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Decision summaries

From 1 July 2019 OVIC commenced publishing de-identified FOI review decisions made by the Information Commissioner under section 49P of the Freedom of Information Act 1982 (Vic) (FOI Act) on both OVIC’s website and on the Australasian Legal Information Institute (AustLII) websites.

Each month, OVIC publishes summaries of recent decisions made by the Information Commissioner and Public Access Deputy Commissioner in the newsletter to improve understanding of the FOI Act and of the Commissioners’ functions.

We have compiled these summaries below.

2022

March 2022

‘DY7’ and Department of Families, Fairness and Housing (Freedom of Information) [2022] VICmr 16 (25 March 2022)

This decision relates to the agency’s refusal to grant access to documents contained in the applicant’s wardship file, created prior to their adoption. The agency refused access in full to relevant documents under section 38 of the FOI Act in conjunction with section 83(1) of the Adoption Act 1984 (the Adoption Act). Section 83 of the Adoption Act restricts access to records in the possession of an agency relating to an adoption arranged by an agency. The Public Access Deputy Commissioner was satisfied section 83 of the Adoption Act is an enactment in force for the purpose of section 38 of the FOI Act. The Commissioner considered submissions from both the agency and the applicant, and understood the agency’s position that the applicant’s wardship file ‘relates’ to the applicant’s adoption insofar as the agency relied on these records as part of the adoption process. The Deputy Commissioner did not agree with the agency’s interpretation of section 83(1), stating that the requested documents are personal medical records of the applicant created prior to their adoption and its process. The Deputy Commissioner also noted that in the event the agency kept a person’s wardship files together with a person’s adoption file, they did not consider there to be a sufficient nexus between the two files to enliven section 83(1) on the wardship files. The documents were therefore released to the applicant with irrelevant information deleted.

‘DY4’ and Barwon Health (Freedom of Information) [2022] VICmr 13 (21 March 2022)

This decision relates to the health agency’s refusal to amend a medical record of a deceased third party under section 39. The applicant sought to amend the medical record to reflect the deceased person’s lack of tattoos. Section 39 provides that a deceased person’s next-of-kin is entitled to request a correction or an amendment. After requesting evidence the applicant was the deceased person’s next-of-kin, the applicant was unable to provide evidence to confirm, and as such was not entitled to request the amendment. Nevertheless, the Deputy Commissioner considered whether the information in the document the applicant sought to amend was inaccurate, incomplete, out of date or misleading. The Deputy Commissioner considered the information in the document referencing tattoos was not a diagnosis or medical opinion rather a clinician’s observation of appearance. The Deputy Commissioner further considered that the additional letter created by the Funeral Director/Embalmer that clarified the incorrect observation had been placed on file by the agency and therefore the medical record was no longer inaccurate, incomplete, out of date or misleading.

‘DY2 and Department of Health (Freedom of Information) [2022] VICmr 11 (18 March 2022)

This decision relates to the agency’s refusal to grant access to three documents in full under sections 28(1)(c), 29(1)(a) and 29(1)(b). The documents related to the return of international students to Victoria created by and provided by the Chief Health Officer. The agency claimed one page of guidelines prepared by the Australian Health Protection Principal Committee (AHPPC) as exempt sections 29(1)(a) and (b). The agency submitted that information provided by AHPPC members was confidential and release would likely prejudice the willingness of member states to share information. Ultimately, the Information Commissioner was not satisfied the documents contain information that is exempt under sections 28(1)(c), 29(1)(a) or 29(1)(b). Rather, the Information Commissioner found the exemption under section 28(1)(b) applied to certain content and the remaining documents fell outside of the terms of the applicant’s request and were irrelevant. While the Commissioner’s decision differed from the agency’s decision, the Commissioner’s decision did not result in the release of any further information in the documents.


February 2022

‘DY1’ and Fire Rescue Victoria (Freedom of Information) [2022] VICmr 297 (8 February 2022)

This decision relates to the agency’s refusal to grant access to a document in part under section 34(a)(ii). The document is relates to an advertising campaign paid for by the agency, including the total expenditure for the campaign.
For the exemption to apply, the agency must be engaged in trade and commerce. The Public Access Deputy Commissioner noted the agency’s submission, which stated the agency engages external suppliers to provide specialist services and engages in trade and commerce with third parties. The Commissioner was however of the view that the total expenditure amount is part of the process of trade and commerce as part of the agency carrying out its governmental functions. Although the Commissioner was satisfied the document contained commercial and financial information, she considered disclosure would ultimately promote accountability for government’s use of public funds and consequently found the information to be not exempt. The Commissioner determined to grant access to the document in full.


