‘DB2’ and Country Fire Authority (Freedom of Information) [2021] VICmr 138 (18 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 on the Applicant’s request differs from the Agency’s decision.

I am satisfied certain documents are exempt under sections 30(1), 31(1)(a), 31(1)(d) and 33(1).

Where I am satisfied it is practicable to provide the Applicant with an edited copy of a document with irrelevant and exempt information deleted in accordance with section 25, I have determined to grant access to the document in part. Where it is not practicable to do so, I have refused access to the document in full.

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

18 May 2021

Reasons for Decision

Background to review

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

I request all correspondence dated between [year] and [year] between CFA [Country Fire Authority]
and the Victorian Building Authority relating to building surveyor [name], and the addresses of the projects that were the subject of that correspondence.

2. The Agency identified 176 pages of documents falling within the terms of the Applicant’s request
   and granted access to the documents in part. The Agency relied on the exemptions in sections 30(1), 31(1)(a), 31(1)(d), 35(1)(a), 35(1)(b) and 38 to refuse access to certain information in the documents. 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 do not seek access to personal affairs information of other persons (third parties).
5. I have considered all communications and submissions received from the parties throughout the review.
6. 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.
7. 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.

Review of exemptions

Section 29A – Documents affecting national security, defence or international relations

8. Section 29A concerns documents affecting national security, defence or international relations:

(1)       A document is an exempt document if disclosure of the document under this Act would, or could reasonably be expected to, cause damage to—

(a)        the security of the Commonwealth or any State or Territory; or (b) the defence of the Commonwealth; or

…

(1B)     Without limiting subsection (1), a document is an exempt document if it is a document—

(a)        created for or with respect to emergency risk management arrangements for critical infrastructure resilience under Part 7A of the Emergency Management Act 2013 for the purposes of administering, complying with, or enforcing that Part; or

(b)        which contains information about, or which could lead to the identification of, a document to which paragraph (a) applies.

9. The Agency does not rely on the exemption under section 29A, however, the Victorian Building Authority (VBA) asserts section 29A should be considered in this matter.
10. The Agency provided OVIC with a document dated [date], signed by the Secretary of the Department of Environment, Land, Water and Planning identifying a document exempt under section 29A, which is not subject to this review. While I have no power under the FOI Act to review decisions to exempt a document under section 29A,[1] I accept the designation of the document provided indicates the sensitivity of certain information in the documents subject to my review in this matter.

Sections 35(1)(a) – Information provided in confidence to an agency that would be exempt if generated by the agency

11. The documents subject to review were created by the Agency and the VBA.
12. Given the documents contain matter in the nature of opinion, advice or recommendation, prepared during both agencies’ deliberative processes, namely that of their respective regulatory functions and obligations, I have considered:

1. 1. whether section 35(1)(a) applies to documents created by the VBA; and
   2. whether section 30(1) applies to documents created by the Agency.

Section 35(1)(a)

13. A document is exempt under section 35(1)(a) if two conditions are satisfied:

1. 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. the information would be exempt matter if it were generated by an agency or Minister.

Was the information provided in confidence?

14. Whether the information communicated by an individual was communicated in confidence is a question of fact.^[2]
15. When determining whether information was communicated in confidence, it is necessary to consider the position from the perspective of the communicator.^[3]
16. Confidentiality can be expressed or implied from the circumstances of a matter.^[4]
17. The VBA advises it provided the documents in confidence to the Agency.
18. I am satisfied certain documents were provided by the VBA in confidence to the Agency given the documents relate to sensitive regulatory matters.

Would the information be exempt if it were generated by an agency or Minister?

19. Therefore, I have considered below whether these documents are exempt under section 30(1) for the purposes of section 35(1)(a).

Section 30(1)

20. Section 30(1) has three requirements:

1. 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.

21. The exemption does not apply to purely factual material in a document.^[5]

Do the documents 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?

22. As described above, I consider the documents contain matter in the nature of opinion, advice or recommendation prepared by the Agency or by the VBA.

Were the documents 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?

23. I am satisfied the documents were prepared by both agencies in the course of their deliberative processes, that of fulfilling their regulatory functions and obligations.

Would disclosure of the documents be contrary to the public interest?

