‘CF2’ and Department of Health and Human Services (Freedom of Information) [2020] VICmr 296 (20 October 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 satisfied certain documents are exempt under sections 31(1)(c), 33(1), 35(1)(b) and 38 of the FOI Act
in conjunction with sections 41(1), 191(1) and 209(1) of the Children, Youth and Families Act 2005 (Vic)
(CYF Act). However, in each instance, I am not satisfied of the Agency’s application of those exemptions is upheld. Therefore, I have determined to release additional information in the documents to the Applicant.

As I am satisfied it is practicable to provide the Applicant with an edited copy of the documents with exempt information deleted in accordance with section 25, I have granted 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

20 October 2020

Reasons for Decision

Background to review

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

The final versions of the following documents contained on my electronic child protection records (excluding duplicate information):

• • • Intake Records and Closure Summaries;
    • Case Planning documents;
    • Court Reports;
    • Transfer Summaries; and
    • Incident Reports.

2. In its decision, the Agency identified 80 pages of documents relevant to the terms of the Applicant’s request. It decided to release 20 pages in full and 60 pages in part.
3. The Agency relied on the exemptions under sections 31(1)(c), 33(1), 35(1)(b) and 38 in conjunction with sections 191(1) and 209(1) of the CYF Act to refuse access to the documents. The Agency’s decision letter sets out the reasons for its decision.

Review

4. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
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 inspected a copy of the documents and considered all relevant communications and submissions received from the parties.
7. The Agency provided a copy of the documents to OVIC in a single PDF file. However, for the purpose of conducting my review I have divided the single file into 35 discrete document categories, which are set out in the Schedule of Documents at Annexure 1.
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.
9. I note Parliament’s intention the FOI Act must be interpreted so as to further the object of the Act and any discretions conferred by the Act must be exercised, as far as possible, so as to facilitate and promote the disclosure of information in a timely manner and at the lowest reasonable cost.

Child Protection and Child Protection records

10. Firstly, I wish to discuss Child Protection and the general nature of Child Protection records in Victoria.
11. The Agency is responsible for enforcing and administering the law relating to Child Protection in Victoria under the CYF Act.
12. Child Protection files come into existence when the Agency is notified, or otherwise becomes aware, a child is at risk to harm, wellbeing, or other safety concerns. The CYF Act provides for voluntary reports from a person and mandatory reporting by certain professionals specified under the Act.
13. The main functions of Child Protection are to:

• 1. investigate matters where it is alleged a child is at risk of harm;
  2. refer children and their family to services for the ongoing safety and wellbeing of children;
  3. escalate matters to the Children’s Court if a child’s safety cannot be ensured within the family; and
  4. supervise children on legal orders granted by the Children’s Court.

14. The Agency has published a ‘Child Protection Manual’, which is used by Child Protection practitioners and contains information for families. The manual is available at cpmanual.vic.gov.au.
15. The role and mandate of Child Protection is an important and significant one. As such, Child Protection services are comprehensively regulated under the CYF Act and Parliament has determined strict parameters apply to what information can be released in relation to Child Protection matters. This includes a prohibition on identifying a person who notifies the Agency about any child protection concerns (notifiers) and any subsequent Agency investigations into or action taken to address any concerns. For example, the CYF Act prohibits disclosure of the names of notifiers, as well as any information likely to lead to the identification of a notifier, except in certain limited circumstances where disclosure is authorised.
16. This reflects the strong need for confidentiality around Child Protection notifications, and any subsequent inquiries or investigations conducted by the Agency, to assure notifiers of their confidentiality when making sensitive notifications to the Agency in the interests of protecting a child from harm or possible harm.
17. This means, when a person who has been involved with Child Protection, or the parent or guardian of such a child, seeks access to a Child Protection file, the confidentiality provisions that apply to Child Protection information under the CYF Act are strictly applied.
18. I acknowledge this can be disappointing for a young person or adult seeking to understand their early life where they have been involved with Child Protection.

Review of exemptions

Section 38 – secrecy provision

19. In summary, sections 191 and 209 of the CYF Act prohibit the disclosure of the names of persons who provide Child Protection information to the Agency, as well as any information likely to lead to the identification of such persons, during the course of child protection investigations under the CYF Act.
20. In addition, section 41 of the CYF Act prohibits disclosure of the identification of persons who have made a report, or any information likely to lead to the identification of a person who made a report regarding the welfare of a child. While the Agency did not rely on this provision in its decision, I am satisfied section 41 of the CYF is a relevant confidentiality provision for the purposes of section 38 in this case.
21. A document is exempt under section 38 of the FOI Act if:
    1. there is an enactment in force;
    2. that applies specifically to the kind of information contained in the document; and
    3. the enactment must prohibit persons, referred to in the enactment, from disclosing that specific kind of information (either absolutely or subject to exceptions or qualifications).
22. For section 38 to apply, an enactment must be formulated with such precision that it specifies the information sought to be withheld.

