FREEDOM OF INFORMATION - Child Protection documents - family member seeking access to documents about a relative - refusal to process FOI request under section 25A(5)

All references to legislation in this document are to the Freedom of Information Act 1982 (Vic) (FOI Act) unless otherwise stated.

I have conducted a review under section 49F of the Agency's decision to refuse access to documents requested by the Applicant under the FOI Act.

I am satisfied the requirements for the application of section 25A(5) are met in that all documents to which the Applicant seeks access, should any exist, would be exempt from release and it would not be practicable to provide the Applicant with an edited copy of one or more documents that removed exempt information.

Please refer to page 14 for information about review rights through the Victorian Civil and Administrative Tribunal (VCAT).

1. The Applicant made a request to the Agency seeking access to the following documents:

I am seeking all documents held by the Department of Families, Fairness and Housing (DFFH) relating to myself, [name provided], and my [relative], [name and date of birth provided], covering the period [date range provided].

• Case notes, file entries, and internal communications (including emails and memos)
• Records of any care concern meetings, removal decisions, or referrals
• Correspondence between DFFH and external agencies including [specified agency], maternal and child health services, and medical/allied health professionals.
• Any documents relating to complaints, reviews, or incident reports. Any documents that reference my name or my care of [name of relative].

1. The Agency refused to grant access to the requested documents under section 25A(5), due to the operation of sections 31(1)(a), 31(1)(c), 33(1), 35(1)(b), and 38 in conjunction with sections 191(1) and 209(1) of the Children, Youth and Families Act 2005 (the CYF Act). The Agency's decision letter sets out the reasons for its decision.
2. As permitted under section 25A(5), the Agency did not identify or locate the requested documents the subject of the Applicant's request. As such, the existence of the requested documents is not confirmed and references to the documents in this decision should not be taken as confirmation of their existence.

1. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency's decision to refuse access.
2. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.
3. I have considered relevant communications and submissions received from the parties.
4. In undertaking my review, I have had regard to the object of the FOI Act, which is to create a general right of access to information in the possession of the Government or other public bodies, limited only by exceptions and exemptions necessary to protect essential public interests, privacy and business affairs.
5. I note Parliament's intention the FOI Act must be interpreted so as to further the object of the Act and any discretions conferred by the Act must be exercised, as far as possible, so as to facilitate and promote the disclosure of information in a timely manner and at the lowest reasonable cost.
6. In conducting a review under section 49F, section 49P requires that I make a new or 'fresh decision'. Therefore, my review does not involve determining whether the Agency's decision is correct, but rather requires my fresh decision to be the 'correct or preferable decision'.[1] This involves ensuring my decision is correctly made under the FOI Act and any other applicable law in force at the time of my decision.

1. During the course of the review, OVIC staff provided the Applicant with an initial view that a Commissioner would likely uphold the Agency's decision. The Applicant was invited to consider withdrawing their request for a review or alternatively given the opportunity to provide a further information if they wished in support of their review application.
2. A representative of the Applicant responded on their behalf confirming the Applicant wished to receive a formal decision. This representative provided further detailed submissions which I confirm I have considered.

Section 25A - Requests may be refused in certain cases

1. An agency or Minister may refuse a request without processing it, if:
   • it is apparent from the nature of the documents described in the request, that all of the documents are exempt
   • the agency or Minister cannot provide access to an edited copy of any of the documents, or the applicant does not want to receive an edited copy of the documents.
2. If section 25A(5) applies, it allows an agency or Minister to refuse the request without:
   • having identified any or all of the documents to which the request relates
   • specifying, in respect of each document, the exemption(s) that make the document exempt.
3. Section 25A(5) may only be relied on in clear and limited circumstances.[2] Section 25A(5) must be interpreted and applied consistently with the FOI Act's objects to extend, as far as possible, the right of the community to access government held information through a general right of access to documents.[3]
4. The Agency has relied on section 25A(5) in conjunction with sections 31(1)(a), 31(1)(c), 33(1), 35(1)(b) and 38 in conjunction with sections 191(1) and 209(1) of the Children, Youth and Families Act 2005 (CYF Act).

