Recent Cases: Victoria

Marke v Victoria Police [2020] VCAT 557 (8 May 2020)

This proceeding dealt with 2 FOI requests made by Mr Marke (“applicant”) to Victoria Police (“respondent”) for access to documents.  They each related to a complaint the applicant made about actions taken by a Victoria Police officer during the course of the applicant’s application to become a bail justice in 2014.    Due to similarity in the issues to be dealt with, the Victorian Civil and Administrative Tribunal (“Tribunal”) heard both matters together.   

In response to the 2 requests the subject of this proceeding, the respondent released some documents in part and withheld other documents in full.  All material withheld was claimed to be exempt under ss 33(1) and 35(1)(b) of the FOI Act.  There were six documents in dispute before the Tribunal. 

Personal affairs information: s 33(1)

The Tribunal accepted that people’s names and information such as telephone numbers fall within the meaning of ‘personal affairs information’ as defined in s 33(9) of the FOI Act. The respondent relied on a long line of earlier decisions establishing that the exemption in s 33(1) of the FOI Act applied to the personal affairs information of non-executive public servants.  It submitted that release of the information about them (and others) might cause those individuals distress or embarrassment. 

The Tribunal did not accept the respondent’s contentions.  In relation to the submissions about seniority of public servants, the Tribunal stated that the respondent was not organised in the same way as most of the rest of the Victorian public sector.  Therefore, previous decisions by the Tribunal in which the seniority of public servants was considered relevant to whether s 33(1) applied could be distinguished. 

In addition, the Tribunal noted that the applicant was already aware of the identities of many of the individuals whose personal affairs information was claimed to be exempt under s 33(1) of the FOI Act.  

In terms of the personal opinions of officers set out in the documents, the Tribunal was not able to detect unreasonableness in disclosure where that had already been disclosed, including in complaint letters. 

The Tribunal determined that personal affairs information contained in the documents could not be exempt under s 33(1) if they were about Victoria Police officers who were acting entirely in their professional capacities. 

The Tribunal had received responses from individuals who had been contacted about the proceeding under s53A of the FOI Act.  The response by those individuals was to object to the possible disclosure of their personal affairs information and request that their information not be disclosed to the applicant.  The Tribunal nevertheless determined that their personal affairs information was not exempt under s 33(1) of the FOI Act.

The respondent was ordered to disclose that information, subject to the rights of those individuals to appeal the Tribunal's decision in respect of the information concerning them.

Information provided in confidence: s 35(1)(b)

Two documents the subject of the proceeding were statements made to the respondent by persons who were potential witnesses whilst conducting a complaint investigation.  The respondent argued that if the general community knew that there was a possibility that their witness statements could be disclosed, it would create fear and mistrust,  impairing Victoria Police’s ability to secure a witness’s cooperation and obtain fulsome statements from witnesses.  Additionally, the respondent argued that disclosure could result in people becoming reluctant to make complaints about inappropriate police behaviour and actions, significantly reducing police discipline. 

The Tribunal agreed with the respondent’s submissions.  It noted that the information provided by the potential witnesses was volunteered.  Such witnesses are under no legal or professional compulsion to provide the information.  When coupled with the content of the documents, the Tribunal agreed that the public interest tended towards not disclosing the witness statements.  To disclose would impair the respondent’s ability to obtain similar information in the future. 

By way of contrast, the Tribunal found that the names of officers who provided information to the respondent in the context of investigations and the information provided was largely factual in nature.  It was given in circumstances where it could be expected that it could be placed before a court and the maker of the statement might be required to attend and give evidence.  There was no evidence about how disclosure of the information might discourage other police officers in the future or in other circumstances from cooperating in an investigation about another officer’s conduct or possible breach of privacy.  The information was therefore determined not to be exempt under s 35(1)(b) of the FOI Act. 

HELD

The Tribunal held that 2 documents were exempt in full; 2 others were to be released in full (except for a telephone number in each); and 2 further documents were to be released in part. 

McKechnie v Office of the Chief Parliamentary Counsel [2020] VCAT 506 (21 April 2020)

McKechnie (“applicant”) is currently serving a prison sentence at the Hopkins Correctional Centre.  He originally requested access to legislative material including statutes, regulations and other associated documents from the Office of the Chief Parliamentary Counsel (“OCPC”).  The OCPC denied the request as, by virtue of s 14(1) of the FOI Act, such material could not be accessed using the FOI Act

The applicant sought review by the Victorian Information Commissioner.  As the Commissioner did not make a decision within the statutory time frame, the applicant sought review by the Victorian Civil and Administrative Tribunal (“Tribunal”) of a decision taken to be made by the Commissioner refusing access.

Available for purchase by the public: s 14(1)(b)

The applicant argued the phrase "by the public" should be interpreted as "available to the applicant as readily as to any other member of the public".  The Tribunal disagreed, holding that "the public" means the public generally and the section does not require that every person can in fact purchase a copy of the legislative material.  While the applicant’s ability to purchase legislation might be constrained by being in prison, it did not mean that the legislative material was not available to the general public.

The Tribunal was satisfied that the applicant could purchase legislative material on the same commercial terms and conditions as any other customer, as he could purchase it through prison authorities, access a CD version in the prison library, or have a third party deliver a purchased copy of legislative materials to the Prison,.

Limit right of access: s 13

Section 13 should not be interpreted as conferring a right to obtain access to documents that only relates to documents to which the person would otherwise not have access.

The Tribunal held that s 13 does not expressly or impliedly limit the right of access to documents in the public domain.

HELD

The Tribunal affirmed the decision to refuse access.