Marke v Victoria Police
[2007] VSC 522
•13 December 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 6429 of 2007
| LANCE FREDERICK MARKE | Appellant |
| v | |
| VICTORIA POLICE | Respondent |
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JUDGE: | HANSEN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 November 2007 | |
DATE OF JUDGMENT: | 13 December 2007 | |
CASE MAY BE CITED AS: | Marke v Victoria Police | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 522 | Revised: 19 December 2007 |
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Appeal from Victorian Civil and Administrative Tribunal - Freedom of Information – Appellant sought access to documents - Appellant sought review by Tribunal of respondent’s deemed refusal to give access to documents – Tribunal held documents exempt on the basis that it was unreasonable to release the documents because the world at large would then know the identity of the persons concerned – Tribunal assumed that disclosure to appellant was disclosure to world at large – Tribunal erred in law – Exemption under s 33 must be determined by reference to all relevant circumstances – Freedom of Information Act 1982 (Vic), s 33.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J D Pizer and Mr C P Young | Clayton Utz |
| For the Respondent | Dr K L Emerton | Victorian Government Solicitor |
HIS HONOUR:
Introduction
This is an appeal from orders made on 2 May 2007 by the Victorian Civil and Administrative Tribunal (“the Tribunal”), constituted by a Senior Member, affirming a decision by Victoria Police (“the respondent”) to refuse access to a number of documents sought by Lance Marke (“the appellant”), who is a Detective Sergeant in the Victoria Police[1]. In essence, the appellant sought access to documents concerning investigations conducted by the Ethical Standards Division of Victoria Police (“ESD”) into allegations made against him by a person to whom I will refer as the complainant. The respondent granted the appellant access to some of the documents he sought, but refused him access to other documents[2]. In essence, the respondent refused the appellant access to the documents on the basis that they were exempt documents under s 33(1) of the Freedom of Information Act 1982 (“the FOI Act”) as their “disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person”. The Tribunal affirmed that decision, holding that “it would be unreasonable to release these documents” and that they were exempt under s 33 of the FOI Act. The appellant appeals from the Tribunal’s decision on a question of law, pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”), having been granted leave by Master Evans on 17 June 2007.
[1]The respondent actually failed to make a decision on the application within 45 days, thus the FOI Act deems the respondent to have refused the application.
[2]The appeal is confined to the Tribunal’s order in respect of Documents 1 to 7 in the Schedule to the respondent’s Section 49 Statement. I refer to Documents 1 to 7 as “the documents”.
Questions of law/Grounds of appeal
The notice of appeal stated three questions of law.
The first question of law is, in essence and without setting it out in full, whether the Tribunal breached the rules of natural justice and/or failed to provide the appellant (who was not legally represented before the Tribunal) with a reasonable opportunity to make submissions. The first ground of appeal essentially stated that the Tribunal acted contrary to s 98(1)(a) of the VCAT Act in that it breached the rules of natural justice, and that it acted contrary to s 102(1)(c) of the VCAT Act in that it failed to provide the appellant with a reasonable opportunity to make submissions. In the course of argument before me, counsel for the appellant abandoned this ground of appeal. Accordingly, I say nothing further about the natural justice issue.
The second question of law was stated as follows:
“Did the VCAT misconstrue section 33(1) of the FOI Act by construing the words ‘disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person’ as necessarily requiring an assessment of the unreasonableness of disclosure as if that disclosure would be to the ‘world at large’?”
This question of law gave rise to the second and third grounds of appeal. The second ground stated that the Tribunal erred in construing s 33(1) in the manner set out in the second question of law above. The third ground stated that the Tribunal “erred in not construing that expression [in s 33(1)] as requiring an assessment of the unreasonableness of disclosure by reference to all the circumstances, including (a) the fact that disclosure of a document under the FOI Act is to the individual applicant and not ‘to the world at large’; and (b) the likelihood of that applicant publicly disclosing the information in that document if it were released to him or her under the FOI Act”.
The third question of law was stated as follows:
“By failing to consider the likelihood of the Appellant publicly disclosing the information in the Documents if those documents were released to him under the FOI Act, did the VCAT fail to take into account a relevant consideration when determining whether disclosure of the Documents would be unreasonable for the purposes of section 33(1) of the FOI Act?”
This question of law gave rise to the fourth ground of appeal, which stated that “[w]hen considering whether disclosure of the Documents would be unreasonable for the purposes of s 33(1) of the FOI Act, the VCAT erred in failing to take into account the likelihood of the Appellant publicly disclosing the information in the Documents if those documents were released to him under the FOI Act”.
The notice of appeal sought orders pursuant to s 148(7) of the VCAT Act remitting the proceeding to the Tribunal to be heard and decided again, by a differently constituted Tribunal, in accordance with law, and with the hearing of further evidence.
I note that counsel for the respondent sought an order that if the matter were remitted, the Tribunal be directed to consider the respondent’s alternative position, namely that the documents were also exempt under s 35 of the Act. Counsel for the appellant conceded that the Court has the power to make such a direction, but submitted that it was not appropriate. In my view, it is not necessary to make such a direction. If the matter is remitted, the Tribunal will no doubt consider the respondent’s submissions as to any exemptions under s 33 and, if necessary, under s 35 as well. But as the point under s 35 may not arise, I do not consider it appropriate to direct that the Tribunal consider it.
The FOI Act
It is convenient to refer briefly to the relevant provisions of the FOI Act.