Application of the secrecy provisions

23. Section 41 of the CYF Act provides:

  41     Identity of reporter or referrer confidential

(1)     If a report is made to the Secretary under section 28 or 29, a person (other than the person who made it) must not disclose to any person other than the Secretary or a community-based child and family service to which the matter is referred under section 30—

(a)     the name of the person who made the report; and

(b)     any information that is likely to lead to the identification of the person who made the report.

Penalty: 60 penalty units.

…

(2)     Subsection (1) does not apply if the person who made the report or referral—

(a)     gives written consent to the Secretary; or

(b)     gives written or oral consent to the community-based child and family service.

24. Section 191 of the CYF Act provides:

191     Confidentiality

(1)     If a report referred to in section 190(1) is made, a person (other than the person who made it or a person acting with the written consent of the person who made it) must not disclose to any person other than a protective intervener or a community-based child and family service in accordance with subsection (4)—

(a)     the name of the person who made the report; or

(b)     any information that is likely to lead to the identification of the person who made the report.

Penalty: 10 penalty units.

(2)     Subsection (1) does not apply to a disclosure made to a court or tribunal in accordance with section 190.

…

25. Section 209 of the CYF Act provides:

209     Confidentiality

(1)     A protective intervener must not disclose to any person, other than to another protective intervener or to a person in connection with a court proceeding or to a person in connection with a review by VCAT—

(a)     the name of a person who gave information in confidence to a protective intervener during the course of the investigation of the subject-matter of a protective intervention report; or

(b)     any information that is likely to lead to the identification of a person referred to in paragraph (a)— without the written consent of the person referred to in paragraph (a) or authorisation by the Secretary.

Penalty: 10 penalty units.

(2)     The Secretary may only authorise the disclosure of information to a person under subsection (1) if the Secretary believes on reasonable grounds that the disclosure is necessary to ensure the safety and wellbeing of the child.

(3)     In this section court proceeding includes a proceeding in the Family Court of Australia.

26. As stated, sections 41(1), 191(1) and 209(1) of the CYF Act prohibit the disclosure of the names of persons, as well as any information likely to lead to the identification of such persons, except in certain authorised circumstances.[1]
27. Unauthorised disclosure of information is an offence subject to penalties under the CYF Act.
28. Having reviewed the documents, I am satisfied sections 41(1), 191(1) and 209(1) of the CYF Act are secrecy provisions to which section 38 of the FOI Act applies for the following reasons:
    1. the CYF Act is an enactment in force;
    2. I am satisfied the documents contain the specific information described in sections 41, 191 and 209 of the CYF Act;
    3. I am satisfied Agency officers are prohibited from disclosing information of the kind described in section 41(1), 191(1) and 209(1) of the CYF Act; and
    4. none of the authorised exceptions for disclosure referred to in sections 41, 191 and 209 of the CYF Act apply to the Applicant’s request.
29. Accordingly, I am satisfied section 38 of the FOI Act, in conjunction with sections 41(1), 191(1) and 209(1) of the CYF Act, operate to exempt certain information in the documents as detailed in Annexure 1. This also includes certain dates in relation to which I accept disclosing the date of a Child Protection notification identify a person or persons who made a Child Protection notification.

Section 31(1)(c) – law enforcement documents

30. Section 31(1)(c) provides a document is an exempt document if its disclosure under the FOI Act would, or would be reasonably likely to ‘disclose or enable a person to ascertain, the identity of a confidential source of information in relation to the enforcement or administration of the law’.
31. In light of my decision in relation to section 38, I am satisfied:
    1. certain deleted information identifies various individuals who, directly or indirectly, provided information to the Agency’s Child Protection services in confidential circumstances; and
    2. in relation to the enforcement or administration of the CYF Act.

Accordingly, I am satisfied certain information in the documents is exempt under section 31(1)(c).

