‘CT7’ and City of Greater Geelong (Freedom of Information) [2021] VICmr 71 (15 March 2021)

All references to legislation in this document are to the Freedom of Information Act 1982 (Vic) (FOI Act) unless otherwise stated.

Notice of Decision

I have conducted a review under section 49F of the Agency’s decision to refuse access to documents requested by the Applicant under the FOI Act.

My decision on the Applicant’s request differs from the Agency’s decision.

I am satisfied section 34(1)(b) applies to one document in part only. I am not satisfied section 34(1)(b) applies to the remainder of the documents.

As it is practicable to edit the documents to delete irrelevant and exempt information, I have determined to grant access to the documents in part.

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

My reasons for decision follow.

Joanne Kummrow

Public Access Deputy Commissioner

15 March 2021

Reasons for Decision

Background to review

1. The Applicant made a request to the Agency seeking access to the following documents:
   1. Any documents submitted to Greater Geelong City Council by the permit applicant in respect of Planning Permit Application No. [reference] (including, but not limited to, architectural plans, supporting material and any responses from referral authorities);
   2. Any correspondence (which includes letters, emails and text messages and any attachments therein) between the permit applicant and Greater Geelong City Council, and its employees and Councillors, in respect of Planning Permit Application No. [reference] or Planning Permit No. [reference];
   3. Any correspondence (which includes letters, emails and text messages and any attachments therein) the permit applicant, Greater Geelong City Council, including its employees and Councillors, and any referral authorities for the purpose of section 55 of the Planning and Environment Act 1987, in respect of Planning Permit No. [reference] or Planning Permit No. [reference]; and
   4. Any other documents Council has in its possession in relation to any assessment, analysis or advice it has received or given in relation to Planning Permit Application No. [reference] or Planning Permit No. [reference].
2. The Agency identified documents falling within the terms of the Applicant’s request and refused access to certain documents in full and in part under section 34(1)(b). 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. During the review, the Applicant advised they seek review of certain documents only, as described in the Schedule of Documents at Annexure 1, and does not seek access to the personal affairs information of third parties.
5. I have examined copies of the documents subject to review.
6. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.
7. I have considered all communications and submissions received from the parties.
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.
10. In conducting a review under section 49F, section 49P requires that I make a new or ‘fresh decision’. Therefore, my review does not involve determining whether the Agency’s decision is correct, but rather requires my fresh decision to be the ‘correct or preferable decision’.[1] This involves ensuring my decision is correctly made under the FOI Act and any other applicable law in force at the time of my decision.

Review of exemptions

Section 38

11. It is open to the Agency, when making a decision under the FOI Act, to consider the application of section 38 in conjunction with section 125 of the Local Government Act 2020 (Vic). However, the Agency did not do so in this instance.
12. For completeness, having considered the relevant provisions of section 125 I have determined section 38 does not apply to the documents.

Section 34(1)(b)

13. Section 34(1)(b) provides a document is an exempt document if its disclosure under the FOI Act would disclose information acquired by an agency (or a Minister) from a business, commercial or financial undertaking and:

1. 1. the information relates to other matters of a business, commercial or financial nature; and
   2. the disclosure of the information would be likely to expose the undertaking unreasonably to disadvantage.

14. In Thwaites v Department of Human Services,^[2] the Victorian Civil and Administrative Tribunal (VCAT) observed the phrase ‘information acquired’ in section 34(1) signifies the need for some positive handing over of information in some precise form.
15. VCAT has also recognised the words ‘business, commercial or financial nature’ have their ordinary meaning.^[3]

Section 34(2) provides:

In deciding whether disclosure of information would expose an undertaking unreasonably to disadvantage, for the purposes of paragraph (b) of subsection (1), an agency or Minister may take account of any of the following considerations—

1. 1. 1. whether the information is generally available to competitors of the undertaking;
      2. whether the information would be exempt matter if it were generated by an agency or a Minister;
      3. whether the information could be disclosed without causing substantial harm to the competitive position of the undertaking; and
      4. whether there are any considerations in the public interest in favour of disclosure which outweigh considerations of competitive disadvantage to the undertaking, for instance, the public interest in evaluating aspects of government regulation of corporate practices or environmental controls—

and of any other consideration or considerations which in the opinion of the agency or Minister is or are relevant.

16. The Agency consulted with relevant business undertakings and I have taken their responses into consideration in my decision.
17. The business undertakings submit:

[the business undertakings’] strongly object to the release of other documents, including plans, on the basis that these contain details which are commercial in confidence and reveal commercial and business aspects of our client’s operations. The plans also disclose details of the internal design of the plant not relevant for planning purposes, which may compromise security at the site.

[the business undertaking’s] primary business is the manufacture of [description redacted] and other materials used for [description redacted] purposes. The release of the details of the plant has the potential to compromise security arrangements related to contracts for the supply of materials to Government and government agencies.

18. My decision in relation to section 34(1)(b) is set out in the Schedule of Documents in Annexure 1.

Section 25 – Deletion of exempt or irrelevant information

19. Section 25 requires an agency to grant access to an edited copy of a document when it is practicable to delete exempt or irrelevant information and the applicant agrees to receiving such a copy.
20. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’^[4] 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.^[5]
21. I have considered the information the Agency deleted from the documents as irrelevant. I agree it falls outside the scope of the Applicant’s request as it is personal affairs information, which not sought by the Applicant.
22. I have considered the effect of deleting irrelevant or exempt information from the documents in accordance with section 25. I am satisfied it is practicable to delete the irrelevant or exempt information, as to do so would not require substantial time and effort, and the edited documents would retain meaning.

Conclusion

23. On the information before me, I am satisfied section 34(1)(b) applies to one document in part only.
    I am not satisfied section 34(1)(b) applies to the remainder of the documents.
24. As 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 have granted access to the documents in part.
25. The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.

Review rights

26. If either party to this review is not satisfied with my decision, they are entitled to apply to VCAT for it to be reviewed.^[6]
27. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[7]
28. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[8]
29. 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.
30. 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.^[9]

Third party review rights

31. I have decided to release documents that contain matters of a commercial nature relating to third party business undertakings.
32. The relevant third parties will be notified of my decision and their right to apply to VCAT for a review of my decision within 60 days from the date they are given notice.[10]

When this decision takes effect

33. Accordingly, my decision does not take effect until the third parties’ 60 day review period expires.
34. If a review application is made to VCAT, my decision will be subject to any VCAT determination.

Annexure 1 – Schedule of Documents

Endnotes

[1] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 591.

[2] (1999) 15 VAR 1.

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

[4] 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].

[5] 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].

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

[7] Section 52(5).

[8] Section 52(9).

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

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