Last Updated: 21 January 2009
COURT OF APPEAL
No 3712 of 2008
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WHERE HELD:
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DATE OF HEARING:
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DATE OF JUDGMENT:
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MEDIUM NEUTRAL CITATION:
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ADMINISTRATIVE LAW – Freedom of information – Exempt documents
– Whether disclosure of document would involve unreasonable
disclosure of
personal affairs – Whether relevant to consider likely dissemination of
document if released – Whether
decision-maker must assume disclosure to
world at large – Freedom of Information Act 1982 (Vic), s
33(1).WORDS AND PHRASES – ‘Involve’.
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APPEARANCES:
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Counsel
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Solicitors
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For the Appellant
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Dr K Emerton SC
and Ms M J Richards
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Victorian Government Solicitor’s Office
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For the Respondent
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Mr J D Pizer
and Mr C Young
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Clayton Utz
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1 Under s 13 of the Freedom of Information Act 1982 (Vic), every person has a legally enforceable right to obtain access (in accordance with the Act) to a document of an agency or an official document of a Minister, other than an exempt document. Part IV of the Act identifies, and defines, various categories of exempt document. Relevantly, under s 33(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 ...2 The issue which arises on this appeal is whether, for the purposes of deciding if the exemption applies, the decision-maker must – or alternatively may - consider the likelihood that the applicant will publish the document, or the personal information, to any other person(s). In my opinion, no such consideration is authorised, let alone required, by s 33(1). That is, the question whether the applicant is likely to publish the personal information is an irrelevant consideration for the purposes of deciding whether the exemption under s 33(1) applies to the document. My reasons are as follows.
Statutory construction: what would disclosure ‘involve’?
3 The issue before the Court is one of statutory construction.[1] Like the other provisions of Part IV, s 33(1) establishes a statutory criterion of exemption. The proper construction of the language of that exemption will determine both what is relevant and what is irrelevant to the decision-maker’s task of deciding whether the exemption applies.[2] (On review by VCAT, the Tribunal’s task is the same as that of the primary decision-maker).
4 Axiomatically, the task of construction must give primacy to the words which Parliament actually used. As the High Court has said repeatedly in recent years, the words of the statute must govern.[3] There is no substitute for giving attention to the precise terms in which the relevant provision is expressed.[4] With respect this must be so, as it is from the language of the relevant provision that Parliament’s intention must be discerned.[5] So to say is not to ignore context. On the contrary, as the High Court has also emphasised, the provision under scrutiny must be interpreted in its context in the Act as a whole.[6] This means giving due weight to the purposes of the Act and to the function of the particular provision in the legislative scheme. It also means paying attention to particular choices of language, for example by comparing and contrasting the language of the particular provision with language used elsewhere in the Act. As will appear, this last is of particular significance in the present appeal.
5 A person who wishes to exercise the right of access under s 13 does so by making a written request to the relevant agency or Minister.[7] The person who makes such a request is referred to in the Act as ‘the applicant’.[8] It follows that, when s 33(1) refers to ‘disclosure under this Act’, it is referring to disclosure of the relevant document to the applicant.
6 When – as in the present case – a document to which access is sought contains personal information (‘information relating to the personal affairs of any person’), the agency or Minister must, in accordance with s 33(1), address the following question:
Would the disclosure of this document to this applicant involve the unreasonable disclosure of that personal information?7 In my view, the critical word in s 33(1) is the word ‘involve’. The decision-maker must consider whether, and to what extent, disclosure of the document to the applicant would involve disclosure of personal information.[9] The word ‘involve’ when used in this way means ‘imply, entail, make necessary’[10] or, again, ‘contain implicitly; include as essential; imply, call for, entail’...[11] If A involves B, then there is a necessary connection between A and B. They go together. Thus, to say that ‘the disclosure of X involves the disclosure of Y’ is to say that the disclosure of X carries with it, necessarily, the disclosure of Y. Put another way, it is not possible to disclose X without disclosing Y.
8 Lindgren J in the Federal Court came to a similar conclusion – in a quite different statutory context – about the meaning of ‘involved’ when used in this sense. In Industry Research and Development Board v Coal & Allied Operations Pty Ltd,[12] the question was whether certain activities could be characterised as ‘systematic, investigative or experimental activities that involve innovation or technical risk ...’ His Honour said:
... [The] particular activity need be only a systematic, investigative or technical activity that “involves” innovation or technical risk. Of the various dictionary definitions of the verb “involve”, there are two that claim attention here: The more liberal meaning9 This notion – that disclosure of the document will have the necessary consequence of disclosing the personal information - may be contrasted with the quite different notion, employed in other provisions of the Act, of the likely or probable consequences of disclosure. For example, under s 29A(1) a document is an exempt document if its disclosure under the Act:
“3 To include, contain or comprehend within itself or its scope” (The Macquarie Dictionary (2nd revised ed, 1987))
“5 ... b include, contain, comprehend” (The New Shorter Oxford English Dictionary, 1993)
The more limited meaning
“1 To include as a necessary circumstance, condition or consequence; imply; entail” (The Macquarie Dictionary (2nd revised ed, 1987))
“5 ... c Contain implicitly; include as essential; imply, call for, entails.” (The New Shorter Oxford English Dictionary, 1993)
According to either meaning, an activity, although it must be “particular”, is not disqualified by reason only of the fact that in some respects it does not involve innovation or technical risk.
I think that the more liberal meaning is the one invoked by the definition. This seems to be in accord with the approach taken by the Full Court in Unisys and with the Act’s object of encouraging research and development activities. Moreover, the more limited meaning is applicable where the word “involved” is used in relation to an abstract concept, as in “construction involves work” or “power involves corruption”.[13]
would, or could reasonably be expected to, cause damage to – (a) the security of the Commonwealth or any State or Territory; or10 The question posed by this formulation is not whether disclosure ‘would involve’ – as a necessary consequence - damage to any of the nominated interests. Rather, the question is whether disclosure would be likely to cause – that is, have as its consequence, or bring about – such damage. To answer that question, the decision-maker must look beyond the immediate disclosure to the applicant and address contingencies, consider the probabilities. For that purpose, the decision-maker will need to consider what is known about the applicant and make a judgment about his/her likely use/dissemination of the document.
(b) the defence of the Commonwealth; or
(c) the international relations of the Commonwealth.[14]
11 Still other exemptions are expressed to apply where disclosure ‘would be likely to’,[15] or ‘would be reasonably likely to’,[16] lead to some particular result. For example, a document is exempt under s 31(1) if its disclosure under the Act:
would, or would be reasonably likely to – (a) prejudice the investigation of a breach or possible breach of the law or prejudice the enforcement or proper administration of the law in a particular instance;The mere disclosure of a document could not, by itself, create prejudice or danger of the kinds nominated. Both the terms in which the exemptions are expressed and the reference to ‘would be reasonably likely to’ require the decision-maker to decide whether any of these consequences would be likely to flow from disclosure of the relevant document. That means assessing the likelihood of dissemination and the likely use of the document, or the information in it, by the applicant or others to whom it might be published.
(b) prejudice the fair trial of a person or the impartial adjudication of a particular case;
...
(e) endanger the lives or physical safety of persons engaged in or in connection with law enforcement or persons who have provided confidential information in relation to the enforcement or administration of the law.
12 The same point is most pertinently illustrated by s 33(2A), which provides:
An agency or Minister, in deciding [for the purposes of s 33(1)] 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.[17]Plainly, the mere disclosure of personal information to an applicant could not, by itself, create any danger. The only way in which such a risk could arise would be as a result of steps taken consequent upon the disclosure of the information, whether by the applicant or by some other person to whom he/she imparted the information. To assess the likelihood of endangerment, therefore, the decision-maker would have to consider what the applicant was likely to do with the information if the document were released to him/her.
13 Section 33(2A) was inserted into the Act by amendment. Counsel for Mr Marke argued on the appeal that, on the proper construction of s 33(1), the amendment was unnecessary. According to the submission, the enquiry into likely consequences which s (2A) expressly mandates was already implicitly required by s 33(1). That is, in considering whether there would be unreasonable disclosure of the personal information, the decision-maker would in any event have to consider what the applicant might do with the personal information following release of the document and, specifically, consider whether that anticipated use would create a risk of danger to the life or physical safety of any person.
14 I reject this submission. The question to be addressed under s (2A) is expressed in quite different language from that in s 33(1). There is no reason to doubt that the choice of language, in both instances, was deliberate. As Parliament evidently recognised, without the addition of s (2A) there would have been no occasion under s 33(1) to ask the question which must now be addressed under s (2A), about the likely consequences of disclosure.
