‘AS1’ and Department of Environment, Land, Water and Planning (Freedom of Information) [2019] VICmr 164 (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 differs from the Agency’s decision.

I am not satisfied the documents are exempt under sections 34(1)(b), 35(1)(a) and 33(1) and have determined to release the documents to the Applicant in full.

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

14 November 2019

Reasons for Decision

Background to review

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

Copy of [third party’s] Safety Assessment, submitted to the Agency, concerning the airstrip at [location], in relation to the proposed [named] Windfarm; and

All documents relating to the aviation issues as set out in paragraphs [number to number] of Planning Permit [permit number].

2. In its decision, the Agency identified five documents falling within the terms of the Applicant’s request. It decided to refuse access to the documents in full.
3. Documents subject of the review relate to a publicly available planning permit. Paragraphs [number to number] state that:

[paragraphs of permit]

4. I note considerable information on the [named] Wind Farm is publicly available. For example, on the [third party] website which includes the proposed location of the turbines and planning process available on the Victorian government’s website, engage.vic.gov.au.

Review

5. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access to the documents.
6. I have examined copies of the documents subject to review.
7. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.
8. 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 review application and subsequent information received 15 October 2019;
  3. the Agency’s submission dated 18 September 2019 and dated 16 October 2019;
  4. the information supplied by [the third party] in response to the review request dated 1 August 2019.

9. 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.

Preliminary view provided by OVIC

10. On 1 October 2019, having conducted an initial assessment of the documents, OVIC issued a preliminary view to the Agency advising neither the Agency, nor [the third party], as a third party business undertaking that was consulted by Agency under section 34(3), had provided sufficient information to demonstrate disclosure of the documents would expose the third party unreasonably to disadvantage for the purposes of section 34(1)(b). Further:

• • The wind farm at issue has planning approval, and as such the third party is not subject to commercial pressures that would be a consideration if other entities were in competition to construct the wind farm. I also note that the documents subject to this request are specific to the location and their release is unlikely to have any commercial value to any competitors of the third party.
  • The third party advised it was concerned the information had not been finalised and that this may affect its ability to achieve compliance with certain planning permit requirements. I accept this view, however I do not consider the third party has explained with sufficient detail how it would be disadvantaged.
  • As set out above in the Act, the Commissioner must be satisfied such disadvantage would be likely and unreasonable, and for the reasons set out in the above paragraph, I do not consider these criteria have been met.

…

Noting that if the conditions have been superseded, that information could be provided to the applicant regarding how to request the up to date document outlining the current ‘recommended conditions’.

11. Having considered the preliminary view, the Agency was invited to make a fresh decision under section 49M, agree to release more information without making a fresh decision under section 49M, release information outside the Act or provide a written submission in response to the preliminary view, in particular addressing the following issues:

• • more information about how all the requirements of section 34(1) apply to the documents including how they undertaking will be unreasonably disadvantaged by disclosure;
  • whether you have conducted further consultation with the other parties or whether you do not consider it practicable; and
  • whether there is a document that provides an up to date ‘recommended conditions’ referred to by [the third party] that could be provided to the applicant.

12. On 16 October 2019, the Agency responded to the preliminary view, providing the following information:

• • Consultation did not occur with the other third party business undertakings, as their business information was considered to be the business and commercial information of [the third party].
  • There is currently no document that provides up to date recommendations referred to by the third party.

Review of exemptions

13. The Agency relied on section 34(1)(b) to deny access to the documents. The Agency’s decision letter sets out the reasons for its decision. I have considered additional exemptions in my reasons below.

Section 34(1)(b)

14. Section 34(1)(b) provides a document is an exempt document if its disclosure would disclose information acquired by an agency from a business, commercial or financial undertaking and:

• 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.