First element - apparent on the face of the request that all documents would be exempt

1. For section 25A(5) to apply, the first element is: it is apparent from the nature of the documents as described in the request that all of the documents to which the request is expressed to relate are exempt documents.
2. The nature of a document refers to the 'inherent or essential quality and character of the documents as described'.[4] An agency or Minister cannot 'go behind the description of the documents in the request'.[5]
3. It must be objectively apparent from the face of the request that all requested documents are exempt by their nature (under one or more exemption).[6]
4. It is apparent from the terms of the Applicant's request that they seek access to Child Protection documents concerning their relative.
5. Accordingly, I am satisfied the essential quality of the documents, as described in the Applicant's request and as interpreted above, should any exist, would be documents relating to the Applicant's named relative and their involvement with the Agency in relation to any Child Protection matters.
6. For completeness of this consideration, I must consider whether the Child Protections records sought by the Applicant would be exempt under one or more exemptions. In this case, the Agency relies on sections 31(1)(a), 31(1)(c), 33(1), 35(1)(b) and 38 in conjunction with sections 191(1) and 209(1) of the CYF Act.

1. For more information about section 31, see the FOI Guidelines.[7]
2. The exemption in section 31(1) protects specific types of law enforcement documents. It does not exempt all law enforcement documents.[8]
3. Section 31(1) will not apply to the documents listed in section 31(2), where it is in the public interest to grant access to those documents.

Section 31(1)(a) - Investigation, enforcement or proper administration of the law

1. Sections 31(1)(a) exempts documents where disclosure would be reasonably likely to prejudice, in a particular instance:
   • the investigation of a breach or possible breach of the law, or
   • the enforcement or proper administration of the law.
2. 'Would' is a high threshold and means that a result or effect will almost certainly come about. In contrast, 'would be reasonably likely to' is a slightly lower threshold that requires the chance to be real, but not fanciful or remote.[9]
3. 'Prejudice' means to hinder, impair or undermine and includes actual prejudice as well as impending prejudice.[10]
4. The words 'in a particular instance' qualify the words 'investigation of a breach of the law', 'proper administration' and 'enforcement'. This narrows the scope of this exemption to a specific:
   • instance of a breach or possible breach of the law[11] or
   • aspect of investigations of breaches of the law or possible breaches of the law[12] or
   • instance or aspect of the law being enforced or administered.[13]
5. The specific instance might be identifiable through the laying of charges, or specific conduct, events, incidents, or individuals.[14]
6. The Agency's decision letter states:

Release of certain information about a child protection matter is likely to prejudice the investigation or enforcement of the law, specifically in relation to the Children, Youth and Families Act 2005 (Vic). Releasing information about child protection investigative processes would likely prejudice any follow up or investigation conducted by the department in relation to a concern about a child's wellbeing.

1. Parliament has determined strict parameters apply under the CYF Act as to what information can be released in relation to Child Protection matters.
2. I am satisfied any documents falling within the terms of the Applicant's request, should any exist, would have been prepared during and for the purpose of the Agency carrying out its Child Protection functions under the CYF Act. This role includes the type of monitoring and enforcement activities with which section 31(1)(a) is concerned.
3. I am satisfied that the documents requested by the Applicant would include information, that if disclosed, would be likely to prejudice an investigation by the Agency into a breach or possible breach of the law with respect to child safety and wellbeing concerns, or prejudice the enforcement and proper administration of the CYF Act in a particular instance.
4. Accordingly, on the information before me and given the nature of the requested documents, I am satisfied, should any documents exist, they would contain information that is exempt from disclosure under section 31(1)(a).

Section 31(1)(c) - Disclosure of documents that would disclose a confidential source of information in relation to the administration of the law

1. A document or information is exempt under section 31(1)(c) if two conditions are satisfied:
   • disclosure of the information would, or would be reasonably likely to disclose, or enable a person to ascertain the identity of a confidential source of information
   • the confidential source has provided information in the context of the enforcement or administration of the law.
2. The Agency's decision letter states:

Child protection investigations are sensitive and confidential. During an investigation the department relies upon information gathered from various sources within the community, including children and their immediate families. The department has an obligation to protect the identity of a person who has made a report, regardless of whether any concerns are substantiated.

