‘AR6′ and City of Greater Geelong (Freedom of Information) [2019] VICmr 160 (14 November 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 is the same as the Agency’s decision in that I have decided to release some of the documents in part and refuse access to some of the documents in full.

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

My reasons for decision follow.

Sven Bluemmel

Information Commissioner

14 November 2019

Reasons for Decision

Background to review

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

….

I am requesting copies of all correspondence that specifically mentions me by name or membership number, including but not limited to; emails to or from official staff email addresses, any internal electronic communication such as membership database, memos and staff meeting minutes.

I am also requesting any video surveillance from [named facility] used to access alleged incidents.

My final request is for all documentation and CCTV relating to the [injury] I sustained [on date] at [named facility], including incident reports, follow up notes, staff notes, meeting minutes, memos or any other correspondence relating to the incident.

I request all information used or likely to be used in any past, current or future consideration of my behaviour and/or membership at [named facilities], where I or the incidents I am involved in are referenced, including but not limited to:

1. 1. 1. Staff reports and emails to/from official staff email addresses
      2. Staff notes
      3. SOP for
         • Managing [incident type]
         • Collecting customer feedback
         • Banning a patron from a venue
      4. Medical report
      5. Incident repots
      6. Meeting minutes
      7. Any document describing centre and patron rights and responsibilities
      8. Customer feedback
      9. Job Descriptions fo
         • Guard on Duty
         • First Aid attendant on Duty
         • Manager on Duty
3. In its decision, the Agency identified 62 documents falling within the terms of the Applicant’s request. It decided to release 41 documents in full, eight documents in part and refuse access to 13 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.
4. On 24 October 2019, the Applicant advised my office they are not seeking access to any personal affairs information relating to names of third parties. The Applicant also indicated they are not seeking a review of the Agency’s decision in relation to the CCTV footage.
5. I have examined copies of the documents subject to review.
6. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.
7. I have considered all communications and submissions received from the parties, including:

• 1. the Agency’s decision on the FOI request;
  2. information provided with the Applicant’s review application;
  3. the Agency’s submission received on 18 July 2019; and
  4. all other communications between OVIC staff and the Applicant.

8. 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

9. The Agency relied on the exemptions under sections 30(1), 32, 33(1) and 35(1)(b) to refuse access to parts of the documents. The Agency’s decision letter sets out the reasons for its decision.

Section 30(1) – Internal Working Documents

10. Section 30(1) has three requirements:

• 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.

11. The exemption does not apply to purely factual material in a document.^[1]
12. 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.
13. I must also be satisfied releasing this information is not contrary to the public interest. This requires a ‘process of the weighing against each other conflicting merits and demerits’.^[2]

Do the documents 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?

14. I am satisfied parts of the information exempted by the Agency consist of the opinions of Agency officers and consultations between Agency officers, noting the documents contain information relating to staff observations, comments, notes and other forms of internal communications.
15. I also consider the draft letter attached to one of the emails in Document 49 to be the opinion, advice and recommendations of the Agency officer who prepared it as to the material that should be include in the final version of the letter.
16. Having carefully reviewed the documents, I consider some parts of the documents consist of factual information concerning incidents involving the Applicant, however, this information is at times inextricably intertwined with information relating to opinions and consultations between Agency officers.
17. Also, some parts of the documents consist of a direction and merely record a decision already made by the Agency.
18. I note the observation of the Victorian Civil and Administrative Tribunal (VCAT) in Pritchard v Victoria Police[3] that:

Given …. that it was an instruction and because on the face of the document it is clear that it is communicating decisions made, it cannot possibly be an opinion or recommendation made as part of the deliberative process.

19. While the application of section 30(1)(a) has been interpreted to apply broadly, I am not of the view it is intended to extend to information in the nature of a direction. As such, I am not satisfied the first limb of the exemption under section 30(1) has been met with respect to some parts of the information exempted by the Agency under section 30(1).

Were the communications 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?

20. The term ‘deliberative process’ has been interpreted widely. In Re Waterford and Department of Treasury (No. 2),[4] the Commonwealth Administrative Appeals Tribunal held:

… “deliberative processes” [is] wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency… In short, … its thinking processes – the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.

21. Having reviewed the documents, I am satisfied some of the information was provided in the course of the Agency’s deliberative processes relating to the management of customers and the management of safety risks for its customers and staff.

Would disclosure of the documents be contrary to the public interest?

22. In deciding if release is contrary to the public interest, I must consider all relevant facts and circumstances remaining mindful that the object of the FOI Act is to facilitate and promote the disclosure of information.
23. In deciding whether disclosure of the information exempted by the Agency would be contrary to the public interest, I have given weight to the following relevant factors^[5]:

• 1. the right of every person to gain access to documents under the FOI Act;
  2. the degree of sensitivity of the issues discussed in the documents and the broader context giving rise to the creation of the documents;
  3. the stage of a decision or status of policy development or a process being undertaken at the time the communication were made;
  4. whether the disclosure of the documents would be likely to inhibit communications between agency officers, essential for the agency to make an informed and well-considered decision or participate fully and properly in a process in accordance with the agency’s functions and other statutory obligations;
  5. whether disclosure of the documents would give merely a part explanation, rather than a complete explanation for the taking of a particular decision or the outcome of a process, which the agency would not otherwise be able to explain upon disclosure of the documents;
  6. the impact of disclosing documents in draft form, including disclosure not clearly or accurately representing a final position or decision reached by the agency at the conclusion of a decision or process; and
  7. the public interest in the community being better informed about the way in which the agency carries out its functions, including its deliberative, consultative and decision-making processes and whether the underlying issues require greater public scrutiny.

