VCAT decision confirms the correct test

On 1 May 2018 the Acting President of the Victorian Civil and Administrative Tribunal ("Tribunal"), Her Honour Judge Millane, decided a case which reaffirms the correct and preferable approach for agencies in determining whether names of agency officers are exempt from access under s 33(1) of the Freedom of Information Act 1982 (Vic) ("FOI Act"). It also directs decision-makers to a correct summary of the law on s33(1) prepared by FOI Solutions on behalf of the respondent agency, and highlights some important factors relevant to that case in determining whether disclosure of personal affairs information would be unreasonable. The decision is in the case of Proctor v Mornington Peninsula Shire Council [2018] VCAT 638.

Summary of the law: s 33(1)

Her Honour accepted and adopted in full the summary of the law on the meaning and operation of

s 33(1) of the FOI Act set out in the Legal Contentions prepared by FOI Solutions on behalf of the Council (see para [44] of the decision). This summary goes no for over 6 pages in the Tribunal's decision.

Correct legal test

Her Honour referred with approval to the statement of the Tribunal in Coulson v Department of Premier and Cabinet [2018] VCAT 229 in relation to disclosure of names and personal information of non-executive staff involving the unreasonable disclosure of personal affairs of those staff:

"With the passage of years since those 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."

After quoting that passage Her Honour accepted that it reflects the correct approach.

Determining unreasonableness

In determining that disclosure of all the remaining personal affairs information in the subject documents would be unreasonable, the Tribunal importantly took into account the following:

The definition in s 33(9) of the FOI Act of personal affairs information was introduced "to ensure that agency officers were not excluded from the protection afforded 'any person'" under s 33(1) (see para [64]).
The applicant stated that his purpose for seeking disclosure of the documents would allow him to identify those officers of the Council whom he believed were "colluding in" refusing to perform the Council's statutory obligations under planning legislation. In conjunction with other evidence, this was described as the applicant for some time now being involved in a personal crusade to make Council officers and staff personally accountable for what the applicant perceives to be their persistent failure to enforce permit conditions (para [96]), that this was a case where the applicant was seeing access in order to identify and embarrass Council officers (para [97]), and that the applicant intends to use information identifying Council officers as a means of embarrassing those individuals and the Council (para [99]).
In view of those purposes, the Tribunal concluded that potential disclosure of information relating to the personal affairs of Council officers or staff to other disaffected individuals would be reasonably likely to endanger the physical safety of Council officers or staff where "physical safety" included any apprehension by a person that their safety would be compromised by disclosure (para [104]).
Even though some information which had been provided confidentially may have lost its confidential nature by disclosure in a non-FOI context, that did not automatically mean that disclosure of that with other confidential information would not involve the unreasonable disclosure of personal affairs information about the person (para [90], [94]).
Objections notified by individuals to the Tribunal under s 53A were relevant (para [98]). In circumstances where the purpose for seeking information was to embarrass Council officers, the Tribunal inferred that those officers who did not respond under s 53A would not wish to have their personal affairs information disclosed.
It was important for individuals to not be discouraged in providing personal information as part of the Council's function in enforcement or administration of planning legislation as it is important to the proper operation of investigation and enforcement processes for such information to be provided (eg by landowners (para [107]).

The Tribunal went on to conclude that further disclosure of redacted documents under s 25 of the FOI Act would not be practicable as it could not be satisfied that any documents would remain meaningful and capable of being read in context or that redacted documents would provide the information sought by the applicant.

Important Update

03/2018 · 02 May 2018

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