Examples of exempt information under this section include dates on which reports were made as well as identifying information regarding any person providing information during the investigation of a child protection matter.

1. I am satisfied any information obtained by the Agency from third parties during a Child Protection investigation would have been provided with an expectation of confidentiality.
2. Further, I am of the view any documents falling in the scope of the Applicant's request would contain information that would identify various individuals who, either directly or indirectly, provided information to Child Protection in confidential circumstances and in relation to the Agency's enforcement and administration of the CYF Act.
3. Accordingly, I am satisfied that the documents would include information that is exempt from release under section 31(1)(c).

Section 33(1) - Documents affecting personal privacy of third parties

1. Section 33(1) protects an individual's privacy where their right to privacy outweighs the public interest in disclosing their information.[15] This will only occur when disclosing the individual's personal affairs information is unreasonable.
2. A document or information is exempt under section 33(1) if two conditions are satisfied:
   • the document or information relates to the 'personal affairs' of a natural person (living or deceased)
   • disclosure of that personal affairs information is unreasonable in all the circumstances.
3. For more information about section 33(1) see the FOI Guidelines.[16]

Would the documents contain personal affairs information of other individuals?

1. The concept of personal affairs information is broad. Information will relate to the personal affairs of a person if it 'concerns or affects that person as an individual'.[17] This includes information relating to health, private behaviour, home life, or personal or family relationships of individuals.[18]
2. A document will indirectly disclose personal affairs information if it contains information from which any person's identity, address or location can reasonably be determined. This means that a document can be exempt under section 33(1) where the document itself does not contain personal affairs information, but its disclosure would reveal personal affairs information.
3. Personal affairs information can be revealed or indirectly disclosed by connecting or linking the information in the disclosed document with other information available to the applicant.[19]
4. The requested documents would include information that identifies and relates to third parties, including the Applicant's named relative, Child Protection staff, and any other external third parties who may have provided information to the Agency or been involved in any relevant investigation that may occurred.

Would disclosure of the personal affairs information be unreasonable?

1. The concept of 'unreasonable disclosure' involves balancing the public interest in the disclosure of official information with the protection of an individual's personal privacy in the circumstances.
2. In determining whether disclosure of the personal affairs information would be unreasonable in the circumstances, I have considered the following factors: [20]

(a) the nature of the personal affairs information

Any personal affairs information contained within the requested documents would be highly sensitive in the Child Protection context.

(b) the circumstances in which the information was obtained

I am of the view any third party who provided personal affairs information to the Agency would have done so on the understanding the information was collected for the primary purpose of the Agency carrying out its Child Protection functions under the CYF Act.

Information gathered by the Agency would have been done so under the understanding of it being strictly-in-confidence by both the communicator and the Agency.

(c) the extent to which the information is available to the public

Information held by the Agency is not available for greater public consumption and/or dissemination. The Agency operates under strict rules and regulations regarding how it obtains, stores and uses information it has gathered when discharging its functions under the CYF Act.

(d) the Applicant's interest in the information and whether any public interest would be promoted by release of the information

I acknowledge the Applicant's highly personal and genuine interest in gaining access to the information being sought.

However, I find the prevailing public interest lies in ensuring the Agency can receive the sensitive and personal information needed to perform its core child protections functions and conduct relevant investigations under the CYF Act.

(e) whether the individuals to whom the information relates object, or would be likely to object, to the release of the information

Given the nature of the requested documents and the sensitive and personal affairs information that would be contained in such documents, I am satisfied certain third parties named or identifiable from such documents would be reasonably likely to object to the release of their personal affairs information.

(f) whether disclosure of the information would or would be reasonably likely to endanger the life or physical safety of any person [21] or would increase the risk to a primary person's safety from family violence [22]

These are mandatory factors I must consider when deciding it release under the FOI Act is unreasonable.

