‘EB2’ and Victorian WorkCover Authority (Freedom of Information) [2021] VICmr 335 (29 December 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 in that I have decided to release additional information in the documents.

I am satisfied certain information is exempt from release under section 33(1). However, I am not satisfied the documents are exempt under sections 30(1) and 32(1).

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 the document is granted in part.

The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.

My reasons for decision follow.

Joanne Kummrow

Public Access Deputy Commissioner

29 December 2021

Reasons for Decision

Background to review

1. The Applicant, through their legal representative, made a request to the Agency seeking access to the following documents:
2. 1. A full unredacted copy of the [number] WorkSafe Reports and incident material including but not limited to the Safe Work Method Statement (SWMS) relating to the accident which occurred on [date]; and
   2. Copies of all WorkSafe reports, incident material and all investigation reports and/or attendances notes and/or enquiry reports regarding any WorkSafe representative’s visits at the worksite situated at [specified address in Victoria].

2. The Agency identified 21 documents falling within the terms of the Applicant’s request and granted access to 1 document in full, 13 documents in part and refused access to 7 documents in full. The Agency relied on the exemptions under sections 30(1), 32(1) and 33(1) to refuse access to certain documents.
3. The Agency’s decision letter sets out the reasons for its decision.

Review application

4. The Applicant’s legal representative sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
5. The Applicant’s legal representative indicated they do not require access to personal affairs information in Document 8 nor the personal affairs information of the following third parties in the remaining documents:

1. 1. the Police Officer who notified [the Agency];
   2. administrative staff from [the Agency] who received the above notification;
   3. [business name] Pty Ltd ([business name]) staff;
   4. [the Agency] staff involved in conducting the investigation;
   5. witnesses who evidenced the signing of documents; and
   6. the names of [business name] employees – other than the Applicant.

6. Accordingly, personal affairs information of the third parties listed above is irrelevant information for the purposes of section 25, which is discussed below.
7. I have examined a copy 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.

Review of exemptions

Section 30(1) – Internal working documents

12. 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.

13. Section 30(3) provides purely factual information is not exempt under section 30(1).

Were the documents prepared by an officer of the Agency?

14. 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).
15. I am satisfied the documents were prepared by Agency officers.

Do the documents contain information in the nature of opinion, advice, recommendation, consultation or deliberation?

16. 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.^[1]
17. The following have been held not to constitute matter in the nature of opinion, advice, or recommendation:

1. 1. the recitation of present existing facts;^[2] or
   2. the recording of events such as a conversation with the applicant.^[3]

18. Document 5 contains a cover sheet with a recommendation and an accompanying form completed by Agency officers. Documents 16 and 18 are duplicate copies of OHS improvement notices and profile visit details, which contain the Agency’s observations and directions. Documents 17 and 19 contain an incident record and workplace details, and Document 20 is a file request form.
19. I am satisfied certain documents contain opinion and recommendations prepared by Agency officers at a point in time.
20. However, I am also satisfied certain information the Agency exempted from release under section 30(1) constitutes a recitation of facts, some of which have been released elsewhere in the documents.

Were the documents made in the course of, or for the purpose of, the deliberative processes involved in the functions of the Agency?

21. The term ‘deliberative process’ is interpreted widely and includes any of the processes of deliberation or consideration involved in the functions of an agency, Minister or government.^[4]
22. In Re Waterford and Department of Treasury (No.2),^[5] the Commonwealth Administrative Appeals Tribunal (AAT) held:

… “deliberative processes” [is] wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency… In short, …its thinking processes — the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.

23. Having reviewed the documents and considered the information before me, I am satisfied certain information in the documents relates to the Agency’s deliberative processes in responding to a workplace incident.

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

24. Determining whether disclosure of the documents would be contrary to the public interest requires a ‘process of the weighing against each other conflicting merits and demerits’.^[6]
25. Where information is already known to an applicant, it is more likely its disclosure would not be contrary to the public interest. If the information is sensitive, tentatively expressed or unclear, it is more likely its disclosure would be contrary to the public interest.^[7]
26. In Howard v Treasurer,^[8] the Administrative Appeals Tribunal held the more sensitive the issues discussed in a communication, the more likely the communication should not be disclosed.
27. I also note the Victorian Civil and Administrative Tribunal (VCAT) decision of Pritchard v Victoria Police in which the Tribunal held:^[9]

Given …. that it was an instruction and because on the face of the document it is clear that it is communicating decisions made, it cannot possibly be an opinion or recommendation made as part
of the deliberative process.

