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‘AL3’ and Victoria Police (Freedom of Information) [2019] VICmr 102 (12 September 2019)

Date of decision:12 September 2019
Applicant:'AL3'
Agency:Victoria Police
Citation:'AL3' and Victoria Police (Freedom of Information) [2019] VICmr 102 (12 September 2019)
Headnote:FREEDOM OF INFORMATION – information provided in confidence – personal affairs information –workplace complaint – employee investigation – employee history reports – complaint form – conflict of interest disclosure –correspondence with complainant – internal emails
Sections in the FOI Act:33(1), 35(1)(b)
Download this file:AL3 and Victoria Police Freedom of Information 2019 VICmr 102 12 September 2019 - PDF (2 MB)

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 to the Applicant.

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

My reasons for decision follow.

Joanne Kummrow

Public Access Deputy Commissioner

12 September 2019

Reasons for Decision

Background to review

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

In [date] I was the subject member in respect of a complaint made regarding usage of Victoria Police email system. I am applying access for information in respect of this complaint: [name of Investigator]

I am seeking all documents including:

    1. Complaint submitted (actual complaint)
    2. Details of ‘complainant’ and complainant’s relationship to ‘subject company’ of complaint, including any record or document that demonstrates relationship.
    3. Details of persons contacted, spoken to regarding complaint and all statements provided
    4. Investigator notes
    5. Information held by PSC and or interpose in respect of this matter
    6. Date and time contact was made with [named person], or confirmation this did not occur by investigator.
    7. Any other document or record in respect of this matter

…

  1. In its decision, the Agency identified 12 documents falling within the terms of the Applicant’s request. It decided to grant access to some documents in part and deny access to one document in full.
  2. During the handling of this review, the Agency identified an additional document, which the Agency advised was exempt in full under section 33(1). I am satisfied this document falls within the scope of the Applicant’s request and is subject to review.

Review

  1. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
  2. During the review, the Applicant indicated they do not seek access to certain personal affairs information of third parties, including dates of birth, email addresses, appearance and telephone numbers. Accordingly, this information is outside the scope of this review and will be redacted as irrelevant information in accordance with section 25.
  3. I have examined copies of the documents subject to review.
  4. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.
  5. I have considered all communications and submissions received from the parties, including:
    1. the Agency’s decision on the FOI request and additional information provided during the review; and
    2. the Applicant’s submissions dated 15 and 20 August 2019 and information provided with the Applicant’s review application.
  1. 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

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

Section 33(1)

  1. A document is exempt under section 33(1) if two conditions are satisfied:
    1. disclosure of the document under the FOI Act would ‘involve’ the disclosure of information relating to the ‘personal affairs’ of a person other than the Applicant;[1] and
    2. such disclosure would be ‘unreasonable’.

Does the information constitute personal affairs information?

  1. Information relating to a person’s ‘personal affairs’ includes information that identifies any person or discloses their address or location. It also includes any information from which this may be reasonably determined.[2]
  2. 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.
  3. The nature of disclosure of a document under the FOI Act is unconditional and unrestricted, which means an applicant is free to disseminate widely or use a document as they choose.[3]
  4. The Applicant seeks access to the following information in the documents:
    1. names, positions titles, email addresses, telephone numbers, personnel numbers/registration numbers, and signatures of Agency officers; and
    2. names and an address of third parties.
  1. I am satisfied the above information is ‘personal affairs information’ for the purposes of section 33(1). Therefore, I must decide whether disclosure of this information would be unreasonable in the circumstances.

Is disclosure of the personal affairs information unreasonable?

