‘DJ5’ and Victorian Commission for Gambling and Liquor Regulation (Freedom of Information) [2021] VICmr 213 (2 July 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 not satisfied Document 1 is exempt under sections 30(1) or 38 of the FOI Act in conjunction with section 10.1.30(1) of the Gambling Regulation Act 2003 (Vic) (GR Act).

I am not satisfied Document 2 is exempt under section 30(1).

However, in the particular circumstances of this matter, I am satisfied the personal affairs information of Agency officers in the documents is exempt under section 33(1).

My jurisdiction under Part VI of the FOI Act to review Documents 3 to 12, which the Agency exempted from release under section 38, is limited as I have not been provided with a copy of these documents and am unable to compel the Agency to provide me with a copy due to the operation of section 10.1.31(1) in the GR Act.

My reasons for decision follow.

Joanne Kummrow

Public Access Deputy Commissioner

2 July 2021

Reasons for Decision

Background to review

1. The Applicant made a request to the Agency seeking access to certain documents.
2. Following consultation with the Agency, the Applicant refined the scope of their request:

I would like to access any policy documents or advice prepared for the Minister about handing responsibility to Crown to self-report or self-regulate their own casino junkets. The scope of this part of my request is the 12 months leading up to the change in law which occurred on 1 July 2004 (as per your email).

I would like to access any correspondence or advice or policy documents relating to the auditing or monitoring of Crown casino junkets (ie trips for VIP customers from overseas to Crown casino) including Crown’s responsibility for monitoring casino junkets in the form of self-regulation.

The scope of this part of my request is from [date] to [date].

3. The Agency identified 12 documents falling within the terms of the Applicant’s request and refused access to the documents in full, relying on the exemptions under sections 30(1) and 38 in conjunction with section 10.1.30(1) of the GR Act. The Agency’s decision letter sets out the reasons for its decision.

Review

4. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
5. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.
6. I have considered all submissions and correspondence received from the parties, including the Agency’s confidential submissions.
7. 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.
8. 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.
9. As the documents subject to review concern the regulation of gambling and casinos in Victoria, it is also necessary to have regard to and comply with the GR Act.

Inspection of documents exempted from release by the Agency under section 38

10. The Agency did not provide me with a copy of Documents 3 to 12, which it exempted from release
    in full under section 38, on grounds it is prohibited from doing so under section 10.1.31(1) of the
    GR Act.
11. Document 1 contains a paragraph that the Agency exempted from release under section 38 in conjunction with section 10.1.30(1) of the GR Act, which it redacted from a copy of the document provided for my review due to the operation of section 10.1.31(1) of the GR Act. Accordingly, the Agency provided me with an edited copy of Document 1 with this information deleted for the purpose of my review. The Agency relies on sections 30(1) and 38 to refuse access to this document in full.
12. The Agency provided me with a full copy of Document 2. The Agency relies on section 30(1) to refuse access to this document in full.
13. I have considered whether the Information Commissioner or the Public Access Deputy Commissioner (the Commissioner) can compel the Agency to produce a copy of a document the Agency exempts from release under section 38 in conjunction with section 10.1.30(1) of the GR Act, for the purpose of the Commissioner conducting a review under Part VI of the FOI Act.
14. Section 10.1.31(1) of the GR Act provides:

(1)     Subject to subsection (2), a regulated person is not, except for the purposes of a gaming Act or gaming regulations, permitted or required-

1. 1. 1. to produce in a court a document that has come into the person’s possession or under the person’s control; or
      2. to disclose to a court any protected information that has come to the person’s notice-

in the performance of functions under a gaming Act or gaming regulations.

15. Under section 10.1.31(2)(a) of the GR Act, a ‘regulated person’ may disclose or be required to disclose ‘protected information’ to a court, or produce or be required to produce in court any document containing information if:

1. 1. the Minister certifies it is necessary in the public interest for the information to be disclosed
      to a court; or
   2. the person, whose affairs the information relates (in this instance, Crown), expressly authorises it to be disclosed to a court.

16. A ‘court’ is defined broadly under section 10.1.29(1) of the GR Act to include ‘any tribunal, authority or person having power to require the production of documents or the answering of questions’. Section 10.1.29(1) also defines ‘produce’ to include ‘permit access to’.
17. The Commissioner has power to require an agency subject to the FOI Act to produce a document under sections 49KB and 49I of the FOI Act when conducting a review under Part VI of that Act. Accordingly, I am satisfied the broad definition of ‘court’ in the GR Act includes the Commissioner given their power under the FOI Act to compel an agency to produce a document.
18. In this case, the Agency did not seek certification from the Minister, nor authorisation from Crown to disclose the ‘protected information’ in the documents. I accept there is no express obligation under the GR Act for the Agency to do so.
19. Therefore, I am unable to require the Agency to provide me with a copy of the relevant documents or deleted information in Document 1 due to the operation of section 10.1.31(1) of the GR Act.
20. Accordingly, my review of the Agency’s decision to refuse access to the documents is limited to reviewing those documents the Agency provided for my review (Documents 1 and 2 only) and information the Agency provided to OVIC in its confidential submission.

