‘DW1’ and Swan Hill Rural City Council (Freedom of Information) [2021] VICmr 326 (29 October 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 fresh decision to refuse access to documents requested by the Applicant under the FOI Act.

I am satisfied documents are exempt from release under section 38 of the FOI Act in conjunction with section 125 of the Local Government Act 2020 (Vic) (LG Act 2020), including certain information the Agency exempted from release under section 33(1).

I am not satisfied the documents are exempt under section 35(1)(b).

Accordingly, my decision on the Applicant’s request differs from the Agency’s decision in that I have decided to release a small amount of additional information in certain documents.

Where I am satisfied it is practicable to provide the Applicant with an edited copy of a document with exempt information deleted under section 25, access to a document is granted in part. Where I am not satisfied it is practicable to do so, access to a document is refused 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

29 October 2021

Reasons for Decision

Background to review

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

 Minutes and documents relating to Councillor Assemblies Agenda items as follows:

1. 1. 1. [date] – ‘Property Purchase [location description]’
      2. [date] – ‘Proposed Land Acquisition’
      3. [date] – ‘Proposed Purchase of Land’
      4. [date] – ‘Purchase [specified address] Update’
2. The Agency relied on section 25A(5) to refuse to grant access to the documents in accordance with the Applicant’s request.
3. The Agency determined any documents falling within the terms of the Applicant’s request, should any exist, would be exempt from release under sections 30(1) and 38. Accordingly, the Agency refused to grant access to documents in accordance with section 25A(5) without having identified any documents relevant to the Applicant’s FOI request.
4. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.

Preliminary view and Agency’s fresh decision

5. On [date], OVIC staff provided the Agency with a preliminary view on its decision that it was not apparent from the nature of the documents, as described on the face of the Applicant’s request, that each document would be exempt in full under sections 30(1) and 38. OVIC staff explained the reasons for the view and invited the Agency to provide a submission to address the matters raised or to make a fresh decision under section 49M(1).
6. On [date], in response to the preliminary view, the Agency advised OVIC of its intention to make a fresh decision.
7. On [date], the Agency made a fresh decision to release further information.
8. In its fresh decision, the Agency released five documents in full and three documents in part, and refused access to seven documents in full. It relied on the exemptions under sections 30(1), 33(1), 35(1)(b) and 38 in conjunction with section 125 of the LG Act 2020 to refuse access to information in the documents. The Agency’s fresh decision letter sets out the reasons for its decision.
9. The Applicant did not agree with the Agency’s fresh decision and, as required by section 49MA(2), I proceeded with my review on the basis of the fresh decision.
10. I have examined copies of the documents subject to review.
11. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.
12. I have considered all communications and submissions received from the parties.
13. 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.
14. 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

15. 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.
16. On 24 October 2020, the LG Act 2020 commenced. The secrecy provision in section 125 of the LG Act 2020 replaced the secrecy provision in the former Local Government Act 1989 (Vic) (LG Act 1989).
17. 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 of third parties in documents held by a council.
18. Therefore, it is necessary to first consider whether information in the documents subject to review is exempt under section 38 of the FOI Act in conjunction with section 125 of the LG Act 2020.

Review of exemptions

Section 38 – Documents to which secrecy provisions of enactments apply

19. 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).

20. 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?

21. 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—

(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;

(h)        to a Commission of Inquiry to the extent reasonably required by the Commission of Inquiry;

(i)         to the extent reasonably required by a law enforcement agency.

22. 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, and does it prohibit persons, referred to in the enactment, from disclosing the information?

23. The Agency refused access to Documents 2, 4, 5, 6, 8, 9 and 15 under section 38 in conjunction with section 125 of the LG Act 2020.
24. Documents 2 and 8 are assembly reports prepared for councillors and Documents 4, 5, 6, 9 and 15 are meeting minutes of closed Council meetings. The Agency refused access to these documents in full on the basis they fall under the definition of ‘confidential information’ in section 3(1)(l) of the
    LG Act 2020.
25. In relation to the assembly reports, the Agency submits:

Reports presented to an assembly of councillors are presented in order for councillors to ‘consider matters that are intended or likely to be … the subject of a decision of the Council, or… subject to the exercise of a function, duty or power of the Council that has been delegated to a person or committee’.