15 There is another linguistic contrast which should be noted. A number of exemptions are made applicable if disclosure of the document under the Act ‘would disclose’ or ‘would divulge’ information of one kind or another. For example, under s 30(1)(a) a document is exempt if its disclosure under the Act
would disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers, or an officer and a Minister, in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government.[18]Again, under s 29(b) a document is exempt if its disclosure under the Act
would divulge any information or matter communicated in confidence by or on behalf of the government of another country or of the Commonwealth or of any other State or Territory to the government of the State or Territory or a person receiving a communication on behalf of that government.[19]16 Why was this formulation not used in s 33(1) if Parliament’s concern was, as I consider it was, with disclosure of personal information to the applicant? I think the answer lies in Parliament’s perception, apparent from the Act itself, that personal information would very likely be caught up, or intermingled, with government information – for example, in the results of a survey of hospital admissions – and that disclosure of the government information might, unavoidably, ‘involve’ the disclosure of the personal information.
17 This perception is reflected in the language used by Parliament to define the relevant object of the Act. The relevant part of s 3(1) of the Act is in these terms:
(1) The object of this Act is to extend as far as possible the right of the community to access to information in the possession of the Government of Victoria and other bodies constituted under the law of Victoria for certain public purposes by – (a) ...18 Parliament’s concern regarding ‘private and business affairs’ was evidently focused on avoiding disclosure of information which agencies ‘collect and hold’ about individuals.[21] The informing idea appears to have been that the conferral of a general right of access to documents held by agencies should not have, as an unintended consequence or by product, the unreasonable disclosure of such private information. The language of s 33(1) can be seen to have addressed this concern. If the giving of access to a document would ‘involve’, to an unreasonable extent, disclosure of such information, the document is exempt.
(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.[20]
19 It follows that under s 33(1), the question – the only question – for the decision-maker is whether the disclosure of the personal information to the applicant, which would occur by virtue of the disclosure of the document ‘under this Act’, would be an unreasonable disclosure of that information. In the ordinary case, the decision-maker would need to consider for this purpose at least the following matters:
• the nature of the personal information;
• the sensitivity (past and present) of the personal information;
• any view about disclosure expressed by any person to whom the personal information relates;
• the relationship between the personal information and any other information in the document;
• how the personal information was obtained by the agency (whether voluntarily or involuntarily, and whether or not in confidence);
• whether and to what extent the personal information was already known to the applicant;
• the nature of any interest which the applicant can demonstrate in –
(i) the information in the document other than the personal information; or
(ii) the personal information.
Not a ‘balancing exercise’
20 In Page v Metropolitan Transit Authority,[22] the Tribunal[23] said that the decision about whether disclosure of personal information would be unreasonable –
requires a balancing of interests: the right to personal privacy of an individual ... and the object of the Act to extend as far as possible the right of the community to [have] access to information in the possession of the Government or Agencies” ...This balancing required a consideration of ‘all the circumstances’. The Tribunal then set out a list of matters similar to that in the preceding paragraph.
21 Since the decision in Page, the notion of a ‘balancing of interests’ has been consistently applied when the s 33(1) exemption is in issue. In the present case, both the Tribunal and the judge at first instance accepted that it was the correct approach.[24] The Tribunal cited the following passage from Victorian Administrative Law:[25]
In essence the test of “unreasonableness” involves the balancing of two competing interests. The balance is between the interest in protecting an individual’s right to privacy on the one hand, and the interest in disclosure of the 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 the privacy does not outweigh the interest in disclosure, the document is not exempt because its disclosure is not considered to be “unreasonable”.22 With respect, I do not think it is correct to treat s 33(1) as requiring a ‘balancing of interests’ between the right to privacy on the one hand and the statutory right of access to information on the other. The starting-point is that the applicant has a statutory right of access to the document unless it is adjudged to be an exempt document. In the case of s 33(1), the right of access may only be denied if the particular disclosure of personal information which would otherwise occur is ‘unreasonable’ in all the circumstances.
23 As I have suggested in [19], the decision as to whether that disclosure would be unreasonable is to be arrived at by examining matters peculiar to the applicant, the document and the personal information in question. This is not, in any relevant sense, a ‘balancing of interests’ in order to decide which intere[26] prevails.26 Rather what s 33(1) requires is the making of a judgment, based on a synthesis of the relevant features of the case at hand, about whether the disclosure of the personal information to the applicant would be unreasonable.
No assumption of disclosure ‘to the world at large’
24 The Tribunal proceeded on the assumption that, because a person who obtains access to a document under the Act is unconstrained as to the use which he/she may make of any information in the document, disclosure of the document to the applicant is disclosure ‘to the world at large’. This, too, reflected the accepted view in the Tribunal. In the present case, the Tribunal cited the following passage from Victorian Administrative Law:[27]
Accepting the relevance of the applicant’s interest in the information – or the purpose for which access is required – appears to be in direct conflict with the principle, which has been accepted on numerous occasions by VCAT (and by its predecessor, the AAT), that “reasonableness” must be considered as if the disclosure were to the world at large.25 The Tribunal continued:
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, 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 that document.[28]26 Both at first instance and on appeal, counsel for Victoria Police argued that the assumption of disclosure ‘to the world at large’ was correct. Particular emphasis was placed on the stated object of the Act
to extend as far as possible the right of the community to information in the possession of the Government of Victoria...To this end, it was argued, the Act ‘provides access to information to the community as a whole, not to particular members of it.’ Because disclosure under the Act is unconditional, and because the applicant is unconstrained as to the use which he/she makes of the document, disclosure to the applicant is ‘unconditional release into the public domain, that is, release to ‘the world at large’.
27 The argument for Mr Marke, which was accepted by the judge at first instance, was that the assumption of release ‘to the world at large’ would operate unfairly against an applicant who, like Mr Marke, had no intention to publish the information to the world but wanted it only for his own purposes. That concern is, with respect, understandable. The point illustrates a more general difficulty with the assumption, namely that it will almost always work against disclosure. Where personal information is concerned, disclosure to the world at large will much more readily appear ‘unreasonable’ than disclosure of the same information to the applicant alone.
28 The problem lies in the assumption itself. The learned judge concluded that there was nothing in the Act, or in the decided cases, which required the Tribunal to make the assumption. I respectfully agree. In my view, s 33(1) does not permit, let alone require, the making of any such assumption. The concern of s 33(1) is with ‘disclosure under this Act’, that is, with disclosure to the applicant and, critically for present purposes, with what that disclosure involves. As counsel for Mr Marke submitted, disclosure to the applicant is not disclosure to the world. It is disclosure to a person who can, if he/she chooses, communicate the information selectively, or generally, or not at all. Disclosure to the applicant does not involve – that is, entail or have as its necessary corollary – disclosure by the applicant to any other person.
Consistency with the scheme of the Act
29 The construction I favour is consistent with the legislative scheme as a whole and would promote its objects.[29] The right of access conferred by s 13 is unconditional. The applicant is not required either to establish that he/she has any particular interest in the document or to disclose anything about what he/she proposes to do with the document (or the information it contains) if access is granted. The Act is, quite deliberately, indifferent to the identity, character, interest and purposes of the applicant. (The fact that the applicant’s ‘intended use’ may require a waiver of access charges under s 22(1)(h)(i) does not detract from this proposition.) This is, of course, unsurprising in an Act the express object of which is to give the greatest possible public access to Government information. It would have been a very different legislative scheme if the entitlement to access had been made conditional upon the applicant satisfying some form of eligibility requirement - for example, that the applicant had a bona fide interest in the document or proposed to use it for an ‘acceptable’ purpose.
30 Likewise, access to a document must be given unconditionally. There is no scope under the Act for an agency to grant access on conditions – for example, a condition that there be no publication of the contents. Had Parliament contemplated that an agency (or Minister) have power to impose conditions on the release of documents, provision to that effect could readily have been made. Victorian legislation is replete with examples of statutory powers to impose conditions on the grant of benefits or privileges.[30]
31 The very notion of access being granted on the basis of an applicant’s assurance of non-disclosure is repugnant to the scheme of the Act. It must be assumed that, but for the assurance, access would have been refused. As counsel for the appellant submitted, this would be tantamount to granting access subject to a non-disclosure condition, contrary to the Act’s core principle of unconditional access.
32 If, contrary to my view, it were permissible for a decision-maker to make an assessment – for the purposes of s 33(1) – of the likely dissemination of a document following its release to the applicant, that assessment would inevitably involve an investigation of the applicant’s character, past behaviour and credibility. It would be an exercise in predicting future behaviour. This would, in my view, lead inevitably to discrimination between applicants according to the decision-maker’s assessment of the applicant and his/her likely future conduct.
