‘AW1’ and Department of Education and Training (Freedom of Information) [2019] VICmr 200 (13 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 in that I have decided to release additional information in the documents.

I am satisfied the documents are exempt under sections 30(1), 33(1) and 35(1)(b) in part and in full.

As I am satisfied it is practicable to delete irrelevant and exempt information from the documents in accordance with section 25, I have decided to grant access to certain documents in part and refuse access to certain documents 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

13 December 2019

Reasons for Decision

Background to review

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

…. my [child’s] whole school file

From [specified school] for [named child]

2. In its decision, the Agency identified 54 documents falling within the terms of the Applicant’s request. It decided to grant access to seven documents in full, 45 documents in part and refuse access to one document in full. It also decided to release one document outside the FOI Act.

Review

3. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
4. I have examined copies of the documents subject to review.
5. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.
6. 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 submissions dated 7 August 2019, 10 October 2019 and 14 October; and
  4. all other communications with the Applicant and the Agency.

7. 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

8. The Agency relied on the exemptions in sections 30(1), 33(1), 35(1)(a) and 35(1)(b) to refuse access to parts of the documents. The Agency’s decision letter sets out the reasons for its decision.
9. During the review, the Agency informed OVIC the Agency no longer relies on the exemption under section 35(1)(a). The Agency also withdrew its reliance on section 30(1) with respect to Documents 10, 13, 17, 20 and 23.

Section 30(1)

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. Having reviewed the documents, I am satisfied certain information exempted by the Agency is in the nature of opinion and recommendation provided by an Agency officer. I note the documents contain information relating to staff observations, comments, notes and other forms of internal communication.
15. However, some documents contain information relating to an Agency officer’s factual recollection of events. I consider this information to be factual. Therefore, I am not satisfied all information exempted by the Agency under section 30(1) is exempt by virtue of section 30(3).

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?

16. The term ‘deliberative process’ has been interpreted widely. In Re Waterford and Department of Treasury (No. 2),[3] 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.

17. Having reviewed the documents, I am satisfied certain information was provided in the course of the Agency’s deliberative processes relating to the provision of educational services and managing incidents in a government school.

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

18. In deciding if disclosure would be contrary to the public interest, I must consider all relevant factors remaining mindful the object of the FOI Act is to facilitate and promote the disclosure of information.
19. In its decision, the Agency identified the following factors against disclosure:

• 1. disclosure would be likely to inhibit frankness and candour in the making of communications;
  2. disclosure would undermine any process of the agency;
  3. disclosure may inhibit robust and candid advice from public servants in the future;
  4. disclosure may compromise the Government’s ability to obtain access to information;
  5. disclosure would reasonably be expected to prejudice the protection of an individual’s right to privacy;
  6. disclosure would reasonably be expected to prejudice an agency’s ability to obtain confidential information; and
  7. disclosure would reasonably be expected to prejudice an agency’s ability to obtain similar information in the future.

20. In deciding whether information exempted by the Agency would be contrary to the public interest, I have given weight to the following 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 carefully reviewed the documents and considered the Agency’s reasons for decision and submission, I am of the view it would not be contrary to the public interest to release certain information in the documents as:
    1. I do not consider the Agency’s opinions or recommendations recorded to be particularly sensitive; and
    2. disclosure would not be reasonably likely to discourage or inhibit Agency officers from recording similar opinions and recommendations in the future.
22. However, the following factors have informed my decision to exempt certain information on grounds I am satisfied its disclosure would be contrary to the public interest:
    1. I consider student behaviour, and issues and incidents between students, are a relatively common occurrence in the school environment. However, I note the sensitivity of the information in the documents. While I consider a parent is entitled to an understanding of a school’s decisions in relation to their child, this does not equate to a right of access to all documents prepared by an educational institution where disclosure may undermine the integrity of the school’s internal processes designed specifically to address sensitive issues with which the school is responsible for handling or resolving.
    2. I appreciate the Applicant has a strong personal interest in obtaining access to the documents in full. Furthermore, I acknowledge there is 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 by an agency. 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 relevant issues before deciding on an outcome. In such circumstances, it is desirable for the Agency officers to seek and exchange opinions in an open and candid way.
    4. While Agency officers are professionally obliged as public sector employees to provide frank advice and opinions, I accept disclosure would be reasonably likely to discourage or inhibit Agency officers from recording similar communications in a detailed manner in the future. This would be contrary to the public interest as it would have a detrimental effect of the ability of the Agency to conduct a thorough and considered process, which in turn would compromise the provision of educational services and the management of incidents in Victorian government schools. Any diminution of as a result of the routine release of similar opinions could generally have adverse consequences for the Agency, schools and members of the community.
23. Accordingly, I am satisfied it would be contrary to the public interest to release certain information in the documents and this information is exempt under section 30(1).

