‘DU2’ and Department of Health (Freedom of Information) [2021] VICmr 309 (15 October 2021)

Extended summary of decision

This decision concerns a review of a decision made by the Department of Health (the Agency) under the Freedom of Information Act 1982 (Vic) (the FOI Act) in which the Agency refused to grant access to ‘[a]ll briefs provided to the Minister for Health or the Chief Health Officer (CHO) supporting the Public Health Orders that came into effect at 11.59pm on Friday 12 February [2021] that instituted a five-day lock down and any attachments to those briefs’.

The Agency identified eight documents, comprising 176 pages, relevant to the terms of the applicant’s request and relied on the exemptions under sections 30(1), 32(1) and 28(1)(c) of the FOI Act to refuse access to the documents in full. During the review, the Agency advised it also relied on sections 29(1)(a) and 29(1)(b) to refuse access to one document (Document 7).

Document 1

Section 30(1) – Internal working documents

A document is exempt under section 30(1) of the FOI Act if it contains opinion, advice and recommendation prepared by an agency officer for the purpose the agency undertaking a deliberative or consultative process and if its disclosure would not be contrary to the public interest.

Document 1 is a briefing document and includes two attachments prepared for the Chief Health Officer (the CHO).

The Public Access Deputy Commissioner (the Commissioner) was satisfied Document 1 contains advice prepared by an Agency officer as part of a deliberative process relating to the making of public health directions by the CHO under the Public Health and Wellbeing Act 2008 (Vic) (the PHW Act). While noting the Agency’s detailed submission addressing reasons why disclosure of the document would be contrary to the public interest, the Commissioner determined its disclosure would not be contrary to public interest, including on grounds:

• disclosure would not negatively impact on the ability of Agency officers to provide future similar advice given their responsibility to act consistently with the public sector values under the Code of Conduct for Public Sector Employees;
• disclosure  would not mislead the applicant nor members of the public, who are capable of understanding the role and powers of the CHO to make decisions and issue directions under the PHW Act;
• given the significance of the public health directions issued by the CHO under the PHW Act and the impact of those directions on the Victorian community, there is a strong public interest in the document, which contains factors that underpin the CHO’s decision to issue the public health directions, being publicly disclosed; and
• the public interest weighs in favour of the public having access to information that informs the exercise of the CHO’s powers under the PHW Act and to make public health directions in the interests of transparency and public scrutiny, particularly during times of crisis.

Section 33(1) – Personal affairs information of a person other than the applicant

Document 1 contains the names and position titles of senior Agency executives. The Commissioner determined disclosure of this information would not be unreasonable in the circumstances. Accordingly, the Commissioner was not satisfied Document 1 is exempt under sections 30(1) or 33(1) and granted access to the document in full.

Documents 2 – 6

Section 32(1) – Documents subject to legal privilege

A document is exempt from release under section 32(1) if was created for the purpose of obtaining or providing legal advice between a client and their legal representative.

The Commissioner determined Documents 2-6 are confidential communications between the Agency and its legal representatives that were created for the purpose of providing legal advice. Accordingly, the Commissioner was satisfied these documents are exempt under section 32(1) and refused access to the documents in full on grounds they are subject to legal privilege.

Document 7

Sections 28(1)(c) and 28(1)(d) – Cabinet documents

A document is exempt under section 28(1)(c) if it is a draft Cabinet document and section 28(1)(d) provides an exemption for a document that discloses a decision of or the Cabinet’s deliberation on an issue.

The Commissioner was not satisfied the Agency provided sufficient information to demonstrate Document 7 is exempt under section 28(1)(c), noting the document is addressed to the CHO, who is not a member of the Cabinet or a subcommittee of Cabinet.

However, the Commissioner was satisfied certain information in the document is exempt under section 28(1)(d) as it discloses a decision or deliberation of a subcommittee of the Cabinet and refused access to this information.

Sections 29(1)(a) and 29(1)(b) – Documents containing matter communicated by any other State

A document is exempt from release under section 29(1)(a) of the FOI Act if its disclosure would be contrary to the public interest and would prejudice relations between the State and the Commonwealth or any other state or territory government.

A document is exempt from release under section 29(1)(b) if its disclosure would be contrary to the public interest and would divulge information communicated to the Victorian government in confidence by the government of another country, the Commonwealth or any other Australian state or territory government.

Having considered the public interest factors relevant to the context and content of Document 7, the Commissioner determined disclosure of Document 7 would not be contrary to the public interest, including on grounds:

• the document contains a substantial amount of factual and publicly available information;
• the document does not appear to contain information provided in confidence to the Victorian government by another Australian government; and
• there is significant public interest in providing membersof the community with information about the way in which the Victorian government responded to the COVID-19 pandemic, including the rationale for the making of the public health directions; and gives the community the ability to participate in such processes and to hold governments to account for decisions made.

Accordingly, the Commissioner was satisfied only certain information in the document is exempt under section 28(1)(d) and granted access to the document in part.