33 As counsel for the respondent recognised in their submission, it would be relevant to such an assessment for the decision-maker to ask the applicant whether he/she intended to publish the personal information contained in the document. (I leave aside for the moment the obvious difficulty for an applicant in having to answer such a question without having seen the information in question). An apparently trustworthy person who stated to the decision-maker that the information in the document would not be disclosed would have an advantage, other things being equal, over an apparently untrustworthy person who gave the same assurance. A journalist seeking access would, by the same reasoning, be at a significant disadvantage as compared to an academic researcher who assured the decision-maker that the information was relevant to, but would not be mentioned in, a piece of research.
34 In the course of addressing the question whether it would be an onerous task for the decision-maker to assess the likelihood of further disclosure, counsel for the respondent made the following submission:
Forming a view as to the likelihood of further disclosure may not be burdensome or onerous at all. If, for example, the applicant is a journalist or a politician or a known political agitator, the decision-maker would be well entitled to form the view that the applicant would be highly likely to disclose the documents further if they were released to him or her.In other words, decisions to grant or refuse access could be made on the basis of ‘the type of person’ the applicant was perceived to be, on the basis of his/her perceived propensity to behave in a certain way.
35 Discrimination between applicants for access on grounds such as these would, in my view, run counter to the whole scheme of the Act and would subvert the principle of equality of access which s 13 embodies. As I have already pointed out, Parliament has quite specifically identified those areas where decision-makers are authorised to consider what might happen to the information in the document if it were disclosed to the applicant. That consideration is permitted where questions of safety arise or where there is a possibility of damage to very significant interests such as national security or international relations or law enforcement. Subject to those important exceptions, the Act does not permit decision-makers to make judgments about an applicant’s likely use of a document following its release.
36 Almost 20 years after the FOI Act was introduced, the Victorian Parliament enacted the Information Privacy Act 2000. That Act affirms the importance of balancing ‘the public interest in the free flow of information with the public interest in protecting the privacy of personal information in the public sector.’[31] It may be thought that, because of the importance of information privacy, the applicability of the ‘personal affairs’ exemption in the FOI Act should be made to depend upon an assessment of the likely dissemination of a document once disclosed under the Act. That would, of course, be a matter for Parliament. As will be apparent from what I have said, such a change would raise important questions of principle, as well as difficult practical questions about how such assessments would be made and about their reliability.
Conclusion
37 The Tribunal adopted the ‘world at large’ assumption and refused Mr Marke access. The judge rejected that assumption and held that the Tribunal was bound to form a view about the likelihood of Mr Marke disclosing the personal information if the document were disclosed to him. For the reasons I have given, neither approach accorded with the language of s 33(1).
38 I would uphold the order of the trial judge to set aside the decision of the Tribunal, but for different reasons. The matter must be remitted to the Tribunal for hearing and determination according to law.
WEINBERG JA:
Introduction
39 This appeal involves the interpretation of s 33(1) of the Freedom of Information Act 1982 (‘the FOI Act’). The object of that Act is to extend as far as possible the right of the community to gain access to information in the possession of the Victorian Government and other bodies constituted under Victorian law for public purposes. These include the Victoria Police.
40 Section 33(1) provides that a document is an exempt document, and therefore immune from the provisions requiring access to be given to documents:
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).41 Section 33(9) provides a wide definition of ‘information relating to the personal affairs of any person’. This includes information that identifies any person or discloses his or her address or location, or from which any person’s identity or address or location can reasonably be determined.
42 The question raised in this appeal concerns the meaning to be given to the expression ‘the unreasonable disclosure of information’ in s 33(1). More particularly, the issue to be determined is whether the likelihood that information relating to the personal affairs of another will be disseminated (and, if so, the scope of that dissemination) is to be treated as relevant when applying the statutory criterion.
Background Facts
43 The background facts concerning this matter are set out in the judgment of Pagone AJA. For my purposes, they may be summarised briefly. The respondent is a long-serving detective sergeant with the Victoria Police who, throughout his career, enjoyed a high professional reputation. In April 2003, at the instigation of two other police officers, the Victoria Police Ethical Standards Division (‘ESD’) commenced an inquiry into allegations that he had interfered with a criminal investigation involving suggested acts of paedophilia on the part of a Seymour cleric. On 7 May 2003, a complainant alleged on television that the respondent had indeed interfered with that investigation. These allegations were subsequently further aired and publicised.
44 On 10 October 2003 the ESD inquiry found that the allegation that the respondent had interfered with the investigation had not been substantiated. The respondent subsequently met and spoke with the complainant on two occasions. First, on 2 February 2004 at a school car park, he sought to have her admit that her allegations were not correct. Second, on 25 March 2005, the parties met by chance at a local bakery.
45 The complainant subsequently complained to the ESD about the respondent’s conduct in relation to both meetings. The ESD investigated her complaint but found that it was not substantiated. That finding, according to ESD protocols, meant that the weight of evidence favoured the respondent’s account of events rather than that put forward by the complainant.
46 The respondent was dissatisfied with that outcome. He sought a finding of exoneration, which would have meant that he was free from blame. He also sought that the complainant be charged with having made a false report to police. He maintained that his allegation concerning the complainant’s false report had not been investigated, and he complained that he had been directed, without justification, not to contact her.
47 The respondent ultimately sought access under the FOI Act to documents which consisted of, or related to, the communications between the complainant and police officers in relation to these matters. When the Victoria Police refused access, he applied to the Victorian Civil and Administrative Tribunal (‘VCAT’) for a review of that decision. The complainant, on being notified of the VCAT proceeding pursuant to s 53A of the Freedom of Information Act 1982 (‘FOI Act’), responded that she wished her personal information to remain confidential.
The VCAT proceedings
48 In broad terms, the Senior Member of VCAT, who dealt with the respondent’s FOI application, was satisfied that the documents, or relevant parts thereof, contained personal information, such as names and other matters, which would identify various individuals in such a way as to constitute ‘personal affairs’ within the meaning of s 33(1) and (9). There is no dispute that the documents in question were correctly so characterised.
49 The Senior Member then turned to the question whether the disclosure of the information under the FOI Act would be ‘unreasonable’ within the meaning of s 33(1). In addressing that question, the Senior Member first referred to a passage in Pizer, Victorian Administrative Law at para 2351, which 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 right to privacy on the one hand, and the interest in disclosure of the 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 the privacy does not outweigh the interest in disclosure, the document is not exempt because its disclosure is not considered to be ‘unreasonable’.50 The Senior Member next dealt with the respondent’s submission that, as he already knew the identity of the complainant (by virtue of other documents he had obtained from Victoria Police but also from her television appearance), it would not be unreasonable to release the additional documents now sought. In dealing with that submission, the Senior Member seems to have accepted that the respondent had a legitimate interest in the information contained in those documents. He was entitled to pursue a finding of exoneration rather than merely a finding that the allegations against him were ‘not substantiated’. The Senior Member also appeared to have accepted that the respondent was entitled to pursue his claim that the complainant had made a false report against him.
51 However, in the Senior Member’s view, none of this mattered. He regarded himself as bound to find that a release of these documents would be ‘a release to the world at large, not just to the applicant’. He cited from Pizer to the effect that the ‘reasonableness’ or otherwise of disclosure had to be considered as if any disclosure ordered would be to the ‘world at large’. He referred to Traynor v Melbourne Metropolitan Board of Works (No 2) (1988) 2 VAR 358 at 365, and other decisions to which Pizer had referred.
52 The Senior Member next referred to Beauchamp v Department of Education [2006] VCAT 1653 (18 August 2006). In that case, a Deputy President had stated unequivocally that disclosure of documents was disclosure ‘to the public at large’. However, she did so in a case in which the FOI request had been made by a journalist, thereby lending force to that conclusion.