32. However, having inspected the documents, I consider they contain information that is not exempt under sections 38 and 31(1)(c). In certain instances, I am not satisfied the information could be considered confidential information provided by a third party for the purposes of raising concerns as to the wellbeing of a child or is information likely to lead to the identification of a person who gave information in confidence.
33. Nor am I satisfied, given the significant passage of time, disclosure would, or would be likely to, identify a confidential source of information in relation to the enforcement or administration of the law. Therefore, in each instance, I am not satisfied information in the documents is exempt under sections 31(1)(c) and 38.
34. My decision in relation to sections 38 and 31(1)(c) is set out in Annexure 1.

Section 35(1)(b)

35. A document is exempt under section 35(1)(b) if two conditions are satisfied:
    1. disclosure would divulge information or matter communicated in confidence; 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 of the document divulge information communicated in confidence?

36. Whether information communicated by an individual was communicated in confidence is a question of fact.[2]
37. When determining whether information was communicated in confidence, it is necessary to consider the position from the perspective of the communicator.[3]
38. Confidentiality can be express or implied from the circumstances of a matter.^[4]
39. As discussed above, having been briefed on the context and viewed the contents of the documents,
    I am satisfied information in the documents was communicated to the Agency confidentially in the course of the Agency’s Child Protection involvement.

Would disclosure be contrary to the public interest?

40. In deciding whether disclosure would be contrary to the public interest, I must consider whether disclosure of a document would be reasonably likely to impair the Agency’s ability to obtain similar information in the future.
41. As discussed above, the Agency plays a significant role in administering and enforcing the CYF Act. Having been briefed on the contents of the documents, I am of the view information of this nature is essential for the Agency to be able to discharge its obligations and duties under the CYF Act.
42. If third parties, who provide information to the Agency in the interests of assisting in Child Protection investigations, were made aware information they provided on a confidential basis was to be routinely disclosed they would be unlikely to communicate similar information to the Agency in the future. This would be a significant and detrimental outcome that could reasonably impede the ability of the Agency to provide Child Protection services in Victoria. Accordingly, I am satisfied the disclosure of such information is exempt under section 35(1)(b).
43. However, I am also of the view in the particular circumstances of this case, certain information (while provided in confidence) given the passage of time since the records were created is of a nature that, if disclosed, would not impair the Agency from obtaining similar information in the future. This relates to information provided by various individuals to the Agency relating to the care of the Applicant as a child that, if released, would provide further information and insight into the outcome of the Agency’s involvement.
44. I also consider, in some instances, the individuals who provided information to the Agency did so in their professional capacity where an obligation arises to do so. In the circumstances, I consider such information is not exempt under section 35(1)(b) as I am not satisfied individuals would be inhibited in providing similar information to the Agency in the future as a result of disclosure in this particular case.
45. My decision in relation to section 35(1)(b) is set out in Annexure 1.

Section 33(1) – personal affairs information

46. In relation to the application of section 33(1), the Agency submits:

The department has a responsibility to protect the personal privacy of other people. It is considered that due to the nature of the documents and the sensitive information contained in the documents it is unreasonable to release some personal affair information about the applicant’s family members and other people responsible for the care of the applicant, and professional associated with the family.

47. 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’.

Do the documents contain the personal affairs information of individuals other than the Applicant?

48. 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]
49. Having reviewed the documents, I note they contain personal details and statements provided by, and in relation to, various members of the Applicant’s family. The documents also contain reports and other notes made by the Agency’s Child Protection officers in the course of the Agency’s involvement with the Applicant and their family.
50. I am satisfied this information relates to the personal affairs information of individuals other than the Applicant.
51. While I note certain information the Agency determined is exempt relates to the Applicant, I consider it is heavily intertwined with the personal affairs information of other individuals.

Would the release of the personal affairs information in the documents be unreasonable?

52. The concept of ‘unreasonable disclosure’ involves balancing the public interest in the disclosure of official information with the protection of an individual’s personal privacy. I have considered the following factors in the circumstances of this case:
    1. The nature of the personal affairs information

The personal affairs information in the documents relates to child protection matters. As discussed above, I consider this to be information of a highly sensitive and personal nature.

1. 2. The circumstances in which the information was obtained

The Agency obtained the information in the documents from various individuals in the course of its Child Protection functions. I accept such information is ordinarily provided to the Agency on the understanding that the information is to remain confidential unless required for a subsequent prosecution or welfare planning. I consider that generally, individuals who provide information in such circumstances would not expect the information they provide to the Agency would be released under the FOI Act.

1. 3. The Applicant’s interest in the information

The Applicant, in their review application, advise they seek the information to obtain a better understanding into Child Protections involvement with them, which would help them ‘move forward’ with their life.

