Akers v Victoria Police [2003] VCAT 398

2. Both applications sought documents related to a situation in which, according to Victoria Police, the Applicant's wife had suffered violence at his hands.

3. On 23 March 1999, the Applicant sought access to a number of documents and video and audio tapes from Victoria Police.

4. The Respondent released 87 pages of material, three audio tapes and one video tape in June 1999. Access was denied to 48 pages in full and 12 pages in part. Later, access was granted to a further three pages in full and one page in part. An internal review affirmed the decisions made to this point.

5. Consequently 45 pages were withheld in full and 11 pages were withheld in part in relation to this application.

6. On 21 January 2002 the Applicant sought access to further documents relating to four separate incidents, three of which he alleged involved police. On 7 March 2002 the Respondent informed the Applicant that it was not able to locate any documents regarding three parts of his request and informing him of the existence of three pages of material relating to one part of the request, which concerned attendance at the Applicant's premises on 20 December 2001. Access was granted in full to one page and ultimately denied in part for the other two pages. That decision was affirmed by an internal review leaving two pages withheld in part.

7. The Respondent claims exemptions under a number of sections of the FOI Act for the withheld documents. Section 33(1) is claimed in relation to all but one of the 56 pages in dispute; section 35(1)(b) is claimed for all but 22 of the pages in dispute; section 31(1)(c) and (e) are claimed for a number of pages and section 31(1)(d) for one page; section 30(1) is claimed in relation to some documents and section 29(b) for one document.

8. Throughout the hearing, the Applicant, who appeared for himself, indicated his conviction that the Respondent had formed and acted upon erroneous views about him and members of his family. He also expressed numerous times the view that there is a public interest in people knowing how Victoria Police do their job. He indicated that he expected the documents he sought would provide information about the inadequacy of Victoria Police. He said that since he was not legally represented he relied particularly on these submissions and on his evidence and other submissions made at the hearing.

9. Mr Akers tendered 35 documents which he said showed events in a different light from the point of view he ascribed to Victoria Police. He said they showed his family had been treated badly by Victoria Police. He said they would show evidence given by the Respondent's witnesses to be incorrect. He said they would show that Senior Constable Nolan had taken a personal approach to him and his family. He said that documents already released to him showed Senior Constable Nolan acted on unproven allegations.

10. I found none of these things were in fact demonstrated in the Applicant's oral evidence or the documents, except that they showed some matters from a different perspective. Mr Akers seemed aggrieved that the intervention orders and other police assistance to Terry Anne Akers concerning alleged domestic violence did not take his needs into account. This may well be true but, put simply, that was not the police's job.

11. Evidence was given for the Respondent by Inspector Christopher Penno, Inspector Mark Stubberfield, Inspector Gerald Zammit and Senior Constable Susan Nolan.

12. The Applicant had sought to summon a number of witnesses. In the course of the hearing, I ruled that these summonses be quashed. It emerged during the Applicant's submissions on this issue that part of his reason for summoning these witnesses was his wish to bring into evidence a large number of documents (35 documents) abut which he wanted them to give evidence. I allowed these documents to be produced to the Tribunal as evidence and explained to the parties that they would be given the probative value they deserved in each case.

13. Sometime after the hearing the Tribunal received from the Applicant, which referred to these proceedings and to the review of another application by the same Applicant to the same Respondent, which I heard a few days after these proceedings. The letter said:

"I believe your decision of the above application has not been made; my submissions (in part) were if I didn't know what is in the police files I can not put my view to police or ask to have the files changed.

"Early December 2002 my neighbours were on Channel 7 around Australia quoting Victoria Police files about myself."

14. If the Tribunal wished to entertain further submissions after the close of a hearing then the rules of natural justice require that the other party should also be informed of the submission and have an opportunity to be heard. See for example Rumpf v Mornington Peninsula Shire Council [2000] VSC 311; [2000] 2 VR 69 at 94. The Respondent has not been offered such an opportunity and I do not find this necessary because the material in Mr Akers letter adds nothing to what he said at the hearing.

