Recent Cases: Victoria

Department of Premier and Cabinet v Newbury [2021] VCAT 331

Mr James Newbury MP (“applicant”) made a request to the Department of Premier and Cabinet (“Department”) for access to briefs prepared by the Department on a range of topics.  The Department granted partial access to nine documents and refused access (in full) to a further nine documents, including a brief which focused on initiatives to secure the viability of Victoria’s TAFEs’ (“TAFE Brief”).  Some briefs were claimed exempt solely under s 30(1) of the FOI Act.

The applicant sought review by the Victorian Information Commissioner (“Information Commissioner”) of the decision to refuse access.  The Information Commissioner decided that some briefs were exempt under s 28 of the FOI Act but was not satisfied that any of the briefs, including the TAFE Brief were exempt under s 30(1).

The Department sought review by the Victorian Civil and Administrative Tribunal (“Tribunal”) of the Information Commissioner’s decision on the TAFE Brief.  

Briefing a Minister: s 28(1)(ba)

The Tribunal stated that the real issue to be met for the exemption to apply is the purpose for which a given document was created, as assessed at the time of its creation.  That purpose is to be determined objectively rather than by reference to the subjective purpose of its author.  If a document is prepared for the purpose of briefing a Minister in relation to issues considered by Cabinet, then the exemption applies, irrespective of what may subsequently transpire.  The failure to bring a document before Cabinet is not necessarily fatal.

It was evident that the briefing was prepared for its required purpose: it sought to provide advice to the Premier as to initiatives that could be taken to secure the viability of Victoria’s TAFEs.  The exemption extended to the TAFE brief, as it was intended to brief a Minister as to the process for having an issue brought before Cabinet.

HELD:

The Tribunal varied the Information Commissioner’s decision and held that s 28(1)(ba) applied to the briefing.

NXD v Department of Health and Human Services [2021] VCAT 417

NXD (“complainant”) made a complaint against the Department of Health and Human Services (“Department”) arguing that his personal information was disclosed contrary to the IPP 2 and that the Department did not take reasonable steps to protect his personal information contrary to IPP 4.  The complainant sought to obtain an order from the Victorian Civil and Administrative Tribunal (“Tribunal”) to obtain records from the Department to verify the information that formed the basis of his claim. 

Use and disclosure of personal information: IPP 2.1

The complainant must be able to prove that the information he contends has been used or disclosed exists and that it is personal information that has been disclosed or used for a secondary purpose, other than the primary purpose of collection.  “Secondary purpose” is not defined in the PDP Act, so the meaning is open to reasonable interpretation but the word “purpose” implies a level of intent. To do an act for or with a purpose is to exercise an intent - and that could be expected in any exercise of the collection and use or information by the Department, whether primary or secondary.  It is implicit that the purpose will be identifiable and it is necessary to identify the purpose so as to challenge the integrity of that purpose. 

There was no identifiable secondary purpose in the claim to support a finding of breach of IPP 2.1 and the claim was dismissed

Protection of personal information: IPP 4.1

The complainant claimed that the Department held his personal information and disclosed that information to the police. The evidence provided did not satisfy how his sister’s knowledge of the information was a consequence of a failure by the Department to protect his personal information and the claims post-dated the information being in the public sphere, therefore not subject to the PDP Act.  The alleged breach of IPP 4.1 was dismissed.  

HELD:

The claims were dismissed on the grounds that they were misconceived, lacking in substance and vexatious.