Paul Simpson, the applicant, is a divorced father of children who reside interstate with their mother and her partner. Mr. Simpson resides in Victoria but works in the State where his children live and seeks to exercise there the rights that he has to see them. His work and his desire to see his children necessitates him driving long distances. He holds a Victorian Driver Licence but has been required to provide medical information to satisfy VicRoads of his fitness to drive.

The application to VCAT concerns Mr. Simpson's request under the Freedom of Information Act 1982 ("the FOI Act") for access to "correspondence and documents in relation to [his] eyesight and health from November 2007 to November 2009". The request was addressed to VicRoads which is the name under which the Roads Corporation is permitted under the Transport Integration Act 2010 to carry on business[1].

The request for access was made by Mr. Simpson's former solicitors in December 2009. The request asserted that he had "discovered" that VicRoads had received correspondence from his ex-wife in relation to his eyesight and health. In January 2010 VicRoads informed those solicitors that it found 24 pages of material to be relevant to the request and granted access in full to 23 of them. Access was denied in full in relation to the remaining page in accordance with sections 33(1), 35(1)(b) and 38 of the FOI Act. (Section 33(1) concerns documents affecting personal privacy; section 35(1)(b) concerns documents containing material obtained in confidence; and section 38 concerns documents to which secrecy provisions of another enactment applies. In this case the enactment said to contain the relevant secrecy provision is section 92 of the Road Safety Act 1986).

Later in January 2010 there was a request for an internal review. By letter dated 2 February 2010 VicRoads confirmed its decision and reasons. The application for review was lodged on 6 April 2010. It was therefore out of time but there was no objection to an extension of time being granted. In his application for review Mr. Simpson said that the material he sought was relevant to Court proceedings including Family Law proceedings.

In a statement filed in August 2010 Mr. Simpson said that his ex-wife and her partner had "made full admissions" to him that they had written to VicRoads alleging that he had medical conditions that meant he should not keep his licence. He believed that they did that to try to stop him picking up his children for the school holidays. He also said that consideration should be given to his human rights. He pointed to section 13 of the Charter of Human Rights and Responsibilities Act 2006 saying that denying access to the correspondence breached his right not to have his family unlawfully or arbitrarily interfered with.

At the hearing evidence was given by persons who had provided witness statements on behalf of VicRoads: Russell Scott (Senior Policy Advisor in Road Safety); Fiona Morris (Medical Case Manager); and Karen MacDonald (Manager of Legal Services). Mr. Simpson cross-examined them and he and counsel for VicRoads made submissions.

Mr. Scott outlined the evolution of policy within VicRoads and its predecessors. The policy was that any member of the public could make a notification about the medical fitness of a person to drive; a notification could be made anonymously; any information was confidential and would not be disclosed to the driver; and VicRoads would not advise the notifier of the outcome of its investigations. He said that in his experience VicRoads had never disclosed the identify of the notifier or information that would tend to identify them. The Victorian approach involved neither mandatory reporting by medical practitioners nor mandatory age-related medical reviews. Mr. Scott gave the reasons for that. The result was that a significant part of the medical review process relied on the participation of the community. VicRoads needed to ensure the confidentiality of information obtained from members of the public in order to encourage notifications to be made. When the system evolved to require notifications in writing people often had to be reassured that they could remain anonymous and that their notification would be an exempt document under the FOI Act. Mr. Scott said that from his experience maintaining the confidentiality of the notification process greatly assisted VicRoads to obtain information from the general public about at-risk drivers.

