‘AW7’ and City of Ballarat (Freedom of Information) [2019] VICmr 206 (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 decision to refuse access to documents requested by the Applicant under the FOI Act.

My decision on the Applicant’s request is the same as the Agency’s decision.

On the information available, I am satisfied the exemptions in sections 32(1) and 38A(1)(b) apply to a majority of the documents.

As it is practicable to edit one of the documents to delete irrelevant information, I have determined to grant access to that document in part.

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 certain documents. Following a meeting with the Agency, the request was amended to all documents relating to:
   1. 1. Crown Land Lease [date and location] that was entered into by City of Ballarat and [third party] and that commenced on [date], and that was in force immediately before the commencement of this Part (Referring to [an Act of Parliament].)
         I am particularly interested in document numbers 4 and 17 which were identified as ‘exempt’ in FOI request [reference number].
      2. The subsequent Licence/Lease (or however described) referring to the same land referred to in (a) above entered into or sought to be entered into between the City of Ballarat and the Department of Environment, Land, Water and Planning acting on behalf of the responsible Minister. I am particularly interested in a letter from DELWP [Department of Environment, Land, Water and Planning] to City of Ballarat dated [date] and a letter from City of Ballarat to DELWP dated [date].
      3. Correspondence between City of Ballarat, [third party] and DELWP concerning the following:

1. 1. 1. • Crown Land Lease (as described in (a)) from [date range].
         • the request from City of Ballarat to DELWP to halt and/or prevent the sale of Crown Lease to [third party] as legislated in the Act of Parliament referred to in (a),
         • the issuing of an invalid licence for the said Crown Land in favour of the City of Ballarat over the area already leased to the [third party].
         • The decision by City of Ballarat to compulsory acquire [third party] land, as referred to in paragraph 3 of the letter from DELWP to City of Ballarat dated [date].

In order for (c) to be completed, an email search should be conducted for all emails sent to and from City of Ballarat to DELWP and [third party] with the keywords: ‘[location]’, ‘[third party]’, ‘compulsory acquisition’, ‘crown lease’, ‘licence’ and ‘sale’.

2. On [date], the Agency met with the Applicant who further amended their request. The request was defined as:
3. 1. Your request:
      1. [the applicant is] seeking copies of documents 4 & 17 which were identified as ‘exempt’ in FOI request [reference number].
      2. [the applicant is] seeking a letter from DELWP to City of Ballarat dated [date] and a letter from City of Ballarat to DELWP dated [date].
      3. (NO CHANGE) Correspondence between City of Ballarat, [third party] and DELWP concerning the following:

• • • • Crown Land Lease (as described in (a)) from [date range].
      • the request from City of Ballarat to DELWP to halt and/or prevent the sale of Crown Lease to [third party] as legislated in the Act of Parliament referred to in (a),
      • the issuing of an invalid licence for the said Crown Land in favour of the City of Ballarat over the area already leased to the [third party].
      • The decision by City of Ballarat to compulsory acquire [third party] land, as referred to in paragraph 3 of the letter from DELWP to City of Ballarat dated [date]. [sic]

In order for (c) to be completed, an email search should be conducted for all emails sent to and from City of Ballarat to DELWP and [third party] with the keywords: ‘[location]’, ‘[third party]’, ‘compulsory acquisition’, ‘crown lease’, ‘licence’ and ‘sale’.

([the applicant and the agency] agreed that the information you sought in parts a) and b) of your original request, is covered in part c))

1. 2. [the applicant has] agreed to receive the documents with all personal or identifying information removed. The only exception of this, is that the email domains will remain so as [the applicant is] able to see if emails were sent to or from either Council or DELWP (ie. @ballarat.vic.gov.au or @delwp.vic.gov.au).

If [the applicant identifies] any documents in which [they] want the personal details released, [they] are to let [the agency] know and [it] can commence third party consultation with the individuals and provide [the applicant] with a response and/or documents as soon as practicable.

3. In its decision, the Agency decided to grant access to one document in full, grant access to one document in part, and to refuse access to 286 documents.

Review

4. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
5. I have examined copies of the documents subject to review.
6. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.
7. I have considered all communications and submissions received from the parties, including:

• 1. the Agency’s decision on the FOI request;
  2. the Applicant’s review request and submission dated [date]; and
  3. the Agency’s submissions dated [various dates].

8. 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

9. The Agency relied on the exemptions in sections 32(1) and 38A(1)(b) to refuse access to a majority of the documents. The Agency’s decision letter sets out the reasons for its decision.

Section 32(1)

10. Section 32(1) provides:

Documents affecting legal proceedings

(1)     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.

