‘BK7’ and Moonee Valley City Council (Freedom of Information) [2020] VICmr 104 (1 April 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.

I am not satisfied Documents 3 and 8 are exempt under section 35(1)(b) and have determined to grant access to these documents in full.

I am satisfied the remaining documents subject to review are exempt under sections 30(1), 33(1) and 35(1)(b). As I am satisfied it is not practicable to delete exempt information in these documents in accordance with section 25, I have determined to refuse access to the 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

1 April 2020

Reasons for Decision

Background to review

1. The Applicant made a request to the Agency for access to the following documents:
   1. All emails to and from [named individual] that refer to me (i.e. [the Applicant]) between the dates of [date range].
   2. I do not seek the personal information of others and this can be redacted as necessary.
   3. I don’t mind duplicates.
   4. A list of the dates of any emails that are withheld due to being marked ‘Confidential’ by [specified position titles] – if possible.
2. In its decision, the Agency identified 17 documents falling within the terms of the Applicant’s request. It decided to release two documents in full, one document in part and refuse access to
   14 documents in full.
3. The Agency relied on the exemptions in sections 35(1)(a) and 35(1)(b) to refuse access to the documents in part. The Agency’s decision letter sets out the reasons for the decision.

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. Although the Applicant advised they do not ‘seek the personal information of others’, personal affairs information can be more than the personal information of others, such as their name, address or contact numbers. As such, I have considered the application of section 33(1) to the documents.
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 and submissions received from the parties, including:

• 1. the Agency’s decision on the FOI request;
  2. the Applicant’s submission dated [date] and information provided with the Applicant’s review application;
  3. the Agency’s submission dated [date] and information provided by the Agency during the review; and
  4. all communications between this office, the Applicant and the Agency.

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 exemption in section 35(1)(a) of the FOI Act in conjunction with sections 77 and 89 of the Local Government Act 1989 (Vic) (LG Act) to refuse access to Document 4 in full.
11. The Agency relied on the exemption in section 35(1)(b) to refuse access to Document 3 in part and Documents 5 to 17 in full.

Section 33(1)

12. In relation to Document 4, the Agency relied on the exemption under section 35(1)(a) of the FOI Act in conjunction with sections 77 and 89 of the LG Act to refuse access in full. However, I am of the view the exemption under section 33(1) is more appropriate in this circumstance.
13. As such, I consider the application of section 33(1) to Document 4.
14. 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[1]; and
  2. such disclosure would be ‘unreasonable’.

Does the document contain information in relation to the personal affairs information of individuals other than the Applicant?

15. 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 such information may be reasonably determined.[2]
16. A third party’s opinion or observations about another person’s conduct can constitute information in relation to the third party’s personal affairs.[3]
17. ‘Personal affairs information’ is interpreted broadly to include matters in relation to the health, private behaviour, home life or personal or family relationships of individuals.[4]
18. Document 4 comprises a summary of confidential information provided by third parties to the Agency in relation to the [specified] Project (the [specified] Project).
19. The information determined by the Agency to be exempt under section 33(1) includes:

• 1. the names, addresses and contact details of third parties, other than the Applicant; and
  2. a summary of observations and opinions provided by third parties to the Agency which would reveal information in relation to their health, private behaviour, home life and relationships.

20. I am satisfied the information identified by the Agency, as listed above, amounts to ‘personal affairs information’ for the purposes of section 33.

Would disclosure of this personal affairs information be unreasonable?

21. 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.
22. 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 on disclosure of information in the document.[5] 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[6].

23. The Agency advised it consulted with some third parties, but not others. During the course of the review I have reviewed the Agency’s consultation documentation.
24. In determining whether release of the personal affairs information in the documents would be unreasonable, I have given consideration to the following matters:

• 1. the nature of the personal affairs information (for example, whether it is sensitive or its current relevance);
  2. the circumstances in which the information was obtained;
  3. the Applicant’s interest in the information, including their purpose or motive for seeking assess to the documents;
  4. whether any public interest would be promoted by disclosure;
  5. the likelihood of further disclosure of the information if it is released;
  6. whether the individuals to whom the information relates consent or object to the disclosure;
  7. whether disclosure would cause the individuals stress, anxiety or embarrassment; and
  8. whether the disclosure of information relating to the personal affairs of any person would, or would be likely to, endanger the life or physical safety of any person.

25. I have also taken into consideration the nature of disclosure of a document under the FOI Act is unconditional and unrestricted. This means an Applicant is free to disseminate or use a document disclosed to them as they choose.[7]
26. Having reviewed Document 4, I am of the view release of the document would involve the unreasonable disclosure of the personal affairs information of an individual other than the Applicant, having given weight to following factors:

• 1. the information provided to the Agency is sensitive and confidential in nature;[8]
  2. the information was provided to the Agency in confidence with the understanding it would only be used for the purpose of the [specified] Project;[9]
  3. the information provided to the Agency is not in the public domain; and
  4. the Applicant’s interest in obtaining access to the information is a matter of private interest.
     I do not consider any public interest would be promoted by disclosure of the third parties’ personal affairs information to the Applicant. Rather, I am of the view the public interest lies in the Agency preserving the personal privacy of the third party in these circumstances.

