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Recent Cases: Victoria

Davis v City of Kingston (Review and Regulation) [2023] VCAT 767

The Honourable David Davis MP (“applicant”) applied to the City of Kingston (“Council”) for access to documents relating to the State Government’s Suburban Rail Loop Project (“SRL Project”) and the Suburban Rail Loop Authority (“SRLA”).  Given that the Council had not made a decision in the required time, the applicant applied to the Victorian Civil and Administrative Tribunal (“VCAT”) for review of the decision taken to have been made. 

The Council made its decision during the review, denying access to documents and relying on exemptions under sections 30(1), 32(1) and 38 of the FOI Act.  

 

Documents to which secrecy provisions of enactments apply: s 38

Section 38 was considered in conjunction with s 125, LG Act 2020 in relation to information that was confidential information under s 77, LG Act 1989.  Under s 89(2) of the LG Act 1989, the CEO had designated a particular agenda item in documents the subject of the review to be confidential.  The grounds relied on by the CEO when he made the designation were clearly stated in the document, as were the terms of s 89(2), which met the requirements of s 77, LG Act 1989, and so also s 125, LG Act 2020.  

 

The Tribunal was satisfied that the Council had demonstrated that the entirety of the document was confidential information under s 125(1), LG Act 2020, so that s 38 applied to its entirety.  The Council claimed other documents contained confidential information under s 125 of the LG Act 2020, arguing that disclosure would lead to a likely risk of speculation in land values. The Tribunal held that the risk was merely a possible risk, so that s 125 LG Act 2020 was not satisfied.  In forming this view, the Tribunal considered arrangements in place for compensation for loss of green space and the amount of information already in the public domain. 

 

Internal working documents: s 30(1)

One document contained information prepared to brief Councillors in relation to a Deed entered into by the Council, this was sufficient to meet the requirement of s 30(1)(a).  

In considering the public interest, the Tribunal confirmed that where there was a close relationship between a document that was found exempt under s 38, and one claimed exempt under s 30(1) of the FOI Act, then it was against the public interest to release the second document.  Disclosure would undermine the application of s 38 to the first document.  

 

The Tribunal held that there was a public interest in ensuring Councillors were well informed and able to conduct discussions in a confidential settling before making a decision for which they must be publicly accountable, and that this public interest overrode any generalised public interest in disclosure.

 

The fact a Deed limiting disclosure of information the subject of the documents on review existed, this did not make the document on review exempt.  However, it assisted to demonstrate that the document was confidential.  The Tribunal held that the public interest in allowing consultations as occurred in the documents in a confidential manner between officers from two agencies was greater than that the interest of deliberative transparency, as relied upon by the applicant.  The Tribunal also viewed that the requirement to manage community expectations did not have a significant impact on public interest, as that was determined to be a necessary part of decision making, the Tribunal also viewed that.

 

Public interest override: s 50(4)

The Tribunal ultimately held that there was no sufficient public interest that necessitated disclosure under s 50(4).  When considering s 50(4) in the context of s 38, the Tribunal state that the public interest would have to be of a very high order.  That was because it was implicit in finding that s 38 applied to a document, was a finding that it is a document of the kind that Parliament intended to be confidential and had designated so in an enabling enactment.  The document in question did not shed light on the decision making about the SRL Project locations.  It was acknowledged that there is a high bar to be met in order for the override to occur. 

 

HELD

The Council’s decision was affirmed. 

Hudaib v Alfred Health (Human Rights) [2023] VCAT 851 

Dr Hudaib (“complainant”) worked in a research area of Alfred Health (“respondent”) and following bullying complaints made about more senior staff he worked from him for an extended period of time. Following his concerns about staff he had set up processes so that he could correspondence with publishers without his supervisor being included in those communications.  Upon a letter addressed to the applicant from the publisher being scanned and emailed to him at home, he made a complaint to the Office of the Victorian Information Commissioner (“Commissioner”) alleging that the respondent breached the PDP Act.  The Commissioner referred the complaint to the Victorian Civil and Administrative Tribunal (“Tribunal”) under s 66(4) of the PDP Act. 

 

Necessary collection for one or more functions or activities: IPP 1.1

The complainant asserted that it was unnecessary for the respondent to open his letter as a part of its functions.  The Tribunal accepted the respondent’s claim that its mail management functions including the need to deal with patient results and payment of invoices to publishers, were proper functions of the research facility. 

 

Collection by lawful and fair means, not unreasonably intrusive: IPP 1.2

The Tribunal found that the respondent’s actions were not unreasonably intrusive under IPP 1.2.  As the mail had not been marked private, confidential or personal, it was not considered to be unlawful or unreasonably intrusive for the mail to have been opened, scanned and emailed to the complainant. As the complainant had not informed his employer that he was receiving to expect his personal mail at his work address, the respondent had no reason to expect he would receive personal or private communications and so there was no reason to put in place any procedure to protect personal or private communications. 

 

HELD

The Tribunal determined that complaint was not proven and it was dismissed.