1. I again acknowledge the reasons why the Applicant is seeking access to the requested documents and the importance of this matter to them.
2. However, on consideration of and balancing the above factors, I am satisfied that disclosure of personal affairs information of third parties in the documents, should any exist, would be unreasonable. Accordingly, I am satisfied that the documents, should any exist, would be exempt from release under section 33(1).

Section 35(1)(b) - Information obtained in confidence

1. A document may be exempt under section 35(1)(b) if two conditions are satisfied:
   • disclosure would divulge information or matter:
     • communicated in confidence
     • by or on behalf of a person or a government to an agency or a Minister
   • disclosure would be contrary to the public interest because the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.

1. Whether information was communicated in confidence is a question of fact,[23] determined from the perspective of the communicator.[24]
2. The Agency receives sensitive and personal information when conducting investigations under the CYF Act in connection with its Child Protection functions. In these circumstances, I am satisfied that information provided to the Agency in the context of a Child Protection matter would have been in confidence.

Would disclosure impair the ability of the Agency to obtain similar information?

1. In determining whether disclosure would be contrary to the public interest, I must consider whether disclosure of a document, should any exist, would be reasonably likely to impair the Agency's ability to obtain similar information in the future.
2. The term 'impair' is not defined in the FOI Act. However, case law suggests:

• the degree of impairment must go beyond a trifling or minimal impairment[25]
• there must be an actual impairment to the ability of the agency to obtain similar information in the future[26]
• it is not enough that individuals would be less candid than they otherwise might be[27] or would feel resentment at having their confidence betrayed[28]
• the necessary level of impairment will be made out if a significant minority of persons in the relevant group would be firmly resistant to providing similar information in the future[29]
• it is the agency that must be impaired from receiving information, not simply a reluctance on the part of a supplier to provide information[30]
• the existence of a statutory duty to provide information does not necessarily exclude the possibility that disclosure would be reasonably likely to impair an agency's ability to obtain similar information in the future, particularly where disclosure might impact the quality and quantity of any future information provided.[31] In comparison, an agency will not be impaired from obtaining a specific type of information in future, if there is legislation which compels a person to provide this type of information to the agency.[32]

1. The Agency plays a significant role in administering and enforcing the CYF Act. I am of the view the information is of a nature that is essential for the Agency to be able to discharge its obligations and duties under the CYF Act.
2. If third parties who provide information to the Agency were made aware information regarding child safety and wellbeing concerns was to be routinely disclosed, I consider they would be unlikely to communicate similar information to the Agency in the future. This would be a significant and detrimental outcome that would reasonably impede the ability of the Agency to fulfil its Child Protection functions under the CYF Act and ensure the safety and wellbeing of children in Victoria.
3. Accordingly, I am satisfied the disclosure of such information in the requested documents, should any exist, would impair the Agency's ability to obtain similar information in the future, and therefore would be exempt under section 35(1)(b).

Section 38 - Documents to which secrecy provisions of enactments apply

1. Section 38 exempts documents where information in those documents is protected by a secrecy provision.
2. A document is exempt under section 38 if three requirements are met:
   • there is an enactment that is in force
   • the enactment applies specifically to information contained in the document
   • the enactment prohibits specific persons from disclosing the specified information.
3. For more information about section 38, see the FOI Guidelines.[33]
4. As stated above, the Agency relies on section 38 of the FOI Act in conjunction with sections 191(1) and 209(1) of the CYF Act.

1. An enactment is defined broadly in section 5. It means an Act or instrument made under an Act, including rules, regulations, local laws, or by-laws.
2. Sections 191(1) and 209(1) of the CYF Act are enactments in force.

Do the enactments refer specifically to the information in the documents?

1. For section 38 to apply to a document, an enactment must be formulated with such precision that it specifies the actual information sought to be withheld.
2. Section 191 of the CYF Act provides:

(1) If a report referred to in section 190(1) is made, a person (other than the person who made it or a person acting with the written consent of the person who made it) must not disclose to any person other than a protective intervener or a community-based child and family service in accordance with subsection (4) -

(a) the name of the person who made the report; or

(b) any information that is likely to lead to the identification of the person who made the report.

