‘DZ5’ and Department of Justice and Community Safety (Freedom of Information) [2022] VICmr 23 (18 May 2022)

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

Notice of Decision

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

I am satisfied sections 31(1)(a), 31(1)(d), 33(1) apply to information in the documents. Given my decision on the application of sections 31(1)(a) and 31(1)(d), I have not considered the application of section 31(1)(e).

However, my decision on the Applicant’s request differs from the Agency’s decision as I have decided to release additional information in Document 8.

As I am satisfied it is practicable to provide the Applicant with an edited copy of the documents with exempt information deleted in accordance with section 25, access to documents is granted in part.

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

My reasons for decision follow.

Joanne Kummrow

Public Access Deputy Commissioner

18 May 2022

Reasons for Decision

Background to review

1. The Applicant made two requests to the Agency requesting access to documents.
2. With the Applicant’s agreement, the requests were combined. Accordingly, the Applicant seeks access to:
   1. Proof and certificates of training of camera operator
   2. Full history of camera car [registration plate], including software faults, GPS failures and obscured registration plates for 3 months prior and 3 months after the infringement date
   3. Camera operator’s log for the week before and after infringement date [date]
   4. How many fines removed due to software faults, GPS failures, obscured registration plates and double doppler for 3 months prior and 3 months after the infringement date.
3. In its decision, the Agency identified two documents falling within the terms of the Applicant’s request. It decided to grant access to one document in part and refuse access to the other document in full. No documents were located in response to points 2 and 4 of the Applicant’s request. The Agency relied on sections 31(1)(a), 31(1)(d) and 33(1) to refuse access to the documents. The Agency’s decision letter sets out the reasons for its decision.

Review application

4. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.

Adequacy of document search complaint

5. Alongside their review application, the Applicant made a complaint to OVIC under section 61A(1)(a) of on grounds the Agency failed to conduct a thorough and diligent search for documents in response to points 2 and 4 of the Applicant’s request.
6. In accordance with section 61B(3), OVIC determined to address these concerns as part of this review.
7. OVIC made inquiries with the Agency regarding the Applicant’s concerns and provided the Agency’s interim response to the Applicant for their consideration.

Agency’s intended fresh decision

8. Section 49M(1) permits an agency to make a fresh decision on an FOI request during a review.
9. On [date], the Agency notified OVIC and the Applicant of its intention to make a fresh decision.
10. Section 49M(2) requires an agency to make its fresh decision 28 days after notifying the applicant and the Information Commissioner of its intention to do so, unless the agency and the Information Commissioner agree to an extension of time.
11. On [date], the Agency provided the Applicant with its intended fresh decision. The decision was made outside of the statutory timeframe required under section 49M(2) and is therefore not a valid decision under the FOI Act.
12. In its intended fresh decision, the Agency located nine documents, totalling 115 pages, seven documents more than considered in its original decision. This includes documents falling within the terms of point 2 of the Applicant’s request. The intended fresh decision also advised that no documents could be located in response to point 4 of the Applicant’s request.
13. The Agency granted access to the documents in part, relying on the exemptions under sections 31(1)(a), 31(1)(d), 31(1)(e) and 33(1) to refuse access to information. The Agency provided the Applicant with edited copies of the documents and released further information, including in the additional documents located.
14. As a fresh decision was not made within the statutory timeframe, I am required to resume my review based on the Agency’s original decision in accordance with section 49MA(3).
15. In conducting a review under section 49F, section 49P requires that I make a new or ‘fresh decision’. Therefore, my review does not involve determining whether the Agency’s decision is correct, but rather requires my fresh decision to be the ‘correct or preferable decision’.[1] This involves ensuring my decision is correctly made under the FOI Act and any other applicable law in force at the time of my decision.
16. Accordingly, while my review is of the original decision made by the Agency, I have also reviewed the additional documents identified by the Agency and taken into consideration the Agency’s intended fresh decision. In this regard, I note the Agency agreed to the release of further documents to the Applicant and relies on the application of exemptions to refuse access to the documents located under its original decision.
17. In these circumstances, I am satisfied the Applicant’s concerns regarding the adequacy of the Agency’s document searches have been addressed through its additional document searches and no further action is required as I am satisfied the Agency has conducted a thorough and diligent search for documents.

