Surveillance documents not automatically exempt from Freedom of Information requests in Victoria
Akers v Victoria Police (Review and Regulation) [2021] VCAT 1060
A recent decision of the Victorian Civil and Administrative Tribunal confirms that there is no blanket exemption for surveillance documents under the Freedom of Information Act 1982 (Vic).
Background
In early 2016, Mr Akers pleaded guilty to 22 animal cruelty offences following an inspection of his property by Victoria Police and other agencies. Shortly after, on 5 December 2016, he reported that cash and equipment worth $30,000 had been stolen from his home. Mr Akers suspected that he had been under constant surveillance and that Victoria Police was responsible for the alleged theft.
Hoping to determine whether this was the case, Mr Akers made a request under the Freedom of Information Act 1982 (Vic) (the Act) for documents concerning any surveillance conducted at his property on 5 December 2016. Victoria Police refused to confirm or deny the existence of any such documents, relying on various exemptions in the Act for law enforcement documents.
Mr Akers unsuccessfully applied to the Public Access Deputy Commissioner for review of this decision. He then sought review by the Victorian Civil and Administrative Tribunal.
The Freedom of Information Act 1982 (Vic)
The Act provides a mechanism for the public to access documents held by Victorian government agencies and Ministers, subject to certain exemptions. Section 31 of the Act sets out exemptions for "law enforcement documents", including any document that would (or is reasonably likely to):
prejudice an investigation or the enforcement or proper administration of the law (s 31(1)(a)); or
disclose law enforcement methods or procedures where this disclosure would (or would be reasonably likely to) prejudice their effectiveness (s 31(1)(d)).
If an agency or Minister claims an exemption, they bear the onus of proving that it applies.
Generally, if an agency or Minister refuses a request, they must give reasons for the refusal. But in the case of law enforcement documents, they may give reasons in terms that neither confirm nor deny the existence of any document.
Decision
The Tribunal found that the exemptions in ss 31(1)(a) and (d) did not apply.
The Act does not provide a blanket exemption for surveillance documents
As it wished to neither confirm nor deny the existence of any responsive documents, Victoria Police attempted to argue that any documents responsive to Mr Akers' request would necessarily be exempt. In other words, it contended for a blanket exemption for any documents revealing surveillance.
The Tribunal rejected this argument. In coming to this conclusion, Member Tang made several points:
Victoria Police's approach would provide an exemption even where the documents sought are not recent, the person to whom they relate is unlikely to be the subject of ongoing investigation, and/or there are legitimate concerns about the legality of the surveillance.
Section 31(3) of the Act expressly provides a blanket exemption for documents created by the Intelligence and Covert Support Command team within Victoria Police. This strongly suggests that Parliament did not intend to provide a blanket exemption for Victoria Police generally.
The Act must be interpreted so as to further its object, which includes "extend[ing] as far as possible the right of the community to access to information in the possession of the Government of Victoria".
In an earlier decision concerning a related provision, the Tribunal had rejected the application of any "universal policy" to neither confirm nor deny the existence of surveillance.[1]
Victoria Police failed to show that an exemption applied in this case
Having refused to recognise a blanket exemption, the Tribunal also found that Victoria Police had failed to prove that any exemptions applied in relation to the specific documents sought by Mr Akers.
Victoria Police had deliberately led only very general evidence in order to avoid confirming or denying whether relevant documents existed. Without more specific evidence, the Tribunal was unwilling to find that the prejudice required by ss 31(1)(a) and (d) would arise. On the other hand, there were various reasons to believe that there would be no such prejudice:
Mr Akers had already been convicted and was not said to be under ongoing investigation.
Any responsive documents would not disclose whether Mr Akers had been subject to surveillance at any point since December 2016.
Any responsive documents would concern surveillance performed at Mr Akers' previous address, so would not compromise any methods that might be used at his current address.
There was no reason to believe that Mr Akers was making the request simply to learn about and evade ongoing surveillance.
Member Tang also noted that although Victoria Police had failed to show that an exemption applied in this case, this would not prevent the Tribunal from reaching a different conclusion in relation to "a person with a long criminal history who might be expected to be subject to ongoing surveillance".
Commentary
This decision illustrates that the Act does not provide a blanket exemption for surveillance documents. Instead, Victoria Police and other agencies are expected to establish that an exemption applies by demonstrating that the relevant prejudice arises in each case.
This may be difficult to establish where, as in this case, an agency wishes to avoid leading evidence that confirms or denies that responsive documents exist. However, the Tribunal may have reached a different conclusion if:
the alleged surveillance had been more recent (rather than almost five years ago); or
Victoria Police had led more comprehensive evidence setting out, in Member Tang's words, "specific examples of the impact that disclosure might have".
Read the full decision here.
Jacob Flynn is a Lawyer at Allens.
[1] Thorne v Victoria Police [1998] VCAT 499.