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‘CH7’ and Environment Protection Authority (Freedom of Information) [2020] VICmr 318 (16 November 2020)

Date of decision:16 November 2020
Applicant:'CH7'
Agency:Environment Protection Authority
Citation:'CH7' and Environment Protection Authority (Freedom of Information) [2020] VICmr 318 (16 November 2020)
Headnote:FREEDOM OF INFORMATION – investigation – conflict of interest – emails – internal documents – information provided in confidence – documents affecting personal privacy
Sections in the FOI Act:30, 33(1), 35(1)(b)
Download this file:CH7 and Environment Protection Authority Freedom of Information 2020 VICmr 318 16 November 2020 - PDF (1 MB)

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].
  1. 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

  1. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
  2. Section 49M(1) permits an agency to make a fresh decision on an FOI request during a review.
  3. 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).
  4. 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.
  5. 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.
  6. I have examined copies of the documents subject to review.
  7. The Applicant and the Agency were invited to make a written submission under section 49H(2).
  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 review application and subsequent communications with this office; and
    3. the Agency’s submissions received on [date] and [date].
  1. 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.
  2. 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

  1. 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

  1. 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

  1. 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.
  1. The exemption does not apply to purely factual material in a document.[1]
  2. 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]
  3. 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.
  1. 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.

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

Section 35(1)(b)

  1. 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?

  1. 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]
  2. 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]
  3. 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.

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

Section 33(1)

  1. 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’.
  2. 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]
  3. A third party’s opinion or observations about another person’s conduct can constitute information related to a third party’s personal affairs.[9]
  4. 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?

  1. 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.
  2. 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?

  1. 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.
  2. 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’.
  3. 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]
  4. 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.
  1. 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).
  2. 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

  1. 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.
  2. 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]
  3. 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.
  4. 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

  1. 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.
  2. The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.

Review rights

  1. 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]
  2. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.[17]
  3. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.[18]
  4. 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.
  5. 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

  1. 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.
  2. 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

  1. 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

Document No. Date of Document Document Description Number of Pages Agency’s Decision OVIC Decision OVIC Comments
13. [Date] Referral of conflict of interest emails 5 Refused in full

Sections 30(1) and 35(1)(b)

Release in part

Sections 33(1), 30(1), 25

Except for the information referred to below, all other information that relates to the personal affairs of other persons in the emails is irrelevant and is to remain deleted under section 25.

The following information is to be released to the Applicant:

Page 1: second email, timestamped [time], in email chain included at the bottom of page:

–          content of the From, Sent, and Subject lines;

–          content of the email except for the 2nd word on line 1, the 7th to 11th words on line 2 and the 9th word on line 4;

–          the first and last name of the person mentioned in the
first sentence of the email; and

–          the name, contact details and signature of the sender.

Page 2: second email timestamped [time], in email chain included at the bottom of page

–          the contents of the From, Sent, and Subject lines;

–          the content of the email, except for the 2nd word in line 1 and the 4th and 10th words in line 2;

–          the first name mentioned in the first sentence of the email, which is the 11th word in the sentence; and

–          the name, signature and contact details of the sender.

Page 3: First email, timestamped [time], in email chain included at the top of the page

–          the contents of the From, Sent, and Subject lines;

–          the email content, except for the 2nd word;

–          the first name mentioned at the end of the sentence; and

–          the name, signature and contact details of the sender.

Page 3-4: the third email, timestamped [time], in email chain included at the bottom of the page

–          the contents of the From, Sent, and Subject lines;

–          the name, signature and contact details of the sender; and

–          the content of the email, except for the 2nd word in line 1, the 6th to 13th and 21st words in line 2 and the 7th and 8th words in line 3.

All other information is to remain deleted in accordance with the Agency’s decision under sections 30(1), 33(1) and 35(1)(b).

Section 30(1): Following provision of a preliminary view the Agency agreed certain information it determined was exempt under section 30(1) can be released to the Applicant.

However, I am satisfied certain information contains matter in the nature of opinion or advice that concerns the Agency’s deliberative processes. I am satisfied disclosure of the relevant information would be contrary to the public interest as it relates to a sensitive matter involving the Agency’s investigation undertaken into a potential conflict of interest matter [redacted – details of circumstances]. Accordingly, I am satisfied this information is exempt under section 30(1).

Section 35(1)(b): I am satisfied information in the document relates to information communicated in confidence by an Agency officer internally to the Agency in the context of an investigation. The routine disclosure of such information would be reasonably likely to impair the ability of the Agency to obtain similar information in the future. Accordingly,
I am satisfied information in the document is exempt under section 35(1)(b).

Section 33(1): I am not satisfied it would be unreasonable to disclose the names and contact details of persons where such information was disclosed in other documents.