15. It was not disputed by the Respondent that it holds various records in various locations which refer to the Applicant. Indeed, copies of many such documents have been released to him already and others are the subject of these proceedings.

16. I assume that the Applicant's letter is intended to strengthen his argument that he should be allowed to view the documents for which exemption is claimed so that he can correct inaccuracies in them. The Applicant made this point a number of times at the hearing. I do not see that the information in his letter adds anything to what was submitted at the hearing.

17. The Respondent's evidence was provided in written statements and the witnesses each appeared at the hearing of the proceedings to give the evidence in person and answer the Applicant's questions. In referring to their evidence I will refer to the paragraph numbers in their statements for convenience. The Applicant cross-examined each witness.

18. It is convenient to consider the legal issues arising in relation to the sections of the FOI Act under which exemptions are claimed.

19. Section 29(b) provides:

"A document is an exempt document if disclosure under this Act would be contrary to the public interest and disclosure -

would divulge any information or matter communicated in confidence by or on behalf of the Government of another country or of the Commonwealth or of any other State or Territory to the Government of the State or Territory or a person receiving a commu8nciation on behalf of that Government."

20. This exemption is claimed for only one document. It requires evidence that release would be contrary to the public interest and that the document was communicated in confidence from or by or on behalf of the government of one jurisdiction to the government or agency of the Government of another jurisdiction.

21. In Re O'Sullivan and Department of Health and Community Services (No.2) (1995) 9 VAR 1 it was held to be contrary to the public interest to impede the free and candid exchange of information between State departments on child protection matters. It is no great leap to apply the same principle to concerns about domestic violence. In any case, a number of other exemptions are claimed for the one document concerned.

"Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act -

would disclose matter in the nature of opinion, advice or recommendation prepared by an officer ...or consultation or deliberation that has taken place between officers ...in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency...; and would be contrary to the public interest.

23. Exemption is claimed under this section for one page withheld in full and nine other pages which have been withheld in part. In each case other exemptions are also claimed for those pages.

24. It is relevant to note that the material for which exemption is claimed need not be in the nature of opinion, advice or recommendation. It is sufficient that its release would disclose matter of that nature see Re Mildenhall and Department of Education (1988) 14 VAR 87.

25. Section 31(1)(c) provides:

"Subject to this section, a document is an exempt document if its disclosure under this Act would, or would be reasonably likely to -

disclose, or enable a person to ascertain, the identity of a confidential source of information in relation to the enforcement or administration of the law."

26. This provision protects the identity of a person who provides information in confidence but not necessarily the information itself. That is dealt with by other provisions. The documents or evidence about them must show that the identity of the person is not already known to the Applicant. Re Coleman and Director General Local Government Department (1985) 1 VAR 9 at 13_._

27. It is not necessary that the information provided by the person whose identity is protected by this exemption should be shown to be accurate information. The exemption has been held to apply to unfounded allegations. See Re Gathercole and Western Water (unreported, VCAT Mattei M, 3 December 1999).

28. Section 31(1)(d) provides:

"Subject to this section, a document is an exempt document if its disclosure under this Act would, or would be reasonably likely to -

disclose methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures."

29. Exemption is claimed under this provision in relation to only one document.

30. Section 31(1)(e) provides:

"Subject to this section, a document is an exempt document if its disclosure under this Act would or would be reasonably likely to -

endanger the lives or physical safety of the persons engaged in or in connection with law enforcement or persons who have provided confidential information in relation to the enforcement or the administration of the law."

31. This exemption is claimed in relation to 19 pages withheld in full and ten withheld in part.

32. It has been held by the Supreme Court that "reasonably likely to endanger the lives or physical safety of persons" does not require the establishment of a more than fifty per cent chance of harm occurring. It can be a chance that is "fair", "sufficient" or "worth noting"; see Re Binnie [1989] VicRp 73; [1989] VR 836.

33. The Full Court was here overturning a decision which had said that strong and cogent evidence was needed to make out this exemption. It would be relevant to consider evidence about the past activities of the Applicant in deciding whether this exemption should stand.

