‘DD1’ and City of Boroondara (Freedom of Information) [2021] VICmr 155 (4 June 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 to release additional information in the documents to the Applicant.

Specifically, I am satisfied:

• the information to which the Agency refused access under sections 32(1) and 34(1)(b) is exempt under section 38 in conjunction with section 125 of the Local Government Act 2020 (Vic) (LG Act 2020);
• section 38 applies to certain personal information which, if released, would result in the unreasonable disclosure of information about any person or their personal affairs; and
• certain information is exempt under sections 30(1), 35(1)(a) and 35(1)(b).

However, in each instance, I am not satisfied the Agency’s application of these exemptions is upheld.
Nor am I satisfied the documents are exempt under sections 31(1)(a) or 31(1)(d).

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

4 June 2021

Reasons for Decision

Background to review

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

…all documents in the possession of Council dated/created between [date range] containing personal information relating to me (Applicant’s name) and my[domestic animal/s]…

2. The Agency identified 250 documents totalling 1,258 pages falling within the terms of the Applicant’s request and granted access to nine documents in full, 75 documents in part and refused access to 166 documents in full.
3. The Agency relied on the exemptions in sections 30(1), 31(1), 32(1), 33(1), 34(1)(b), 35(1)(a) and 35(1)(b) to refuse access to the documents.
4. As the Applicant indicated they do not seek access to personal affairs information of third parties, where the Agency released documents, it did so with names, signatures, emails and telephone numbers removed as irrelevant information under section 25.
5. The Agency’s decision letters sets out the reasons for its decision.

Review

6. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
7. I have examined copies of the documents subject to review.
8. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.
9. I have considered all communications and submissions received from the parties.
10. 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.
11. 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

12. In undertaking a review under section 49F, I am required by section 49P to make a fresh or new decision. This means my review does not involve determining whether the Agency’s original decision is correct, but rather I am required to ensure my fresh decision is the ‘correct or preferable decision’.[1] This involves ensuring my decision is correctly made under the FOI Act and any other relevant applicable law in force at the time of making my fresh decision.
13. During this review, the LG Act 2020 commenced. The secrecy provision in section 125 of the LG Act 2020 replaces the secrecy provision in the former Local Government Act 1989(Vic).
14. Section 125 of the LG Act 2020 changes the way a council must process certain FOI requests as it prohibits the disclosure of ‘confidential information’, which includes personal affairs information in documents held by a council.
15. Therefore, it is appropriate for me to first consider whether the documents subject to review are exempt under section 38 of the FOI Act in conjunction with section 125 of the LG Act 2020.

Review of exemptions

Section 38 – Secrecy provision

16. 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).

17. 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 an enactment in force?

18. Section 125 of the LG Act 2020 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—

1. 1. 1. for the purposes of any legal proceedings arising out of this Act;
      2. to a court or tribunal in the course of legal proceedings;
      3. pursuant to an order of a court or tribunal;
      4. in the course of an internal arbitration and for the purposes of the internal arbitration process;
      5. in the course of a Councillor Conduct Panel hearing and for the purposes of the hearing;
      6. to a Municipal Monitor to the extent reasonably required by the Municipal Monitor;
      7. to the Chief Municipal Inspector to the extent reasonably required by the Chief Municipal Inspector;

19. I am satisfied the LG Act 2020 is an enactment in force for the purpose of section 38.

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

20. The term ‘confidential information’ is defined in section 3 of the LG Act 2020, which provides:

    3          Definitions

    …

    (e)     legal privileged information, being information to which legal professional privilege or client legal privilege applies;

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

    (g)     private commercial information, being information provided by a business, commercial or financial undertaking?

    1. 1. 1. 1. relates to trade secrets; or
             2. if released, would unreasonably expose the business, commercial or financial undertaking to disadvantage;
21. The definition of ‘confidential information’ in the LG Act 2020, as set out above, overlaps with the exemptions under sections 32(1), 33(1) and 34(1)(b) of the FOI Act.