53 In the light of these authorities, the Senior Member concluded that disclosure of the documents sought would involve ‘the unreasonable disclosure of information relating to the personal affairs’ of the complainant. The basis for that conclusion was set out at [26] of his reasons for decision:
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. (Emphasis added.)54 It should be understood that the respondent addressed this very issue of disclosure ‘to the world at large’ in his submissions to VCAT. In an affidavit filed in support of his appeal to the Supreme Court against the Senior Member’s decision, the respondent set out his recollection of what had occurred during the hearing at VCAT. The respondent said:
Shortly prior to the luncheon adjournment on the final day of the hearing, as I was making my final submissions, I said that any disclosure of the exempt documents would not be disclosure to the world at large, but would be to me personally. I also said that I would not mistreat such disclosure. This point was also raised in my final written submissions dated 26 April 2007, where I said this: “In this particular case, disclosure of the exempt documents will not be disclosure to the world at large; any disclosure will be to the Applicant, who will not mistreat such disclosure. The Applicant 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. The Applicant is a professional Police Officer who understands sensitive and confidential information.”55 The respondent then stated:
At this point in my oral submissions, the Senior Member interrupted and said that he disagreed with my statement. He said words similar to that he was “quite sure that any release to [me] would also be a release to the world at large”. I said that I disagreed with the Senior Member and started to explain that if any documents were ordered to be released, they would be released to me and that if any other person wanted the same documents, they would have to go through the process of making an FOI request. Instead, the other person would have to go through the same process and make an FOI request to Victoria Police. The Senior Member again said that he disagreed, stating that the documents would be released to the world at large. The Senior Member then asked Mr Dennis if he agreed with him. Mr Dennis said that he did. The hearing was then adjourned for the lunch break. During the break, I telephoned Mr Jason Pizer of counsel and raised the “world at large” point with him. I had not engaged Pizer to act on my behalf when I spoke with him.56 The Victoria Police, who were of course represented before VCAT, did not challenge the accuracy of the respondent’s account, as set out in his affidavit. I therefore proceed upon the assumption that it correctly records what took place. The respondent plainly sought to be heard on the question of dissemination of the information contained in the documents if they were to be provided to him. The Senior Member ruled that the extent of any dissemination of the documents was an irrelevant consideration.
At the commencement of the afternoon session, I made a formal request for leave to make a further written submission to the Tribunal on the point of “release to the world at large”. I informed the Tribunal that I had spoken to Mr Pizer who had told me that this point was complex and that the Tribunal would benefit from a short written submission on the point.
The Senior Member said that he had sought advice from a colleague over lunch and that the colleague had agreed with him that release to an applicant was a release also to the world at large. The Senior Member stated that it was a well-established legal principle that release under the FOI Act is to the world at large. The Senior Member then said words similar to “no leave is granted to the applicant to give submissions on the question of release to the world at large”.
The Supreme Court appeal
57 The respondent appealed against the decision by VCAT to refuse him access to the documents sought. The appeal was brought, pursuant to s 148(1) of the VCAT Act, on a question or questions of law. The notice of appeal stated three questions of law, only two of which were pursued.
58 The second of these questions was 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”.
59 This question, though perhaps not felicitously expressed, was said to have given rise to the second and third grounds of appeal. Put simply, those grounds contended that the Senior Member had erred in failing to have regard to the fact that any disclosure would be to the respondent as an individual, and not to the ‘world at large’.
60 The third question was 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.61 This question was said to have given rise to the fourth ground of appeal, which was that the Senior Member had erred in failing to take into account the likelihood that the applicant would publicly disclose the information in the documents if they were released to him.
62 In a thorough and careful judgment, the primary judge concluded that the respondent’s appeal should be allowed on the basis that the Senior Member had misconstrued s 33(1). His Honour found that the Senior Member had failed to consider a relevant factor, namely, the respondent’s assurance that he would not disseminate the information if it were provided to him. Rather, the Senior Member had approached the matter on an incorrect footing, simply assuming that any release of the documents to the respondent was a release to the world. That led him to ask the wrong question, namely, ‘whether it would be unreasonable to release these documents because the world at large would then know the identity of the persons concerned’. This was an error of law and, for that reason, his Honour ordered that the matter be remitted to VCAT for further hearing and determination.
The application for leave to appeal
63 On 14 March 2008 this Court (Nettle and Dodds-Streeton JJA) granted leave to appeal from his Honour’s decision pursuant to s 17A(3A) of the Supreme Court Act 1986. In granting leave, their Honours noted that the Victoria Police contended that the primary judge’s construction of s 33(1) did not accord with the purposes of the FOI Act. They also noted the contention that his Honour’s approach was inconsistent with the absence of statutory controls over information once released, and that it imposed unprecedented and onerous obligations on all decision-makers, who would henceforth be required to assess the likely extent of dissemination by a particular applicant.
64 Leave was granted on the basis of three questions of law set out in the proposed Notice of Appeal. These are as follows:
- Must the words in section 33(1) of the Freedom of Information Act 1982 (Vic) (the FOI Act) “disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person” be construed so as to require the decision-maker to take into account the likelihood of the applicant publicly disclosing information if documents are released to him or her under the FOI Act?
- Is the question of the extent of disclosure a matter to which the decision-maker must have regard in order to decide whether the disclosure of the documents in question would involve the unreasonable disclosure of information for the purposes of section 33(1) of the FOI Act?
- Is release of a document containing information relating to the personal affairs of another person under the FOI Act release to an individual or to the “world at large”?
65 In their submissions to this Court, counsel for the Victoria Police contended that the primary judge erred in his construction of s 33(1). They submitted that his Honour ought not to have held that the likelihood of dissemination beyond the respondent was a relevant consideration in determining whether granting access would involve unreasonable disclosure. They submitted that, on its proper construction, s 33(1) could not possibly have contemplated that an officer of an agency to which a request for documents was made could or would undertake any assessment of the extent of likely dissemination.
66 There is obviously force in that submission. There are difficulties associated with distinguishing between, on the one hand, a journalist who seeks information in order to disseminate it as widely as possible and, on the other, a private individual who seeks the same information for his or her own purposes. The FOI Act does not, as a general rule, accommodate or support any such distinction. It does not, in the normal course, contemplate that the motives of the person seeking access to a document should be scrutinised and characterised as either worthy or unworthy.[32] These are value judgments, which are likely to be highly subjective, and have no place in a scheme that is designed to ensure the proper accountability of government.
67 That said, the question of how widely information may be disseminated is of a different character. It is value neutral and, though speculative to some degree, capable of a measure of objective assessment. Of course the expression ‘to the world at large’ is nothing more than a metaphor. It really means, in this context, that there is nothing to limit or restrain general publication. Once a document is made available under FOI, the information is in the possession of the recipient who can do with it whatever he or she wishes, without any constraints.
68 Counsel for the respondent submitted that every agency to which application is made for access to a document, which contains personal information about someone other than the applicant, is under a duty to ascertain the extent to which that information will be disseminated. I reject that submission. Any agency faced with such a request is entitled to assume that once a document is made available, it has the potential to be disseminated widely and that indeed may happen. The agency is entitled to approach the balancing exercise required under s 33(1) with that assumption firmly in place. The assumption will hold true in the vast majority of cases. Most applications under the FOI Act are made by those who do seek to disseminate any information obtained as widely as possible. They may be journalists, they may be politicians, or they may be members of interest groups with a particular agenda in mind. Not every case, however, will fall into this description.
69 As I have indicated, counsel for the respondent set himself an impossibly high bar when he submitted that s 33(1), on its proper construction, required every agency from which documents were sought to investigate thoroughly the scope of any dissemination that was likely to follow. Given that there is no power to enforce any assurance or undertaking provided to an agency regarding this matter, that seems a burdensome, and indeed pointless, exercise, which in the vast majority of cases will be of no relevance.
70 Even assuming that VCAT has the power, which individuals agencies lack, to extract undertakings from the recipients of the information, it would be odd that it could use that power to impose conditions upon the use of documents in circumstances in which the FOI Act itself makes no provision for the imposition of any such conditions.
71 However, that is not the end of the matter. Counsel for the Victoria Police focused their submissions upon the burdensome nature of the inquiry that would have to be conducted in every case if the likelihood of dissemination were not merely a relevant consideration but one that had to be taken into account in every case. However, as I have indicated, I do not think that s 33(1) bears that construction.
72 It is an altogether different matter to say, as the Senior Member did in the present case, that the likelihood of dissemination will always be an irrelevant consideration. That is the submission that was ultimately put on behalf of the Victoria Police in this Court. The primary judge rejected that submission. In my view, his Honour was correct to do so.
73 The circumstances of this case are somewhat unusual. Not only is the respondent a senior serving police officer, but he has been thoroughly investigated for wrongdoing in relation to the very matters that are the subject of the documents sought. No doubt his life was severely disrupted whilst those investigations took place. The allegations made against him received wide publicity but were not sustained. He claims, it seems to me on reasonable grounds, to already know the identity of the complainant. Whether or not that is so, there is no suggestion in this case that disclosure of the information sought would, or would be reasonably likely to, endanger the life or physical safety of the complainant, or indeed anyone else. The Victoria Police have not sought to invoke s 33(2A) of the FOI Act, which deals with that very matter. They have expressly eschewed any reliance upon that sub-section but rely instead upon the personal affairs exemption in s 33(1).
