‘CZ7’ and Bayside City Council (Freedom of Information) [2021] VICmr 125 (11 May 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 differs from the Agency’s decision in that I have determined some of the information to which the Agency refused access under section 33(1) is exempt under section 38 in conjunction with section 125 of the Local Government Act 2020 (Vic).

As I am satisfied 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 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

11 May 2021

Reasons for Decision

Background to review

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

All documentation, including notes of phone calls, emails, and anything relating to and relied upon in the planning and building decision-making process, made in relation to the property at [specified address]. The search should include, but is not limited to, documents held by the Building and Planning departments.

2. The Agency identified 62 documents falling within the terms of the Applicant’s request. The Agency relied on section 33(1) to deny access to certain documents in full and in part. 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:

To make things clear, this is an FOI related to a planning/building issue. I am not interested in the personal affairs of other individuals, including their names, phone numbers, email addresses, charge rates, or any other information of a personal nature. I am concerned only with the process and governance in relation to the building permit issued.

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.

New Local Government Act

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’. 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.
11. The Agency determined the documents were exempt under section 33(1).
12. On 24 October 2020, the Local Government Act 2020 (Vic) (LG Act) commenced. The secrecy provision in section 125 of the LG Act replaced the secrecy provision in the former Local Government Act 1989 (Vic).
13. Section 125 of the LG Act changes the way a council must process certain FOI requests as it prohibits the disclosure of ‘confidential information’ including personal affairs information in documents held by a council.
14. Accordingly, it is appropriate for me to first consider whether the documents are exempt under section 38 of the FOI Act in conjunction with section 125 of the LG Act.

Review of exemptions

Section 38 – Secrecy provision

15. A document is exempt under section 38 if the following three requirements are met:

1. 1. there is an enactment in force;
   2. the enactment applies specifically to the kind of information in a document; and
   3. the enactment prohibits persons, referred to in the enactment, from disclosing that specific kind of information (either absolutely or subject to exceptions or qualifications).

16. For section 38 to apply to a document, an enactment must be formulated with such precision that it specifies the actual information sought to be withheld.

Is there is an enactment in force?

17. Section 125 of the LG Act came into force on 24 October 2020 and provides:

125      Confidential information

(1)       Unless subsection (2) or (3) applies, a person who is, or has been, a Councillor, a member of a delegated committee or a member of Council staff, must not intentionally or recklessly disclose information that the person knows, or should reasonably know, is confidential information.

            Penalty:     120 penalty units.

(2)       Subsection (1) does not apply if the information that is disclosed is information that the Council has determined should be publicly available.

(3)       A person who is, or has been, a Councillor, a member of a delegated committee or a member of Council staff, may disclose information that the person knows, or should reasonably know, is confidential information in the following circumstances—

(a)        for the purposes of any legal proceedings arising out of this Act;

(b)        to a court or tribunal in the course of legal proceedings;

(c)        pursuant to an order of a court or tribunal;

(d)        in the course of an internal arbitration and for the purposes of the internal arbitration process;

(e)        in the course of a Councillor Conduct Panel hearing and for the purposes of the hearing;

(f)         to a Municipal Monitor to the extent reasonably required by the Municipal Monitor;

(g)        to the Chief Municipal Inspector to the extent reasonably required by the Chief Municipal Inspector;

…

18. I am satisfied the LG Act is an enactment in force for the purpose of section 38.

Does the enactment apply specifically to the kind of information in the documents?

19. ‘Confidential Information’ in section 125 of the LG Act is defined in section 3(1)(f) of that Act and includes:

personal information, being information which if released would result in the unreasonable disclosure
of information about any person or their personal affairs;

20. The above definition in the LG Act of ‘confidential information’ overlaps with the exemption under section 33(1) of the FOI Act, which provides a document is exempt if:

1. 1. disclosure of a document under the FOI Act would ‘involve’ the disclosure of information relating to the ‘personal affairs’ of a person other than the Applicant (personal affairs information);[1] and
   2. disclosure of the personal affairs information would be ‘unreasonable’ in the circumstances.

Do the documents contain ‘personal information’ for the purposes of section 125 of the LG Act?

21. In determining whether the documents contain ‘personal information’ about any person or their personal affairs, and whether disclosure of the information would be unreasonable, I have had regard to similar considerations that arise under section 33(1).
22. A document is exempt under section 33(1) if its disclosure under the FOI Act would involve the unreasonable disclosure of information relating to the personal affairs of any person.
23. The term ‘personal information’ may encompass a broad range of information.
24. I am satisfied the personal information in the documents, and information about the residential property of a third party, constitutes ‘personal information’ and falls within the definition of ‘confidential information’ for the purposes of section 125 of the LG Act.
25. While I note the Applicant states they do not seek access to personal affairs information, it is evident they seek certain information that constitutes the ‘personal affairs information’ of a third party due to the broad definition of this phrase under section 33(9).
26. Therefore, while I have determined certain personal affairs information is irrelevant to the Applicant’s request (i.e. names, addresses, signatures, email addresses, telephone numbers, and position titles) and it is to be deleted in accordance with section 25, in the case of other personal affairs information (i.e. information that could be used to identify a person), I have considered whether it would be unreasonable to release that information.

Would release of the ‘personal information’ in the documents be unreasonable in the circumstances? 