34. Section 33(1) of the Act provides:

"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 ..."

35. Exemptions are claimed in relation to all but one of the pages withheld in full and one of the pages withheld in part under this provision.

36. There are two issues to consider in relation to each document for which an exemption is claimed under this section: whether the information relates to the personal affairs of a person and whether release of the document would involve the unreasonable disclosure of that information.

37. Section 33(9) is also relevant. It provides:

"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."

38. A useful statement of the principles to be applied in considering whether release of a document would amount to unreasonable disclosure of personal affairs information is found in a frequently quoted passage of Re Page and Metropolitan Transit Authority (1988) 2 VAR 243 at 245-246:

"...whether disclosure of ...information would be unreasonable ...requires a balancing of interests: the right to personal privacy of an individual whose personal affairs may be unreasonably disclosed by granting access to the information and the object of the act to extend as far as possible the right of the community to access information in the possession of the government or agencies... more particularly, this balancing of interests requires a consideration of all 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. It is apparent that the purpose of section 33(1) is to prevent the unreasonable invasion of the privacy of third parties."

39. Re Robertson and Department of Human Services (unreported) VCAT Mattei PM 12 August 1998 was a case with some similarities to the present one. There, it was alleged that the Applicant had abused his son and documents about the Respondent's interviews with the son were found to be exempt as it would be unreasonable to disclose the information therein about the Applicant's son. Similarly, in Re Carter and Department of Human Services (unreported) VCAT, Galvin DP 11 August 1998 this Tribunal found it would be unreasonable to disclose a case note on a client prepared by a protective worker, having regard to the fact that disclosure would be likely to impair the relationship between protective workers and clients and thereby inhibit the work of the Respondent. Such precedents indicate that the documents in the present case if they relate to personal affairs of a person may be exempt from release because it would be unreasonable to disclose work undertaken by the Respondent in relation to domestic violence issues.

"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 ... 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."

41. Exemption is claimed pursuant to this provision regarding 32 pages withheld in full from the Applicant.

42. In Ryder v Booth, [1985] VicRp 86; [1985] VR 869, the terms of the document, the nature of the information, the purposes for which it was provided and the circumstances in which it was provided were considered by Gray J before concluding that the communication fell within the ordinary meaning of "in confidence".

43. Section 50(4) provides:

"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 31(3) or in Section 33) where the Tribunal is of the opinion that the public interest requires that access to the document should be granted under this Act."

44. Most of the documents claimed by the Respondent to be exempt from release are said to be exempt under Section 33(1) and the Tribunal has no power to override these exemptions if they are upheld. In any case, nothing presented in evidence or submissions by the parties persuaded me that there is in this case a public interest which requires release of the documents. I refer to the decision in Re Just and Department of Justice (1996) 10 VAR 126 at 129:

"When s50(4) speaks of "the public interest" it refers to the benefit of the community in general, not the benefit of the individual, much less the curiosity of the individual."

45. Much of the Applicant's evidence and submissions concerned what he said were views formed by Victoria Police officers about him and his family and actions which he said were based on these views. Mr Akers, in other words, is aggrieved by what he sees as the attitude of Victoria Police to him. However, the existence of a private grievance which, even if well founded, may be of interest or concern to members of the public, does not on its own imply that the public interest requires release of otherwise exempt documents. Something more is needed. I have not found anything to suggest an issue of general community benefit.

46. The Respondent claims exemptions under section 33 in relation to almost every document. The person whose personal affairs would be disclosed by release of the documents in many instances is Terry Anne Akers. The information for which the exemption is claimed concerns allegations of domestic violence in which she is the alleged victim and the Applicant the alleged perpetrator. The information concerns assistance provided to her by the Respondent and other persons, information given to the Respondent and reports prepared by the Respondent and others about the issues surrounding Terry Anne Akers. Where the exemption is claimed in relation to the personal affairs of other persons, that will be addressed in relation to each document. However it is convenient to set out in greater detail the application of the relevant principles to documents which would disclose of information relating to the personal affairs of Ms Akers in particular.

