Recent Cases: Victoria

Major Transport Infrastructure Authority v Davis (Review and Regulation) [2024] VCAT 180 

On 13 October 2022, the Public Access Deputy Commissioner (“Commissioner”) granted the Honourable David Davis (“respondent”) access to documents regarding a level crossing removal project.  The Major Transport Infrastructure Authority (“MTIA”) opposed this decision and applied to the Victorian Civil and Administrative Tribunal (“Tribunal”) for review, relying on s 30(1) of the FOI Act.  The documents were noise or acoustic documents with respect to a project to remove two stations and replace them with a station inside a trench. 

The Tribunal considered whether the four documents in dispute were exempt under s 30(1) of the FOI Act.    

Section 30(1) - Internal working document 

The Tribunal accepted that an independent contractor fell within the meaning of ‘officer’ under s 30(1)(a).  Subsequently, there was no dispute that all of the s 30(1)(a) requirements were met. 

Upon review of the documents, the Tribunal concluded that it was not appropriate for edited copies to be released.  It was accepted that some content was purely factual and some content was in the nature of an opinion or advice.  However, the Tribunal could not find that the whole of the documents fell under s 30(3), nor that they could be redacted in order to only release the purely factual material, as the purely factual material was interwoven with the remaining material.  Importantly, it was noted that the mere use of language such as ‘advice’ and ‘assessment’ did not mean that the whole of the document had that character. 

Three of the documents were prepared in preparation of acoustic and noise impact testing.  The documents were not included in the final reports that were released, nor was there any evidence showing that the content influenced the final decision-making.  The Tribunal confirmed that the public interest in allowing officers to obtain advice during deliberations and final decision-making outweighed the public interest in disclosure for the purposes of transparency.  It also commented on the fact that the delay in the hearing which flowed from a lack of available Tribunal members, had meant that the project was now completed.  Therefore, concerns about the noise impacts on individuals and the community around the project could be ascertained on the basis of what was decided upon and built. 

Similarly, the content in the last document was not included in the final reports that were released, as it contained preliminary advice which differed from the final advice obtained.

Therefore, the Tribunal found that it would have been contrary to public interest to release that document. 

Decision 

The Tribunal set the Commissioner’s decision aside and substituted it’s decision that the documents were exempt under s 30(1) of the FOI Act and release would have been contrary to public interest.  

Zammit v Racing Victoria (Human Rights) [2024] VCAT 163

Ms. Zammit (“complainant”) made a complaint to the Office of the Victorian Information Commissioner (“OVIC”) alleging that Racing Victoria (“respondent”) had breached Information Privacy Principles (“IPPs”) 2.1 and 4.1. The OVIC referred the complaint to the Victorian Civil and Administrative Tribunal (“Tribunal”) for determination. 

The complainant alleged that the respondent had disclosed to Mr George Osborne (“Osborne”) correspondence between her and the respondent concerning the welfare of horses Osborne was training (“Allegation 1”).  The complainant also alleged that the respondent’s disclosure to Osborne prompted him to contact Victoria Police.  The respondent then provided the complainant’s information and her complaints to Victoria Police (“Allegation 2”). 

Disclosure of information - IPP 2.1(a) and (g)

The Tribunal considered how the complainant’s correspondence to the respondent had been handled, the witnesses’ roles and how information collected from the public was used by the Respondent.  The complainant was reported as making more than a usual number of complaints.  The Tribunal considered the previous relationship between the complainant and Osbourne and the likelihood of his being able to identify who had made complaints about him for the purpose of making a Victoria Police complaint.

The Tribunal did not accept that the respondent had provided copies of the complaints, or the complainant’s information, to Osborne. The Tribunal highlighted that natural justice required the subject of a complaint, in these circumstances Osborne, be given information that a complaint had been received and information regarding the nature of the complaint.  Based on this information, the Tribunal acknowledged that Osborne would have been able to reasonably speculate the identity of the complainant, rather than the complainant’s personal information being disclosed by the respondent. 

The Tribunal concluded that a reasonable person in the complainant’s position should have expected that in the interests of natural justice, the subject of the complaint would have been consulted about the issue as permitted under IPP2.1(a). 

Security of information - IPP 4.1

Upon review of Allegation 2, the Tribunal was satisfied that the respondent had taken reasonable steps to protect the complainant’s personal information from misuse, loss, unauthorised access, modification or disclosure under IPP 4.1.  The Tribunal did not accept that the alleged disclosure prompted Osborne to contact Victoria Police, as the Tribunal did not accept that the alleged disclosure occurred. 

Decision

The Tribunal found that the alleged breaches of IPP 2.1 and IPP 4.1 were not proven.  The complaint was dismissed.