Recent Cases: Victoria
Dunlop v City of Port Phillip (Review and Regulation) [2023] VCAT 500
Mr. Dunlop ("applicant") made a request to City of Port Phillip ("Council") seeking access to documents relating to the South Melbourne Market and a stall which he had worked at, that either named him or related complaints about him. The applicant was concerned that there were false rumors being circulated about him to the Council. His intention was to clear his name. The Council identified four relevant documents to the request and decided they were exempt from disclosure to the applicant under ss 33(1), 35 and 38 of the FOI Act.
The Tribunal's primary consideration was whether disclosure of the documents was exempt under the claimed exemptions.
Personal affairs: s 33
The Tribunal was satisfied that disclosure of the personal affairs information would be unreasonable taking into account the applicant's interest in the information, which was inherently personal; the information could be seen as confidential and sensitive; and the individuals who made complaints requested the information not be disclosed. As a result, disclosure would be a breach of the basis on which the information was provided.
If disclosure was allowed, this would not only cause individuals in the market community to refrain from communicating matters of the concern to the Council, but would undermine their trust in the ability of the Council to maintain confidentiality, potentially disregarding the safety and wellbeing of the wider community.
Further, the information sought would merely satisfy the applicant's curiosity rather than assist him for any other purpose.
Secrecy provision: s 38
The Tribunal stated that the documents were not affected by the introduction of ss 125(4) and (5) of the LG Act 2020 as the relevant meeting was closed to the public under s 77 of the LG Act 1989, meaning that s 125(4) and (5) did not apply to exclude the operation of
s 38 of the FOI Act.
HELD
The Tribunal affirmed the decision of the Council, holding the documents were exempt under ss 33(1) or 38 of the FOI Act. Although not necessary, the Tribunal also held document 2 was also exempt pursuant to s 35(1)(b) of the FOI Act.
Zammit v Racing Victoria (Human Rights) [2023] VCAT 374
Ms. Zammit (“complainant”) made a complaint contending Racing Victoria (“respondent”) breached the PDP Act.
The Victorian Information Commissioner (“Commissioner”) referred the complaint to the Victorian Civil and Administrative Tribunal (“Tribunal”) pursuant to s 66(4) of the PDP Act.
The respondent relied on s 75 of the VCAT Act to contend they were not subject to the PDP Act and the proceedings ought to be dismissed. The Commissioner informed the Tribunal of its intension to intervene in the proceedings.
The Tribunal considered whether the respondent was an organisation under s 13(1)(e) of the PDP Act and whether the matter should be dismissed under s 75 of the VCAT Act. The respondent submitted it was not subject to the PDP Act as it they did not fall within one of the eleven entities listed under s 13 of the PDP Act. The complainant and the Commissioner submitted that the respondent was a body established or appointed for a public purpose under s 13(1)(e) of the PDP Act and was subject to the PDP Act as a result.
Body established for a public purpose
After receiving contradicting submissions on whether the respondent was a public sector organisation based on its enabling legislation, the Tribunal focused on whether it was a body established or appointed for a public purpose by or under an Act. The Tribunal held s 3 of the PDP Act provides that “body” means “body (whether incorporated or not)”. As the respondent was incorporated under the Corporations Act 2001, it could be a body for the purpose of s 13(1)(e).
The Tribunal then took into account the legislative and constitutional framework of the respondent, including the oversight provisions with government and other cases considering the role of the respondent before accepting that the respondent was established for a public purpose.
Organisation Subject to Multiple Privacy Laws
The Tribunal expressed that an organisation can be subject to both the PDP Act and the Privacy Act 1988. Being subject to one these Acts is not determinative about whether an organisation is subject to the other Act, and as a result both Acts can apply.
HELD
The Tribunal determined that the respondent was a body that was established or appointed for a public purpose under s 13(1)(e) of the PDP Act and refused the application for dismissal.