January 2022

‘DX9’ and Safer Care Victoria (Freedom of Information) [2022] VICmr 9 (31 January 2022)

This decision relates to the agency’s refusal to grant access to two documents in part held by the agency under section 33(1). The documents are records relating to the agency’s Clinical Leadership Expert Group, including a list of members, meeting minutes and the modelling of COVID-19’s impact to health services. The applicant advised during the review they sought the list of members only.
The Public Access Deputy Commissioner noted the exempted personal affairs information was of senior clinical practitioners and administrators representing Victorian public health sector organisations. The Commissioner was satisfied the document contained personal affairs information other than the applicant under section 33(1). The Commissioner determined disclosure of the personal affairs information of third parties would be not unreasonable having considered the context of the names being recorded in a professional capacity, and that disclosure would serve the public interest as it would provide greater public transparency relating to the agency’s response to the COVID-19 pandemic. The document was therefore granted in part.

‘DW3’ and Racing Victoria Limited (Freedom of Information) [2022] VICmr 1 (13 January 2022)

This decision relates to the agency’s decision to refuse access in full to an audio recording (the document) of a telephone call between the applicant and an agency officer which was in connection with the agency’s regulatory powers under the Racing Act 1958 (Vic). The agency claimed this document was exempt under section 38 of the FOI Act in conjunction with section 11(1) of the Surveillance Devices Act 1999 (Vic) (SD Act). Section 11 of the SD Act provides, in summary, that a person must not knowingly communicate or publish a record or report of a private conversation or private activity that has been made as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device. There are penalties associated with breaching this provision, including imprisonment.
The Public Access Deputy Commissioner considered the definition of a ‘listening device’ under the SD Act and determined that a mobile telephone is a listening decide for the purposes of the SD Act. With respect to the term ‘private conversation’, the SD Act defined it to mean ‘a conversation carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be heard only by themselves, but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it may be overheard by someone else’. The Commissioner accepted the agency officer recorded their conversation with the applicant in connection with their professional duties and obligations on behalf of the agency, and as such, considered an argument could be made that the conversation was not ‘private’. However, the Commissioner noted the legal precedents for a broad definition of ‘private conversation’. The Commissioner was ultimately satisfied the telephone call between the applicant and the agency officer constituted a ‘private conversation’ for the purposes of section 3 of the SD Act. Therefore, the Commissioner was satisfied the document was a record of a ‘private conversation’ that was made as a result of a listening device and is information to which the secrecy provision under section 11(1) of the SD Act applies. As such, section 38 applied to the document.

Read the extended summary of this decision.

‘DW5’ and City of Melbourne (Freedom of Information) [2022] VICmr 2 (11 January 2022)

This decision relates to the agency’s fresh decision to refuse access to CCTV footage depicting a motor vehicle incident in the Melbourne CBD, under section 25A(5), stating that should any documents exist they would be exempt from release under sections 29A(1C)31(1)(a)31(1)(d), 33 and 38 the FOI Act in conjunction with the Local Government Act 2020 (Vic) (LG Act).

The Public Access Deputy Commissioner was not satisfied that information in any relevant documents could reasonably be expected to endanger the security of a ‘premises’ for the purposes of 29A(1C) as it applied in conjunction with section 6 of the Emergency Management Amendment (Critical Infrastructure Resilience Act) Act 2014 (Vic).In considering the application of sections 31(1)(a) and 31(1)(d), the Commissioner was not satisfied the agency had established that disclosure of the requested footage would prejudice the enforcement or proper administration of the law in a particular instance (per section 31(1)(a)) or undermine procedures for preventing, detecting, investigating or dealing with matters arising out of breaches or evasions of the law would be prejudiced by disclosure of the requested footage (per section 31(1)(d)).

Further considering the application of section 33(1) to the likely content captured in any relevant CCTV footage, the Commissioner was not satisfied disclosure of all personal affairs information would be unreasonable. For similar reasons, the Commissioner was also not satisfied the entire content of any relevant CCTV footage would constitute ‘confidential information’ as defined by the section 125 of the LG Act and therefore any relevant document would not be exempt in full under section 38 of the FOI Act in conjunction with the LG Act. Accordingly, the Commissioner was not satisfied it was apparent from the face of the applicant’s request that all documents relevant would be exempt in full. As such, the agency was required to search for, identify and assess all documents relevant to the terms of the applicant’s request.