Ms. Morris gave evidence that she managed VicRoads' medical review function - dealing with complex medical cases and making decisions about a person's capacity to hold a driver's licence based on their medical condition and history. She described the review process once there was a notification to VicRoads, whether by police, health professionals or the general public, including notifications by drivers themselves. VicRoads' policy was to disclose to a driver the agency or person who made the notification, and the basis for the notification, only when the notification was made by Victoria Police or when the notifier consented. Once VicRoads received a notification it wrote to the driver to say that it had become aware that their health may be affecting their driving and to require them to obtain a report by a doctor familiar with their medical history. Ms. Morris described the decision-making process saying that every notification was assessed on a case-by-case basis. VicRoads would investigate all notifications. If a driver reported a concern that one or more notifications had not been made in good faith, that was noted on the driver's file but still the medical report was to be provided so that VicRoads could assess the driver's medical fitness to drive. If a subsequent notification was received and it was believed that it may be malicious there may be an investigation about that but the majority of notifications involved the reporting of a medical condition that did warrant further investigation. Ms. Morris said also that while notification from members of the public formed the minority of notifications, that included some of the highest risk drivers who would otherwise not be brought to VicRoads' attention, such as those suffering dementia or those who refused to accept the diagnosis of a relevant medical condition. Family members were frequently in a position to know that a driver's medical condition was affecting them but they did not want to put their relationship at risk. By implication, Ms. Morris said that to discourage notification by such persons would have a serious negative impact on VicRoads' ability to ensure that drivers were fit to hold a licence.

The evidence given by Ms. Macdonald concerned VicRoads' actions in compliance with obligations under the FOI Act and a direction that the Tribunal made in May 2010. That came about because one of the grounds of exemption claimed was that disclosure of the document would involve the unreasonable disclosure of information relating to the personal affairs of any person. In particular it was required that such person(s) be informed of a right to intervene in the proceeding and that they be requested to inform the Tribunal whether or not he, she or they intended to intervene. Contact was duly made with "the discloser" who indicated verbally and in writing that their personal details and that the information they provided should be kept confidential.

Ms. Macdonald further gave evidence that a review of VicRoads' file indicated that it was in January 2008 that Mr. Simpson was requested to provide a medical report certifying his fitness to drive. He did so and was advised in April that year that he was able to continue to drive as the reports were found to be satisfactory.

Mr. Simpson said that he had decades' experience driving vast distances without any accidents other than rare collisions with livestock or wildlife on country roads. The notification to VicRoads about him was deliberately false. A separate report to another agency that he told me about was also false. All this was done to him in spite. It was designed to hurt his children, he said. It was in the public interest for him to have the document to help him put an end to that conduct.
On behalf of VicRoads there was a lengthy statement of legal contentions. Ms. Robertson also made detailed submissions orally. I need not set out the whole of those submissions or mention all of the many cases to which Ms. Robertson referred me. To the extent that it is necessary I refer to them in the course of giving my reasons for decision.

Subject to the FOI Act, a person has a legally enforceable right to obtain access to documents in accordance with the Act[2].

VicRoads has the onus of establishing that its decision was justified or that the Tribunal should give a decision adverse to Mr. Simpson.[3]

I was able to inspect the document to which Mr. Simpson was refused access. Mr. Simpson more or less asserted knowledge that it was a letter by persons he named. VicRoads' submissions proceeded on the basis that it was a notification by one or more persons. I will refer to whom it was who wrote the document in the singular, but nothing in these reasons is intended to indicate the identity of the person or persons who wrote it or even to indicate the form of the document.
As noted by Ms. Robertson in her submissions, the purposes of licensing by VicRoads set out in the Road Safety Act include to ensure that people who drive motor vehicles on highways are competent drivers and that people who are, or who become, unsuited to drive are not permitted to drive.[4] VicRoads' obligations and powers include to grant driver licences[5]; vary licences (or licence conditions); cancel licences; or suspend licences - specifically "on the ground that it would be dangerous for the person to drive a motor vehicle because of illness or bodily infirmity, defect or incapacity or because of the effects of treatment for any of those things"[6]. VicRoads may do that on the basis of a report given by a registered medical practitioner and without conducting any other hearing or investigation into the matter before the suspension is imposed.[7] VicRoads has power to require a person to undergo a test to determine if they are unfit to drive or if it is dangerous for them to drive.[8] No action may be taken against a person who, in good faith, reports any information which discloses or suggests that a person is unfit to drive or that it may be dangerous to allow that person to hold or be granted a licence[9].

Section 33 - personal privacy

"(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person ...

information relating to the personal affairs of any person includes information -

that identifies any person or discloses their address or location; or
from which any person's identity, address or location can reasonably be determined."

