Recent Cases: Victoria
Walne v Victoria Police[2025] VCAT 282
Facts
Mr Peter Walne (“complainant”) submitted a complaint to the Victorian Civil and Administrative Tribunal (“Tribunal”), stating that Victoria Police (“respondent”) had breached the PDP Act and interfered with his personal privacy. Specifically, a Police psychologist wrote an internal letter that referred to the complainant’s personal circumstances and had suggested lines of enquiry, which a Police Sergeant had pursued. The complainant argued that respondent breached the PDP Act, as it had cited his personal information, unnecessarily collected information, failed to disclose that it had collected his personal information, and continued to interfere with his privacy because it had failed to alter or redact the information. The respondent contended that there had been no interference or breach of the Information Privacy Principles (“IPPs”), because its actions were consistent with the powers and duties under the Criminal Procedure Act 2009 (Vic) (“CP Act”) and the Victoria Police Act 2013 (“VP Act”).
Held
The Tribunal found no breach of any IPPs, and dismissed the complaint.
Reasoning
Collection of personal information: IPP 1.1
The complainant argued that it was not necessary for the respondent to collect a marriage certificate from Births Deaths and Marriages, and information from the Melbourne and Maroondah City Councils (“information”). The respondent stated that the information was collected ‘with a view to tendency evidence’, and it was necessary to collect for the discharge of its functions under the VP Act. The Tribunal affirmed the respondent’s position, as it was necessary to collect the information for the purpose of discharging its functions under the VP Act, especially in relation to its community policing function to manage ongoing disputes between the complainant and his neighbours, which had been developing for several years. There was therefore no breach in the collection of personal information under IPP 1.1.
Alerting individual about collection of personal information: IPP 1.5
The complainant inferred that the respondent had not disclosed the collection of information to him directly, as the respondent had not disclosed the collection until it had sent the Part 4.4 CP Act information to his solicitor. The Tribunal reasoned that it would have been inconsistent with Part 3.2 of the CP Act to disclose under IPP 1.5, as under Part 3.1 of the CP Act, it is not required to disclose in the investigation phase, only after charges are brought and the information would be relied upon in a hearing. This was further supported by the statement made by the psychologist, that the respondent’s offending behaviour would have likely escalated if he became aware of the police enquiries, which needed to be taken into account for the safety of all people concerned. The Tribunal found no breach of IPP 1.5, as it was inconsistent with Part 3.2 of the CP Act, and fell within the exception within IPP 1.5 concerning the safety of other individuals.
Ensuring personal information is accurate, complete and up to date: IPP 3.1
The Tribunal reasoned that the psychologist’s letter was excluded from the PDP Act, as it fell within the definition of ‘health information’ under the HR Act, not ‘personal information’ under the PDP Act. However, the Tribunal still considered whether there was a breach of IPP 3.1, if the letter was considered as personal information. The Tribunal reasoned that IPP 3.1 does not prohibit an agency from collecting historical information, such as a marriage certificate, and merely because the letter contained historical information, did not make it out of date. Based on the two considerations, the Tribunal found no breach of IPP 3.1.
Health information and health provider: s 3 HR Act
The Tribunal considered whether information in the letter was health information of a kind to which the HR Act only applies. It considered the definition of personal information in the PDP Act and health information and health service in the HR Act. It confirmed that the HR Act applies to the respondent.
The respondent did not view the letter as containing health information as it did not contain a diagnosis, and only expressed a suspicion, not a medical opinion. The respondent is not a health service provider and was not providing a health service. The complainant appeared to agree that it was not health information. The Tribunal considered the reason why the letter was created and the skills of the person writing the letter. It considered that the HR Act only requires it to be information – it does not require the intention of the information to be for therapeutic treatment or to promote the health of the person about whom information is recorded. The Tribunal considered the letter to be health information of a kind to which the HR Act only applies and could not form the basis of a breach of any IPPs.
