‘AI8’ and Manningham City Council (Freedom of Information) [2019] VICmr 80 (16 August 2019)

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

Notice of Decision

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

My decision on the Applicant’s request differs from the Agency’s decision in that I have decided to release additional information in the documents.

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

My reasons for decision follow.

Joanne Kummrow

Public Access Deputy Commissioner

16 August 2019

Reasons for Decision

Background to review

1. The Applicant made a request to the Agency seeking access to the following documents:

Information regarding the fine imposed on the owner of  [specified address]for having [nature of complaint]. I believe this fine was imposed between [date range]. Please supply

1. 1. Officer report
   2. Original complaint
   3. Council decision

Information regarding the [nature of complaint] in the street in front of [specified address]. Please supply

1. 1. Original complaint
   2. Report by visiting officer
   3. Feedback to original complaint

Information regarding the [nature of complaint]at  [specified address]

1. 1. Original complaint
   2. Visiting officer report
   3. Current status
   4. Any appropriate information regarding this case

2. In its decision, the Agency identified six documents falling within the terms of the Applicant’s request. It decided to grant access to one document in full and refuse access to five documents in full.

Review

3. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access to five documents.
4. I have examined copies of the documents subject to review.
5. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.
6. I have considered all communications and submissions received from the parties, including:

• 1. the Agency’s decision on the FOI request;
  2. the Applicant’s submission dated 19 March 2019 and information provided with the Applicant’s review application;
  3. the Agency’s submissions dated 25 March 2019 and 17 June 2019; and
  4. all other communications between OVIC staff and the Applicant.

Submissions

Applicant’s submission

7. The Applicant provided the following information in [the Applicant’s] submission:

… In each of the requests no person has ever contacted me to tell me of their issue. The first I have heard of all these issues is when the council contacted me. I am a very reasonable person and a discussion of the above would have resolved the issue. If such a discussion had taken place no council resources would have be used saving money [sic].

…. these complaints have given me an unnecessary high level of stress and anxiety.

…. By refusing to provide information you are promoting the practice of people complaining to council without first making contact. This means that more and more council resources are required to resolve trivial issues.

Agency’s submission

8. In relation to the application of section 33(1), the Agency submitted:

• 1. The five documents contain information provided by the third-party complainant to Council regarding alleged breaches of Council’s Local Laws. …
  2. The information from the third party complainants by Council was treated as a confidential complaint, as they detail alleged breaches of Council’s local laws.
  3. The Customer Feedback System marked these complaints as “confidential” which restricts access to only those with the appropriate security access permissions.
  4. The information contained in these documents are not available in the public domain.
  5. Disclosure of a confidential complaint or other material obtained in confidence would be likely to impair ability to receive similar information [sic].
  6. If it became known that details of the complainants were subsequently disclosed to other third parties, including the respondent to the complaint, it would make members of the public less likely to report similar issues in the future to Council.
  7. All three complaints are considered closed.
  8. The Applicant has stated their intended purpose in seeking these documents is to identify those who made the various complaints against [the Applicant] …. [The Applicant] stated that [they] were not seeking vengeance, but wanted to confirm the identify of the complainants based on [the Applicant’s] suspicions. [The Applicant] also noted  [their] displeasure in people reporting things to Council, rather than speaking directly to [the Applicant].
     1. With regards to the [year] [nature of complaint] complaint, [the Applicant] wanted to confirm if it was a friend of [the Applicant] so as to determine [the Applicant’s] continued friendship with that individual;
     2. With regards to the [year] [nature of complaint] complaint, [the Applicant] wanted to confirm if it was a particular neighbour who was moving out of the neighbourhood in [month and year].
  9. Disclosure of the complaint details would not achieve the applicant’s purpose.
  10. There is a possibility of further disclosure of the information, based on the applicant’s intended purpose, including the possibly to confront one or more of the complainants.

9. In relation to the application of section 35(1)(b), the Agency submitted:

• 1. The five (5) documents relate to three separate complaints received by Council relating to alleged breaches of Council’s local laws.
  2. All three complaints are marked as “confidential” on the Customer Feedback System.
  3. Consultation with Council’s City Compliance team confirmed that these types of complaints are received and treated in confidence by Council;
  4. The applicant is aware of the general nature of these three complaints, being the respondent in all three complaints.
  5. The applicant is not aware of who made those complaints or the specific details that may have been provided by the complainants; …
  6. Disclosure of anonymous or confidential complaints involving neighbour disputes and alleged local laws breaches would impair Council’s ability to receive similar information in the future.
  7. This is on the basis that third-parties would be reluctant to submit confidential or “anonymous” complaints to Council if they were subsequently disclosed to the respondent in such detail so as to allow individuals to identify the complainant or to ascertain the complainant’s identify for the complaint details, despite anonymity.
  8. This would in turn impact Council’s ability to investigate or respond to alleged breaches of Council’s Local Laws and other related matters.