47. Section 53A of the FOI Act requires the Respondent to give notice of a review application to the persons whose "personal affairs" information is claimed to be exempt under section 33(1). In answer to a question from the Tribunal, Counsel for the Respondent said that the required notice had been given and that he was instructed that the persons concerned had each informed the Respondent that they did not intend to intervene in the review and did not wish any of the information to be released.

48. Inspector Penno who gave evidence for the Respondent, said in paragraph 11 of his statement that a purported letter of consent to release of the documents was received from Terry Anne Akers and later a request for "my police file" from her, but that he formed the view that these purported consents were not voluntary. The Applicant's cross examination did not prove this view to be an unreasonable one, although on its own it does not prove that Terry Anne Akers withheld consent to the release of any documents.

49. Senior Constable Nolan gave evidence in paragraph 17 of her statement that she also believed that any document purporting to be a consent by Ms Akers to the release of documents pertaining to her would have been provided under duress and intimidation. Senior Constable Nolan's evidence established that she was in contact with Ms Akers for a considerable period of time and that she had some understanding of the effects of domestic violence on women. This indicated to me that her view was a reasonable one.

50. The Applicant produced a letter in handwriting which appeared to be that of Ms Akers when compared to other documents said to be written by her. It was dated August 2000. It sought an opportunity to view the documents which the Respondent claims are exempt under section 33 as disclosing personal affairs information about Ms Akers. This had been suggested when Ms Akers attended a directions hearing in these proceedings. The Applicant was unable to say whether the letter had ever been sent.

51. The Applicant himself gave no evidence that Ms Akers had conveyed to him her consent to release of the documents, Ms Akers did not voluntarily attend to give evidence about any such consent, nor did she follow up her purported request received at the FOI unit on 29 July 1999. Ms Akers was one of the persons the Applicant attempted to summon although the subpoena used a different name. The Applicant assured the Tribunal that this was now Ms Akers name. That subpoena was quashed. However, its existence at all indicates that Terry Anne Akers had not expressed any wish to attend the Tribunal.

52. I must also consider the instructions provided to counsel for the Respondent that all persons affected by the documents for which an exemption under section 33 is claimed had been contacted and had indicated that they did not consent to the release of the documents, although Ms Akers was not specifically mentioned. In the light of the instructions given to Counsel for the Respondent, the evidence given at the hearing by Inspector Penno and Senior Constable Nolan and taking into account the evidence and documents provided by the Applicant I am still of the view that there is serious doubt whether Ms Akers provides consent for the documents to be released to the Applicant.

53. However, in this case, even if the Applicant did provide her consent to release of the documents, it would not necessarily persuade me that documents relating to her personal affairs should be released to the Applicant.

54. It is true that under subsection 33(2) of the Act a document is not exempt from release if the information in it pertains only to the Applicant. However that does not indicate an automatic right for the person to whom personal affairs information relates to waive and destroy a valid exemption when that person is not the Applicant. This is particularly so in the circumstances of this case, which include allegations of domestic violence against the Applicant and where the personal affairs information relates to the alleged victim of that violence.

55. I refer to the abovementioned case of Re Robertson where it was said to be unreasonable to disclose information about the Applicant's son when it was alleged that the Applicant had abused his son. Again, in Re Carter this Tribunal said it would be unreasonable to disclose case notes prepared by a protective worker having regard to the fact that disclosure would be likely to impair the relationship between protective workers and clients and thereby inhibit the worker for the Respondent. I accept Inspector Penno's evidence (at paragraph 16 of his statement) that Victoria Police works frequently with alleged victims of domestic violence. It would be unreasonable to disclose information about an alleged victim to the alleged perpetrator even if the alleged victim consented, since that may well impair the ability of the Respondent to provide such assistance in the future. If the victim personally applies for documents containing his or her personal affairs then the exemption under section 33(1) would not arise.

56. Whether or not there is likely to be consent from the person whose personal affairs would be disclosed by release of a document is only one of the factors to be taken into account in deciding whether or not its release would be unreasonable. The Applicant's interest, the nature of the information and the circumstances in which it was obtained and whether it has any current relevance are also to be considered.

