‘AN1’ and Moreland City Council (Freedom of Information) [2019] VICmr 118 (25 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 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:

I seek access to the following document(s), dated/created between: [date] and: [date] in relation to the building works carried out at [address in Victoria] and for which I am the neighbouring proprietor at [address in Victoria].

• • 1. Protection works notices;
    2. As-Built Plans;
    3. All other stamped plans held by the [Agency].

2. Following consultation with the Agency, the Applicant amended the date range of their request.
3. In its decision, the Agency identified 25 documents falling within the terms of the Applicant’s request. It decided to:

• 1. grant access to three documents in full;
  2. grant access to 16 documents in part; and
  3. refuse access to six documents in full.

Review

4. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
5. In their submission, the Applicant indicated they sought access to the documents in relation to alleged illegal protection works carried out on the adjoining property.
6. The Applicant submits the owners of the adjoining property failed to provide all relevant documentation to the Applicant. Therefore, the Applicant seeks access to the documents in order to compare the as-built drawings and stamped plans with those previously provided to the Applicant. The Applicant seeks to determine whether the up-to-date plans were lodged with the Agency by the relevant building surveyor.
7. On 4 September 2019, the Agency agreed to release additional information to the Applicant without making a fresh decision, as outlined in the Schedule of Documents in Annexure 1.
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 and submissions received from the parties, including:

• 1. the Agency’s decision on the FOI request;
  2. the Applicant’s submission dated 16 May 2019 and information provided with the Applicant’s review application;
  3. the Agency’s submission dated 24 May 2019; and
  4. further information provided by the parties following inquiries by OVIC staff.

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.

Review of exemptions

12. The Agency relied on the exemptions in sections 33(1) and 34(1)(b) to refuse access to certain information contained in the documents.
13. The Agency’s decision letter sets out the reasons for its decision.

Section 33(1)

14. 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;^[1] and
   2. such disclosure would be ‘unreasonable’.

Does the information exempted by the Agency constitute personal affairs information?

15. 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]
16. On 4 September 2019, the Agency advised certain personal affairs information exempted in its decision could be released. Accordingly, this review relates to the remainder of the personal affairs information exempted by the Agency.
17. The information exempted by the Agency under section 33(1) includes signatures and names of third parties.
18. I am satisfied this information constitutes ‘personal affairs’ information for the purposes of section 33(1).

Would disclosure of the personal affairs information constitute unreasonable disclosure?

19. Determining whether disclosure would be unreasonable involves balancing the public interest in the disclosure of official information with the personal interest in privacy in the particular circumstances of a matter.
20. In determining whether the release of the personal affairs information is unreasonable, I consider the following matters are particularly relevant:

1. 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;
   3. the Applicant’s interest in the information, including their purpose or motive for seeking access to the documents;
   4. whether any public interest would be promoted by disclosure;
   5. the likelihood of further disclosure of the information if it is released; and
   6. whether the individual to whom the information relates consents or objects to the disclosure.

21. I have also taken into consideration 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 disclosed to them as they choose.[3]
22. 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. However, I do not consider this to be a relevant factor in the circumstances.
23. The Schedule of Documents in Annexure 1 sets out my decision in relation to each document containing material claimed exempt under section 33(1).

Section 34(1)(b)

24. On 4 September 2019, the Agency advised that certain documents exempted under section 34(1)(b) could be released. Accordingly, my reasons outlined below only relate to Documents 22 and 23, for which the Agency remains of the view are exempt under section 34(1)(b).
25. Section 34(1)(b) provides a document is an exempt document if its disclosure under the FOI Act would disclose information acquired by an agency (or a Minister) from a business, commercial or financial undertaking and:

1. 1. the information relates to other matters of a business, commercial or financial nature; and
   2. the disclosure of the information would be likely to expose the undertaking unreasonably to disadvantage.

26. In Thwaites v Department of Human Services,^[4] the Victorian Civil and Administrative Tribunal (VCAT) observed the phrase ‘information acquired’ in section 34(1) signifies the need for some positive handing over of information in some precise form.
27. VCAT has also recognised the words ‘business, commercial or financial nature’ have their ordinary meaning.^[5]
28. I consider the reference in section 34(1)(b) to ‘expose the undertaking unreasonably to disadvantage’ contemplates that disclosure of documents may involve a measure of disadvantage for an undertaking. Parliament determined, by the introduction in 1993 of the word ‘unreasonably’ that the exemption contemplates a certain level of disadvantage. The issue is whether an undertaking will be exposed unreasonably to disadvantage
29. Section 34(2) provides:

In deciding whether disclosure of information would expose an undertaking unreasonably to disadvantage, for the purposes of paragraph (b) of subsection (1), an agency or Minister may take account of any of the following considerations:

• 1. whether the information is generally available to competitors of the undertaking;
  2. whether the information would be exempt matter if it were generated by an agency or a Minister;
  3. whether the information could be disclosed without causing substantial harm to the competitive position of the undertaking; and
  4. whether there are any considerations in the public interest in favour of disclosure which outweigh considerations of competitive disadvantage to the undertaking, for instance, the public interest in evaluating aspects of government regulation of corporate practices or environmental controls—

and of any other consideration or considerations which in the opinion of the agency or Minister is or are relevant.

