Recent Cases: Victoria
Dunlop v Veterinary Practitioners Registration Board of Victoria [2024] VCAT 594
Facts
The Victorian Information Commissioner (“Commissioner”) in its decision had affirmed the decision of the Veterinary Practitioners Registration Board of Victoria (“Board”) to refuse access to a document requested by Mr Dunlop (“applicant”). The document was a decision made by the Board in relation to unprofessional conduct of a serious nature. The Commissioner refused the document on the basis that the document was a law enforcement document under s 31(1)(a) of the FOI Act whereas the Board had decided that the document was exempt as a result of secrecy provisions of the Veterinary Practice Act 1997 (Vic) (“VP Act”). Before the Tribunal, the Board also claimed that the document was exempt as containing personal affairs information and confidential information as under ss 33(1) and 35(1)(b) of the FOI Act.
Secrecy provision in VP Act: s 38
Following the complainant consenting to disclosure, the Board proceeded only with a that s 77(1) of the VP Act, excluded access to decisions and reasons for determination. However, the Tribunal found that s 44(d) of the VP Act required formal proceedings to be public, and that this provision outweighed the secrecy provision in s 77(1), so that s 38 did not apply.
Enforcement or proper administration of the VP Act: s 31(1)(a)
The Board had various concerns about future involvement of veterinary practitioners in hearings including they would be less candid, meaning processes would need to become more formal, time consuming, and costly. Overall this would be likely to cause delays in processes which would cause stress and anxiety for practitioners, potentially result in legal advisors advising practitioners against engaging with Board investigations, and to public misunderstanding the role of the Board.
The Tribunal disagreed finding it was also equally open to be likely that practitioners would be more likely to engage with the Board based on comparison with the operation of other unstated disciplinary jurisdictions. It also stated that it needed direct evidence of the concerns raised.
Personal affairs information: s 33
The Tribunal accepted that the release of the document would disclose information about the personal affairs of the veterinary practitioner, complainant and a number of Board members and staff of the Board. In considering whether disclosure was unreasonable, the Tribunal considered individuals’ views following consultation under s 53A; the nature of the information; the applicant’s interest in the information; the circumstances in which the information was obtained and whether the person would wish for it to be disclosed. The operation of s 44(d) of the VP Act was taken into account and the Tribunal concluded that the veterinary practitioner could not reasonably expect information regarding his affairs to be kept confidential, as the hearing is open to the public, and this also applied to Board members and senior employees of the Board. The Tribunal also considered the age of the documents and the extent of likelihood of dissemination, considering it likely that the information would be published in a Melbourne newspaper and potentially more widely. The Tribunal determined the exemption applied to a small amount of information regarding the complainant and two employees of the Board.
Material obtained in confidence: s 35
The Tribunal viewed the process in which the Board obtained information, as leading to a formal hearing under s 44(d) of the VP Act, meant that veterinary practitioners should provide information with knowledge that it could potentially be publicly available in a hearing. This revoked any expectation of confidentiality that could otherwise be attributed.
Further, the Tribunal did not consider that disclosure of the document was likely to confuse the public about the Board’s role or impair its ability to obtain similar information in future. Instead, it viewed the document as more likely to educate the public of the Board’s role to protect the public and animals.
Application of Charter to decision of panel and right protected: s 24
The Tribunal found that the panel of the Board was a Tribunal for the purpose of the Charter when holding a formal hearing regarding a complaint. As a result, s 24 of the Charter applied so that a party to the proceeding would be entitled to decisions made by the panel of the Board in a formal hearing proceeding, to be made public unless the best interests of a child otherwise requires or a law other than the Charter otherwise permits.
The Tribunal was not satisfied that the VP Act operated to restrict decisions made by a panel of the Board in a formal hearing proceeding, so that they were not to be made public. However, the Tribunal was also not satisfied that the applicant was the party protected by the proceeding before the panel, meaning the benefit under s 24 of the Charter did not apply to him and was not applicable here.
