Recent Cases: Victoria

CityLink Melbourne Limited v Department of Transport [2020] VCAT 1078

Mr Rich-Phillips made an application to the Department of Transport (“Department”) for documents that relate to CityLink toll road projects and were created by the Department or CityLink Melbourne Limited (“CML”) between 2004 and 2006. 

The Department wrote to three entities, including CML, seeking their view on disclosure, to which CML objected to. The department’s decision was to refused access to documents either in part or full. On review by the Public Access Deputy Commissioner (‘Commissioner”), most documents in question were determined to be released with minor redactions. 

CML and the Department both applied to the Victorian Civil and Administrative Tribunal (“Tribunal”) for review of Commissioner’s decision. 

Disclosure likely to expose an undertaking unreasonably to disadvantage: s 34(1)(b)

The Tribunal considered the age of the documents and the projects they related to, and whether a disadvantage would occur if they were released.  The Tribunal found that CML and VicRoads[1] would be likely to be exposed to disadvantage if documents were released.  The project models were created by CML/Transurban and provided to VicRoads on a confidential basis.  The documents always had been and continue to be regarded as confidential.  The project models were not released to the world at large. Confidentiality was a key to the negotiations for the 3 projects and is still relevant to the current and ongoing relationship between the parties. The fact that some documents were not in the final agreed form did not detract from the disadvantage given the evidence about the iterative nature of the modeling used in the documents and the ongoing use of those methods. 

In relation to two documents, the Tribunal concluded that the content still had currency, and if released it may reduce the Department’s ability to maintain its commercial position in future negotiations regarding transaction. 

Disclosure likely to expose the agency unreasonably to disadvantage: s 34(4)(a)(ii) 

The Tribunal accepted that the department would be exposed to disadvantage if the two documents claiming s 34(4)(a)(ii) were disclosed.  The documents would reveal the methods, procedures and approaches to analysis reflected in the documents are still current today.  The Tribunal found that those parts of five documents were exempt, where they contained sensitive and current methods, procedures or approaches to analysis by VicRoads on CityLink related projects, and more generally to projects of that kind. 

Public interest override: s 50(4) 

The Tribunal noted that s 50(4) contains a more stringent test than s 34(1)(b), that the public interest requires access be given.  In its decision the Tribunal had regard to the  2007 decision of Dalla Riva v Department of Treasury and Finance, which considered financial model documents associated with a road upgrade, and where it was held that the lack of access to the documents would not impede the public’s ability to debate the merits of the transaction.

HELD:

The Tribunal affirmed the Commissioner’s decision in respect to the ss25 and 32 of the FOI Act, and varied the Commissioner’s decisions in relation to ss33 and 34.

SWG v Dean [2020] VCAT 1222

The son of SWG (“applicant”) was treated by Dean (“respondent”), a psychologist, in 2018.  The applicant was involved in the Family Court with his wife.  Family violence proceedings had been issued by the husband and wife against each other. 

Before his son received specialist treatment, the applicant and the son’s mother were asked for consent to the referral, which they gave.  The applicant sought his son’s session notes, which was refused.  However, the respondent offered the applicant a summary of the notes and a copy of the referral, which was declined.  The applicant requested the full notes in writing, which was refused on the grounds that the unedited documents might pose a risk to the child or third parties. 

The applicant made a complaint to the Health Complaints Commissioner (“Commissioner”) where the Commissioner dismissed the complaint. 

The applicant then applied to the Victorian Civil and Administrative Tribunal (“Tribunal") under the Health Records Act 2001 seeking an unredacted version of the file notes about his son, and requesting that any information in the file that is determined was incorrect, should be corrected, and for this to then be communicated to another health organisation that had received the file notes.

Capacity to consent or made a request or exercise right of access: s 85

The Tribunal was satisfied that the applicant had a right as a parent to request health information for his son.  However, the Tribunal was not satisfied that the applicant’s grounds for seeking the health information were to advance his son’s care or for other lawful uses of the information.  The Tribunal also noted that had the applicant accepted the case summary at the time of the request, he would have been able to perform his lawful duties, he did not need to obtain the unredacted copy of the session file notes to do so. 

HELD:

The Tribunal dismissed the complaint. 

[1] VicRoads was the relevant entity at the time the documents were created, later merging with the Department through machinery of government change.