Thomas v Department of Natural Resources & Environment [2002] VCAT 533

3. The program is administered by the Secretary to the Department pursuant to the provisions of the Flora and Fauna Guarantee Act 1988.

4. Section 4 of that Act sets out a number of flora and fauna conservation objectives, and the land for wildlife project was established to promote some of those objectives, particularly s. 4(f) and (g) of the Act.

5. The Applicant 's property was registered under the scheme in May 2001. Shortly after that date, the Department received information from a confidential source in relation to land uses on the property that may not have been disclosed by the Applicant during the application and assessment process. That information was received by way of a confidential electronic mail message .

6. On 15 June 2001 the application wrote to the Department seeking access under the Freedom of Information Act 1982 ("the FOI Act") to all information "that a significant land use was proposed for the property -ie the property will incorporate a clay target shooting range and a facility for the hunting of exotic game birds."

7. In light of the confidential information received, the Department advised the Applicant that it was reconsidering the registration of the Cobaw property, and, as part of that process, would reinspect the property to investigate other possible land uses not discussed at the initial assessment. After the reconsideration and reinspection of the property, the Department decided on 21 May 2002 that the property's registration under the Land for Wildlife scheme would continue, subject to various conditions.

8. The Applicant has been granted access to numerous documents or parts of documents. There remains dispute over a small part of one document. The information that has been withheld comprises: the electronic mail message of complaint from the confidential complainants; references to the names and other personal information of the confidential complainants; and internal deliberations between officers of the Department.

9. The applicant appeared in person. Mr Batskos appeared on behalf of the Respondent.

10. Each of the parties filed statements of legal contentions. Mr Batskos for the Respondent also filed submissions. Mr Thomas relied on his statement dated 15 June 2002 and made a number of submissions to which I will return. Mr Batskos relied on the statements of Mr Winfield, dated 17 June 2002 and 25 June 2002.

11. There are 3 classes of information contained in the document for which partial exemption is sought:

* Names of the complainant and information capable of identifying the complainant

* Extracts which constitute internal memoranda between officers of the Department

12. Exemption is claimed for the names and personal information relating to the complainant under s. 33 of the FOI Act, which provides, relevantly:

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

(2A) An agency or Minister, in deciding whether the disclosure of a document under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person, must take into account, in addition to any other matters, whether the disclosure of information would or would reasonably be likely to, endanger the life or physical safety of any person.

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

(a) that identifies any person or discloses their address or location; or

(b) from which any person's identity, address or location can reasonably be determined."

13. Having regard to the material before me in this application, I am satisfied that the deleted material on pages 2 and 3 of the disputed document meets the description of information that identifies a person or discloses their address or location. Similarly, I consider that the heading containing an email address as well as the first line of paragraph 1 and the first line of paragraph 3 of the document of complaint contained at page 4 of the document either discloses an address or location or constitutes information from which the person can reasonably be determined. However, as the entire document has been claimed as exempt under s. 35(1)(b) I will return to the complaint later in these reasons and confine my comments in this section to material in page 4 which deals with identifying the complainant.

14. Mr Batskos made a number of submissions, which may be summarised as follows:

* Disclosure of the letter of complaint would merely add a fresh source of possible disquiet to relationships in circumstances where the matter had been laid to rest by the confirmation of the registration of the Applicant's property in the Land for Wildlife Program;

* The assertion by the Applicant that he knows the identity of the complainants does not deprive the information of its character as relating to the person's personal affairs; nor does it address the issue that disclosure under the FOI Act is to the world at large;

* The information in the document was conveyed to the Department in circumstances of confidence, and the express request by complainants that their personal information not be disclosed must be given some weight;

* Disclosure would be likely to cause embarrassment or distress to the person concerned and that is a relevant consideration leading to a conclusion that disclosure would be unreasonable.

15. Mr Thomas submitted that the identity of the complainants is known to him, that the information is about his affairs and not about the complainants' affairs, that there is no physical risk to the complainants flowing from disclosure, and that there is a public interest in disclosure of the information.