  1. In this case, the Agency did not consult with any of third parties whose personal affairs information was exempted in the documents to obtain their view on disclosure as required by section 33(2B). In my view, consultation by the Agency would have been practicable, particularly given many of those persons are Agency staff and the third parties are readily identifiable from the documentation.
  2. In relation to whether it would be unreasonable to release personal affairs information, I consider the following matters are relevant in the circumstances of this matter:
    1. the nature of the personal affairs information (for example, whether it is sensitive or its current relevance);
    2. the circumstances in which the information was obtained by the Agency;
    3. the Applicant’s interest in the information (including their purpose for seeking access to the documents);
    4. whether any public interest would be promoted by disclosure;
    5. whether the individuals to whom the information relates object to the release of the information; and
    6. the likelihood of further disclosure of the information, if released.
  3. Section 33(2A) requires that, in deciding whether the disclosure of a document would involve the unreasonable disclosure of information relating to the personal affairs of any person, I must take into account whether the disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person. On the information before me, I do not consider this to be a relevant factor in this matter.
  4. The Applicant provided the following information to support their review application:
    1. The Applicant was issued with an admonishment by the Agency regarding the use of their work email account to request money in a civil dispute.
    2. The Applicant states they received the admonishment notice due to a ‘perception’ caused by their email.
    3. The Applicant seeks to determine a complainant’s relationship to a company as they believe the Agency’s investigation of the complaint made against them breached the Agency’s policy.
  5. I accept that in general circumstances, it is unreasonable to release personal affairs information relating to complaints and subsequent investigations as there is a strong public interest in maintaining the Agency’s ability to obtain information voluntarily from members of the public or Agency staff in relation to alleged police misconduct.
  6. Further, even where an applicant claims to know the identity of a third party (including a complainant), disclosure of their personal affairs information in documents under the FOI Act may still be unreasonable in the circumstances.[4]
  7. However, in the circumstances of this matter, I have decided it is not unreasonable to release the information of the complainants and some third parties for the following reasons:
    1. The two complainants are named in official documentation of the Agency that was provided to the Applicant in relation to the outcome of the investigation, as evidenced in the outcome letter dated 8 February 2019.
    2. Letters to two complainants were released to the Applicant with their names deleted, however, given the information provided above, I am satisfied this information is already known to the Applicant.
    3. The names of certain third parties were known to the Applicant prior to the commencement of the investigation, as evidenced in three emails between the Applicant and third parties in October 2018. This demonstrates the Applicant knew the names and connections of certain third parties to the company and body corporate.
  8. I have also decided it is not unreasonable to release personal affairs information of Agency officers, for the following reasons:
    1. It is not unreasonable to release personal affairs information of Agency officers where they are carrying out their usual duties or responsibilities as public servants.
    2. The personal affairs information is not particularly sensitive in the circumstances of the matter, given the Applicant is an employee of the Agency and the Agency officers involved in the matter are already well-known to the Applicant.
  9. However, I am of the view that it would be unreasonable to disclose personal affairs information of Agency officers whose details are only included in the documents where they are peripheral to the investigation.
  10. The Schedule of Documents in Annexure 1 outlines my decision in relation to section 33(1) for each document.

Section 35(1)(b)

  1. The Agency denied access to documents in part based on its application of section 35(1)(b).
  2. 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.
  1. When determining whether information was communicated in confidence, it is necessary to consider the position from the perspective of the communicator.[5] Further, confidentiality can be expressed or implied from the circumstances of the matter.[6]

Was the information or matter communicated in confidence?

  1. I am mindful that, in this matter, I do not have specific information before me regarding whether the third parties provided information to the Agency on a confidential basis. In any case, I consider the relevant third parties would more likely than not have considered that the information was communicated in confidence to the Agency given the nature of this matter which involves a complaint, made about an Agency officer and a subsequent workplace investigation.
  2. However, the fact the information was communicated in confidence is not the only consideration in relation to the exemption in section 35(1)(b). I must also consider whether disclosure would be contrary to the public interest as the Agency would be impaired from obtaining similar information in the future if the information is disclosed in this instance.

Would disclosure be contrary to the public interest as it would be reasonably likely to impair the ability of the Agency to obtain similar information in the future?

  1. On the information before me, it is not apparent that any public interest would be served by release of the information to the Applicant. Rather, I am of the view the public interest, in this case, lies in the preservation of the Agency’s ability to obtain material provided voluntarily regarding allegations or a complaint of misconduct made against Agency officers.
  2. In relation to this case, I accept that if third parties, who provide information to the Agency about its officers, were aware the information they provide would be routinely disclosed under the FOI Act, such persons would be less likely to communicate similar information, which is voluntarily provided to the Agency. As a result, the future reporting of alleged misconduct would be impaired which would reasonably have a detrimental impact on the integrity and ability of the Agency to carry out its law enforcement functions.
  3. For these reasons, I am satisfied certain information in the documents is exempt under section 35(1)(b).
  4. The Schedule of Documents in Annexure 1 outlines my decision in relation to section 35(1)(b) for each of the documents.

