Recent Cases: Victoria

Walker v Victoria Police (Review and Regulation) [2021] VCAT 1232 (15 November 2023)

Karen Walker ("applicant") submitted a request to Victoria Police for access to the LEAP database police records of her deceased brother ("Mr. Walker").  Victoria Police wrote to the applicant refusing access in full to the documents, claiming exemptions under sections 31(1) and 33(1) of the FOI Act.

Upon review, the Office of the Victorian Information Commissioner ("OVIC") affirmed the decision of Victoria Police.  The applicant then sought VCAT review.  At the hearing, Victoria Police no longer relied on s 31(1) so only the the s 33(1) exemption was at issue.

Personal affairs information: s 33(9)

It was not contentious that the document contained personal affairs information of Mr. Walker.  The document disclosed identifying information regarding Mr. Walker’s involvements with Victoria Police in various contexts.  This was not a disputed issue and the Tribunal accepted that the document contained personal affairs information of Mr. Walker. 

Consultation: ss 33(2B) and (2C)

The Tribunal accepted that contacting Mr Walker’s mother as next of kin and about the proceeding generally would be likely to cause her undue distress.  The Tribunal confirmed that there is no requirement or power in the FOI Act for the agency or VCAT to seek the views of a secondary next of kin, where it is impracticable to contact the direct next of kin.  As the applicant was not Mr Walker’s next of him, her views could not be treated as his views or her mother’s views.

Unreasonable disclosure: s 33(1)

The Tribunal considered whether disclosure of the personal affairs information to the applicant would be unreasonable taking into account the nature of the information, the applicant’s interest in the information, the circumstances in which it had been obtained and whether Mr Walker would have wanted it to be disclosed, the current relevance and the intended dissemination of the information.

First, the document would contain identifying information about Mr Walker and describes his involvement with Victoria Police.  The Tribunal accepted that generally a person would not make information of this nature public, which was a strong indication for this matter that the information was of a private nature.  The Police Act and the Victoria Police Manual – Policy Rules – Professional and Ethical Standards supported the view that such a document is to be kept confidential.  The individual themselves or potentially their next of kin were properly placed to decide whether to disclose such information. 

Secondly, the applicant’s primary purpose for seeking the document was to increase awareness of the impacts of childhood sexual abuse, specifically in relation to Mr. Walker’s experiences.  The Tribunal assessed the circumstances in which Victoria Police obtained the information and whether Mr. Walker would have wanted it to be disclosed.  The Tribunal held that there was a strong inference that Mr. Walker’s mother would not consent to the disclosure of the information.  While Mr Walker may have made past disclosure of his police involvement to close relations, this did not reflect whether he would have wanted his personal information to be shared or disclosed more broadly (here to the public generally). 

Third and fourth, the information was obtained as a part of an individual’s interaction with Victoria Police, whether as a witness, complainant, victim or offender and was not currently relevant to Victoria Police. 

Fifthly, the applicant wanted to tell her brother’s story, meaning that the information would be disclosed as widely as possible.  There is a public interest in this occurring but the documents did not address this public interest as they did not contain any information about child sexual abuse suffered or information about the circumstances of interactions with Police.

Decision

The Tribunal confirmed the OVIC decision, finding that information in the documents was exempt under s 33.