16. In determining whether disclosure would be unreasonable, I adopt the reasoning in Re Page and Metropolitan Transit Authority (1988) 2 VAR 243, 245-6 and consider the Tribunal's task as balancing the right to personal privacy of the person whose personal affairs may be unreasonably disclosed and the object of the FOI Act to access information in the possession of government. The matters to be considered in this regard are the interest of the Applicant in the information, the nature of the information, the circumstances in which it was obtained, the likelihood that it was information that the person would not wish to have disclosed, and whether it has any current relevance. The purpose of the exemption is to prevent unreasonable invasion of the person's privacy.

17. On the material before me, I find that the interests of the Applicant in obtaining this information are purely personal, going as they do to his sense of a right to obtain government documents which refer to him - including the personal details of persons who may have communicated to government about him. The nature of the information which would be disclosed is the identities of persons who communicated with the Department in relation to the Applicant's registration; the information was, on the evidence, obtained in confidence. A copy letter to the Tribunal (the original of which did not appear on the file) dated 26 March 2002 from the complainant made express that person's belief that the communication to the Department was made in confidence, and strenuously objected to the release of any information which might identify the person. That person is not the only person in respect of whom personal information is contained in the extracts for which exemption is claimed under s.33(1) of the FOI Act.

18. The parties agree that the information has no current relevance in that it concerns a period at the commencement of a 12 month process of assessment at the conclusion of which the Applicant's registration in the scheme was confirmed. In the present case, I am unable to discern any public interest in disclosure of such information. The Applicant submitted that release of the information would help top clear the air and improve his working relationship with the Department. In the light of the history of the matter and its resolution in the Applicant's favour in the sense of the confirmation of his registration, in my view the submission that release would clear the air carries little weight. The Applicant asserted his confidence that he already knows the identity of the complainants, that such persons would not mind being known as the complainants in this case because such persons have complained to him in person and have complained to the Department in the past. These assertions were not substantiated; and, in any event , the correct test in these circumstances is whether disclosure to the world at large, and not just the Applicant , would be unreasonable. In my view, it is appropriate for the Tribunal to give full effect to the written request of a complainant that such personal information not be disclosed. In the circumstances of this case, the letter to the Tribunal makes it clear that personal distress and anxiety to the person could flow from the disclosure of the personal information. Finally, while there is some material before me which raises the issue of the application of s.33(1)(2A) of the FOI Act, I consider the material exempt pursuant to s. 33(1) and therefore I do not need consider the section further in this regard.

19. The exemption sought under s.33(1) of the FOI Act is therefore made out. The public interest override in s.50(4) has no application to exemptions made out under s. 33(1).

20. I turn to consider the remaining portions of the document, which comprise:

* 12 lines of material at the top of page 2 of the document,

* 2 lines in the middle of page 3 of the document,

* the remainder of the complaint itself which is located on the fourth page of the document.

21. The Respondent relied on exemption under s.30(1) of the FOI Act in respect of the first two portions referred to above.

22. Mr Thomas submitted that disclosure would clear the air; that the information is innocuous and dated, and not sensitive, and that it is in the public interest for the information to be released, that the Applicant "is personally involved in the information contained in the documents and has a natural interest in the conduct of the case".

23. Deliberative processes has a wide meaning and includes the thinking processes of an agency - the processes of reflection, for example, upon the wisdom and experience of a proposal, a particular decision or a course of action : see Re Waterford and Department of the Treasury (No 2) [1984] AATA 67; 1984 5 ALD 588 at 606.

24. In my opinion, these parts of the document, comprising an electronic mail message between two officers of the Department do contain and would disclose internal deliberations and matters in the nature of opinion of an officer of the Department relating to the registration of the Applicant in the scheme administered by the Department pursuant to the provisions of the Flora and Fauna Guarantee Act.