Review

18. I have examined a copy of the nine documents subject to review.
19. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review and I have considered all communications and submissions received from the parties.
20. In undertaking my review, I have had regard to the object of the FOI Act, which is to create a general right of access to information in the possession of the Government or other public bodies, limited only by exceptions and exemptions necessary to protect essential public interests, privacy and business affairs.
21. I note Parliament’s intention the FOI Act must be interpreted so as to further the object of the Act and any discretions conferred by the Act must be exercised, as far as possible, so as to facilitate and promote the disclosure of information in a timely manner and at the lowest reasonable cost. 

Review of exemptions

Sections 31(1)(a) and 31(1)(d) – Disclosure of documents that would prejudice the enforcement or proper administration of the law or would disclose methods for preventing, detecting, investigating breaches of the law

22. Section 31(1)(a) provides a document is exempt if its disclosure under the FOI Act would, or would be reasonably likely to, prejudice the investigation of a breach or possible breach of the law, or prejudice the enforcement or proper administration of the law in a particular instance.
23. Section 31(1)(d) provides a document is exempt if its disclosure would, or would be reasonably likely to, ‘disclose methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures’.
24. ‘Reasonably likely’ means there is a real chance of an event occurring; it is not fanciful or remote.^[2]
25. ‘Prejudice’ means to hinder, impair or undermine and includes actual prejudice as well as impending prejudice.^[3]
26. ‘In a particular instance’ does not require a single specific investigation. This phrase can encompass specific, identified aspects of law, administration of law or investigations of breaches or potential breaches of law.^[4]
27. The exemptions in section 31(1) do not apply to widespread and well known law enforcement or investigation methods and procedures.^[5]
28. In relation to the application of section 31(1)(d), the Agency’s intended fresh decision states:

The documents exempt under this section comprises information that is not in the public domain as it relates to the procedures and processes for the set-up of the mobile digital photographic speed detection device, camera equipment and ancillary equipment. It also contains images of the components and equipment, wiring locations and where the components are located when the mobile speed detection device and camera are set up.

The release of this material would disclose methods and procedures used in detecting potential breaches of the law and would allow someone with the appropriate knowledge to undermine the effectiveness of the system. Furthermore, the disclosure of this information could lead to interference with, or damage to, camera sites and equipment.

29. In Cichello v Department of Justice,[6] (Cichello) the Victorian Civil and Administrative Tribunal (VCAT) accepted sworn evidence in relation to the location and design of traffic cameras and camera testing in considering whether such information is exempt under sections 31(1)(a) and/or 31(1)(d). The decision states:

I accept that public release of the site diagram revealing the specific location of the infrastructure would unfortunately lead to an increase in deliberate damage to that infrastructure. This would prejudice the respondent’s capacity to detect the speed of vehicles and enforce speed limits. I am also satisfied that, if the specific location of the infrastructure were publicly known, that there is a reasonable likelihood that some drivers would use such information to attempt to avoid detection for offences under the Road Safety Act 1986. I accept that this would prejudice the operation and enforcement of the Road Safety Act 1986. It would thereby undermine the administration of the law. It would hinder the detection of individual offences. Accordingly, the disclosure would be reasonably likely to prejudice the effectiveness of the road safety camera system. The site diagram is exempt.