Section 3 relevantly provides as follows:
“3. Object of Act
(1)The object of this Act is to extend as far as possible the right of the community to access to information of the Government of Victoria and other bodies constituted under the law of Victoria for certain public purposes by –
(a)making available to the public information about the operations of agencies and, in particular, ensuring that rules and practices affecting members of the public in their dealings with agencies are readily available to persons affected by those rules and practices; and
(b)creating a general right of access to information in documentary form in the possession of Ministers and agencies limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies.
(2)It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in sub-section (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.”
The “general right of access to information” referred to in s 3(1)(b) is provided for by s 13 as follows:
“13. Right of access
Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to -
(a)a document of an agency, other than an exempt document; or
(b)…”
It was common ground that the respondent is an agency for the purposes of the FOI Act[3]. As counsel for the appellant noted, s 11 of the Freedom Of Information Act 1982 (Cth) (“the Commonwealth Act”) is equivalent to s 13 of the FOI Act, however s 11(2) of the Commonwealth Act also provides that “Subject to this Act, a person’s right of access is not affected by (a) any reasons the person gives for seeking access; or (b) the agency’s or Minister’s belief as to what are his or her reasons for seeking access.” There is no such provision in the FOI Act.
[3]See s 5 of the FOI Act.
Section 17 provides that a person who wishes to obtain access to a document shall make a request in writing to the relevant agency or Minister, and the request shall provide sufficient information to enable the agency or Minister to identify the document. The applicant must pay a prescribed application fee unless that fee is waived.
Section 20(1) provides that “Subject to this Act”, where a request is duly made to an agency for access to a document, and any charge required to be paid has been paid, “the person shall be given access to the document in accordance with this Act”. Section 20(2) provides that “An agency or Minister is not required by this Act to give access to a document at a time when the document is an exempt document”.
Section 21 provides that “An agency or Minister shall take all reasonable steps to enable an applicant to be notified of a decision on a request as soon as practicable but in any case not later than 45 days after the day on which the request is received by or on behalf of the agency or Minister.” An agency may grant, defer, or refuse access to the document sought.
Where an agency grants access, s 23(1) sets out the different forms of access to documents which can be given, which include the applicant being given a reasonable opportunity to inspect the document, provision by the agency or Minister of a copy of the document, and (where applicable) provision of a written transcript of words recorded or contained in a document. Counsel for the appellant pointed out that s 23(1) does not contemplate that access would be granted by some form of public dissemination, for example by placing the documents on the internet or including them on a register available for public inspection. Rather, said counsel, access is to the individual who made the request.
An agency may refuse access on a number of grounds. Section 27A has the effect that a document may be exempt under more than one ground of exemption, and that the categories of exemption are independent of each other. For the purposes of this appeal, the relevant ground of exemption is found in s 33, which relevantly provides as follows:
“33. Document affecting personal privacy
(1)A document is an exempt document if its disclosure under this act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).
(2)…
(2A)An agency or Minister, in deciding whether the disclosure of a document under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person, must take into account, in addition to any other matters, whether the disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person.
…
(9)In this section –
“information relating to the personal affairs of any person” includes information -
(a)that identifies any person or discloses their address or location; or
(b)from which any person’s identity, address or location can reasonably be determined.”
If an agency refuses to grant access to a document, s 51 provides that the applicant may apply to the principal officer of the agency for internal review of the decision. If the applicant is not satisfied with the internal review decision, he or she may apply to the Tribunal under s 50 for review of the decision. Alternatively, s 53 provides that where an applicant has not received notice of a decision within the time period specified in s 21, the principal officer of the agency shall, for the purpose of enabling an application to be made to the Tribunal under s 50, be deemed to have made, on the last day of the relevant time period, a decision refusing to grant access to the document. That is what occurred in the present case. The Tribunal conducts a merits review of the decision. Section 55(2) provides that the agency has the onus of establishing that the decision was justified or that the Tribunal should give a decision adverse to the applicant.
I note also that s 53A applies where an agency refuses access to a document on the basis that it is an exempt document under s 33(1) (as it would involve the unreasonable disclosure of information relating to the personal affairs of any person), and there is an application for review by the Tribunal. In effect, s 53A requires the agency to give written notice to the person to whom the information relates, informing them of their right to intervene in the review and requesting the person to inform the Tribunal of whether they intend to intervene. The Tribunal has published a Practice Note dealing with this procedure, to which counsel for the appellant referred. It provides that if a person does not wish to intervene in the review proceeding, they may nevertheless inform the Tribunal that they wish their personal information to remain confidential, or alternatively that they consent to the release of their personal information.
Background facts
Counsel were essentially agreed as to the relevant facts. Any relevant differences in the facts are explained below.
The appellant is a Detective Sergeant of the Victoria Police. On 29 April 2003 the ESD commenced an investigation to establish whether the appellant had attempted to pervert the course of justice by hindering a police investigation into allegations that an Anglican Priest, Father Alan Sapsford[4], had sexually assaulted former altar boys. The ESD investigation was a result of allegations by two police officers to the effect that the appellant had interfered in the Sapsford investigation. On 7 May 2003, the Australian Broadcasting Corporation televised a story in its 7.30 Report program concerning the allegations against Sapsford. The story featured a person (“the complainant”) who claimed that the appellant had interfered in the police investigation of Sapsford. Two other media outlets also took up the story. On 10 October 2003 the ESD investigation found that the allegations against the appellant were “not substantiated”[5]. The ESD later changed the finding to “unfounded”[6] but declined to make a finding that the appellant was “exonerated”[7]. The ESD refused the appellant’s request to commence a formal investigation into the conduct of the two officers who had alleged that the appellant had interfered in the Sapsford investigation.