Section 32(1) – Documents affecting legal proceedings

22. Section 32(1) provides a document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege or client legal privilege.
23. A document will be subject to legal professional privilege and exempt under section 32(1) where it contains a confidential communication:

1. 1. between the client (or the client’s agent) and the client’s professional legal advisers, that was made for the dominant purpose of obtaining or providing legal advice or is referrable to pending or contemplated litigation;
   2. between the client’s professional legal advisers and third parties, that was made for the dominant purpose of pending or contemplated litigation; or
   3. between the client (or the client’s agent) and third parties that was made for the purpose of obtaining information to be submitted to the client’s professional legal advisers for the dominant purpose of obtaining advice on pending or contemplated litigation.

22. The term ‘client professional privilege’ is a reference to Part 3.10, Division 1 of the Evidence Act 2008 (Vic). There are minor differences between the scope of client legal privilege and professional legal privilege.
23. ‘Purpose’ in the phrase ‘dominant purpose’ means the purpose that led to the creation of the document or the making of the communication.[2]
24. In Mostafa v Victorian WorkCover Authority,[3] Victorian Civil and Administrative Tribunal (VCAT) cited with approval a quote from Civil Procedure in Victoria:[4]

Legal professional privilege protects documents which, although not communications, were brought into existence or collected for the dominant purpose of being included in what may compendiously be called the ‘lawyer’s brief’.

27. Material gathered by the lawyer or the client in preparation for litigation is privileged as if it were a confidential communication between the lawyer and the client even if it is not such a communication.[5]
28. I am satisfied documents are ‘legal privileged information’ as they demonstrate either:

1. 1. members of the Agency seeking the advice of a legal officer in relation to the investigation and litigation of a matter;
   2. a legal officer providing their advice in their capacity as a legal adviser;
   3. communications between the Agency’s legal adviser and counsel in relation to court proceedings;
   4. documents prepared by the Agency or counsel briefed by the Agency in connection with litigation; and
   5. documents forming part of the brief to advise counsel.

29. Accordingly, I am satisfied the information identified as exempt by the Agency under section 32(1) is information to which professional legal privilege or client legal privilege applies. Therefore, I am satisfied information in the documents is ‘confidential information’ for the purposes of the LG Act 2020.

Section 34(1)(b) – Information acquired by the Agency from a business undertaking

30. Section 34(1)(b) provides a document is exempt if its disclosure under the FOI Act would disclose information acquired by an agency 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.

30. The words ‘business, commercial or financial nature’ have their ordinary meaning.^[6]
31. I note the exemption in section 34(1)(b) contemplates an undertaking may be exposed to a certain level of disadvantage. The question is whether the exposure to disadvantage would be unreasonable.
32. The Agency applied section 34(1)(b) to tax invoices. I accept information in the invoices was provided to the Agency by a private business undertaking. I also accept the information broadly relates to matters of a business and financial nature.
33. Having considered the information, I am satisfied release of the individual charge-out rate of legal counsel in the context of a highly competitive legal services market, would expose them unreasonably to disadvantage. However, where the invoice would not divulge such information
    it could not be seen to cause unreasonable detriment or financial disadvantage.
34. Accordingly, I am satisfied counsel charge out rates is ‘private commercial information’ and if released, would unreasonably expose the business, commercial or financial undertaking to disadvantage. Therefore, I am satisfied this type of information in the documents is ‘confidential information’ for the purposes of the LG Act 2020.

Section 33(1) – Personal affairs information of third parties

36. Section 33(1) provides a document is an exempt document if its disclosure:

1. 1. would ‘involve’ the disclosure of information relating to the personal affairs of a person other than the Applicant (personal information);[7] and
   2. such disclosure would be ‘unreasonable’.

37. As noted above at paragraph 20, under the LG Act 2020, ‘confidential information’ is defined to include ‘personal information, being information which if released would result in the unreasonable disclosure of information about any person or their personal affairs’.
38. Information relating to the ‘personal affairs’ of a person includes information that identifies any person or discloses their address or location. It also includes any information from which such information may be reasonably determined.[8]
39. A third party’s opinion or observations about another person’s conduct can constitute information in relation to the personal affairs of a third party.[9]

Would disclosure involve disclosure of a third party’s ‘personal information’?

