‘CH7’ and Environment Protection Authority (Freedom of Information) [2020] VICmr 318 (16 November 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 fresh 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 fresh decision in that I have decided to release additional information in the documents.

I am satisfied certain information in the documents is exempt under sections 30(1), 35(1)(b) and 33(1). Where it is practicable to provide the Applicant with an edited copy of a document by deleting exempt and irrelevant information, I have granted 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.

Joanne Kummrow

Public Access Deputy Commissioner

16 November 2020

Reasons for Decision

Background to review

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

The assessment report and any associated emails, officer notes/memos for the following:

• • • Investigation into an alleged conflict of interest [redacted] and any involvement [redacted] with [business undertaking] in [location]
    • Investigation was initiated on [date]
    • Enquiry made direct with [role description] officer and response email received from [named person and title] on [date] – [description of email content]
    • Email received [date] from [named person and title] – [description of email content].

2. In its decision, the Agency identified certain documents falling within the terms of the Applicant’s request and decided to refuse access to the documents in full. The Agency’s decision letter sets out the reasons for its decision.

Review

3. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
4. Section 49M(1) permits an agency to make a fresh decision on an FOI request during a review.
5. On [date], the Agency made a fresh decision in which it determined to release further information in the documents and did so within the required 28 days under section 49M(2).
6. 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.
7. The Applicant narrowed the scope of their review application to Documents 13, 22, 23 and 25, however, having reviewed the documents the subject of the Agency’s decision, I have included Documents E and F (the Documents) in my review as I am satisfied these documents also contain information relevant to the terms of the Applicant’s request.
8. I have examined copies of the documents subject to review.
9. The Applicant and the Agency were invited to make a written submission under section 49H(2).
10. 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 application and subsequent communications with this office; and
  3. the Agency’s submissions received on [date] and [date].

11. 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.
12. I also 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.

Review of exemptions

Preliminary view

13. During the review, a preliminary view was provided to the Agency that certain information in the Documents is not exempt and could be released to the Applicant. Where the Agency agreed with the preliminary view, the information is to be released to the Applicant as detailed in the Schedule of Documents in Annexure 1.

Exemptions

14. The Agency relies on the exemptions in sections 30(1), 35(1)(b), 33(1) and 35(1)(a) to refuse access to the Documents.

Section 30(1) – internal working documents

15. 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;
  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.

16. The exemption does not apply to purely factual material in a document.^[1]
17. I must also be satisfied releasing this information would not be contrary to the public interest. This requires a ‘process of the weighing against each other conflicting merits and demerits’.[2]
18. In determining whether disclosure of the Documents exempted by the Agency would be contrary to the public interest, I have given weight to the following factors:[3]
    1. the right of every person to gain access to documents under the FOI Act;
    2. the degree of sensitivity of the issues discussed in the documents and the broader context giving rise to the creation of the documents;
    3. the stage of a decision or status of policy development or a process being undertaken at the time the communications were made;
    4. whether disclosure of the documents would be likely to inhibit communications between Agency officers, essential for the Agency to make an informed and well-considered decision or participate fully and properly in a process in accordance with the Agency’s functions and other statutory obligations;
    5. whether disclosure of the document would give merely a part explanation, rather than a complete explanation for the taking of a particular decision or the outcome of a process, which the Agency would not otherwise be able to explain upon disclosure of the document;
    6. the impact of disclosing a document in draft form or where disclosure not clearly or accurately representing a final position or decision reached by the Agency at the conclusion of a decision or process; and
    7. the public interest in the community being better informed about the way in which the agency carries out its functions, including its deliberative, consultative and decision making processes and whether the underlying issues require greater public scrutiny.

19. The Agency submits the following with respect to its application of section 30(1):

I consider disclosure of the documents that are exempt under this provision would inhibit frankness and candour of EPA officers that have to consider and respond to whether there has been a conflict of interest. This is because the disclosure of the material … which considers and responses to a conflict of interest matter, is likely to breach the confidence of people making the communications, which are made in confidence and out of care for the sensitivities involved. Disclosure of the material exempt under this provision would mean that EPA staff would not be able to trust that their confidence will be kept on such sensitive matters. In some instance, for example, a conflict of interest matter might involved serious corruption, or present a risk of harm to the people that suspect or know about them. The disclosure of such information would have a chilling effect on people’s willingness to come forward, thereby preventing the identification and ability to appropriately respond to them. Such a result would be contrary to the public interest.

20. My decision in relation to section 30(1) is set out in the Schedule of Documents in Annexure 1.

Section 35(1)(b)

21. 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.

Was the information or matter communicated in confidence to the Agency?

22. When determining whether information was communicated in confidence, it is necessary to consider the position from the perspective of the communicator.[4] Further, confidentiality can be express or implied from the circumstances of the matter.[5]
23. Generally, section 35(1)(b) only applies to information communicated to an agency from an outside source, rather than from an officer within an agency. However, in certain circumstances, section 35(1)(b) may apply to confidential information communicated to an agency by an agency officer. For example, in the context of an internal complaint and investigations, or confidential communications between different parts of an agency.[6]
24. In its decision letter, the Agency submits:

The documents … include information that divulges communications made in confidence by staff of the EPA, in this instance, about a conflict of interest matter. EPA staff are required to speak up when they encounter circumstances that might be a conflict of interest. The circumstances often involve sensitivities related to interpersonal relations between staff, which can make communicating concerns difficult. However, the communication of such concerns, even where it is ultimately found to [be] unsubstantiated, or, upon substantiation, not to warrant further actions, should be encouraged and might need to be kept confidential for that reason. If EPA staff considered that their confidential communications about their concerns would be disclosed, it would be reasonably likely to impair the ability of the EPA to obtain similar information in future. The inability of the EPA to obtain such information would be contrary to the public interest.