27. The concept of ‘unreasonable disclosure’ under section 33(1) involves determining whether the public interest in disclosure of an individual’s ‘personal affairs information’ in an official document is outweighed by the interest in protecting the personal privacy of the individual in the circumstances.
28. The Victorian Court of Appeal has held there is ‘no absolute bar to providing access to documents which relate to the personal affairs of others’.[2] Further, 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’.
29. Even where an applicant claims to know the identity of a third party, disclosure of a third party’s personal affairs information may still be unreasonable in the circumstances.[3]
30. In determining whether disclosure of the personal information in the documents would be unreasonable, I have considered the following factors:
31. 1. The nature of the personal information and the circumstances in which the information was obtained

The information in the documents relates to regulatory action taken by the Agency in response to construction undertaken on a private residential property.

While I agree this is the personal affairs information of the property owner, I do not consider it is sensitive personal information as much of the information:

1. 1. 1. relates to the exterior of the building and outdoor areas that would be publicly visible;
      2. has been provided to the Applicant in email correspondence between the Applicant and the Agency; or
      3. is technical in nature, that is, it relates to relevant regulations and planning law and is not substantially connected to the third party’s private or personal life.

Therefore, this factor weighs in favour of disclosure.

The information was obtained by the Agency in the course of its regulatory duties. Some of the information was independently gathered, and some was provided to the Agency by a third party.

In my view, where documents are provided to the Agency there may be an expectation that those documents will not be disclosed. This factor weighs against disclosure in relation to those documents.

I note works to some residential properties require advertisement so that neighbours may be notified about planned building works and object to those works. Such processes reflect that certain building works can affect neighbouring properties and the amenity of an area. For similar reasons, I consider the disclosure of certain personal affairs information would not be unreasonable in this case. Therefore, this factor weighs in favour of disclosure.

1. 2. The Applicant’s interest in the information, and whether their purpose for seeking access to the information is likely to be achieved by disclosure

The Applicant seeks the documents to understand the Agency’s response to complaints they raised regarding building works on the third party’s property.

I consider disclosure of the documents would assist the Applicant to achieve the purpose for which they seek access to the documents. Therefore, this factor weighs in favour of disclosure.

1. 3. The likelihood of further disclosure of information, if released

Information before me suggests the documents are likely to be disseminated should they be disclosed. However, as I am of the view much of the information is not sensitive personal affairs information, I do not consider this factor weighs against disclosure.

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

The documents describe the actions taken by the Agency in relation to its responsibilities regarding building and planning. In my view there is considerable public interest in disclosure of information that can hold agencies to account for such actions and can promote greater public scrutiny of their decisions in relation to such matters. Therefore, this factor weighs in favour of disclosure.

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

The third party objects to release of their information. While the view of a third party is not a determinative factor, I have given weight to this factor in this matter.

1. 5. Whether release of the information could lead to the persons to whom it relates suffering stress and anxiety

I note a third party objects to disclosure of the information and the reasons for their objection. As such I acknowledge disclosure is likely to cause that individual stress and anxiety.

I am constrained from providing more detail about this information as it may reveal information either the Agency or the third party considers is personal affairs information that would be unreasonable to disclose. However, based on the information before me, I am not satisfied this factor outweighs the other factors described above, in particular, the public interest in disclosure.

1. 6. Whether the disclosure of 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.

31. For the above reasons, I am not satisfied it would be unreasonable to disclose the majority of information in the documents. While I note the third party objects to release of their personal affairs information, my view is the content and purpose for which the documents were created is not sensitive, and the public interest weighs in favour of disclosure.
32. However, I consider certain information is more sensitive such that the public interest weighs against disclosure. I am satisfied section 38 applies to the personal information of third parties only in the documents as:

1. 1. section 125 of the LG Act is an enactment in force;
   2. subsection 3(f) of the LG Act refers specifically to the personal information in the
      documents; and
   3. section 125 of the LG Act prohibits Agency officers, specifically councillors and council staff, from disclosing ‘confidential information’.

33. My decision in relation to section 38 is set out in the Schedule of Documents in Annexure 1.

Section 25 – Deletion of exempt or irrelevant information

34. 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.
35. 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]
36. 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 relates to the specific personal affairs information the Applicant does not seek.
37. 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 the accordance section 25. In my view, it is practicable to delete this information as to do so would not require substantial time and effort, and the edited documents would retain meaning.

Conclusion

38. On the information before me, I am satisfied certain personal information in the documents is exempt under section 38 in conjunction with section 125 of the LG Act.
39. As I am satisfied 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 determined to grant access to the documents in part.
40. The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.

Review rights

41. 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.^[6]
42. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[7]
43. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[8]
44. 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.
45. 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

46. As I have determined to release documents that contain the personal information of individuals,
    if practicable, I am required to notify those persons of their right to seek review by VCAT of my decision within 60 days from the date they are given notice.^[10]
47. In this case, I am satisfied it is practicable to notify the third parties of their review rights and confirm they will be notified of my decision on the date of decision.

When this decision takes effect

48. Accordingly, my decision does not take effect until the 60 days review period for third parties expires, or if an application to VCAT is made, until the VCAT proceeding is concluded.

Endnotes

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

[2] Victoria Police v Marke [2008] VSCA 218 at [76].

[3] AB v Department of Education and Early Childhood Development [2011] VCAT 1263 at [58]; Akers v Victoria Police [2003] VCAT 397.

[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).