VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	vcat reference No. Z60/2020
	
CATCHWORDS	
Review and Regulation List – Freedom of Information Act 1982 sections 25, 32(1), 33(1) and 35(1)(b) – review of decision made by the Victorian Information Commissioner – applicant seeking review in relation to documents and information including documents and information that were not subject to review by the Commissioner – no jurisdiction to review in relation to those matters – consideration of claims that documents contain information that would reasonably be regarded as irrelevant and claims that documents are exempt – decision of Commissioner affirmed.   

APPLICANT	Kai Yuan Huang 	
RESPONDENT	Frankston City Council  	
WHERE HELD	Melbourne  	
BEFORE	J Billings, Senior member	
HEARING TYPE	Hearing via video conference 	
DATE OF HEARING	1 September 2020	
DATE OF ORDER	15 June 2021 	
CITATION	Huang v Frankston City Council (Review and Regulation) [2021] VCAT 634	

Order

The Tribunal affirms the decision of the Victorian Information Commissioner made on 17 January 2020.  

J Billings
Senior Member

			

APPEARANCES:	
	
For Applicant 	In person 	
For Respondent	Ms M Olynyk, solicitor 

REASONS

1	Mr Kai Yuan Huang has applied to VCAT for review of a decision made on 17 January 2020 by the Victorian Information Commissioner (the Commissioner) under the Freedom of Information Act 1982 (the FOI Act).
2	The application is expressly made under section 50(1)(b) of the FOI Act for review of “a decision of the … Commissioner refusing to grant access to a document in accordance with a request”.   
3	The Commissioner’s decision upheld a decision made on 2 September 2019 by the respondent, Frankston City Council (the Council).  
4	The decision now under review by the Tribunal – the Commissioner’s decision - refers to 42 documents, though the decision actually relates to 15 documents only.  In circumstances described below, the Commissioner recorded that 27 of the 42 documents were not subject to review.  In relation to the remaining 15 documents, the Commissioner decided that eight were to be released in part, and seven were to be refused in full.         
5	Mr Huang was self-represented in the proceeding.  The hearing was conducted in English with assistance provided from time to time by an interpreter in the English and Mandarin languages.
6	Carole Fleeman, Senior FOI and Privacy officer of the Council, and Louise Bugiera, Governance Legal Advisor for the Council, made witness statements and gave oral evidence.  They were cross-examined by Mr Huang.     
Background to the FOI request 
7	Mr Huang’s request under the FOI Act was received by the Council in June 2019.  Briefly summarised, the background to the request is that the Council took certain action against Mr Huang after it received complaints alleging nuisance at a house in Frankston that he co-owned at material times (the property).  Mr Huang used the property to provide Airbnb short term rental accommodation.  (Mr Huang’s principal place of residence is in another municipality).  Among other things, the Council issued an emergency order under the Building Act 1993 before it cancelled the order and issued a second order.  The emergency orders concerned an in-ground spa at the rear of the property.  The Council obtained a search warrant in connection with the reports about nuisance.  In mid-2018 Mr Huang was charged with four offences: failing to comply with an emergency order; two charges of failing to restrict access to the spa; and failure to register prescribed accommodation under the Public Health and Wellbeing Act 2008.  (A letter from the Council to Mr  Huang dated 2 August 2019 indicates that the last charge was withdrawn).  One of the matters relating to the spa was adjourned without conviction.  The other charge relating to the spa was withdrawn.  The charge relating to the emergency order was dismissed.  
8	Mr Huang appealed to the County Court.  All charges were withdrawn, and the Court made an order for costs in favour of Mr Huang.  
9	In his application for review, Mr Huang asserted that the Council acted illegally in various ways, including by issuing and serving the emergency orders, obtaining the search warrant, entering his property, and requiring him to attend an interview.  He further asserted that the Council took advantage of the fact that English is his second language.  Mr Huang complained to the CEO of the Council and sought internal review before he also complained to the Victorian Ombudsman.  
10	Mr Huang has evidently been in dispute with people in the neighbourhood.  Some people have complained about his use of the property.  The Tribunal Book includes material including local media reports of large, noisy overnight parties at the property.  Mr Huang has made complaints about neighbours, such as complaints about damage to the property; and about the neighbours erecting “a scaffolding structure” and banners with the words “Airbnb not welcome”, for instance.  
11	Mr Huang’s request under the FOI Act is described further below.  There were consultations to clarify the request.  The Council released numerous documents to Mr Huang. Concerned by delay, however, Mr Huang made an application to the Commissioner.
12	The Commissioner’s decision records that Mr Huang advised that he did not seek access “to any personal information at all … including name, address and contact information etc.”  The Commissioner noted that Mr Huang 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.  It was on this basis that the Commissioner recorded that 27 of the 42 documents were not subject to review by the Commissioner (and information in a number of the remaining documents was similarly not subject to review).    
13	In his application to VCAT for review, Mr Huang similarly stated that he did “not require any personal information like name, address, contact number etc.”  In an email to the Tribunal dated 10 July 2020 he more or less confirmed the position, but in an email to the Tribunal on 17 July 2020 Mr Huang said he would like to “update” his request for access to documents.  He said that he required the names of complainants and the contents of their emails or letters, but not their addresses or phone numbers.  On the same day the Council’s representatives notified the Tribunal of their objection to Mr Huang’s change of position.  
