) supports people with accessibility and mobility needs, by paying half the cost of each commercial passenger vehicle trip taken by a MPTP member, up to a total of $60, promoting accessibility in transport options for eligible members of the community.

Having considered the agency’s submission that certain data is collected on a confidential basis under the Commercial Passenger Vehicle Industry Act 2017, the Public Access Deputy Commissioner was not satisfied the provision within this Act was specific enough to be considered a secrecy provision and section 38 of the FOI Act did not apply. However, the Commissioner was satisfied certain information in the documents contained disclosures of a deliberation and decision of a subcommittee of cabinet and was therefore exempt under section 28(1)(d). Further a document was found to contain a submission to a subcommittee of cabinet and was therefore exempt under section 28(1)(b).

The Commissioner was satisfied the documents were prepared by agency officers and was of opinion that, advice or recommendation, as part of the agency’s deliberative process in undertaking a new program under section 30(1). The Commissioner was of the view disclosure of the documents would not be contrary to public interest as disclosure would serve the public interest by promoting public sector transparency, noting the matter would be of interest to members of the community. The Commissioner also noted that where the information is factual in nature or is publicly available disclosure is not sensitive nor would it have an impact on the agency.

The Commissioner was therefore satisfied the information deleted by the agency was not exempt under section 30(1). In relation to information deleted under section 34(1)(b), the Commissioner found that the documents contained information obtained from a business undertaking. However, the Commissioner was not satisfied the documents contained any proprietary information of that business undertaking nor that disclosure would expose the business undertaking to disadvantage and the documents were therefore not exempt under section 34(1)(b). Similarly, the Commissioner was not satisfied the agency was engaged in trade or commerce and thus the documents with information deleted under section 34(4)(a)(ii) were not exempt. The Commissioner determined to grant access to the documents in part.

October 2021

‘DW1′ and Swan Hill Rural City Council (Freedom of Information) [2021] VICmr 326 (29 October 2021)

This decision relates to the agency’s fresh decision to refuse access to documents relating to the Council’s purchase and acquisition of certain properties, under section 25A(5), stating that should any documents exist they would be exempt from release under sections 30(1) and 38 of the FOI Act in conjunction with the Local Government Act 2020 (Vic) (LG Act).

During the course of the review, the agency decided to make a fresh decision, in which it determined to conduct a search for, and process the documents, releasing further information. The applicant did not agree with the fresh decision. The agency’s fresh decision relied on the exemptions in sections 30(1), 33(1), 35(1)(b) and 38 to refuse access to the documents.

The Public Access Deputy Commissioner was satisfied that information in the documents was designated as confidential by the Chief Executive Officer and considered at a closed meeting and captured by the definition of ‘confidential information’ as defined by the LG Act. The Commissioner was therefore satisfied the information was confidential information as defined by the LG Act and exempt under section 38 of the FOI Act in conjunction with the LG Act.

Further considering the application of section 33(1) to the information in the documents, the Commissioner did not consider it unreasonable to release the names and contact details of persons where consent had been provided to disclose their personal affairs information. However, to release other personal affairs information regarding other unknown third parties was considered to be unreasonable. Therefore, certain information exempted under section 33(1) was found to be exempt under section 38 in conjunction with section 125 of the LG Act.

When considering whether the documents contained confidential information under section 35(1)(b), the Commissioner was satisfied the information was communicated with the expectation of confidence, however, was of the view release in these circumstances would not impair the agency’s ability to obtain similar information in the future. The information was therefore not exempt under section 35(1)(b). As the Commissioner was satisfied that the documents subject to review were exempt in full under section 38, it was not necessary to consider the application of section 30(1) to the documents.

‘DU4’ and Department of Families, Fairness and Housing (Freedom of Information) [2021] VICmr 311 (19 October 2021)

This decision relates to the agency’s refusal to grant access to three documents held by the agency under section 33(1). The documents are records relating to the applicant’s time as a ward of state, where 38 pages were refused in part from a total 318 pages. The agency then made a fresh decision and released more information.

The applicant sought review of the agency’s fresh decision. The Public Access Deputy Commissioner noted the requested documents came into existence more than five years prior to the commencement of the FOI Act, however, as the documents contain the personal affairs information of the applicant, the documents are subject to access under the FOI Act.