[4]Sapsford died on 15 March 2003.
[5]This expression is defined by the respondent’s Discipline Investigation Manual to mean that “the weight of available evidence does not support the account of events as described by the complainant, but is weighted in favour of the account given by the police members”.
[6]This expression is defined by the respondent’s Discipline Investigation Manual to mean that “the available evidence clearly establishes that there are no grounds for the complaint whatsoever”.
[7]The Discipline Investigation Manual defines “exonerated” as meaning that “the evidence clearly establishes that a particular member is not involved in a complaint, or is completely free from blame”.
On 5 February 2004 the appellant approached the complainant in a school car park and a conversation took place. The appellant secretly tape recorded the conversation, which was played to the Senior Member during the Tribunal hearing. The Senior Member stated that the contents of the tape do not suggest that the complainant was in any way hindered, coerced or intimidated during the conversation, which appeared to be completely voluntary by both parties. The Senior Member said that it appeared that “the purpose of the discussion was whether the allegations made against the [appellant] in the 7.30 report were correct” and that the appellant “was keen to have the complainant admit that the allegations against him in relation to the matters discussed in the 7.30 Report were incorrect”.
On 6 February 2004, the complainant spoke to Detective Sattler from the ESD about the car park meeting. Detective Sattler recorded in her log that the complainant had said “I don’t want anything done, I’m just ringing to let you know”, and that Detective Sattler had advised the complainant that the appellant “had not committed any offence”.
On 6 October 2004 the complainant wrote to Detective Sattler. On 13 October 2004 Detective Sattler informed the complainant by letter[8] of what could be done if the complainant wished to take steps in relation to the car park meeting.
[8]Document 1 sought by the appellant.
On 23 March 2005 there was a further meeting between the appellant and the complainant at a bakery. The Tribunal found that the meeting was coincidental, and while the complainant wished the appellant “A Happy Easter” at the end of the conversation, it appeared from the complainant’s subsequent correspondence that “she was concerned about the events of that meeting”. On 29 March 2005 the complainant made a complaint to Superintendent Johns in relation to the car park meeting and the bakery meeting[9]. There was an email exchange[10] between the complainant and Superintendent Johns on 5 April 2005. The complainant wrote a letter to “the Superintendent, Division 4”, dated 5 April 2005[11]. The complainant emailed a final complaint to Superintendent Johns on 7 April 2005[12]. This led Superintendent Johns to make a formal report of the complaint to the ESD[13]. The ESD assigned Inspector Johnson to investigate the complaint. On 1 August 2005, Inspector Johnson spoke with the complainant and took notes of that conversation[14]. On 28 September 2005 Inspector Johnson met with the appellant. Inspector Johnson provided him with considerable detail about the complaint and also freely used the complainant’s name throughout the meeting. Counsel for the appellant contended that, as a consequence, the appellant has been informed of the substance of the complaint, and knows the identity of the complainant. By letter dated 28 April 2006, Inspector Johnson informed the appellant that the complainant’s allegations against him were found to be “not substantiated”[15]. He further advised that the appellant’s request that the complainant be investigated for making a false report to police “will not happen based on legal advice from [ESD] and Office of Police Integrity”.
[9]Document 2 sought by the appellant.
[10]Document 3 sought by the appellant.
[11]Document 4 sought by the appellant.
[12]Document 5 sought by the appellant.
[13]Document 6 sought by the appellant.
[14]Document 7 sought by the appellant.
[15]Inspector Johnson expressly named the complainant in this letter.
The appellant’s FOI request
On 7 May 2006 the appellant wrote to the respondent requesting a “full and complete copy” of all documents relating to investigations conducted by Detective Sergeant Sattler and Inspector Johnson regarding allegations made by the complainant on or about 5 February 2004 and 29 March 2005. As the appellant did not receive notification of a decision within 45 days, on 4 July 2006 he applied to the Tribunal for review of the respondent’s deemed refusal to give him access to the documents he had requested. After the appellant lodged his application, the respondent granted him full or partial access to a number of documents. At the final hearing before the Tribunal 22 documents remained in dispute. As I said earlier, there are now only seven documents in dispute.
The Tribunal decision
It is not necessary to set out the submissions made to the Tribunal, however I note that the appellant, who appeared in person, submitted to the Tribunal that disclosure of the documents would not be disclosure to the world at large, but rather to him personally and that he would not “mistreat such disclosure”. The appellant said that he “has had possession of some very sensitive documents for some time which were released to him by the respondent’s FOI Unit and these have remained confidential”. He noted that he is “a professional Police Officer who understands sensitive and confidential information”.