74 There is authority which is at least highly persuasive in support of the conclusion that s 33(1) allows the decision-maker to have regard to a range of matters beyond the privacy of the person whose affairs will be disclosed in determining whether that disclosure is unreasonable. In Colakovski v Australian Telecommunications Corporation,[33] the Full Federal Court held that if documents contain information that could provide, or lead to, valuable evidence that would be useful or material in establishing the commission of an offence under the law, that is a matter that may be taken into account in determining whether the disclosure of information, which relates to the personal affairs of a person, would be unreasonable.
75 Similarly, here, the respondent seeks the information contained in the documents sought in pursuit of what VCAT accepted was a legitimate object, namely, total exoneration. If he can demonstrate that the complainant’s allegations against him were not properly scrutinised by the ESD, he is entitled to do so. That is part of the process of holding the government and its agencies accountable, the very object of the FOI Act. If he can show that the complainant was actuated by malice, or made a deliberately false report, that too is likely to be in the public interest. If, as a result of what he discovers, he chooses to take legal proceedings against her, that is his right as well.
76 These are also factors which are of relevance to the balancing exercise to be undertaken by this Court. There is, of course, no absolute bar to providing access to documents which relate to the personal affairs of others. The exemption arises only in cases of unreasonable disclosure. What amounts to an unreasonable disclosure of someone’s personal affairs will necessarily vary from case to case.
77 In Page v Metropolitan Transit Authority,[34] the Victorian Administrative Appeals Tribunal, constituted by his Honour Judge Jones as President, held that this balancing exercise required a consideration of all the circumstances, including the interest that the applicant had in the information in question, the nature of the information to 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, and whether the information had any current relevance. The reasoning is of particular interest because of the range of matters that were regarded as relevant to the balancing exercise. That seems to me to accord with common sense. The width accorded to the notion of ‘personal affairs’ in s 33(9) would otherwise cut a swathe through the objects of the FOI Act. It is only ‘unreasonable’ disclosure of personal information that falls within s 33(1), and the adjective must be given proper scope in which to operate.
78 I should interpolate that the present case, involving the respondent’s claim to access a handful of documents, has nothing to do with protecting the identity of an informer. That is a separate matter capable of being fully protected under other provisions of the FOI Act, including, for example, s 31(1)(c). The public interest in protecting the anonymity of informers has nothing to do with the ‘personal affairs of any person’ as defined in s 33(9). Section 33(1) is, as the heading to s 33 makes clear, about documents which affect personal privacy, and are exempt for that reason alone.
79 The protection of privacy, which lies at the heart of s 33(1), is an important right that the FOI Act properly protects. However, an individual’s privacy can be invaded to a lesser or greater degree. In my view, the vice associated with the Senior Member’s reasoning in the present case is that, in part, it rests upon a fiction. It assumes that merely because information of a personal nature is made available to a particular applicant, the extent to which a person’s privacy is infringed is to be considered on an absolutely worst case scenario; namely, that the information, being unconstrained, is likely to be widely disseminated.
80 While such an approach is undoubtedly justified in many, if not the vast majority, of cases, there may be others which call for different treatment. The present case seems to me to be of that ilk. Before the matter was heard by VCAT, the respondent had already been granted access to many of the documents that he sought. He was aware of the complainant’s identity. If her address or location were considered material to which he ought not to have had access, any document containing that material could be edited accordingly.
81 The respondent represented himself before VCAT. He sought to argue that there was little or no risk that the complainant’s privacy would be infringed to any significant degree if he alone were granted access to the further documents he sought. He relied upon assurances that he proffered as to the limited dissemination that he would make of the information contained in those documents.
82 The respondent may, or may not, have succeeded in that submission. The difficulty is that the Senior Member refused entirely even to entertain it. The Senior Member denied the respondent the opportunity to be heard in support of his claim that the information would be kept confidential. In effect, he closed his mind to any such submission. He took the view that, as a matter of construction, s 33(1) had to be read as though the required balancing exercise was to be conducted on the footing that publication to the respondent was publication to the world at large. Putting aside the fact that this was untrue in a literal sense, the Senior Member foreclosed the possibility of being persuaded that the respondent would only learn of matters that he already knew, and that he would not convey them to others, save perhaps to a small circle of advisers.
83 It must be remembered that all this had to be considered in the context of a complainant who had apparently been willing to go on television to voice her complaints. It is appropriate to note here the observations of the Full Court in Colakovski in which, Lockhart J (with whom Jenkinson and Heerey JJ relevantly agreed), in considering an equivalent provision in the Commonwealth freedom of information legislation, said:
“For example, a document may contain statements about a person’s private life, in the sense of his personal life, which is widely known in various sections of the community. Something may be notorious, but its notoriety does not deprive it of the character of information relating to the person’s “personal affairs”. Such a document would therefore prima facie answer the description of one which relates to the ‘personal affairs’ of a person within s 41(1). Whether any disclosure of the information would be an “unreasonable disclosure” within s 41(1) is a different question. If something is notorious about a person and recorded in a document, this may provide in a given case cogent evidence to justify the finding that its disclosure would not represent an “unreasonable disclosure”...”[35] (Emphasis added.)84 This passage, from the judgment of Lockhart J, confirms what must be the logical position. A person, such as the complainant in the present case, who goes on television to make allegations publicly, has only a limited place in which to hide behind the shield of privacy law protection when she is seeking to conceal personal information (such as her identity) that she has already revealed to the world.
85 Once the respondent put the question of wider dissemination squarely in issue, by giving the assurances that he did, the Senior Member was, in my view, bound to hear what he had to say about that matter. Section 33(1) does not preclude a decision-maker from having regard to the extent to which a person’s privacy may be infringed when considering whether particular documents are exempt.
86 I cannot discern from the FOI Act any intent on the part of the legislature to prevent a party seeking access to documents from placing before the decision-maker any material that might logically bear upon the question whether such disclosure would be unreasonable. Disclosure to one individual, on a confidential basis, in circumstances where it can be established that wider dissemination is unlikely, may be a relevant consideration in determining the reasonableness of the material’s disclosure. It may well be less likely to be regarded as unreasonable than disclosure to someone who intends to disseminate widely.
87 As previously indicated, privacy can be invaded to a greater or lesser degree. A minor intrusion into a person’s private affairs, however hurtful that may be, may not have the same force, when considering the reasonableness of disclosure under the FOI Act, as a more substantial infringement of a person’s privacy.
88 The extent of possible dissemination of the material containing the information relating to the personal affairs of a person is capable, in an appropriate case such as the present, of being an important consideration bearing upon the resolution of that issue. For instance, information splashed across the front-page of a tabloid newspaper, which relates to a person’s personal affairs, will present a far greater assault on that person’s right to privacy than would be the case if the same information were to be disclosed to an individual, who promised to confine its use to the resolution of a discrete task, the aims of which were consistent with the objects of the FOI Act.
89 It is essentially for these reasons that I would uphold the primary judge’s decision to remit the matter to VCAT. I would therefore order that the appeal be dismissed.
PAGONE AJA:
90 The issue in this appeal concerns the proper construction of s 33(1) of the Freedom of Information Act 1982 (Vic) (‘the Act’). That section provides that a document is an exempt document if its disclosure under the Act would involve the unreasonable disclosure of information relating to the personal affairs of any person. The respondent was refused access to a number of documents by the appellant on the basis that their disclosure would involve the unreasonable disclosure of information relating to the personal affairs of another person. The respondent’s decision was upheld by the Victorian Civil and Administrative Tribunal (VCAT) on the basis that release of the documents to the respondent would necessarily be disclosure ‘to the world at large’ of the identity of the persons concerned in the documents. The decision by VCAT was set aside by Hansen J on the basis that VCAT had misconstrued, and therefore misapplied, the terms of s 33(1) of the Act. His Honour held that a relevant consideration for the decision-maker ‘is the extent of the likely disclosure’ and, therefore, ‘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’.[36] The narrow point of difference being whether s 33(1) of the Act allowed consideration of the actual likely disclosure that might occur if a document were disclosed to an applicant.
