Australian Broadcasting Corporation and Department of Justice and Community Safety (Freedom of Information) [2021] VICmr 209 (30 June 2021)

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 determined to grant access to additional information in certain documents.

I am satisfied certain information in the documents is exempt under sections 30(1), 31(1)(a), 32(1), 33(1) and 38 in conjunction with section 104ZZA of the Corrections Act 1986 (Vic) (Corrections Act).

Where I am satisfied it is practicable to provide the Applicant with an edited copy of a document with irrelevant and exempt information deleted in accordance with section 25, I have determined to grant access to the document in part. Where it is not practicable to do so, I have refused access to the document 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

30 June 2021

Reasons for Decision

Background to review

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

All hard copy and electronic material held by CCA [Correct Care Australasia] – whether held by the department; or by CCA – including communications (letters, emails, attachments, texts, messages on social media, discussion forums or other platforms, and notes or minutes of any discussion or meeting), video, audio, data, text, reports in any form and any other material generated or obtained concerning the death.

2. The Agency identified 225 pages of documents falling within the terms of the Applicant’s request. The Agency advised additional documents were located and, by agreement with the Applicant, will be processed as a separate request.
3. The Agency advised that, included with the discovered documents, were documents relating to the judicial functions of the Coroners Court of Victoria. Section 6 of the FOI Act provides documents relating to the judicial functions of the Courts are not covered by the FOI Act. Therefore, the Agency is unable to process the documents that fall under this section of the FOI Act.
4. For the remainder of the documents, the Agency determined to grant access in part. The Agency relied on sections 30(1), 31(1)(a), 31(1)(d), 32(1), 33(1) and 38 to refuse access to parts of the documents. The Agency’s decision letter sets out the reasons for its decision.

Review

5. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
6. During the review, the Applicant raised concerns with OVIC about the adequacy of the Agency’s document searches. Specifically, the Applicant believed the Agency should have located additional documents relevant to their request. In accordance with section 61B(3), these concerns were addressed as part of this review.
7. OVIC staff made further inquiries with the Agency regarding the Applicant’s concerns and the outcome of those inquiries were communicated to the Applicant.
8. In the circumstances, I am satisfied OVIC has made reasonable inquiries with the Agency regarding the Applicant’s concerns and the Agency conducted a thorough and diligent search for relevant documents based on the terms of the Applicant’s request.
9. In their review request, the Applicant indicate they do not seek access to personal identifying information. Rather, they seek deidentified factual information about what happened in the lead up to and the immediate aftermath of the incident the subject of the request.
10. I have examined a copy of the documents subject to review.
11. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.
12. I have considered all communications and submissions received from the parties.
13. 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.
14. I note Parliament’s intention the FOI Act must be interpreted so as to further the object of the Act and any discretions conferred by the Act must be exercised, as far as possible, so as to facilitate and promote the disclosure of information in a timely manner and at the lowest reasonable cost.

Review of exemptions

Section 30(1) – internal working documents

15. 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;
   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.

15. The exemption does not apply to purely factual material in a document.^[1]
16. In determining 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.
17. In this case, I have given weight to the following relevant factors:^[2]

1. 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 communications 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 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.

15. The Schedule of Documents in Annexure 1 sets out my decision in relation to section 30(1).

Section 31(1)(a) – law enforcement documents

20. Section 31(1)(a) provides, subject to section 31, that a document is an exempt document if its disclosure under the FOI Act would, or would be reasonably likely to ‘prejudice the investigation of a breach or possible breach of the law or prejudice the enforcement or proper administration of the law in a particular instance’.
21. ‘Reasonably likely’ means there is a real chance of an event occurring; it is not fanciful or remote.^[3]
22. ‘Prejudice’ means to hinder, impair or undermine and includes actual prejudice as well as impending prejudice.^[4]
23. ‘In a particular instance’ does not require a single specific investigation. This phrase can encompass specific, identified aspects of law, administration of law or investigations of breaches or potential breaches of law.^[5]
24. The Schedule of Documents in Annexure 1 sets out my decision in relation to section 31(1)(a).

Section 32(1) – documents affecting legal proceedings

25. 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’.
26. A document will be subject to legal professional privilege and exempt under section 32(1) where it contains a confidential communication:^[6]

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;
   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.

27. Having reviewed the documents, I am satisfied the information identified by the Agency and exempted in Document 12 is confidential legal advice provided by its legal advisers.
28. The Schedule of Documents in Annexure 1 sets out my decision in relation section 32(1).