Matters of the nature of the reports requested by the applicant are subsequently routinely considered at a meeting of the Council where the matter under consideration is closed to members of the public under the now repealed section 89(2)(d) of the Local Government Act 1989.

26. ‘Confidential Information’ in section 125 of the LG Act is defined in section 3(1) of that Act to relevantly include:

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

…

(l)     information that was confidential information for the purpose of section 77 of the Local Government Act 1989;

Confidential Council meeting information

27. Section 77 of the LG Act 1989 states:

77        Confidential information

(1)        A person who is, or has been, a Councillor or a member of a special committee, must not disclose information that the person knows, or should reasonably know, is confidential information.

Penalty: 120 penalty units.

28. Information constitutes ‘confidential information’ under section 77(2) of the LG Act 1989 if:

1. 1. the information was provided to the Council or a special committee in relation to a matter considered by the Council or special committee at a meeting closed to members of the public and the Council or special committee has not passed a resolution that the information is not confidential; or
   2. the information has been designated as confidential information by a resolution of the Council or a special committee which specifies the relevant ground or grounds applying under section 89(2) and the Council or special committee has not passed a resolution that the information is not confidential; or
   3. the information has been designated in writing as confidential information by the Chief Executive Officer specifying the relevant ground or grounds applying under section 89(2) and the Council has not passed a resolution that the information is not confidential.

29. Section 89 of the LG Act 1989 provides:

89        Meetings to be open to the public

(1)     Unless subsection (2) applies, any meeting of a Council or a special committee must be open to members of the public.

(2)     A council or a special committee may resolve that the meeting be closed to members of the public if the meeting is discussing any of the following –

…

(d)        contractual matters;

…

(i)         resolution to close meeting to members of the public.

(3)     If a Council or special committee resolves to close a meeting to members of the public the reason must be recorded in the minutes of the meeting.

…

30. In this case, having considered the content of the documents and information provided by the Agency, I am satisfied:

1. 1. information in Documents 4, 6, 9 and 15 was designated in writing as ‘confidential information’ by the Chief Executive Officer under section 77(2)(c) of the LG Act 1989;
   2. information in Document 5 was provided to the Agency in relation to a matter considered by the Council or special committee at a meeting closed to members of the public under section 77(2)(a) of the LG Act 1989;
   3. section 3(1)(l) of the LG Act 2020 captures ‘confidential information’ in the documents as defined in section 77(1) of the LG Act 1989;
   4. the documents do not fall into any exceptions specified in either the LG Act 1989 or the LG Act 2020; and
   5. section 125 of the LG Act 2020 prohibits Agency officers, specifically councillors and council staff, from disclosing ‘confidential information’.

31. Accordingly, I am satisfied Documents 2, 4, 5, 6, 8, 9 and 15 contain ‘confidential information’ under section 77(1) of the LG Act 1989. Consequently, this information falls within the ambit of ‘confidential information’ under section 3(1)(l) of the LG Act 2020.
32. As such, I am satisfied Documents 2, 4, 5, 6, 8, 9 and 15 are exempt under section 38 in conjunction with section 125 of the LG Act 2020.

Unreasonable disclosure of personal information relating to a third party

33. The Agency refused access to Documents 10, 11 and 12 under section 33(1).
34. As noted above, the definition of ‘confidential information’ in section 3(1) of the LG Act 2020 includes ‘information which if released would result in the unreasonable disclosure of information about any person or their personal affairs’.[2]
35. Accordingly, I consider it is a relevant provision to consider.
36. The definition of ‘confidential information’ in the LG Act 2020 overlaps with the exemption under section 33(1) in the FOI Act, which concerns ‘personal affairs information’ and provides a document is exempt from release if:

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 (a third party);^[3] and
   2. such disclosure would be ‘unreasonable’.

Do the documents contain the ‘personal information’ for the purposes of section 125 of the LG Act 2020?

37. In determining whether the documents contain ‘personal information’ about a third party, and whether disclosure would be unreasonable in the circumstances, I have had regard to similar considerations that arise under section 33(1) of the FOI Act.
38. Information relating to a person’s ‘personal affairs’ includes, but is not limited to, information that identifies any person, or discloses their address or location. It also includes any information from which such information may be reasonably determined.^[4]
39. The documents contain the full names, addresses, email addresses and telephone numbers of a number of third parties involved in the management of the property in question as well as Agency officers.
40. Accordingly, I am satisfied the documents contains the personal information of third parties.

