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[2009] VCAT 2342
respondent. The decision of VicRoads refusing access was affirmed.
VCAT upheld VicRoads' refusal to give Mr McInnes an anonymous notification about his fitness to drive. It accepted that the notification was confidential and that disclosure could discourage members of the public from making similar reports, which the Tribunal considered important for road safety. It also concluded that the Charter provisions relied on did not require VicRoads to disclose the document, and that the public interest in protecting the reporting process outweighed Mr McInnes' personal interest in identifying the notifier.
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McInnes v Vicroads (General) [2009] VCAT 2342 concerned William C McInnes' request for access to an anonymous notification received by VicRoads. The notification was a one-page letter saying that Mr McInnes' health might affect his driving. VicRoads then asked him for a medical report, with a warning that his licence might be suspended if he did not provide one. He supplied a report from his doctor and, after a further request, a report from an eye specialist. The reasons say he paid for those reports and that VicRoads later decided he could retain his licence.
No linked legislation citations have been extracted yet.
Mr McInnes described the process as stressful and said it continued to trouble him. He lived at a hostel, where there had been incidents involving other residents. He suspected one or more residents had sent the notification. He explained that obtaining evidence about the complaint might help him resolve the issues and move on (introduction, paras 1–3).
He requested the notification under the Freedom of Information Act 1982 (Vic) (FOI Act). VicRoads refused access, relying on s 35. After an internal review confirmed the refusal, he applied to VCAT. The Tribunal affirmed VicRoads' decision.
There are date inconsistencies in the supplied reasons. The introduction says the relevant events began in December 2008, while it also states that VicRoads advised him in April 2004 that he could retain his licence. It says his review application was made in March 2008, although the same passage describes an FOI request in January 2009 and a refusal in February 2009. The text does not explain these inconsistencies, so the chronology should be read with that qualification.
The Tribunal identified three central questions: whether the notification was communicated in confidence; whether disclosure was reasonably likely to impair VicRoads' ability to obtain similar information; and whether the public interest nevertheless required access under s 50(4) (issues, para 1). It also considered whether the Charter of Human Rights and Responsibilities Act 2006 (Vic) affected the analysis.
The Tribunal found that the notification had been communicated to VicRoads in confidence. It relied on the evidence of VicRoads witnesses and its examination of the notification, and noted that Mr McInnes did not dispute this element (section “Would disclosure divulge information communicated in confidence?”, para 1).
The central issue was the second element of s 35(1): whether disclosure would be reasonably likely to impair VicRoads' future ability to obtain similar information. The Tribunal accepted evidence from VicRoads' Manager, Medical and Driver Review, about the sources of driver notifications. VicRoads received about 300 notifications per week. The evidence estimated that 5% came from members of the public, with about 2% of all notifications coming from members of the public who did not identify themselves (section “Would disclosure be reasonably likely to impair VicRoads' ability to obtain similar information?”, para 2).
The Tribunal accepted that VicRoads told potential notifiers it would not disclose their identity or notification. It also accepted evidence that, if members of the public were told disclosure might occur, some would not make written notifications. The concern was not limited to a name being revealed: handwriting, wording or other features could potentially allow a driver to identify a notifier (same section, paras 2–3).
Mr McInnes argued that any likely impairment would be trifling or minimal because anonymous private notifications made up a small proportion of all notifications. He also proposed that VicRoads could change its advice so that only anonymous notifications were potentially released. The Tribunal was not persuaded. It considered the effect could extend to private notifications generally, since uncertainty about disclosure could lead private notifiers not to report or to delay reporting. It also accepted evidence that these notifications could be important to road safety, including where family members or partners were the people aware of a driver's relevant condition (same section, para 6).
The Tribunal referred to Ryder v Booth [1985] VR 869 for the proposition that the relevant ability is the agency's ability to obtain information, rather than the future willingness of a particular individual alone. It also referred to the observation in that case that impairment must go beyond a trifling or minimal effect (same section, paras 4–5). The Tribunal's conclusion depended on its accepted evidence about the likely effects and the road-safety role of private reports, not simply on the existence of a confidentiality assurance.
The Charter arguments did not change the outcome. Mr McInnes argued that withholding the document interfered with his right to respect for his home under s 13, because it prevented him from identifying a possible source of the complaint and resolving hostel issues. The Tribunal regarded the link between withholding the document and interference with the home as remote. It gave as an example of a more direct issue a public authority landlord deciding to evict a tenant, referring to Director of Housing v T [2009] VCAT 1732 (Charter section, s 13 discussion, paras 2–3).