40. Having reviewed the documents, I am satisfied they contain personal information of third parties who are not the Applicant being, names, telephone numbers, signatures, email addresses and position titles. Certain documents also contain information supplied to the Agency by third parties, as well as statements and observations made by Agency staff.

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

41. In relation to section 33(1), the concept of ‘unreasonable disclosure’ 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 an individual in the circumstances.
42. 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’.[10] 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’.
43. The Agency advised it had consulted with certain third parties in relation to the disclosure of their information. Copies of the Agency’s consultation and third party responses have been provided for my consideration.
44. Broadly, I accept there is nothing particularly sensitive about disclosing the identity of Victorian public sector staff or other professionals where such information merely concerns or represents those individuals performing their ordinary professional duties.
45. However, having considered the information before me, I am satisfied it would be unreasonable to release certain information in the documents for the following reasons:

1. 1. I consider the Applicant is able to read and interpret the documents without the inclusion of specific names, signatures, position titles and direct contact information of third parties. Further, the personal affairs information does not add any material value to the documents.
   2. I consider certain information provided to the Agency by third parties, which concerns their personal experiences, is highly sensitive and personal.
   3. I am satisfied the personal affairs information in the documents is not available to the public
      or otherwise available to the Applicant.
   4. The Applicant indicated in their original FOI request that personal affairs information of other individuals is information not particularly sought in their request.

46. Accordingly, I am satisfied it would be unreasonable to disclose the personal information of third parties, particularly where they do not wish to have their personal information disclosed.
47. Therefore, I am satisfied personal information in the documents is ‘confidential information’ for the purposes of the LG Act 2020.

Conclusion on section 38

48. I consider section 38 of the FOI Act applies to information in the documents as I am satisfied:

1. 1. section 125 of the LG Act 2020 is an enactment in force;
   2. subsections 3(e), (f) and (g) of the LG Act 2020 refers specifically to information in the
      documents; and
   3. section 125 of the LG Act 2020 prohibits Agency officers, specifically councillors and council staff, from disclosing ‘confidential information’.

49. Accordingly, I am satisfied certain information in the documents is ‘legal privileged information’, ‘personal information’ and ‘private commercial information’, which the Agency determined exempt under sections 32(1), 33(1) and 34(1)(b) is exempt under section 38 in conjunction with section 125 of the LG Act 2020.
50. As I am satisfied section 38 applies to this information it is not necessary for me to also consider the application of sections 32(1), 33(1) and 34(1)(b) to the same information.
51. My decision in relation to section 38 and the documents is set out in Annexure 1.

Section 31(1) – Law enforcement documents

52. The Agency’s decision did not distinguish what exemptions under section 31(1) it seeks to rely on. Nonetheless, having reviewed the documents and information provided by the Agency during the review, I consider the Agency’s seeks to rely on the exemption in sections 31(1)(a) and 31(1)(d).

Section 31(1)(a)

53. Subject to this provision, section 31(1)(a) provides a document is an exempt document if its disclosure 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’.
54. ‘Reasonably likely’ means there is a real chance of an event occurring; it is not fanciful or remote.
55. ‘Prejudice’ means to hinder, impair or undermine and includes actual prejudice as well as impending prejudice.
56. ‘In a particular instance’ does not require a single specific investigation. It can encompass specific, identified aspects of law, administration of law or investigations of breaches or potential breaches of law.

Section 31(1)(d)

57. Section 31(1)(d) provides (subject to this section) 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’.
58. The exemptions in section 31(1) do not apply to widespread and well-known methods and procedures.^[11]
59. In its decision, the Agency provided information as to why it considered disclosure of the documents to be exempt under this provision.

Most of the documents to which this exemption has been applied include documents obtained by Council for the purpose of prosecutions against you [the Applicant] under the Domestic Animals Act 1994 (Vic) (DAA). Various documents are exempt under section 31(1) of the Act as they formed part of the administration of the law for the purposes of s 31(1), in particular the administration of the DAA and Local Government Act 1986 (Vic) (now replaces, in part, by the Local Government Act 2020 (Vic) (local government laws)) [sic].

…Documents to which this exemption is claimed includes email correspondence, court documents (such as briefs of evidence) and enforcement action and prosecutions.

