the solution

From the Executive Director

Review of 2022

We were fortunate enough to have assisted numerous clients with a wide range of privacy and freedom of information and right to information (FOI/RTI) issues during 2022.  

 

That assistance has ranged from providing urgent legal advice on complex issues, assisting with Information Commissioner/Ombudsman reviews or complaints, right through to conducting proceedings at VCAT.

 

In the Victorian FOI sphere alone we were involved in numerous VCAT and Court matters, many of which resolved along the way, but some of which ultimately went on to a final hearing and decision.  The following decisions of the VCAT or Supreme Court resulted in written reasons for decision in which you or your colleagues may be interested.  We instructed in the Supreme Court case and appeared in all of the VCAT matters:

 

Supreme Court

Monash University v EBT (a pseudonym)[2022] VSC 451 - Justice Cavanough

  • Dealt with what is a "document" and how that impacts on access charges, especially for any electronically stored documents.

VCAT 

NKY v Department of Education and Training [2022] VCAT 302 - Member Tang

  • Dealt with certain school records 
  • Public Access Deputy Commissioner's decision was varied
  • Exemptions: ss 30(1), 33(1) and 35(1)(b) of the FOI Act

Harrison v Victoria Police [2022] VCAT 280 - Senior Member Dea

  • Dealt with internal investigation documents including disclosure of personal affairs information of officer of the agency
  • Exemptions: ss 30(1), 32, 33(1) of the FOI Act

Parker v Court Services Victoria [2022] VCAT 431 - Senior Member Dea

  • Dealt with a request seeking access to the same CCTV footage as previously refused by VCAT (repeated request)
  • FOI Act provision: s 24A

Davies v Victoria Police [2022] VCAT 713 - President Justice Quigley

  • Dealt with refusal to process and neither confirming nor denying existence of documents
  • FOI Act provisions: ss 25A(5) and 33(6) with s 33(1)

Davis v Department of Health [2022] VCAT 718 - Member Campbell

  • Dealt with the need for compliance with the notice requirements in s 25A(6) before refusing to process a request giving rise to a substantial and unreasonable diversion of resources
  • FOI Act provisions: ss 25A(1) and 25A(6)

Eracleous v Victoria Police [2022] VCAT 1173 - Senior Member Smithers (this case is summarised in this edition of the solution)

  • Dealt with refusal to process a request, and neither confirming nor denying the existence of documents, where all the documents, if they existed, would be held for the purpose of counterterrorism or a purpose relating to counterterrorism, and this was apparent from the request
  • FOI Act provisions: ss 27(2)(b) and 29A(1A)

Monash City Council v Drake [2022] VCAT 1293 - Member Tang

  • Dealt with scope of Tribunal's review powers when an agency seeks review of the decision of the Information Commissioner
  • FOI Act provision: s 50(3D)

Crozier v Department of Health [2022] VCAT 1301 - President Justice Quigley

  • Dealt with internal emails providing information to internal lawyers and whether covered by legal professional privilege, and whether information in a document would reasonably be regarded as relevant to a request or could be deleted
  • FOI Act provisions: ss 25(a), 32

Festive season message

 

We would like to take this opportunity to thank all of our clients for their continued loyalty throughout 2022.  Your decision to use our firm to provide legal assistance in privacy, FOI and other administrative law areas is greatly appreciated.  We look forward to working with you again in 2023, and hope everyone has a safe and restful break over the festive season, and a productive and not too stressful 2023!

 

Mick Batskos

Executive Director