Would release of the personal information be unreasonable in the circumstances?

41. The concept of unreasonable disclosure involves balancing the public interest in the disclosure of official information with the interest in protecting the personal privacy of a third party.[5]
42. I consider this concept is applicable to my consideration as to whether information in a document constitutes ‘confidential information’ for the purposes of section 125 of the LG Act 2020.
43. I adopt the view expressed by the Victorian Court of Appeal in Victoria Police v Marke,^[6] in which
    it was held there is ‘no absolute bar to providing access to documents which relate to the personal affairs of others’, and 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’.
44. As also stated in Victoria Police v Marke, ‘[t]he protection of privacy, which lies at the heart of
    s 33(1), is an important right that the FOI Act properly protects. However, an individual’s privacy can be invaded to a lesser or greater degree’.^[7]
45. In determining whether disclosure of personal affairs information in the documents would be unreasonable in the circumstances, I have considered the following factors:

1. 1. The nature of the personal affairs information and the circumstances in which it was obtained
      The personal information in the documents was provided to and collected by the Agency in the context of its regular governance responsibilities, in particular, the consideration of the purchase of private land for public use.

      I accept it is reasonably likely the relevant third parties, who are not employed by the Agency, would expect their personal information in the documents will be used and disclosed in connection with the Agency’s enquiries only and will not be released to a third party under the FOI Act.

      Whether the personal information of Agency staff is exempt under section 33(1) must be considered in the context of each matter.[8] It has been held there is nothing particularly sensitive about matters occurring or arising in the course of one’s official duties and disclosure of this type of information is generally considered to not be unreasonable.[9] Disclosure of such information needs to be considered on a case by case basis taking into account the particular circumstances of the matter.

      In this matter, the personal information in the documents predominantly concerns an individual in the context of their professional role rather than their personal or private life.

      Subject to special circumstances, I consider it would not be unreasonable to disclose the name of an Agency officer, regardless of their seniority, where a document sought is an official document of the Agency and records an Agency officer carrying out their usual employment duties and responsibilities within a professional context.

   2. The Applicant’s interest in the information, and whether their purpose for seeking the information is likely to be achieved if disclosed
      The FOI Act provides a general right of access that can be exercised by any person, regardless of their motive or purpose for seeking access to a document. However, the reasons why an applicant seeks access to a document is a relevant consideration in determining whether disclosure would be unreasonable.[10]

      The Applicant did not provide reasons as to why they seek access to the personal information of third parties in the documents.

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

      I do not consider there to be any information before me to suggest that public interest would be promoted by the release of the personal information contained in the documents.

   4. Whether the individuals to whom the information relates object or would be likely to object, to disclosure of the information
      In determining whether disclosure of a document under the FOI Act would involve the unreasonable disclosure of information relating to the personal affairs of any person an agency must:
      1. notify the person who is the subject of that information that the agency has received a request for access to the document;
      2. seek the person’s view as to whether disclosure of the document should occur; and
      3. state that if the person consents to disclosure of the document, or disclosure subject to deletion of information relating to the personal affairs of the person, the person is not entitled to apply to the tribunal for review of a decision to grant access to that document.[11]

      In accordance with section 33(2B), the Agency consulted with third parties who are not Agency officers. The relevant persons objected to the release of their personal affairs information in the circumstances.

      The Agency officer named in the documents consents to disclosure of their personal affairs information.

   5. Whether the disclosure of information would or would be reasonably likely to endanger the life or physical safety of any person
      In determining if disclosure of a third party’s personal affairs information would be unreasonable, I am required to consider whether disclosure of such information in a document would, or would be reasonably likely, to endanger the life or physical safety of any person.[12] However, there is no information before me to suggest this is a relevant factor in this case.
      

46. Having weighed up the above factors, on balance, I am satisfied disclosure of the personal information of the third parties who are not Agency officers would be unreasonable in the circumstances.
47. However, I consider it would not be unreasonable to disclose the name and contact information of the Agency officer noting they consent to disclosure.
48. Accordingly, I am satisfied certain personal information in the documents is exempt under section 38 in conjunction with section 125 of the LG Act 2020 on grounds:

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

49. Accordingly, I am satisfied certain information exempted by the Agency under section 33(1) is exempt under section 38 in conjunction with section 125 of the LG Act 2020.
50. Where I am satisfied information is not exempt under section 125, I am also satisfied it is not exempt under section 33(1).
51. The Schedule of Documents in Annexure 1 sets out my decision in relation to section 38.