I accept that release of information revealing what is monitored and the test equipment used would similarly facilitate evasion of the road rules by some drivers. I accept that it could in some instances lead to (dangerous) methods of camera avoidance (jeopardizing the safety of road users). I accept that the release of what is monitored and the test equipment would in these circumstances be reasonably likely to prejudice the effectiveness of the road safety devices. I also accept that it would be reasonably likely to prejudice the proper administration of the road laws. It would undermine the administration of the law or the detection of individual offences. Accordingly, the disclosure would be reasonably likely to prejudice the effectiveness of those methods or procedures. What is monitored and the test equipment used are exempt.

[Emphasis in original]

30. VCAT also accepted sworn evidence that descriptions of particular systems in use was not known by the public, and therefore release of such information would render the system prone to vandalism or evasion.[7] Further, it was accepted that photographs of the site or road safety equipment would also render the system prone to vandalism and evasion, as it would show the complete system in use which is not known by the public.[8] It was concluded disclosure of certain information would give great insight into the operational aspects of the camera road safety system and the means by which it may be evaded or deliberately interfered with.[9]
31. I have generally accepted the Agency’s submission in this matter and consider its decision is supported by the Cichello decision, noted above. I agree the documents contain significant technical detail relating to law enforcement methods and procedures that are not widespread or well known, including similar types of information as considered in Cichello.
32. Where the information is less precise, such as the make and model of the car, I am also satisfied that disclosure would be reasonably likely to prejudice the effectiveness of the road safety cameras or the proper administration of the Road Safety Act 1986 (Vic) and related laws on the basis that the information may be widely distributed, as permitted by the Act, and allow drivers to use the information to avoid road safety cameras. While this type of information was not considered in Cichello, I am satisfied VCAT’s reasoning extends to this information.
33. I also note the Agency’s submission in relation to road safety and its view the release of the documents in this matter would be reasonably likely to undermine the road safety camera program which is an important public safety campaign designed to enhance road safety and change driver behaviour.
34. Accordingly, I am satisfied disclosure of certain information in the documents is reasonably likely to prejudice the investigation of breaches of the law and the administration of the Road Safety Act 1986 (Vic) and related laws. I am also satisfied disclosure of certain information in the documents would disclose methods and procedures used by the Agency to detect breaches of road safety laws, the disclosure of which would be reasonably likely to, prejudice the effectiveness of those methods or procedures.
35. Therefore, I am satisfied certain information in the documents is exempt from release under sections 31(1)(a) and 31(1)(d).
36. The Schedule of Documents in Annexure 1 sets out my decision in relation to sections 31(1)(a) and 31(1)(d).

Section 33(1) – Documents affecting personal privacy of third parties

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

1. 1. disclosure of the document under the FOI Act would ‘involve’ the disclosure of information relating to the ‘personal affairs’ of a person other than the Applicant (a third party); and
   2. such disclosure would be ‘unreasonable’.

Do the documents contain the ‘personal affairs information’ of a third party?

38. Information relating to a third party’s ‘personal affairs’ includes, but is not limited to, information that identifies any person, or discloses their address or location. It also includes any information from which such information may be reasonably determined.^[10]
39. Personal affairs information that relates to a third party ‘concerns or affects that person as an individual’.^[11]
40. A document will disclose personal affairs information if it is capable of, either directly or indirectly, identifying a particular individual whose personal affairs are disclosed. As the nature of disclosure under the FOI Act is unrestricted and unconditional, this is to be interpreted by the capacity of any member of the public to potentially identify a third party. ^[12]
41. I am satisfied the documents subject to review contain the personal affairs information of third parties, including the names, telephone numbers and email addresses of third party service providers, as well as the names, telephone numbers, email addresses and signatures of Agency officers who operate the cameras.

Would disclosure of the personal affairs information in the documents be unreasonable?