However, I am satisfied it would be unreasonable to disclose the personal affairs information of other persons for the following reasons:

·         the document contains personal affairs information, such as statements and observations, which were provided in confidence for the sole purpose of an investigation. This information is sensitive and its disclosure may enable the communicator to be identified;

·         the Applicant seeks access to the documents to understand the Agency’s investigation process and confirm all processes and procedures were followed correctly. [Redacted background information]. While I acknowledge this is a personal matter for the Applicant, I do not consider the Applicant’s personal interest in the information outweighs the right to privacy of the relevant third parties;

·         there is a public interest in maintaining the confidentiality of investigations relating to potential conflict of interest matters, where disclosure may inhibit an agency from effectively conducting such investigations in the future;

·         the broader public interest would not be promoted by disclosure of third parties’ personal affair[s] information. The Applicant’s interest in obtaining access is a matter of private interest; and

·         I have also considered the views of third parties who objected to the release of their personal affairs information following consultation by the Agency.

Section 25: I am satisfied it is practicable to provide the Applicant with an edited copy of the document with irrelevant and exempt information deleted in accordance with section 25.

22. [Date] Various emails and documents 409 Released in part

Sections 30(1), 33(1), 35(1)(b)

Release in part

Sections 30(1), 33(1), 35(1)(b), 25

 

 

 

 

Section 30(1): See comments for Document 13.

Section 35(1)(b): See comments for Document 13.

Section 33(1): See comments for Document 13.

Section 25: See comments for Document 13.

23. [Date] Conflict of interest brief email, including brief 38 Released in part

Sections 30(1), 33(1), 35(1)(a), 35(1)(b)

 

Release in part

Sections 30(1), 33(1), 35(1)(b), 25

The name, title, email address and telephone numbers of the person who prepared the brief on pages 2 to 4 and all other names, titles and other identifying information in the brief are irrelevant and to be deleted in accordance with section 25.

The following information in the brief on pages 2 to 4 is exempt under sections 33(1) and 33(1) and 30(1):

–          the last three sentences of point 2 of the brief;

–          the last two sentences of point 3 of the brief;

–          the last sentence of point 4 of the brief;

–          the last two sentences of point 7 of the brief; and

–          all information included in point 9 of the brief.

All other information in the brief
on pages 2 to 4 is to be released to
the Applicant.

All other information in the document is to remain deleted in accordance with the Agency’s decision under sections 30(1), 33(1) and 35(1)(b).

Section 30(1): The Agency engaged the services of an external consultant to investigate a potential breach of the Agency’s conflict of interest policy. For the purposes of section 30(1), I am satisfied the consultants are ‘officers’ of the Agency.

A preliminary view was provided to the Agency that information that is factual, relates to the Applicant, was released elsewhere or is administrative in nature is not exempt under section 30(1). The Agency agreed this information can be released to the Applicant.

However, I am satisfied the disclosure of certain information in the document would be contrary to the public interest. See comments for Document 13.

As I have found some information to be exempt under section 30(1), it is not necessary for me to decide if the same information is exempt under section 35(1)(a).

Section 35(1)(b): See comments for Document 13 above.

Section 33(1): See comments for Document 13. I note the information deleted on page 4 (being the last page of the brief) relates predominantly to a person other than the Applicant and
I consider it would be unreasonable to release the information.

Section 25: See comments for Document 13.

25. [Date] Conflict of interest advice email 10 Released in part

Sections 30(1), 33(1), 35(1)(b)

Release in part

Sections 30(1), 33(1), 25

Section 30(1): See comments for Document 13 above. As I am satisfied certain information is exempt under section 30(1), it is not necessary for me to determine if the same information is exempt under section 35(1)(b).

Section 33(1): See comments for Document 13.

E. [Date] Email between [Agency officers] 38 Released in part

Sections 30(1), 33(1), 35(1)(a), 35(1)(b)

Release in part

Sections 30(1), 33(1), 35(1)(b), 25

The brief included on pages 2 to 4 is to be released in accordance with the directions provided for Document 23.

All other information in the brief on pages 2 to 4 is to be released.

All other information in the document is to remain deleted in accordance with the Agency’s decision under sections 30(1), 33(1) and 35(1)(b).

Section 30(1): See comments for Document 23.

Section 35(1)(b): See comments for Document 23.

Section 33(1): See comments for Document 23.

Section 25: See comments for Document 13.

 

F. [Date] Email between [Agency officers] 2 Refused in full

Section 30(1), 33(1), 35(1)(b)

Refuse in full

Sections 30(1), 33(1), 35(1)(b)

Section 30(1): I am satisfied the information in the document contains matter in the nature of opinions or advice regarding the handling of a conflict of interest matter that reflects the Agency’s deliberative processes in undertaking a conflict of interest investigation. I am satisfied disclosure of the relevant information would be contrary to the public interest. See comments for Document 13.

Section 35(1)(b): See comments for Document 13.

Section 33(1): See comments for Document 13.

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).

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