The documents reveal matters relevant to the administration of the DAA and local government laws…

In particular, Council considers that disclosure of these documents to you 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; and
    • Prejudice the effectiveness of Council’s procedures for preventing, detecting, investigating and dealing with future breaches or evasions of the law.

60. Relevantly, I also note the Agency’s decision letter states, ‘I understand the prosecution and investigation matters concerning you have recently concluded, however, as noted above, it is not readily apparent that they are finalised or may not resume in some form in the future’.
61. In relation to the application of section 31(1)(a), I accept the Agency has compliance and regulatory obligations and this is an important consideration when managing ongoing contact with the Applicant. Based on the information before me, I am not persuaded disclosure of specific documents identified by the Agency in this matter would prejudice any future investigations or impede the proper administration of its regulatory functions under the DAA and other local government laws.
62. I acknowledge the Agency’s view disclosure of certain documents could prejudice the ability of the Agency to respond to any future investigations and legal action involving the Applicant. I agree, in certain circumstances, that may be a relevant consideration. However, I consider if the potential for further legal action was enough to satisfy the exemption in section 31(1)(a) then it would seriously impede the proper application of the FOI Act if this approach were to be generally accepted. Further, in relation to the specific documents, the subject to this request, I do not consider their disclosure would affect the ability of the Agency to respond to any such litigation or investigation in the future.
63. In relation to the application of section 31(1)(d), broadly speaking, I note a small number of documents would disclose the Agency’s methods for its compliance activities. However, I do not consider the information in the documents rises to a level that would be reasonably likely to prejudice the effectiveness of those methods. Further, I consider the type of information in the documents relates to what would be reasonably expected by members of the public. For example, the conduct of interviews or assessment of relevant documentation or the written recording of telephone conversations and, in some instances, would be known by the Applicant as the subject of the Agency’s investigations.
64. My decision in relation to sections 31(1)(a) and 31(1)(d) is set out in the Schedule of Documents at Annexure 1.

Sections 35(1) and 30(1) – Documents containing material obtained in confidence and internal working documents

65. Section 35(1) applies to documents that, if disclosed, would divulge any information or matter communicated in confidence by or on behalf of a person or a government to an agency. This provision contains two exemptions: sections 35(1)(a) and 35(1)(b).

Section 35(1)(a)

66. 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.

66. The expression ‘exempt matter’ is defined in section 5(1) to mean ‘matter the inclusion of which in a document causes the document to be an exempt document’. A document must be capable of being exempt under another section of the FOI Act, if it were generated by an agency before it can be exempt under section 35(1)(a).
67. I note the advice of the Agency, which consulted with third party agencies, that documents were communicated in confidence. Given the documents were provided in relation to the prosecution of offences, I am satisfied certain documents were provided to the Agency in confidence.
68. Section 30(1) concerns the internal working documents of an agency. However, section 35(1)(a) has the effect that if the information was communicated to an agency from an outside source, so long as the provisions of section 30(1) are met, those communicating the information in confidence are ‘deemed’ to be officers of the agency and the material will be assessed as if it were generated by the agency.
69. Therefore, I have considered whether the documents are exempt under section 30(1).

Section 30(1)

71. 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; and
   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.

71. The exemption does not apply to purely factual material in a document.^[12]
72. I note documents containing discussions between different agencies will fall within the ambit of section 30(1)(a) where it would disclose consultation or deliberation between officers that relates to a deliberative process of one of those agencies.[13]
73. 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:^[14]

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.

71. In relation to the application of section 35(1)(a) and 30(1) to the documents, the Agency submit:

…section 35(1)(a) in conjunction with section 30(1) apply on the basis that disclosure of the information would:

• • • be exempt if it was generated by Council; and
    • be contrary to the public interest on the grounds that disclosure would be reasonably likely to:
      • prejudice the effectiveness of Council’s procedures for preventing, detecting, investigating and dealing with future breaches or evasions of the law;
      • endanger the physical safety of persons engaged in law enforcement and persons who have provided information in relation to the enforcement or administration of the law; and
      • impair the Council’s ability to obtain similar information in the future should people know that information they provide was likely to be released.

