‘AW5’ and Victoria Police (Freedom of Information) [2019] VICmr 204 (18 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 fresh decision to refuse access to documents requested by the Applicant under the FOI Act.

My decision is the same as the Agency’s decision in that I have decided to refuse access to the documents in full. I have, however, applied a different exemption to some of the documents.

The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.

My reasons for decision follow.

Sven Bluemmel

Information Commissioner

18 December 2019

Reasons for Decision

Background to review

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

• 1. Complete comprehensive copy of my personnel file at [Agency] from [year] onward
  2. Copy of all persons who listed me as a ‘Declarable Association’ since [year] onward
  3. Copy of the report provided to [named person] or [named person] by [workplace investigator name & business] in relation to the allegations against me, and referred to vaguely in a meeting with [named person] on [date], this report was purportedly provided to [the Agency] and referred to by [named person] in a letter to myself on [date]

2. In its decision letter dated 31 January 2019, the Agency addressed each point of the Applicant’s request as follows:

• 1. Part 1 – The Agency advised that the Applicant could make arrangements to view their ‘service records’ through the Agency’s Human Resources department and provided relevant contact information for the Applicant to arrange this.
  2. Part 2 – The Agency advised that after a thorough and diligent search, no documents associated with this part of the request were located.
  3. Part 3 – The Agency identified one document falling within the terms of this part of the Applicant’s request, a [named] Report (workplace report)

3. The Agency decided to refuse access to the workplace report in full.

Review

4. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
5. Upon commencement of the review, it became apparent that the annexures (attachments) to the workplace report had not been discovered in the Agency’s initial search. The attachments consist of statements and associated evidence supplied by witnesses interviewed as part of the workplace investigation process, the attachments also included an extract from the Agency’s Manual Procedures and Guidelines. The Agency was alerted that the attachments were missing on 4 April 2019 and undertook further searches to secure these documents.
6. On 16 May 2019, the Agency advised OVIC that it had located the attachments and intended to reconsider its position. The Agency wrote a letter to the Applicant and this office dated 20 May 2019 advising it had decided to revoke the decision of 31 January 2019 and would be making a fresh decision.
7. Section 49M(1) permits an agency to make a fresh decision on an FOI request during a review. Section 49M(2) stipulates the fresh decision must be made within 28 days of the notification provided under subsection (1). In this case, the Agency provided notification to this office and the Applicant on 20 May 2019 and was therefore due to make its fresh decision prior to 17 June 2019.
8. On 14 June 2019, the Agency sought an extension of time to make its fresh decision, and submitted the following factors in support of its application for an extension of time:

• 1. The complex and sensitive nature of the request
  2. It was not practical to consult, therefore greater analysis is required to be undertaken in making the fresh decision
  3. Numerous additional documents were sourced requiring further assessment
  4. The original decision (and review) did not include the additional documents

9. Under section 49M(2), on 17 June 2019, I agreed to grant the Agency an extension of time until 5 July 2019 to make its fresh decision.
10. On 4 July 2019, the Agency made a fresh decision which advised that it had located and assessed 39 documents (totalling 243 pages). The Agency refused access to 37 documents (including the original document) in full. The Agency did grant access to two documents in part and also released 85 pages to the Applicant outside of the FOI Act.
11. The Applicant did not agree with the Agency’s fresh decision and, as required by section 49MA(2),
    I proceeded with my review on the basis of the fresh decision.
12. I have examined copies of the documents subject to review.
13. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.
14. I have considered all communications and submissions received from the parties, including:

• 1. the Agency’s initial and fresh decision on the FOI request;
  2. the Applicant’s submission dated 13 August 2019 and information provided with the Applicant’s review application; and
  3. all communications between OVIC staff, the Applicant and the Agency.

15. 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

16. The Agency relied on section 33(1) to refuse access to parts of the two documents released to the Applicant.
17. The Agency relied on sections 30(1), 33(1) and 35(1)(b) to refuse access to the remaining documents in full. The Agency’s decision letter sets out the reasons for its decision.
18. The documents to which the Agency refused access in full fit within two categories: the workplace report and the attachments. I will consider each document category in turn.

