Important changes to the application of two exemptions under the Victorian FOI Act were made by the VCAT today

The Victorian Civil and Administrative Tribunal (“VCAT”) has today handed down two important decisions about the Freedom of Information Act 1982 (“FOI Act”) which have the effect of:

expanding the scope of the little used exemption in s 36(1)(b) (36(2)(b) for councils); and
adding a qualifier to the usual position that personal affairs information about non-executive officers of agencies ought not be released under s 33(1).

Section 36(1)(b)

Section 36(1)(b) provides that a document is an exempt document if:

“in the case of documents of a department or prescribed authority its disclosure under this Act would be contrary to the public interest by reason that it would disclose instructions issued to, or provided for the use or guidance of, officers of an agency on the procedures to be followed or the criteria to be applied in negotiation, including financial, commercial and labour negotiation, in the execution of contracts, in the defence, prosecution and settlement of cases, and in similar activities relating to the financial property or personnel management and assessment interests of the Crown or of an agency.”

An almost identical provision exists in relation to councils in s 36(2)(b) of the FOI Act.

Two earlier cases of the predecessor to the VCAT considered the claim for exemption under s 36(2)(b): City Parking Pty Ltd v City of Melbourne (1996) 10 VAR 170 (“City Parking”); Dobbings v Shire of Murrindindi (1997) 11 VAR 227 (“Dobbings”). Those cases concluded that that exemption only protects instructions which lay down general practices or procedures so that an instruction from one officer to another on a particular matter would not be protected unless it revealed some generalised system of procedures followed in a particular case.

In United Firefighters Union of Australia – Victoria Branch v Metropolitan Fire and Emergency Services Board [2018] VCAT 631 (“MFB case”), the VCAT considered the City Parking and Dobbings cases and noted that:

the AAT provided no explanation as to how it drew from the text of s 36(2)(b) the requirement for exemption that instructions lay down general practices and procedures;
in the Dobbings case the AAT agreed with City Parking interpretation without further explanation.

The VCAT then went on in the MFB case to accept submissions made by FOI Solutions on behalf of the MFB that the previous interpretation of s 36(2)(b) (and s 36(1)(b) as the equivalent provision applying to agencies generally) was wrong. It accepted that s 36(1)(b) of the FOI Act applies to a document the disclosure of which would disclose instructions or guidance in relation to a particular transaction or contractual negotiation, as well as instructions that lay down general practices and procedures.

The VCAT agreed that there was no basis in the text itself to conclude that the exemption does not extend to instructions with respect to a particular transaction, nor limit the exemption to only exempting instructions which lay down general practices and procedures. The text does not place the limitation on the exemption as described in City Parking and Dobbings. The VCAT concluded:

“With the greatest of respect for two long-standing interpretations of s 36(1)(b), apparently not discussed in Tribunal decisions since then, I view the interpretation as incorrect.”

Therefore, ss 36(1)(b) and 36(2)(b) of the FOI Act can now be taken to extend to documents which would disclose and instruction or instructions of the relevant kind with respect to a particular transaction or negotiation; it is not just limited to documents which would disclose some general practice and procedure.

Section 33(1)

Clients will have seen from our previous Important Updates that recent VCAT cases this year have confirmed or clarified that:

“With the passage of years since [earlier] decisions and the increasing prominence of rights of privacy, in my view an approach regarding disclosure of the names of staff holding non-executive positions as unreasonable disclosure is the correct and preferable approach.” (Coulson v Department of Premier and Cabinet [2018] VCAT 229; Proctor v Mornington Peninsula Shire Council [2018] VCAT 638)

In the MFB case and in a related case heard immediately before it, United Firefighters Union of Australia – Victoria Branch v Country Fire Authority [2018] VCAT 630 (“CFA case”), the VCAT agreed with and accepted that was the usual approach, but added a “qualifier”. It stated that the usual approach was the correct and preferable approach “unless there is countervailing evidence in the documents such as evidence of questionable conduct” such that it would be “reasonable to depart from the usual approach”.

There was nothing in the documents or the material submitted by the applicant to justify a departure from the usual approach.

FOI Solutions is proud to have acted in both the MFB and CFA’s cases and to have been part of obtaining clarity on the scope of the operation of s 36(1)(b) and s 36(2)(b) of the FOI Act. The expansion of the coverage of those exemptions means that agencies should carefully consider whether either of those provisions apply when looking at documents relating to transactions or negotiations of the kind contemplated by s 36.

If you have any queries about how these important decisions may affect your agency, please do not hesitate to contact us.

Important Update

05/2018 · 21 Jun 2018

In this issue