Australia: FOI Decision – Disclosure To The World At Large

FOI AMENDMENT BILL 2007

The Freedom of Information Amendment Bill 2007 (Bill) was introduced and had its first Reading Speech on 20 November 2007. FOI officers will need to be aware of the changes proposed by the Bill, and monitor its progress through Parliament. The key features of the Bill are summarised below, and include the abolition of the application fee, the introduction of new consultation processes and new 'vexatious applicants' provisions.

Objectives

The Bill implements a number of recommendations made by the Ombudsman (in his report 'Review of the Freedom of Information Act' tabled in Parliament on 1 June 2006). It also modernises the Freedom of Information Act 1982 (FOI Act) by encouraging agencies to publish more information on the internet.

Publication Of Information

Part II of the FOI Act is to be replaced with a new Part concerning the publication of information by agencies. This requires agencies to publish information for the purposes of the FOI Act in accordance with standards issued by the Attorney-General. The information must be published on the internet (either the agency's own internet site or another government site).

The Bill also clarifies that the FOI process does not apply to a document that is available from the agency free of charge where the person is provided with a copy of the document or is advised where the document may be obtained or inspected (including where the document is available on the agency's internet site).

Application Fee Abolished

The Bill abolishes application fees for FOI requests. It acknowledges that requests may be sent by email or over the internet. FOI Online (established by the State Government for the purpose of receiving and providing information in relation to FOI) is also given recognition.

Section 33 - Consultation

Section 33 of the FOI Act currently exempts a document if it involves the unreasonable disclosure of information relating to the personal affairs of any person. The Bill replaces the term 'personal affairs' with 'personal information' to bring it in line with privacy legislation.

The Bill also gives an agency a discretion to consult with the person who is the subject of the information. Agencies may elect to do this at present, although this will now be given express acknowledgment. If consultation occurs, the agency is required to inform the person that, if he or she consents to the disclosure, he or she is not entitled to apply to the Victorian Civil and Administrative Tribunal (VCAT) for review of the decision to disclose the document.

The agency may also decide whether it is appropriate to extend the time in which to respond to the request (ordinarily 45 days) by 30 days given the consultation process. If it does, the agency must advise the applicant of the extension.

Section 34 – Changes to Consultation Process

Section 34 exempts documents that would disclose information of a business, commercial or financial nature where that would be likely to expose a business, commercial or financial undertaking, or the agency, unreasonably to disadvantage. It already requires an agency to consult with an undertaking before determining whether the exemption applies. The change introduced by the Bill (similar to that for the section 33 exemption) is that the agency must notify the undertaking as part of the consultation process that, if the undertaking consents to the disclosure of the document, the undertaking is not entitled to apply to VCAT for a review of the decision to disclose the document. It also allows the agency to decide whether it is appropriate to extend the time in which to respond to the request by 30 days, in which case the agency must advise the applicant of the extension.

Section 35 - Consultation

Section 35 exempts documents which would divulge information communicated in confidence where the information would be exempt if generated by the agency or its disclosure would be contrary to the public interest (by reason that it would be reasonably likely to impair the agency's ability to obtain similar information in the future).

The Bill introduces a discretion to notify the person who provided the information of a request for access to a document under section 35 and seek his or her view as to whether the information was communicated in confidence and whether its disclosure would be contrary to the public interest.

Again, if the agency decides to consult, it may extend the decision deadline, but must notify the applicant accordingly.

Ombudsman

The Bill clarifies that the applicant must be informed of the right to complain to the Ombudsman under the Ombudsman Act 1973 in respect of an agency's decision that documents do not exist or cannot be located (under section 27(1)(e) of the FOI Act). The Bill goes on to state that, in these circumstances, there is no right to seek a review by VCAT. The only recourse is through the Ombudsman.

Vexatious Applicants

The Bill inserts a new Part VIA into the FOI Act to enable a person to be declared a vexatious applicant.

