‘AV3’ and Victoria Police (Freedom of Information) [2019] VICmr 193 (10 December 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 satisfied certain documents are exempt under sections 31(1)(d) and 33(1). However, I have decided to release additional information to the Applicant where I have determined it is not exempt under the FOI Act.

As I am satisfied it is practicable to provide the Applicant with an edited copy of the documents with exempt information deleted in accordance with section 25, I have determined to grant access to certain documents in part.

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

10 December 2019

Reasons for Decision

Background to review

1. In summary, the Applicant made a request to the Agency for access to certain documents regarding a telephone call to a [media outlet] which resulted in the Agency conducting an investigation into the possible disclosure of Agency information by an Agency officer or officers.
2. The documents to which the Applicant seeks access include, a recording or transcript of the telephone call made to the [media outlet] … [redacted]; and any other ‘relevant information’ about the event and any action taken against the Agency officer.
3. In its decision, the Agency identified certain documents falling within the terms of the Applicant’s request. It decided to refuse access to two documents in full and release six documents in part.
4. While the Agency identified a DVD containing an audio recording of a [media] segment, a copy was not able to be provided to the Applicant due to technological issues.

Review

5. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
6. I have examined copies of the documents subject to review and been briefed by OVIC staff who inspected the documents claimed to be exempt under section 31(1)(d).^[1]
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 received from the parties, including:

• 1. the Agency’s decision on the FOI request; and
  2. correspondence from the Applicant during the handling of this review;

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 under sections 30(1), 33(1), 31(1)(d) to refuse access to the documents. The Agency’s decision letter sets out the reasons for its decision.

Section 30(1)

11. 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.

12. The exemption does not apply to purely factual material in a document.^[2]
13. 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 or engaged by or for the agency, whether that person is one to whom the provisions of the Public Administration Act 2004 (Vic) apply or not.

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. Document 3 is a letter from the former Office of Police Integrity to the Agency’s former Ethical Standards Department (ESD).[3]
15. The document contains an Agency officer’s decision regarding the recommendations and determinations following the ESD investigation.
16. Accordingly, I am satisfied the document discloses matter in the nature of opinion of the officer, and interagency consultation that has taken place during the investigation.

Were the documents 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?

17. I am satisfied the document was prepared in the course of, and for the purpose of the Agency’s deliberative processes relating to ESD investigations.

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

18. 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.
19. In its decision, the Agency stated:

… it would be contrary to the public interest to release this information as members of police must be able to freely communicate their professional opinions and thought processes so as to ensure that these types of incidents are thoroughly investigated and to ensure that decisions made regarding the direction of investigations are subject to proper thought and thorough deliberation.

20. In deciding whether the information exempted by the Agency would be contrary to the public interest, I have given weight to the following relevant factors:^[4]

• 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 or 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.

21. Having reviewed the exempted information and considered the above factors, I am not satisfied it would be contrary to the public interest to release the officer’s final decision in response to the ESD’s determinations and recommendations regarding its investigation. In particular, I am not satisfied disclosure of this document would have the unintended impact of stifling the Agency’s ability to conduct thorough and considered investigations.
22. I acknowledge evaluation of evidence gathered and deliberations regarding potential outcomes of investigation of this nature is highly sensitive and confidential in nature. However, I am not satisfied this document discloses any evaluation of information gathered during the investigation, the decision making processes between the officers or the reasons for the officer’s decision. The document simply records the outcome of the investigation and does not contain any evaluation of evidence or reasons for the final outcome. Also, I note other concluding recommendations were released to the Applicant in other documents.
23. Accordingly, I have determined the information exempted by the Agency in Document 3 is not exempt under section 30(1).

Section 31(1)(d)

24. Section 31(1)(d) provides (subject to this section) a document is exempt if its disclosure would, or would be reasonably likely to, ‘disclose methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures’.
25. The exemptions in section 31(1) do not apply to widespread and well-known methods and procedures.^[5]
26. The Agency exempted certain information in Documents 2, 5 and 6 under section 31(1)(d) and stated in its decision:

Part of the denied information comprises details of the methods and procedures used by police during the course of preventing and detecting breaches of law. I am satisfied that the release of this information would be reasonably likely to prejudice the future effective use of those methods and procedures pursuant to the provisions of section 31(1)(d) of the Act.

27. Having reviewed the exempted information, I am satisfied it relates to procedures employed by Agency officers in its investigations of its officers. I am constrained in providing any further description of the exempted information as to do so would likely disclose the relevant information.
28. Further, I am satisfied the exempted information is not widespread or well-known amongst the public. Having considered the likely effect of disclosing this information under the FOI Act, which provides for unrestricted and unconditional release of information, I am satisfied disclosure would be reasonably likely to undermine the use by the Agency and effectiveness of these methods and procedures in carrying out investigations and its law enforcement functions.
29. Accordingly, I am satisfied the relevant information is exempt under section 31(1)(d).
30. The Schedule of Documents in Annexure 1 sets out my decision with respect to section 31(1)(d) in relation to each of the documents.

Section 33(1) – Documents containing personal affairs information

31. 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’.

Do the documents contain personal affairs information?