The Workplace Report

Section 30(1)

19. 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.

20. The exemption does not apply to purely factual material in a document.^[1]
21. 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.
22. Whilst the workplace report was prepared by a business, I am satisfied that the business was engaged by the Agency to investigate workplace allegations and prepare the workplace report. Accordingly, I am satisfied that the staff member of the business who prepared the report is an officer of the Agency in these circumstances.
23. I am also satisfied that the document contains information in the nature of opinion and advice which was provided in the course of, and for the purpose of, the Agency’s deliberative process of investigating workplace complaints.
24. The third requirement under section 30(1) is that disclosure of the matter would be contrary to public interest. Considering this requires a ‘process of the weighing against each other conflicting merits and demerits’.^[2]
25. 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.
26. In deciding whether disclosure of the matter would be contrary to the public interest, I have taken the following into consideration^[3]:

• 1. the right of every person to gain access to documents under the FOI Act;
  2. the degree of sensitivity of the issues involved;
  3. whether the disclosure would be likely to inhibit frankness and candour in the making of communications;
  4. whether disclosure would lead to confusion or unnecessary debate having regard to the possibilities discussed;
  5. whether the disclosure will give merely a part explanation rather than a complete explanation for the taking of a particular decision;
  6. the likelihood disclosure of the documents would inhibit the independence of officers or the making of proper and detailed research and submissions by them; and
  7. the likelihood disclosure would create mischief in one way or another such as a risk of mischievous interpretation.

27. Given the particular circumstances of this matter, from both the perspective of the Applicant and the Agency, I consider this information to be of a higher degree of sensitivity than other workplace investigation matters. The allegations contained within the report are of a very sensitive nature and the Applicant has raised concerns during the review process which should also be treated cautiously.
28. I acknowledge the Applicant has a strong interest in obtaining access to the information. The report was prepared as a result of their behaviour and it has had an impact on the course of their employment.
29. I consider that the Applicant has a right to know about the process followed by the workplace investigator, although only to an extent that it does not reveal the identities of other parties involved in the workplace investigation. The Applicant should be able to make their own assessment as to whether the investigation was conducted in a fair and impartial manner.
30. The Agency submitted that it would be contrary to the public interest to release the personal opinions of the workplace investigator and the professional opinions and records of the thought processes of Agency officers, which were provided as part of the workplace investigation. The Agency outlined that its staff must be able to communicate freely about workplace issues to ensure they can be thoroughly investigated.
31. I am inclined to agree with the Agency in the circumstances of this particular case, and would add that the release of the report would be contrary to public interest as it has the potential to inhibit future investigations regarding employee conduct. Such investigations are inherently sensitive in nature.
32. A complete investigation relies on free and fulsome information being provided to an investigator by witnesses and other third parties. Without an open information flow, an investigation may not be successful in obtaining accurate and detailed information, potentially resulting in flawed or biased findings.
33. Release of information likely to undermine the investigative process and the free flow of information is therefore contrary to the public interest. If investigations cannot be conducted in a comprehensive manner, this may have serious negative implications for public sector bodies given that investigations are dependent on candid input from those involved.
34. As I have noted above, I do appreciate that the Applicant is seeking information about themselves. However, this does not equate to a right of access to an entire report commissioned and prepared for the Agency, especially where release may undermine the efficient conduct of government by undermining the implementation of recommendations, or otherwise allowing an applicant to continue on a futile course of action to overturn a decision or cause significant disruption to an agency.[4]
35. The ‘essential public interests’ that limit release of information under the FOI Act, to my mind, includes the integrity of investigative processes for these reasons.[5]
36. Having balanced the Applicant’s interest in the information with the public interest concerns discussed, I have determined that some information in the workplace report is not, of its own, exempt. However, as discussed below, deletion of the exempt information would render the remaining document devoid of meaning.
37. The Schedule of Documents at Annexure 1 outlines my decision on the application of section 30(1) to the workplace report.

Section 33(1)

38. 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’.