An agency may apply to VCAT (constituted by its President) for an order declaring a person to be a vexatious applicant where the person has made repeated applications under the FOI Act, which involve an abuse of the right of access, amendment or review under the FOI Act. The repeated applications need not relate to the same matter. They will amount to an abuse if they were made for the purpose or have had the effect of obstructing or otherwise unreasonably interfering with the agency's operations. In determining these matters, VCAT may take into account any applications made before the commencement of these new provisions. This is to ensure a 'vexatious applicant' application can be made in respect of a person who has submitted repeated applications in the past. An order may not be made without giving the person an opportunity to be heard. An order may provide that the person must not, without VCAT's leave (i.e. consent), make any request under the FOI Act for access, amendment or review. The Ombudsman's general right to intervene in VCAT proceedings does not extend to 'vexatious applicant' applications.

Status Of The Bill

The Bill has not yet had its full Second Reading Speech. It commenced on 22 November 2007 but it did not progress further before Parliament finished sitting for the year. Once the Second Reading Speech is complete, the Bill is read a third time and introduced into the Upper House for debate. It is then passed by Parliament and awaits Royal Assent. It will commence on a day (or days) to be proclaimed, but no later than 1 July 2009.

FOI DECISION – DISCLOSURE TO THE WORLD AT LARGE

The Supreme Court of Victoria has recently handed down an important judgment on whether disclosure under the FOI Act is disclosure to the 'world at large': Marke v Victoria Police [2007] VSC 522. In short, it found that this is not to be assumed and would only be so where the particular facts led to that conclusion (for example, due to the nature of the FOI applicant). So, just because a document has been released to one FOI applicant, it does not mean that it must be released to any subsequent FOI applicant. Further, when considering the application of the 'personal affairs' exemption (in section 33), the decision-maker must have regard to (amongst other things) the likelihood that the FOI applicant will disclose the information. So, FOI officers will need to factor this in when considering requests for access to information about another's personal affairs.

Facts

Justice Hansen heard an appeal from a decision of VCAT, which had affirmed a decision of the Victoria Police to refuse access to documents sought by Mr Marke, a Detective Sergeant, concerning investigations conducted by the Ethical Standards Division into allegations against him. In particular, the documents disclosed the identity of the person who had made the allegations (the complainant) and details of her allegations. The documents were claimed to be exempt under section 33 of the FOI Act.

So, the question before VCAT was whether disclosure of the documents would involve the unreasonable disclosure of the complainant's personal affairs. VCAT held that it would 'because the world at large would then know the identity of the persons concerned'.

Mr Marke contended that this misconstrued section 33 as necessarily requiring an assessment of the unreasonableness of disclosure as if that disclosure would be to the 'world at large'. Instead, he contended that unreasonableness of disclosure was to be assessed by reference to all of the circumstances, including the fact that disclosure of a document is to an individual applicant and not to the world at large, and the likelihood of that applicant publicly disclosing the information if it were released to him or her. For example, while a journalist, member of parliament or known political agitator would be regarded as likely to disclose a document, other people may be unlikely to. By failing to have regard to the likelihood of the applicant publicly disclosing the information, VCAT failed to have regard to a relevant consideration.

Decision

In effect, the Supreme Court accepted these contentions. His Honour stated:

The Court acknowledged that once documents were released to an applicant under the FOI, there was no control over the use that the applicant makes of them, and so an applicant could disseminate them to the world at large. However, it did not follow that the applicant would do so. The Court also stated that it did not follow that, just because one document had been released to an applicant, it must be released to any subsequent applicant. Rather, the decision-maker (i.e. the agency, Minister or VCAT) must consider each individual application for access to a document on its own merits.

