For the reasons I have given, the decision under review is affirmed.
[2]
[1] The Council's letter of 2 August 2019 stated that Council had acted in order to provide for a safe environment, but there was "a series of technical errors" in the Council's management of the issue that lead to the charges having to be withdrawn. The Council further stated that the prosecution "was not managed as well as it should have been". The Council acknowledged stress and inconvenience for Mr Huang, and it apologised for the anguish he experienced.
[2] Mr Huang submitted correspondence from the Council addressing his concerns. The Council appeared to say at first that the signage was not illegal but later - following legal advice - that planning permission was in fact required for a banner that contained a website address and was regarded as a "promotion sign". Mr Huang also submitted to the Tribunal copies of applications he made for intervention orders. He did not provide copies of any intervention orders made.
[4] Paragraph [21] of the Commissioner's decision.
[5]
[5] The recording is of just over four minutes' duration. For most of that time a man's voice can be heard complaining loudly that use of the Airbnb was causing him loss of sleep and calling Mr Huang to come out and discuss "the problem".
[6]
[6] There appears to be a minor disparity between the Council's decision and the Commissioner's decision with regard to the number of documents where access was granted only in part or was refused. It is clear, however, that once the Commissioner put to one side documents that were not subject to review, there were 15 documents remaining.
[7]
[7] The numbers in brackets are the numbers the documents were given in the Commissioner's decision.
[8]
[8] The Commissioner noted that he was satisfied that certain information exempted by the Council was information relating to the personal affairs of persons other than Mr Huang.
[9]
[9] VCAT cited a decision of the Victorian AAT by DP Macnamara, as he then was, for that proposition: Thiele v The Appeals Committee[1996] VICCAT 127.
The relevant enabling enactment is the FOI Act. Section 50(1)(b) of the FOI Act permits a person to apply to the Tribunal for review of a decision of the Commissioner refusing to grant access to a document in accordance with a request.
Mr Huang has applied for review of the Commissioner's decision.
As the Commissioner noted, section 49P of the FOI requires that after conducting a review of the decision of an agency, the Commissioner must make a fresh decision on the original application. The Commissioner further noted not only that Mr Huang was not seeking anyone's personal information but also that he confirmed that he understood that any information considered to be personal affairs information under s.33 of the FOI Act would not be subject to review[8].
When Mr Huang applied to VCAT, he expressly stated that he did not seek anyone's personal information. Mr Huang has changed his mind about that and now wants the Tribunal to consider the 27 documents that the Information Commissioner indicated were not subject to review by the Commissioner in addition to the 15 documents that were subject to review.
The Council opposes that course. Ms Olynyk, for the Council, submitted that the Tribunal does not have jurisdiction to consider the documents that the Information Commissioner indicated were not subject to his review. Ms Olynyk cited Kelly Jaye Property Management Pty. Ltd. v Business Licensing Authority[2010] VCAT 1218 and Springfield v Registrar of Births, Deaths and Marriages[2011] VCAT 130. In those cases, VCAT observed that it has only the jurisdiction that Parliament has bestowed upon it and that it cannot acquire further jurisdiction by agreement of parties, much less by estoppel[9].
It is apparent from the Commissioner's decision that - with Mr Huang's knowledge and consent - information considered to be personal affairs information under s.33 of the FOI Act was not subject to the review. On that basis, 27 documents were excluded from the Commissioner's review. The 27 documents were not part of the Commissioner's decision. The Commissioner did not make a decision to refuse access to those documents (or to such information in other documents). There is no decision about the documents or information that the Tribunal has power to review. This means that there are 15 documents in dispute that I must consider, some of which included information that the Commissioner noted was not subject to review.
Consistent with the reasons that follow, I consider that the personal affairs information would in any event be exempt under section 33.
As documents number 4 - 8 were subject to review by the Commissioner, I will consider the claimed exemptions under section 33 and 35(1)(b).
Under section 33, I must consider whether the documents disclosure information relating to the personal affairs of any person. "Personal affairs information" is defined in the FOI Act to include information that identifies any person or discloses their address or location; or information from which any person's identity, address or location can reasonably be determined. There is such information in the documents.
I must also consider whether disclosure would be unreasonable.
I mention at this point that Ms Fleeman stated that she had been in her role as Senior Freedom of Information and Privacy Officer for five years.
Ms Fleeman gave evidence that document 4 was provided to the Council by Victoria Police provided, as she understood, in response to a request for records of police call outs to the property over a 12-month period. There is information in the document relating to Victoria Police's Law Enforcement Assistance Program (LEAP) database and the names of officers who took the calls. Ms Fleeman said she understood from discussions with police that the officers named were "more likely" to be persons who work for the Emergency Services Telecommunication Authority (ESTA). Ms Fleeman said that Victoria Police advised that the document was provided to the Council in confidence and that it would be "far less likely" to provide the information in future if it were to be released.
Ms Fleeman said that documents 5-8 disclosed complaints made to the Council about the property, "provided confidentially to Council to assist with its investigations, including ensuring compliance with local and other laws". Ms Fleeman referred to her experience, saying that persons who make complaints similar to the ones in the present case do so with the expectation that their details will remain confidential. They often provide sensitive information about the impact of the matter complained about on their health and wellbeing. Ms Fleeman said that the Council treats the information as having been provided in confidence and, in acknowledging complaints, advises that the complainant's details will be kept confidential. She said that there was a concern that if information about complainants was disclosed to the person complained about, it was likely that the Council would not obtain similar information in the future, which would impair its ability to fulfil its regulatory functions in the public interest. She said that it was not uncommon for matters to "escalate", carrying the risk of retaliation by the person complained about.