14	At the hearing before me, Mr Huang said that he had changed his mind with regard to the names of complainants since he communicated with OVIC and made his application to VCAT.  He changed his mind after he received some of the documents.  He said in effect that there were documents that indicated to him, from the nature and extent of the communications there appeared to have been with the Council, that one or more of the complainants had a special relationship with the Council, so he wanted to know who those persons were.  
15	Mr Huang alleged that there were double standards in that the Council gave him scant information when he sought it - for instance about a fencing issue - whereas the Council evidently provided substantial information to complainants about the progress of action it was taking against him.
16	I mention in this context that Mr Huang submitted to VCAT material including an audio recording of a neighbour shouting out and so, it may be said, effectively broadcasting, the address of his principal place of residence (in the other municipality).  Mr Huang asserted in effect that the neighbour must have been given that information improperly by the Council.  
Requested documents
17	Mr Huang initially requested access to documents being meeting minutes relating to the property (including allegations about nuisance, the search warrant, the formal interview, the spa, the emergency orders, specified Council officers and departments, the Magistrates’ Court charges and County Court appeal, and his complaint about the neighbours’ banner); related internal documents; and related correspondence the Council had with the internal ombudsman, the Victorian Ombudsman, and the Magistrates’ Court.  He confirmed that he was not requesting emails and other correspondence between the Council and him.  There followed communications and consultations to clarify the request.  Among other things, at that stage Mr Huang said that he requested the names of complainants.  
18	In its decision the Council identified 147 documents.  The Council granted access in full to 101 documents.  As mentioned, the Commissioner considered 42 documents but recorded that 27 of them were not subject to review.   
19	The 15 remaining documents fall into three categories.
20	The first category comprises document 1 (no. 2) – an internal email dated 8 March 2018; document 2 (4) – an internal email dated 26 March 2018; and document 3 (no. 10) – a customer request dated 9 January 2019.  The Council refers to section 25 and claims the documents contain information that would reasonably be regarded as irrelevant to Mr Huang’s request.
21	The second category comprises document 4 (13) – reports from Victoria Police undated - 2019; 5 (26) – Councillor request dated 1 February 2018; 6 (32) – an email chain dated 19 April 2018; 7 (33) – an email chain dated 9 January 2019; and 8 (34) – an email chain dated 8 January 2019.  Exemption is claimed under sections 33 and 35(1)(b).
22	The third category comprises documents 9-15 (36-42) – emails between the  Council’s officers and professional legal advisers or otherwise disclosing legal advice sought and obtained, on various dates from June 2018 to June 2019.  Exemption is claimed under section 32(1).  Further, in the case of document 15 (42), the Council refers to section 25 and claims the document contains information that would reasonably be regarded as irrelevant to Mr Huang’s request.
Jurisdiction 
23	Under section 42 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act), “review jurisdiction is jurisdiction conferred on the Tribunal by or under an enabling enactment to review a decision made by a decision-maker”.  
24	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.
25	Mr Huang has applied for review of the Commissioner’s decision.  
26	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.   
27	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.     
28	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.  
29	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.
30	Consistent with the reasons that follow, I consider that the personal affairs information would in any event be exempt under section 33.  
Relevant provisions of the FOI Act 
31	Parliament has expressed its intention in the FOI Act that, among other things, the provisions of the Act shall be interpreted so as to further the object set out in section 3(1): see section 3(2).  Section 3(1) provides that the objects of the Act include 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 creating a general right of access to information 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. 
32	Section 25 of the FOI Act provides: 
25	Deletion of exempt matter or irrelevant material
Where -
(a)	a decision is made not to grant a request for access to a document on the ground that it is an exempt document or that to grant the request would disclose information that would reasonably be regarded as irrelevant to the request;
(b)	it is practicable for the agency or Minister to grant access to a copy of the document with such deletions as to make the copy not an exempt document or a document that would not disclose such information (as the case requires); and
(c)	it appears from the request, or the applicant subsequently indicates, that the applicant would wish to have access to such a copy -
the agency or Minister shall grant access to such a copy of the document.
33	Section 32 of the FOI Act relevantly provides: 
32	Documents affecting legal proceedings
(1)	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 legal professional privilege or client legal privilege …
34	Section 33 of the FOI Act relevantly provides:	
33	Document affecting 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 (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 the information would, or would be reasonably likely to, endanger the life or physical safety of any person. 
	(9) 	In this section – 
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 … 
35	Section 35 of the FOI Act relevantly provides:
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.
36	Section 50 of the FOI Act, headed “Applications for Review by the Tribunal”, includes sub-section (4) which provides for what is generally referred to as a “public interest override”: 
(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), section 31A, 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.
Consideration 
37	The documents in dispute have been provided to the Tribunal in unredacted form and inspected by me.  
Documents number 1-3
38	The Commissioner decided that documents 1, 2 and 3 should be released in part.  There was information within these documents that was not subject to review.  The issue is whether parts of the documents that were subject to review but were not released were irrelevant to Mr Huang’s request.    