Section 35(1)(b) – Disclosure of information obtained in confidence

52. Section 35(1)(b) provides a document is an exempt document if:

1. 1. its disclosure under the FOI Act would divulge any 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 disclosure of the information under the FOI Act would be contrary to the public interest by reason that its disclosure would be reasonably likely to impair the ability of an agency (or a Minister) to obtain similar information in the future.

52. The Agency exempted a figure representing the amount of an offer to buy the property in question.
53. I am satisfied the information exempted by the Agency in Document 12 was communicated to the Agency by a third party with the expectation it would be treated in confidence. However, given the nature of the information and its voluntary provision by the third party, I am of the view release in these circumstances would not impair the Agency’s ability to obtain similar information in the future.
54. Accordingly, I am not satisfied the relevant information is exempt under section 35(1)(b).
55. The Schedule of Documents in Annexure 1 sets out my decision in relation to section 35(1)(b).

Section 30(1) – internal working documents

57. The Agency also relies on section 30(1) to refuse access to documents. However, as I have determined those documents are exempt in full under section 38, it is not necessary to consider the application of section 30(1).

Section 25 – Deletion of exempt or irrelevant information

58. Section 25 requires an agency to grant access to an edited copy of a document where it is practicable to delete exempt or irrelevant information and the applicant agrees to receiving such a copy.
59. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’[13] 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.[14]
60. I have considered the information the Agency deleted from the documents as irrelevant and am satisfied it falls outside the terms of the Applicant’s request as it relates to matters other than those specified in their request.
61. I have considered the effect of deleting irrelevant and exempt information from the documents. I am satisfied it is practicable for the Agency to delete the irrelevant and exempt information as to do so will not require substantial time and effort, and the edited documents will retain meaning.
62. The Schedule of Documents in Annexure 1 sets out my decision in relation to section 25.

Conclusion

63. On the information before me, I am satisfied the exemption under section 38 in conjunction with section 125 of the LG Act 2020 applies to some of the documents, including information exempted by the Agency under section 33(1). Where I am not satisfied information is exempt under section 38 in conjunction with section 125, I am also not satisfied it is exempt under section 33(1).
64. I am not satisfied Document 12 is exempt under section 35(1)(b).
65. Where I am satisfied it is practicable to provide the Applicant with an edited copy of a document with exempt information deleted in accordance with section 25, access to a document is granted in part. Where I am not satisfied it is practicable to do so, access to a document is refused in full.

Review rights

66. 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.[15]
67. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.[16]
68. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.[17]
69. 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.
70. 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.[18]

Third party review rights

71. As I have decided to release documents that contain information relating to the personal affairs of a third party, to which the third party has consented to its disclosure, no third party review rights are available.[19]
72. Further, as I have determined information the Agency exempted from release under section 35(1)(b) is not exempt, if practicable, I am required to notify any relevant third party of their review rights.[20]
73. Given the passage of time since the relevant document was created and the information was provided to the Agency, I am satisfied notification is not practicable in these circumstances.

When this decision takes effect

74. Accordingly, my decision does not take effect until the Agency’s 14 day review period expires.
75. 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] Section 3(1)(f) of the LG Act 2020.

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

[4] Section 33(9).

[5] Re Page v Metropolitan Transit Authority (1988) 2 VAR 243 at 245-6.

[6] [2008] VSCA 218 at [76].

[7] [2008] VSCA 218 at [79].

[8] Coulson v Department of Premier and Cabinet (Review and Regulation) [2008] VCAT 229.

[9] Re Milthorpe v Mt Alexander Shire Council (1997) 12 VAR 105.

[10] Victoria Police v Marke [2008] VSCA 218 at [104].

[11] Section 33(2B).

[12] Section 33(2A).

[13] 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].

[14] 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].

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

[16] Section 52(5).

[17] Section52(9).

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

[19] Section 50(3AC).

[20] Sections 49P(5) and 50(3AB).