2021

November 2021

‘DW7’ and Commercial Passenger Vehicles Victoria (Freedom of Information) [2021] VICmr 330 (5 November 2021)

This decision relates to the agency’s decision to refuse access to 73 documents relating to the Multi Purpose Taxi Program expansion program under sections 28(1)(d), 30(1), 34(1)(b), 34(4)(a)(ii). According to the agency’s submission, the Multi-Purpose Taxi Program (MPTP) supports people with accessibility and mobility needs, by paying half the cost of each commercial passenger vehicle trip taken by a MPTP member, up to a total of $60, promoting accessibility in transport options for eligible members of the community.

Having considered the agency’s submission that certain data is collected on a confidential basis under the Commercial Passenger Vehicle Industry Act 2017, the Public Access Deputy Commissioner was not satisfied the provision within this Act was specific enough to be considered a secrecy provision and section 38 of the FOI Act did not apply. However, the Commissioner was satisfied certain information in the documents contained disclosures of a deliberation and decision of a subcommittee of cabinet and was therefore exempt under section 28(1)(d). Further a document was found to contain a submission to a subcommittee of cabinet and was therefore exempt under section 28(1)(b).

The Commissioner was satisfied the documents were prepared by agency officers and was of opinion that, advice or recommendation, as part of the agency’s deliberative process in undertaking a new program under section 30(1). The Commissioner was of the view disclosure of the documents would not be contrary to public interest as disclosure would serve the public interest by promoting public sector transparency, noting the matter would be of interest to members of the community. The Commissioner also noted that where the information is factual in nature or is publicly available disclosure is not sensitive nor would it have an impact on the agency.

The Commissioner was therefore satisfied the information deleted by the agency was not exempt under section 30(1). In relation to information deleted under section 34(1)(b), the Commissioner found that the documents contained information obtained from a business undertaking. However, the Commissioner was not satisfied the documents contained any proprietary information of that business undertaking nor that disclosure would expose the business undertaking to disadvantage and the documents were therefore not exempt under section 34(1)(b). Similarly, the Commissioner was not satisfied the agency was engaged in trade or commerce and thus the documents with information deleted under section 34(4)(a)(ii) were not exempt. The Commissioner determined to grant access to the documents in part.


October 2021

‘DW1’ and Swan Hill Rural City Council (Freedom of Information) [2021] VICmr 326 (29 October 2021)

This decision relates to the agency’s fresh decision to refuse access to documents relating to the Council’s purchase and acquisition of certain properties, under section 25A(5), stating that should any documents exist they would be exempt from release under sections 30(1) and 38 of the FOI Act in conjunction with the Local Government Act 2020 (Vic) (LG Act).

During the course of the review, the agency decided to make a fresh decision, in which it determined to conduct a search for, and process the documents, releasing further information. The applicant did not agree with the fresh decision. The agency’s fresh decision relied on the exemptions in sections 30(1), 33(1), 35(1)(b) and 38 to refuse access to the documents.

The Public Access Deputy Commissioner was satisfied that information in the documents was designated as confidential by the Chief Executive Officer and considered at a closed meeting and captured by the definition of ‘confidential information’ as defined by the LG Act. The Commissioner was therefore satisfied the information was confidential information as defined by the LG Act and exempt under section 38 of the FOI Act in conjunction with the LG Act.

Further considering the application of section 33(1) to the information in the documents, the Commissioner did not consider it unreasonable to release the names and contact details of persons where consent had been provided to disclose their personal affairs information. However, to release other personal affairs information regarding other unknown third parties was considered to be unreasonable. Therefore, certain information exempted under section 33(1) was found to be exempt under section 38 in conjunction with section 125 of the LG Act.

When considering whether the documents contained confidential information under section 35(1)(b), the Commissioner was satisfied the information was communicated with the expectation of confidence, however, was of the view release in these circumstances would not impair the agency’s ability to obtain similar information in the future. The information was therefore not exempt under section 35(1)(b). As the Commissioner was satisfied that the documents subject to review were exempt in full under section 38, it was not necessary to consider the application of section 30(1) to the documents.


