From the Executive Director

The Victorian Civil and Administrative ("VCAT") has very recently decided that information about a person’s professional duties or when they were acting in their professional capacity, might not be "information relating to the personal affairs of any person" in s 33(1) of the Freedom of Information Act  1982 (Vic) ("FOI Act").

In our view, this is a disturbing development and appears to ignore the breadth and plain meaning of the definition of "information relating to the personal affairs of any person" in s 33(9) of the FOI Act.  

In Harrison v Victoria Police [2022] VCAT 280, the VCAT was considering information about arising out of complaints made against 3 officers of Victoria Police, including the applicant.  The complaints gave rise to an internal investigation within Victoria Police.  The Tribunal held that much of the information about one officer that also related to or was dealt with in the context of the complaint against the applicant was not personal affairs information.  It was considered information that was about a person’s professional duties or when they were acting in their professional capacity; there was no personal element.

Interestingly, it then went on to find that information about the same officer arising or being dealt with in relation to a complaint made which related mostly to that officer was personal affairs information!  This was because, while it contained some professional information and arose in a professional context, it also contained personal opinion and factual information which is inherently personal to that officer.

The Tribunal noted that the approach it took required some nuance.

The Tribunal found:

...there are no absolute rules as to how the section 33(1) exemption might apply to individuals referred to in documents in their professional capacity.

I do not accept there is a binding rule that the concept of ‘personal affairs information’ will always exclude or include information about a person’s professional duties or when they were acting in their professional capacity.  The cases show that it is open to distinguish between those matters but that the context for the content or additional information about the person will be highly relevant.

In some cases, it might be possible to readily conclude that there is no personal element in the document and so section 33(1) might not apply. 

The Tribunal's reasoning pre-supposed that there must be a distinction between information referable to the relevant people’s professional duties only, as opposed to personal matters.  With respect this seeks to read into the definition of the phrase "information relating to the personal affairs of any person" in s 33(9) and in s 33(1) more generally something which is not there.  That provision does not make a distinction between information about personal matters and information arising in a professional capacity or when performing professional or official duties.

Section 33(9) makes it clear that "information relating to the personal affairs of any person" is an inclusive definition and necessarily intended to be wide ranging, as do many cases which make it clear that s 33(9) applies to all natural persons, including officers of agencies, and to read down the expression “any person” to exclude agency officers is impermissible.

Section 33(9) makes it clear that personal affairs information extends to information which identifies any person and to information from which a person's identity may reasonably be determined.  Therefore, to the extent that information is about an identifiable individual in whatever capacity (whether as part of professional or official duties or when acting in a professional capacity), it must necessarily qualify as personal affairs information.  There is no need for the information to contain a personal element provided it satisfies the definition in s 33(9).

Please note that as the decision in question was handed down on 22 March 2022, the appeal period is still current as at the time of publishing this newsletter.

If you seek advice on how this decision may impact on your agency or any particular FOI matter presently with you, please do not hesitate to contact us.

NOTE: FOI Solutions acted for Victoria Police in this matter.