Deletion of exempt or irrelevant information

  1. 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.
  2. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’[7] 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.[8]
  3. I have considered the effect of deleting irrelevant and exempt information from the documents. In my view, it is practicable to delete the information, because it would not require substantial time and effort, and the edited documents would retain meaning.

Conclusion

  1. 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 to the Applicant.
  2. I am satisfied the exemptions in sections 33(1) and 35(1)(b) apply to certain information in the documents in part and to certain documents in full.
  3. As it is practicable to edit the documents to delete irrelevant and exempt information, I have determined to grant access to certain documents in part.
  4. Any dates of birth, email addresses, appearance and telephone numbers of non-Agency third parties are irrelevant to the review and are to remain deleted in accordance with section 25.

Review rights

  1. 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.[9]
  2. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.[10]
  3. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.[11]
  4. 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.
  5. 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.[12]

Other matters

  1. 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.
  2. 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.[13]

  1. VCAT also considers the possibility of an unnecessary intrusion into the lives of third parties is relevant when assessing the practicability of notifying them.[14]
  2. On balance, I am satisfied it is practicable to notify those individuals of their right to seek review of my decision to disclose their personal affairs information.

When this decision takes effect

  1. I have decided to release documents that contain information relating to the personal affairs of third parties.
  2. As stated above, 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.
  3. 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

Document No. Date of Document Document Description Number of Pages Agency’s Decision OVIC Decision OVIC Comments
1. [Date]-[date] Investigation report 6 Released in part

Section 33(1)

 

 Release in part

Section 33(1), 25

The document is to be released in part with the following information removed as it is exempt under section 33(1):

(a)    the name of the Agency officer recorded in the third line of the comments contained in the entry dated [date] at [time] on page 3;

(b)    the name, position and identification number recorded in the first line of the comment entry on [date] at [time] on page 5 as well as the ‘VP’ number that appears at the end of the comment section;

(c)     the name, position title and VP identification number of the ‘submitting member’ recorded on page 5;

(d)    the VP identification numbers recorded on the bottom of page 6 next to ‘created by user’ and ‘printed by’; and

(e)    the third and fourth investigator managers names and details listed under the heading ‘personnel’.

 This document contains a narrative of administrative steps and approvals taken during the investigation.

Section 33(1): I am satisfied the document contains personal affairs information of a third party and Agency officers, including names, ‘VP’ identification numbers, position titles, email addresses and phone numbers.

I have decided it would not be unreasonable to release the personal affairs information of the Agency officers in this instance, for the following reasons:

(a)    the nature of the document and the personal affairs information is not sensitive as it relates to the Agency officers in the conduct of their usual duties;

(b)    those officers were directly related to the investigation of complaints against the Applicant;

(c)     as the Agency did not consult with its officers, there is no information before me to suggest the Agency officers object to the release of their personal affairs information; and

(d)    phone numbers, email addresses and physical addresses are widely available at the Agency of which the Applicant is a member.

Accordingly, I am not satisfied this information is exempt under section 33(1).

I have also decided it is not unreasonable to release the name of the complainant as their name was released to the Applicant by the Agency in relation to the nature of the complaint and the outcome of the complaint.

However, I consider it would be unreasonable to release the names of Agency officers who were peripheral to the investigation of the complaint or completed purely administrative tasks. In these circumstances the personal privacy of those individuals outweighs the public interest in disclosure.

Accordingly, I am satisfied this information is exempt under section 33(1).

Section 25: I am satisfied it would be practicable to provide the Applicant with an edited copy of the document with exempt information redacted.
2. N/A Employee History Report 13 Released in part

Section 33(1)

 

 Release in part

Section 33(1), 25

The document is to be released in part with the following information removed as it is exempt under section 33(1):

(a)    the VP identification number recorded at the bottom of each page;

(b)    the names of Agency officers (other than the Applicant);

(c)     the names of third parties; and

(d)    the last four words contained in the compliment file on page 3 dated [date].

 

 This document records the history of the Applicant in relation to the following factors: current details, PSC file reference, criminal charges, discipline charges, management actions, admonishments, penalty notices and work status actions.

