Section 33 of the FOI Act and the ‘world at large’ principle — Victoria Police v Marke
Client Newsletter - November 2008
Summary : On 5 November 2008, the Court of Appeal handed down its judgment in the matter of Victoria Police v Marke [2008] VSCA 218 (Marke). The Court constituted by Maxwell P, Weinberg JA and Pagone AJA. This matter involves the interpretation of s 33(1) of the Freedom of Information Act 1982 (the Act). The decision rejects the ‘blanket’ assumption that release of documents to an applicant is necessarily release to the ‘world at large’.
The Court held that the decision whether s 33(1) applies will depend on the circumstances of the case and may include the likelihood of
dissemination by an applicant as a relevant consideration.
It rejected the first instance finding of the Supreme Court that when deciding whether disclosure of documents constitutes the unreasonable disclosure of personal information under s 33(1), a decision maker must have regard to the likelihood of dissemination by the applicant.
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Summary of practical implications for decision makers
Practical implications for decision makers
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Mr Marke is a current Police member and who sought access to documents of Victoria Police relating, in part, to a complaint made about him to Police (the complaint). The complaint was investigated by the Ethical Standards Department of Victoria Police and was found to be ‘unsubstantiated’, a finding subsequently changed to ‘unfounded’.
The documents relating to the complaint comprised correspondence between Victoria Police and the complainant. Victoria Police released
certain documents to Mr Marke in full and in part, exempting from release information relating to the personal affairs of the complainant pursuant to s33(1) of the Act and confidential information contained in the documents pursuant to s 35(1)(b) of the Act.
At the VCAT review stage, the Tribunal upheld the decision of Victoria Police in respect to s 33(1), but did not consider the s 35(1)(b) exemption.1 During the final day of the hearing, the applicant sought to make a further submission in relation to s 33(1) on the basis that he undertook not to disseminate or disclose the documents, should they be released to him. The VCAT member declined to hear the applicant on the issue and went on to determine that documents relevant to the complaint were exempt pursuant to s 33(1) relying upon the long principle that release of documents to an applicant is release to the ‘world at large’ (the ‘world at large’ principle).
Mr Marke appealed the VCAT decision in the Supreme Court, challenging VCAT’s construction of s 33(1) and the ‘world at large’ principle on the basis that a decision maker must take into consideration the particular circumstances of an applicant including whether or not there is a likelihood that he or she will disseminate the documents if released.
The Supreme Court held (per Hansen J) that VCAT erred by failing to take into account a relevant consideration, being the likelihood of Mr Marke publicly disclosing the information in the documents if released to him. In doing so, the trial judge held that VCAT erred in applying the ‘world at large’ principle. The Supreme Court determined that ‘the question of the extent of disclosure is a matter which a decision maker must have regard to, in order to decide whether disclosure of the documents in question would involve the unreasonable disclosure of information’2 [emphasis added].
The requirement imposed by the trial judge that decision makers must have regard, in all cases, to whether or not an applicant is likely to disseminate documents containing personal information imposed a practical burden on FOI agencies in that they would be required to make inquiries of applicants as to their intended use of documents. In the absence of any provision in the Act for an applicant to give an undertaking or for a decision maker to impose conditions on documents released, any assurance provided by an applicant as to nondisclosure could only be accepted on face value and would be unenforceable. Accordingly, Victoria Police appealed the trial judge’s decision.
On appeal, Victoria Police submitted that his Honour’s approach was inconsistent with the absence of statutory controls over documents once released and would impose onerous obligations on decision makers by requiring them to assess the likelihood of dissemination in every case which effectively required them to make a value judgment about the bona fides of an applicant. In doing so, Victoria Police sought to rely upon the fact that release under the Act is unrestricted and unconditional and that a decision maker need not have regard to the purpose for or use to which an applicant seeks access to documents. Rather than relying on the ‘world at large’ principle, Victoria Police sought to argue that release under FOI is release into the public domain rather than merely to an individual, in that there are no controls or restrictions placed on a document once released to an applicant. Such a requirement and interpretation of s 33(1), it was argued, did not accord with the purposes of the Act, namely a general right, available to all, to access documents held by government. Therefore, the likelihood of an applicant disseminating a document if released as an irrelevant consideration.
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- Decision makers must give consideration to any matter that may relevantly, logically and probatively bear upon whether disclosure of a document would involve the unreasonable disclosure of information relating to the personal affairs of any person under s 33(1).
- The relevant factors to be taken into account will depend on the circumstances of the case and may include the likelihood of dissemination by an applicant.
- However, agencies are not required to investigate thoroughly the scope of any dissemination that may be likely to follow release of a document. Nor is a decision maker required to make inquiries of an applicant as to their intended purpose or use of the document if released.