15. In Thwaites v Department of Human Services,^[1] the phrase ‘information acquired’ in section 34(1) was interpreted as requiring some positive handing over of information in some precise form.
16. The words ‘business, commercial or financial nature’ should be given their ordinary meaning.^[2]
17. The phrase ‘expose the undertaking unreasonably to disadvantage’ contemplates disclosure of documents of a business, commercial or financial nature will involve a certain measure of disadvantage for a business undertaking. Parliament’s intention in this regard is clear from the introduction to the FOI Act in 1993 of the word ‘unreasonably’ in section 34(1)(b). Therefore, the issue is whether a business undertaking will be exposed unreasonably to disadvantage.
18. 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.

19. The documents subject to the Applicant’s request are aircraft safety assessments regarding the location of three wind turbines planned for the vicinity of an Aeroplane Landing Area (ALA). They comprise a covering letter by [the third party] and four additional reports commissioned by [the third party] from external consultants.
20. The Agency advised it consulted with [the third party] in relation to its views on disclosure in accordance with section 34(3). [The third party] responded as follows:

As the location of the turbines for the [named] Wind Farm has not been finalised it is premature to demonstrate compliance with this condition [the requirement for air safety assessments]. Therefore the submitted aircraft safety reports have been withdrawn with the intention of resubmitting updated reports following the finalisation of the turbine layout. Consequently, it is likely that the content of these reports will be superseded.

[The third party] intend to publicly provide the aircraft safety assessments which respond to the finalised turbine layout once compliance with condition [number] of the Planning Permit is achieved.

It is the view of the [third party] that the reports subject to the FOI have been withdrawn from consideration and are not public documents forming part of the Planning Permit. The release of the withdrawn reports are not in the interests of [the third party] and will potentially confuse the future process of achieving compliance under Condition [number] of the Planning Permit. If [the Agency] are of the view that the subject reports be released, [the third party] request that the recommended conditions outlined by [named consultancy 2] are redacted as these conditions are superseded.

21. In the Applicant’s review request and subsequent communication with OVIC, they advised:
    1. Section 34(1) should not apply given the ‘site specific’ nature of the documents and they relate to compliance with a planning permit.
    2. Condition 1 of the planning permit requires [the third party] to submit plans to the responsible authority for endorsement, those plans need to show the ‘final locations, specifications, materials and finishes of the wind energy facility’.
    3. Endorsed plans cannot vary from the layout and locations of turbines as publicly advertised and condition 1 requires plans ‘must be generally in accordance with the application plans’.
    4. As such, information in the reports must be generally in accordance with the advertised plans, being public knowledge and would not cause the business undertaking commercial disadvantage.
    5. Correspondence from [the third party] to the Applicant confirms the reason for non-disclosure is not that the documents are commercial in confidence nor that it will suffer commercial disadvantage if the documents are disclosed.
    6. [The third party] have already secured a planning permit. It has exclusive control of the [named] Wind Farm with no competition to either the operation of the wind farm or the Applicant’s ALA.
    7. The Applicant named three external consultants they believe were engaged by [the third party] and subject to this request.
22. The Applicant also provided a letter, dated [date], from [the third party] to the Applicant. The letter states it engaged two consultants to prepare aircraft safety assessments, and two further consultants to review those assessments. [The third party] advised it had received draft reports, however, the reports are unable to be finalised until the entire turbine layout is finalised. Once the layout is finalised, the reports can be completed. Once compliance with the planning permit is known, the reports will be provided to the Applicant.
23. I accept disclosure of the documents would disclose information acquired by the Agency from a business undertaking and the information is of a business, financial or commercial nature, being the construction of a wind farm by a commercial entity, supported by specialised advice provided by external consultants. However, I have decided disclosure of the information would not be likely to expose [the third party], or the consultants it engaged, unreasonably to disadvantage for the purposes of section 34(1)(b).
24. In making this decision I have given weight to the following factors:
    1. The wind farm has received planning approval. As such, [the third party] is not subject to commercial pressures that would be a consideration if other entities were in competition to construct the wind farm. I also note the documents are specific to the location and their release is unlikely to have any commercial value to any competitors of [the third party].
    2. [The third party] advised it was concerned the information had not been finalised and this may affect its ability to achieve compliance with certain planning permit requirements. I accept disclosure may expose [the third party] to some disadvantage in relation to the relevant planning permit requirements if the documents were to be disclosed. As set out above, I must be satisfied disclosure of the documents would expose [the third party] unreasonably to disadvantage. However, based in the information provided to date, I am not satisfied [the third party] has established how and the extent to which it would be disadvantaged in a commercial or competitive sense by disclosure of the documents.
    3. While I note the other third parties were not consulted in relation to disclosure of the documents, in relation to the attached reports prepared by consultants engaged by [the third party], I consider they are highly technical in nature and relate to the specific circumstances of this matter. On the information before me, I do not accept disclosure of the information would expose those consultants unreasonably to disadvantage in a commercial or competitive sense.
    4. I also note, if circumstances were to change which impacted upon disclosure of the documents, it is open to the Agency to provide any new information to the Applicant.
25. As [the third party] noted the preliminary nature of the documents, particularly in relation to one of the reports it commissioned from a consultant, I have also considered whether the documents are exempt under section 35(1)(a).