Mr McInnes also relied on the s 15 right to freedom of expression, including the freedom to seek and receive information. The Tribunal followed the approach in Smeaton v Victorian Workcover Authority [2009] VCAT 1195. It concluded that withholding the document under the FOI scheme did not engage the asserted freedom of expression right. It separately considered whether s 15 imposed a positive obligation on government to provide requested information. It found no clear language in the Charter or relevant second-reading speech showing that Parliament intended to create such an obligation. It considered the FOI Act, particularly its object in s 3, to be the legislative expression of Parliament's approach to government access requests (Charter section, s 15 discussion, paras 4–8).
Finally, the Tribunal considered the public interest override in s 50(4). It distinguished the public interest from what a person may be interested to know or what benefits a particular individual. It accepted a public interest in protecting people who report concerns to VicRoads in confidence, so that VicRoads could perform its statutory road-safety functions. It found that this consideration outweighed Mr McInnes' understandable personal interest in learning the notifier's identity. The reasons also record that there was no evidence of a broader community interest, clamour or unrest calling for release (public interest section, paras 2–4).
The decision applied the statutory framework as described in the reasons. Section 13 of the FOI Act gave a legally enforceable right of access, subject to the Act and its exemptions. Section 35(1) provided an exemption where disclosure would divulge information communicated in confidence and would be contrary to the public interest because it was reasonably likely to impair the agency's ability to obtain similar information in the future. Section 50(4) gave VCAT power to grant access to some exempt documents if it considered the public interest required access.
The Tribunal's application of those provisions makes two points particularly relevant to this fact pattern. First, it treated the agency's ability to obtain information as the focus of the impairment assessment. Second, it did not regard the small numerical share of private notifications as automatically making the effect on the agency's ability minimal. It considered the importance of the information and the risk of deterrence as part of the evidence-based assessment.
The decision also applied the Charter in an access dispute without treating the Charter as an independent information-release mechanism. On the arguments made, the Tribunal found no relevant interference with the asserted rights and no positive obligation under s 15 to provide information outside the FOI Act's scheme. It expressly recorded that the question of a positive obligation had not been raised in Smeaton, and that settled authority supporting such an obligation had not been provided in this proceeding (Charter section, s 15 discussion, paras 4–8).
The supplied reasons do not establish a later change in the law. They do not provide subsequent decisions applying, limiting or rejecting McInnes. Accordingly, this account describes the decision's reasoning and disposition, not the current state of the law or its treatment by later courts.
The Charter rights were not engaged. The Tribunal said, “In my opinion, they are not” (Charter section, para 3). In context, this refers to the rights relied on by Mr McInnes under ss 13 and 15. The Tribunal therefore did not proceed to decide whether a limit on those rights could be justified or whether the FOI provisions needed reinterpretation.
The connection to the home was remote. The Tribunal considered that withholding the notification did not reasonably amount to interference with Mr McInnes' home. His argument was that learning who made the notification might help resolve disputes at the hostel. The Tribunal treated that connection as too indirect on the facts before it (Charter section, s 13 discussion, para 3).
The claimed impairment was not minimal. The Tribunal said, “I do not agree that the impairment would be trifling or minimal” (section “Would disclosure be reasonably likely to impair VicRoads' ability to obtain similar information?”, para 6). It reached that view because it accepted that disclosure uncertainty could deter private notifications, and that this source of information could matter to road safety.
The public interest was not the same as Mr McInnes' personal interest. The Tribunal acknowledged his understandable interest in finding out who had made the report, but considered that the public interest in protecting confidential reports for road-safety purposes outweighed that personal interest (public interest section, para 4). This is not a finding that his concern was unimportant. It is the Tribunal's explanation of how it weighed the competing interests under s 50(4).
Section 15 did not create the asserted positive obligation. The Tribunal considered the FOI Act to be the legislative scheme governing access requests and did not infer a separate duty to provide the requested document from the Charter (Charter section, s 15 discussion, paras 7–8). The decision was therefore about the statutory access request and the arguments presented, not a general ruling that government never has any obligation to provide information.
The decision is most directly relevant to requests for documents containing confidential reports or notifications to an agency, where the agency argues that disclosure could discourage similar reports. The factual features that mattered here included:
The decision also shows that a low percentage of a particular information source does not, by itself, resolve whether impairment is minimal. In this case, the Tribunal considered both the estimated volume and the importance it attributed to that category of information.
