‘AM8’ and Department of Education and Training (Freedom of Information) [2019] VICmr 116 (24 September 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 fresh 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

24 September 2019

Reasons for Decision

Background to review

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

A full and complete copy of all the information and or the full file held by [specified school] for [name and date of birth of child who] resides with [parent] at [specified address] and is currently enrolled at [specified school]. My name is [Applicant’s name] and I am the [parent] of [named child].

2. In its decision, the Agency identified 67 documents falling within the terms of the Applicant’s request. It decided to release the documents in part.

Review

3. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
4. Section 49M(1) permits an agency to make a fresh decision on an FOI request during a review.
5. On [date], the Agency made a fresh decision to release further information to the Applicant. The fresh decision was made within the required 28 days under section 49M(2).
6. The Agency decided to:
   1. release 18 documents in full;
   2. release 47 documents in part; and
   3. refuse access to two documents in full.
7. The Applicant did not agree with the Agency’s fresh decision and, as required by section 49MA(2),
   I proceeded with my review on the basis of the fresh decision.
8. I have examined copies of the documents subject to review.
9. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.
10. I have considered all communications received from the parties, including:

1. 1. the Agency’s decision on the FOI request;
   2. the information provided with the Applicant’s review application; and
   3. communications between OVIC staff, the Applicant and the Agency.

11. 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.
12. I note the Applicant also lodged a complaint with OVIC in relation to the processing of the FOI request by the Agency and the complaint was finalised in [month and year].

Review of exemptions

13. The Agency’s fresh decision relied on the exemptions under sections 30(1), 33(1) and 38 to refuse access to the documents. The Agency’s fresh decision letter sets out the reasons for its decision.

Section 33(1)

14. On [date], the Applicant stated:

… we request that all information not directly related to identification [of] individuals at this stage be made available to me.

15. Accordingly, I have excluded personal affairs information exempted by the Agency from my review as the Applicant does not seek review of this information. I consider this information to be irrelevant to my review.

Section 30(1)

16. Section 30(1) has three requirements:

1. 1. the document must disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers or an officer and a Minister; and
   2. such matter must be made in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government; and
   3. disclosure of the matter would be contrary to the public interest.

17. The exemption does not apply to purely factual material in a document.^[1]
18. The term ‘officer of an Agency’ is defined in section 5(1). It includes a member of the agency, a member of the agency’s staff, and any person employed by or for the agency, whether that person is one to whom the provisions of the Public Administration Act 2004 (Vic) apply or not.

Do the documents disclose matter in the nature of opinion, advice, recommendation, consultation or deliberation of an officer?

19. The Agency identified documents of varying nature as relevant to the Applicant’s FOI request. The Schedule of Documents in Annexure 1 describes these various documents.
20. Having reviewed the documents, I am satisfied information exempted by the Agency is in the nature of an Agency officer’s opinions, advice and/or recommendations noting the documents contain information relating to staff observations, comments, assessments, diary notes and other forms of internal communications.
21. On [date], the Agency confirmed the Independent Office for School Dispute Resolution (Independent Office) is part of the Department of Education and Training. Accordingly, I am satisfied the officer from the Independent Office is an ‘officer’ of the Agency.

Were the communications made in the course of the Agency’s deliberative processes?

22. Having reviewed the documents, I am satisfied the above information was provided in the course of the Agency’s deliberative processes relating to the provision of educational and developmental services in a Victorian government school.

Would release of the information be contrary to the public interest?

23. In its fresh decision, the Agency stated disclosure would be contrary to the public interest due to:
    1. the degree of sensitivity of the issues involved in the consideration;
    2. disclosure would be likely to inhibit frankness and candour in the making of communications as well as inhibit the independence of officers of making proper and detailed submissions;
    3. disclosure would give a part, rather than a complete, explanation for decisions made; and
    4. disclosure would lead to confusion relating to the possibilities considered.
24. The Applicant advised OVIC they seek access to the documents:
    1. to amend false or misleading information in their child’s educational records;
    2. to obtain an understanding of all information any future educational provider may have access to in relation to the Applicant and their child; and
    3. to comprehensively respond to any present or future allegations or investigations against the Applicant.
25. Having carefully reviewed the documents, I am of the view it would not be contrary to the public interest to release certain information in the documents such as:
    1. a staff member’s factual recording or recollection of events;
    2. information that provides further clarity in relation to the Agency’s decisions; and
    3. information that was released to the Applicant by the Agency in other documents or information of which the Applicant would otherwise already be aware.
26. However, the following factors have informed my decision to exempt certain information in the documents on grounds disclosure would be contrary to the public interest:
    1. I note the sensitivity of the information in the documents. While I consider a parent is entitled to an understanding of an educational institution’s decisions in relation to their child, this does not equate to a right of access to all documents prepared by an educational institution particularly where disclosure may undermine the integrity of the educational institution’s internal processes designed specifically to address particular sensitive issues.
    2. I appreciate the Applicant has a strong personal interest in obtaining access to the information. Furthermore, I acknowledge a broader public interest in disclosure where it is clear from the face of a document there may be a flawed process or legitimate questions are raised as to the appropriateness or fairness of an outcome reached. However, in this case, there is nothing on the face of the documents to suggest there was anything unusual about the Agency’s processes. Rather, in this case, I note an allegation made against the Applicant was investigated by another government body with no further action taken against the Applicant. Therefore, I am not satisfied there is a broader public interest in the disclosure of certain information in the documents.
    3. I consider the Agency’s internal assessment and deliberative processes require its officers to discuss a number of relevant issues before deciding on an outcome. In such circumstances, it is desirable for the Agency officers to seek and exchange opinions in an open and candid way.
    4. Finally, I consider the disclosure of written records detailing preliminary deliberations and consultations would be reasonably likely discourage or inhibit Agency officers from recording similar communications in a detailed manner in the future. This would be contrary to the public interest as it would have a detrimental effect of the ability of an agency to conduct a thorough and considered process, which in turn would compromise the outcome of any similar process.

Deletion of exempt or irrelevant information

27. 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.
28. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’^[2] 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.^[3]
29. I have considered the effect of deleting irrelevant and exempt information from the documents. In my view, it is practicable to delete such information as to do so would not require substantial time and effort, and the edited documents would retain meaning.

Conclusion

30. Accordingly, I have determined certain information in the documents is exempt under section 30(1) and certain other information is not exempt under section 30(1) and is to be released to the Applicant. The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.
31. In light of my decision, it is not necessary for me to consider additional exemptions relied on by the Agency such as section 38.

Review rights

32. 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.^[4]
33. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[5]
34. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[6]
35. 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.
36. 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.^[7]

When this decision takes effect

37. My decision does not take effect until the relevant review period (stated above) expires, or if either party applies to VCAT for a review, until the VCAT proceeding is concluded.

Annexure 1 – Schedule of Documents

Endnotes

[1] Section 30(3).

[2] 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].

[3] 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].

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

[5] Section 52(5).

[6] Section 52(9).

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