Section 35(1)(a)

26. A document is exempt under section 35(1)(a) 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. the information would be exempt matter if it were generated by an agency or Minister.
27. In relation to paragraph 26(a) above, I consider it is reasonable to consider [the third party] provided the information to the Agency in confidence in support of meeting planning permit requirements. Therefore, the first condition is met.
28. In relation to paragraph 26(b) above, in order to determine if this condition is met it is necessary to undertake the same analysis as for the exemption in section 30(1).
29. Therefore, I must consider if the documents had been prepared by an agency whether they would be exempt under section 30(1), the requirements of which are set out below.

Section 30(1)

30. 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 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.
31. The exemption does not apply to purely factual material in a document.^[3]
32. I must also be satisfied releasing this information would not be contrary to the public interest. This requires a ‘process of the weighing against each other conflicting merits and demerits’.^[4]
33. In deciding if release would be contrary to the public interest, I must consider all relevant facts and circumstances remaining mindful the object of the FOI Act is to facilitate and promote the disclosure of information.
34. In deciding whether disclosure of the matter would be contrary to the public interest, I have taken the following into consideration 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, status of policy development or a process being undertaken at the time the communications or documents were made;
  4. whether 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 by the Agency 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.

35. My decision in relation to each document is set out in the schedule at Annexure 1.

Section 33(1)

36. I note the documents contain personal affairs information of people other than the applicant. Therefore, I have considered whether section 33(1) applies to all or parts of the documents.
37. 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;^[6] and
  2. such disclosure would be ‘unreasonable’.

38. 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.^[7]
39. The concept of ‘unreasonable disclosure’ involves balancing the public interest in the disclosure of official information with the personal interest in privacy in the circumstances of a particular matter.
40. 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.
41. 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.[8] 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.[9]
42. The Agency did not exempt information in the documents under section 33(1). Therefore, it did not consult with the consultants as to their views of disclosure of personal affairs information. I also note three of the four consultants are known to the Applicant, including the names of those persons responsible for preparing three of the documents.
43. My decision in relation to section 33(1) and each document is set out below in Annexure 1.

Conclusion

44. On the information before me, I am not satisfied the documents are exempt under sections 34(1)(b), 35(1)(a) and 33(1) and have determined to release the documents to the Applicant in full.

Review rights

45. 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.^[10]
46. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[11]
47. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[12]
48. 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.
49. 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.^[13]

Other matters

50. Section 49P(5) states that if I decide to disclose a document claimed to be exempt under sections 33(1) or 34 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.
51. 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.^[14]

52. VCAT also considers the possibility of an unnecessary intrusion into the lives of third parties is relevant when assessing the practicability of notifying them.^[15]

When this decision takes effect

53. I have decided to release documents that contain information relating to the personal affairs of individual third parties and matters of a commercial nature relating to third party business undertakings.
54. 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.
55. 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] (1999) 15 VAR 1.

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

[3] Section 30(3).

[4] 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].

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

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

[7] Section 33(9).

[8] Section 33(2B).

[9] Section 33(2C).

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

[11] Section 52(5).

[12] Section 52(9).

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

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

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