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Recent Cases: Victoria

Greater Shepparton City Council v Hamilton [2021] VCAT 1316

Mr Hamilton (“respondent”) made a request under the FOI Act to the Greater Shepparton City Council (“Council”) for access to documents, the majority of which were e-mails between non-executive Council officers in relation to the applicant’s planning permit application.  The Council granted access to three documents after deleting irrelevant material, and partial access to the remaining three documents, with irrelevant material and exempt matter deleted under s 33(1) of the FOI Act.  The applicant sought review from the Office of the Victorian Information Commissioner.  The Public Access Deputy Commissioner (“Commissioner”) determined that s 33(1) of the FOI Act did not apply. 

The Council then sought review of the decision by the Victorian Civil and Administrative Tribunal (“Tribunal”). 

 

Documents affecting personal privacy: s 33(1)

 

The Tribunal was satisfied that there was personal affairs information contained in the documents.  In considering whether disclosure of that information would be unreasonable, the Tribunal was satisfied that the persons whose information was contained in the documents, were non-executive Council officers.

 

The Tribunal said when it comes to disclosure of personal affairs information of non-executive officers, it must consider the individual circumstances:

 

“…in every case, VCAT must examine the material sought to be disclosed… disclosure of information such as names or contact details may not involve the unreasonable disclosure of personal affairs information.” 

 

The Tribunal concluded that disclosure of personal affairs information of non-executive Council officers would be unreasonable in this case because:

  • the respondent was seeking to discover the identity of individuals, and that there was an unacceptable risk that he would inappropriately pursue them and cause them needless stress;
     
  • there was no ‘commendable need’ for the respondent to know the information; and 
     
  • the persons whose information was contained in the documents did not want their personal affairs information released.

Further, the Tribunal accepted that disclosure of documents to an applicant would be unreasonable if it could result in a negative impact on the willingness of officers to engage in frank and candid communication by e-mail during decision-making processes.

 

HELD:

 

The Tribunal set aside the decision of the Commissioner, and granted partial access to the documents with irrelevant material and exempt matter deleted under s 33(1) of the FOI Act. 

 

IGA v Department of Families, Fairness and Housing - DFFH (Human Rights) [2021] VCAT 1410

In March 2019, the Health Complaints Commissioner referred IGA’s (“applicant”) complaint to the Victorian Civil and Administrative Tribunal (“Tribunal”).  The applicant claimed that the Department of Families, Fairness and Housing (“Department”) breached HPP 3.1 in relation to her health information. 

The complaint was, that during court proceedings, the Department altered the format of the applicant’s drug tests, which led to the judge forming the view that the applicant had submitted fraudulent results to the court, and this prejudiced other legal proceedings in which the applicant was involved. 

 

The Tribunal was satisfied that the information the Department collected and provided to the applicant and to the court was not accurate.  The issue for the Tribunal was to determine whether the inaccuracy occurred because the Department did not take reasonable steps to ensure that the records were accurate.  The onus was on the applicant to satisfy the Tribunal that the Department did not take reasonable steps to ensure her health information was accurate.    

 

Health information collected, used, held or disclosed is to be accurate, complete and up to date: HPP 3.1

 

In coming to its decision, the Tribunal took into account that:

  • the applicant alerted the Department to an inaccuracy on the records, and on the same day the applicant received accurate records from the Department.  The Tribunal accepted the evidence of the Department that there had been a computer transposition issue; 
  • the Department referred the applicant to the Australian Clinical Labs to ensure that she had complete and accurate copies for the court proceedings; and 
  • the Department conducted an investigation into the applicant’s allegations of falsifying the records, and the cause of the inaccuracies on the records.

As the Department provided the applicant with accurate records, and/or access to them within a reasonable time, and before her court date, the Tribunal was satisfied that in the circumstances, the Department took reasonable steps to ensure the applicant’s health information was accurate.

 

HELD: 

 

The Tribunal found that the applicant had not established that the Department had failed to take reasonable steps to ensure her health information was accurate.