32. Information relates to the ‘personal affairs’ of a person if it is reasonably capable of identifying them, or of disclosing their address or location.[7]
33. It has also been held information relates to an individual’s personal affairs if it ‘concerns or affects that person as an individual’.[8]
34. As the nature of disclosure under the FOI Act is unrestricted and unconditional, this is to be interpreted by the capacity of any member of the public to identify a third party.[9]
35. The Applicant was not involved in this matter and is not named in any of the documents.
36. The documents subject to review contain information relating to names, position titles, employee identification numbers, telephone numbers, signatures and other information relating to third parties.
37. Accordingly, I am satisfied the documents contain the personal affairs information of individuals other than the Applicant.
38. However, I am not satisfied some of the information exempted by the Agency under section 33(1) in Document 5 is personal affairs information. Accordingly, this information is not exempt under section 33(1).

Would release of the personal affairs information be unreasonable?

39. The concept of ‘unreasonable disclosure’ involves determining whether the public interest in the disclosure of official information is outweighed by the personal interest in privacy.
40. In determining whether disclosure of the personal affairs information in the documents would be unreasonable, I have considered the following factors:
    1. The nature of the personal affairs information and the circumstances in which the information was obtained

The information was obtained by the Agency in the context of undertaking a workplace investigation into allegations of unauthorised release of information by an Agency officer. I am satisfied such information is inherently sensitive in nature as it relates to the conduct of an Agency officer. This factor weighs against disclosure.

1. 2. The Applicant’s interest in the information, and whether their purpose for seeking the information is likely to be achieved

The FOI Act provides a general right of access that can be exercised by any person, regardless of their motive or purpose for seeking access to a document. However, the reasons why an applicant seeks access to a document is a relevant consideration in determining whether disclosure would be unreasonable.[10]

The Applicant seeks access to the information in relation to a [professional publication] they have written and to confirm if what they have written is accurate. As such, I consider the purpose to be for a personal reason.

While disclosure of the requested information may serve the Applicant’s purpose, given the sensitive nature of the information requested, I am not persuaded the Applicant’s purpose for is of sufficient weight to weigh in favour of disclosure.

1. 3. The likelihood of further disclosure of information, if released

The FOI Act does not impose any conditions or restrictions on an applicant’s use of documents obtained under the FOI Act. Accordingly, I must consider the likelihood and potential effects of further dissemination of a third party’s personal affairs information if released.

In light of the Applicant’s stated purpose for obtaining the information and their occupation as a [redacted], I am satisfied it is reasonably likely the Applicant will publish or further dissemination the personal affairs information. This factor weighs against disclosure. Again, in the context of sensitive information, this factor weighs against disclosure.

1. 4. Whether any public interest would be promoted by release of the information

As stated above, the Applicant seeks access to the information for a personal reason.

It is not apparent any public interest would be served by release of the personal affairs information. Rather, given the nature of the information, I am of the view the public interest in this case lies in preserving the privacy of third parties in the documents. This factor weighs against disclosure.

1. 5. Whether the individuals to whom the information relates object, or would be likely to object, to the release of the information

I do not have any information before me as to the views of the individuals to whom the information relates, as the Agency determined it was not practicable to consult with third parties.

Having regard to the circumstances in which the documents were created, I am of the view the third parties would be reasonably likely to object to the release of their personal affairs information. This factor weighs against disclosure.

1. 6. Whether the disclosure of information would, or would be reasonably likely to endanger the life or physical safety of any person[11]

There is no information before me to suggest this is a relevant factor in this case.

41. Having weighed up the above factors, I have determined disclosure of the personal affairs information in the documents would be unreasonable in the circumstances.
42. The Schedule of Documents in Annexure 1 sets out my decision with respect to section 33(1) in relation to each of the documents.

Deletion of exempt or irrelevant information

43. 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.
44. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’^[12] 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.^[13]
45. I have considered the effect of deleting irrelevant and exempt information from the documents. In my view, it is practicable to delete the information, because it would not require substantial time and effort, and the edited documents would retain meaning.

Conclusion

46. On the information before me, I am satisfied certain documents are exempt under sections 31(1)(d) and 33(1). However, I am not satisfied certain information is exempt under sections 30(1) and 33(1). Accordingly, I have decided to release additional information to the Applicant where I have determined it is not exempt under the FOI Act.
47. As I am satisfied it is practicable to provide the Applicant with an edited copy of the documents with exempt information deleted in accordance with section 25, I have determined to grant access to certain documents in part.
48. The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.

Review rights

49. 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.^[14]
50. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[15]
51. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[16]
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.^[17]

Other matters

54. Section 49P(5) states if I decide to disclose a document claimed to be exempt under section 33(1)
    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.
55. 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.^[18]

56. VCAT also considers the possibility of an unnecessary intrusion into the lives of third parties is relevant when assessing the practicability of notifying them.^[19]
57. I have decided it is not practicable to notify the relevant third parties of their right to review in this matter given the sensitive nature of the personal affairs information and the impact consultation would likely have on affected third parties.

When this decision takes effect

58. 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 63D provides such documents may only be inspected at an agency’s premises and the Information Commissioner is not entitled to take possession of them.

[2] Section 30(3).

[3] ESD is now known as Professional Standards Command.

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

[5] XYZ v Victoria Police [2010] VCAT 255 at [177].

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

[7] Section 33(9).

[8] Hanson v Department of Education & Training [2007] VCAT 123 at [9].

[9] O’Sullivan v Department of Health and Community Services (No 2) [1995] 9 VAR 1 at [14]; Beauchamp v Department of Education [2006] VCAT 1653 at [42].

[10] Victoria Police v Marke [2008] VSCA 218 at [104].

[11] Section 33(2A).

[12] 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].

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

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

[15] Section 52(5).

[16] Section 52(9).

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

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

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