Information relating to the personal affairs of a person thus includes the name of the author of a document and information from which the person's name can reasonably be determined. The question is then whether disclosure of that would involve unreasonable disclosure. This requires me to consider Mr. Simpson's interests and his purpose in seeking the document. It requires me also to consider the nature of the information to be disclosed and the view expressed by the person to whom it relates. In Morgan v DHS [10] Senior Member Davis conveniently summarised the relevant principles enunciated by the Court of Appeal in Victoria Police v Marke[11]. They included that there are competing interests to be balanced. In determining whether disclosure is unreasonable, the Tribunal must identify all facts and matters relevant to the question to be determined and to make an evaluative judgment based upon them. What amounts to unreasonable disclosure will necessarily vary from case to case. The Tribunal's task in determining whether disclosure is unreasonable includes having regard to a range of factors beyond the privacy of the person whose affairs will be disclosed. 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.

Given that Mr. Simpson has been found medically fit to drive the information in the document has little if any current relevance. The document is not necessary to establish the truth about his fitness to drive. Mr. Simpson's reasons for seeking the document are in my view outweighed by the considerations against releasing it - especially what Ms. MacDonald told me about the wishes of the author and what the other witnesses told me about the integrity of the notification system and policy as it operates in Victoria. In various contexts the Tribunal has recognised the likelihood that people would be deterred from giving information if they thought that could be disclosed.[12] I am satisfied of that in the circumstances of this case. In my view disclosure in the circumstances of this case would be unreasonable. The document is exempt under section 33(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 ... 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."

I am satisfied that the information was provided to VicRoads in confidence, having regard to the terms of the document, the nature of the information, the purpose for which it was provided and the circumstances in which it was provided[13]. This is set against the background of the provisions of the Road Safety Act to which I have referred but also to the evidence about the notification system and policy and the likely impact on notifications if the confidentiality promised to members of the public were not maintained. The question then is whether disclosure would be contrary to the public interest because it would be reasonably likely to impair VicRoads' ability to obtain similar information in the future. Any such impairment must be to more than a trifling or minimal degree.[14] The evidence in this case satisfies that test. I find that while private notifications may comprise a small proportion of notifications the number of them is significant and the specific information ordinarily provided by them is vital to the proper operation of the system and policy[15]. I mention that Ms. Robertson referred me to another decision of the Tribunal, McInnes v VicRoads[16], in which Member Proctor came to the same conclusion in the case of an anonymous notification. The document is exempt under section 35(1)(b).

Section 38 - secrecy provisions

Section 38 of the Act provides:

"A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications."

Section 92 of the Roads Safety Act prohibits the disclosure of information gained by VicRoads including information of a personal nature. The prohibition is subject to some exceptions.

I agree with previous decisions of the Tribunal that a document can fall within section 38 of the FOI Act by operation of section 92 of the Roads Safety Act.[17] By a similar process of reasoning to that in relation to sections 33(1) and 35(1)(b), at least where the notifier is a private citizen, information provided in a notification is information of a personal nature. It is information that Parliament intends remain confidential. The document is exempt under section 35(1)(b).

Section 50(4) of the FOI Act gives VCAT power to decide that access should be granted to an exempt document where the Tribunal is of the opinion that the public interest requires that access should be granted. VCAT does not have this power where the document is exempt under certain sections, however, which may include section 33. I have decided that the document is exempt under section 33. I am not of the opinion that the public interest would require (or necessitate[18]) that access should be granted if the document were exempt only under sections 35 and 38. In DPP v Smith[19] the Court said this:

"The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals".[20]

There need be strong reasons to justify overriding the exemptions. The strongest reason eventually put forward by Mr. Simpson for granting access was that he could use the document to prevent a person he believed he knew had given misinformation about him from doing that again. Whether or not that may be so, any public interest there could be said to be in that (as opposed to his private and personal interest)[21] is in my view substantially outweighed by the public interest in maintaining the system and policy that ultimately protect the physical safety of road users.