Having carefully considered the information in the documents and the Applicant’s reasons for seeking access, I consider further information can be released from the documents that would assist the Applicant in understanding the Agency’s decisions and the outcome of the relevant investigations without unreasonably disclosing confidential or personal affairs information.

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

The Applicant’s interest in obtaining the information is a private (rather than public) interest. However, I consider there exists an interest, shared by the wider community, in those subject to Child Protection involvement to have a reasonable understanding of such involvement.

While the public interest in transparency and accountability of official action is a matter in which I have given weight, in the context pf seeking personal and sensitive information under the FOI Act, which in this case relates not only to the Applicant but also to third parties, I must balance the public interest in protecting the personal privacy of those third parties.

For these reasons, I consider the public interest in the Agency preserving the confidentiality of the statements provided by the various individuals to ensure, to the maximum extent possible, the ability of the Agency to obtain cooperation from witnesses and other relevant individuals in the course of its Child Protection investigations is the stronger of the two.

1. 5. Whether the individuals to whom the information relates object, or would be likely to object, to the release of the information

In the absence of written consent provided by the relevant third parties whose personal affairs information was exempted by the Agency in the documents, I consider it would be reasonably likely those third parties would object to the release of their information.

1. 6. Whether disclosure of the information would, or would be reasonably likely 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.

53. In balancing the above factors, I have determined:
    1. it would be unreasonable to release the personal affairs information of individuals who provided confidential information to the Agency in the course of its Child Protection investigations, particularly where the information does not relate to the Applicant; and
    2. it would not be unreasonable to release the personal affairs information of individuals if it would provide the Applicant with further insight or an explanation of the outcomes following the involvement of Child Protection with the Applicant and their family.
54. Accordingly, as detailed in Annexure 1, I have determined certain information in the documents is exempt under section 33(1), however, further information can be released to the Applicant.

Deletion of exempt or irrelevant information

55. 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.
56. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’^[7] 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.^[8]
57. I have considered whether it is practicable to delete exempt information in the documents in accordance with section 25. In my view, it is practicable to delete the exempt information, as to do so 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 33(1), 35(1)(b), 31(1)(c) and 38 of the FOI Act in conjunction with sections 41(1), 191(1) and 209(1) of the CYF Act.
59. However, in each instance, I am not satisfied the Agency’s application of those exemptions is upheld. Therefore, I have determined to release additional information in the documents to the Applicant.
60. As I am satisfied it is practicable to provide the Applicant with edited copies of the documents with exempt information deleted in accordance with section 25, I have determined to grant access to the documents in part.

Review rights

61. 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.^[9]
62. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[10]
63. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[11]
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.^[12]

Third party review rights

66. As I have determined to release documents that contain information the Agency determined is exempt under sections 33(1) and 35(1)(b), if practicable, I must notify the relevant persons of their right to seek review by VCAT of my decision within 60 days from the date they are given notice.^[13]
67. In considering the meaning of ‘practicable’ in relation to other sections of the FOI Act, VCAT has stated the following:

The use of the word ‘practicable’ in the legislation to my mind connotes a legislative intention to apply common sense principles. ‘Practicable’ is not a term of art or a term of precise meaning.

…. The use of the word indicates there should be imported into the process the exercise of judgment by the agency concerned. It does not allow for the conclusion that because a task is possible, it must, ergo, be undertaken.^[14]

51. VCAT also considers the possibility of an unnecessary intrusion into the lives of third parties is relevant when assessing the practicability of notifying them.^[15]
52. In this case, I am satisfied it is not practicable to notify the relevant third parties of their review rights as I consider doing so would involve an unnecessary intrusion for the following reasons:

• 1. the nature and sensitivity of the information in the documents;
  2. the passage of time since the documents were created; and
  3. the likelihood notification of my decision in this matter would cause undue stress and anxiety.

When this decision takes effect

68. My decision does not take effect until the Agency’s 14 day review period expires.
69. If a review application is made to VCAT, my decision will be subject to any VCAT determination.

Annexure 1 – Schedule of Documents

Endnotes

[1] See sections 41(2) and 209(1)(b), CYF Act.

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

[3] Ibid, XYZ at [265].

[4] Ibid.

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

[6] Section 33(9).

[7] 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].

[8] 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].

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

[10] Section 52(5).

[11] Section 52(9).

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

[13] Sections 49P(5), 50(3A), 50(3AB) and 52(3).

[14] Re Schubert and Department of Premier and Cabinet (2001) 19 VAR 35 at [45].

[15] Coulston v Office of Public Prosecutions Victoria [2010] VCAT 1234 at [42].