57. In Re Gunawan and Department of Education (unreported), VCAT, Davis SM, 15 December 1998 the Tribunal made it clear that the motives of the Applicant are relevant, noting that disclosure is less likely to be unreasonable where the Applicant's motives are commendable.

58. In the present case the Applicant emphasised during the hearing at a number of points that he wanted the information in order to "sort out his life" and to "decide who we accept back into our family". The Applicant did not directly relate this submission about his motives to the exemptions claimed under section 33. He made no detailed submissions about the law. However, since section 33 is claimed by the Respondent in relation to almost every document in dispute it is useful to test the Applicant's submissions about his motive against this provision in particular.

59. Even if the documents withheld could add to the Applicant's information about what his wife or other people did or said in the past, that same information could be given to the Applicant by the people concerned if they wished to give it to him. It is difficult to see how family disputes would be resolved by the Tribunal deciding to provide information to the Applicant which the other persons involved do not wish to provide or have not so far provided to him. I am not satisfied that the motive is a commendable one. I do not see that release of the documents would serve the stated motive in any case.

60. Senior Constable Nolan's evidence about the Applicant's motive was quite different. She said in her statement:

"Bruce is a volatile and unpredictable man who will not accept that his wife chooses to remain away from him and to seek support from persons outside the home ... I therefore have concerns for the safety of any person he may perceive as threatening his "hold" over Terry Anne."

"I believe that disclosure of the documents in dispute will increase the danger to Terry Anne... I believe that Bruce placed Terry Anne under extreme and relentless pressure in order to obtain access to the documents."

61. Senior Constable Nolan's statement referred to her wide experience in working in situations of domestic violence. I accept that the views expressed in her statement are substantially correct. The Applicant's motives for pursuing access to the documents, seen in this light, indicate disclosure would be unreasonable.

62. Mr Akers evidence and more general submissions about why he was pursuing the documents are also relevant. In summary, he considers that Victoria Police formed an erroneous view of him and his family and that they acted upon that to his detriment.

63. Part of Mr Akers motive was to prove the police were wrong. However, he was only able to bring to light trivial inconsistencies at most. Nothing which he provided as evidence or made as submissions and nothing which he elicited in cross examining the Respondent's witnesses showed that Victoria Police had acted in any way which justified the Applicant's conviction that police had used their powers unreasonably or improperly.

64. In summary, the Applicant's motive of proving the police wrong while obviously quite strong was not based on any fact he was able to prove to the Tribunal.

65. The information claimed to be related to the personal affairs of Terry Anne Akers concerns assistance provided to her by Victoria Police and others details of reports prepared by Victoria Police and others concerning alleged incidents of domestic violence and intervention orders applied for or potentially to be applied for. Such information is highly personal to Terry Anne Akers and perhaps to other members of the family.

The circumstances in which the information was provided

66. Senior Constable Nolan's evidence makes it clear that the information was provided in confidence. She says:

"She became very fearful that he would be given access to information which she had provided to me and to support services in confidence and she became more withdrawn and guarded in her discussions with me and more reluctant to seek out those support services that she had in place."

67. A number of the documents were provided or prepared in relation to applications for intervention orders or potential applications for intervention orders. It is possible to conclude from the series of events that these documents were never made public. This was confirmed by counsel for the Respondent after he sought instructions.

68. Whilst some of these events occurred three years or more ago, they are still of importance to the Applicant judging from the evidence and submissions he made at the hearing. Senior Constable Nolan gave evidence that she believed disclosure of the documents in dispute was still highly relevant. She said:

"I believe that disclosure ...will increase the danger to Terry Anne. The documents were made at a time when Terry Anne was not living with Bruce and her location was unknown to him. At that time it was Terry Anne's intention not to return to Bruce and the documents were prepared in order to assist in obtaining an intervention order on her behalf. I believe that Bruce placed Terry Anne under extreme and relentless pressure in order to obtain access to the documents. The authors of some of the documents in dispute are Terry Anne's "lifeline" from Bruce. Disclosure of the contents to Bruce will further isolate her from any form of support she has in her struggle to obtain some independence."