Comprehensive submissions were made on behalf of VicRoads in relation to the Charter of Human Rights and Responsibilities Act 2006 ("the Charter"). This was in response to Mr. Simpson's submission that withholding the document infringed his right not to have his family unlawfully or arbitrarily interfered with: section 13 of the Charter. He explained this by saying that his ex-wife and her partner admitted writing to VicRoads in an attempt to stop him picking up his children for the school holidays. VicRoads' submissions addressed section 13 but also section 15(2) - the right to freedom of expression - even though Mr. Simpson himself did not raise that.

Ms. Robertson cited R v Momcilovic.[22] That case, currently on appeal to the High Court of Australia, concerned the statutory reversal of the burden of proof in a criminal proceeding. In its judgment the Court of Appeal_[23]_ referred to section 32(1) of the Charter. That section provides that so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. The Court said that section 32(1) "is a statutory directive, obliging courts (and tribunals) to carry out their task of statutory interpretation in a particular way. It is part of the body of rules governing the interpretive task ... Compliance with the section 32(1) obligation means exploring all 'possible' interpretations of the provision(s) in question, and adopting that interpretation which least infringes Charter rights. What is 'possible' is determined by the existing framework of interpretive rules, including of course the presumption against interference with rights."

I have considered the submissions. It is not necessary to deal with them in detail. It is sufficient to say this. I do not see that there is any infringement of sections 13 or 15(2) of the Charter.

Even if the actions of a private citizen had an adverse effect on the Mr. Simpson's family life, non-disclosure of the document by VicRoads (or the Tribunal) cannot be said to be an unlawful or arbitrary interference with his family. Freedom of expression includes freedom to receive information but non-disclosure cannot be said to infringe the right that that section protects[24]. In any event, section 7(2) of the Charter permits reasonable limits being placed on these rights. For reasons given in the context of the public interest I am of the view that any limitation that could be said to be imposed on those rights in this situation would be justified.

I am therefore satisfied that VicRoads has discharged its onus of establishing that its decision in this case was justified.

I mention, finally, that I do not see that it would be practicable to release the document with deletions. Section 25 of the FOI Act provides that an agency must if practicable provide documents with such deletions as would make the copy not an exempt document if it appears from the request, or the applicant indicates, that he or she would wish to have access to such a copy. Previous decisions of VCAT and its predecessor show that it will not be considered practicable to provide documents with deletions if, for instance, the edited document would be a meaningless nonsense, would be devoid of major features so that what remained was misleading, would lead to unnecessary speculation as to what was missing, or would be devoid of context: see Honeywood v DHS[25]; Hutchinson v DHS[26]; Flemington Kensington CLC v. Victoria Police[27]; Thwaites v DHS[28]; Kotsiras v Department of Premier and Cabinet[29] and Noonan v Victoria Police[30]. In my view a copy of the document from which had been deleted information relating to the personal affairs of any person (as that is defined in section 33(9)) would be meaningless.

The time for commencing the proceeding is extended 6 April 2010.

The application for review is dismissed and the decision of the respondent under review is affirmed.

[12] See for example Williams v Victoria Police [2007] VCAT 1994 at paragraph 73 and Currie v Building Commission [2008] VCAT 979 at paragraph 16

[13] See Ryder v Booth [1985] VicRp 86; [1985] VR 869 at 878

[15] See also Leed v Casey City Council [2004] VCAT 2180

[17] Telstra Corporation Limited v VicRoads [2001] VCAT 1699 and Tilley v VicRoads [2010] VCAT 483.

[18] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 342.

[20] At page 75, referring to Barwick CJ in Sinclair v Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473 at 480

[21] See, for instance, Knight v CORE [2002] VCAT 1769 at paragraph 15.

[24] See Smeaton v Victorian WorkCover Authority [2009] VCAT 1195 and McInnes v VicRoads [2009] VCAT 2342 at paragraph 19 ff.

[28] (unreported, VCAT, Member Nedovic), 14 December 1998

Information Act 1982

Human Rights and Responsibilities Act 2006

Integration Act 2010

Simpson v VicRoads (General) [2011] VCAT 321 (28 February 2011)

Simpson v VicRoads

At a glance

Court

Decision date

Before

Source

Judgment (87 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (2)

Simpson v VicRoads (General) [2011] VCAT 321 (28 February 2011)