27. Moreover, whilst it was impracticable for the Agency to consult with all third parties, the majority of those persons who were able to be consulted responded they did not consent to the release of their personal affairs information they had provided to the Agency and appears in the document. Given the sensitive nature of the personal affairs information in Document 4, I consider the remaining third parties would be reasonably likely object to the release of their information.
28. 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.[10] However, I do not consider this to be a relevant factor in the circumstances.
29. While I acknowledge the Applicant has a genuine interest in obtaining access to Document 4, I have determined the need to protect sensitive information provided by third parties’ in confidence to the Agency outweighs the Applicant’s personal interest in obtaining this information.
30. Accordingly, I am satisfied it would be unreasonable to release the personal affairs information in Document 4 and have determined this document is exempt under section 33(1).
31. The Schedule of Documents in Annexure 1 sets out my decision in relation to section 33(1).

Section 35(1)(b)

32. The Agency refused access to Documents 5 to 17 under section 35(1)(b).
33. 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.

34. In summary, section 35(1)(b) is concerned with protecting the public interest in the free flow of information provided in confidence between a third party and an agency.

Was the information or matter communicated in confidence?

35. When determining whether information was communicated in confidence, it is necessary to consider the position from the perspective of the communicator.[11] In this case, the individuals who provided the information to the Agency.
36. Further, confidentiality can be expressed or implied from the circumstances of the matter.[12]
37. The information exempted by the Agency under section 35(1)(b) includes:

• 1. emails between Agency officers discussing their concerns in relation to the [specified] Project;
  2. emails between Agency officers conveying confidential information provided by third parties in relation to the [specified] Project; and
  3. confidential information communicated from third parties to the Agency in relation to their concerns associated with the [specified] Project.

38. Generally, section 35(1)(b) applies to information communicated to an agency from an external source rather than internal communications between agency staff carrying out their usual duties and responsibilities. However, section 35(1)(b) may apply to information communicated in confidence between agency officers in certain circumstances. For example, where an agency officer provides confidential information to their agency to assist in the investigation of a workplace incident or dispute.[13]
39. In this matter, I am not satisfied the communications between Agency officers discussing their concerns about the [specified] Project is information communicated in confidence to the Agency for the purposes of section 35(1)(b). Accordingly, I am not satisfied this information is exempt under section 35(1)(b).
40. In contrast, I am satisfied confidential information was communicated from third parties to the Agency in relation to their concerns associated with the [specified] Project. I am further satisfied certain correspondence between Agency officers, which conveys confidential information provided by third parties in relation to the [specified] Project, constitutes a record of information communicated in confidence to the Agency. Accordingly, I am satisfied the nature of this communication falls within the scope of information communicated in confidence to the Agency under section 35(1)(b).

Would disclosure be contrary to the public interest as it would be reasonably likely to impair the ability of the Agency to obtain similar information in the future?

41. The exemption also requires I be satisfied the Agency’s ability to obtain similar information in the future would be impaired if the information is disclosed under the FOI Act. This means, I must be satisfied others in the position of the communicator would be reasonably likely not to provide similar information to the Agency in the future if it were to be disclosed,.
42. I accept the Agency relies on information provided by third parties voluntarily in order to effectively manage and coordinate social issues and concerns for the [specified] Project. Such information will, by its very nature, generally be highly personal, sensitive and confidential. As such, third parties need to feel confident the information they provided to the Agency, including the identity of the individual providing the information, will be held in confidence.[14]
43. I am consider if individuals, who provide confidential information to the Agency, were aware their identity and the information they provide would be disclosed routinely in response to an FOI request, they would be less likely to communicate similar information to the Agency in the future.
44. Further, if individuals are unable to speak freely and provide relevant information to Agency officers, the local community may suffer as a result. I consider this to be a significant and detrimental outcome for the Agency which, at times, relies on confidential information being provided from a number of sources to effectively manage and represent the interests of the local community and ratepayers.
45. On the other hand, I acknowledge the Applicant has a genuine interest in obtaining access to the information provided as it directly relates to the Applicant.
46. However, in weighing these two competing priorities, I have determined the need to protect sensitive information provided by third parties in confidence to the Agency outweighs the Applicant’s personal interest in obtaining this information. I am satisfied disclosure of this information would be contrary to the public interest as it would be reasonably likely to impair the ability of the Agency to obtain similar information in the future.
47. For these reasons, I am satisfied confidential information communicated by third parties to the Agency in relation to their concerns associated with the [specified] Project is exempt under section 35(1)(b).
48. The Schedule of Documents in Annexure 1 sets out my decision in relation to section 35(1)(b).

