‘AS4’ and Department of Transport (Freedom of Information) [2019] VICmr 167 (15 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 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

15 November 2019

Reasons for Decision

Background to review

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

1. 1. 1. Amendments to the Financial Model within the CityLink Concession Deed, or
      2. Estimates and calculations of ‘Equity Return’ being achieved by investors in relation to CityLink Concession Deed, or
      3. Early expiry of the original concession period under the CityLink Concession Deed.
      4. The valuation and expected payments to be made with respect to Concession Notes held in under the CityLink Concession Deed.

… This request applies to relevant documents dated between 1 January 2004 and 31 December 2006.

The names of non-executive staff/external contact details of individuals can be treated as ‘outside the scope’ of this request.

2. In its decision, the Agency identified certain documents falling within the terms of the Applicant’s request. It decided to release the documents to the Applicant 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. As outlined in the FOI request, the Applicant indicated they do not seek the names of non-executive staff or the external contact details of individuals.
5. The Applicant also advised they do not seek review of Document H.
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 enclosed submission; and
  3. the Agency’s submissions dated 25 September and 17 October 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.

Review of exemptions

10. The Agency relied on the exemptions in sections 32(1) and 34(1)(b) to refuse access to the documents in part and in full. The Agency’s decision letter sets out the reasons for its decision.

Section 32(1)

11. 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’.
12. A document will be subject to legal professional privilege and exempt under section 32(1) where it contains a confidential communication:^[1]

• 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.

13. Legal privilege exists to protect the confidentiality of communications between a lawyer and their client. Privilege will be lost if the client acts in a way that is inconsistent with the maintenance of that confidentiality. For instance, where the substance of the information is disclosed with the client’s express or implied consent.^[2]
14. In its submission, the Agency advised part of Document F is exempt as it discloses confidential communications with its legal representative that were prepared for the purpose of providing legal advice to the Agency. The Agency also noted the first dot point on page 3 of Document J contains legal advice, however, this was identified in its original decision.
15. The Applicant advised from its description as ‘commercial in confidence draft paper, prepared January 2005’, Document F does not appear to be a communication from a legal representative to the Agency.
16. The Schedule of Documents in Annexure 1 contains my decision with respect to each document and section 32(1).

Section 33(1)

17. 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;^[3] and
  2. such disclosure would be ‘unreasonable’.

18. 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.^[4]
19. 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.
20. Section 33(2A) requires when 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 disclosure would, or would be reasonably likely to, endanger the life or physical safety of any person. I do not consider this is a relevant factor in this matter.
21. As I have decided to release further information in the documents, I have considered whether personal affairs information in the documents is exempt under section 33(1).
22. The Schedule of Documents in Annexure 1 contains my decision with respect to each document and section 33(1).

Section 34(1)(b)

23. 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.

24. In Thwaites v Department of Human Services,^[5] 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.
25. The words ‘business, commercial or financial nature’ have their ordinary meaning.^[6]
26. 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.

27. In addition, I note the narrowing by Parliament of the exemptions under section 34 with the passing of the Freedom of Information (Miscellaneous Amendments) Act 1999 (Vic). In the second reading speech, it was stated:

The Freedom of Information Act provides an exemption for a range of information relating to business, commercial and financial matters that is obtained by government agencies from business organisations. This exemption has been employed in the past, under the guise of commercial confidentiality, to prevent disclosure of documents that should be open to public scrutiny.

The bill narrows the ambit of this exemption. Under the proposed amendments documents will be exempt only if disclosure of information relating to business, commercial or financial matters would be likely to expose a business organisation unreasonably to a disadvantage. This narrower exemption will operate in conjunction with the government’s policy commitment to post all contracts for the delivery of services to the community on behalf of the government on the Internet. This will ensure that Victorians are aware of and better able to scrutinise business undertakings entered into by the government.

