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

Extended summary of decision

This page outlines an extended summary of a recent OVIC decision.

This decision relates to the agency’s decision to refuse access to certain documents relating to the Applicant’s engagement with the agency. Certain documents were released in part, while one document, being an audio recording of a telephone call between the Applicant and an agency officer, was refused in full under section 38 of the FOI Act in conjunction with section 11(1) of the Surveillance Devices Act 1999 (Vic) (SD Act). The telephone call was in correction with the agency’s regulatory powers under the Racing Act 1958 (Vic).

Section 38 provides: A document is an exempt document 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.

A copy of the audio recording was provided to the Public Access Deputy Commissioner by the agency for assessment following the issuing of a notice to produce issued under section 49KB, as the agency considered it was prohibited from providing the Commissioner with a copy of the document to review due to the secrecy provision in section 11(1) of the 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 penalty’s associated with breaching this provision, including imprisonment.

The 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 agency relied on the Supreme Court of South Australia (SASR) decision on Thomas v Nash [2010] that a ‘private conversation’ does not mean a ‘secret’ or ‘confidential’ conversation, rather it is a conversation that is ‘not public’. Further, a conversation can be private even though the participants are at liberty to tell others about it later. Accordingly, it was submitted that even where an Applicant expects an agency officer to report the contents of their conversation with other agency officers, it does not prevent the conversation from being considered ‘private’.

The Commissioner accepted that 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’. For example, in Thomas v Nash, the Supreme Court held ‘there is no reason to give a narrow meaning to the concept of “private conversation”, bearing in mind the objects of the Act. There is no need to trace the precise limits of the concept of a private conversation. ‘ The Commissioner also considered the decision of the Supreme Court in Sands v State of South Australia [2013], which held a police officer carrying out their usual duties could still be engaged in a ‘private conversation’ for the purposes of the Listening and Surveillance Devices Act 1972 (SA).

Therefore, the Commissioner was satisfied the Applicant was not aware the call was being recorded and there is no other information to suggest that either party to the conversation was in a public forum during the call. Given the passage of time since the call occurred, the Commissioner accepted it would be difficult for either party to recall the relevant circumstances in which the call was made or received. Based on the information provided by the agency and the Supreme Court decisions, the Commissioner was satisfied the telephone call between the Applicant and the agency officer constitutes 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.

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