After setting out the background facts and relevant legislative provisions, the Senior Member dealt with Documents 1 to 7 together. He concluded that the documents contain information which would identify people, hence they clearly fell within the definition of “personal affairs” as referred to in s 33(9). He then referred to the appellant’s argument that the Tribunal was required to balance two competing interests, being (1) the individual’s right to personal privacy and (2) the basic purpose of the Act which is to extend, as far as possible, the right of the applicant to access information which relates to him, which is in the possession of the respondent. The Senior Member said:
“21.What I believe the applicant was getting at by this statement was that I must balance the interest that he was referring to, to determine whether the release of the information would be “unreasonable” within the meaning of s 33(1): Pizer (formerly authored by Kyrou) in Victorian Administrative Law at paragraph 2351 states:
In essence the test of ‘unreasonableness’ involves the balancing of two competing interests. The balance is between the interest in protecting an individual’s privacy on the one hand, and the interest in disclosure of information on the other. If the interest in protecting privacy outweighs the interest in disclosure, the document in question is exempt because its disclosure is considered to be ‘unreasonable’. But if the interest in protecting privacy does not outweigh the interest in disclosure, the document is not exempt because its disclosure is not considered to be ‘unreasonable’.
22.It is also clear that it is unreasonable to disclose personal information where the person to whom the information relates does not want it disclosed (see Page v Metropolitan Transit Authority (1988) 2 VAR 243 at 245-246.) It is clear that the complainant does not want the information in these documents disclosed by her response to a s 53A notice which was given.”
The Senior Member then noted the appellant’s submission that “as he believes that he knows the identity of the complainant as a result of other documents which have been released to him, it would not be unreasonable to release [Documents 1 to 7] to him” and that “[h]e also states that he has an interest in this information because he wants a finding against him in relation to the ESD enquiry “exonerated” and a finding in relation to the reports against the complainant of “false report” which he says is a crime”. The Senior Member said:
“24.I thus accept that the applicant has an interest in having this information released to him. However, in my view, it is clear that a release of these documents is a release to the world at large, not just to the applicant.”
The Senior Member referred to Traynor v Melbourne Metropolitan Board of Works (No 2)[16], and quoted a passage from the decision of Coghlan DP in Beauchamp v Department of Education[17], to the effect that documents released under FOI legislation are “released to the world at large”. He continued:
“26.Therefore, what I must consider is not whether the applicant knows the identity of the person or persons concerned but whether it would be unreasonable to release these documents because the world at large would then know the identity of the persons concerned. Looking at the privacy issue in this light, in my view, it would be unreasonable to release these documents. I take that view after having balanced the applicant’s right to know and the importance of transparency, as against protecting personal information of the person or persons mentioned in the document. In doing that exercise, I have come to the conclusion that it would be unreasonable to release these documents and thus, in relation to documents 1 to 7 inclusive, I find that they are exempt pursuant to s 33 of the Act. I further note that the non-personal information contained in documents 1 to 7 is so intertwined with the personal information that further release of parts of these documents would not be practicable or possible.”
[16](1988) 2 VAR 358.
[17][2006] VCAT 1653.
Having decided the matter on the basis of the exemption in s 33, the Senior Member did not consider the respondent’s alternative submission that the documents were also exempt under s 35 in that they had been obtained in confidence.
Submissions
Appellant
Counsel submitted that the principal question in the appeal concerned the proper construction of s 33, that is to say when determining whether disclosure of information relating to the personal affairs of a person would be unreasonable, is the decision maker required to assume that the information will necessarily be disclosed to the world at large? He submitted that, by answering that question in the affirmative, the Tribunal erred in law. He submitted that it must not be assumed that disclosure under the FOI Act will always be to the world at large. Rather, the preferable construction of s 33 is that the question of unreasonableness of disclosure must be determined by evaluating all the circumstances of the case, which requires the decision-maker to assess in each case the likelihood of the applicant disclosing the documents publicly if they were released to him or her. Counsel advanced seven propositions in support of his argument:
First, the Tribunal’s approach was based on a fiction, namely that just because the FOI Act places no restrictions on the use to which an applicant may make of documents to which he or she is given access (that is, there is nothing to prevent a successful applicant from disclosing a document to the world at large), the applicant will therefore disclose to the world at large. In contrast, the appellant’s proposed interpretation of s 33 recognises that many applicants will not disclose documents they receive. The likelihood of disclosure will depend upon factors including the sensitivity of information in the document, what the document says about the applicant and other people, the applicant’s relationship with the other people, and the applicant’s identity and motives. While a journalist must be regarded as likely to disclose a document, other people may be unlikely to disclose. The Tribunal’s approach ignores this distinction and treats all applicants in the same way. Counsel accepted that in the absence of any standing requirement in the FOI Act, all applicants must be treated in the same way at the threshold, but he submitted that in considering whether a document is exempt under s 33, the Tribunal must analyse whether in all the circumstances disclosure would be unreasonable. This was recognised in Page v Metropolitan Transit Authority[18] which held that the decision-maker should have regard to the applicant’s interest in the information. Counsel acknowledged that it may be unreasonable to disclose to one applicant, but not to another.
[18](1988) 2 VAR 243.
Secondly, nothing in the FOI Act states that the question of unreasonableness must be determined on the basis that the document is presumed to be disclosed to the world at large. On the contrary, disclosure is never to the world at large, but rather to a particular applicant in one of the forms of access set out in s 23, which does not contemplate public dissemination. It follows that an agency that has disclosed a document to an applicant is not bound to disclose that document to a second applicant[19]. Whether that document should be disclosed to the second applicant depends upon all the circumstances. One of the critical factors is the extent to which the first applicant has disclosed the document. If he or she has disclosed the document publicly, it is unlikely to be unreasonable to disclose the document to the second applicant. But if the first applicant has kept the document confidential (and there is no reason to believe that he or she is likely to disclose the document in the future), the first applicant should not be deemed to have disclosed the document to the world at large. And, depending upon all the circumstances, it may well be appropriate for the agency to refuse the second applicant access to the document.