"I am of the opinion that disclosure ...to the Applicant would reinforce her belief that the Applicant is likely to continue to have the means or power to gain access to information from one source or another, which information will enable him to continue to exercise power over her by intimidation and aggression. In other words, it will reinforce her state of mind that there is nothing she can do which will ultimately protect her from him and that she is powerless to escape from his domination."

70. While Senior Constable Nolan's views may not be accurate in all respects, they give a strong indication that the documents are still highly relevant and so reinforce the Respondent's contention that their release would be unreasonable.

71. The question of whether it is unreasonable to disclose personal affairs information involves the balancing of two competing public interests - an individual's right to privacy and the public interest in disclosure. Mr Akers said the public should know that Victoria Police had not treated him well, or had formed incorrect views about him and his family. On a number of occasions I asked Mr Akers to state what he saw as the public interest in disclosure and his answers were of this general tenor.

72. There was no evidence that Victoria Police were incorrect in their view of the situation between the Applicant and his wife. There was no evidence of any substantially inappropriate conduct by Victoria Police which might outweigh the considerations of privacy for the individuals concerned. There was on the other hand evidence that the Applicant has pursued avenues of complaint available to him already at Victoria Police and no problems were identified.

73. In these circumstances I find that it would be unreasonable to disclose any of the information relating to the personal affairs of Terry Anne Akers contained in the documents in dispute.

74. Since a number of other exemptions are claimed for the documents in dispute and some of the section 33 exemptions apply to information pertaining to persons other than Terry Anne Akers, each document will be considered in turn.

75. These pages are reports concerning work performance. Exemption has been claimed under section 33(1). The documents mention police officers and other persons including the Applicant. For the most part the information in these documents concerns the performance of a police officer. It could be argued that this information is not personal to the police officer since it concerns official duties, so it is not exempt. However it appears from the document, which I have had the benefit of reading, that it would not be possible to release the information which deals with official issues without also revealing the personal affairs of persons other than the police officer. While the information regarding other persons in the document would be trivial on its own, given the contribution it would make to the overall information available about the situation between the Applicant and Ms Akers, I find for the reasons outlined in greater detail above that it would be unreasonable to release this information as it pertains to the personal affairs of persons other than the police officers mentioned in the documents.

76. This document is a medical form. It concerns the personal affairs of persons other than the Applicant who were involved in events surrounding the application or potential application for intervention orders under which Terry Anne Akers was or would have been the aggrieved family member. For the reasons already given, the decision of the Respondent is upheld in regard to information about the personal affairs of Terry Anne Akers. In the circumstances described, I consider it is also unreasonable to release information which would identify other persons involved, however peripherally, in these events. Accordingly the decision of the Respondent is affirmed.

This is a statement provided by a person assisting the police. It contains information about the personal affairs of Terryanne Akers, so the decision to exempt that information from release is affirmed, for the reasons already given.

77. The only other information in the document is the name and contact details of the writer. Clearly this information concerns the writer's personal affairs, under Section 33(9). Taking into account all the circumstances and Inspector Penno's evidence in paragraph 13 of his statement that he has spoken to the author of these documents who does not want them released and Senior Constable Nolan's evidence quoted at paragraphs 68 and 69 above, I find it would be unreasonable to disclose this information.

78. It is unnecessary to consider the exemption claimed for these documents under Section 35(1)(b) as the whole document is exempt under Section 33(1).

79. These documents concern the personal affairs of Terry Anne Akers so the exemption pursuant to section33(1) is affirmed for the reasons given above. They also identify other persons and given section 33(9), release of these documents would therefore disclose the personal affairs of those other persons. I find that it would be unreasonable to release the documents in as much as they refer to the personal affairs of these persons also, since they are closely connected with the personal affairs of Terry Anne Akers and these persons, according to the Respondent's submissions on this point (to which I have referred earlier at paragraph 52), do not wish the information to be released. Further, any involvement these persons had with these issues was on a confidential basis. I refer also to Senior Constable Nolan's evidence which was relevant to documents 5 and 6 and find it relevant here also in supporting the Respondent's claim.