91 The issue raised by this appeal has not previously been considered in terms in a decision binding upon this Court. The construction of s 33(1) of the Act, and in particular some of the matters that a decision-maker must take into account in deciding whether the disclosure of personal information relating to other people would be unreasonable, was considered by the Administrative Appeals Tribunal[37] in Page v Metropolitan Transit Authority[38] to which I will refer later. Other cases were referred to which were said to support the decision of VCAT[39], and in addition, reference was made to a decision by the appeal panel of the Administrative Decisions Tribunal in New South Wales which criticised the decision of Hansen J in this matter.[40]
92 The Act, amongst other things, confers upon every person a legally enforceable right to obtain access to a document of an agency other than an exempt document.[41] The Act provides a machinery for requests to be made and imposes an obligation upon an agency to give access to a document in accordance with the Act.[42] The Act also contemplates that a person may be given access to documents informally,[43] as part of the overriding object of the Act ‘to extend as far as possible the right of the community to access’ information in the possession of Government and other bodies.[44]
93 Access need not be given, however, if a document is an ‘exempt document’ under the Act[45]. Part IV of the Act identifies a large number of categories of documents which an agency cannot be required to provide to an applicant under the Act. One of those categories is that provided for in s 33(1) dealing with, in essence, documents affecting personal privacy. The section provides:
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).This provision, as was explained in the Second Reading speech upon its introduction into Parliament,[46] provides protection for the personal affairs of people. The section provides that a document is exempt from disclosure if the disclosure of the document would involve the unreasonable disclosure of information relating to the personal affairs of any person. In that way the legislature has sought to balance the competing interests of a person seeking access to information and the legitimate right of a person whose privacy may be invaded by the disclosure of a document.
94 The section distinguishes between a disclosure of a document and a disclosure of information relating to the personal affairs of any person. It is an important distinction because, as may be conceived, the unreasonableness of any disclosure of information relating to the personal affairs of a person may not be apparent from the document itself. It may often be the case, for example, that the disclosure of a document will involve the unreasonable disclosure of information relating to the personal affairs of a person not because of what is in the document taken alone, but because of what that information may reveal when it is considered in light of other information that may be known to the person seeking the document. In any event, for present purposes the issue raised requires a consideration of the matters which are relevant to be taken into account to determine whether the disclosure of a document would involve the unreasonable disclosure of information relating to the personal affairs of any person.
95 On one construction of s 33(1) of the Act, whether the disclosure of a document would involve the unreasonable disclosure of information relating to the personal affairs of a person, might be determined by reference solely to the content of the information that would be disclosed and without reference to any matter relating to the applicant or to the extent of disclosure. In other words, that whether disclosure of information is to be regarded as unreasonable should be determined by reference to the information that would be disclosed rather than by any consideration of such matters as ‘the interest that the applicant has in the information in question’[47] or the possible or likely extent of any disclosure. Both parties in this appeal disavowed that construction and it is inconsistent with such observations as there are about how s 33(1) is to be construed and applied.[48] More significantly, however, the section itself does not expressly provide such a limitation. On the contrary, it stipulates as the only condition for the determination of whether a document is an exempt document that the disclosure of the exempt document ‘would involve the unreasonable disclosure of information relating to the personal affairs of any person’.
96 The very significant public interest sought to be protected by that condition, namely the right of any person to have his or her personal affairs kept private, suggests to me that the condition should not be construed narrowly. Section 33(1) of the Act is the legislature’s attempt to reconcile two important, but competing, objectives: the public interest in disclosure and the personal interest of privacy. The mechanism chosen by the legislature to reconcile those objectives is to require a decision-maker to balance them against each other[49] by identifying and inquiring into the facts relevant to that balancing process and making an evaluation of which is to prevail[50]. The condition posed by s 33(1) for its application depends, like that in s 35(1)(b)[51] and others, upon a question dependent upon the particular facts of an actual application.
97 A decision-maker is required by the section to predicate about the disclosure of a document that its disclosure would involve the unreasonable disclosure of information relating to the personal affairs of a person. That requires the decision-maker to identify all of the facts and matters relevant to the question to be determined and to make an evaluative judgment based upon them. The use in the section of the word ‘would’ indicates that the decision-maker must have a high degree of confidence about the conclusion: it is not enough for the decision-maker to conclude that disclosure of a document might or could result in the unreasonable disclosure of the personal information in question. The need for that degree of confidence reflects the primary objective of the Act to provide public access ‘as far as possible’.
98 What facts and matters may bear upon the statutory condition required by s 33(1) will, of course, vary with the circumstances of each case. In my view there is no secure foundation to exclude from consideration any matter that may relevantly, logically and probatively bear upon whether disclosure of a document ‘would involve the unreasonable disclosure of information relating to the personal affairs of any person’. In other words, that the test to determine what consideration a decision-maker must take into account to determine whether a document is an exempt document is any matter that is relevant to the statutory condition, which bears logically upon a consideration of it, and which may have a probative effect upon the decision-maker.
99 The statutory consequences of disclosure under the Act will, of course, be powerful considerations in the balancing of interests required in the application of s 33(1). One of those consequences is that disclosure to an applicant will ordinarily, if not always, entitle the applicant to use the information without restriction. That possibility is plainly a factor relevant to be taken into account by a decision-maker and in many cases will weigh heavily against disclosure of a document under s 33(1). It does not follow from this, however, that the likely extent of disclosure is an irrelevant consideration or that it must be assumed that the disclosure will in fact be to the world at large. It is one thing to say that ‘that reasonableness must be considered on the basis that disclosure could be to the world at large’[52], but it is another thing to say that reasonableness is to be considered on the basis of the fiction that the particular release is in fact to the world at large.
100 In Page v Metropolitan Transit Authority [53] Judge Jones said:[54]
I first turn to the exemption claimed under s 33(1) of the Act. A person's name and address relate to his personal affairs: Re Simons and Victorian Egg Marketing Board (No 1) (1985) 1 VAR 54 at 55; Re Solaci and Ombudsman (1987) 1 VAR 466 at 469. What therefore has to be decided is whether disclosure of this information would be 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 have access to information in the possession of the Government or Agencies: Penhalluriack v Department of Labour and Industry (County Court, Lazarus J, 19 December 1983, p 45, unreported); Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN 257 at 259. 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: Chandra's case (supra).Counsel for the appellant relied upon this passage in support of the contention that it was not permissible for a decision-maker to take into account the possible extent of any disclosure contrary to the view adopted by Hansen J and consistent with the view initially adopted by VCAT. In my view, however, the passage does not support that contention. On the contrary, Judge Jones noted that the balancing of interests required ‘a consideration of all the circumstances’ including those specifically mentioned. I do not read the passage as narrowing the class of circumstances relevant for consideration. All that his Honour was doing was identifying some circumstances which he considered to be relevant to the statutory condition identified in s 33(1). Indeed, the inclusion as a relevant circumstance of ‘the interest that the applicant has in the information in question’ may logically include the use (including possibly subsequent dissemination) of the information.
101 Counsel for the applicant also relied upon passages in two other cases said to support the construction that the extent of disclosure was a matter irrelevant to a consideration in the balancing of interests required by application of s 33(1). In Metropolitan Ambulance Service v Victoria Police[55] Warren J, as the Chief Justice then was, said:[56]
I remain of the view on the basis of what I have been informed that there is a serious question to be tried and, secondly, I am more than satisfied that the balance of convenience lies very much in favour of the plaintiff/applicant, the Metropolitan Ambulance Service . If the position proves to be correct as they suspect, that the documents do contain some privileged material, then the service would be in the position once the documents were released they would be known to the world. I am informed that late this afternoon His Honour Judge Wood, Vice President of the tribunal, declined to make orders restraining the release of the 11 documents concerned. Such application was made apparently on behalf of other parties who sought to intervene in the tribunal proceedings. An application to restrain release of documents by those parties failed. If the injunction I made earlier in the day was dissolved, those documents would immediately be available to the world at large and the Metropolitan Ambulance Service would lose any privilege or confidentiality that might potentially attach to those documents.These passages were relied upon by the appellant in support of the proposition that the test for the application of s 33(1) was that any disclosure to an applicant would be to the world at large and that it was impermissible to have regard to the actual facts and circumstances of likely disclosure once a document is provided to an applicant. However, I do not read her Honour’s observations as supporting that view. The fact of that case was such that it could easily be inferred that any disclosure to the applicant was likely to become more widely known than to one or a small number of individuals. Thus, as her Honour said, the documents in question ‘would immediately be available to the world at large’[57] (my emphasis) and, in addition, the Metropolitan Ambulance Service in that case would lose any privilege or any confidentiality that it might otherwise have had to prevent further disclosure or dissemination. That is because a consequence of disclosure is ordinarily that any restriction that might otherwise have existed will be lost. This loss of privilege or confidentiality is a factor that will also weigh heavily against disclosure, but that is also not, of itself, necessarily determinative.