24. In deciding if release is contrary to the public interest, I must consider all relevant facts and circumstances remaining mindful that the object of the FOI Act is to facilitate and promote the disclosure of information.
25. In deciding whether the information exempted by the Agency would be contrary to the public interest, I have given weight to the following relevant factors:^[6]

1. 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 or 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 documents 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 documents;
   6. the impact of disclosing documents in draft form, including 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.

26. I consider it would not be contrary to the public interest to disclose the documents where:

1. 1. the correspondence between the Agency and the VBA are templated letters that do not reveal sensitive information about specific fire or other safety matters;
   2. the information is publicly available, as I note there is substantial information available about the regulatory action taken by the Agency in relation to the named building surveyor, including in the VBA’s disciplinary register that contains specific details about the disciplinary action taken (but not the addresses to which they relate), as well as a written decision of the Victorian Civil and Administrative Tribunal (VCAT)[7] that refers to previous actions taken by the VBA and the address to which each matter relates; and
   3. there is a public interest in disclosure of information that demonstrates how both the Agency and the VBA are meeting their regulatory responsibilities; this includes their deliberative processes in determining disciplinary action.

27. I consider it would be contrary to the public interest to disclose documents where:

1. 1. the information is not publicly available;
   2. the documents provide information, relating to specific addresses, about sensitive matters relating to fire and other safety concerns; I consider disclosure of these documents reveal certain information about fire safety measures relating to particular buildings that should not be generally publicly available; and
   3. in relation to such information, I consider disclosure would likely only give part explanation that, given the sensitivity of that information, may not accurately reflect the Agency’s final position, nor the current fire safety measures undertaken at a particular location.

28. My decision in relation to sections 30(1) and 35(1)(a) is set out in the Schedule of Documents at Annexure 1.

Section 31(1)(a) – Documents that would prejudice an investigation into a breach of the law or the enforcement or administration of the law

29. Subject to this section, a document is an exempt document if its disclosure under the FOI Act would, or would be reasonably likely to prejudice the investigation of a breach or possible breach of the law or prejudice the enforcement or proper administration of the law in a particular instance.
30. ‘Reasonably likely’ means there is a real chance of an event occurring; it is not fanciful or remote.^[8]
31. ‘Prejudice’ means to hinder, impair or undermine and includes actual prejudice as well as impending prejudice.^[9]
32. ‘In a particular instance’ does not require a single specific investigation. This phrase can encompass specific, identified aspects of law, administration of law or investigations of breaches or potential breaches of law.^[10]
33. My decision in relation to section 31(1)(a) is set out in the Schedule of Documents at Annexure 1.

Section 31(1)(d) – Documents that disclose law enforcement investigative methods and procedures

34. Subject to section 31, section 31(1)(d) provides a document is exempt if its disclosure would, or would be reasonably likely to, ‘disclose methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures’.
35. The exemptions in section 31(1) do not apply to widespread and well known methods and procedures.^[11]
36. My decision in relation to section 31(1)(d) is set out in the Schedule of Documents at Annexure 1.

Section 33(1) – Personal affairs information of third party individuals

37. A document is exempt under section 33(1) if two conditions are satisfied:

1. 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;^[12] and
   2. such disclosure would be ‘unreasonable’.

38. 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.^[13]
39. The concept of ‘unreasonable disclosure’ involves balancing the public interest in the disclosure of official information with the personal interest in privacy in the particular circumstances of a matter.
40. In determining whether the disclosure of a document would involve the unreasonable disclosure of information relating to the personal affairs of any person, I must take into account whether the disclosure of information would, or would be reasonably likely to, endanger the life or physical safety of any person.[14] However, I do not consider this to be a relevant factor in the circumstances.
41. In determining whether disclosure of a document would involve the unreasonable disclosure of a third party’s personal affairs information, an agency must notify that person an FOI request has been received for documents containing their personal information and seek their view as to whether disclosure of the document should occur.^[15] However, this obligation does not arise if:

1. 1. the notification would be reasonably likely to endanger the life or physical safety of a person, or cause them undue distress, or is otherwise unreasonable in the circumstances;
   2. the notification would be reasonably likely to increase the risk to the safety of a person experiencing family violence; or
   3. it is not practicable to do so.^[16]

38. The Agency advised it did not consult with the building surveyor subject to the request.

Do the documents contain personal affairs information?