The Commissioner was satisfied the documents contained personal affairs information of persons other than the applicant under section 33(1). Acknowledging the applicant likely knows the identity of some of the third parties whose information appears in the document, the Commissioner determined disclosure of the personal affairs information of third parties would be unreasonable despite the passage of time, as the information remained sensitive. The Commissioner was therefore satisfied the disclosure of the information that relates to third parties would be unreasonable. The remaining documents were found not to be exempt under section 33(1).

‘DT7’ and Fire Rescue Victoria (Freedom of Information) [2021] VICmr 305 (13 October 2021)

This decision relates to the agency’s refusal to process the applicant’s request for access to emails containing key words between specified dates, under section 25A(1). The applicant specifically sought documents containing the words ‘uniform’, ‘senior officer’, ‘epaulette’ and ‘gold’. The agency requested the applicant to clarify the request regarding searches for the keywords contained in only the body of emails, subject lines of emails and/or attachments of emails. The applicant advised they sought documents containing the keywords in the bodies of emails, subject lines of emails and attachments. With a view to provide access, the agency invited the applicant to consider narrowing the request and consulting with the agency. The applicant narrowed the scope in line with the agency’s suggestions.

The agency made a decision to refuse access to the documents in accordance with section 25A(1) on grounds the work involved in processing the request would substantially and unreasonably divert the agency’s resources from its other operations. The Information Commissioner was satisfied the agency met the requirements of section 25A(6) having given written notice of the agency’s intention to refuse the request, however, was not satisfied the agency had provided the applicant with a reasonable opportunity to consult as required. The Commissioner determined the agency did not provide the applicant with a reasonable opportunity to consult and did not meet the requirements under section 25A(6). Accordingly, the requirements of section 25A(1) had not been satisfied and the agency was required to process the applicant’s request in accordance with the FOI Act.

September 2021

‘DP8′ and the Royal Children’s Hospital (Freedom of information) [2021] VICmr 270 (3 September 2021)

This matter relates to the agency’s decision to refuse access to the applicant’s child’s medical record. The applicant sought review of the agency’s decision to refuse access to the documents in part under the exemption in section 38. During the course of the review, the agency advised it instead sought to rely on section 35(1)(b).

The Information Commissioner noted that while information may be communicated to an agency from within, such matters are limited to internal relations of the agency like employment issues. The Commissioner was, however, not satisfied the denied information was obtained in confidence, noting the context in which the information was provided and the professional obligations on medical staff to provide their observations, advice or opinions during the provision of medical care. For this reason, the Commissioner instead considered the application of section 30(1) to the information. The Commissioner was satisfied the information in the document was opinion and advice prepared by agency officers engaged in the management and provision of healthcare to the applicant’s child.

The Commissioner was of the view disclosure would be contrary to the public interest as it would involve disclosing sensitive information relating to the applicant’s child such as the identification of risks and effective treatment. Agency officers need to be able to freely raise sensitive matters regarding the management of their patients and routine release of this information would undermine the robustness of the agency’s processes in providing patient care. As such, the Commissioner was satisfied the information exempted by the agency under section 35(1)(b) was instead exempt under section 30(1).

August 2021

‘DO6’ and Department of Jobs, Precincts and Regions (Freedom of Information) [2021] VICmr 259 (27 August 2021)

This decision relates to the agency’s refusal to grant access to a document under section 33(1). The document relates to details of State Government invitees to the 2021 Australian Open, including their names, the organisations they represent and by whom they were hosted.

Noting the agency’s submissions regarding the distinction between VPS executive and non-executive employees, as well as non-VPS individuals, the Information Commissioner was satisfied the document contained personal affairs information under section 33(1). However, the Information Commissioner determined it would not be unreasonable to disclose the personal affairs information in the document.

With respect to VPS employees, the Commissioner noted that the document sought is an official document of an agency and the officers are carrying out their employment duties. The information is recorded in the context of their professional roles rather than in a private capacity. With respect to individuals who are not public sector employees, the Commissioner recognised that while disclosure may impact the privacy of those individuals, the personal affairs information is not particularly sensitive, nor that the individuals would be subject to any adverse criticism or scrutiny and disclosure would not endanger the life and physical safety of any person.

