Tucker v Commissioner of State Revenue (Review and Regulation) [2019] VCAT 2018 (19 December 2019)

In this matter, the Victorian Civil and Administrative Tribunal (the Tribunal) simultaneously decided five review applications. President Justice Quigley considered the exemptions contained in sections 25, 30, 31, 32, 33, 34 and 38 of the Freedom of Information Act 1982 (Vic) (the FOI Act). Due to the volume of documents subject to the review, the Tribunal assessed a sample of documents.

For four of the five review applications, the Tribunal held all of the documents in question were exempt under the FOI Act, except for the details of executives and senior staff members. In relation to the fifth review application, the Tribunal set aside the Public Access Deputy Commissioner (the Commissioner)’s review decision. You can read the Tribunal’s decision here.

Facts and Background

Tobias John Tucker (the Applicant) was an employee of the Commissioner for State Revenue (the Respondent) at the time of the hearing. The Applicant claimed he sought the documents subject to the five review applications to allow him to complain to various investigative bodies about the processes, procedures and conduct of the Respondent.

Printer Privacy Breach

In July 2017, the Respondent’s printer, an external contractor, sent land tax notices to the wrong recipients. After becoming aware of this privacy breach, the Respondent notified relevant Government bodies, issued a media release and gave media interviews. The Respondent also engaged external lawyers to advise it on the handling and ramifications of the privacy breach. It has not used the printer to date.

Two of the Applicant’s FOI requests related to the printer’s privacy breach (the First and Second Printer Privacy Breach Requests). The Applicant sought review by the Tribunal of the review decisions on the First and Second Printer Privacy Breach Requests.

The Applicant then made a third FOI request about the way the Respondent processed the First and Second Printer Privacy Breach Requests (the FOI on FOI Requests). After the Respondent decided the FOI on FOI Requests, the Applicant applied to the Office of the Victorian Information Commissioner for review of the decision. The Respondent subsequently sought review of the Commissioner’s decision by the Tribunal.

Legal Services Review

In December 2014, the Respondent commissioned an external review of its Legal Services Division in order to improve the operation of the branch.

Two of the Applicant’s FOI requests related to this external review (the First and Second Legal Services Review Requests). The Applicant sought review by the Tribunal of the Respondent’s review decisions on the First and Second Legal Services Review Requests.

The Tribunal decided the five review applications simultaneously.

Tribunal Decision

Section 30 – Internal working documents

The Respondent applied section 30 of the FOI Act to internal emails, draft documents, emails between the Respondent and the printer in relation to the printer privacy breach and file notes, meeting agendas and minutes relating to the printer privacy breach meetings and minutes relating to the legal services review. The Respondent also asserted it would be contrary to the public interest to grant access to the documents.

The Applicant argued many of the documents contained communications of purely factual nature, such as internal directions, monetary amounts in invoices and requests for quotations, statistical information relating to litigation and descriptive accounts of the privacy breaches, and therefore section 30 of the FOI Act ought not to apply. The Applicant also asserted the staff of the printer involved in the printer privacy breach are not ‘officers’ of the Respondent and suggested that the section 30 exemption had been applied inconsistently.

The Tribunal found all the sample documents were captured by section 30 of the FOI Act. For example, the Tribunal held an email attaching a version of a letter (of which the final version was subsequently released) contained material in ‘the nature of opinion, advice or recommendation’ prepared by the Respondent’s officers in the course of the Respondent’s deliberative processes. As such, the Tribunal held it would contrary to the public interest to release that draft document because it would inhibit staff from communicating this way, in keeping full and complete records, in the future.

The Tribunal also found the external parties were in fact ‘officers’ in the sense used in the FOI Act. Therefore, President Justice Quigley held the remainder of the sample documents were internal working documents captured by section 30 of the FOI Act and that it would be contrary to the public interest to release them.

Section 31 – Law enforcement documents

The Respondent submitted the disclosure of documents would be likely to prejudice the proper administration of the Taxation Administration Act 1997 (Vic) (TA Act) and the Land Tax Act 2005 (Vic) (LT Act) because the documents contained information about confidential SRO taxation systems, known only by Respondent staff.

The Applicant submitted the Respondent failed to provide tangible evidence about how disclosure of the documents would prejudice administration of the TA Act. He also characterised section 31 of the FOI Act as ‘being directed to particular types of matters run by law enforcement agencies, such as formal forensic investigations run by the police and counter-terrorism agencies’.

The Tribunal found some of the documents did not disclose information exempted by section 31. The Tribunal noted those documents were instead captured by sections 30 and 38.

However, the Tribunal held an email between the Respondent and the printer to be properly exempt under section 31, noting section 30 would simultaneously apply. The tribunal also found another document to be properly exempt because it contains information about internal work practices in relation to the administration of taxation laws. The Tribunal upheld the Respondent’s decision not to release any of these documents.

Section 38 – Documents to which secrecy provisions of enactments apply

The Respondent submitted that the ‘customers’ affected by the printer privacy breach were land tax customers. The Respondent collects information from taxpayers and other sources of the administration of land tax. The TL Act and its Regulations, and the TA Act and its Regulations, were submitted to apply to the administration of these matters.

The Tribunal was satisfied the sample documents contained information that attracted section 91 of the TA Act. The Tribunal accepted that section 91 of the TA Act was a secrecy provision that enlivened section 38 of the FOI Act and thus exempted the documents.

Section 32 – Documents affecting legal proceedings 

The Tribunal held one of the documents relating to the printer privacy breach was not created for the “dominant purpose” of obtaining legal advice or defending contemplated litigation. Rather, the Tribunal stated that document related to the operations of the Respondent and its processes and is already subject to exemption by reason of sections 30, 31 and 38. However, the Tribunal found other documents did meet the dominant purpose test because they were intended to be confidential and remained so. The Tribunal upheld the Respondent’s decision not to release any of these documents.

Section 33 – Documents affecting personal privacy

The Tribunal found there is no reason why the names of senior Respondent staff should not be disclosed. For the purposes of release, the Tribunal held ‘senior personnel’ to include executive level staff, branch managers, and any individuals in an ‘acting’ role in an executive or branch managerial capacity. However, the Tribunal agreed with the Respondent that the telephone numbers and email addresses of senior personnel should be exempt.

Section 34(1) – Documents relating to trade secrets

The Tribunal noted in circumstances were the printer’s error was publicly acknowledged, the claim that the name of the printer should be exempt under section 34(1)(a) or (b) was difficult to substantiate. The Tribunal found the information in the documents could be disclosed without exposing the undertaking to disadvantage because the error was publicly known.

Similarly, the Tribunal found the identify of the printer or the print manager should not be exempt under section 34. However, the Tribunal found those documents were exempt under section 33, 30 and 38.

The only document the Tribunal found exempt under section 34 was the State Purchase Contract for the Provision of Print Management and Associated Services.

Section 50(4) – Public interest override

The Tribunal did not accept the public interest override test was met for any of the documents.

Conclusion

The Tribunal substantially upheld the exemptions claimed by the Respondent, save for the release of details of executives and branch managers, including acting executives and branch managers.