102 In Julian Knight v Secretary to the Department of Justice[58] Kellam J said:[59]
It is appropriate to note that in the course of the hearing before me the applicant was highly critical of the Tribunal dismissing his claim summarily and without providing what the applicant termed a ‘full hearing’. In my view, it was entirely open to the Tribunal to proceed as it did in the circumstances of this application. Objectively, and leaving aside the issues raised in this application, there was never any realistic prospect that a document which contained the names of a range of persons who had visited the applicant in prison would be other than exempt under s 33(1) of the FOI Act. It is difficult indeed to see how disclosure of the names of those who visit the applicant in prison would not involve unreasonable disclosure of information relating to their personal affairs in circumstances where there can be no public interest in such disclosure, but that such disclosure would be to the world at large. It must be remembered that substantial community resources are involved in the conduct of proceedings before courts and tribunals in this State. Some litigants, such as the applicant in this proceeding, are not deterred by the risk of costs orders being made against them. Scarce resources of the community which are invested in courts and tribunals should not be allowed to be squandered by applicants bringing futile applications before courts and tribunals. In the circumstances, in addition to being satisfied that the decision of Mr Macnamara contained no error of law I am additionally satisfied that the course taken by him was totally proper and did not warrant criticism in any way. (My emphasis)This passage was also relied upon by the appellant to show that the relevant test under s 33(1) was whether the disclosure would be to the world at large rather than to any narrower class. Again, however, I do not read his Honour as laying down a test to exclude a more detailed consideration of the actual facts.
103 The loss of control of information in a document, potentially to the world at large, is an important consideration for any decision-maker asked to balance interests in application of s 33(1) of the Act. Ordinarily a decision-maker will need to bear in mind that disclosure to a person will mean that the decision-maker will have no further control in limiting disclosure of the information to any other person and, therefore, that it would be potentially available to the world at large. But, in my view, that may not always be the case. The complaint against the decision made by VCAT was that it proceeded from the view that it needed to assume disclosure to the world at large whatever the circumstances might be. At paragraph 24 of its reasons, VCAT said:
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.At paragraph 25, the reasons of VCAT set out passages from another decision and then at paragraph 26 stated:
Therefore, what I must consider is not whether the applicant knows the identify 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. (My emphasis)It is clear from this analysis that the learned member of VCAT took the view that his task of balancing interests had to assume that release of documents to the applicant was in fact release to the world at large whatever might be the actual facts of the particular case. It was this analysis which Hansen J rejected. His Honour said: [60]
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 clear from the very next sentence in his Honour’s judgment that his Honour was aware that documents once released to an applicant meant that VCAT, and perhaps even more so any prior decision-maker, had no control over the use the applicant makes of those documents. His Honour noted that an applicant can disseminate the documents to the world at large once obtained. His Honour’s point, however, was that it does not follow ‘as a matter of logic that the applicant will disseminate the documents widely, or at all’.[61] I respectfully agree with that view. In some cases, and this may not be one of them, the probable lack of any dissemination of a document beyond the applicant may well be the determinative factor in a decision to release the document to the applicant. To undertake the balancing process required by s 33(1) of the Act upon the assumption that upon disclosure it will be known to all the world is, in my view, to proceed incorrectly.
104 In my opinion there is no warrant to limit the matters relevant for consideration of the statutory condition stipulated in s 33(1) for a document to be an exempt document beyond that which is relevant, logical and probative. In each case the decision-maker is required to ask a question, namely, whether in the particular case in question, the disclosure of a document ‘would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).’ It is that statutory condition which must be satisfied before a decision-maker decides whether the document is an exempt document. That statutory condition requires the exercise of judgment and analysis to all of the facts which bear relevantly, logically and probatively to the question. In other words, any matter which as a matter of relevance, logic and proof informs the decision of whether the statutory condition is satisfied, must in my view be taken into account. The facts which may be relevant to the balancing process may be as diverse as the facts which arise for consideration. The cases to date indicate the diversity of the facts which may be necessary to consider, such as the identity of the applicant[62] and, perhaps, the applicant’s interests or motives[63]. It has been said that ‘a point may be reached where [an] applicant may be able to demonstrate a personal need for the information that is of such strength as to amount to a public interest consideration in its own right’[64]. In the end, the proper application of s 33(1) of the Act will require a decision-maker to consider all matters relevant, logical and probative to the existence of conditions upon which the section is made to depend.
105 I do not think it is an answer to this view that the task may involve difficult questions of judgment or investigation in some cases. There may be other exemptions capable of being invoked if the consideration of a request under the Act is unduly burdensome or contrary to the public interest. However, where the issue falls squarely within the application of s 33(1), the decision-maker must decide whether the condition for its application has been satisfied. A decision-maker might not regard it as sufficient simply for an applicant to say that he or she will not disseminate the information any further. The consequence under the Act that information provided may be disseminated by the recipient without restriction will often be a powerful consideration against disclosure which may not easily be overcome by unenforceable promises or honestly given indications. Nor do I think a decision-maker under the Act has the power to require, or possibly even accept, a condition or undertaking that any information disclosed will not be disseminated further. The Act provides for unrestricted access to documents which are not exempt. I do not believe that a document can cease to be an exempt document by an applicant agreeing to receive the document under the Act on some basis other than that provided for by the Act; that is, given without restrictions. In my view his Honour was correct in his conclusion that VCAT proceeded from a wrong assumption. I would not agree with his Honour’s conclusion in the passage quoted above that the decision-maker ‘must’ have regard to the extent of disclosure but I agree with him to the extent that it was not precluded from doing so contrary to the view adopted by VCAT at first instance.
106 Hansen J’s conclusion was criticised in Cheney v Sydney West Area Health Service[65] for reasons which were adopted by the appellant. In that case the learned members of the Tribunal said:[66]
There is no provision, for example, for the agency or the Tribunal to place conditions on disclosure or to limit in any way the use that is made of documents that are disclosed pursuant to the FOI Act. If there were, then mechanisms would be needed for an agency to assess the credibility of any assurance in relation to the extent of disclosure. No such mechanisms are provided for, either by the agency or the Tribunal. In addition, if the approach of Hansen J in Marke v Victorian Police were followed the result would be that some applicants may be given access to documents while other applicants would not be granted access to the same documents. That situation leads to the conclusion that an applicant may need to give reasons for an FOI request and advise the agency of what he or she proposes to do with the documents. As we have said, there is no mechanism for an agency to assess the credibility of an applicant before reaching a decision as to whether or not disclosure would be unreasonable or whether the override discretion should be exercised. For those reasons, with respect, we do not consider that the views of Hansen J in Marke v Victorian Police should be followed by this Tribunal.In my view these reasons do not warrant a cutting back of the breadth of matters that may be taken into account in the balancing process under s 33(1). They might be arguments to construe the section to exclude from consideration matters concerning the applicant seeking access. But, if it be relevant to consider not just the nature of the information that would be disclosed, but also the interest of the applicant (as both parties contended should be considered, consistently with Page v Metropolitan Transit Authority[67], past practice and the absence of express limitation found in s 33(1) itself), then I see no foundation to exclude from consideration the extent of disclosure as potentially relevant to a decision about exemption. The inability to place conditions on disclosure may be, perhaps even will always be, a consideration weighing against disclosure, but is not, in my view, a reason to conclude that the extent of disclosure will always be irrelevant. A contrary contention would be that the appellant’s construction could lead to apparently capricious outcomes to deny disclosure of a document to an applicant who may already lawfully have it under some other process. Similarly, the lack of a mechanism of an agency to assess the credibility of any assurance in relation to the extent of disclosure may likewise be a factor weighing against disclosure in light of the statutory consequence of disclosure, but not, in my view, a reason to exclude consideration of such an assurance in all cases.
107 The result of Hansen J’s decision identified in Cheney that some applicants may be given access to documents whilst others would not may be a reason in favour of construing the matters to be taken into account in the balancing process without regard to the identity of the applicant. That construction, as I have said, was disavowed by both parties in this appeal, is inconsistent with decisions like Page and appears to be contrary to the practice which has developed. Moreover, as I have said, there is no express requirement in s 33(1) for its adoption. A consequence of accepting that facts concerning the applicant may be relevant to whether disclosure of the document, on the facts and circumstances of a case, may involve an unreasonable disclosure of private information about a third party, is that decision about access may differ as between applicants. This consequence was accepted by both parties in this appeal as real and inevitable and, therefore, the reason given in Cheney does not weigh against the correctness of Hansen J’s view. Conversely, the potentially capricious consequence of an applicant with other lawful possession of a document being denied access under s 33(1) on the view adopted in Cheney and VCAT in this matter, weighs in favour of Hansen J’s view.