The Commissioner also considered disclosure would serve a broader public interest, one of transparency and accountability in the practices of the public sector. The Commissioner was therefore satisfied the document is not exempt under section 33(1).

‘DO1′ and Department of Justice and Community Safety (Freedom of information) [2021] VICmr 254 (26 August 2021)

This matter relates to a decision to refuse access to documents relating to the agency’s final report into protective quarantine arrangements for prisoners in response to the COVID-19 pandemic. The applicant sought review of the agency’s decision to refuse access to a document in part under the exemption in section 30(1).

The Public Access Deputy Commissioner was satisfied the document was prepared by agency officers and contained opinion, advice or recommendation which was prepared as part of the agency’s deliberative process in undertaking its functions under the Corrections Act 1986 (Vic). Having considered the applicant’s and the agency’s submissions, the Commissioner was of the view that disclosure would serve the public interest by promoting public sector transparency, noting the matter is of significant interest to members of the community. The Commissioner found that the disclosure of the document would not cause confusion or promote ill-informed debate about the options considered at that point in time, noting rather, such arguments underestimate the capacity of the public to understand the deliberative nature of public policy making.

The Commissioner determined that there is a public interest in disclosure of the relevant information so the public can be fully informed the agency is taking relevant matters into consideration in relation to protective quarantine arrangements implemented by the agency in prisons. The Commissioner was therefore satisfied the information deleted by the agency was not exempt under section 30(1) and access to the document was granted in full.

July 2021

‘DJ5’ and Victorian Commission for Gambling and Liquor Regulation (Freedom of Information) [2021] VICmr 213 (2 July 2021)

This decision relates to the agency’s refusal to grant access to policy and advice documents relating to Crown Casino’s reporting, regulatory and auditing responsibilities. The agency relied on the exemptions in sections 30(1) and 38 in conjunction with the Gambling Regulation Act (GR Act) to refuse access to the documents in full. Documents 3 to 12 were not provided to OVIC on the grounds that the agency was prohibited under the GR Act.

The Public Access Deputy Commissioner considered whether the agency can be compelled to produce a copy of the document subject to review by the Commissioner, noting the relevant section in the GR Act states that a protected person may disclose protected information to a court. The Commissioner was satisfied the broad definition of ‘court’ encompasses the Commissioner and has the power to compel the agency to produce a document. The agency had no express obligation to seek certification from the Minister or authorisation from Crown Casino to disclose the protected information to the Commissioner.

Ultimately, the review was limited to the documents that were provided to OVIC for review (Documents 1 and 2). After consideration of the agency’s submissions, the Commissioner was not satisfied Documents 1 and 2 were exempt under section 30(1) as their release would not be contrary to the public interest, rather, their disclosure would promote the public interest in greater transparency of casino regulation. Further, the Commissioner was not satisfied Document 1 was exempt under section 38 in conjunction with the GR Act as it concerns the agency’s regulatory functions and does not contain prohibited information protected from disclosure under the GR Act. The Commissioner was, however, satisfied that the personal affairs information of agency officers was unreasonable to release and it was therefore exempt under section 33(1).

‘DJ3′ and Department of Health (Freedom of information) [2021] VICmr 211 (2 July 2021)

This decision relates to the agency’s refusal to grant access to a document created by the agency under section 19, based on its reliance on the exemption in section 33(1). The document contained details relating to deaths resulting from COVID-19 for a specific date range and positive PCR test details.

Having regard to the applicant’s submission that they seek to form an accurate timeline of COVID-19 related deaths, the Public Access Deputy Commissioner was satisfied the document contained personal affairs information under section 33(1) which was sensitive. As information related to a deceased person’s date and location of death due to COVID-19, it was considered to be personal and sensitive in nature with a potential for reidentification.

The Commissioner further noted the effects that broader disclosure of the document would have on the privacy of the deceased persons and their next of kin and family members. The Commissioner was therefore satisfied the disclosure of the dates of death in the document would be unreasonable, and as it was practicable to delete the exempt information, it was determined that the document was exempt in part under section 33(1).