The Court acknowledged that there was a difference between taking into account an applicant's interest in the documents, and assessing the likelihood that the applicant would disseminate the documents. However, in order to decide whether disclosure of documents would involve the unreasonable disclosure of information relating to the personal affairs of any person, it was necessary to have regard to, among other things, the likelihood that the applicant will disclose the information. VCAT did not have regard to that fact, by concluding that release of the documents to Mr Marke was a release to the world, and so failed to take into account a relevant consideration.

Accordingly, the appeal was allowed and the matter remitted to VCAT, constituted by a different member, for further hearing and determination in accordance with the Court's reasons.

GRAFFITI PREVENTION ACT 2007

The Graffiti Prevention Act 2007 (GP Act) received Royal Assent on 27 November 2007. Most of the provisions are to come into operation on 30 June 2008 unless proclaimed earlier, although some may not commence until 1 September 2008. Council staff who have had involvement with the issue of graffiti will need to consider the implications of the GP Act. In particular, there is now a statutory process that must be followed should a council become involved in the removal of graffiti from private property. Councils should also consider the impact the GP Act has on any local laws they have made regulating graffiti.

Purpose

The purpose of the GP Act is to reduce the incidence of graffiti by:

• creating graffiti-related offences;
• providing search and seizure powers for members of the police force; and
• providing power for a council to enter private property for the purpose of removing graffiti.

Graffiti-related Offences

The graffiti-related offences created by the GP Act include the following:

• marking graffiti on property if the graffiti is visible from a public place without the owner's consent;
• marking graffiti that is visible from a public place if the graffiti would offend a reasonable person (other than graffiti that is reasonable political comment);
• possessing a prescribed graffiti implement without lawful excuse on public transport, or in a place the person is trespassing;
• possessing a graffiti implement with the intention of using it to mark graffiti; advertising for sale a prescribed graffiti implement; and
• selling an aerosol paint container to a minor.

'Mark graffiti' means write, draw, mark, scratch or otherwise deface property by any means so that the defacement is not readily removable by wiping with a dry cloth. 'Possession' means actual physical possession, custody or control, or having and exercising access. 'Public Place' has the same meaning as in the Summary Offences Act 1966. 'Graffiti implement' means an implement or substance that is capable of being used to mark graffiti, and 'prescribed graffiti implement' means an aerosol paint container or an implement as prescribed by regulations.

Only members of the police force may issue infringement notices in respect of marking graffiti but authorised officers may issue infringement notices in respect of the sale of aerosol paint containers to minors and prosecute such offences. All penalties recovered from council prosecutions are to be paid to the council (see section 23). Police officers also have search and seizure powers.

Council Powers For Removal Of Graffiti

Councils are conferred with a discretionary power to take any action necessary to remove graffiti on private property if the graffiti is visible from a public place (under Part 4 of the GP Act). This is not to be construed as a duty to do so (see section 22).

If entry onto private property is necessary:

• the council must give at least 28 days prior notice to the owner or occupier; and
• the owner or occupier must give written consent to the removal of the graffiti and entry onto the property.

If no such consent is received, the council may not remove the graffiti or enter the property.

If entry onto private property is unnecessary:

• the council must give at least 10 days prior notice to the owner or occupier; and
• the owner or occupier must either consent to the removal of the graffiti or not object to it in accordance with the notice.

If objection is made, the council must not remove the graffiti.

The council's notice must:

• give particulars of the action proposed to remove or obliterate the graffiti;
• specify the date on which the action is proposed to be taken;

• specify the manner of objecting to the proposed action; and
• inform the owner or occupier of the terms of section 21.

Section 21 provides that no compensation is payable in respect of any loss, damage or injury to property resulting from or arising out of any act or omission done in good faith by any person in the exercise of a power or the performance of a function under Part 4 of the GP Act.

The notice may also address the question of consultation, as the council must take reasonable steps to consult with the owner or occupier in relation to the manner in which the action is to be taken.