Review of exemptions

Section 38 – Documents to which a secrecy provision applies

21. A document will be exempt under section 38 ‘if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications’.
22. Therefore, three conditions must be satisfied for a document to be exempt from release under section 38:

1. 1. there must be an enactment in force;
   2. the enactment must be formulated with such precision that it specifies the actual information prohibited from disclosure in the document; and
   3. the enactment must prohibit persons referred to in the enactment from disclosing the specific kind of information in the document (either absolutely or subject to an exception or qualification).

23. I am satisfied the GR Act is an enactment in force for the purposes of section 38 of the FOI Act.
24. Section 10.1.30 of the GR Act provides:

10.1.30  General duty of confidentiality

1. 1. A regulated person must not, directly or indirectly, make record of, or disclose to someone else, any protected information acquired by the person in the performance of functions under a gaming Act or gaming regulations.
      Penalty: 60 penalty units
   2. Subsection (1) does not apply to—

(a)        a record or disclosure made in the performance of functions under a gaming Act or gaming regulations; or

(b)        a record or disclosure permitted or required to be made by or under another provision of this Division.

25. ‘Protected information’ is defined in section 10.1.29 of the GR Act and means:

… information, other than pre-commitment information within the meaning of section 3.8A.24, that is–

1. 1. 1. information with respect to the affairs of any person; or
      2. information with respect to the establishment or development of a casino;

26. I am satisfied the Agency, including its staff and Commissioners, are ‘regulated persons’ for the purpose of section 10.1.30(1) of the GR Act.[1]
27. ‘Person’ is defined in section 1.3(1) of the GR Act and ‘includes a body (whether or not incorporated), a partnership and the Trustees’.
28. I am satisfied Crown Melbourne Limited (Crown) is a ‘person’ within the meaning of section 1.3(1) and for the purposes of section 10.1.30(1) of the GR Act.
29. Accordingly, I must consider whether the documents to which the Applicant seeks access contain ‘protected information’ within the meaning of section 10.1.29 of the GR Act.

Does Document 1 contain ‘protected information’?

30. The Agency relies on section 30(1) to refuse access to Document 1 in full.
31. During the review, the Agency also sought to rely on the exemption under section 38 to refuse access to Document 1.
32. Having carefully reviewed the document and considered its purpose, I am of the view it concerns the Agency’s performance of its functions as a statutory regulator under the Casino Control Act 1991 (Vic) (Casino Control Act) and the GR Act.
33. While the document refers to Crown, the document is a high-level project plan prepared by the Agency for the purposes of carrying out its regulatory functions. I am not satisfied it discloses ‘information with respect to the affairs of’ Crown, as contemplated by the definition of ‘protected information’ in section 10.1.29 of the GR Act.
34. Accordingly, I am satisfied Document 1 does not contain ‘prohibited information’ and is not prohibited from disclosure under section 10.1.30(1) of the GR Act. Accordingly, I am satisfied it is not exempt from release under section 38 of the FOI Act.
35. As I am unable to review the information redacted by the Agency on page 2 of the document for the reasons outlined above, I am unable to make a finding in relation to this information.

Section 30(1) – internal working documents

36. 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.

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

Were the documents prepared by an officer of the Agency?

38. The term ‘officer of an Agency’ is defined in section 5(1). It includes a member of an agency,
    a member of an agency’s staff, and any person engaged by or on behalf of an agency, whether or not that person is subject to the Public Administration Act 2004 (Vic).
39. I am satisfied the documents were prepared by Agency officers.

Do the documents disclose matter in the nature of opinion, advice, or recommendation, or consultation or deliberation?

40. The documents exempted from released by the Agency under section 30(1) are a draft project plan (Document 1) and a diagram (Document 2).
41. For section 30(1) to be satisfied, a document must also contain matter in the nature of opinion, advice or recommendation prepared by an officer of an agency, or consultation or deliberation between officers.
42. It is not necessary for a document to be in the nature of opinion, advice or recommendation. Rather, it is enough that release of the document would disclose matter of that nature.[3]
43. I am satisfied the draft project plan broadly contains information in the nature of recommendation and deliberation, and I accept the document was subject to consultation between the Agency and another agency.
44. On the face of the diagram, I am not satisfied it contains information in the nature of opinion, advice, or recommendation, or consultation or deliberation.
45. However, I accept the Agency’s submission the document was developed by Agency officers, and on this basis, contains matter in the nature of deliberation.