For the public interest override, the decision is relevant where an applicant has a strong personal reason for seeking a document but the asserted disclosure benefit is not shown to extend to a broader community interest. The Tribunal's comparison was specific to the evidence before it. It does not establish that an individual's interest is never relevant or that confidential status alone determines the s 50(4) question.
The Charter discussion is relevant where a person argues that withholding information under the FOI scheme interferes with privacy, home or freedom of expression. The Tribunal examined whether the asserted right was engaged before considering justification, and treated the connection between disclosure and the claimed interference as important. The reasons should not be read as resolving Charter arguments based on materially different facts or rights.
The supplied judgment contains no later decisions, citations or subsequent history showing how later courts or tribunals treated McInnes. It would therefore be unsupported to describe it as followed, distinguished, approved or rejected by later courts.
The reasons themselves refer to earlier authorities. The Tribunal adopted the approach in Smeaton concerning the interaction between freedom of expression under the Charter and the FOI scheme. It also referred to Ryder v Booth when considering the required impairment to an agency's ability to obtain similar information. Other cited authorities were used in the Tribunal's discussion of the Charter or the meaning of public interest.
Those citations explain the reasoning available to the Tribunal in 2009. They do not provide evidence of how McInnes was treated after it was decided. The outcome recorded in the supplied document is only that VCAT affirmed VicRoads' refusal in this proceeding.
Several limits and questions remain apparent from the reasons:
What evidence is sufficient in another case? VCAT accepted evidence about VicRoads' notification volumes, assurances of confidentiality and the likely behaviour of private notifiers. The judgment does not set out a general evidentiary formula for other agencies or other kinds of confidential reporting.
How should changed confidentiality practices be assessed? Mr McInnes suggested VicRoads might distinguish anonymous from identified notifications in its advice to potential notifiers. The Tribunal rejected that submission on the evidence before it. The reasons do not decide how a different policy or different evidence about notifier expectations would affect the analysis.
What counts as more than minimal impairment? The Tribunal applied the threshold described in Ryder v Booth and found it met in this case. Its conclusion depended on the evidence and the importance it attributed to private notifications. It does not specify a universal numerical threshold.
How does the balance change with a broader public interest? VCAT found no evidence of broader community interest, clamour or unrest about the withholding of this notification. The reasons do not determine how s 50(4) would apply where the applicant demonstrates a wider public benefit from disclosure.
What is the scope of s 15 in other circumstances? The Tribunal found that the Charter did not impose the positive obligation asserted in this proceeding, noting the absence of clear language or relevant second-reading material supporting it. It did not decide every possible question about access to government information under freedom of expression.
How should the chronology be understood? The reasons contain the date inconsistencies noted above. They do not explain whether these are transcription or other errors. The decision's stated order, 4 November 2009, and hearing date, 20 October 2009, are given in the heading, but the earlier chronology remains internally inconsistent.
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General List - Freedom of Information Act 1987 ss 35, 50(4) - request for document - whether disclosure reasonably likely to impair VicRoads' ability to obtain similar information in the future - Charter of Human Rights and Responsibilities Act 2006 - ss 13, 15
McInnes v Vicroads (General) [2009] VCAT 2342
All of this behaviour, including the complaint that was made to VicRoads, has left me feeling victimised. I believe that if I am provided with satisfactory evidence to resolve these issues, it will assist me to move on and settling these results.[1]
35 Documents containing material obtained in confidence
(1) A document is an exempt document if its disclosure under this Act would divulge any information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister, and -
(b) the disclosure of the information under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.
(4) On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.
The expression "arbitrary interference" is also relevant to the protection of the right provided for in article 17. In the Committee's view the expression "arbitrary interference" can also extend to interference provided for under the law. The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.
In Nolan v MBF Investments Pty Ltd [2009] VSC 244 (18 June 2009), His Honour Justice Vickery discussed protection afforded to a person's home from arbitrary interference. He said (paras 168 and 169),
In the international law instruments to which I have referred, the right to protection afforded to a person's home is provided where the interference is either "unlawful" or "arbitrary". It is clear that conduct may be lawful in the sense of being in conformity with the domestic law, but still be arbitrary and thus contrary to the conventions and the Charter: Saadi v United Kingdom.