43. I note the Applicant states they do not seek access to the personal affairs information of third parties. Therefore, I have determined the names of Agency and VBA officers are irrelevant to the request, as well as certain other third parties named in the documents.
44. However, given the terms of the request refer to a named building surveyor, I consider the nature of certain information sought by the Applicant invariably involves the personal affairs information of that person. This includes their name, information from which they could be identified (for example the address of a particular compliance action), as well as any information relating to compliance activity taken by the Agency or the VBA in relation to them.

Would disclosure of the information be unreasonable?

45. I consider it would not be unreasonable to disclose information where:

1. 1. the information is publicly available, including in the VBA’s disciplinary register and a matter decided by VCAT; and
   2. the disclosure of personal affairs information is in the public interest; in this instance there is a public interest in disclosure of information regarding how the agency responded to public safety concerns raised by the conduct of the named building surveyor.

46. I consider it would be unreasonable to disclose information where:

1. 1. there does not appear to be publicly available information about certain matters referred to in the documents;
   2. while not consulted, I consider it likely the named building surveyor would object to information that has not been made public to be disclosed; and
   3. I am not satisfied the public interest in disclosure outweighs the named building surveyor’s right to privacy in relation to certain information that is not publicly available.

47. My decision in relation to section 33(1) is set out in the Schedule of Documents at Annexure 1.

Section 35(1)(b) – Information provided in confidence to an agency that would impair the agency’s ability to obtain similar information in the future if disclosed

48. A document is exempt under section 35(1)(b) if two conditions are satisfied:

1. 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.

49. The Agency advised it consulted with the third party, being the VBA.
50. My decision in relation to section 35(1)(b) is set out in the Schedule of Documents at Annexure 1.

Section 25 – Deletion of exempt or irrelevant information

51. 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.
52. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’^[17] 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.^[18]
53. 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 because the information is not sought by the Applicant.
54. I have considered the effect of deleting irrelevant and exempt information from the documents. I am satisfied it is practicable to provide the Applicant with an edited copy of certain documents with irrelevant and exempt information deleted as to do so would not require substantial time and effort, and the edited documents would retain meaning.

Conclusion

55. On the information before me, I am satisfied certain documents are exempt under sections 30(1), 31(1)(a), 31(1)(d) and 33(1).
56. Where I am satisfied it is practicable to provide the Applicant with an edited copy of a document with irrelevant and exempt information deleted in accordance with section 25, I have determined to grant access to the document in part. Where it is not practicable to do so, I have refused access to the document in full.

Review rights

57. If either party to this review is not satisfied with my decision, they are entitled to apply to VCAT for
    it to be reviewed.^[19]
58. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[20]
59. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[21]
60. 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.
61. 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.^[22]

Third party review rights

62. As I have decided to release documents that contain the personal affairs of a third party and matters the Agency considered were provided to it in confidence, if practicable, I am required to notify those individual and agency third parties of my decision and their right to seek review of my decision by VCAT within 60 days from the date they are given notice.[23]
63. I am satisfied it is practicable to notify the relevant third parties and confirm they will be notified of my decision and their third party review rights.

When this decision takes effect

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

Annexure 1 – Schedule of Documents

Endnotes

[1] Section 49A(4).

[2] Ryder v Booth [1985] VR 869 at 883.

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

[4] Ibid

[5] Section 30(3).

[6] Hulls v Victorian Casino and Gambling Authority (1998) 12 VAR 483.

[7] Basiri v Victorian Building Authority (Review and Regulation) [2019] VCAT 1376 (6 September 2019)

[8] Bergman v Department of Justice Freedom of Information Officer [2012] VCAT 363 at [65], quoting Binnie v Department of Agriculture and Rural Affairs [1989] VR 836.

[9] Ibid, Bergman at [66], referring to Sobh v Police Force of Victoria [1994] VicRp 2; [1994] 1 VR 41 (Nathan J) at [55].

[10] Cichello v Department of Justice (Review and Regulation) [2014] VCAT 340 at [24].

[11] XYZ v Victoria Police [2010] VCAT 255 at [177].

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

[13] Section 33(9).

[14] Section 33(2A).

[15] Section 33(2B).

[16] Section 33(2C).

[17] 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].

[18] 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].

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

[20] Section 52(5).

[21] Section 52(9).

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

[23] Section 49P(5), 50(3), 50(3A) and 52(2).