[19]I note that in Beauchamp v Department of Education, Coghlan DP stated (at [44]) in the passage quoted by the Senior Member, that “once there has been a decision that a document is determined not to be exempt under s 33, should anyone else make an application, the decision must be the same. Unlike a document obtained in court proceedings where there is an implied undertaking a document will not be used for any other purpose, no such undertaking applies when a document is released under the Act”. Clearly, the appellant’s submission challenges the correctness of this decision. I refer to this issue below.
Thirdly, no binding authority required the Tribunal to adopt the interpretation that it did. Counsel referred to three cases cited by the respondent as authority for the proposition that disclosure under the Act was to be assessed as if it were disclosure to the world at large: Metropolitan Ambulance Service v Victoria Police[20], Knight v Secretary to the Department of Justice[21] and News Corporation Ltd v National Companies and Securities Commission[22]. Counsel submitted that none of these cases stood for such a general proposition. In Metropolitan Ambulance Service Warren J (as her Honour then was) observed that if she dissolved an injunction she had made earlier that day to prevent the release of documents under the FOI Act, the documents “would immediately be available to the world at large”. However, submitted counsel, those observations must be understood in the context of the particular case, where the applicants were the shadow health minister and a journalist respectively, the matter was politically contentious and an election was imminent. Having regard to their identity, it was highly likely that those two applicants would publicly disclose the information in the documents, hence her Honour was correct to say that disclosure would be, in effect, disclosure to the world at large. But it did not follow that in every case, the decision-maker must assume that disclosure of the documents in question would necessarily be disclosure to the world at large. In Knight, the observation of Kellam J that disclosure of a document “would be to the world at large” was clearly obiter and was not the subject of argument before his Honour. As to News Corporation Ltd, a decision of the Full Court of the Federal Court, counsel submitted that the case was distinguishable as the position in the Federal jurisdiction is different, as there is a right of access available to every person, and it is therefore appropriate to consider each claim for exemption on the basis that any person who might require access to the document gets access to the document. The applicant’s interests in the information are irrelevant and must be ignored, which is why Woodward J said[23] that “access for one is access for all”. Counsel emphasised that the Federal approach has never been adopted in Victoria, and he referred to s 11(2) of the Commonwealth Act which provides that the applicant’s reasons for seeking access are to be ignored.
[20][1999] VSC 354.
[21][2003] VSC 341.
[22](1984) 57 ALR 550.
[23]At 559.
Fourthly, counsel submitted that the appellant’s interpretation of s 33 is consistent with the well-known approach to interpreting the FOI Act, namely that the rights given by the Act should be construed liberally and the exceptions narrowly. Counsel referred to the decision of the Full Court in Ryder v Booth[24] where Gray J made an observation to that effect[25]. Counsel referred to Victorian Public Service Board v Wright[26] where the High Court[27] observed that “it is proper to give to the relevant provisions of the Act a construction which would further, rather than hinder, free access to information”[28]. Counsel also referred to Accident Compensation Commission v Croom[29] where Young CJ observed[30] that “Presumably in light of s 3 of the Act, the court should lean in favour of disclosure. In other words, the exemptions should be narrowly construed, although of course, in the end all that the court is faced with is a question of statutory construction”. Counsel submitted that the Tribunal’s approach would enlarge the scope of the exemption, as more documents will be exempt if, irrespective of the circumstances, the question under s 33 is always whether it would be unreasonable to disclose a document to the world at large. The decision-maker would be forced to assume that granting access to the document would cause the greatest invasion of privacy. But on the appellant’s interpretation, the decision-maker would not be required to make that assumption, as he or she must consider all the circumstances, including the likelihood that the particular applicant would disclose the documents publicly. In short, the Tribunal approach would lead to fewer documents being disclosed to applicants, which was contrary to the purpose of the legislation.
[24][1985] VR 869.
[25]At 877.
[26](1986) 160 CLR 145
[27]Gibbs CJ, Mason, Wilson, Deane and Dawson JJ.
[28]At 153.
[29][1991] 2 VR 322.
[30]At 323.
Fifthly, counsel submitted that the appellant’s interpretation best promotes the object of the Act, relevantly that the general right of access to information is to be limited only by exemptions necessary for the protection of the private affairs of persons. And while the protection of privacy is important, the protection in s 33 is not absolute and is specifically limited to unreasonable disclosures. The Tribunal’s approach goes beyond what is necessary to protect against unreasonable disclosures. Rather, protection against unreasonable disclosure is best afforded by a proper consideration of all the circumstances of the case and not just some of them.
Sixthly, and contrary to what the respondent contends, the requirement to assess whether the applicant might disclose the document publicly is not onerous. If the applicant were a journalist, member of parliament, or known political agitator, the decision-maker would be well entitled to find that it is highly likely that the applicant would disclose the documents publicly if they were released to him or her. Further, the decision-maker (be it an agency or the Tribunal) already considers the interests and purpose of the applicant in seeking access to the document. There is no reason why the decision-maker cannot ask the applicant what he or she intends to do with the documents, and while the decision-maker does not have to accept the applicant’s response at face value, the decision-maker has to turn its mind to the question and not assume that the documents would be disclosed to the world at large. Counsel said that he was not suggesting that the decision-maker must form a concluded view as to the likelihood of disclosure, “all we are suggesting is they must turn their mind to the question”.