Indication an applicant would accept a copy of an edited document: s 25
The Tribunal noted that s 25(c) only requires an indication that an applicant would accept access to an edited copy of a document. It viewed that the request had indicated the applicant expected there might be issue with disclosure of some information and implied some but not other information may be disclosed to him. The Tribunal was satisfied that the applicant wished to have access to a copy of the document with such deletions so that it was not exempt under the s 33 exemption.
Decision
The Tribunal granted access to the document, with some personal affairs information edited under s 25 of the FOI Act.
Davis v Department of Health (Review and Regulation) [2024] VCAT 707
Facts
The Honourable Mr David Davis MLC (“applicant”) made a request to the Department of Health (“Department”) for access to documents regarding the Covid-19 curfew imposed on 2 August 2020. The Department denied the request under s 25A(1)(a) of the FOI Act, asserting that the work involved in processing the request would have substantially and unreasonably diverted its resources from its other operations. The applicant sought review at the Victorian Civil and Administrative Tribunal (“Tribunal”). The applicant amended his request and the parties consented to an order for the Department to review its decision. The amended request sought materials relied upon by the Victorian Chief Health Officer (“CHO”) and Deputy Health Officer in making certain Public Health Orders and briefings to the CHO about those Public Health Orders, excluding certain personal affairs information.
The Department identified documents within the scope of the request and granted access in part with ultimately 15 documents being considered by the Tribunal under ss 28, 30 and 32 of the FOI Act.
Internal working documents: s 30
In making its decision about s 30, the Tribunal considered whether documents contained deliberative material or consultation made in the course of the Department’s functions. Some documents were emails that reflected the individuals’ thinking processes and discussions in the policy development process prior to a final decision being made. It noted the number of recipients on another document, which it believed spoke to its deliberative nature.
The Tribunal held that it would have been contrary to the public interest to disclose the documents, as the deliberations did not necessarily reflect the final positions taken in the Public Health Orders. Releasing this material could have led to confusion and unnecessary debate, and may have had an effect on the full and frank disclosure during pre-decision communications by officers in future. The Tribunal noted that disclosing a document that showed a consultation process would have had an adverse effect on the integrity or effectiveness of the process.
A further document was found not to be contrary to the public interest to disclose. The Tribunal accepted disclosure would raise questions about Department decision-making processes, however it may have provided the public with clarification on the type of information decision-makers were provided with at the time of making the orders. The Tribunal viewed disclosure as unlikely to inhibit candour or frankness in future, as it wasn’t a matter of opposing positions in the consultation, but rather a matter of clarification. As the matter concerned the interests of the community at large, that document was not exempt under s 30.
Documents affecting legal proceedings: s 32
The Tribunal accepted the Department’s evidence that the documents claimed under s 32 were made with the dominant purpose of giving or receiving legal advice. This was shown through communications between lawyers and senior Departmental officers, as well as explicit requests and offers of legal advice.
Cabinet documents: s 28(1)(d)
Material in two documents referred to decisions of the Crisis Council of Cabinet, a subdivision of Cabinet, and the Tribunal was satisfied that the material constituted cabinet documents. As there was no evidence before the Tribunal that the document had been published, it was exempt under s 28(1)(d).
For a further document, the Tribunal was not satisfied that the Department had discharged its onus in justifying that the document was exempt. Disclosure of the document would not have disclosed a Cabinet decision, as the material within the document referred to a topic not contained in a Cabinet briefing. Further, the Tribunal found that the decision was already public. Therefore, document 34 was not exempt under s 28(1)(d).
Public interest override: s 50(4)
The Tribunal considered the public interest override for the documents claimed as exempt under legal privilege, ultimately deciding that there was no overarching public interest that required disclosure.
Decision
The Tribunal ordered one document to be released in full, with the decision under review being affirmed for the remaining documents.