30. I have also had regard to VCAT’s approach in Dalla-Riva v Department of Treasury and Finance,[6] where VCAT held documents are exempt under section 34(1)(b) if disclosure would:

1. 1. give the undertaking’s competitors a financial disadvantage;
   2. enable competitors to engage in destructive competition with the undertaking; and
   3. would lead to the drawing of unwarranted conclusions as to the undertaking’s financial affairs and position with commercial and market consequences.

Do the documents contain information acquired from a business undertaking related to matters of a business, commercial or financial nature?

31. The documents exempted by the Agency pursuant to section 34(1)(b) include drawings for a proposed air conditioning, kitchen exhaust and kitchen hood.
32. I am satisfied these documents were acquired by the Agency in the course of its planning and building jurisdiction.
33. I am satisfied the information was acquired by the Agency from a business undertaking and relates to matters of a business, commercial or financial nature. Therefore, I must consider whether disclosure of the documents would be likely to expose each of the business undertakings unreasonably to disadvantage.

Would disclosure of the information likely expose the undertaking unreasonably to disadvantage?

34. While I agree disclosure of the documents may expose the undertaking to some form of disadvantage, given the undertakings have indicated the documents are either confidential or commercially sensitive, I do not consider the degree of disadvantage would be unreasonable.
35. I am not satisfied disclosure of the documents in these circumstances would be likely to expose the undertakings unreasonably to disadvantage, for the following reasons:

1. 1. While the information may not be known to competitors of the business undertakings, it is unlikely the documents can be used for the purposes of any other projects as the documents were prepared for a specific property. I am therefore not satisfied that that the information contained in the documents is of a nature that would give a competitor a financial advantage or allow a competitor to engage in destructive competition with the undertakings if released.
   2. The Applicant’s interest in the documents relates to [their] view that illegal works were carried out on an adjoining property. Therefore, I do not consider the documents are being sought to obtain a commercial or competitive advantage by a business competitor. Rather, the documents are being sought in relation to the specific circumstances as they relate to [the Applicant’s] property.
   3. The Agency sought the views of the business undertakings in accordance with section 34(3). Although the business undertakings objected to disclosure, submitting the documents are commercially sensitive or confidential in nature, neither of the business undertakings described, with sufficient detail, the sensitivity of the documents and how they would be unreasonably disadvantaged should the information be released.
   4. I am also mindful of the general right of access provided to each person under the FOI Act. This broad right of access provides that any person may request access to any document held by an agency without cause or connection to the document or its subject matter. In this case, it is common for the FOI Act to be used by a neighbour seeking further information about a construction project on a neighbouring property where they hold concerns about the project’s effect on their property.

36. The Schedule of Documents in Annexure 1 contains a summary of my decision in respect to each document.

Deletion of exempt or irrelevant information

37. 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.
38. 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]
39. I have considered the effect of deleting exempt information from the documents. In my view, it is practicable to delete the exempt information, because it would not require substantial time and effort, and the edited documents would retain meaning.

Conclusion

40. On the information available, I am satisfied the exemptions in section 33(1) applies to certain information in the documents. I have decided to release additional information in the documents to the Applicant.
41. As it is practicable to edit the documents to delete exempt information, I have determined to grant access to the documents in part.

Review rights

42. 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]
43. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[10]
44. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[11]
45. 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.
46. 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

47. Section 49P(5) states that if I decide to disclose a document claimed to be exempt under section 33(1) and 34(1)(b) I must, if practicable, notify any person or business undertaking who has a right to apply to VCAT for a review of my decision of their right to do so.
48. 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]

49. 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]
50. On the balance, I am satisfied it is practicable to notify certain individuals and business undertakings of their right to seek review of my decision to disclose their personal affairs information.

When this decision takes effect

51. I have decided to release documents that contain information relating to the personal affairs of third parties and matters of a commercial nature relating to third party business undertaking.
52. 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.
53. For that reason, my decision does not take effect until that 60 day period expires, or if an application to VCAT is made, until the VCAT proceeding is concluded.

Endnotes

Endnotes

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

[2] Section 33(9).

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

[4] (1999) 15 VAR 1.

[5] Gibson v Latrobe CC [2008] VCAT 1340 at [25].

[6] [2007] VCAT 1301 at [33].

[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].