24. Having carefully reviewed the documents, I am of the view that it would be contrary to the public interest to release certain information in the documents for the following reasons:
    1. I consider the documents to be sensitive in nature, given that they relate to the management of safety risks to customers and staff and some of the information has been provided in confidence.
    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. 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. While Agency officers are professionally obliged to provide frank and robust opinions and undertake consultation, I accept that disclosure in the particular circumstances of this case would be reasonably likely to discourage or inhibit the free exchange of opinion and consultation between Agency officers 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 safety of its customers and compromise the Agency’s legal obligation to comply with occupation health and safety legislation with respect to its staff. Any diminution of that as a result of the routine release of similar opinions could generally have adverse consequences.

25. Accordingly, I am satisfied part of the information in the documents is exempt under section 30(1).

Section 32(1) – Documents affecting legal proceedings

26. Section 32(1) provides a document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege or client legal privilege.
27. A document will be subject to legal professional privilege and exempt under section 32(1) where it contains a confidential communication:^[6]

• 1. between the client (or the client’s agent) and the client’s professional legal advisers, that was made for the dominant purpose of obtaining or providing legal advice or is referrable to pending or contemplated litigation; or
  2. between the client’s professional legal advisers and third parties, that was made for the dominant purpose of pending or contemplated litigation; or
  3. between the client (or the client’s agent) and third parties that was made for the purpose of obtaining information to be submitted to the client’s professional legal advisers for the dominant purpose of obtaining advice on pending or contemplated litigation.

28. A document will be subject to client legal privilege where it contains a ‘confidential communication’^[7] between:

• 1. the client (or the client’s agent) and the client’s professional legal advisers, that was made for the dominant purpose of obtaining or providing legal advice;^[8] or
  2. the client and another person, which was made for the dominant purpose of the client being provided with professional legal services relating to a proceeding in which the client is or was a party.^[9]

Do the documents contain confidential communications?

29. The Agency applied the exemption in section 32(1) to some of the documents on the basis they disclose confidential communications made for the dominant purpose of obtaining or providing legal advice.
30. Having carefully examined each document to which this exemption was applied, I have determined these documents set out confidential communications between the Agency and its legal advisor.

What was the dominant purpose of the confidential communications?

31. The dominant purpose for which the confidential communications were made determines whether the exemption applies.[10]
32. I am satisfied release would disclose information provided for the dominant purpose of providing legal advice and this information is therefore exempt under section 32(1). It is not appropriate for me to set out in any greater detail the reasons for coming to this conclusion, as to do so may reveal the very information the exemption is intended to protect.

Section 33(1) – Documents affect personal privacy

33. 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;^[11] and
  2. such disclosure would be ‘unreasonable’.

34. 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.^[12]
35. 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.

Does the information relate to the personal affairs information of an individual other than the Applicant?

36. The exempt information relates to names, position titles, email addresses, telephone numbers, mobile numbers and signatures relating to third parties. The documents also include statements made by third parties and information from which a person’s identity, address or location can reasonably be determined. The personal affairs information of third parties also includes information relating to Agency officers. I consider this information to be the personal affairs information of individuals other than the Applicant.
37. Also, having closely reviewed the contents of the documents, I consider some parts of the documents contain personal affairs information relating to the Applicant, including incidents which involved the Applicant. However, I consider this information is intertwined with the personal affairs information of third parties.

Would it be unreasonable to release the personal affairs information?

38. The determining factor in this review, in relation to personal affairs information, is whether disclosure of this type of information is unreasonable. 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.
39. I acknowledge the Applicant may know some of the third parties mentioned in the documents. However, even where an applicant claims to know the third parties involved, disclosure of personal affairs information may still be unreasonable.[13]
40. In deciding whether disclosure of a document would involve the unreasonable disclosure of a third party’s personal affairs information, an agency must notify that person an FOI request has been received for documents containing their personal information and seek their view as to whether disclosure of the document should occur.[14] However, this obligation does not arise if:
    1. the notification would be reasonably likely to endanger the life or physical safety of a person, or cause them undue distress, or is otherwise unreasonable in the circumstances;
    2. the notification would be reasonably likely to increase the risk to the safety of a person experiencing family violence; or
    3. it is not practicable to do so.[15]
41. The Agency advised it did not consult with any of the third parties in this matter.
42. I have given particular consideration to the following factors in the circumstances of this matter:
    1. The nature of the personal affairs information – The information in the documents was provided and documented for the purpose of managing customers and managing safety risks for customers and Agency staff. Some of the information in the documents was provided to the Agency in confidence. In the circumstances, I consider this information to be sensitive in nature. This weighs against disclosure.
    2. The extent to which the information is available to the public – I do not consider the information exempted by the Agency in the documents to be information available to the public. This factor weighs against disclosure.
    3. Whether any public interest would be promoted by release of the information – The Applicant is seeking access to the information to confirm that Agency officers have made false and personally damaging statements concerning the Applicant. Therefore, I appreciate the strong personal interest the Applicant may have in obtaining all information concerning this matter. I acknowledge the Agency in its decision released a considerable amount of information to the Applicant. However, I also appreciate redactions made to documents and documents denied in full can create a sense of disappointment and frustration to an applicant, regardless of whether only a small amount of material is withheld, and an applicant may simply wish for a complete copy of a document without any redactions to any pages.

