The Victorian Civil and Administrative Tribunal has published a decision in recent days reminding us all about when the personal affairs exemption can apply to agency staff.

Importantly, the decision in question was made by Deputy President Proctor, the Tribunal member in charge of the VCAT list where freedom of information cases are heard. It is the case of Davis v Department of Premier and Cabinet [2024] VCAT 1125.

The Tribunal has reminded us that exemption under s 33(1) of the Freedom of Information Act 1982 (Vic) has previously been held to apply:

(a) to all natural persons, whether or not they are agency offices engaged in the performance of their duties; and

(b) where there is no discernible benefit to the applicant to be derived by the release of the names and contact telephone numbers of agency staff, and where it is unlikely that the applicant would be assisted in any of their identified endeavours by ascertaining the names.

In the facts of the case before the Tribunal, it was accepted that there was no evidence supporting the release of the names of two officers from emails which did not shed light on concerns stated to exist by the applicant (ie asserted breakdown of the Westminster system during the pandemic with allegations ministerial staff were taking a more activist role such as developing policy collaboratively with public servants). This was coupled with accepted evidence and submissions to the effect that:

objections to disclosure made by those staff members under the s 53A process
evidence as to the detriment which could be suffered by those junior staff members if identified
continuing online debate concerning COVID-19, some genuine and some in the nature of conspiracy theories, and the risk of former staff being identified and harassed online in circumstances where they undertook their positions on the understanding that their identities would not be released publicly.

If you have any queries about how this may affect your agency, please do not hesitate to contact us.

Mick Batskos

Executive Director

Important Update

Issue 7/2024 copy · 06 Dec 2024

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