25. My decision in relation to section 35(1)(b) is set out in the Schedule of Documents in Annexure 1.

Section 33(1)

26. 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;[7] and
    2. such disclosure would be ‘unreasonable’.
27. Information relating to a person’s ‘personal affairs’ includes information that identifies any person or discloses their address or location. It includes any information from which such information may be reasonably determined.[8]
28. A third party’s opinion or observations about another person’s conduct can constitute information related to a third party’s personal affairs.[9]
29. Further, as the nature of disclosure under the FOI Act is unrestricted and unconditional, this is to be interpreted by the capacity of any member of the public to potentially identify a third party.[10]

Does the information constitute ‘personal affairs information’ of an individual other than the Applicant?

30. The Applicant advised they do not seek access to the personal affairs information of any third party individual. However, I am satisfied the Documents contain the personal affairs information of individuals, such as names and position titles; statements and observations capable of identifying third parties, and personal affairs information that relates predominantly to a person other than the Applicant.
31. Where the personal affair[s] information of a person has been released elsewhere in the Documents,
    I am satisfied this information can be released to the Applicant. However, all other personal affairs information of persons, such as their name, email address, professional title and contact details, is irrelevant and to remain deleted in accordance with section 25.

Would disclosure of the information constitute unreasonable disclosure?

32. The concept of ‘unreasonable disclosure’ involves determining whether the public interest in disclosure of official information is outweighed by the personal interest in privacy in the particular circumstances of a matter.
33. I adopt the view expressed by the Supreme Court of Victoria Court of Appeal in Victoria Police v Marke,[11] in which it was held there is ‘no absolute bar to providing access to documents which relate to the personal affairs of others’, and the exemption under section 33(1) ‘arises only in cases of unreasonable disclosure’ and ‘[w]hat amounts to an unreasonable disclosure of someone’s personal affairs will necessarily vary from case to case’.
34. As also stated in Victoria Police v Marke, ‘[t]he protection of privacy, which lies at the heart of section 33(1), is an important right that the FOI Act properly protects. However, an individual’s privacy can be invaded to a lesser or greater degree’.[12]
35. The proper application of section 33(1) involves a consideration of ‘all matters relevant, logical and probative to the existence of conditions upon which the section is made to depend’.[13] As such, in determining whether the release of the personal affairs information would be unreasonable in the circumstances, I have consider the following factors:
    1. the nature and the circumstances in which the information was obtained;
    2. the Applicant’s interest in the information, including their purpose or motive for seeking access to the Documents;
    3. the extent to which the information is available to the public;
    4. whether any public interest would be promoted by disclosure of the information;
    5. whether the individuals to whom the information relates consent to its disclosure; and
    6. whether disclosure would cause any person stress anxiety or embarrassment.

36. Having weighed up the above factors, I am satisfied disclosure of the personal affairs information of third parties in the Documents would be unreasonable in the circumstances and is exempt under section 33(1).
37. My decision in relation to section 33(1) is set out in the Schedule of Documents in Annexure 1.

Deletion of exempt or irrelevant information

38. 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.
39. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’^[14] and the effectiveness of the deletions. Where deletions would render a document meaningless, they are not ‘practicable’, and disclosure of the document is not required under section 25.^[15]
40. I have considered whether it is practicable to provide the Applicant with an edited copy of the Documents with irrelevant and exempt information deleted in accordance with section 25. I am satisfied it is practicable to delete the irrelevant and exempt information as to do so would not require an unreasonable amount of time and effort, and the edited documents would retain meaning.
41. I note a marked up copy of Documents 13, 23 and E showing information I have determined is exempt or irrelevant will be provided to the Agency for reference.

Conclusion

42. On the information before me, I am satisfied certain information in the Documents is exempt under sections 30(1), 35(1)(b) and 33(1). Where it is practicable to provide the Applicant with an edited copy of a document by deleting exempt and irrelevant information, I have granted access to that document in part.
43. The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.

Review rights

44. If either party to this review is not satisfied with my decision, they are entitled to apply to VCAT for it to be reviewed.^[16]
45. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[17]
46. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[18]
47. 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.
48. 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.^[19]

Third party review rights

49. As I have determined to disclose information the Agency exempted under section 33(1), if practicable, I must notify any person, who has a right to seek review of my decision, of their right to apply to VCAT within 60 days of receiving notice of my decision.
50. Having considered the passage of time since the Documents were created and the fact the information to be disclosed was released to the Applicant in other documents, I am satisfied it is not practicable to notify the relevant third parties of their right of review.

When this decision takes effect

51. My decision does not take effect until the Agency’s 14 day review period expires, or if an application is made to VCAT, until that proceeding is concluded.

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

[5] Ibid.

[6] See Sportsbet v Department of Justice [2010] VCAT 8 at [71]-[78]; XYZ v Victoria Police [2010] VCAT 255 at [287]-[288]; Birnbauer
v Inner and Eastern Health Care Network (1999) 16 VAR 9 at [17].

[7] Section 33(1) and (2).

[8] Section 33(9).

[9] 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].

[10] O’Sullivan v Department of Health and Community Services (No 2) [1995] 9 VAR 1 at [14]; Beauchamp v Department of Education [2006] VCAT 1653 at [42].

[11] [2008] VSCA 218 at [76].

[12] [2008] VSCA 218 at [79].

[13] [2008] VSCA 218 at [104].

[14] 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].

[15] 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].

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

[17] Section 52(5).

[18] Section 52(9).

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