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Recent Cases: Victoria

Davis v Premier of Victoria [2024] VCAT 1126

Facts

 

In January 2021, the Honourable Mr. David Davis MP (“applicant”) applied to the Office of the Premier (“Premier”) for access to all text messages and Slack messages sent or received by the Premier’s phone that related to hotel quarantine, particularly the establishment of hotel quarantine.  It was estimated that there were over 3,000 potentially relevant documents.  

 

Between August 2021 and April 2024, the parties negotiated to narrow the scope of the request.  During this time, the applicant commenced a review by the Victorian Civil and Administrative Tribunal (“Tribunal”) of the Department’s decision taken to have refused access to documents (due to delay).  The parties agreed to a way forward and certain documents were identified by the applicant as being of interest to him.  

 

The Department of Premier and Cabinet (“Department”) processed those documents on behalf of the Premier and made a decision in September 2024.  The decision identified 64 documents as being relevant to the applicant’s request, with access granted in full to 3 documents, partially to 58 documents and refused in full to the remaining 3 documents.  The Tribunal reviewed this decision. 

 

Held 

 

The Tribunal varied the decision under review. 

 

Reasoning

 

Cabinet documents: s 28(1)(d)

 

The Tribunal held that an attachment to a largely released document, was exempt under s 28(1)(d) as it would disclose a deliberation or decision of Cabinet. The Tribunal accepted that the document was not a document by which the decision of the Cabinet was officially published.  The Tribunal highlighted that the s 28(1)(d) exemption is not retrospectively lifted upon the Cabinet decision later becoming known, unless a document by which a Cabinet decision was officially published is created. 

 

Where material in documents revealed no more than a statistic or a description of an event placed before Cabinet, it was not exempt under s 28(1)(d).  Similarly, material that constituted a discussion of a potential policy and issue to be put to the Crisis Council of Cabinet (“CCC”) was not accepted as exempt.  It was not clarification of the scope of the CCC decision as there was no direct evidence that the matter actually went to the CCC and the document indicated the policy option may have been impracticable. 

 

Internal working documents: s 30(1)

 

The material considered under s 30(1) was advice given concerning the drafting of a Cabinet submission and was clearly deliberative in nature.  

 

The Tribunal held that the public interest in maintaining the confidentiality of Cabinet submissions close to the Cabinet process outweighed the public interest factors favouring disclosure.  The Tribunal noted that, if the material did not concern a Cabinet submission, then disclosure would not have been contrary to the public interest. 

 

Law enforcement documents: s 31(a) and (b)

 

A Supreme Court of Victoria proceeding was on foot at the time of the proceeding involving documents that were substantially similar to two documents claimed as exempt under s 31(1)(b).  Those documents were subject to the discovery process in the Supreme Court proceeding, but had been withheld from production on the assertion of the public interest immunity over both documents.  The Tribunal accepted that disclosure of similar documents in the FOI proceeding would prejudice the proper administration of the law and impartial adjudication of the Supreme Court proceeding.   

 

Documents affecting legal proceedings: s 32

 

Three email chains of legal advice to the Premier about a Protocol between the Coate Inquiry ("Inquiry") and the State of Victoria were accepted as confidential communications made for the dominant purpose of obtaining or providing legal advice about the pending Inquiry, including legal advice on the Protocol.  They were exempt under s 32.   

 

Documents affecting personal privacy: s 33(1)

 

The Tribunal affirmed it was unreasonable to disclose personal affairs information of the Premiers private staff.  It accepted the Department’s evidence that disclosure of names could have caused anxiety, distress and harassment to the staff members, especially given the controversy of COVID-19 restrictions.  Further, the Tribunal accepted that, in accordance with the Department’s policies, Ministerial staff were not publicly responsible for work completed as a private Ministerial staff member and disclosure could impact on the ability of ministerial offices to recruit highly qualified people to the positions.  

 

In relation to a phone list attached to an email sought, the Tribunal accepted that consultation was not practicable, as it would have required cold-calling an estimated 80 phone numbers and ask questions about the still controversial topic of COVID-19 hotel quarantine procedure and disclosure of their details to a member of Parliament.  The Tribunal accepted that this would be likely to cause distress and the large majority would be likely to object.  The Tribunal accepted that disclosure of the phone numbers would have been unreasonable. 

 

Public interest override: s 50(4)

 

The Tribunal considered the override but did not accept that providing the applicant with the documents in dispute would lead to a prospect that he might get to the bottom of the controversy surrounding hotel quarantine where the Inquiry did not.  The public interest did not require disclosure.

 

RWB v Department of Transport and Planning [2024] VCAT 1181

Facts

 

Mr Koadlow (“Koadlow”) applied to the Department for access to documents held by Heritage Victoria.  He sought documents regarding a permit application he had made under the Heritage and Planning legislation.    The Department consulted with RWB under s 33(2B) of the FOI Act about the potential disclosure of their personal affairs information.  RWB did not consent to disclosure.  

 

On 9 June 2020, the Department notified RWB of its decision to release certain documents to Koadlow, which included personal affairs information of RWB.  RWB applied to the Victorian Civil and Administrative Tribunal (“Tribunal”) for review of the Department’s decision. 

 

Held

 

The Tribunal set aside the decision under review and ordered the Department to release the documents listed in the schedule of documents to Koadlow with personal affairs  information of RWB deleted, subject to Koadlow confirming that he wished to have access to such copies. 

 

Reasoning

 

Personal affairs information: s 33(1)

 

The Tribunal confirmed that the name and address of RWB was personal affairs information for under s 33 of the FOI Act. 

 

Although disclosure of the substance of submissions to permit applications was a matter of public interest, as it would have facilitated transparency into the permit application process under the Heritage Act, the Tribunal determined that disclosure of RWB’s personal affairs information would be unreasonable. 

 

The Tribunal took into account that the Department and Heritage Victoria treated submissions in response to permit applications as public documents for policy reasons, rather than a legal requirement under the Heritage Act.  The Tribunal also accepted that disclosure would have caused RWB unnecessary distress and anxiety.  Finally, the Tribunal found that RWB’s personal affairs information was not relevant to the request and release of the documents with the personal affairs information deleted was practicable.  Therefore, the factors weighed in favour of protecting RWB’s privacy.  Disclosure would have been unreasonable under s 33(1) of the FOI Act. 

 

The Tribunal noted that Koadlow had not indicated to the Tribunal that they wished to have access to the copies of the specified documents with RWB’s personal information redacted. Despite this, the Tribunal found it appropriate to provide Koadlow with the opportunity to indicate to the Department if they wished to obtain such copies.