Seventhly, the appellant’s approach avoids absurd results that parliament simply could not have intended, such as the present case. The appellant is an experienced police officer who understands and appreciates the need to keep documents confidential. He has already been given a document which names the complainant, and has been informed of the substance of the complaint against him, yet the Tribunal held that the documents are exempt because disclosure would be to the world at large. Counsel then provided two hypothetical examples which, on the Tribunal’s approach, he submitted would lead to documents being exempt from disclosure, although that would be an absurd result. It is only necessary to set out the first example:
“Suppose Julie is an eight year old girl, exhibiting some difficult behaviour. Her father, Stephen, thinks that Julie may have a psychiatric problem which may be genetically inherited from her maternal grandfather, who suffers from a serious psychiatric condition and attempted suicide several times. The grandfather cannot now be located. In an effort to help Julie, Stephen has sought access to the grandfather’s files, being the psychiatric records held by the Department of Human Services.”
Counsel submitted that, on the Tribunal’s approach, the question of unreasonableness must be assessed on the basis that the documents were to be disclosed to the world at large. On the appellant’s approach, the question must be assessed by reference to all the circumstances, including the likelihood that Stephen, being the father, would disclose the psychiatric records of the grandfather to the general public if they were disclosed to him. Counsel submitted that it would be absurd if Stephen were denied access to those records on the basis that they were deemed to be disclosed to the world at large.
Having dealt with the construction argument (which encompassed grounds 2 and 3) counsel stated that he relied on his written submission as to the fourth ground of appeal, namely that the Tribunal erred by failing to take into account a relevant consideration that it was bound to take into account, namely the likelihood of the appellant publicly disclosing the information in the documents if those documents were released to him under the Act. Further, submitted counsel, that failure materially affected the Tribunal’s decision that the documents were exempt under s 33 of the Act.
Respondent
Counsel submitted that the critical issue for determination was whether the Tribunal was wrong in stating that the release of documents to the appellant would be a release to the world. Counsel emphasised that the documents sought by the appellant contained personal information of another person, rather than personal information of the appellant. The Tribunal’s decision was to be understood in that context. The Tribunal was not dealing with a hypothetical question about what must necessarily be the case in all cases, but rather the facts of the specific application before it.
Counsel emphasised the public nature of the disclosure of information under the FOI Act. She submitted that the FOI Act contemplates that release of documents under s 20 (pursuant to a request under s 17) will be a release into the public domain, even if the release is, as it must be, to a particular individual. In particular, where personal information is released pursuant to a request under s 17, and the personal information is not the personal information of the applicant, the information must be taken to have been released into the public domain, that is to the world at large. That is so for two reasons. First, conceptually the Act provides for the release of information to the public, to members of the public, not to particular persons or classes of persons. Secondly, and consistent with the Act being about public disclosure, not private disclosure to individuals, the act imposes no constraints and provides no mechanisms for the imposition of any constraints on the further dissemination of information once it has been released under the Act, so as a matter of practical reality the recipient of the information can do with it as she or he pleases. As to the public nature of the Act, counsel referred to Colakovski v Australian Telecommunications Corporation[31] where Lockhart J stated[32] (in relation to the Commonwealth Act, and after having referred to the right of “every person” to obtain access to documents under s 11) that the exemptions necessary for the protection of “personal affairs” and “business or professional affairs” are themselves public interest considerations, that is to say that it is not in the public interest that the personal or business of professional affairs of persons are necessarily to be disclosed on applications for access to documents. His Honour continued: “The exemption from disclosure of such information is not to protect private rights; rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access”.
[31](1991) 29 FCR 429.
[32]At 438.
Counsel submitted that the appellant’s submission rests on a misconception of the FOI Act, namely that release of a document to an individual is not release to the public, and would only be release to the public if the applicant were to go out and publish it more widely. That is not consistent with the scheme of the FOI Act. Counsel emphasised that one of the central purposes of the FOI Act is to enable information held by the government to be made available to the public to ensure that government is open and accountable, and regardless of who requests the information, it is still a release of information to the public and the FOI Act is directed to that end. An exception to this is Part V of the FOI Act which deals with the amendment of personal records, because this part is not concerned with the regulation of how information is to be made publicly available. As to the public nature of the Act, counsel referred to the preamble to the FOI Act describing “An Act to give the Members of the Public Rights of Access to Official Documents of the Government of Victoria and of its Agencies and for other purposes”. She referred to the object of the FOI Act being “to extend as far as possible the right of the community to access to information of the Government of Victoria”, and emphasised the collective noun “community”. She referred to s 7, entitled “Publication of information concerning functions etc. of agencies”, as putting in place the procedures that the legislature deemed necessary to make information available to people about the rules and practices of agencies and the type of information they hold.