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

• 1. between the client (or the client’s agent) and the client’s professional legal advisers, that was made for the dominant purpose of obtaining or providing legal advice or is referrable to pending or contemplated litigation; or
  2. between the client’s professional legal advisers and third parties, that was made for the dominant purpose of pending or contemplated litigation; or
  3. between the client (or the client’s agent) and third parties that was made for the purpose of obtaining information to be submitted to the client’s professional legal advisers for the dominant purpose of obtaining advice on pending or contemplated litigation.

12. The High Court of Australia has held the purpose of legal professional privilege, or client privilege ensures a client can openly and candidly discuss legal matters with their legal representative and seek legal advice:

The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor.[2]

13. Legal professional privilege requires the dominant purpose for which a confidential communication was made will determine whether the exemption applies.[3]
14. The document the Agency claimed exempt under section 32(1) is Document 289. It is an email chain between an Agency officer and its legal adviser.
15. I accept that these were confidential communications that were made for the dominant purpose of obtaining and providing legal advice. The document is therefore exempt under section 32(1) in full.

38A Council documents

16. Section 38A provides:

(1)      A document is an exempt document if it is—

(a)           the official record of any deliberation or decision of a closed meeting or part of a closed meeting (other than the official record under section 89(3) of the Local Government Act 1989 in the minutes of a meeting of the reason for closing a meeting to the public);

(b)          a document which, in the opinion of the principal officer of a council, has been prepared for, or will be used for, consideration of any matter by the council at a meeting, that in the opinion of the principal officer, is likely to be a closed meeting of the council;

(c)           a document that is a copy of, or of a part of, or contains an extract from, a document referred to in paragraph (a) or (b);

(d)          a document the disclosure of which would involve the disclosure of any deliberation or decision of a closed meeting (other than the     official record under section 89(3) of the Local Government Act 1989 in the minutes of a meeting of the reason for closing a meeting to the public) or of a meeting that is likely to be a closed meeting;

(e)          a document that is ancillary to, associated with or accompanying a document referred to in paragraph (a), (b), (c) or (d).

(2)              Subsection (1) does not apply to a document by reason of the fact that it was submitted to a closed meeting of a council for its consideration or is proposed to be so submitted if it was not brought into existence for the purpose of submission for consideration by a closed meeting.

17. In relation to the application of section 38A(1)(b) the Agency submitted:

Enquiries with the relevant Council department as well as Council’s Chief Executive Officer confirmed that all documents, reports, briefings and valuations regarding the compulsory acquisition and crown land lease of the land and buildings formerly owned by the [third party] and situated at[street address], Ballarat, were formulated, commissioned or came into existence for the sole purpose of submission to Section 89 Closed Council deliberations. A search of Council minutes and Agendas during the relevant period confirmed that all matters relating to the crown land lease and compulsory acquisition were conducted in Closed Council.

…

Any documentation, notes, emails etc that came into existence after that time ([specified date]), which relate to the acquisition, only came into existence as a result of this Closed Council resolution and are ancillary to or were to be “used for” consideration of a matter that, in the opinion of our Principal Officer, was likely to be a subsequent closed meeting of Council. Ultimately, the compulsory acquisition did not proceed as the [third party] agreed to sell the land and buildings to Council through private treaty. This sale was finalised in the last 3 months. As a result, the subsequent closed Council meeting on this matter was not required. Notwithstanding this outcome, at the time of this Agency’s decision letter, dated [date], and up until recently, it was the opinion of the Principal Officer that the documents were to “be used” and only came into existence for a matter to be considered at a closed meeting of Council.

18. The Agency also provided the following documents in support of its decision:
    1. A letter dated [date], signed by its Chief Executive Officer (CEO), [named person]. [Named person] is the Agency’s principal officer. The letter states [they are] of the view that 285 documents that were identified as within scope of the Applicant’s request were prepared for consideration at a closed council meeting and are therefore exempt under section 38A(1)(b).
    2. The confidential council agendas for [date], [date], [date] and [date].
19. In relation to the application of section 38A(1)(b), the Applicant submitted:

It is clear by just a cursory look at the Schedule of Documents -given some of the dates attributed, they could not have been brought into existence for the purpose of submission for consideration at a closed meeting. The first closed council meeting concerning the subject of the Request was the [date]. Documents for which an exemption was claimed, go back to [month year], when arguably there was never any intention of a closed council meeting.

The Applicant contends that it is not sufficient for the Respondent to merely assert an exemption, but rather the onus is on the Respondent to prove that each of the documents was brought into existence for the purpose of submission for consideration by a closed council meeting. For if it was otherwise, the application of this exemption would have the real and practical effect of subverting the objectives of the Act.

