Seeking documents for a sexual offences committal. Freedom of Information (FOI) request to the police and DHS (Department of Human Services).

You can obtain documents through subpoena and through the form 32. Another way to source interesting and relevant documents is FOI.

An example of a FOI request to the Police would be;

all documents, records, notes, memoranda and the file or files relating to the Client and/or Operation X the target of which was the Client including but not limited to:

  • Police diary notes and daybook entries;
  • Information reports (IRs);
  • Full LEAP extracts generated concerning Client and complainants;
  • Patrol Duty Return forms;
  • INTERPOSE notes;
  • Attendance register entries;
  • Copies of all electronic data obtained;
  • The directory tree print out for any computers seized during the course of Operation X (if porn is an issue);
  • Search Warrants;
  • Affidavits relied upon by VicPol in relation to any search warrant obtained;
  • Copies of all telephone records both landline and mobile obtained or sourced during Operation X;
  • Copies of all listening device logs, log entries for any surveillance listening or monitoring during Operation X;
  • Crime scene notes and logs;
  • Copies of all telephone intercepts and any logs or summaries in relation to same.

The VicPol FOI is not to be made specifically in relation to the complainants.

The Application can be made to The FOI Officer for Victoria Police:
Tel (61 3) 9247 6801

A  VicPol request is made by sending a letter or application form requesting access to the above documents together with a cheque for the FOI Application Fee ($23.90).

The letter should be sent to the FOI Officer at:

Freedom of Information
Victoria Police Centre
637 Flinders Street

Proof of identification for the Client (i.e. birth certificate or a driver’s licence) must be provided. A solicitor is able to submit a request on behalf of his client and a signed authority from the Client must be provided. Sufficient detail to enable the documents sought to be identified in accordance with the Act must also be submitted.

In relation to the DHS FOI request.

The request is to be made naming each complainant. Again the application can be made by the applicant’s solicitor, only if a signed authority is provided. It is not easy to get much information,  but it is worthwhile trying.

A freedom of information (FOI) request may seek access to documents that include personal information of people other than the applicant. An assessment of documents under the Freedom of Information Act 1982 (“the Act”) that contain information relating to the personal affairs (“personal information”) of individuals will be made upon receipt of the request.

FOI decision makers, when assessing personal information, apply the reasonableness test, and thereby balance the general right of access to government documents with an individual’s right to privacy. Deciding whether or not it is reasonable to release personal information of individuals can be a complex process and the context in which information appears in the documents is important.

Section 33 of the Act provides

Document affecting personal privacy

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 [1] (including a deceased person).

Subject to subsection (4), the provisions of subsection (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that 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.

…[Where] the agency or Minister decides to grant access to (a document containing information relating to the personal affairs of any person other than the applicant) …[the agency or Minister] shall if practicable notify the person who is the subject of the information … of the decision and the right of appeal against the decision provided by section 50(2)(e)…

Section 33(9) Information relating to the personal affairs of any person includes information—

that identifies any person or discloses their address or location; or
from which any person’s identity, address or location can reasonably be determined.

Information that identifies any person, their address or location or information that can enable their identity, address or location to be reasonably determined is information relating to the personal affairs of any person. This means that information in a document that identifies, or reasonably can enable someone to determine who an individual is, where they live, or where they are located, comes within the ambit of s.33 of the Act.

Examples of personal information include:

  • name;
  • email address;
  • telephone number;
  • a document that contains pieces of information or words that separately would be inconsequential, but from which a person’s identity, address or location can reasonably be determined when the information is read together;
  • handwritten notes and signatures;
  • a note that could only have been written by one person;
  • voice recordings, photographs and videos;
  • information that is known in the public arena about a person’s private life or personal affairs can still be information relating to their personal affairs. Examples of such information may include charges brought or complaints made against a person.

It is worthwhile to be able to state in an application or FOI requests when you are not seeking certain categories of personal information. Alternatively, the agency may wish to obtain the applicant’s view on whether they are seeking personal information contained in the relevant documents.

When determining the reasonableness of disclosure of information relating to the personal affairs of an individual, a decision maker is required to undertake a balancing exercise of interests, by considering all of the circumstances of the particular case or request. To establish whether disclosure is unreasonable, the public interest in disclosure must be balanced against the personal interest in privacy.