Section 33(1)

24. 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;^[5] and
    2. such disclosure would be ‘unreasonable’.
25. 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.[6]
26. 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 matter.

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

27. The exempt information relates to the names of individuals, including students, and the names, email address, telephone number, mobile number, email address and signatures of Agency officers.
    I am satisfied this information relates to the personal affairs information of individuals other than the Applicant and the Applicant’s child.
28. Also, having closely reviewed the documents, I consider certain parts contain personal affairs information relating to the Applicant’s child. However, this information is intertwined with the personal affairs information of other students.
29. Finally, I do not consider information deleted by the Agency that relates to statements made by the Applicant’s child is the personal affairs information of an individual other than the Applicant or the child.

Would it be unreasonable to release the personal affairs information?

30. In deciding whether the exemption applies, it is necessary to determine whether disclosure of personal affairs information in the documents would be unreasonable.
31. 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.
32. In its decision, the Agency decided release of the personal affairs information of several individuals would be unreasonable, and took into account a number of factors, including:

• 1. the views of the third party consulted by the FOI unit;
  2. disclosure would reasonably be expected to prejudice the protection of an individual’s right to privacy, including where the personal information is that of:
     1. children from [named school] other than [named child];
     2. Victorian Public Service (VPS) employees at or below the rank of VPS Grade 6.
  3. disclosure may cause stress and anxiety for the individuals affected;
  4. disclosure would reasonably be expected to prejudice an agency’s ability to obtain similar information in the future; and
  5. disclosure would reasonably be expected to harm the interests of an individual or group of individuals.

33. 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.[7]
34. 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]
35. The Agency advised it consulted with some of the individuals whose personal affairs information had been exempted under section 33(1) and most of these individuals objected to the release of their personal affairs information. The Agency also advised that it determined it was not practicable to consult with all of the individuals given the number of individuals and the absence of up-to-date contact information held by the Agency.
36. I have given 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 maintaining a record of communications between Agency officers and communications with the Applicant, recording incidents involving students and detailing strategies for students. In the circumstances, I consider this information to be sensitive in nature. This weighs against disclosure.

1. 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 weighs against disclosure.

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

The Applicant has not provided information regarding [their] reasons or motives for seeking access to the personal affairs information of third parties in the documents. However, I appreciate the strong personal interest the Applicant may have in obtaining all information concerning [their] child. I also appreciate redactions made to documents 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.[10]

However, I consider the Applicant’s interest in the information would most likely serve [their] 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.[11]

Also, in relation to the personal affairs information of other students, 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 and concerns the information of a minor.

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 consulted with some of the individuals to whom the personal affairs information relates and most of these individuals objected to the release of their personal affairs information.

In the circumstances, I am of the view it is likely the other students and/or their guardian/s would object to release under FOI.

In relation to the personal affairs information concerning Agency staff, I do not accept the Agency’s decision that the rank of the Agency’s officers is a relevant factor in the circumstances. Although this information was recorded or obtained in the process of the individual’s professional duties, I consider it likely that these individuals would object to the release of their personal affairs information on the grounds the information was obtained in a sensitive context.

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.

1. 5. 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 in this matter.

37. In balancing the above factors, I have determined it would be unreasonable to release most of the personal affairs information to which the Agency has refused access under section 33(1).
38. The Schedule of Documents in Annexure 1 sets out my decision in relation to each document and section 33(1).

Section 35(1)(b)

39. A document is exempt under section 35(1)(b) 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. disclosure would be contrary to the public interest as it would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.

Would disclosure divulge information communicated in confidence?