- Decision makers are not authorised under the Act to place restrictions or conditions on the release of documents under the Act. Accordingly, agencies are entitled to assume that once a document is released under FOI, it has the potential to be disseminated widely and should approach the balancing exercise required under s 33(1) with this factor in mind.
- The Act does not support the ‘world at large’ principle. Rather, their Honours reformulated this assumption in the following terms: once a document is released under the Act, the information is in the possession of the applicant who can do with it whatever he or she wishes, without any restrictions or limitations.
Ultimately, Victoria Police’s appeal was dismissed and each of the judges ordered that the matter remitted to VCAT for determination according to law. However, in doing so, the Court rejected the view of the trial judge that, when deciding whether disclosure of the documents would involve the unreasonable disclosure of information, a decision maker must have regard to the likelihood of dissemination by the applicant. A detailed discussion of the judgements is set out below.
Weinberg JA and Pagone AJA
Weinberg JA and Pagone AJA held that the likelihood of dissemination by an applicant may be a relevant consideration in considering whether s 33(1) applies. Further, that the factors relevant to satisfying the exemption under s 33(1) will depend on the circumstances of each case. On this point, Pagone AJA held:
In my view there is no secure foundation to
exclude from consideration any matter that
may relevantly, logically and probatively
bear upon whether disclosure of a document
‘would involve the unreasonable disclosure
of information relating to the personal
affairs of any person’. In other words, that
the test to determine what consideration a
decision maker must take into account to
determine whether a document is an exempt
document is any matter that is relevant to
the statutory condition, which bears
logically upon a consideration of it, and
which may have a probative effect upon the
decision maker. [98]
Weinberg JA and Pagone AJA also endorsed the decision of Page v Metropolitan Transit Authority3 in which it was held that the balancing
exercise to be undertaken in s 33(1) requires a consideration of ‘all of the circumstances’ including:
… the interest that the applicant has in the
information in question, the nature of the
information that would be disclosed, the
circumstances in which the information
was obtained, the likelihood of the
information being information that the
person concerned would not wish to have
disclosed without consent, and whether the
information has any current relevance. [246]
Pagone AJA determined that the above passage in Page does not narrow ‘the class of circumstances relevant for consideration’ and that ‘the inclusion as a relevant circumstance of ‘the interest that the applicant has in the information in question’ may logically include the use (including possibly subsequent dissemination) of the information’ [100].
However, their Honours rejected the trial judge’s view that when deciding whether disclosure of documents would involve the unreasonable disclosure of information under s 33(1), a decision maker must have regard to the likelihood of dissemination by an applicant [105]. Further, the Court unanimously held that there is no provision under the FOI Act for a decision maker to seek an undertaking from an applicant as to non dissemination.
Although dissemination may be relevant in some cases, Weinberg JA and Pagone AJA held that an agency is not required to investigate thoroughly the scope of likely dissemination following release of documents. On this point, Weinberg JA held that, as there is no power to enforce an assurance or undertaking given by an applicant as to dissemination of documents, such inquiries ‘seem a burdensome, and indeed pointless, exercise, which in the vast majority of cases will be of no relevance’ [69]. His Honour further held that agencies are entitled ‘to assume that once a document is made available, it has the potential to be disseminated widely and that indeed may happen’ and ‘to approach the balancing exercise required under s 33(1) with that assumption firmly in place’ [68].
Pagone AJA also acknowledged that a decision maker need not regard such assurances as sufficient, in light of the statutory consequences of unrestricted release of documents under the FOI Act [99]. His Honour further stated that an exempt document cannot ‘cease to be an exempt document by an applicant agreeing to receive the document under the Act on some basis other than that provided for by the Act, that is, given without restrictions’ [99].
Maxwell P (dissenting)
Maxwell P held that s 33(1) does not authorise or require a decision maker to consider the likelihood of an applicant publishing or disseminating a document and that such a consideration is irrelevant for the purposes of deciding whether s 33(1) applies [2]. His Honour also held, consistent with the position taken by Victoria Police, that an applicant is not required to establish that he or she has any particular interest in a document or to disclose what he or she intends to do with a document if released. Further, he stated that the Act is ‘indifferent to the identity, character, interest and purposes of the applicant’ which is necessarily consistent with the object of the Act, which is to provide a general right of unrestricted access to documents held by government [29].
As stated above, Weinberg JA and Pagone AJA endorsed the decision of Page, in which it was held that a decision about whether disclosure of personal information would be unreasonable requires a balancing of interests: namely, the right to personal privacy of an individual. However, Maxwell P held that it was incorrect to treat s 33(1) as requiring a balancing of interests between the right to privacy and the right of access to information. His Honour took the view that an applicant has a statutory right of access to documents unless it is determined that those documents are exempt. Rather, his Honour held that s 33(1) required ‘the making of a judgment, based on a synthesis of the relevant features of the case at hand, about whether the disclosure of the personal information to the applicant would be unreasonable [23].