25. Would disclosure be contrary to the public interest within the terms of s.30(1)of the FOI Act? In this context, the authorities make it clear that the task of the Tribunal is to weigh the competing interests - on the one hand the interest to which the FOI Act gives rise in the public having access to documents and on the other the public interest in protecting the deliberative processes of government.

26. The public interest in the general right of the public to know about the administration of governmental matters, or to know why an adverse decision is made, are not relevant factors here; as the Applicant received a favourable decision; and what is being sought is not information about the process by which the decision was obtained, since that process was a transparent was involving a reassessment by the Department, a process in which the Applicant was involved.

27. If the information is innocuous or dated, it is more likely that its disclosure would not be against the public interest, but if it is sensitive, tentatively expressed, or unclear, it is more likely that its disclosure would be contrary to the public interest. In this case, the release of material including the tentative views of officers of the Department which were subsequently overtaken by events, which include the decision to confirm the Applicant's registration, is contrary to the public interest: see Re Roy Morgan Research Centre Pty Ltd and State Revenue Office (17 June 1999, Coghlan DP). The potential to mislead and cause unnecessary debate, which is regarded by the authorities as being contrary to the public interest, is also heightened when the matters contained in the document do not accurately reflect the decision making process actually engaged in and the final outcome of that process.

28. I appreciate the very real interest which the Applicant has in throwing light on the early stages of a process which continued over 12 months. However, in the light of the fact that the outcome was favourable to him and that the outcome by way of the Department's decision clearly overtook the early deliberations reflected in the extracts of the document which are the subject of dispute, I consider that the balancing exercise favours a finding that disclosure in the circumstances of this case would be contrary to the public interest.

29. For these reasons, I consider that the exemption under s.30(1) is made out in relation to the two extracts referred to above.

30. Finally, I turn to the complaint itself. Exemption is claimed for the entire complaint pursuant to s.35(1)(b) of the Act. I must be satisfied of 2 things: that disclosure would divulge a matter communicated in confidence by a person to an agency or minister and secondly, that disclosure would be contrary to the public interest because it would be reasonably likely to impair the ability of an agency to obtain similar information in the future.

31. Mr Thomas submitted that it was unlikely the complaint was made to the Department on a confidential basis; that the complainant has made similar complaints to other government departments etc, and that the complainant must have expected the complaint to become a public document at some time.

32. Having regard to the uncontradicted evidence of Mr Winfield, as well as the letter to the Tribunal dated 26 March 2002 from the complainant, I am satisfied that the complaint was communicated in confidence to the Department. I am also satisfied on the basis of that evidence that the Department relies on complaints made in confidence in order to properly conduct its regulatory functions and in the present circumstances, to administer the Land for Wildlife program. This is particularly the case in light of the limited resources available to the Department to conduct reassessments, and the reliance in these circumstances upon complaints or other communication from the public. For these reasons, I am satisfied that disclosure would be contrary to the public interest because it would be reasonably likely to impair the ability of the agency to obtain similar information in the future.

33. The exemption claimed under s.35(1)(b) in respect of the complaint is made out.

34. To the extent that the complaint includes information not found to be exempt under s.33(1), the public interest override in s.50(4) must be considered. As the Court of Appeal determined in Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; (1999) 15 VAR 360, the public interest override can only be invoked where the Tribunal is satisfied that the public interest requires the release, that is, demands or necessitates disclosure.

35. I consider that in the circumstances of this case, on the evidence before me, there is no public interest which requires the release, that is, which requires overriding the exemptions claimed. Mr Thomas asserts the existence of a public interest, but I consider that, at the end of the day, he is asserting his right to know what he considers he should know about every detail of the process which related to his registration in the scheme. Whilst these are quite clearly matters of personal concern to Mr Thomas, in my view they fall short in establishing that the public interest requires release of the document.

36. For these reasons, I consider that the public interest override in s.50(4) is not made out in respect of the exemption granted pursuant to s.35(1)(b) of the FOI Act.

37. For these reasons, the decision of the Respondent is affirmed in respect of the disputed portions of the document referred to in the Amended Schedule of Exempt Documents filed on 7 June 2002.