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.