Freedom of Information and the Public Interest

McIntosh v Victoria Police [2009] VCAT 1868 (16 September 2009) In this case, Bell J held that the Freedom of Information Act 1982 (Vic) should be interpreted consistently with the s 15 of the Charter, which recognises that the right to seek, receive and impart information is an aspect of the human right of freedom of expression. 

Facts

In his capacity as the Shadow Minister for Police and Emergency Services, Andrew McIntosh MP applied for access to various reports and draft reports prepared by Commander Clegg for the unit of Victoria Police responsible for the placement of police officers.  Victoria Police refused to disclose five documents to Mr McIntosh claiming the exemption under s 30(1)(a) and (b) of the Freedom of Information Act 1982 (Vic), under which documents are exempt from disclosure if they are internal working documents and disclosure is contrary to the public interest.

Decision

Bell J examined the documents in light of the following principles: 

• Section 15 of the Charter, which recognises that the right to seek, receive and impart information is an aspect of the human right of freedom of expression.  The FOI Act should be interpreted consistently with this right (according to standard principles of interpretation and the interpretative obligation in s 32(1) of the Charter).
• The object of the Act is to recognise the right of the community to access information, and is limited ‘only by exemptions which protect essential public interests’.
• The purposes of the exemption in s 30 include ‘the efficient and economical conduct of government, protection of the deliberative processes of government, particularly at high levels of government and in relation to sensitive issues, and the preservation of confidentiality so as to promote the giving of full and frank advice’.

Bell J held that Documents 1, 2, 5 and 6 (‘exempt documents’) fell within the exemption in s 30 of the FOI Act and should not be disclosed.  The exempt documents were internal working documents that contained sensitive information and set out options or recommendations to the Police and Emergency Services Unit by Commander Clegg about, amongst other things:

• confidential budgetary processes and the possible distribution of funding in terms of the allocation of police officers;
• the possible public reactions in certain geographical areas about decisions regarding the allocation of police resources to that area; and
• the management and allocation of police officers. 

His Honour considered that the documents contained information that was deliberative in nature, and that it would be against the public interest to order the disclosure of such information, which could lead to ‘captious and futile public debate’.  Each of the exempt documents contained sensitive information that could lead to pointless public argument about ‘what might have happened, rather than what did happen’.  Bell J emphasised that what was important was the final decision, rather than the issues and options considered by the non decision-maker. 

By contrast, Bell J ordered that the undisclosed information in Document 4 should be disclosed.  The document contained two undisclosed paragraphs about how incorrect information came to be supplied by Victoria Police.  As it was a legitimate desire for the Shadow Minister to examine possibilities for the error, disclosure would not be contrary to public interest.  In addition, Bell J noted that disclosure would not inhibit Commander Clegg from giving full and frank advice. 

The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2009/1868.html. 

Adrienne Lyle, Human Rights Law Group, Mallesons Stephen Jaques