80. An exemption was also claimed under section 35(1)(b). It is unnecessary to consider this.

81. These pages form a statement prepared by Victoria Police. It is not clear from the document or from the evidence given whether it was prepared for the purpose of an application for an intervention order but that is certainly a reasonable assumption. The document deals with the personal affairs of Terry Anne Akers and the exemption claimed under section 33(1) is therefore upheld for the reasons outlined above. Release of the documents would identify other persons and for the same reasons as in documents 5 and 6, I find it would be unreasonable to do so. The Respondent's decision is affirmed.

82. An exemption is also claimed for these documents under section 31(1)(e). The information withheld concerns events surrounding the alleged assaults of Ms Akers and intervention orders or other police activity related to these. It is relevant in considering whether release of this information might be said to endanger the lives or safety of police or persons providing confidential information to look at the alleged past behaviour of the Applicant.

83. Senior Constable Nolan said in evidence that in January 1997 she saw Terry Anne Akers with injuries consistent with an assault which were at that time attributed to the Applicant but that Terry Anne Akers was unwilling to give evidence against him. Senior Constable Nolan also gave the opinion that the Applicant may threaten the safety of any person he perceived as threatening his "hold" over Terry Anne Akers, including professionals and others who have offered her assistance.

84. While this may be a reasonable view for Senior Constable Nolan to have formed, there was not sufficient evidence provided for me to form the view that the lives or physical safety of persons other than Terry Anne Akers would be endangered by release of the information. Reports of violence in the evidence I have heard and documents provided in evidence do not show the Applicant tending to be violent to persons other than Terry Anne Akers, therefore there is not sufficient evidence for this exemption to be made out. However the Respondent's decision to withhold the documents stands, as the documents fall within the exemption claimed under section 33(1) which has been upheld.

85. This is a report of a "reporting psychologist" which deals with the personal affairs of Terry Anne Akers and the Respondent's decision to withhold the contents claiming an exemption pursuant to section 33(1) is affirmed. The Respondent's evidence on the confidentiality of the source for this report was somewhat indirect. Senior Constable Nolan's evidence was that she considered it of importance that the identity and details of the assistance provided to Terry Anne Akers should remain confidential. This strongly implies that the report has been confidential to this point, including the identity of the author. Therefore I find it would be unreasonable to release the information identifying the source, for the same reasons as in documents 5 and 6.

86. The exemptions claimed under Section 35(1)(b) and Section 31(1)(c) need not be considered as the exemption under Section 33(1) is sufficient for me to affirm the Respondent's decision.

87. The claimed exemption under section 33 is upheld for these pages, a police report, as they deal with the personal affairs of Terry Anne Akers.

88. Release of these pages would also reveal the identity of persons whose involvement was confidential according to the evidence of Senior Constable Nolan, which I accept. Therefore the claimed exemption under section 31(1)(c) is made out in relation to these documents also. It is not necessary to consider the claim that Sections 31(1)(e) and 35(1)(b) would also exempt the documents from release.

89. This is a facsimile message sent by Victoria Police. The claimed exemptions under section 31(1)(c) and 33(1) are upheld for the same reasons as those given in relation to documents 21-22. It is not necessary to consider the claimed exemption under section 31(1)(e).

90. These pages form a statement given to police. The claimed exemption under section 33(1) is upheld as the documents deal with the personal affairs of Terry Anne Akers which is unreasonable to disclose given all the circumstances.

91. Release of the document would also reveal the identity of a confidential source according to Senior Constable Nolan's evidence which I accept, therefore the exemption claimed under section 31(1)(c) is also upheld. It is unnecessary to consider the other claimed exemptions.

92. Exemption is claimed for this document under section 33(1). The exemption as it affects the personal affairs of Terry Anne Akers is affirmed, for reasons given earlier.