42. The concept of ‘unreasonable disclosure’ involves balancing the public interest in the disclosure of official information with the protection of a third party’s right to privacy in the particular circumstances.
43. In Victoria Police v Marke,^[13] the Victorian Court of Appeal held there is ‘no absolute bar to providing access to documents which relate to the personal affairs of others’, and the exemption under section 33(1) ‘arises only in cases of unreasonable disclosure’ and ‘[w]hat amounts to an unreasonable disclosure of someone’s personal affairs will necessarily vary from case to case’. The Court further held, ‘[t]he protections of privacy, which lies at the heart of s 33(1), is an important right that the FOI Act properly protects. However, an individual’s privacy can be invaded to a lesser or greater degree’.[14]
44. In determining whether disclosure of the personal affairs information in the documents would be unreasonable in this matter, I have considered the following factors:
45. 1. The nature of the personal affairs information and the circumstances in which the information was obtained by the Agency

Whether the personal affairs information of an agency officer is exempt under section 33(1) must be considered in the context of each matter.[15] It has been held there is nothing particularly sensitive about matters occurring or arising in the course of one’s official duties and disclosure of this type of information is generally considered not unreasonable.[16]

Subject to special circumstances, I consider it would not be unreasonable to disclose the name of an agency officer, regardless of their seniority, where a document sought is an official document of an agency and records an agency officer carrying out their usual employment duties and responsibilities in a professional context.

However, in some instances, where personal affairs information does not provide further information about government decision making, I consider this factor to weigh against disclosure. In this particular matter, release of personal affairs information contained in the documents does not provide further information about government decision making nor provide any further accountability of government processes.

1. 2. The Applicant’s interest in the information

The FOI Act provides a general right of access that can be exercised by any person, regardless of their motive or purpose for seeking access to a document. However, the reasons why an applicant seeks access to a document may be a relevant consideration in determining whether disclosure would be unreasonable.[17]

I acknowledge the Applicant’s personal interest in this matter, noting a traffic infringement was issued to the Applicant.

1. 3. Whether any public interest would be promoted by release of the information

In support of their review, the Applicant submits an article was published in a newspaper alleging inaccuracies with speed cameras and inadequately trained camera operators. The Applicant has also raised serious allegations against the Agency.

In the circumstances, while it may be the Applicant has a personal interest in obtaining a full copy of the documents with personal affairs information disclosed, I do not consider there is a broader public interest that would be served by disclosure of the personal affairs information in the documents concerning camera operators or other Agency officers.

It is open to the Applicant to raise their concerns regarding alleged corruption to the relevant oversight body.

1. 4. Whether the individuals to whom the information relates object, or would be likely to object, to the disclosure of the information

The Agency determined it was not practicable to consult with the relevant third parties as to their views on disclosure of their personal affairs information in accordance with section 33(2B).

While I do not have information before me as to the views of the other third parties, on the information available, I am of the view it is reasonably likely they would object to the release of their personal affairs information under the FOI Act in the circumstances of this matter.

1. 5. Whether the disclosure of information would, or would be reasonably likely to endanger the life or physical safety of any person[18]

I am also required under section 33(2A) to consider whether disclosure of the personal affairs information would, or would be reasonably likely, to endanger the life or physical safety of any person. The term ‘any person’ is broad and extends to any relevant endangerment involving the safety of an applicant, a related third party or any other person.

In considering this factor, I note VCAT has held physical safety is not concerned solely with actual safety, but also with the perception of a person as to whether he or she is safe.[19] Similarly, VCAT has held the author of a document may have a perception of fear if their personal information in the document were to be disclosed.[20]

Having reviewed the Agency’s submission, I consider this is a relevant factor when assessing whether disclosure of the personal affairs information in the documents to the Applicant would be reasonable in this case.

In particular, I note in Cichello, it was accepted that some members of the public feel the need to act aggressively towards people who maintain and install road safety equipment.[21]

45. Having weighed up the above factors, on balance, I am satisfied disclosure of the personal affairs information in the documents would be unreasonable.
46. Accordingly, I am satisfied the personal affairs information in the documents is exempt from release under section 33(1).
47. My decision in relation section 33(1) is set out in the Schedule of Documents in Annexure 1.