10. In undertaking my review, I have had regard to the object of the FOI Act, which is to create a general right of access to information in the possession of the Government or other public bodies, limited only by exceptions and exemptions necessary to protect essential public interests, privacy and business affairs.

Review of exemptions

11. The Agency originally relied on the exemptions under sections 31(1)(c), 33(1) and 35(1)(b) to refuse access to the documents. The Agency’s decision letter sets out the reasons for its decision.
12. On 17 June 2019, the Agency advised it no longer relies on the exemption under section 31(1)(c).
13. As the Agency no longer relies on section 31(1)(c), my review focuses on the Agency’s decision to refuse access under sections 33(1) and 35(1)(b).

Section 35(1)(b)

14. The Agency refused access to certain documents in full under section 35(1)(b).
15. A document is exempt under section 35(1)(b) if two conditions are satisfied:
    1. disclosure would divulge information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister; and
    2. disclosure would be contrary to the public interest as it would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.
16. Whether an individual communicated information in confidence is a question of fact.[1]
17. The documents consist of complaints made by third parties to the Agency and action taken by the Agency concerning the complaints. Each of the complaints concern the Applicant.
18. From my review of the documents, there is nothing on the face of some of the documents to indicate the information was provided to the Agency in confidence. However, a document does not need to be marked ‘confidential’ for its contents to be considered to have been communicated in confidence.[2] Confidentiality can be express or implied from the circumstances of a matter.[3]
19. When determining whether information was communicated in confidence, it is necessary to consider the position from the perspective of the communicator.[4] I have carefully considered information in the documents, in particular, from the perspective of the third parties who made the complaints to the Agency.
20. Section 35(1)(b) may apply if I am satisfied the information was communicated in circumstances that would give rise to an expectation of confidentiality, and that its disclosure would be contrary to the public interest.
21. Having reviewed the documents and taking into account information provided by the Applicant and the Agency, I am satisfied the third parties made their complaints in circumstances in which confidentiality can reasonably be implied based on the nature and context of the relevant information provided to the Agency.
22. I consider, more often than not, complaints are communicated to the Agency with an expectation of confidentiality by the provider of the information. This is particularly so given the Agency may take adverse regulatory action against another party arising from a complaint made by the third party. Full disclosure of the documents would therefore divulge information communicated in confidence.
23. However, parts of the documents contain information that details action taken by the Agency and the category of the complaint. I do not accept this information was communicated in confidence for the purposes of section 35(1). Therefore, information of this kind in the documents does not meet the first limb of section 35(1)(b).
24. The second limb of section 35(1)(b) requires an agency to determine whether disclosure of a document would be reasonably likely to impair the agency’s ability to obtain similar information in the future. I note the exemption will not be made out if an agency’s impairment goes no further than showing the potential providers of the information may be less candid than they would otherwise have been.[5]
25. The public interest test in section 35(1)(b) is narrow, in that it is directed toward the impact release would have on an agency’s ability to obtain the same type of information in the future. The exemption does not permit me to have regard to other matters, such as any public interest in favour of release, or the extent to which the Applicant’s personal interest in the document would be served by granting access to the documents.
26. The Agency’s statutory functions require it to administer and ensure compliance with certain legislation and local laws. I accept the Agency relies on information provided by third parties on a voluntary or unsolicited basis, often in the form of a complaint, in order to carry out its regulatory and enforcement functions. Such information provided to the Agency will, by its very nature and context, generally be sensitive and confidential.
27. In my opinion, the release of information provided in confidence would render the Agency’s complaints process ineffective. I am of the view, if details of complaints and complainants were to be routinely released under FOI, individuals would be deterred from providing complaint related information to the Agency. This impairment goes beyond a trifling or minimal impairment.[6] I consider this to be a significant and detrimental outcome that would be detrimental to the Agency’s ability to fully investigate complaints and perform its regulatory and enforcement statutory functions.
28. I appreciate the Applicant feels aggrieved that the complaints were made to the Agency and wishes to confirm the identity of the complainants. However, in my view, there is an essential public interest in ensuring the anonymity of complainants in such circumstances that outweighs any interest the Applicant has in the obtaining access to the documents.
29. Therefore, I am satisfied disclosure of certain information in the documents would be contrary to the public interest as it would be reasonably likely to impair the Agency’s ability to obtain similar information in the future. However, I am not satisfied all information in the documents, namely information detailing the action taken by the Agency and information that confirms the category of the complaint, is exempt under section 35(1)(b).
30. The Schedule of Documents in Annexure 1 sets out a summary of my decision in relation to section 35(1)(b) with respect to each document.