To the extent the Applicant’s motivations for seeking access to the information is to obtain a copy of the documents with no redactions, it would be met by release of the information.[16]

However, I consider the Applicant’s interest in the information would most likely serve the Applicant’s personal interest, rather than any public interest. I do not consider there is a broader public interest to be promoted by releasing the personal affairs information of third parties. Where an applicant’s motivation for seeking access to personal affairs information of a third party is more closely related to an applicant’s personal interest or curiosity in obtaining the information without a broader public interest, access is more likely to be unreasonable.[17]

Also, in circumstances where information is provided in confidence and relates to matters concerning the safety of third parties, I am of the view the stronger public interest lies in the Agency maintaining the confidentiality of the personal affairs information, particularly where it has not been widely disclosed.

1. 4. Whether the individuals to whom the information relates object or would be likely to object to the release of the information – As detailed above, the Agency did not consult with the individuals to whom the personal affairs information relates. In the circumstances, I am of the view it is likely the individuals concerned would object to release under FOI. Also, although some of the this information was recorded or obtained in the process of an Agency officer’s professional duties, I consider it likely that these individuals would also object to the release of their personal affairs information on the grounds that the information was provided and recorded in a sensitive context.
   5. In any case, while the view of a third party is a relevant consideration, it is not determinative of whether release of the documents is unreasonable in the circumstances.
   6. Release under FOI imposes no restrictions on further use or dissemination – This factor weighs against disclosure.
   7. Whether disclosure of the information would, or would be reasonably like to, endanger the life or physical safety of any person – There is no information before me to suggest this is a relevant factor.

43. In balancing the above factors, I have determined it would be unreasonable to release the personal affairs information to which the Agency has refused access under section 33(1).

Section 35(1)(b) – Documents containing material obtained in confidence

44. The Agency refused access to certain documents in full under section 35(1)(b). As I have determined that the information exempted by the Agency under section 35(1)(b) is exempt under other sections of the FOI Act, I have not considered the exemption under section 35(1)(b) in this matter.

Deletion of exempt or irrelevant information

45. 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.
46. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’^[18] 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.^[19]
47. I have considered the effect of deleting irrelevant and exempt information from the documents. In my view, it is practicable for the Agency to delete the irrelevant and exempt information in some of the documents, because it would not require substantial time and effort, and the edited documents would retain meaning.

Conclusion

48. On the information available, I am satisfied the exemptions in sections 30(1), 32(1) and 33(1) apply to some of the documents. I have decided to grant access to some of the documents in part and refuse access to some of the documents in full.

Review rights

49. If either party to this review is not satisfied with my decision, they are entitled to apply to VCAT for it to be reviewed.^[20]
50. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[21]
51. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[22]
52. 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.
53. 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.^[23]

When this decision takes effect

54. My decision does not take effect until the relevant review period (stated above) 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] Section 30(3).

[2] Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473 at 485, adopted in Department of Premier and Cabinet v Hulls [1999] VSCA 117 at [30].

[3] [2008] VCAT 913 at [16].

[4] [1981] 1 AAR 1.

[5] Hulls v Victorian Casino and Gambling Authority (1998) 12 VAR 483.

[6] Graze v Commissioner of State Revenue [2013] VCAT 869 at [29]; Elder v Worksafe Victoria [2011] VCAT 1029 at [22]. See also Evidence Act 2008 (Vic), section 119.

[7] Defined in section 117 of the Evidence Act 2008 (Vic) to mean communications made in circumstances where the Agency and its professional legal advisors were under an obligation not to disclose their contents.

[8] Section 118 of the Evidence Act 2008 (Vic).

[9] Section 119 of the Evidence Act 2008 (Vic).

[10] Thwaites v DHS [1998] VCAT 580 at [22]-[24].

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

[12] Section 33(9).

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

[14] Section 33(2B).

[15] Section 33(2C).

[16] See Hanson v Department of Education and Training [2007] VCAT 123.

[17] Gunawan v Department of Education [1999] VCAT 665.

[18] Mickelburough v Victoria Police (General) [2009] VCAT 2786 [31]; The Herald and Weekly Times Pty Limited v The Office of the Premier (General) [2012] VCAT 967 [82].

[19] Honeywood v Department of Human Services [2006] VCAT 2048 [26]; RFJ v Victoria Police FOI Division (Review and Regulation) [2013] VCAT 1267 [140], [155].

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

[21] Section 52(5).

[22] Section 52(9).

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