1. Section 190(1) of the CYF Act refers to reports made under section 183 (a report to a 'protective intervener' on reasonable grounds a child is in need of protection); section 184 (a mandatory report to the Secretary on reasonable grounds a child is in need of protection made by a person in the course of practicing their profession or carrying out the duties their office, position or employment); reports determined to be a protective intervention report under section 34; and reports under section 185 that a child is in need of therapeutic treatment.
2. 'Protective intervener' is defined in section 181 of the CYF Act and includes 'the Secretary' [of the Agency].
3. Section 209(1) of the CYF provides:

(1) A protective intervener must not disclose to any person, other than to another protective intervener or to a person in connection with a court proceeding or to a person in connection with a review by VCAT -

(a) the name of a person who gave information in confidence to a protective intervener during the course of the investigation of the subject-matter of a protective intervention report; or

(b) any information that is likely to lead to the identification of a person referred to in paragraph (a) -

without the written consent of the person referred to in paragraph (a) or authorisation by the Secretary.

1. Parliament has determined strict parameters apply to what information can be disclosed in relation to Child Protection matters, including a prohibition on identifying a person who notifies the Agency about any Child Protection concerns (a notifier) and any subsequent Agency investigations into or action taken to address any concerns. The CYF Act also prohibits disclosure of any information likely to lead to the identification of a notifier, except in certain limited circumstances where disclosure is authorised.
2. These restrictions on the release of Child Protection information allow for Child Protection notifications made to the Agency and any related investigation to remain confidential. This supports the welfare and safety of children and notifiers. These restrictions apply to all persons, including a person who has been involved with Child Protection or a parent or guardian of a child seeking access to Child Protection documents.
3. I am satisfied the documents requested by the Applicant would contain information that would identify a notifier and any subsequent Agency investigations into or action taken to address any concerns regarding the safety and welfare of children.

Does the enactment prohibit persons referred to from disclosing the information?

1. I am satisfied that sections 191(1) and 209(1) of the CYF Act prohibit disclosure of the identity, or any information likely to lead to the identification of a notifier/reporter or any person who gives or has given information in confidence to the Agency for Child Protection purposes. This includes not only the report or record of confidential information itself, but also any subsequent documents created containing details of the report or associated confidential information.
2. There is no information before me to suggest that any of the exceptions that authorise disclosure of such information would apply in the circumstances of this matter.
3. Accordingly, on the information before me and having considered the terms of the Applicant's request, I am satisfied the relevant documents, should any exist, would contain information exempt under section 38 of the FOI Act in conjunction with sections 191(1) and 209(1) of the CYF Act.

Second element - no obligation to provide an edited copy of any document

1. The second element in section 25A(5)(b) relates to providing access to edited copies of a requested document.
2. If the first element is satisfied, an agency or Minister can only apply section 25A(5) if:
   • it is not practicable to provide an edited copy of any of the documents that removes the exempt information[34] or
   • it is apparent from the request or through consultation by the agency or Minister with the applicant, that the applicant does not want access to an edited copy of the document that removes the exempt information[35]
3. It must be objectively apparent from the nature of the documents, as described in the request, that it would not be practicable to provide an edited copy of any of the documents, under section 25.[36]
4. If it is practicable to provide an edited copy of one document out of multiple documents falling within a request, the agency or Minister cannot rely on section 25A(5) to refuse the request.[37]
5. Having considered the nature of the information sought in the requested documents, I am satisfied it would not be practicable to provide the Applicant with an edited copy of the documents with exempt information deleted in accordance with section 25, as to do so would render the documents, should any exist, meaningless.

1. I am satisfied the requirements for the application of section 25A(5) are met in this case. As such, my decision is the same as the Agency's.
2. I find that the documents to which the Applicant seeks access to, should any exist, would contain information exempt from release under sections 31(1)(a), 31(1)(c), 33(1), 35(1)(b) and/or 38 in conjunction with sections 191(1) and 209(1) of the CYP Act and it would not be practicable to provide the Applicant with an edited copy of one or more documents that removed exempt information.