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

1. 1. the correspondence has been communicated to the Applicant and does not reveal sensitive information regarding the Agency’s investigation into complaints against the Applicant;
   2. the information has been provided by the Applicant;
   3. the correspondence between the Agency and other councils are templated letters that do not reveal sensitive information, methods or techniques;
   4. the information would be in the public domain; and
   5. there is a public interest in disclosure of information that demonstrates how the Agency meet its regulatory responsibilities under the Domestic Animals Act 1994 (Vic) (DA Act); this includes their deliberative processes in determining disciplinary action.

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

1. 1. information is not publicly available;
   2. documents that provide information specific to complaints made by third parties to the Agency and the Agency’s deliberations in relation to investigating those complaints; I consider disclosure of these documents reveal certain information about the Agency’s methods 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 or action taken in relation to a matter.

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

Section 35(1)(b)

79. 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.

80. Confidentiality can be expressed or implied from the circumstances of the matter.[15]
81. I note the Applicant’s advice to OVIC that they do not seek a review of information pertaining to complaints made to the Agency in relation to them.
82. 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

83. 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.
84. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’^[16] 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.^[17]
85. I have reviewed the Agency’s deletions of irrelevant information, being personal affairs information of third parties to which the Applicant indicated in their original request was information they did not seek. Where a document has been released to the Applicant it has been with names, telephone numbers, emails, position titles and signatures of third parties removed.
86. I have considered the effect of deleting irrelevant and exempt information from the documents. In my view, it is practicable for the Agency to delete the irrelevant and exempt information, because it would not require substantial time and effort, and the edited documents would retain meaning.
87. However, where the deletion of exempt would result in the deletion of information to the point the document no longer retains meaning, I consider it would be not practicable to provide an edited copy to the Applicant.

Conclusion

88. On the information before me, I am satisfied legally privileged information, personal information and certain private commercial information is exempt under section 38 in conjunction with section 125 of the LG Act 2020.
89. Further, I am satisfied certain information in the documents is exempt under sections 30(1), 35(1)(a) and 35(1)(b). However, I am not satisfied in each instance the Agency’s application of these exemptions is upheld.
90. Finally, I am not satisfied the documents are exempt under sections 31(1)(a) or 31(1)(d).
91. Where I am satisfied it is practicable to provide the Applicant with an edited copy of a document with exempt and irrelevant information deleted in accordance with section 25, I have granted access to a document in part. However, where the editing of a document would result in it being rendered meaningless, I have refused access to the document in full.
92. The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.

Review rights

93. If either party to this review is not satisfied with my decision, they are entitled to apply to VCAT for it to be reviewed.^[18]
94. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[19]
95. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[20]
96. 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.
97. 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.^[21]

Third party review rights

98. As I have determined to disclose certain documents the Agency claimed to be exempt under section 35(1), if practicable, I must notify any person, who has a right to make an application to VCAT for review of my decision under section 50(3AB), of the existence of that right.[22]
99. Any application for review by a third party must be made to VCAT within 60 days from the day on which notice in writing of my decision to disclose the document is given to that person.[23]
100. I have considered the practicability of notifying the third parties about my decision to information considered to be provided in confidence. In the circumstances, I do not consider it is practicable to notify the third party agencies. However, I consider it is open to the Agency to share my decision with these third party agencies should it wish to do so.

When this decision takes effect

101. My decision does not take effect until the Agency’s 14 day review period expires.
102. 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] Carnell v Mann (1998) 89 FCR 247 at 253.

[3] [2013] VCAT 782.

[4] Butterworths, 1987.

[5] Dingle v Commonwealth Development Bank of Aust (1989) 23 FCR 63 at [66].

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

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

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

[12] Section 30(3).

[13] See Brog v Department of Premier & Cabinet (1989) 3 VAR 201; Thwaites v Department of Health and Community Services (1995) 8 VAR 361; Moloney v Department of Health Services (2001) 18 VAR 238.

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

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

[16] 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].

[17] 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].

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

[19] Section 52(5).

[20] Section 52(9).

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

[22] Section 49P(5).

[23] Section 52(3).