Was the opinion, advice, recommendation, consultation or deliberation provided in the course of, or for the purpose of, the deliberative processes of the Agency?

46. The term ‘deliberative process’ has been interpreted broadly and includes any of the processes of deliberation or consideration involved in the functions of an agency, Minister or government.^[4]
47. I am satisfied the documents were provided in the course of, and for the purpose of, the Agency’s deliberative process involved in the performance of its statutory functions. Specifically, its regulation of Crown and the monitoring of its compliance with gaming legislation in accordance with section 9(1) of the Victorian Commission for Gambling and Liquor Regulation Act 2011 (Vic) (VCGLR Act) and section 141 of the Casino Control Act.

Would it be contrary to the public interest for this information to be released?

48. Determining whether disclosure of information would be contrary to the public interest requires a ‘process of the weighing against each other conflicting merits and demerits’.[5]
49. Where information is already known to an applicant, it is more likely disclosure will not be contrary to the public interest. If information is sensitive, tentatively expressed or unclear, it is more likely its disclosure will be contrary to the public interest.[6]
50. In determining whether disclosure of information exempted by the Agency in the documents would be contrary to the public interest, I have given weight to the following relevant factors:^[7]

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 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 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;
   5. 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
   6. 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.

Document 1 – draft project plan

51. The Agency submits the document is not a finalised policy or process related to its regulatory functions and information within the document may be inaccurate.
52. The Agency also submits disclosure of the document may inhibit the future ability of the Agency to undertake its regulatory functions as set out in section 9(1) of the VCGLR Act and section 141 of the Casino Control Act.
53. In the Agency’s view, the document may disclose methods and procedures it uses to investigate matters, which could prejudice the effectiveness of those methods, such that gambling industry organisations could evade regulatory checks and investigations.
54. The fact a document is in draft form is a relevant factor, but not determinative as to whether the exemption in section 30(1) applies.
55. I am satisfied the Applicant and members of the public are able to understand the document is in draft form and does not represent any final project plan prepared by the Agency.
56. In my view, the contents of the document are not sensitive or contentious in nature in that it is a draft project plan setting out various logical investigative steps the Agency plans to take in conducting an investigation in accordance with its statutory responsibilities and powers.
57. The document does not provide detailed information about any particular investigative procedures or methodology to be used by the Agency, other than a brief overview of its proposed method of approach for the investigation. Having carefully reviewed the document, I am not satisfied its disclosure would be reasonably likely to reveal confidential methods and procedures used by the Agency such that their disclosure would prejudice the effectiveness of those measures.
58. I am of the view disclosure of the document would promote the public interest in greater transparency concerning casino regulation, particularly in light of the public inquiry into Crown commissioned by the Independent Liquor and Gambling Authority in New South Wales under the Casino Control Act 1992 (NSW).[8] Similarly, I note the current Royal Commission into the Casino Operator and Licence, which is a public inquiry established by the Victorian Government to inquire into the suitability of Crown to hold a casino licence in Victoria.[9]
59. On balance, I am not satisfied disclosure of the document would be contrary to the public interest.
60. Accordingly, I am satisfied Document 1 is not exempt under section 30(1).

Document 2 – diagram

61. The Agency submits Document 2 is an ‘isolated’ document with no other policy or procedural documents supplementing it. Therefore, it submits it disclosure would provide a partial explanation of the process to which the document relates, if any.
62. While I agree, I am not satisfied this factor alone is determinative. Similarly, for the reasons outlined above with respect to Document 1, I am not satisfied disclosure of this document would be contrary to the public interest.
63. Accordingly, I am satisfied Document 2 is not exempt under section 30(1).
64. My decision on section 30(1) is outlined in the Schedule of Documents in Annexure 1.

Section 33(1) – Documents affecting an individual’s personal privacy

65. While the Agency does not rely on the exemption under section 33(1) to refuse access to information in the documents, I have also considered its application to Documents 1 and 2.
66. 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;^[10] and
   2. such disclosure would be ‘unreasonable’.

Do the documents contain personal affairs information of individuals other than the Applicant?