The notice must be served in accordance with section 18(6). If entry onto private property is necessary, the council must ensure the work is carried out by a person authorised by it in writing (under section 19). The council must also ensure that all work is carried out expeditiously and in such a way as to avoid unnecessary inconvenience or disruption to the owner or occupier of the property, as well as with reasonable care and to a reasonable standard.

Other Laws

The GP Act provides that it does not derogate from the Crimes Act 1958, the Summary Offences Act 1996 or any other law. For example, criminal damage to property under the Crimes Act is an indictable offence, and wilful damage of property is an offence under the Summary Offences Act. There are also existing graffiti provisions in the Transport Act 1983 but these are to be repealed by the GP Act.

Some councils have made local laws on graffiti. Those local laws will now need to be reviewed to see whether they will remain valid once the GP Act has commenced. This is because there is a risk that a local law control on graffiti will be inconsistent with the GP Act, and therefore inoperative, pursuant to section 111 of the Local Government Act 1989.

CHALLENGE TO MOBILE BILLBOARD LOCAL LAW

The Supreme Court of Victoria has recently upheld the validity of a local law regulating the placement of advertisement signs, including mobile billboards, on roads and Council land: Payne v Port Philip City Council [2007] VSC 507. This decision will be of interest to Council officers with responsibility for local laws and enforcement. It also addresses the interaction between local laws and the Road Management Act 2004 (RMA).

The Facts

The plaintiff had been prosecuted for an offence against the local law, and sought to have the local law quashed for illegality. In particular, he contended that the local law was invalid because:

• it failed to comply with the provisions of Schedule 8 to the Local Government Act 1989 (LGA);
• it unlawfully infringed the rights of a member of the public to pass along a road;
• it had too remote or tenuous a connection with the purposes and objectives of the local law;
• the council did not comply with the procedure laid down for making a local law; and
• the local law was inconsistent with section 66 of the RMA.

Breach Of Schedule 8?

The Court held that Schedule 8 to the LGA does not govern the validity of local laws. Rather, the matters set out in Schedule 8 are relevant for consideration by the Minister for Local Government in determining whether to revoke a local law under section 123 of the LGA.

Having said that, the Court noted that some of the matters in Schedule 8 could be taken into account in considering the validity of a local law where, for example, they simply restate common law principles. However, it distinguished these from matters involving policy, or political or administrative judgements, or involving substantial formal inquiry, such as whether a local law embodies principles of major substance or controversy, or where it restricts competition and the benefits of the restriction to the community outweigh the costs.

Breach Of Right To Pass Along A Road?

The right to pass along a road was said to arise under the common law and Part 2 of the RMA. And it was said to have been infringed as the local law prohibited the presence of mobile billboards in certain locations. However, the Court interpreted the local law as not containing a blanket prohibition of the presence of mobile billboards but rather merely a regulation of the parking or placing of mobile billboards in those areas (which meant positioning the sign in a particular location and displaying the advertisement for more than some insignificant period, this being a question of fact in each case). It also noted that the right under the RMA was subject to other laws in any event (which would include a local law otherwise validly made).

Too Remote A Connection With Local Law's Purpose?

The Court found that the council clearly had power to make this local law control given councils' broad functions and purposes under the LGA . However, it accepted the plaintiff's argument that some parts of the local law control which purported to make certain persons guilty of an offence were beyond power because of the lack of sufficient connection between those persons and the illegal placement of advertising signs.

For example, the Court thought that creating offences for the following persons involved in the placement of the advertising signs were reasonably related or connected to the purpose of regulating advertising signs within the municipal district:

• the person who had the management and control of the premises, business, event or activity to which the sign related;
• the promoter of the premises etc; and
• the person responsible for the placement or distribution of the sign.

On the other hand, it considered the connection of the printer of the sign, or the owner of the property on which the sign was located (where they may be a landlord and have no knowledge or control of the sign), was too remote or tenuous to justify making them liable for an offence.

As a result, the Court severed the offending parts from the local law.

Non-Compliance With Procedure?