Section 30(1)

49. While the Agency did not rely on section 30(1), having reviewed the documents, I am of the view certain information in Document 5, 13 and 15 is exempt under this section.
50. Documents 5, 13 and 15 contain information communicated internally, namely:

• 1. emails between Agency officers discussing their concerns in relation to the [specified] Project; and
  2. emails between Agency officers conveying confidential information provided by third parties in relation to the [specified] Project (which I have already considered above under section 35(1)(b) and will consider again under section 30(1) for completeness).

51. A document will be exempt under section 30(1) if the following requirements are met:

• 1. the document was prepared by an officer of the relevant agency;
  2. the document discloses 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;
  3. such matter was 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
  4. disclosure of the document would be contrary to the public interest.

52. The exemption does not apply to purely factual material in a document[15].

Were the documents prepared by an officer of the Agency?

53. 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.
54. Documents 5, 13, and 15 are internal emails between Agency officers. As such, I am satisfied the relevant documents were prepared by an Agency officer.

Do the documents disclose matter in the nature of opinion, advice, recommendations, consultation or deliberation between officers?

55. Having reviewed the documents, I am satisfied they contain matter in the nature of advice, opinion, recommendations, consultation or deliberation between Agency officers in response to their concerns in relation to the [specified] Project.

Was the opinion, advice, recommendation, consultation or deliberation disclosed in the documents provided in the course of, or for the purpose of, the deliberative processes of the Agency?

56. I am satisfied the opinion, advice, recommendation, consultation or deliberation disclosed in the documents was provided in the course of, or for the purpose of, the deliberative processes of the Agency in relation to the effective management of the [specified] Project.

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

57. I must also be satisfied releasing this information would not be contrary to the public interest. This requires a ‘process of weighing against each other conflicting merits and demerits’.[16]
58. In deciding whether disclosure of the information would be contrary to the public interest, I have given weight to the following factors:[17]

• 1. the right of every person to gain access to documents under the FOI Act;
  2. the nature of disclosure under the FOI Act, which provides for unrestricted and unconditional disclosure of documents;
  3. the degree of sensitivity of the issues involved, particularly in the context of the [specified] Project;
  4. the likelihood disclosure of the documents would inhibit Agency officers from voluntarily participating in conversation and discussion in relation to the [specified] Project in the future; and
  5. the public interest in ensuring concerns raised by third parties in relation to the [specified] Project are able to be adequately documented by Agency officers with the necessary degree of confidentiality.

59. Accordingly, I am satisfied certain information in the documents is exempt under section 30(1).
60. The Schedule of Documents in Annexure 1 sets out my decision in relation to section 30(1).

Deletion of exempt or irrelevant information

61. Section 25 requires an agency to grant access to an edited copy of a document when it is practicable to delete exempt or irrelevant information and the applicant agrees to receiving such a copy.
62. 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 a document meaningless, they are not ‘practicable’, and release of the document is not required under section 25.^[19]
63. I have considered the effect of deleting the exempt information from the documents in accordance with section 25. I am satisfied it is not practicable to delete the exempt information as to do so would render the documents meaningless.

Conclusion

64. On the information before me, I am not satisfied Documents 3 and 8 are exempt under section 35(1)(b) and have determined to grant access to these documents in full.
65. I am satisfied the remaining documents subject to review are exempt under sections 30(1), 33(1) and 35(1)(b). As I am satisfied it is not practicable to delete exempt information in these documents in accordance with section 25, I have determined to refuse access to the documents in full.
66. The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.

Review rights

67. 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.^[20]
68. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[21]
69. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[22]
70. 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.
71. 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

72. I have decided to release documents that contain information provided by or on behalf of a third party.
73. The relevant third parties will be notified of my decision and are entitled to apply to VCAT for a review within 60 days from the date they are given notice.
74. 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] Sections 33(1) and (2).

[2] Section 33(9).

[3] Richardson v Business Licensing Authority [2003] VCAT 1053, cited in Davis v Victoria Police (General) [2008] VCAT 1343 at [43], Pritchard v Victoria Police (General) [2008] VCAT 913 at [24], Mrs R v Ballarat Health Services (General) [2007] VCAT 2397 at [13].

[4] Re F and Health Department (1988) 2 VAR 458 as quoted in RFJ v Victoria Police FOI Division [2013] VCAT 1267 at [103].

[5] Section 33(2B).

[6] Section 33(2C).

[7] Victoria Police v Marke [2008] VCSCA 218 at [68].

[8] Page v Metropolitan Transit Authority [1988] 2 VAR 243 at [246].

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

[10] Section 33(2A).

[11] XYZ v Victoria Police [2010] VCAT 255 at [265].

[12] Ibid.

[13] See Sportsbet v Department of Justice [2010] VCAT 8 at [71]-[78]; XYZ v Victoria Police [2010] VCAT 255 at [287]-[288]; and Birnbauer v Inner and Eastern Health Care Network [1999] VCAT 1363 at [14]-[15].

[14] See Maki v Alfred Hospital, unreported, VCAT, Davis M, 19 April 2002.

[15] Section 30(3).

[16] 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].

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

[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).