Recent Cases: Victoria

Secretary to the Department of Justice and Community Safety v Rounds (Review and Regulation) [2020] VCAT 649 (17 June 2020)

The Secretary to the Department of Justice and Community Safety

(“Department”) sought review of a decision by the Acting Public Access Deputy

Commissioner (“Commissioner”) to release documents to Mr Rounds

(“respondent”).

The original FOI request by the respondent sought to access documents

regarding complaints made against him as a real estate agent and his agency.

The Commissioner reviewed the original decision to withhold documents under

ss 33(1) and 35(1)(b) and decided to release parts of complaint case management

notes and the entirety of a detailed log note from the case management system,

with personal information remaining exempt.

The Department sought review of the Commissioner’s decision regarding three

documents, arguing that further material was exempt and that the respondent was

not entitled to one of the documents by virtue of s 14 of the FOI Act.

The respondent and Department were separately involved in Tribunal

proceedings.

Access is subject to fee or other charge: s 14(1)(a)

The Department argued that s 14 of the FOI Act operated to deny the respondent access

to one document, which was available on the Tribunal’s files in the separate matter and

could be inspected or photocopied.  The Commissioner held that s 14 did not apply to

the document as a party to a proceeding could inspect a file free of charge under the

Victorian Civil and Administrative Tribunal Act 1998.

In making its decision, the Tribunal confirmed that s 14 operates to deny access under the FOI Act where a person is able to otherwise source documents from public records for a fee or charge.

The Tribunal held that s 14 refers to a fee or charge for public access, rather than the

applicant’s access.  As the Victorian Civil and Administrative Tribunal (Fees) Regulations

2016 set a charge for members of the public to gain access to the Tribunal’s proceeding

files, then s 14(1)(a) applied to exclude that document from being accessed under the FOI Act.

Personal affairs information: s 33

The Department was concerned that the level of detail in two documents about the

complaint meant it was likely that the respondent could identify the complainant.  This

was especially so because the complaints were infrequent.

The Commissioner had decided that the date of the complaint or inquiry, the capacity of

the person concerned and details of interactions between that person and the

respondent should be released.  The Tribunal was satisfied that this information would

enable the respondent to identify individuals if he can remember the incidents

complained of or had access to records from the relevant periods.  Accordingly, the

Tribunal found that the entries contained information relating to the personal affairs of

the person who made complaints or inquiries.

In deciding whether disclosure was unreasonable, the Tribunal considered that there was no record of the person requesting confidentiality, the Commissioner’s view that the identities of the persons making complaints was highly sensitive and provided confidentially, that it was desirable for the Department to continue to receive reports from the public to allow it to perform its regulatory functions, and the potential for the release of the information to inhibit this.   

The Tribunal did not consider summary material, including reference number, date, status, type of inquiry and the outcome of inquiry would enable the identification of the complainant and concluded disclosure was not unreasonable.

HELD:

The Tribunal varied the Commissioner’s decision.  It decided s 14 applied to one document.  The remaining two documents were exempt in part under s 33(1), but further material was also released. 

The Tribunal did not address s 35(1)(b) in light of that decision.