The Court was satisfied that the notices given by the council pursuant to section 119(2) of the LGA stated the 'general purport' of the local law. This did not involve the necessity to identify each and every substantive provision. The notices indicated that the proposed local law regulated, among other things, the placement of advertising signs and also regulated when and where specified activities and events were not permitted, which was sufficient.

Was the Local Law Invalid Due to Inconsistency?

The Court held that the local law was not inconsistent with section 66 of the RMA. This provision prohibits a person from placing an advertising sign (and other things) on a road without the co-ordinating road authority's consent. It is stated not to apply where the placement is authorised by the RMA or another Act.

The Court noted that the RMA expressly contemplated that the placing of advertising signs may be permitted under another Act and so there was no inconsistency created by the local law in requiring a permit for the placing of an advertising sign within the municipal district. It noted, though, that if a person obtained the written consent of VicRoads under section 66 of the RMA to place an advertising sign on an arterial road within the council's municipal district, the local law would be inoperative to that extent.

UPDATE ON THE CHARTER OF HUMAN RIGHTS

On 1 January 2008, the Victorian Charter of Human Rights and Responsibilities Act 2006 (Charter) came into full force allowing the Supreme Court to determine questions of law relating to the application of the Charter or in the interpretation of a statutory provision in accordance with the Charter.

The Charter is designed to guarantee that human rights are a priority for both present and future governments and that decision-making is accountable and transparent.

The Charter obliges councils (amongst other public authorities) to take human rights into consideration when making laws, including local laws and planning schemes, developing policies and providing services.

Under the Charter, it is now unlawful for a council:

• to act in a way that is incompatible with a human right; or
• in making a decision, to fail to give proper consideration to a relevant human right.

The 20 substantive human rights contained in the Charter are largely imported from the International Covenant on Civil and Political Rights. They include the right to equality before the law, the right to freedom of expression and movement, the right to privacy, the right to freedom of religion and property rights, to name but a few.

How Will The Charter Operate?

In line with established international human rights norms, the Charter recognises that few rights are absolute and limits may be placed on rights. The limits must be demonstrably justified in a free and democratic society and subject to the law.

On this basis, the Charter calls for a balance to be struck between competing individual human rights and the need to protect the broader public interest. Importantly, if councils fail to strike a fair balance between these competing interests, they will be in breach of their obligations under the Charter.

Significantly, the Charter expressly states that courts and tribunals may have regard to relevant international, regional and comparative domestic human rights jurisprudence in the interpretation and application of human rights.

The Charter has also expanded the duties of the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) in its role as a broad human rights watchdog, including providing an independent assessment of how public authorities comply with the Charter. VEOHRC will also have capacity to intervene in court or tribunal proceedings involving the interpretation or application of the Charter.

What Happens If There Is A Breach Of The Charter?

The Victorian government made it clear from the outset that it was opposed to the creation of a Charter leading to increased litigation and the obligation on government to pay damages. For this reason, a person cannot bring an action against a council for breach of the Charter alone. However, if a person can bring an independent and compensable action against a council, that action can also allege there has been conduct that is made unlawful by the Charter. In these circumstances, a person alleging a breach of the Charter may apply to the Supreme Court for:

• judicial review of a council decision on the grounds that it failed to comply with human rights or failed to give proper consideration to relevant human rights; or
• a declaration that a council acted unlawfully by failing to comply with human rights.

Charter Training

In response to this significant development, we are providing training on the operation of the Charter and how the rights are interpreted. We address how the Charter affects council business and decisions, issues regarding community expectations, record keeping and how similar legislation has been implemented overseas.

We are also providing three stand alone training workshops in:

1. contracting and service delivery;
2. planning and environment, local laws and enforcement; and
3. human resources.

In these workshops, the focus is on providing participants with the skills to recognise Charter issues in their key areas of responsibility, taking a risk management approach to identifying the types of decisions where difficult or complex Charter issues may arise.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.