Section 33(1): I consider it unreasonable to release the personal affairs information of Agency officers and third parties on pages 3, 4 and 5 regarding complaint and compliment files for the following reasons:

(a)    the complaints and compliments are not in relation to the complaint that is subject of this review;

(b)    the personal affairs information is peripheral to this Applicant’s purpose for seeking access to the document; and

(c)     there is no information before me that indicates the Applicant is aware of the identity of the Agency officers or third parties.

Accordingly, I am satisfied this information is exempt under section 33(1).

Section 25: See comments above for Document 1.
3. [Date] Email correspondence 3 Released in part

Section 33(1)

 

 Release in part

Section 33(1), 25

The document is to be released in part, with the following information removed as it is exempt under section 33(1):

(a)    mobile phone numbers;

(b)    the name, position title and email and phone numbers of the sender of the email dated [date] at [time];

(c)     the name of the Agency officer copied into the email dated [date] and [time] and their name in the body of the email; and

(d)    words 6 to 9 of the second line of the first paragraph of the email dated [date] at [time].

 

 This document contains internal emails between Agency officers regarding an extension of time for the investigation.

Section 33(1): For the reasons set out above in Document 1, I am not satisfied the names, land line phone numbers or email addresses of Agency officers that are directly related to the investigation are exempt under section 33(1).

However, in relation to the email dated [date] at [time],
I consider it would be unreasonable to release personal affairs information as it appears to relate to an Agency officer acting in an administrative capacity.

In relation to the mobile phone numbers that appear throughout the document, I consider it would be unreasonable to release this information as it amounts to more sensitive personal affairs information and does not serve the purpose of the Applicant’s review request. Accordingly, this information is exempt under section 33(1).

Section 25: See comments above for Document 1.
4. [Date] Letters 2 Released in part

Section 33(1)

 Release in full

 

 This document contains letters addressed to third parties advising that investigation of the matter has been resolved.

Section 33(1): This document contains names of third parties. For the reasons set out above in Document 1, the names contained in this document are not exempt under section 33(1).

Also for the reasons set out above in Document 1 the name and business telephone number of the Agency officer are not exempt from release.
5. [Date] Issue Cover Sheet 3 Released in part

Section 33(1), 35(1)(b)

 Release in part

Section 35(1)(b), 25

The document is to be released in part, with paragraphs 3 and 4 of page 2 removed as it is exempt under section 35(1)(b).

 This document contains the background of the complaint, investigation, findings and recommendations.

Section 33(1): For the reasons set out above in Document 1, the personal affairs information of Agency officers and third parties contained in this document are not exempt under section 33(1).

Section 35(1)(b): For the reasons set out above in my decision, I am satisfied the information provided by third parties to the Agency regarding the complaint was provided to the Agency with an expectation of confidentiality. I am satisfied, on the information before me, that disclosure of the information under the FOI Act would impair the Agency’s ability to receive similar information from the public regarding alleged police misconduct on a voluntary basis. Accordingly, this information is exempt under section 35(1)(b).

Section 25: See comments above for Document 1.
6. [Date] Memo 1 Released in part

Section 33(1)

 Release in part

Section 33(1), 25

The document is to be released in part, with the mobile phone number removed as it is exempt under section 33(1).

 This document is a memo from an Inspector to the EPSO Support Unit.

Section 33(1): For the reasons set out in Document 1, I am satisfied it would not be unreasonable to release the name and email address of the Agency officer. Accordingly, this information is not exempt under section 33(1).

However, I am satisfied it would be unreasonable to release the mobile phone number and this information is exempt under section 33(1).

Section 25: See comments above for Document 1.
7. [Date] Complaint Assessment Process 2 Released in part

Section 33(1)

 Release in part

Section 33(1), 25

The document is to be released in part with the following information removed as it is exempt under section 33(1):

(a)    the signatures of Agency officers on pages 1 and 2;

(b)    the mobile phone number; and

(c)     the name and VP identification number recorded next to ‘PBRA updated by’ and ‘Incident entered by’.

 This document contains an assessment of the complaint.

Section 33(1): The names of the third party and Agency officers is not exempt under section 33(1). See my comments in Document 1 above.