28. In line with the above, I consider the exemption in section 34(1)(b) contemplates a commercial undertaking may be exposed to a certain level of disadvantage due to disclosure of a document under the FOI Act. Therefore, the issue to determine is whether the undertaking is likely to be exposed unreasonably to disadvantage.
29. In its submission, the Agency advised the following in relation to consultation it undertook with the business undertakings in this matter:
    1. Consultation took place with three named non-government entities: entity 1 is a legal firm, entity 2 is a consultancy that created financial modelling, and entity 3 is a consultancy that provided additional services in relation to the modelling.
    2. Entity 1 agreed to disclosure under section 34(1)(b) but raised concerns about information subject to section 32(1).
    3. Entity 2 objected to the release of its information.
    4. Entity 3 did not object to the release of its information.
30. The Agency also submitted in relation to documents relating to entity 2:
    1. The documents disclose information acquired by the Agency from the entity.
    2. Although another entity agreed to the disclosure of its information, that information itself originated from the entity.
    3. The information in the documents ‘forms part of the structure of [the entity’s] commercially sensitive negotiation business models’.
    4. Disclosure of the documents would be likely to expose the entity unreasonably to disadvantage.
31. The Agency also advised it took into account the response of entity 2:
    1. The entity provided the information to the Agency in confidence.
    2. The information is commercially sensitive data that relates to its business model and is not available to its competitors. It contains assumptions and ‘return rates’ the disclosure of which would expose the undertaking to significant competitive disadvantage.
    3. The information is more detailed than what is publicly released.
    4. Disclosure would cause substantial harm to the undertaking.
32. The Applicant advised in their review request that they sought to challenge the Agency’s view that disclosure of the documents would be likely to expose entity 2 unreasonably to disadvantage. The Applicant submitted:
    1. The issue in this matter is whether disclosure of the documents would expose entity 2 unreasonably to disadvantage [Applicant’s emphasis].
    2. The introduction of the word ‘unreasonably’ to the FOI Act was to narrow the application of the exemption.
    3. Whether the entity wishes the information to remain confidential is irrelevant.
    4. During the second reading speech, quoted above, the then government was critical of the exemption being used to prevent disclosure of documents that should be subject to public scrutiny and these documents fall within this criticism.
    5. The entity has failed to provide any information about how the business models and other financial data, which are 13 to 16 years old, and which relate to completed projects, could expose it unreasonably to disadvantage.
33. The Schedule of Documents in Annexure 1 contains my decision with respect to each document and section 34(1)(b).

Deletion of exempt or irrelevant information

34. 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.
35. 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]
36. I have considered the effect of deleting irrelevant and exempt information from the documents. In my view, it is practicable to delete irrelevant and exempt information in the documents as to do so would not require substantial time and effort, and the edited documents would retain meaning.

Conclusion

37. 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.
38. On the information before me, I am satisfied:
    1. section 34(1)(b) does not apply to the documents;
    2. section 32(1) does apply to part of one document; and
    3. section 33(1) does not apply to the documents.
39. The Schedule of Documents in Annexure 1 contains my decision with respect to each document.

Review rights

40. If either party to this review is not satisfied with my decision, they are entitled to apply to VCAT for it to be reviewed.^[9]
41. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[10]
42. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[11]
43. 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.
44. 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

45. Section 49P(5) states that, if I decide to disclose a document claimed to be exempt under sections 33 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.
46. 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]

47. 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]
48. I have decided notifying the relevant third parties under section 49P(5) would not be practicable for the following reasons:

• 1. in all the circumstances, I do not consider the personal affairs information is sensitive;
  2. the personal affairs information appears in the context of individuals’ work and professional duties rather than their personal or private lives; and
  3. the significant passage of time since the documents were created.

49. I have decided notifying the third party that was consulted and objected to the release of their information under section 34(1)(b) is practicable.

When this decision takes effect

50. I have decided to release documents that contain matters of a commercial nature relating to third party business undertaking / information provided in confidence by or on behalf of a third party.
51. The relevant third party will be notified of my decision and is entitled to apply to VCAT for a review within 60 days from the date they are given notice.
52. 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] 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.

[2] Sections 122(2) and (3) of the Evidence Act 2008 (Vic) (for CLP) or Mann v Carnell (1999) 201 CLR 1 at [28] (for LPP).

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

[4] Section 33(9).

[5] (1999) 15 VAR 1.

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

[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].