Recent Cases: Victoria

Marke v Victoria Police [2025] VCAT 742

Facts 

Former Detective Sergeant Lance Marke (“applicant”) applied to Victoria Police (“respondent”) for access to documents. The respondent refused the request on the basis that it would substantially and unreasonably divert its resources from its other operations.  The applicant sought a review by the Office of the Victorian Information Commissioner (“Commissioner”).  Given that the Commissioner did not decide within the relevant statutory timeframe, the applicant applied to the Victorian Civil and Administrative Tribunal (“Tribunal”) for review of a refusal decision taken to be made by the Commissioner. 

Following a compulsory conference at the Tribunal, the request was refined, and the respondent processed the request, identifying 79 relevant documents.  It released 18 documents in full, 43 in part and refused 18 documents in full under ss 33(1) and 35(1). The number of documents in dispute were subsequently narrowed to 26.

Held

The Tribunal varied the respondent’s decision in relation to 11 of the documents, affirmed the decisions for 9 of the documents, and dismissed the application in relation to 7 of the documents (which included an attachment to one of the other documents).

Reasoning

Notice of Tribunal review: s 53A

Even though the respondent had not provided notices to the relevant individuals notifying them that the matter was before the Tribunal and informing them of the right to intervene, as required by s 53A, the Tribunal accepted the evidence of the respondent in finding that it had sent s 53A notices in previous related Tribunal proceedings, in which all of the individuals objected to disclosure of their information and expected confidentiality.  

Further, it was accepted that sending s 53A notices in this proceeding would not have been practicable due to the age of the documents and likely outdated contact details of identified individuals.

Editing documents: s 25

The Tribunal accepted that it was practicable for the documents to be edited, as the respondent had a long history of releasing edited documents to the applicant.  Where the Tribunal held that a document was exempt in full under ss 33(1) or 35(1)(b), it clarified that editing was not practicable, as the exempt information was too embedded in the personal affairs or confidential information to be edited. 

Requests for repeat reviews: s 50(6)

Given that some documents were found to be exempt under s 35(1)(b) in previous decisions, the Tribunal was satisfied that s 50(6) was applicable to them.  This means that the Tribunal refused to review the decision in respect of those documents because it had previously reviewed a decision to refuse access to the same document or the same information.  The Tribunal highlighted that ‘the passing of time itself does not operate to change the character of the document’ where it had previously already been deliberated on and found to be exempt.

Personal affairs exemption: s 33(1)

Given that the applicant did not seek access to telephone numbers, email addresses, signatures, individual police members’ identifying numbers and information of a ‘very personal and private’ nature, the Tribunal was satisfied that the deletion of such information under s 33(1) was appropriate. 

The Tribunal was bound by the a related Supreme Court case that s 33(2) will only displace s 33(1) where the material in the document relates only to the person in question.  As the information did not exclusively relate to the applicant, s 33(2) was not applicable to require release of personal affairs information about others.

Further, the Tribunal found that s 33(2A) was not relevant to the proceeding, as the applicant had not inappropriately approached or communicated with people involved in the events within the documents.

It was held that the names and other identifying information of the police members constituted personal information per s 33(1), even where it was obtained in the members’ professional capacity as opposed to their personal capacity.  The Tribunal did not seek to undermine previous connected decisions.  Therefore, the personal information held to be exempt under s 33(1) in previous proceedings was similarly exempt on this occasion. 

Information that had been previously disclosed to the applicant, was publicly available, or was factual in nature was not exempt under s 33(1).

The Tribunal highlighted that the processes described in some documents were not known to all mentioned police members and such information was sensitive in nature.  Therefore, disclosure would have been unreasonable other than to police members to whom it related.  However, disclosure of the material in one document concerning the applicant’s alleged conduct in the course of his professional duties was not unreasonable, as it was factual in nature rather than personal.

Where the applicant’s name had likely been redacted in error, disclosure was not unreasonable.  The Tribunal identified that one letter was written in the author’s professional capacity. Therefore, disclosure of the author’s name was not unreasonable. 

Contrastingly, disclosure of the names and circumstances of alleged victims detailed in a document was unreasonable as the information was sensitive in nature and not publicly known.  The Tribunal found that disclosure of the name of a police member who signed a witness statement would have been unreasonable, as the member was otherwise entirely uninvolved in the matter.  

Information obtained in confidence: s 35

Both parties accepted that the witness statements claimed to be exempt possessed a level of confidentiality, satisfying the first limb of s 35(1)(b). 

In accordance the evidence and previous decisions, the Tribunal was satisfied that members of the general community would be less likely to provide information to investigating police members if they believed that the information might later be released to the targets of the investigation or widely disseminated.   

Further, the Tribunal held that where information exempt under s 35(1)(b) was summarised or quoted in another document, such summaries or quotes were also exempt under s 35(1)(b).  

Public interest override: s 50(4)

The Tribunal clarified that the s 50(4) override was not applicable to s 33(1). 

Regarding the s 35(1)(b) exemptions, the Tribunal noted that it was not satisfied that the public interest required release, as the content of the documents would not have benefitted the public interest.  Rather, they were sought to address the applicant’s personal grievances.