67. Information relating to an individual’s ‘personal affairs’ 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.[11]
68. A document will disclose a third party’s personal affairs information if it is capable, either directly or indirectly, of identifying that person. As the nature of disclosure under the FOI Act is unrestricted and unconditional, this is to be interpreted by reference to the capacity of any member of the public to identify a third party.[12]
69. The document includes the names and position titles of Agency officers (third parties), which is personal affairs information for the purposes of section 33(1).

Would disclosure of the personal affairs information be unreasonable?

70. The concept of ‘unreasonable disclosure’ involves balancing the public interest in the disclosure of official information with the protection of a third party’s personal privacy in the circumstances.
71. In Victoria Police v Marke,^[13] the Victorian Court of Appeal held there is ‘no absolute bar to providing access to documents which relate to the personal affairs of others’. 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’.
72. In determining whether disclosure of personal affairs information would be unreasonable in these circumstances, I have considered the following factors:

1. 1. The nature of the information in the document

The personal affairs information in the documents is not sensitive and concerns the third parties, who are Agency officers, carrying out their usual employment duties and responsibilities as employees of the Agency.

1. 2. The Applicant’s interest in the information

There is no information before me to indicate whether the Applicant seeks access to personal affairs information.

Having considered the Applicant’s reasons for seeking access to the documents, I do not consider disclosure of the personal affairs information would assist the Applicant.

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

I do not consider there to be a public interest in disclosing the personal affairs information in this document in the context of the majority of the documents being released to the Applicant.

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

There is no information before me concerning the views of the third parties concerning disclosure of their names. Having considered the nature of the document, the current attention in relation to the regulation and operations of Crown, and the Applicant is [redacted – description of occupation], I consider it is likely the third parties would object to the disclosure of their name in these circumstances.

1. 5. The likelihood of further disclosure of the information, if released

The nature of disclosure under the FOI Act is unconditional and unrestricted, which means an applicant is free to disseminate widely or use a document as they choose once disclosed.[14]

Having considered the nature of the document and the personal affairs information within,
I consider it is reasonably likely the Applicant would disseminate the personal affairs information in this document.

1. 6. Whether disclosure of the information would or would be reasonably likely to endanger the life or physical safety of any person[15]

This factor is not relevant in the circumstances of this matter.

73. On balance of the above factors, I am satisfied it would be unreasonable to disclose the names of Agency officers in the documents given the particular circumstances of the matters underlying the documents.
74. My decision on section 33(1) is outlined in the Schedule of Documents in Annexure 1.

Conclusion

75. I am not satisfied Document 1 is exempt under sections 30(1) or 38 of the FOI Act in conjunction with section 10.1.30(1) of the GR Act.
76. I am not satisfied Document 2 is exempt under sections 30(1).
77. However, in the particular circumstances of this matter, I am satisfied the personal affairs information of Agency officers in the documents is exempt under section 33(1).
78. My jurisdiction under Part VI of the FOI Act to review Documents 3 to 12, which the Agency exempted from release under section 38, is limited as I have not been provided with a copy of these documents and am unable to compel the Agency to provide me with a copy due to the operation of section 10.1.31(1) in the GR Act.
79. The Schedule of Documents in Annexure 1 sets out my decision in relation to documents.

Review rights

80. 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.^[16]
81. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[17]
82. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[18]
83. 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.
84. 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

85. Section 49P(5) states that if I decide to disclose a document claimed to be exempt under section 33(1) I must, if practicable, notify any person who has a right to apply to VCAT for a review of my decision of their right to do so.
86. I have determined it is not practicable for me to notify the third parties about their review rights given the nature of the information I have determined to release.

When this decision takes effect

87. My decision does not take effect until the Agency’s 14-day review period expires.
88. If a review application is made to VCAT, my decision will be subject to any VCAT determination.

Annexure 1 – Schedule of Documents

Endnotes

[1] See the definition of ‘regulated person’ in section 10.1.29 of the GR Act.

[2] Section 30(3).

[3] Mildenhall v Department of Education (1998) 14 VAR 87.

[4] Brog v Department of Premier and Cabinet (1989) 3 VAR 201 at 208.

[5] 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].

[6] Thomas v Department of Natural Resources and Environment [2002] VCAT 533 at [27].

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

[8] See Report of the Inquiry under section 143 of the Casino Control Act 1992 (NSW), dated 1 February 2021 (Volumes 1 and 2) available at https://www.parliament.nsw.gov.au/la/papers/Pages/tabled-paper-details.aspx?pk=79129&houseCode=la.

[9] See https://www.rccol.vic.gov.au/.

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

[11] Section 33(9).

[12] 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].

[13] [2008] VSCA 218 at [76].

[14] Victoria Police v Marke [2008] VSCA 218 at [68].

[15] Section 33(2A).

[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).