Recent Cases: Victoria

Zeqaj v Victoria Police [2019] VCAT 1641

The complainant was a chef that worked in a local bistro.  Victoria Police were requested by the Australian Taxation Office (“ATO”) to serve the complainant with a bankruptcy notice (“notice”).  The ATO provided Victoria Police with the complainant’s work address to serve the documents. 

Victoria Police officers attended the complainant’s workplace to serve the notice.  The complainant informed the officers that he would not accept the documents in his workplace.  Victoria Police informed the complainant of the importance of the document and that it should not be left lying around.  Victoria Police provided the document to him with the face of the document on a table.  The complainant walked away.  The next day the document was shredded by one person at the complainant’s workplace.

The complainant claimed that Victoria Police had breached IPP 4.1 in its service. The Office of Victorian Information Commissioner (“Commissioner”) referred the matter to the Victorian Civil and Administrative Tribunal (“Tribunal”) on the request of the complainant. 

IPP 4.1

The complainant alleged that Victoria Police had breached its obligation to take reasonable steps to protect the complainant’s personal information.  He claimed that serving the notice and leaving the notice unattended in a public place, and serving him at his workplace, did not comply with the Bankruptcy Regulations.

The Tribunal held that Victoria Police had obtained the work address of the complainant for the purposes of serving the notice.  IPP 4.1 only applies to circumstances where disclosure was unauthorised.  By obtaining the complainant’s personal information for the purposes of serving the complainant was therefore an authorised use.

The Tribunal accepted that service of the notice was affected the Bankruptcy Regulations which set out how to effect service.   However, they only require that for “personal service” to be fulfilled the complainant be given “ready and unimpeded means of exercising physical control” over the notice.  The Tribunal accepted that the complainant was aware of what the notice was when approached by Victoria Police and, though he declined accepting the notice at his workplace, that did not avoid personal service.  Victoria Police had completed its obligation under IPP 4.1 to keep his information secure.  Any subsequent disclosure was in the complainant’s control as he knew what the document was and would have taken steps to protect it.

HELD

The Tribunal found that the complaint could not be proven so the proceeding was dismissed.

Department of Education and Training v Australian Education Union [2019] VCAT 1667

The Australian Education Union (“AEU”) made a request to the Department of Education and Training (“Department”) for access to a final report about governance issues at a TAFE.  The Department refused access relying on ss 30(1), 33(1) and 35(1)(b) of the FOI Act.

AEU sought review of the Department’s decision to the Office of the Victorian Information Commissioner (“Commissioner”).  The Commissioner held that the report was not exempt and that it would be practicable to provide AEU a copy of the report with personal affairs information redacted. 

The Department sought review of the Commissioner’s decision contending that the report was exempt under ss 30(1),  35(1)(b) and added ss 34(1)(b) and 34(4)(a)(ii).  The AEU had agreed to receive the document with personal affairs information removed.

Internal working documents: s 30(1)

The Tribunal was satisfied that the report would disclose matters in the nature of “opinion, advice or recommendation prepared by an officer in the course of or for the deliberative processes involved in the functions of an agency.”  However, it was not satisfied that disclosure would be contrary to the public interest. 

It found that the information that was contained within the report had either been publicly released or was not particularly sensitive.  The report was prepared by a senior Department officer which was approved by the Minister.  The Tribunal was satisfied that because the report contained reasons as to how the inquiry about the TAFE’s governance failures came about it supported disclosure because the public would be rightly interested in what recommendations were implemented.

Business, commercial or financial documents: ss 34(1)(b) and 34(4)(a)(ii)

The Tribunal held that there was no supporting evidence to prove how release of the report would have adverse publicity on the TAFE.  The Tribunal did not rely on evidence from the Department about how the TAFE would unreasonably be exposed to disadvantaged .

Material obtained in confidence: s 35(1)(b)

The report contained information that was claimed to be provided on a confidential basis.  The Tribunal held that the information was provided in a confidential manner and by those that came forward to share their views.  It was satisfied that there would have been an inferred expectation that these views would likely to be released.

The report related to the governance of the TAFE and contained views from Board members and employees.  The Tribunal was satisfied that Board members had a fiduciary duty to adhere to the interests of its entity therefore disclosure of the report would not impact their ability to co-operate in any future inquiries. 

Information identifying individuals had already been removed.  Therefore, the Tribunal concluded release of their views would not affect the ability to obtain similar information in future.

HELD

The Tribunal reaffirmed the Commissioner’s decision and found that the report should be given to AEU with the relevant personal affairs information removed.

FOI Solutions acted for the Department.