‘DU4’ and Department of Families, Fairness and Housing (Freedom of Information) [2021] VICmr 311 (19 October 2021)

This decision relates to the agency’s refusal to grant access to three documents held by the agency under section 33(1). The documents are records relating to the applicant’s time as a ward of state, where 38 pages were refused in part from a total 318 pages. The agency then made a fresh decision and released more information.

The applicant sought review of the agency’s fresh decision. The Public Access Deputy Commissioner noted the requested documents came into existence more than five years prior to the commencement of the FOI Act, however, as the documents contain the personal affairs information of the applicant, the documents are subject to access under the FOI Act.

The Commissioner was satisfied the documents contained personal affairs information of persons other than the applicant under section 33(1). Acknowledging the applicant likely knows the identity of some of the third parties whose information appears in the document, the Commissioner determined disclosure of the personal affairs information of third parties would be unreasonable despite the passage of time, as the information remained sensitive. The Commissioner was therefore satisfied the disclosure of the information that relates to third parties would be unreasonable. The remaining documents were found not to be exempt under section 33(1).


‘DT7’ and Fire Rescue Victoria (Freedom of Information) [2021] VICmr 305 (13 October 2021)

This decision relates to the agency’s refusal to process the applicant’s request for access to emails containing key words between specified dates, under section 25A(1). The applicant specifically sought documents containing the words ‘uniform’, ‘senior officer’, ‘epaulette’ and ‘gold’. The agency requested the applicant to clarify the request regarding searches for the keywords contained in only the body of emails, subject lines of emails and/or attachments of emails. The applicant advised they sought documents containing the keywords in the bodies of emails, subject lines of emails and attachments. With a view to provide access, the agency invited the applicant to consider narrowing the request and consulting with the agency. The applicant narrowed the scope in line with the agency’s suggestions.

The agency made a decision to refuse access to the documents in accordance with section 25A(1) on grounds the work involved in processing the request would substantially and unreasonably divert the agency’s resources from its other operations. The Information Commissioner was satisfied the agency met the requirements of section 25A(6) having given written notice of the agency’s intention to refuse the request, however, was not satisfied the agency had provided the applicant with a reasonable opportunity to consult as required. The Commissioner determined the agency did not provide the applicant with a reasonable opportunity to consult and did not meet the requirements under section 25A(6). Accordingly, the requirements of section 25A(1) had not been satisfied and the agency was required to process the applicant’s request in accordance with the FOI Act.


September 2021

‘DP8′ and the Royal Children’s Hospital (Freedom of information) [2021] VICmr 270 (3 September 2021)

This matter relates to the agency’s decision to refuse access to the applicant’s child’s medical record. The applicant sought review of the agency’s decision to refuse access to the documents in part under the exemption in section 38. During the course of the review, the agency advised it instead sought to rely on section 35(1)(b).

The Information Commissioner noted that while information may be communicated to an agency from within, such matters are limited to internal relations of the agency like employment issues. The Commissioner was, however, not satisfied the denied information was obtained in confidence, noting the context in which the information was provided and the professional obligations on medical staff to provide their observations, advice or opinions during the provision of medical care. For this reason, the Commissioner instead considered the application of section 30(1) to the information. The Commissioner was satisfied the information in the document was opinion and advice prepared by agency officers engaged in the management and provision of healthcare to the applicant’s child.

The Commissioner was of the view disclosure would be contrary to the public interest as it would involve disclosing sensitive information relating to the applicant’s child such as the identification of risks and effective treatment. Agency officers need to be able to freely raise sensitive matters regarding the management of their patients and routine release of this information would undermine the robustness of the agency’s processes in providing patient care. As such, the Commissioner was satisfied the information exempted by the agency under section 35(1)(b) was instead exempt under section 30(1).


August 2021

‘DO6’ and Department of Jobs, Precincts and Regions (Freedom of Information) [2021] VICmr 259 (27 August 2021)

This decision relates to the agency’s refusal to grant access to a document under section 33(1). The document relates to details of State Government invitees to the 2021 Australian Open, including their names, the organisations they represent and by whom they were hosted.

Noting the agency’s submissions regarding the distinction between VPS executive and non-executive employees, as well as non-VPS individuals, the Information Commissioner was satisfied the document contained personal affairs information under section 33(1). However, the Information Commissioner determined it would not be unreasonable to disclose the personal affairs information in the document.