39. 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]
40. 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.
41. 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.
42. 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 (or their next of kin, if deceased) 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]
43. The Agency advised it did not consult with third parties as it was reasonably likely such consultation would cause them undue distress.
44. In its submission, the Agency provided the following reasons for deciding the disclosure of the personal affairs information in the document would be unreasonable:
    1. The purpose for which [the Agency] obtained the personal information;
    2. The likelihood of further disclosure of the personal information, should it be released;
    3. The fact that a release under the FOI Act imposes no restrictions on further use or dissemination;
    4. No authority was provided by [the Applicant] from any party involved consenting to the release of their personal information to [the Applicant];
    5. It is unreasonable to consult with third parties in these circumstances to obtain consent to release their personal information to [the Applicant]; and
    6. The likelihood of third parties objecting to the release of their personal information.
45. As outlined above, the nature of the information contained within the document is inherently sensitive, it has been held that the more sensitive the information, the more likely it is that its disclosure is unreasonable.[10] Further, the information was obtained in confidence, as evidenced by markings on the report and the circumstances in which the information was obtained, this also supports the view that disclosure is unreasonable in these circumstances.[11]
46. I appreciate that the Applicant has outlined to this office their purpose for seeking the information and their proposed intentions should the information be released to them, however, I am not in a position to comment on whether their purpose would be fulfilled should they be granted access to the document.
47. Whilst the Agency has not consulted with the third parties in this matter, I consider it likely they would object to the release of their information to the Applicant. This is based on the information before me, including the purpose for which their details have been recorded in the document and the sensitive circumstances surrounding the workplace investigation.
48. I note that the Applicant is likely to already be aware of the identities of some of the third parties mentioned within the report, as this information comes from the Applicant’s own statement. However, the release of personal affairs information can still be unreasonable even where the information is known to the Applicant.[12]
49. Upon balancing the above factors, I consider it unreasonable to release the personal affairs information of third parties in these circumstances.
50. The Agency has also relied upon the exemption set out in 35(1)(b) to exempt this document. My comments regarding section 35(1)(b), as outlined below regarding ‘the attachments’, remain applicable to the entire report which contains parts or excerpts of witness statements.
51. As noted above, the Schedule of Documents at Annexure 1 contains details of my decision with respect to the workplace report which is classified as Document 1.

The Attachments

52. The Agency relied upon sections 30(1), 33(1) and 35(1)(b) to refuse access to different documents contained within the attachments. I will first consider the application of section 35(1)(b) to all of the attachments, in their entirety.
53. The Agency released attachments 18 and 19 in part, relying on the exemption set out in section 33(1) to refuse access to parts of the documents. Whilst I note the nature of these documents is less sensitive than the workplace report and other attachments which record information provided by third parties, I consider that the information exempt within the documents concerns the personal affairs information of third parties and that it would be unreasonable to release the information in these circumstances for the same reasons outlined above.

Section 35(1)(b)

54. The Agency denied access to the following documents in full under section 35(1)(b):

• 1. Documents 1, 4, 5, 6, 7, 9; and
  2. Documents 19, 22 and 35

55. 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.

56. Whether information communicated by an individual was communicated in confidence is a question of fact.[13]

Was the information obtained in confidence?

57. The attachments consistent of the witness statements and associated documents provided by third parties in the course of the preparation of the workplace investigation report. I cannot describe the documents in further detail, as doing so may inadvertently reveal exempt material. All documents subject to this review make reference to the matter being handled in a confidential manner.
58. When determining whether information was communicated in confidence, it is necessary to consider the position from the perspective of the communicator.[14] I have carefully considered the material in the attachments, and in particular, the perspectives of the third parties who were interviewed as part of the investigation.
59. I acknowledge that the Applicant likely has knowledge of the identity of some of the witnesses and details of the allegations made against the Applicant. However, section 35(1)(b) can still apply if I am satisfied that the information was communicated in circumstances that gave rise to an expectation of confidentiality, and that its disclosure would be contrary to the public interest.
60. In the context of this matter, I am satisfied that those who made statements to the workplace investigator did so in circumstances in which confidentiality can reasonably be implied, based on the nature and context of the relevant information. Disclosure of the document would therefore divulge information communicated in confidence.
61. The Victorian Civil and Administrative Tribunal (VCAT) has previously considered the definition of “information” with respect to section 35(1)(b) of the FOI Act and has found that the exemption does not distinguish between reliable information and misinformation.
62. In Re Landsberger v Victoria Police[15] the Administrative Appeals Tribunal held that in the context of a police investigation, the truth or untruth of information was immaterial to the establishment of the exemption under section 35(1)(b).
63. This view was affirmed in Marke v Victoria Police[16], where VCAT held that –