Counsel next referred to the legally enforceable right of access conferred by s 13 of the FOI Act on “every person”. She emphasised that “every person” here means every member of the community, as the right in s 13 is “a right conferred on the general public. It is a right to the public disclosure of information by the government”. And while a request for a document must be made under s 17 by an individual, it is not made by an individual having a particular standing or interest. The characteristics of the person who makes the request are irrelevant, other than that the person is a member of the community. Thus, when the appellant made his request for access, he made it in his capacity as a member of the public, not as a police officer who had been the subject of an internal investigation. In short, the identity of the applicant, or what they intend to do with the document, is not relevant in the enforcement of the right to access. Counsel referred to the Second Reading speech for the FOI Bill where the Premier relevantly stated that “A critical feature of the Bill is that the right of access is open to every person and, furthermore, a person seeking access need not show any personal interest in the documents requested”. Counsel then referred to the hypothetical example given by counsel for the appellant. She submitted that “it may be that … the particular interests that those people have in that information might be able to be taken into account … the Tribunal in those circumstances can and does take into account an interest of that kind in the balancing exercise or in the evaluative exercise. But at the same time it takes into account that they are members of the public, and that that information is in the public domain as soon as it is given to them. That in itself is not to say that they won’t get the information”. Counsel sought to distinguish between an interest that somebody might have in information (which the Tribunal can take into account) from “the likelihood that they are not going to publish it” (which the Tribunal cannot take into account). Counsel submitted that given the Premier’s statement in his Second Reading speech quoted above, it was not necessary for the legislature to enact a provision like s 11(2) of the Commonwealth Act. She submitted that, in any event, the absence of such a provision from the FOI Act does not support an argument that the likelihood of the applicant disseminating the information in the future is a consideration that is bound to be taken into account by a decision-maker. As to this, the person to whom the information is released may not initially intend to publish it widely, but they may change their mind. The decision-maker in these circumstances is bound to assume, especially in this very sensitive situation where the personal information of another person who does not want it released is to be released to a member of the public, that the information could be widely disseminated. Accordingly, the release of documents under s 20 to any person constitutes, both conceptually and practically, a release of those documents to the public or into the public domain. The legislature could not have intended that the ambit of the protection of personal information given by s 33(1) should be narrowed on the basis of the decision-maker’s assessment of the character of the applicant and the likelihood that he or she will further disseminate the information. But the mere fact that the decision-maker proceeds on the basis that that information released to an applicant is taken to be information in the public domain, does not mean that an application for release of documents must fail. Rather, it is a factor which the decision-maker takes into account in deciding what is reasonable or unreasonable.
Finally, counsel referred to the appellant’s stated reasons for seeking access to the documents, namely “I seek the requested information to clear the air regarding false allegations made to the respondent. Disclosure will hopefully assist in my quest in searching for the truth”. He added “I do not hide from the possibility that in the future I may pursue legal remedies for the injustices inflicted on me”. He also stated that “Public interest can assist in the exposure of misconduct. Misconduct cannot and should not be protected in civilised communities. Misconduct cannot be hidden forever; exposure may bring some justice and prevent further suffering”. And “The ESD investigation and the evidence gathered must now be transparent in view of evidence that false allegations were made”. Counsel submitted that in these circumstances, it was entirely appropriate and consistent with the structure and scheme of the Act for the tribunal to apply, as counsel for the appellant put it, “the high water mark” by which was meant that the Tribunal assumed that disclosure to the applicant would be disclosure to the world at large.
Decision
In the present case, the question before the Tribunal was whether disclosure of the documents would involve the unreasonable disclosure of information relating to the personal affairs of any person.
It is convenient to set out a passage from the decision of Judge Jones[33] in Page v Metropolitan Transit Authority concerning the nature of the issue raised under s 33 of the FOI Act[34]:
“What therefore has to be decided is whether disclosure is unreasonable. This requires a balancing of interests: the right to personal privacy of an individual whose personal affairs may be unreasonably disclosed by granting access to the information and the object of the Act to extend as far as possible the right of the community to access to information in the possession of Government or Agencies. More particularly, this balancing of interests requires a consideration of all the circumstances, including the interest that the applicant has in the information in question, the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. It is apparent that the purpose of s 33(1) of the Act is to prevent the unreasonable invasion of the privacy of third parties.”
[33]Then President of the Administrative Appeals Tribunal of Victoria.
[34]At 245 to 246 (references omitted).
As his Honour makes plain, the question whether a document is exempt under s 33 must be decided having regard to all relevant circumstances. This involves a balancing exercise (or “evaluative exercise” as counsel for the appellant put it) in which the right to privacy of people referred to in documents is considered as against the general right of access to information conferred by the Act. No single factor is determinative, as the question is decided by reference to all relevant circumstances. In this regard, the Senior Member was incorrect to state that “it is unreasonable to disclose personal information where the person to whom the information relates does not want it disclosed”. The fact that the complainant in this case did not want the information in the documents disclosed was a relevant consideration to be taken into account, but was not determinative. Nevertheless, I consider that this incorrect statement was a careless slip rather than a material factor leading to the decision that the Tribunal made.
The real issue is whether, by concluding that a release of the documents was a release to the world at large, and that it would be unreasonable to release the documents “because the world at large would then know the identity of the persons concerned”, the Tribunal misdirected itself as to the task required by s 33. It should be noted that the question raised by s 33 is not, in terms, whether there would be disclosure to the world at large, but rather whether disclosure of the documents in question would involve the unreasonable disclosure of information relating to the personal affairs of any person. In answering that question, a relevant consideration for the decision-maker is the extent of the likely disclosure. In some cases, it may conclude that disclosure “to the world at large” is likely. In some cases, it may conclude that such disclosure is unlikely. In other cases, it may not be able to reach any conclusion as to the extent of likely disclosure. Nevertheless, the question of the extent of disclosure is a matter which the decision-maker must have regard to, in order to decide whether disclosure of the documents in question would involve the unreasonable disclosure of information.