1. If the Applicant to this review is not satisfied with my decision, they are entitled to apply to VCAT for it to be reviewed.[38]
2. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.[39]
3. Information about how to apply to VCAT is available online at www.vcat.vic.gov.au. Alternatively, VCAT may be contacted by email at admin@vcat.vic.gov.au or by telephone on 1300 018 228.
4. The Agency is required to notify the Information Commissioner in writing as soon as practicable if either party applies to VCAT for a review of my decision.[40]

1. My decision does not take effect until the Agency's 14 day review period expires. If a review application is made to VCAT, my decision will be subject to any VCAT determination.

[1] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, [591].

[2] Knight v Corrections Victoria [2010] VSC 338, [58].

[4] Knight v Corrections Victoria [2010] VSC 338, [39].

[5] Knight v Corrections Victoria [2010] VSC 338, [38].

[6] Knight v Corrections Victoria [2010] VSC 338, [38]-[39].

[7] https://ovic.vic.gov.au/freedom-of-information/foi-guidelines/section-31/

[8] P_enhalluriack v Department of Labour and Industry_ (unreported, County Court of Victoria, Lazarus J, 19 December 1983) 39; See also O'Sullivan v Police Force (Vic) (1986) 1 VAR 171, 177.

[9] Akers v Victoria Police [2022] VCAT 979 [26] quoting Binnie v Department of Agriculture and Rural Affairs [1989] VicRp 73; [1989] VR 836; Tucker v Commissioner of State Revenue [2019] VCAT 2018, [113(b)].

[10] Bergman v Department of Justice [2012] VCAT 363, [66], referring to Sobh v Police Force of Victoria [1994] VicRp 2; [1994] 1 VR 41, 55.

[11] O'Sullivan v Police Force (Vic) ( 1986) 1 VAR 171, 175-176; Lapidos v Office of Corrections (No 4) (1990) 4 VAR 283.

[12] Bergman v Department of Justice Freedom of Information Officer [2012] VCAT 363 [69].

[14] O'Sullivan v Police Force (Vic) ( 1986) 1 VAR 171, 175-176; Lapidos v Office of Corrections (No 4) (1990) 4 VAR 283.

[15] Victoria Police v Marke [2008] VSCA 218.

[16] https://ovic.vic.gov.au/freedom-of-information/foi-guidelines/section-33/.

[17] Hanson v Department of Education & Training [2007] VCAT 123.

[18] Re F and Health Department (1988) 2 VAR 458, quoted in RFJ v Victoria Police FOI Division [2013] VCAT 1267 [103], [109].

[19] Harrison v Victoria Police [2022] VCAT 280, [153].

[20] See https://ovic.vic.gov.au/freedom-of-information/foi-guidelines/section-33/#would-disclosure-be-unreasonable.

[23] Ryder v Booth [1985] VicRp 86; [1985] VR 869, 883.

[24] Woodford v Ombudsman [2001] VCAT 721, [95]; XYZ v Victoria Police [2010] VCAT 255, [265]; Barling v Medical Board of Victoria (1992) 5 VAR 542, 561-562.

[25] Ryder v Booth [1985] VicRp 86; [1985] VR 869, 880.

[26] Birnbauer & Davies v Inner & Eastern Health Care Network [1999] VCAT 1363, [68] referring to Ryder v Booth [1985] VicRp 86; [1985] VR 869.

[27] Birnbauer & Davies v Inner & Eastern Health Care Network [1999] VCAT 1363, [68]; approved in Smeaton v Victorian WorkCover Authority [2012] VCAT 1549, [69].

[28] Sifredi v Medical Practitioners Board [1999] VCAT 87 (affirmed on appeal Medical Practitioners Board of Victoria v Sifredi [2000] VSC 33).

[30] Kosky v Department of Human Services [1998] VCAT 290, [22].

[31] See Thwaites v Department of Health and Community Services (1995) 8 VAR 361, 370; Woodford v Ombudsman [2001] VCAT 721, [99]-[101].

[32] Barling v Medical Board (Vic) (1992) 5 VAR 542, 565.

[33] https://ovic.vic.gov.au/freedom-of-information/foi-guidelines/section-38/.

[36] Knight v Corrections Victoria [2010] VSC 338, [50].