Section 33(1)

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

• 1. disclosure of the document under the FOI Act would ‘involve’ the disclosure of information relating to the ‘personal affairs’ of a person other than the Applicant;^[7] and
  2. such disclosure would be ‘unreasonable’.

32. Information relating to a person’s ‘personal affairs’ includes information that identifies any person, or discloses their address or location. It also includes any information from which this may be reasonably determined.[8]
33. The concept of ‘unreasonable disclosure’ involves balancing the public interest in the disclosure of official information with the personal interest in privacy in the particular circumstances of a matter.
34. Certain information in the documents comprises names, addresses and mobile telephone numbers relating to the third party complainants. The documents also include information that discloses the nature of the complaints made by third parties and information from which a person’s identity, address or location can reasonably be determined. The documents also include the name and position title relating to Agency officers, some of whom are employed in an administrative/office support role. I consider this information relates to the personal affairs of third parties. Accordingly, I have considered the exemption in section 33(1) with respect to this type of information.
35. However, in relation to the information relating to the category of complaint and the action taken by the Agency, I do not consider this information to be the personal affairs information of a third party and this type of information is not exempt under section 33(1).
36. The determining factor in this review, in relation to personal affairs information, is whether disclosure of this type of information is unreasonable.
37. The concept of ‘unreasonable disclosure’ involves balancing the public interest in the disclosure of official information with the personal interest in privacy, in the particular circumstances of a matter. The following factors are particularly relevant in the circumstances of this matter:

• 1. the nature of the personal affairs information;
  2. the Applicant’s interest in the information;
  3. whether any public interest would be promoted by release of the information;
  4. the likelihood of further disclosure of the information, if released;
  5. whether the individual to whom the information relates objects, or would be likely to object to the release of the information; and
  6. whether disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person.

38. Section 33(2B) requires an Agency to consult with individuals, whose personal details are captured within a document, in order to seek that person’s view regarding disclosure. The Agency advised it consulted with some of the third parties who provided information in confidence to the Agency and these third parties objected to the release of their personal affairs information. The Agency also advised it consulted with the Agency officers and some officers objected to the release of their personal affairs information. However, this is one factor for my consideration and is not determinative.
39. In the circumstances of this matter, I consider it unreasonable to release certain personal affairs information in the documents for the following reasons:

• 1. I am satisfied the personal affairs information is sensitive in nature, in that it relates to complaints made to the Agency and the Agency’s investigation of those complaints;
  2. I do not consider there is any broader public interest that would be promoted by release of the personal affairs information in the circumstances of this matter. Rather, I consider there is a strong public interest in the Agency preserving the privacy of the third parties in these circumstances; and
  3. The fact release under FOI imposes no restrictions on further use or dissemination.