It is plainly correct that once documents are released to an applicant under the FOI Act, the Tribunal has no control over the use that the applicant makes of those documents. In short, an applicant can disseminate the documents to the world at large. However, it does not follow as a matter of logic that the applicant will disseminate the documents widely, or at all. Further, in my view there is nothing in the FOI Act or the authorities that required the Tribunal in this case to assume, without reference to the appellant, that disclosure to the appellant would effectively be disclosure to the world at large. There are cases, such as Metropolitan Ambulance Service v Victoria Police, where the characteristics of the applicants are such that it is open to conclude that disclosure to the applicants will effectively be disclosure to the world at large. But such a conclusion would arise from the particular facts before the decision-maker, rather than an underlying assumption that because any person who receives documents under the FOI Act can disseminate them, he or she will disseminate them.
I note that in concluding that disclosure to the appellant was disclosure to the world at large, the Senior Member relied on Traynor v Melbourne Metropolitan Board of Works (No 2), and Beauchamp v Department of Education. In my view, neither case stands for such a broad proposition. As to Beauchamp v Department of Education, I consider that the statement in that case that “once there has been a decision that a document is determined not to be exempt under s 33, should anyone else make an application, the decision must be the same” is incorrect. It does not follow that just because a document has been released to one applicant, it must be released to any subsequent applicant. Rather, the decision-maker must consider each individual application for access to a document on its own merits. The decision-maker may conclude that the characteristics of a second or subsequent applicant are such that release to those people would involve the unreasonable disclosure of information relating to the personal affairs of any person. It must be remembered that, in determining whether a document is exempt under s 33, the decision-maker must have regard to all the relevant circumstances, including the applicant’s particular interest in having information released to him or her. That is a factor weighing in favour of disclosure. Conversely, the extent to which the applicant is likely to disclose the information is a relevant matter for the decision-maker to consider when assessing whether disclosure of the documents would involve the unreasonable disclosure of information.
In any event, the present case does not concern an application for access by the appellant in circumstances where the documents have already been released to an earlier applicant. Rather, the question is whether, in applying the exemption provision in relation to the appellant, the Tribunal misdirected itself.
I note that in seeking to uphold the Tribunal’s decision, the central point made by counsel for the respondent was that the FOI Act contemplates “public disclosure” of information, essentially for public purposes, and the FOI Act imposes no constraints on what an applicant can do with a document obtained under the FOI Act. It thus followed, she submitted, that the Tribunal was correct to state that disclosure of information to the appellant was to be taken as being disclosure to the world at large, or a release of information into the public domain. In essence, counsel for the appellant said in reply that the submissions of the respondent conflated the question of the right to request access to a document, with the question of whether, in a given case, the document should be exempt under s 33.
I agree with counsel for the appellant. The Act provides that every person has a legally enforceable right to obtain access to a document, other than an exempt document. In that sense, there is no requirement that the applicant have standing or any special interest in the document. In effect, as counsel for the respondent said, the characteristics of the person making the request are irrelevant. However, the right is to obtain access to a document other than an exempt document. In order to determine whether a requested document is exempt, the decision-maker must apply the relevant exemption provision. At this stage of the enquiry, the characteristics of the person making the request are relevant. Counsel for the respondent conceded this, in that she accepted that in relation to the hypothetical examples “it may be that … the particular interests that those people have in that information might be able to be taken into account … the Tribunal in those circumstances can and does take into account an interest of that kind in the balancing exercise or in the evaluative exercise”. Further, she accepted that this is a result of the balancing exercise referred to in Page. Nevertheless, counsel submitted that there was a difference between taking into account the applicant’s interest in the documents, and assessing the likelihood that the applicant would disseminate the documents.
In my view, there is a difference between these considerations. However, the fact remains that the decision-maker must decide whether disclosure of the documents would involve the unreasonable disclosure of information relating to the personal affairs of any person. In order to decide this question of reasonableness, it is necessary that the decision-maker have regard to, among other things, the likelihood that the applicant will disclose the information.
In the present case, the Senior Member did not have regard to the likelihood that the appellant would (or would not) disclose the information. Rather, he concluded that releasing the documents to the appellant was a release to the world, which led him to state the issue as being “whether it would be unreasonable to release these documents because the world at large would then know the identity of the persons concerned”. In my view, the Tribunal erred by failing to take into account a relevant consideration, being the likelihood of the appellant publicly disclosing the information in the documents if those documents were released to him under the FOI Act. Ground 4 is thus made out. In my views grounds 2 and 3 are also made out, as the Tribunal misconstrued s 33 in the manner identified at [4] above. The appeal will therefore be allowed and the matter remitted to the Tribunal, constituted by a different member, for further hearing and determination in accordance with these reasons.
I do not overlook the suggestion by counsel for the respondent that, given the appellant’s material before the Tribunal indicated that he was likely to widely disseminate any documents he obtained in his quest to clear his name, it was “entirely appropriate” that the Tribunal treat the release of documents to the appellant as effectively being a release to the world at large. Nevertheless, counsel did not develop the submission before me, and even if I were of the view that such a conclusion was open to the Tribunal, it does not follow that the Tribunal was bound to arrive at that result. In effect, the Tribunal misconstrued the exemption provision by failing to have regard to a relevant factor. In these circumstances, the matter must be remitted.
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