Recent Cases: Victoria

Akers v Victoria Police (Review and Regulation) [2022] VCAT 884 (4 August 2022)

Mr Akers (“applicant”) made three requests under the FOI Act to Victoria Police (“respondent”) for access to documents that record whether a person named in the request was a police ‘informer and/or snitch’ between dates specified. 

The respondent decided that even if they existed, such documents would be exempt under section 25A(5) with section 31(3) of the FOI Act.

The applicant sought review from the Public Access Deputy Commissioner who agreed with the respondent’s decisions.  The applicant sought review from the Victorian Civil and Administrative Tribunal.

Law enforcement documents: s 31(3)

The Tribunal accepted the respondent’s evidence that the documents in the requests, if they existed, would be created by the Intelligence and Covert Support Command of the Victoria Police.  Therefore, if they exist or have ever existed, they would be exempt under section 31(3) of the FOI Act. 

The Tribunal noted that the ‘public interest override’ in section 50(4) of the FOI Act did not apply to section 31(3).  This was a clear indication of Parliament’s intention that such documents, if they exist, be protected

Requests may be refused in certain cases: s 25A(5)

The Tribunal found that all the documents would be exempt.  Further, it was apparent from the nature of the documents that no obligation would arise under section 25 to grant access to an edited copy of the documents.  

HELD

The Tribunal affirmed the decisions under review. The documents, if they existed, would be exempt in full.  

Davis v Major Transport Infrastructure Authority (Review and Regulation) [2022] VCAT 894 (8 August 2022)

Mr. David Davis (“applicant”) made an FOI request to the Major Transport Infrastructure Authority (“respondent”) seeking access to documents relating to three level crossing removal projects. 

The respondent decided to grant access to 4 documents in part, and denied access to the remaining 11 documents.  This led the applicant applying to the Information Commissioner (“Commissioner”) for review of the respondent’s decision.  Due to delay, the Commissioner was deemed to have refused access.

The applicant sought review by the Victorian Civil and Administrative Tribunal (“Tribunal”) of the deemed refusal by the Commissioner. 

By the time of the hearing the dispute had been narrowed to be about parts of only 8 documents.

Cabinet Documents: s 28(1)(b)

The Tribunal was satisfied that the documents where this was claimed were prepared or commissioned by an agency, the Level Crossing Removal Project (“LXRP”).

The Tribunal was satisfied that the three documents in question were prepared on the basis that a substantial part of their preparation was with the intention to be submitted to the Cabinet. 

The Tribunal went on to highlight that that where the process that leads to the production of the documents to be commissioned by Cabinet, and those preparing each document did so on the basis that it needed to be prepared in accordance with Cabinet guidelines, it is arguably materials for the Cabinet, regardless of whether it does end up there.  

The importance lies on the purpose for which they are prepared, not whether they achieve that purpose. 

Further, whilst the use made of a document is not decisive in ascertaining the purpose for which a document is prepared, it is relevant and ‘throws light’ on that question.  The Tribunal was satisfied the documents were commissioned by Cabinet for submission purposes. 

Internal working documents: s 30(1)

After summarising the criteria to be satisfied for this exemption, the Tribunal concluded that disclosure of matter in the nature of “opinion, advice or recommendation” can entail “personal views” and any “opinions recommended or offered”.  It was satisfied the documents did not contain only purely factual information. 

The Tribunal decided that disclosure would be contrary to the public interest as it would enable estimates by deduction of the State government’s budgeting and risk provisioning for the crossing removal projects.  That information could then be used to undermine the State’s competitive advantage and lesson competitive tension between bidders for further projects or adjustment events for current projects.

Further, budget figures were both very preliminary, and quickly superseded, and in those circumstances their disclosure would potentially mislead and confuse any debate and they could be misinterpreted were they to be released.

Documents relating to trade secret: s 34(4)(a)(ii)

There was no dispute that the respondent was engaged in trader or commerce and the information in question was of a business, commercial or financial nature.  The focus was on whether disclosure would be likely to expose the respondent unreasonably to disadvantage. 

The Tribunal noted that “likely” means “probable, such as might well happen or be true”.

The Tribunal accepted that disclosure would enable those negotiating with the respondent to improve their negotiating position and allow competitors of some alliance members to understand, undercut or undermine future bids for additional work.  In addition, the information in the documents is not generally available to competitors and would not be able to be disclosed without causing significant and substantial harm to competitive positions.  There were no public interest considerations in favour of disclosure to outweigh any competitive disadvantage considerations.

Accordingly, this exemption was made out. 

HELD

The Tribunal affirmed the decision under review in relation to the exemptions claimed for the disputed documents.