The Applicant is also concerned that the Respondent has wilfully claimed the exemption when the established evidence is that right up until [date], the Respondent was intending to release the bulk of the documents, yet a decision was made by the Principal Officer on [date], to claim the exemption for the 286 documents. It should also be noted that the City of Ballarat previously released material (CoB [reference number]) and claimed no exemption by virtue of S38A(1)(b) of the Act.

The Applicant is troubled that the Respondent is wrongly claiming exemptions over documents which otherwise it would otherwise be legally obliged to provide to the Applicant. The mere fact that a document was submitted or considered at a closed council meeting does of itself not render the document exempt from the provisions of the Act, unless it was brought into existence for the purpose of submission for consideration by a closed meeting.

20. The Agency applied section 38A(1) to Documents 1 through to 56, 58 through to 147, 149 through to 154, and 165 through to 288. These 285 documents include emails between the Agency and the Department of Environment, Land, Water and Planning (DELWP), draft correspondence to a third party, and other correspondence between the Agency and DELWP. The documents concern how those agencies dealt with the management of the parcels of land subject to this request.
21. Section 38A is an exemption that concerns the decision-making processes of Local Government Councils at Council meetings, in particular, at Council meetings closed to the public under section 89(2) of the Local Government Act 1989 (Vic) (the Local Government Act).
22. Section 89(2) of the Local Government Act provides for a Council meeting to be closed if certain matters are discussed. These matters include contractual matters, legal advice or any other matter which the council or special committee considers would prejudice the council or any persons.
23. In my view, section 38A(1) does not allow me to further consider each document and whether or not it was ‘prepared for’ a closed council meeting. I must only consider whether it is in the opinion of the principal officer that the documents were prepared for such meetings.
24. Accordingly, in order for the exemption to apply I must be satisfied the Agency has provided evidence for the principal officer holding such an opinion about the specific documents subject to the request.
25. It is clear from the principal officer’s letter dated [date] that it is [their] opinion that the documents subject to this request were prepared for consideration at a closed council meeting. This fact alone means the documents are exempt under section 38A(1)(b).
26. I will note however that the Agency has provided this office with information to support its view that the subject matter of the documents sought by the Applicant was subject to closed council meetings. I also accept that the matters subject to this request are likely to be discussed in closed council meetings in accordance with the Local Government Act.
27. While I note some of the documents are dated considerably earlier than, and some later than the last closed council meeting referred to by the Agency, I accept its submission that such documents could have been prepared for what was, at the time the documents were created, intended to be closed council meetings.
28. Furthermore, I note the additional provisions of section 38A(1), including for example 38A(1)(d) that provides for the exemption to apply to extracts from exempt documents, and 38A(1)(e) that applies to a document that is ‘ancillary to, or associated with or accompanying a document’ that is exempt under section 38A(1). The Act therefore is written in a way that applies broadly to such documents.
29. For the above reasons, I have decided Documents 1 through to 56, 58 through to 147, 149 through to 154, and 165 through to 288 are exempt under section 38A(1)(b).

Section 25

30. The Agency decided Documents 57, 184 and 155 were irrelevant to the request, as well as parts of Document 291.
31. I agree that Documents 57, 148 and 155 are irrelevant to the request.
32. In relation to Document 291, I note the personal affairs information, being names and contact details of Agency officers, have been removed as these were considered to fall outside the scope of the request. I understand the Applicant and the Agency discussed the provision of personal affairs information during their discussions as described above. I accept the Agency removed the information on the basis that it is irrelevant to the request. Should the Applicant now seek those names, it is open to them to request such information from the Agency.

Deletion of exempt or irrelevant information

33. 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 irrelevant information and the applicant agrees to receiving such a copy.
34. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’^[4] 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.^[5]

Conclusion

35. On the information available, I am satisfied the exemptions in sections 32(1) and 38A(1)(b) apply to a majority of the documents.
36. I have considered the effect of deleting irrelevant information from one of the documents. In my view, it is practicable for the Agency to delete the irrelevant information, because it would not require substantial time and effort, and the edited document would retain meaning.
37. As it is practicable to edit one document to delete irrelevant information, I have determined to grant access to that document in part.

Review rights

38. 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.^[6]
39. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[7]
40. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[8]
41. 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.
42. 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.^[9]

When this decision takes effect

43. My decision does not take effect until the relevant review period (stated above) expires. If a review application is made to VCAT, my decision will be subject to any VCAT determination.

Annexure 1 – Schedule of Documents

Endnotes

[1] Graze v Commissioner of State Revenue [2013] VCAT 869 at [29]; Elder v Worksafe Victoria [2011] VCAT 1029 at [22]. See also Evidence Act 2008 (Vic), section 119.

[2] Grant v Downs (1976) 135 CLR 674 at [19].

[3] Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67; 201 CLR 49.

[4] 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 at [82].

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

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

[7] Section 52(5).

[8] Section 52(9).

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