The Human Rights Committee in Hugo van Alphen v The Netherlands, considered the complaint of a Dutch solicitor that he was the victim of a violation by the Netherlands of a number of articles of the ICCPR which included Article 9(1) (providing for protection against arbitrary arrest or detention). The Committee said as to the concept of "arbitrariness":
The drafting history of article 9, paragraph 1, confirms that "arbitrariness" is not to be equated with "against the law", but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances.
This formulation is not dissimilar to the Oxford Dictionary definition of "arbitrary" which gives it the meaning: "based on or derived from uniformed opinion or random choice; capricious; despotic".
As to engagement, the submissions rely on the right to freedom of expression in s 15(1) of the Charter, and specifically the right to seek and receive information and ideas of all kinds in s 15(2). It was not in this case submitted that the right to freedom expression, in its general or in those specific respects, involves an obligation on the part of the government to impart information requested, and I will consider the submissions on that basis.
I do not think Mr Smeaton's right to freedom of expression is engaged in this case. Nothing in the Freedom of Information Act or its administration limits his right to hold or express opinions or to seek, receive or impart information. Mr Smeaton is free, subject to law, to express whatever opinions he likes about the Authority and the Ombudsman in connection with his wife's case. He can seek whatever information he wishes and receive whatever information he may be given. There is no restriction imposed on Mr Smeaton's capacity to receive information which others may wish to give him.
The Freedom of Information Act creates a right to obtain access to information from government agencies (s 13), subject to specified exemptions and, among other things, the power of transfer in s 18. Section 29A of the Ombudsman Act operates to exclude information relating to complaints to the Ombudsman and other matters in the possession of the Ombudsman from the application of the Freedom of Information Act. These provisions of the Freedom of Information Act and the Ombudsman Act do not limit Mr Smeaton's human rights as specified. Moreover, while the provisions do regulate the government's capacity to provide information requested under the Freedom of Information Act, they do not limit the government's capacity to provide information independently of the scheme created by that legislation.
As Mr Smeaton's human right to freedom of expression is not engaged, no question of justification or reinterpretation of the provisions of the Freedom of Information Act arises.
(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 ...
(b) creating a general right of access to information in documentary form in the possession of ... agencies limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies.
(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
Would disclosure divulge information communicated in confidence? - yes
Would disclosure be reasonably likely to impair VicRoads' ability to obtain similar information? - yes
The question is, would the disclosure of the information damage the ability of the Board to obtain frank medical opinion in the future. It may be noted that it is the ability of the Board that must be impaired. The paragraph is not concerned with the question whether a particular doctor whose report is disclosed would give similar information in future but whether the agency would be able to obtain such information. There may well be feelings of resentment amongst those who have given information 'in confidence' and having the confidence arbitrarily destroyed by the operation of the legislation, but it is another thing altogether to say that they or others will not provide such information in future. It is not sufficient to show that some people may be inhibited from reporting so frankly if they know that their report may be disclosed. More is required to satisfy the onus cast upon the agency by section 52 of the Act.
The degree of impairment which must be shown to be a likely result of disclosure is, in my opinion, a degree of impairment going beyond a trifling or minimal impairment.
Does the public interest require that access to the document be granted? - no
[3] At hearing his counsel abandoned a submission that there was a particular interpretation open to me under section 32 of the Charter (which requires all statutory provisions must be interpreted in a way that is compatible with human rights) which would assist his client, compared to an alternative interpretation which would not.
[4] While VicRoads had made submissions about the right to privacy (assuming this was the right claimed), Mr McInnes' counsel submitted that they did not rely on the rights with respect to privacy. Thus, I have not addressed the issue above. However, I will indicate that if I had found the right to privacy to have been interfered with, it follows from my reasoning about section 13 of the Charter, I would have found that the interference was neither unlawful nor arbitrary.
[5] Page 7 of the Legal Contentions of the Applicant.
[6] Leander v Sweden (1987) 9 EHRR 443 at [74]; Gaskin v United Kingdom [1989] ECHR 13, 12 EHRR 36 at [51]- [52]; Guerra v Italy [1998] ECHR 7, 26 EHRR 357 at [53].
[7] Criminal Lawyers Association v Minister for Public Safety and Security (2007) 86 OR (3rd) 259.
[8] I rounded these percentages from the results of a one week survey Ms Vasaldies conducted, which were attached to her witness statement.
McInnes
Vicroads
The decision of VicRoads refusing access was affirmed.