108 It seems to me that the proper resolution of these competing tensions in the application of s 33(1) lies in the evaluation and judgment which each decision-maker must make in considering the facts of each case and not by the creation of a priori exclusions which are not expressly found in the actual language of the section. The section does not in terms exclude a consideration of the extent of disclosure. The condition for its operation is expressed in understandably wide language. It is wide because the circumstances in which the section may operate are wide, disparate and unpredictable. The two sets of competing objectives which the section deals with are of fundamental importance in a liberal democracy (public disclosure and personal privacy) and a weighing of one against the other must depend upon the specifics of each case in which the two objectives come into conflict. It is not, therefore, surprising if the application of s 33(1) may from time to time, if not always, be complicated and difficult.
109 Accordingly, I would dismiss the appeal.
110 His Honour ordered that the matter be remitted back to VCAT for further hearing and determination by a different Member. This aspect of the appeal was not argued and, in those circumstances, I say nothing against that order other than to refer generally to my observations in Davidson v Fish.[68] It will ordinarily (but not invariably) be preferable for a differently constituted Tribunal to undertake a re-hearing of a matter for the reasons explained by Davies and Foster JJ in New South Wales FM Pty Ltd v Australian Broadcasting Tribunal,[69] but, in my view, that will ordinarily be a matter for the decision of the appropriate officer of the Tribunal itself unless there are special circumstances for the Court to make specific orders.
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[1] Cf Accident Compensation Commission v Croom [1991] VicRp 72; [1991] 2 VR 322, 323 (Young CJ).
[2] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39-40 (Mason J); cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 347-8 (McHugh, Gummow and Hayne JJ).
[3] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 305 [9] (The Court); Stingel v Clark [2006] HCA 37; (2006) 226 CLR 442, 458 [26]-[27] (Gleeson CJ, Callinan, Heydon and Crennan JJ), 462 [43] (Gummow J) and 481 [117] (Kirby J); Central Bayside General Practice Association Limited v Commissioner of State Revenue [2006] HCA 43; (2006) 228 CLR 168, 197 [81]-[84] (Kirby J), and the cases there cited.
[4] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 312 [31] (The Court) citing Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250, 256 [12].
[5] Re Bolton; ex parte Beane [1987] HCA 12; (1987) 162 CLR 514, 518 (Mason CJ, Wilson and Dawson JJ); Wilson v Anderson (2002) 213 CLR 401, 418 [8] (Gleeson CJ); Singh v The Commonwealth [2004] HCA 43; (2004) 222 CLR 322, 336 [19] (Gleeson CJ).
[6] Cooper Brookes (Woollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 320 (Mason and Wilson JJ); CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey, and Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381 [69], 384 [78] (McHugh, Gummow, Kirby & Hayne JJ).
[7] Section 17(1).
[8] Section 5(1).
[9] Other exemptions which use the test ‘would involve the disclosure of ...’ are s 28(1)(d), 28(3) and 38A(1)(d).
[10] The Australian Concise Oxford Dictionary (4th ed, 2004) 737.
[11] The New Shorter Oxford English Dictionary (4th ed, 1993) 1412.
[12] [2000] FCA 979; (2000) 101 FCR 405.
[13] Ibid 421.
[14] The formulation ‘would, or could reasonably be expected to’ is also used in s 29A(1B)(a).
[15] See s 34(1)(b), 34(4)(a);
[16] See s 31(1); 33(2A); 34(4)(b)(ii) and (iii); 35(1)(b); 36(1)(a), 36(2)(a).
[17] Emphasis added.
[18] See also s 34(1), 36(1)(b), 36(2)(b), 37(1)(b).
[19] See also s 35(1).
[20] Emphasis added.
[21] See also Constitution Act 1975 s 94H, which uses the same language.
[22] (1988) 2 VAR 243, 245-6.
[23] At that time, the Administrative Appeals Tribunal.
[24] Marke v Victoria Police [2007] VCAT 747, [21]. Marke v Victoria Police [2007] VSC 522, [45].
[25] This passage was subsequently deleted from Victorian Administrative Law (in September 2007).
[26] By contrast, determining a claim of public interest immunity does involve the balancing of competing interests. On the one hand there is the public interest in maintaining confidentiality of material the disclosure of which would be injurious to the public interest. On the other hand, there is the public interest in the proper administration of justice: Sankey v Whitlam (1978) 142 CLR 1. Similarly, a court in contempt proceedings is required to balance the public interest in the administration of justice against the public interest in freedom of expression: Ex Parte Bread Manufacturers Ltd v Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242, 249–250 (Jordan CJ); Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15, 19 (Mason CJ), 41-2 (Wilson J).
[27] Ibid [24].
[28] Ibid [26] (emphasis added).
[29] Cf Interpretation of Legislation Act 1984 s 35(a).
[30] See, for example, Environment Protection Act 1970; Drugs Poisons and Controlled Substances Act 1981.
[31] Section 5(a).
[32] See Jorgensen v Australian Securities and Investments Commission [2004] FCA 143; (2004) 208 ALR 73, [86]; Johnson Tiles Pty Ltd v Esso Australia Ltd (No 3) [2000] FCA 495; 98 FCR 311, [26].
[33] (1991) 29 FCR 429.
[34] (1988) 2 VAR 243, citing Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN 257.
[35] (1991) 29 FCR 429, 436.
[36] Lance Frederick Marke v Victoria Police [2007] VSC 522 [46].
[37] The predecessor to VCAT.
[38] (1988) 2 VAR 243.
[39] In particular Metropolitan Ambulance Service v Victoria Police [1999] VSC 354; and Knight v Secretary to the Department of Justice [2003] VSC 341.
[40] Cheney v Sydney West Area Health Service [2008] NSWADTAP 29, [15]-[20].
[41] Freedom of Information Act 1982, Vic, s 13(a).
[42] Freedom of Information Act 1982, Vic, s 20(1).
[43] Freedom of Information Act 1982, Vic, s 16.
[44] Freedom of Information Act 1982, Vic, s 3; see also Osland v Secretary to the Department of Justice [2008] HCA 37, [62] (Kirby J).
[45] Freedom of Information Act 1982, Vic, s 5 ‘exempt document’.
[46] Victoria, Parliamentary Debates, Assembly, 14 October 1982, 1064 (Mr Cain, Premier).
[47] Page v Metropolitan Transit Authority (1988) 2 VAR 243, 246 (Judge Jones).
[48] See M. Paterson, Freedom on Information and Privacy in Australia (2005) esp [6.20].
[49] Page v Metropolitan Transit Authority (1988) 2 VAR 243, 245-6 (Judge Jones).
[50] Semble Department of the Air Force v Rose [1976] USSC 64; 425 US 352, 372 (1976); Ripskis v Department of Housing and Urban Development [1984] USCADC 385; 746 F 2d 1, 3 (1984).
[51] Ryder v Booth [1985] VicRp 86; [1985] VR 869, 880 (Young CJ, Gray and King JJ).
[52] M. Paterson, above n 13, [6.19]; Re Traynor v MMBW (1988) 2 VAR 358.
[53] (1988) 2 VAR 243.
[54] Ibid, 246.
[55] [1999] VSC 354.
[56] Ibid, [22]-[23].
[57] Ibid, [23].
[58] [2003] VSC 341.
[59] Ibid, [26].
[60] [2007] VSC 522 [46].
[61] [2007] VSC 522 [47].
[62] Re Shewcroft and ABC (1985) 7 ACN N307; Re Lapidos and Office of Corrections (No 3) (1990) 4 VAR 150, 154; Page v Metropolitan Transit Authority (1988) 2 VAR 243.
[63] Re Shewcroft and ABC (1985) 2 AAR 496, 501; Commissioner v District Court (NSW) (1993) 31 NSWLR 606, 627, 639, 645; Re Atkinson and Public Transport Commission (1992) 5 VAR 255, 288; Re Lawless and Secretary, Law Department (1985) 1 VAR 42, 49; Re Young and SIO (1986) 1 VAR 267; but see Re Green & Australian & Overseas Telecommunications Corporation [1992] AATA 252; (1992) 28 ALD 655, 661-2. See also M. Paterson, above n 13, [6.20].
[64] Preston v Chief Executive, Casino Control Authority [2003] NSWADT 165, [48]; M. Patterson, above n 13, 244.
[65] [2008] NSWADTAP 29.
[66] Ibid [20] (Magistrate Hennessey, Judicial Member Handley, Non-Judicial Member Bolt).
[67] (1988) 2 VAR 243, 246 (Judge Jones).
[68] [2008] VSC 32 [14]-[21].
[69] (1990) 26 SCR 39, 42-43.
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