28. In determining if disclosure of the documents would be contrary to the public interest, I must consider all relevant facts and circumstances remaining mindful the object of the FOI Act is to facilitate and promote the disclosure of information. In doing so, I have given weight to the following factors:^[10]

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 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.

29. I am not satisfied certain information in Documents 5 and 16 to 19 is exempt under section 30(1) where the information has already been released elsewhere in a document, is largely factual in nature and not sensitive.
30. My decision on whether disclosure would be contrary to the public interest is set out in the Schedule of Documents in Annexure 1.
31. As I am satisfied certain information in the documents is not exempt under section 30(1), I will consider the application of the sections 32(1) and 33(1) to this information.

Section 32(1) – Documents subject to legal privilege

32. 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’.
33. A document will be subject to legal professional privilege and exempt under section 32(1) where it contains a confidential communication: [11]

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.

34. Legal professional privilege exists to protect the confidentiality of communication between a client and their legal representative.
35. The High Court of Australia has held the purpose of legal professional privilege or client privilege ensures a client can openly and candidly discuss legal matters with their legal representative and seek legal advice:

The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor.[12]

36. The dominant purpose for which a confidential communication was made will determine whether the exemption applies.^[13] Where mixed purposes exist, the paramount purpose of the communication is used.^[14]
37. On the information before me, I am satisfied the requisite lawyer-client relationship exists between the Agency and its inhouse lawyers.
38. However, in Document 5, for example, there is a reference to the fact that legal advice had not been sought for the matter. Document 15 is titled ‘Prosecution Record’, however is largely empty. The remaining documents which the Agency exempted from release under section 32(1) do not contain any legal advice, nor do they seek legal advice in relation to a specific matter. In my view, these documents are not exempt under section 32(1).
39. Accordingly, I am satisfied the information in Documents 5, 15, 17 and 20 is not exempt under section 32(1) as it does not disclose any legal advice, merely summarises factual information in connection with the incident, certain information has been released elsewhere in the documents and contains no information of substance.
40. Accordingly, I am not satisfied Documents 5, 15, 17 and 20 are exempt under section 32(1).

Section 33(1) – Documents affecting personal privacy of third parties

41. As I have determined certain information exempted from release by the Agency under sections 30(1) is not exempt, I have considered the application of section 33(1) to the information, as it includes the personal affairs information of individuals other than the Applicant (third parties).
42. 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;^[15] and
   2. such disclosure would be ‘unreasonable’.

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

43. 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.[16]
44. 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.[17]
45. The documents contain names, initials, email addresses, employee identification numbers, position titles and mobile phone numbers of third parties. The documents also contain information relating
    to the Agency staff, such as names, email addresses and phone numbers.
46. Accordingly, I am satisfied the documents contain personal affairs information of third parties for the purposes of section 33(1).

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

47. The nature of disclosure of a document under the FOI Act is unconditional and unrestricted, which means an applicant is free to disseminate widely or use a document as they choose.[18]
48. The concept of ‘unreasonable disclosure’ involves balancing the public interest in the disclosure of official information with the protection of an individual’s right to personal privacy in the particular circumstances.
49. In Victoria Police v Marke,[19] 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’.
50. Therefore, the proper application of section 33(1) involves consideration of ‘all matters relevant, logical and probative to the existence of conditions upon which the section is made to depend’.[20]
51. In determining whether disclosure of the personal affairs information in the documents would be unreasonable in the circumstances of this matter, I have given weight to the following factors:

1. 1. the nature of the personal affairs information;
   2. the circumstances in which information was obtained by the Agency;
   3. the Applicant’s interest in the information and whether their purpose for seeking the information is likely to be achieved;
   4. whether any public interest would be promoted by the release of the information;
   5. whether any individuals to whom the information relates object, or would be likely to object to the release of the information; and
   6. the likelihood of further disclosure of the information if released.

