‘BG4’ and Department of Transport (Freedom of Information) [2020] VICmr 64 (13 March 2020)

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 not satisfied the documents are exempt under section 34(1)(b).

As I am satisfied it is practicable to delete irrelevant information in the documents in accordance with section 25, I have determined to grant access to the 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

13 March 2020

Reasons for Decision

Background to review

1. The Applicant made a request to the Agency for access to the following documents:
   1. AII files, records, documents, and images held by VicRoads regarding VIV inspections, audits and show cause notices involving [vehicle make] previously registered as [registration number].
   2. All files, records, documents, and images held by VicRoads regarding VIV inspections, audits and show cause notices involving [vehicle make] bearing VIN [number].
   3. All files, records, documents, and images held by VicRoads regarding VIV inspections, audits and show cause notices involving [vehicle make] bearing VIN [number].
   4. All files, records, documents, and images held by VicRoads regarding VIV inspections, audits and show cause notices involving [vehicle make] which was booked for a VIV appointment at [Business Name] VIV Centre at [Location], on [date].
   5. All files, records, documents, and images held by VicRoads regarding VIV inspections for [year] [vehicle make] with VIN [number] now bearing Victorian registration [registration number] and all correspondence between VicRoads and owners [Name] and [Name] regarding the failure of VIV inspection Booking Number [Number] at [Business name] vehicle inspections and subsequent further VIV inspection of this vehicle at [Business Name] prior to its re-registration as [registration number] on [date].
   6. All files, records, and documents, held by VicRoads regarding formal complaint made by myself against [Name] in [Month/Year], and all files. records, and documents, relating to the resolution of that complaint.
   7. All files, records, and documents, held by VicRoads regarding formal complaint made by myself on [date] under VicRoads complaint reference [number], and all files, records, and documents, relating to the resolution of that complaint.
   8. All files, records, and documents, held by VicRoads regarding formal complaint made by myself, on [date] under VicRoads complaint reference [number] and all files, records, and documents, relating to the resolution of that complaint.
   9. All files, records, and documents, held by VicRoads regarding formal complaint made by myself, on [date] under VicRoads complaint reference [number] and all files, records, and documents, relating to the resolution of that complaint.
2. In its decision, the Agency identified 122 documents falling within the terms of the Applicant’s request and refused access to the documents in part.

Review

3. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
4. The Applicant advised they do not seek the personal affairs information of third parties in the documents.
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 received from the parties, including:

• 1. the Agency’s decision on the FOI request; and
  2. the Applicant’s review application.

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 33(1) and 34(1)(b) to refuse access to parts of the documents. The Agency’s decision letter sets out the reasons for its decision.

Section 33(1)

10. As stated above, the Applicant does not seek access to the personal affairs information of third parties, accordingly this information is not subject to review and my review relates to section 34(1)(b) only.

Section 34(1)(b)

11. Section 34(1)(b) provides a document is exempt if its disclosure under the FOI Act would disclose information acquired by an agency from a business, commercial or financial undertaking and:
    1. the information relates to other matters of a business, commercial or financial nature; and
    2. the disclosure of the information would be likely to expose the undertaking unreasonably to disadvantage.
12. In Thwaites v Department of Human Services,^[1] the Victorian Civil and Administrative Tribunal (VCAT) observed the phrase ‘information acquired’ in section 34(1) signifies the need for some positive handing over of information in some precise form.
13. The words ‘business, commercial or financial nature’ have their ordinary meaning.^[2]
14. The Agency advised it consulted with the third party undertakings and I have considered their responses in my decision.
15. In deciding whether disclosure of business information would expose an undertaking unreasonably to disadvantage, for the purposes of section 34(1)(b), section 34(2) provides that I may take account of any of the following considerations:
    1. whether the information is generally available to competitors of the undertaking;
    2. whether the information would be exempt matter if it were generated by an agency or a Minister;
    3. whether the information could be disclosed without causing substantial harm to the competitive position of the undertaking; and
    4. whether there are any considerations in the public interest in favour of disclosure which outweigh considerations of competitive disadvantage to the undertaking, for instance, the public interest in evaluating aspects of government regulation of corporate practices or environmental controls—
    5. and of any other consideration or considerations which in the opinion of the agency or Minister is or are relevant.
16. In summary, I am satisfied the documents contain information acquired by the Agency from business undertakings. Further, I am satisfied certain information in the documents amounts to business, commercial or financial information. However, I am not satisfied disclosure of the information would be likely to expose any of the business undertakings unreasonably to disadvantage for the following reasons:
    1. The documents contain information relating to specific repair or damage assessments that would only apply to the specific vehicles.
    2. While the billing information is commercial information, it would rely on specific tasks undertaken and is now dated.
    3. There does not appear to be any proprietary information of the business undertakings in the documents.
    4. While I am unable to determine whether this information is available to competitors of the business undertakings, I consider the information is insufficiently detailed such that its disclosure could be used to the commercial or financial detriment of the business undertakings by their competitors.
    5. This type of information, had it been it generated by the Agency, would be unlikely to be exempt under the FOI Act.
    6. For the above reasons, I consider the information could be disclosed without causing the business undertakings substantial commercial or financial harm.
17. My decision in relation to each document is set out in the Schedule of Documents in Annexure 1.

Deletion of exempt or irrelevant information

19. Section 25 requires an agency to grant access to an edited copy of a document when it is practicable for the agency to delete exempt or irrelevant information and the applicant agrees to receiving such a copy.
20. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’^[3] and the effectiveness of the deletions. Where deletions would render a document meaningless, they are not ‘practicable’, and release of the document is not required under section 25.^[4]
21. I have considered the irrelevant information the Agency deleted from the documents and am satisfied it falls outside the scope of the Applicant’s request.
22. I have considered the effect of deleting irrelevant information from the documents in accordance with section 25. I am satisfied it is practicable to delete the irrelevant information, as to do so would not require substantial time and effort, and the edited documents would retain meaning.

Conclusion

23. On the information available, I am not satisfied the documents are exempt under section 34(1)(b.
24. I am satisfied it is practicable to delete irrelevant information in the documents in accordance with section 25, I have determined to grant access to the documents in part.

Review rights

25. If either party to this review is not satisfied with my decision, they are entitled to apply to VCAT for it to be reviewed.^[5]
26. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[6]
27. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[7]
28. 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.
29. 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.^[8]

When this decision takes effect

30. I have determined to release documents that contain matters of a commercial nature relating to third party business undertakings.
31. The relevant third parties will be notified of my decision and are entitled to apply to VCAT for a review of my decision within 60 days from the date they are given notice.
32. 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] (1999) 15 VAR 1.

[2] Gibson v Latrobe CC [2008] VCAT 1340 at [25].

[3] 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].

[4] 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].

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

[6] Section 52(5).

[7] Section 52(9).

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