With respect to VPS employees, the Commissioner noted that the document sought is an official document of an agency and the officers are carrying out their employment duties. The information is recorded in the context of their professional roles rather than in a private capacity. With respect to individuals who are not public sector employees, the Commissioner recognised that while disclosure may impact the privacy of those individuals, the personal affairs information is not particularly sensitive, nor that the individuals would be subject to any adverse criticism or scrutiny and disclosure would not endanger the life and physical safety of any person.

The Commissioner also considered disclosure would serve a broader public interest, one of transparency and accountability in the practices of the public sector. The Commissioner was therefore satisfied the document is not exempt under section 33(1).


‘DO1′ and Department of Justice and Community Safety (Freedom of information) [2021] VICmr 254 (26 August 2021)

This matter relates to a decision to refuse access to documents relating to the agency’s final report into protective quarantine arrangements for prisoners in response to the COVID-19 pandemic. The applicant sought review of the agency’s decision to refuse access to a document in part under the exemption in section 30(1). 

The Public Access Deputy Commissioner was satisfied the document was prepared by agency officers and contained opinion, advice or recommendation which was prepared as part of the agency’s deliberative process in undertaking its functions under the Corrections Act 1986 (Vic). Having considered the applicant’s and the agency’s submissions, the Commissioner was of the view that disclosure would serve the public interest by promoting public sector transparency, noting the matter is of significant interest to members of the community. The Commissioner found that the disclosure of the document would not cause confusion or promote ill-informed debate about the options considered at that point in time, noting rather, such arguments underestimate the capacity of the public to understand the deliberative nature of public policy making.

The Commissioner determined that there is a public interest in disclosure of the relevant information so the public can be fully informed the agency is taking relevant matters into consideration in relation to protective quarantine arrangements implemented by the agency in prisons. The Commissioner was therefore satisfied the information deleted by the agency was not exempt under section 30(1) and access to the document was granted in full.


July 2021

‘DJ5’ and Victorian Commission for Gambling and Liquor Regulation (Freedom of Information) [2021] VICmr 213 (2 July 2021)

This decision relates to the agency’s refusal to grant access to policy and advice documents relating to Crown Casino’s reporting, regulatory and auditing responsibilities. The agency relied on the exemptions in sections 30(1) and 38 in conjunction with the Gambling Regulation Act (GR Act) to refuse access to the documents in full. Documents 3 to 12 were not provided to OVIC on the grounds that the agency was prohibited under the GR Act.

The Public Access Deputy Commissioner considered whether the agency can be compelled to produce a copy of the document subject to review by the Commissioner, noting the relevant section in the GR Act states that a protected person may disclose protected information to a court. The Commissioner was satisfied the broad definition of ‘court’ encompasses the Commissioner and has the power to compel the agency to produce a document. The agency had no express obligation to seek certification from the Minister or authorisation from Crown Casino to disclose the protected information to the Commissioner.

Ultimately, the review was limited to the documents that were provided to OVIC for review (Documents 1 and 2). After consideration of the agency’s submissions, the Commissioner was not satisfied Documents 1 and 2 were exempt under section 30(1) as their release would not be contrary to the public interest, rather, their disclosure would promote the public interest in greater transparency of casino regulation. Further, the Commissioner was not satisfied Document 1 was exempt under section 38 in conjunction with the GR Act as it concerns the agency’s regulatory functions and does not contain prohibited information protected from disclosure under the GR Act. The Commissioner was, however, satisfied that the personal affairs information of agency officers was unreasonable to release and it was therefore exempt under section 33(1).


‘DJ3′ and Department of Health (Freedom of information) [2021] VICmr 211 (2 July 2021)

This decision relates to the agency’s refusal to grant access to a document created by the agency under section 19, based on its reliance on the exemption in section 33(1). The document contained details relating to deaths resulting from COVID-19 for a specific date range and positive PCR test details.

Having regard to the applicant’s submission that they seek to form an accurate timeline of COVID-19 related deaths, the Public Access Deputy Commissioner was satisfied the document contained personal affairs information under section 33(1) which was sensitive. As information related to a deceased person’s date and location of death due to COVID-19, it was considered to be personal and sensitive in nature with a potential for reidentification.

The Commissioner further noted the effects that broader disclosure of the document would have on the privacy of the deceased persons and their next of kin and family members. The Commissioner was therefore satisfied the disclosure of the dates of death in the document would be unreasonable, and as it was practicable to delete the exempt information, it was determined that the document was exempt in part under section 33(1).

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