Unconditional nature of release
Each of their Honours agreed that decision makers, including VCAT, are not authorised or empowered under the Act to place restrictions or conditions on the release of documents under FOI. Accordingly, once a document is released under the Act, the information is in the possession of the applicant who can do with it whatever he or she wishes, without any limitations upon future use, including dissemination.
Therefore, the unconditional nature of release under the Act is relevant to whether a decision maker is satisfied that s 33(1) applies. Pagone AJA considered that the statutory consequences of disclosure under the Act will ‘be powerful considerations in the balancing of interests required in the application of s 33(1)’ and that the possibility of dissemination of personal information contained in a document ‘is plainly a factor relevant to be taken into account by a decision maker and in many cases will weigh heavily against disclosure of a document under s 33(1)’.
'World at Large' principle
Their Honours were unanimous in holding that the Act does not support the long held and widely utilised assumption that release of documents to an applicant is necessarily release to the ‘world at large’. Nor did they accept that unrestricted or unconditional release to an applicant equates to a release to the ‘world at large’ [99].
Weinberg JA noted that the ‘world at large’ is ‘nothing more than a metaphor’ which really means that ‘[o]nce a document is made available under FOI, the information is in the possession of the recipient who can do with it whatever he or she wishes, without any constraints’ [67].
Maxwell P agreed with the trial judge that s 33(1) does not permit or require the ‘world at large’ principle and that disclosure under the Act is not to the world but to the applicant ‘… who can, if he/she chooses, communicate the information selectively, or generally, or not at all. Disclosure to the applicant does not involve – that is, entail or have as its necessary corollary – disclosure by the applicant to any other person’. [28]
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Summary of practical implications for decision makers
- The likelihood of dissemination of information, if released to an applicant, may be a relevant consideration in determining whether s 33(1) applies. Decision makers should approach such a determination on a case by case basis.
- While decision makers are not required to take into account, as a necessary consideration in all cases, the likelihood of a particular applicant disseminating information, where an applicant expressly raises it as an issue, the decision maker must take this factor into consideration in determining whether s 33(1) applies. However, decision makers are not obliged to accept any assurances provided by an applicant.
- The expression and assumptions of release to the ‘world at large’ should not be used in reasons for decision. Rather, when a decision maker is considering all relevant factors in assessing whether s 33(1) is satisfied, he or she can give weight in their decision to the statutory consequences of release, in relation to which, no restrictions or controls can be placed on possible dissemination by the applicant.
Practical implications for decision makers
The Marke decision raises a number of practical implications for FOI decision makers.
Likelihood of dissemination may be a
relevant consideration
In some circumstances, the likelihood of dissemination by an applicant may be a relevant consideration in determining whether s 33(1) applies. Decision makers should approach such a determination on a case by case basis taking into consideration the factors set out in the decision of Page and any other relevant factors depending on the circumstances of the particular applicant. In particular, decision makers should turn their mind to any relevant circumstances raised by an applicant.
It is reasonable to assume that an increasing number of applicants will now seek to provide assurances that they do not intend to disseminate documents if released. However, the Marke decision makes it clear that a decision maker is entitled to assume that once a document is released under FOI, it has the potential to be disseminated widely. Therefore, decision makers should approach the balancing exercise required under s 33(1) with that assumption in mind.
Importantly, decision makers are not required to investigate thoroughly the scope of any dissemination that may be likely to follow release of a document to an applicant. Nor do they have to accept such an assurance on face value.
'World at large' principle
In light of the unanimous decision of the Court in rejecting the ‘world at large’ principle, we advise that this expression and assumption should no longer be used by decision makers in future decisions. Therefore, in preparing reasons for decision, decision makers should:
- approach the balancing exercise required under s 33(1) keeping in mind that once a document is released, no restrictions or controls are imposed on the future use of the document; and
- set out in their reasons factors weighing in favour or against release in light of the relevant circumstances of the case.
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For further information
For further information or legal advice on any issues raised in this newsletter contact:
James Ruddle on 8684 0470
Deputy Victorian Government Solicitor
Jonathan Smithers on 8684 0411
Assistant Victorian Government Solicitor
Joanne Kummrow on 8684 0479
Managing Principal Solicitor
Michele Rowland on 8684 0463
Senior Solicitor
The VGSO is the primary source of legal services to the Victorian State Government and its statutory authorities, providing strategic advice and practical legal solutions.
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1 Marke v Victoria Police [2007] VCAT 747.
2 Marke v Victoria Police [2007] VSC 522, [46].
3 (1988) 2 VAR 243.