Section 33(1) – documents affecting personal privacy

29. Section 33(1) provides a document is exempt if its disclosure under the FOI Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).
30. The Applicant does not seek access to personal affairs information. However, as section 33(1) also encompasses information from which a third party’s identity could reasonably be determined, I have also considered this exemption.
31. Given the sensitivity of this matter and the incident, I have taken a broad view of the types of information that could identify a third party.
32. On balance, I have determined it would be unreasonable to release information from which the identity of third parties could be determined for the following reasons:

1. 1. the personal affairs information in the documents is sensitive;
   2. it is likely the relevant third parties would object to release of the information under the FOI Act; and
   3. the nature of disclosure under the FOI Act means, once a document is disclosed, an applicant is free to use or further disseminate the document as they choose. Given the sensitive nature of the personal affairs information in the documents, I am not satisfied the public interest would be served by disclosure of the documents under the FOI Act in these circumstances.

29. Accordingly, I am satisfied certain information in the documents is exempt under section 33(1).
30. In doing so, I note the Applicant’s states in their review application:

…in many of the emails, the entire email address of a sender or recipient including the agency for which they work has been redacted. This goes beyond protecting personal privacy, and results in a version of the correspondence devoid of the context necessary to understand what it represents.

35. The Schedule of Documents in Annexure 1 sets out my decision in relation to section 33(1).

Section 38 – documents to which secrecy provisions of enactments apply

36. Section 38 provides a ‘document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications’.
37. For section 38 to apply to an enactment, the enactment must be formulated with such precision that it specifies the actual information sought to be withheld.
38. The Agency relies on section 38 in conjunction with section 104ZZA of the Corrections Act to exempt the names of prison officers and their position titles on grounds this information would identify a person, the name of a prisoner and a related third party.
39. Section 104ZZA of the Corrections Act provides it is an offence:

… to use or disclose personal or confidential information unless authorised by a person who is or has been a relevant person must not use or disclose personal or confidential information unless that use or disclosure is authorised under section 104ZY or 104ZZ.

Penalty: 120 penalty units.

40. ‘Personal or confidential information’ includes:

(a)        information relating to the personal affairs of a person who is or has been an offender or a prisoner;

…

(c)        information—

(i)         that identifies any person or discloses his or her address or location or a journey made by the person; or

(ii)        from which any person’s identity, address or location can reasonably be determined;

…

(h)       information concerning procedures or plans to be adopted or followed in a prison in the event of an emergency;

(i)         information concerning the management of prisons;

41. While I acknowledge the Applicant does not seek access to the names of individuals, section 104ZZA of the Corrections Act applies to information from which a person’s identity, address or location can be reasonably determined.
42. Sections 104ZY and 104ZZ of the Corrections Act sets out exceptions to section 104ZZA.
43. From my review of the documents, I am satisfied certain information is exempt under section 38 for the following reasons:

1. 1. I am satisfied the Corrections Act is an Act in force for the purposes of section 38.
   2. The Corrections Act is formulated with sufficient precision to identify information in relation to which a prohibition on disclosure applies. Namely, information that would identify a prisoner or information concerning the management of prisons.
   3. The Corrections Act prohibits disclosure of such information and unauthorised disclosure is an offence subject to a penalty.
   4. The exceptions in sections 104ZY and 104ZZ of the Corrections Act do not apply in this matter.

44. The Schedule of Documents in Annexure 1 sets out my decision in relation to section 38.

Section 25 – 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 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’^[7] and the effectiveness of the deletions. Where deletions would render a document meaningless, they are not ‘practicable’, and release of the document is not required under section 25.^[8]
47. I have considered the effect of deleting irrelevant or exempt information from the documents in accordance with section 25. I am satisfied it is practicable do to so to delete the irrelevant or exempt information, where it would not require substantial time and effort, and the edited documents would retain meaning.

Conclusion

48. On the information before me, I am satisfied certain information in the documents is exempt under sections 30(1), 31(1)(a), 32(1), 33(1), and 38 in conjunction with section 104ZZA of the Corrections Act. However, my decision involves the release of additional information to the Applicant where I am satisfied it is not exempt from release.
49. Where I am satisfied it is practicable to provide the Applicant with an edited copy of a document with irrelevant and exempt information deleted in accordance with section 25, I have determined to grant access to the document in part. Where it is not practicable to do so, I have refused access to the document in full.
50. The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.

Review rights

51. 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]
52. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[10]
53. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[11]
54. 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.
55. 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]

When this decision takes effect

56. My decision does not take effect until the Agency’s 14 day review period expires.
57. 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] Hulls v Victorian Casino and Gambling Authority (1998) 12 VAR 483.

[3] Bergman v Department of Justice Freedom of Information Officer [2012] VCAT 363 at [65], quoting Binnie v Department of Agriculture and Rural Affairs [1989] VR 836.

[4] Ibid, Bergman at [66], referring to Sobh v Police Force of Victoria [1994] VicRp 2; [1994] 1 VR 41 at [55].

[5] Cichello v Department of Justice (Review and Regulation) [2014] VCAT 340 at [24].

[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] 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).