39	Ms Fleeman gave evidence about the documents.  According to Ms Fleeman’s evidence, which I accept, and which is confirmed by inspection of the documents, the parts of documents 1, 2 and 3 under consideration do not relate to the property.  
40	I conclude that the redacted information is information that would reasonably be regarded as irrelevant to Mr Huang’s request.  
Documents number 4 - 8
41	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).
42	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.
43	I must also consider whether disclosure would be unreasonable.  
44	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.    
45	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.  
46	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.  
47	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.  
48	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.  
49	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).
50	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).     
51	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].  
52	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.  
53	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).
54	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] 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]. 
55	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.   
56	The public interest override in section 50(4) does not apply to documents that are exempt under section 33.
57	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.    
58	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.   
59	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.       
60	I conclude that there is information in documents 4-8 that is exempt under sections 33(1) and 35(1)(b).    
Documents number 9 – 15 
61	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.  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:
(a)	 it contains a confidential communication between the client (or the client’s agent) and the client’s professional legal advisers that was made for the dominant purpose of obtaining or providing legal advice or is referrable to pending or contemplated litigation; 
(b)	it contains a confidential communication between the client’s professional legal advisers and third parties that was made for the dominant purpose of pending or contemplated litigation; or
(c)	it contains a confidential communication between the client (or client’s agent) and third party that was made for the purpose of obtaining information to be submitted to the client’s professional legal advisers for the dominant purpose of obtaining advice on pending or contemplated litigation.
62	Legal professional privilege attaches to documents generated by private legal practitioners or prepared for submission to them, and to documents brought into existence by or for the consideration of in-house counsel in their capacity as such: see Graze at [31].  
63	In summary, Ms Bugiera gave the following evidence.  She has been in a governance role with the Council since 2007.  Ms Bugiera is a lawyer.  She holds a practising certificate.  Her responsibilities include managing requests for legal advice and assistance.  Some aspects of her role include providing legal advice.  Ms Bugiera arranged for a prosecution relating to Mr Huang to be conducted externally after an in-house counsel left the Council in mid-2018.  A new in-house counsel took charge of the prosecution before the matter was heard by the Magistrates’ Court and, later, the County Court.  She referred to Mr Huang’s complaints to Council that were investigated internally.  She said that documents 9-15 are confidential communications between the Council’s officers and the Council’s lawyers about the prosecution.  
64	Under cross-examination by Mr Huang, Ms Bugiera said that matters were referred to external lawyers in circumstances where they had expertise that she did not have.  She said that the matters were not “normal” and that it was relatively common for the Council to seek external legal advice.  
65	I am satisfied that the documents are exempt because they are of such a nature that they would be privileged from production in legal proceedings on the ground of legal professional privilege.  I consider that documents 9, 10, and 11 contain confidential information between the Council or its officers and professional legal advisers made for the dominant purpose of obtaining or providing legal advice or referrable to pending or contemplated litigation.  What is in document 9 is replicated in document 12 where there is some additional privileged communication.  Document 13 is Ms Bugiera’s email to her manager disclosing legal advice.  Document 14 also discloses legal advice.  Document 15 contains a confidential communication referable to litigation.  (Document 15 also contains information that is irrelevant as it relates to a separate prosecution that, according to Ms Fleeman and Ms Bugiera’s evidence, which I accept, did not have anything to do with Mr Huang).  
66	Ms Bugiera gave evidence that documents 9-15 have been treated confidentially and have not been distributed or released publicly.  On the evidence before me, there has been no express or implied waiver of privilege.   
67	I conclude that documents 9-15 are exempt.
Further documents submitted by Mr Huang to VCAT 
68	I have mentioned the audio recording that Mr Huang submitted.  He also submitted photographs of the neighbour’s banner he complained about, and photos apparently showing tree-branches that someone cut and left on his driveway.  Mr Huang also submitted an email from the Council to a member of his family regarding permit requirements for Airbnbs that he asserted contradicted separate communications that the Council had with him.  He also submitted material indicating that the history has adversely affected his wellbeing.  
69	I have considered material that was submitted prior to the hearing.  The outcome of the case is not affected by that material.
70	After the hearing, Mr Huang submitted further material including highlighted versions of documents he had already submitted.  Even after VCAT wrote to the parties to indicate that neither party should submit any further material as I had reserved my decision, Mr Huang sent further documents.  They include documents that appear to relate to a separate FOI request and a separate application to OVIC.  For the most part the documents are not relevant to my decision and could not affect the outcome. 
Conclusion
71	For the reasons I have given, the decision under review is affirmed. 

J Billings
Senior Member