52. As detailed above, the Applicant does not seek access to certain personal affairs information of third parties, being the Agency’s investigative and administrative staff, [business name] staff, the notifying police officer and witnesses who evidenced the signing of documents.
53. Some of the names, position titles, and contact numbers exempted have already been released by the Agency to the Applicant in other documents subject to review.
54. Therefore, I will now consider the remaining limited personal affairs information in the documents to which the Agency refused access under section 33(1).
55. While I consider it is reasonably likely certain third parties would object to the release of their personal affairs information, such views are not necessarily determinative.
56. However, I am satisfied disclosure of names, initials, position titles, signatures, employee identification numbers, mobile phone numbers and email addresses, where the Applicant does not already know this information, would be unreasonable given the way in which the Agency obtained the information in the performance of its statutory functions and in response to a workplace incident.
57. In these circumstances, I consider the public interest lies in the protection of a third party’s personal privacy. Where the individual has a peripheral involvement and their personal affairs information is unlikely to assist the Applicant, I am satisfied the disclosure of their personal affairs information would be unreasonable in the circumstances.
58. Further, while I accept the Applicant has a personal interest in obtaining access to such information, I am of the view no broader public interest would be promoted by disclosure of the personal affairs information in certain documents.
59. I note section 33(2A) requires that, 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 consider whether the disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person. However, I do not consider this to be a relevant factor in the circumstances of this matter.
60. In light of the above, I consider certain personal affairs information is exempt under section 33(1). However, other information is not sensitive, nor would its disclosure be unreasonable where it relates to a third party in their professional capacity, such as a worksite primary contact.
61. The Schedule of Documents in Annexure 1 sets out my decision in relation to section 33(1).

Section 25 – Deletion of exempt or irrelevant information

62. 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.
63. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’[21] and the effectiveness of the deletions. Where deletions would render the document meaningless, they are not ‘practicable’, and release of the document is not required under section 25.[22]
64. As noted above, the Applicant seeks review of certain information in the documents only. Accordingly, the remaining personal affairs information exempted from release by the Agency is to remain deleted
    as irrelevant information.
65. I have considered the effect of deleting exempt and irrelevant information from the documents in accordance with section 25. I am satisfied it is practicable to delete the exempt and irrelevant information as to do so would not require substantial time and effort, and the edited documents would retain meaning.
66. The Schedule of Documents in Annexure 1 sets out my decision in relation to section 25.

Conclusion

67. On the information before me, I am satisfied certain information is exempt from release under section 33(1). However, I am not satisfied the documents are exempt under sections 30(1) and 32(1).
68. 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, access to the document is granted in part.
69. The Schedule of Documents in Annexure 1 outlines my decision for each document.

Review rights

70. If either party to this review is not satisfied with my decision, they are entitled to apply to the VCAT for it to be reviewed.[23]
71. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.[24]
72. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.[25]
73. 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.
74. 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.[26]

When this decision takes effect

75. I have decided to release documents that contain information relating to the personal affairs of third parties.
76. I am satisfied it is only practicable to notify one of those third parties as their contact details are known. The relevant third party will be notified of my decision and is entitled to apply to VCAT for a review within 60 days from the date they are given notice. I am satisfied it is not practicable to notify the remaining third parties of their review rights.
77. My decision does not take effect until the relevant review period (stated above) expires. If a review application is made to VCAT, my decision will be subject to any VCAT determination.

Annexure 1 – Schedule of Documents

Endnotes

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

[2] Pullen v Alpine Resorts Commission (unreported, AAT of Vic, Macnamara DP, 23 August 1996).

[3] Re City Parking Pty Ltd (1996) 10 VAR 17.

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

[5] [1984] AATA 67; (1984) 5 ALD 588; 1 AAR 1 at [58].

[6] 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].

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

[8] (Cth) (1985) 7 ALD 626; 3 AAR 169.

[9] [2008] VCAT 913 at [16].

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

[11] Graze v Commissioner of State Revenue [2013] VCAT 869 at [29]; Elder v Worksafe Victoria [2011] VCAT 1029 at [22]. See also Evidence Act 2008 (Vic), section 119.

[12] Grant v Downs (1976) 135 CLR 674 at [19].

[13] Thwaites v DHS [1998] VCAT 580 at [22]-[24].

[14] Martin v Melbourne Health (Review and Regulation) [2019] VCAT 1190 at [35].

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

[16] Section 33(9).

[17] 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].

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

[19] [2008] VSCA 218 at [76].

[20] [2008] VSCA 218 at [104].

[21] 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].

[22] 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].

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

[24] Section 52(5).

[25] Section 52(9).

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