40. Noting the scope and purpose of the Applicant’s FOI request, I consider the personal affairs information of Agency officers in the documents would not assist the Applicant. As such, I consider it would be unreasonable to release the personal affairs information of Agency officers in the circumstances of this matter given the peripheral administrative or support role they played in the handling of the complaints.
41. This view is consistent with the Victorian Civil and Administrative Tribunal’s (VCAT) decision in Coulson v Department of Premier and Cabinet (Coulson decision)[9] which held that whether an agency officer’s personal affairs information is exempt under section 33(1) must be considered in the context of the particular circumstances of each matter.
42. Not withstanding the Coulson decision and my determination regarding the exemption of the personal affairs information of Agency staff in administrative or support roles, I do not consider it would be unreasonable to release the personal affairs information of Agency officers who were directly involved or had responsibility for the handling of the complaints and any enforcement action taken (eg position titles and names). I am of the view this information reveals details of Agency officers merely performing their professional duties or responsibilities as public sector employees and does not relate to matters concerning their personal or private life.
43. This view is consistent with the Victorian Supreme Court of Appeal decision of Victoria Police v Marke in which the Court held there is ‘no absolute bar to providing access to documents which relate to the personal affairs of others’, the personal privacy exemption ‘arises only in cases of unreasonable disclosure’, and ‘[w]hat amounts to unreasonable disclosure of someone’s personal affairs will necessarily vary from case to case.[10]
44. In reaching this decision I have also considered whether the release of this personal affairs information would likely affect the frankness and candour of Agency officers when performing their duties in the future. I do not believe release of this information would have any material or lasting impact on the future advice Agency officers would provide to the Agency in light of their employment responsibilities and relevant public sector values in the Code of Conduct for Victorian Public Sector Employees issued by the Victorian Public Sector Commissioner under section 61 of the Public Administration Act 2004 (Vic).[11]
45. Finally, there is no information before me to indicate release of the information is reasonably likely to endanger the life or physical safety of any person.[12]
46. The Schedule of Documents in Annexure 1 sets out a brief summary of my decision in relation to section 33(1) with respect to each document.

Deletion of exempt or irrelevant information

47. Section 25 requires an agency to grant access to an edited copy of a document when it is practicable for the agency or Minister to delete exempt or irrelevant information and the applicant agrees to receiving such a copy.
48. At the time of making [the Applicant’s] FOI request to the Agency, the Applicant did not agree to receive an edited copy of the documents. As a result, the Agency determined to refuse access to five documents in full. However, during the review, the Applicant indicated to an OVIC staff member that the Applicant is willing to receive an edited copy of the documents.
49. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’^[13] and the effectiveness of the deletions. Where deletions would render the document meaningless they are not ‘practicable’ and release of the document is not required under section 25.^[14]
50. I have considered the effect of deleting exempt information from the documents. In my view, it would be practicable to delete the exempt information, because it would not require substantial time and effort, and the edited documents would retain meaning.

Conclusion

51. On the information before me, I am satisfied the exemptions in sections 33(1) and 35(1)(b) apply to certain information in the documents. As it is practicable to edit the documents to delete exempt information, I have determined to grant access to the documents in part.
52. The Schedule of Documents in Annexure 1 sets out a summary of my decision in relation to sections 33(1) and 35(1)(b) with respect to each document.

Review rights

53. If either party to this review is not satisfied with my decision, they are entitled to apply to the Victorian Civil and Administrative Tribunal (VCAT) for it to be reviewed.^[15]
54. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[16]
55. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[17]
56. 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.
57. 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.^[18]

Other matters

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

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

…. The use of the word indicates there should be imported into the process the exercise of judgment by the agency concerned. It does not allow for the conclusion that because a task is possible, it must, ergo, be undertaken.^[19]

60. VCAT also considers the possibility of an unnecessary intrusion into the lives of third parties is relevant when assessing the practicability of notifying them.^[20]
61. Given the nature of the matter involving the Applicant, I am satisfied it is practicable to notify those individuals of their right of review.

When this decision takes effect

62. As stated above, I have decided to release documents that contain information relating to the personal affairs of third parties.
63. The relevant third parties will be notified of my decision and are entitled to apply to VCAT for a review within 60 days from the date they are given notice.
64. For that reason, my decision does not take effect until that 60 day period expires. If a review application is made to VCAT, my decision will be subject to any VCAT determination.

Annexure 1 – Schedule of Documents

Endnotes

[1] Ryder v Booth [1985] VR 869 at 883; XYZ v Victoria Police [2010] VCAT 255 at [264].

[2] Williams v Victoria Police [2007] VCAT 1194 at [75].

[3] Ibid.

[4] Ibid, XYZ at [265].

[5] Smeaton v Victorian WorkCover Authority [2012] VCAT 1549, approving Birnbauer v Inner and Eastern Health Care Network [1999] 16 VAR 9.

[6] Ryder v Booth [1985] VR 869.

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

[8] Section 33(9).

[9] [2018] VCAT 229.

[10] [2008] VSCA 218 in at [76].

[11] See, for example, the public sector value of ‘Responsiveness’ which requires Victorian public sector employees to demonstrate responsiveness by ‘providing frank, impartial and timely advice to the Government’.

[12] Section 33(2A).

[13] 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].

[14] 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].

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

[16] Section 52(5).

[17] Section 52(9).

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

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

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