Section 25: See comments above for Document 1.
8. [Date] Email 1 Released in part

Section 33(1), 35(1)(b)

 Release in part

Section 33(1), 35(1)(b), 25

The document is to be released in part with the exception of:

(a)    the address of the third party which is exempt under section 33(1) and is to be removed;

(b)    the last two paragraphs of the email are exempt under section 35(1)(b) and is to be removed;

(c)     the telephone number, date of birth of the third party and the name of the officer who printed the email is to be deleted as irrelevant under section 25.

 

 This document contains a description of the complaint that was provided to the Agency from a complainant.

Section 33(1): This document contains personal affairs information of Agency officers and third parties. I consider it reasonable to release the name of one of the third parties for reasons outlined above in Document 1. However, I consider it unreasonable to release the address of the third party as it has not been released to the Applicant in official documentation from the Agency and was likely provided to the Agency with an expectation of privacy.

Section 35(1)(b): This document contains exempt material under section 35(1)(b) for the reasons outlined above in document 5.

Section 25: See comments above for Document 1.
9. [Date] Complaint / Incident / Issue Form 3 Released in part

Section 33(1)

 Release in part

Section 33(1), 25

The document is to be released in part with the exception of:

(a)    the address of the third party recorded under the heading ‘Complainant/ Person Involved’ which is exempt under section 33(1) and is to be deleted;

(b)    words 4 to 11 in ‘contact means’ which is exempt under section 33(1) and is to be deleted; and

(c)     the telephone number, email address, date of birth, appearance of the third party under the heading ‘Complainant / Person Involved’ which is to be deleted as irrelevant under section 25.

 

 This is a form completed by Agency officers after receiving the complaint. It consists of the details of the complaint, the personal details of a complainant and the time and location of the incident.

Section 33(1): This document contains personal affairs information of Agency officers and a third party. See my comments above in Document 1 and Document 8.

In relation to the comments in the ‘contact means’, I consider that this amounts to personal affairs information that would be unreasonable to release. The information is not relevant to the matter at hand and therefore the privacy of the individual concerned outweighs the public interest in disclosure in this instance.

Section 25: See comments above for Document 1.
10. N/A Note 1 Released in full Not subject to review
11. [Date] Emails 2 Released in part

Section 33(1)

 Release in part

Section 33(1), 25

The document is to be released in part with the exception of:

(a)    the name of the individual who sent the email on [date] at [time] which is exempt under section 33(1) and is to be deleted;

(b)    the name of the third party who received the email dated [date] at [time] which is exempt under section 33(1) and is to be deleted;

(c)     the name of the third party at the bottom of ‘page 3’ which is exempt under section 33(1) and is to be deleted; and

(d)     the name of the Agency officer who printed the email and the email address of the third party is to be deleted as irrelevant in accordance with section 25.

 This document contains an email chain between a third party and an Agency officer. I note that the document contains page 1 and 3. Page 2 contains the Applicant’s own email and it not subject to review.

Section 33(1): The document contains the names and email addresses of third parties and the name of an Agency officer.  I am satisfied it is unreasonable to release the name and email address of a third party in this document as:

(a)    their details have not been disclosed to the Applicant in official documentation; and

(b)    although I do not have information regarding the views of the third party, it is likely they provided their personal affairs information to the Agency with an expectation of privacy given the circumstances of the matter.

I do not consider it unreasonable to release the name of the Agency officer in this instance, for reasons outlined above in Document 1.

Section 25: See comments above for Document 1.
12 N/A Photographs 7 Released in full Not subject to review
13. [Date] Conflict of Interest Disclosure 2 Refused in full

Section 33(1)

 Release in part

Section 33(1), 25

The document is to be released in part with the signature removed as it is exempt under section 33(1).

 This document contains a conflict of interest form completed by the investigating police officer.

Section 33(1): For the reasons set out in Document 1 I am not satisfied it is unreasonable to release the personal affairs information contained in the document for the reasons outlined above however, I do consider it unreasonable to release signature of the Agency officer.

Endnotes

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

[2] Section 33(9).

[3] Victoria Police v Marke [2008] VSCA 218 at [68].

[4] AB v Department of Education and Early Childhood Development [2011] VCAT 1263 at [58]; Akers v Victoria Police [2003] VCAT 397.

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

[6] Ibid.

[7] 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].

[8] 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].

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

[10] Section 52(5).

[11] Section 52(9).

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

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

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

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