Section 31(1)(e) – Disclosure of documents that would endanger the life or physical safety of a confidential source of information or person engaged in law enforcement

48. Section 31(1)(e) provides a document is an exempt document if its disclosure would, or would be reasonably likely to, ‘endanger the lives or physical safety of persons engaged in or in connection with law enforcement or persons who have provided confidential information in relation to the enforcement or administration of the law.
49. Given my findings in relation to the application of sections 31(1)(a), 31(1)(d) and 33(1), it is not necessary for me to consider this additional exemption.

Section 25 – Deletion of exempt or irrelevant information

50. Section 25 requires an agency to grant access to an edited copy of a document when it is practicable to delete exempt or irrelevant information and the applicant agrees to receiving such a copy.
51. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’^[22] and the effectiveness of the deletions. Where deletions would render a document meaningless, they are not ‘practicable’, and release of the document is not required under section 25.^[23]
52. I have considered whether it is practicable to provide the Applicant with an edited copy of the documents with exempt information deleted in accordance with section 25. Where I am satisfied it is practicable to do so, I have determined to release the document in part.

Conclusion

53. On the information before me, I am satisfied the documents are exempt from release under sections 31(1)(a), 31(1)(d) and 33(1) in part.
54. Where I am satisfied it is practicable to delete exempt information from the documents in accordance with section 25, I have determined to release those documents in part.
55. The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.

Review rights

56. If either party to this review is not satisfied with my decision, they are entitled to apply to VCAT for it to be reviewed.^[24]
57. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[25]
58. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[26]
59. Information about how to apply to VCAT is available online at www.vcat.vic.gov.au. Alternatively, VCAT may be contacted by email at admin@vcat.vic.gov.au or by telephone on 1300 018 228.
60. The Agency is required to notify the Information Commissioner in writing as soon as practicable if either party applies to VCAT for a review of my decision.^[27]

When this decision takes effect

61. My decision does not take effect until the Agency’s 14 day review rights period expires.
62. If a review application is made to VCAT, my decision will be subject to any VCAT determination.

Annexure 1 – Schedule of Documents

Endnotes

[1] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 591.

[2] Bergman v Department of Justice Freedom of Information Officer (Bergman) [2012] VCAT 363 at [65], quoting Binnie v Department of Agriculture and Rural Affairs [1989] VR 836.

[3] Ibid, Bergman at [66], referring to Sobh v Police Force of Victoria [1994] VicRp 2; [1994] 1 VR 41 (Nathan J) at [55].

[4] Cichello v Department of Justice (Review and Regulation) [2014] VCAT 340 at [24].

[5] XYZ v Victoria Police [2010] VCAT 255 at [177].

[6] (Review and Regulation) [2014] VCAT 340 at [40]-[41].

[7] Ibid at [50].

[8] Ibid at [51].

[9] Ibid at [52].

[10] Section 33(9).

[11] Hanson v Department of Education & Training [2007] VCAT 123.

[12] O’Sullivan v Department of Health and Community Services (No 2) [1995] 9 VAR 1 at [14]; Beauchamp v Department of Education [2006] VCAT 1653 at [42].

[13] [2008] VSCA 1653 at [42].

[14] [2008] VSCA 218 at [79].

[15] Coulson v Department of Premier and Cabinet (Review and Regulation) [2008] VCAT 229.

[16] Re Milthorpe v Mt Alexander Shire Council (1997) 12 VAR 105.

[17] Victoria Police v Marke [2008] VSCA 218 at [104].

[18] Section 33(2A).

[19] O’Sullivan v Police (Vic) (2005) 22 VAR 426; [2005] VCAT 532 at [19].

[20] Morse v Building Appeals Board (No 2) [2007] VCAT 2344 at [15].

[21] Cichello v Department of Justice (Review and Regulation) [2014] VCAT 340 at [33].

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

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

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

[25] Section 52(5).

[26] Section 52(9).

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