Recent Cases: Victoria

Quick v Transport Accident Commission (TAC) (Human Rights) [2022] VCAT 622 

Mr Quick (“applicant”) applied to the Victorian Civil and Administrative Tribunal (“Tribunal”) to review a decision made by the Office of the Victorian Information Commissioner (“Commissioner”) relating to documents the applicant seeks from the Transport Accident Commission (“TAC”). 

The applicant made a claim under the Transport Accident Act 1986 (Vic) for injuries sustained in a transport accident.  The applicant claimed his former housemates had ‘unlawfully accessed’ his personal information and provided it to the TAC, accusing him of fraud in relation to his TAC claim.  By his FOI request he wanted to access documents with the names of his former housemates and any documents that they had provided to the TAC .

The TAC FOI decision refused access to the documents sought, stating under ss 27(2)(b) and 33(6) that, if documents existed, they would be exempt under ss 31(1)(c), 31(1)(d) and 33(1) of the FOI Act. 

Neither confirming nor denying the existence of information: ss 27(2) and 33(6) 

The TAC claimed the Tribunal should determine the matter on the basis that the information described by the applicant was in the TAC’s possession, without determining whether that is so.  The Tribunal agreed.  The applicant sought documents by reference to the names of people who he said provided information to the TAC.  Therefore, if the documents sought by the applicant were exempt under s 33(1), then any document referring to the existence or non-existence of the documents sought would also be exempt.

Law enforcement documents: s 31

The Tribunal was satisfied that the disclosure of the documents, if they existed, would reasonably likely to prejudice the investigation of a breach or possible breach of the Transport Accident Act 1986 (Vic).  Since the evidence had potential to affect whether the respondent receives information relevant to its investigations, then revealing whether or not TAC has the information sought by the applicant was clearly capable of prejudicing any investigation of wrongdoing by the applicant.  The requirements of s 31(1)(a) and (d) were satisfied. 

The evidence did not establish that the documents had been provided in confidence, for the purpose of s 31(1)(c), so it was unclear whether disclosure of the documents would disclose the identity of a confidential source of information.  However, the evidence showed that the type of information sought was almost always provided in confidence so that it would be reasonable to conclude that disclosure of documents of this nature would expose a confidential source of information. 

There was some evidence that the person whom the applicant alleged to have provided information to the TAC would be exposed to the danger of harassment or further allegations if documents were to be disclosed.  However, the Tribunal held that the evidence was insufficient to indicate danger to the life or physical safety of those persons, or to their perception of safety, so that s 31(1)(e) was not established. 

Public Interest override: s 50(4)

The Tribunal found that the applicant’s interest was only in the interest of an individual and not in the public interest. 

Personal affairs and the Charter: s 33 FOI Act and 32 Charter

The Tribunal considered ss 13 and 32 of the Charter in relation to s 33 of the FOI Act.  It held that the FOI Act needed to be interpreted as far as possible in a way consistent with the rights to privacy of the persons whose personal affairs would be disclosed by release of the documents.  This gave weight to the suggestion that disclosure would be unreasonable.  If disclosure would be inconsistent with the TAC's usual approach to confidential information, or otherwise arbitrary, then it would be unreasonable to release. 

In relation to unreasonableness, the Tribunal considered the applicant’s interest in the information (in showing it was stolen from him, which could be reported to the Police without confirmation of what the perpetrators did with it); the circumstances in which the information was obtained (from evidence, most likely to be highly sensitive); the likelihood that the person concerned would not want to have it disclosed (shown by the applicant’s propensity for litigation, shown through his material submitted in the hearing); and its high current relevance, as it is likely to reveal to the applicant the level of forensic analysis applied to his claim.

The Tribunal confirmed the importance of considering both what is in the document itself but also what the document may reveal when seen in the light of other information known to the person seeking the document. 

HELD:

The Tribunal affirmed the decision under review 

Quick v Transport Accident Commission (TAC) (Human Rights) [2022] VCAT 622

 Mr Quick (“complainant”) made a complaint under the PDP Act, which was referred to the Victorian Civil and Administrative Tribunal (“Tribunal”) by the Office of the Victorian Information Commissioner (“Commissioner”) at the complainant’s request. 

Following his claim under the Transport Accident Act 1986 (Vic) for injuries sustained in a transport accident, the complainant claimed his former housemates unlawfully accessed his personal information and provided it to the Transport Accident Commission (“TAC”), accusing him of fraud in relation to his claim. 

The privacy complaint was about the TAC having collected personal information from the complainant’s former housemates; the TAC using and disclosing that information and the TAC not having checked the personal information was accurate, complete or up to date. 

Reasonable steps: IPP 1.3:

The complainant had no evidence suggesting the TAC collected or disclosed his information.  However, assuming information was collected, the Tribunal said merely alleging information is ‘inaccurate’ is not sufficient to demonstrate that the TAC failed to take reasonable steps to check the accuracy of the information. 

Notice to be given of collection from a third party: IPP 1.5

The TAC is a law enforcement agency for the purpose of the PDP Act.  The Tribunal highlighted that if the TAC had complied with IPP1.5 and notified the complainant that it had collected his information, this would interfere with TAC’s conduct of its functions or activities.  Even if the TAC were not a law enforcement agency, the Tribunal saw no reasonable steps that the TAC could have taken to inform the complainant that the information had been collected and was available for him to access.  If the information had been given to the TAC, then such steps would have informed the complainant about matters likely to jeopardise forensic investigations (which were a part of the agency’s functions).

HELD:

The privacy complaint was dismissed.