The Act (s.33(2A)) requires a decision maker to specifically take into account whether disclosure would be reasonably likely to endanger the life or physical safety of any person. In addition, a number of Victorian Civil and Administrative Tribunal (VCAT) cases have identified various other issues to be considered in determining whether to release personal information.

The following are factors relevant to considering all of the circumstances of a case when determining reasonableness of disclosure. The list is not exhaustive and some aspects will be of greater relevance than others for each request.

  • Nature of the information in question, for example, names, medical information, criminal history
  • Circumstances in which the information was obtained (other exemptions may also apply, for example, material obtained in confidence)
  • Opinion of the individual concerning the release of their personal information contained in the documents
  • Whether the information is already in the public domain
  • Whether disclosure would be reasonably likely to endanger the life or physical safety of any person
  • Applicant’s reasons for seeking the documents (note that the applicant is not required to provide reasons for making an FOI request, however their reasons are a factor that can be taken into account regarding the disclosure of personal information)
  • Likelihood that disclosure would cause stress, anxiety or embarrassment
  • Whether the applicant’s purpose for seeking access (if known) will be achieved if the information is disclosed
  • Whether disclosure would be detrimental to the public interest (not necessarily limited to the public interest in protecting an individual’s privacy)
  • Whether the public interest would be promoted by releasing the information
  • Likelihood that the applicant will disseminate or disclose the information
  • The current relevance of the information

The FOI cases before the courts and the VCAT have come to different conclusions concerning the reasonableness of disclosure in different circumstances and there is no general rule, as decisions are made on a case-by-case basis. They can be subject to VCAT or judicial review.

Although there is no explicit obligation to do so, an agency will often contact third party individuals to get their views on the release of their information as part of determining the level of unreasonableness if the information was disclosed under FOI. In other words complainants’ may be alerted to a FOI request.

Although consultation with third parties is not explicitly required, it can be considered that there is an implicit requirement to consult because of s.33(2A) of the Act, as the third party would be in the best position to advise whether the disclosure would, or would be reasonably likely to, endanger their life or physical safety.

Following is a draft request made to DHS

“We act on behalf of Client .

Application is made on our client’s behalf and request access to the following documents

All referrals, correspondence, memoranda, notes, emails, case notes and case records and files in relation to:-

Compainant 1,   Date of Birth

Complainant 2,   Date of Birth

Our client has been charged with serious indictable offences based significantly upon allegation made by both aforementioned persons. The Client maintains his innocence and shall be pleading not guilty to all charges.

We do not seek the release of any information which discloses the placement, current residence or whereabouts of either named person. The purpose of this request is not to contact either named person and in fact it is part of our client’s bail conditions that no contact be made.

An undertaking is hereby given not to publish or disseminate any information released to any third party.

Specifically the information and documents requested will likely have relevance to:

The whereabouts of the named persons during the charged period which will assist with possible defence alibi preparation;

The absence of complaint or report by either named person of alleged criminal offending contemporaneous with the alleged offences which substantially would impact upon the assessment of the credit of the named persons and re relevant to the probability or otherwise of the truthfulness of each named person;

Addressing persons with whom each named person had contact with during the charged period of offending which may have caused, prompted or influence allegations having been made against our client;

the public interest would be promoted by releasing the information requested as the public has a vital interest in ensuring our client receives a fair trial which includes access to all relevant documentation to properly and prepare his defence and to ensure the risk of a miscarriage of justice is minimized.

The information being requested has “currency” as our client is will be committed for trial possibly by / / 2011.

We await your prompt response.

Yours faithfully…………….”

The DHS FOI request must be submitted in writing or lodged electronically via FOI Online, including the application fee. Other costs may be incurred in granting access to the documents requested.

Generally, it is expected that the DHS would reject the request. This is then argued in Court and reviewed or a subpoena requiring production of the files for each complainant be produced to Court is issued.

Know more about Bill Doogue on LinkedIn.

1 thought on “Seeking documents for a sexual offences committal. Freedom of Information (FOI) request to the police and DHS (Department of Human Services).”

Leave a Reply