The claimed exemption for documents 9-15 is under section 32. Section 32 provides that a document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of (common law) legal professional privilege or (statutory) client legal privilege[10]. As VCAT noted in Graze v Commissioner of State Revenue[2013] VCAT 869 at [29], a document would be privileged under legal professional privilege in at least the following circumstances:
Concerning document 5 (the Councillor Request), Ms Fleeman said in effect there was information over and above information such as names and contact details that could identify the complainant. Documents 5-8 (email chains) concern complaints made to the Council about the property and contain further information that, she said, identifies the complainant and is personal in nature, such as information about the impact of the matter complained about on them and their family. Ms Fleeman said that she was aware that the complainants referred to in the documents did not want the information in the documents to be released.
Mr Huang cross-examined Ms Fleeman. Mr Huang referred in particular to media reports and Council meeting minutes that included the names of certain persons. Ms Fleeman responded by saying in effect that whatever any person made public in those contexts, a complaint made to the Council involved confidentiality.
Mr Huang asked further questions that appeared designed to show that he had been treated differently to other persons when he made inquiries of the Council. Ms Fleeman said in effect that she could not say how other officers exercised their judgment when they responded to inquiries, but she said it was common for complainants to follow up complaints and be given general information about the progress of a matter (for instance in a case where there was a complaint about an attack by a dog).
Mr Huang also sought confirmation (which Ms Fleeman was unable to provide) that no one had made a complaint that he had threatened them. (Mr Huang said that, in contrast, he had applied for intervention orders against particular persons).
In considering section 33(1) I have to balance the public interest in disclosure with the personal interest of privacy, by identifying and inquiring into the relevant facts and making an evaluation of which is to prevail: see Victoria Police v Marke[2008] VSCA 218 at [96].
Relevant considerations include the views of the persons whose personal information it is. I mention here that pursuant to a direction given by the Tribunal prior to the hearing, the Council's representatives filed a list of names of persons notified of the proceeding under section 53A of the FOI Act. The responses indicate that persons made complaints on the understanding that their personal information would remain confidential. They said that they did not want their information released, citing fears for their personal wellbeing and safety.
Ms Fleeman's evidence indicates that Mr Huang has been given documents 5-8 in redacted form, so he has been able to see details about the complaints. I am mindful of the concerns that Mr Huang has expressed about everything that has taken place in relation to the property. It does not appear to me that release of the documents in unredacted form would materially assist him. Release would not be in the public interest, in my view. It does not appear to me, either, that that there is a public interest in Mr Huang having information relating to, the personal affairs of complainants or other persons, such as ESTA or other officers who took calls concerning the property (being relevant to document 4). I consider that it would actually be contrary to the public interest for that information to be given to him. In the case of complainants, I accept the evidence to the effect that persons might be discouraged from making reports to Council that enables it to perform its law-enforcing functions, and that to disclose the information could escalate disputes between community members in potentially harmful ways. In the case of ESTA or other officers, I accept the evidence about the sensitivity of their roles and the attitude that police have to the impact that disclosure would likely have on collaborative working arrangements between police and the Council (which arrangements benefit the public).
Further in considering section 33, I am specifically required to 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. "Reasonably likely" has been held by the Supreme Court of Victoria to mean that there is a "chance of an event occurring or not occurring which is real - not fanciful or remote": Department of Agriculture and Rural Affairs v Binnie[1989] VicRp 73; [1989] VR 836 at 842. VCAT has previously noted that physical safety is not just about actual safety and that it is also about the perception of the relevant person as to whether he or she would be safe: see O'Sullivan v Victoria Police[2005] VCAT 532 and Morse v Building Appeals Board (No.2)[2007] VCAT 2344 at [15].
It may be that it is Mr Huang who has applied for intervention orders. Whatever the outcome, I am satisfied from all of the evidence that disclosure would be reasonably likely to endanger the safety of persons in the sense described in these authorities.
The public interest override in section 50(4) does not apply to documents that are exempt under section 33.
I go on to consider section 35(1)(b). I am satisfied from Ms Fleeman's evidence and the general evidence that the information in the documents was communicated to the Council in confidence. I am further satisfied that disclosure would be contrary to the public interest by reason that disclosure would be reasonably likely to impair the ability of the Council to obtain similar information in future.
Ms Olynyk cited two particularly significant cases: Leeds v Casey CC[2004] VCAT 2180 and Gregory White v Pyrenees Shirt Council[2001] VCAT 2043. Exemptions under section 33 and 35(1)(b) were upheld in those cases in similar circumstances to the present ones.
Considering now the public interest override in section 50(4), I note that Mr Huang's interest in the documents is essentially his personal interest. I must determine "whether considerations of the public interest are so strong as to outweigh, or override, those factors by which the documents are exempt documents ... [T]he question is whether the public interest requires the release of the document: that is, demands or necessitates disclosure": see XYZ v Victoria Police[2010] VCAT 255 at [344]. I do not see that there is a public interest in all the circumstances of Mr Huang's case that requires that access to the documents should be granted.
I conclude that there is information in documents 4-8 that is exempt under sections 33(1) and 35(1)(b).