… Parliament in balancing the competing interests of the public and providers of information found it necessary to include the exemption in the legislation without any requirement that it be truthful or accurate.

64. I consider that the same reasoning applies to workplace investigations. Accordingly, I am satisfied that the information contained in the document was communicated to the Agency in confidence, regardless of whether it is true or not true.

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

65. The second limb of section 35(1)(b) requires an FOI decision maker to determine whether the disclosure of a document would be reasonably likely to impair the Agency’s ability to obtain similar information in the future.
66. The public interest test in section 35(1)(b) is narrow, in that it is directed toward the impact that release would have on an agency’s ability to obtain the same type of 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 the Applicant’s personal interest in the documents would be served by granting them access to the documents.
67. I accept that the Agency relies on information provided voluntarily by third parties in order to deal with and investigate workplace matters. Such information will generally, by its very nature, be highly personal, sensitive and confidential.
68. I accept that if third parties who voluntarily provide witness information to workplace investigators were aware that their identity or the information provided would be disclosed in response to a FOI request, they would be unlikely to communicate similar information to the Agency in the future. I consider this to be a significant and detrimental outcome that would impede the ability of the Agency to fully investigate complaints made against its employees.
69. I am therefore satisfied that the disclosure of the attachments would be contrary to the public interest as it would be reasonably likely to impair the Agency’s ability to obtain similar information in the future.
70. Accordingly, I am satisfied that the attachments listed at paragraph 54, are exempt in full under section 35(1)(b) of the FOI Act.

Deletion of exempt or irrelevant information

71. 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.
72. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’^[17] 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.^[18]
73. I have considered the effect of deleting exempt information from the workplace report. In my view, it is not practicable for the Agency to delete the exempt information, because the edited document would not retain meaning and would be devoid of context.

Conclusion

74. On the information available, I am satisfied the exemptions in sections 30(1), 33(1) and 35(1)(b) apply to some of the workplace report. As it is not practicable to edit the workplace report in order to release information which is not exempt, I have determined to refuse access to the workplace report in full.
75. Moreover, I am satisfied that the exemption set out in section 35(1)(b) applies to all of the attachments either in full or in part, other than those released outside of the FOI Act by the Agency.

Review rights

76. If either party to this review is not satisfied with my decision, they are entitled to apply to VCAT for it to be reviewed.^[19]
77. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[20]
78. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[21]
79. 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.
80. 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.^[22]

When this decision takes effect

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

[4] Billinghurst v Department of Industry, Technology and Resources [1986) 1 VAR 299 at [307].

[5] Section 3.

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

[7] Section 33(9).

[8] Section 33(2B).

[9] Section 33(2C).

[10] Page v Metropolitan Transit Authority (1988) 2 VAR 243 at [246]

[11] Levy v Department of Sustainability and Environment [2011] VCAT 417 at [18]; AB v Department of Education & Early Childhood Development [2011] VCAT 1263 at [57].

[12] AB v Department of Education & Early Childhood Development [2011] VCAT 1263 at [58].

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

[14] Ibid.

[15] (1989) 3 VAR 100 at [102].

[16] [2006] VCAT 1364 at [56].

[17] Mickelburough v Victoria Police (General) [2009] VCAT 2786 [31]; The Herald and Weekly Times Pty Limited v The Office of the Premier (General) [2012] VCAT 967 [82].

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

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

[20] Section 52(5).

[21] Section 52(9).

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