40. Whether information communicated by an individual was communicated in confidence is a question of fact.^[12]
41. When determining whether information was communicated in confidence, it is necessary to consider the position from the perspective of the communicator.^[13]
42. Confidentiality can be express or implied from the circumstances of a matter.^[14]
43. The Agency applied the exemption under section 35(1)(b) to documents provided to the Agency by third parties detailing incidents involving the Applicant and the Applicant’s child. Having viewed the documents, I am satisfied from the context of the information received that it was provided to the Agency in confidence.
44. The Agency denied access to information communicated by an Agency officer/third party, based on its application of section 35(1)(b).
45. As such, there is a question as to whether the information was ‘communicated to’ the Agency as required by section 35(1)(b).
46. The Victorian Civil and Administrative Tribunal (VCAT) gave thorough consideration to this issue in Birnbauer and Davies v Inner and Eastern Health Care Network.[15] The Tribunal member concluded:

…in my view, where an officer of an agency records a matter and reports it to his superior or makes the information available through some established reporting channel within the agency, the information in question is properly to be regarded as “communicated” to the agency.  …

Section 35(1)(b) is capable of operating with respect to information communicated to an agency not only by outsiders but also by its own officers.[16]

47. In this matter, I consider that section 35(1)(b) is capable of applying to this type of information, given that the information was recorded by an Agency officer and it is reasonably likely it was reported to the school’s principal. In my view, the Agency’s communicating officers’ position is analogous to that of a source external to the Agency.[17] . Having viewed the document, I am satisfied from the context of the information received that it was provided to the Agency in confidence.

Would disclosure be contrary to the public interest?

48. In deciding whether disclosure would be contrary to the public interest, I must consider whether disclosure of the documents would be reasonably likely to impair the ability of the Agency to obtain similar information in the future.
49. The Agency in its submission letter dated 7 August 2019 stated:

I do note that the Department does not have statutory powers whereby we can compel individuals to provide information to the Department (such as Victoria Police, the Independent Broad-based Anti-Corruption Commission or the Victorian Information Commissioner). Accordingly, we rely on individuals to voluntarily provide information to the Department, and it is therefore reasonable for individuals to assume that we will protect the confidentiality of that individual’s identity and submission.

50. In deciding whether disclosure would be contrary to the public interest, I must consider whether disclosure of the confidential information would be reasonably likely to impair the Agency’s ability to obtain similar information in the future. The provision does not permit me to have regard to other matters, such as any public interest in favour of release, or the extent to which an applicant’s personal interest in the documents would be served by granting access to the documents. Rather, the provision is confined to the effect disclosure would have on the provision of similar communication to an agency in the future.
51. In relation to the information provided to the Agency by third parties, I consider disclosure would be reasonably likely to impair the ability of the Agency to obtain similar information in the future if the Agency was not able to provide an assurance of confidentiality. This would certainly have a detrimental effect on the Agency’s ability to effectively ensure the ongoing health and safety of its staff and students. Therefore, this type of information provided in confidence in the documents is exempt under section 35(1)(b).
52. However, in relation to the information provided by an Agency officer to the Agency, I do not consider disclosure would be reasonably likely to impair the ability of the Agency to obtain similar information in the future, given that Agency officers are professionally obliged to record and provide information to the Agency concerning student safety. Therefore, this type of information is not exempt under section 35(1)(b).
53. The Schedule of Documents in Annexure 1 sets out my decision in relation to each document and section 35(1)(b).

Deletion of exempt or irrelevant information

54. 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.
55. 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]
56. I have considered the information the Agency deleted from the documents as irrelevant. I agree it falls outside the scope of the Applicant’s request because it relates to matters or people other than those specified in the request.
57. I have considered the effect of deleting irrelevant and exempt information from the documents. In my view, it is practicable to delete the irrelevant and exempt information, because it would not require substantial time and effort, and the edited documents would retain meaning.

Conclusion

58. On the information before me, I am satisfied the documents are exempt under sections 30(1), 33(1) and 35(1)(b) in part and in full.
59. As I am satisfied it is practicable to delete irrelevant and exempt information from the documents in accordance with section 25, I have decided to grant access to certain documents in part and refuse access to certain documents in full.
60. The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.

Review rights

61. 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]
62. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[21]
63. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[22]
64. 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.
65. 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

66. 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] [1981] 1 AAR 1.

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

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

[6] Section 33(9).

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

[8] Section 33(2B).

[9] Section 33(2C).

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

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

[12] Ryder v Booth [1985] VR 869 at 883; XYZ v Victoria Police [2010] VCAT 255 at [264].

[13] Ibid, XYZ at [265].

[14] Ibid.

[15] [1999] VCAT 1363.

[16] Ibid at paragraphs 14 and 15.

[17] See the Tribunal’s remarks in Sportsbet Pty Ltd v Department of Justice (General) [2010] VCAT 8 at 77 (noting this case was decided differently on the facts).

[18] 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].

[19] 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].

[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).