Victorian Infrastructure Delivery Authority v Johnson [2025] VCAT 345
Facts
Mr Simon Johnson (“respondent”) applied to the Department of Transport for access to documents relating to the Parkdale Level Crossing Removal Project (“Project”). The FOI request was transferred to the body currently known as the Victorian Infrastructure Delivery Authority (“Authority”) which granted access in full to two documents, partial access to 1 document, and refused access to 21 other documents under various exemptions. The respondent sought a review of this decision by the Office of the Victorian Information Commissioner (“Commissioner”). The Commissioner’s decision was that 1 document was exempt in full under s 28(1)(b) but the remaining documents were to be released either in part or in full. The Authority applied to the Victorian Civil and Administrative Tribunal (“Tribunal”) for review of the Commissioner’s decision. At the time of the Tribunal’s decision there were 10 documents in dispute with exemptions claimed under ss 30(1), 28(1)(c), 33(1) and 34(1)(b).
Held
The Tribunal varied the Commissioner’s decision, and identified specific information as exempt under ss 30(1), 34(1)(b) or 33(1), ordering part release of documents.
Reasoning
Internal working documents: s 30(1)
The parties agreed that the documents fell into s 30(1)(a) with the Tribunal determining whether disclosure was contrary to the public interest. The Tribunal considered two types of information in the documents, freight assessment information and information about other projects.
The Tribunal considered various versions of the same or similar documents. It held that a tracked changes version of a document with comments was exempt under s 30(1). Release of such a marked up confusing draft was contrary to the public interest, as it would not have been understandable or meaningful to anyone except the authors of the document. Further, disclosure would not have provided the respondent with the information sought.
However, the Tribunal did not accept that a version of the same document with all tracked changes and comments seemingly removed was also fully exempt. As it was closer to a final draft, the Tribunal ordered it to be released in part, accepting that it was contrary to the public interest to disclose the speculative information about options considered and not pursued. However, while it accepted that releasing the speculative information would be contrary to the public interest, it did not accept the Authority’s submissions that disclosure of part of the document with speculative information removed but including freight information, would have given rise to ill-informed controversy and debate.
The remaining document, was not exempt as the information claimed was viewed as an uncontroversial observation, which could not be seen as contrary to the public interest to disclose. However, the attachment to that document was exempt, as disclosure would have revealed Cabinet discussions in the policy development process. Release could have potentially interfered with the free and frank development of policy in Cabinet.
Matters of a business, commercial or financial nature: s 34(1)(b)
The Tribunal accepted that information in the documents related to cost and pricing information which, if disclosed, would have given competitors unprecedented insight into highly sensitive and confidential matters and undermined the tender process for relevant construction work. Accordingly, the Tribunal accepted that the contractor performing the project would have been disadvantaged if the documents were disclosed making parts of the documents exempt under s 34(1)(b). The contractor had given detailed evidence about their processes and the Tribunal commented that it would have accepted that the documents related to trade secrets making them in part exempt under s 34(1)(a).
Personal affairs information: s 33(1)
Until the hearing, the Authority believed that the applicant did not seek the names of people in the documents and had identified this information as irrelevant. At the hearing, the respondent confirmed he sought only names of executives. The Tribunal’s decision was consistent with several previous decisions that disclosure of executive names was not unreasonable. The respondent was a responsible person, in part seen by his respect for maintaining commercial confidentiality, and he did not seek the names of non-executive staff. The Tribunal viewed there being no prospect that he would use the names irresponsibly or pass them on, where there was a risk that others would act irresponsibly.
Notice to third parties of right to intervene: s 53A
Given the Authority’s incorrect understanding, executives had not been given notice of their right to intervene in the matter before the Tribunal, and their right to intervene in the case or provide written consent or objection. To mitigate the effects of this oversight, the Tribunal ordered the Authority to notify the executives of the Tribunal’s decision to release their names.