93. The document identifies other persons and since identity is itself "personal affairs" (pursuant to section 33(9)) that information will also be exempt if it would be unreasonable in all the circumstances to disclose it. In this case, given the circumstances outlined and the evidence of Inspector Penno and Senior Constable Nolan regarding the need for people to have confidence that information given in connection with cases of domestic violence remains confidential and the fact that this information has been provided in confidence, as Senior Constable Nolan attests and I accept, I find it will also be unreasonable to disclose the identifying information regarding other persons which appears on this document.

94. Release of this document will identify a person who has provided information to police also, so the exemption claimed under section 31(1)(c) is also made out. It is unnecessary to consider the other claimed exemptions.

95. This document, which is described in the Respondent's schedule of documents in dispute as a "report" is actually a letter. It concerns the personal affairs of Terry Anne Akers and so the exemption claimed pursuant to section 33(1) is upheld. It also concerns the personal affairs of other persons mentioned in the document who may be associated with Terry Anne Akers so that information is also exempt from release for reasons given earlier.

96. Disclosure would reveal the identity of a confidential source of information, since Senior Constable Nolan has given evidence and I accept that the information on the documents in dispute was provided in confidence and this document identifies sources. Therefore section 31(1)(c) applies to exempt this document. It is not necessary to consider the other claimed exemptions.

97. The exemption claimed pursuant to section 33(1) is upheld as this statement given to police deals with personal affairs of Terry Anne Akers.

98. Its release would reveal a confidential source of information so that the exemption under section 31(1)(c) is also upheld for reasons given in regard to the other documents. It is unnecessary to consider the other claimed exemptions.

99. These pages are a facsimile cover sheet and notes. Senior Constable Nolan has testified in regard to all documents in dispute which contain information provided to police that the information was provided in confidence. On the face of these documents it seems to me that much of the information would be known to the Applicant already. However it is not possible to release the documents without revealing the identity of the source of the information in this case, given the form of the document. I note again Inspector Penno's evidence that it is important to the work of the police in the area of domestic violence that the confidence of victims of domestic violence and persons associated with them in the confidentiality of the information they provide should not be jeopardised by the release of such information. It is in the public interest that police work in this area should not be so jeopardised. Therefore the exemption for the whole of the document under section 35(1)(b) is upheld.

100. While the document concerns the personal affairs of Terry Anne Akers, it is not clear to me that an exemption under section 33 has been made out in the case of this document. Much of the information seems to be available to the world at large so its release might not be unreasonable. However, any doubt about the application of section 33 is of no practical effect since section 35(1)(b) exempts the whole of the document.

101. This document, medical reports from a person assisting police, concerns "personal affairs" of someone other than the Applicant and for the reasons outlined earlier in relation to other documents it would be unreasonable to release that information. The Respondent's decision is affirmed.

102. Exemption is also claimed under section 35(1)(b). It is not necessary for me to consider this claim. However I do so for the sake of completeness. The evidence given by the Respondent concerning how release would impair the Respondent's ability to obtain further information was given in general terms by Inspector Penno. However I find the exemption is made out despite the generality of the evidence because the circumstances - alleged incidents of domestic violence and an application by the alleged perpetrator - are such that it would be contrary to the public interest to give any indication that information provided to police in such circumstances would be released to an alleged perpetrator.

103. This is a print out of a switched message. Exemptions are claimed for this document under section 30(1) and 31(1)(d). In his evidence, Inspector Stubberfield said:

"He mentioned he was going to cause a situation with the police where he would have something to drink and cause police attendance and necessitate police shooting him. I sat him down and discussed these comments with him. Outwardly, he didn't appear upset but the seriousness of his comments deserved action. I counselled him for some time regarding these threats which, to my recollection, were made because his wife was not returning home. I advised him to seek psychiatric and legal advice regarding his matrimonial problems and property settlement. Prior to leaving he asked me to contact his wife and ascertain if she would be prepared to speak to him. Once he left the station I instructed Sergeant Hunting to notify police communications and arrange for a message to be broadcast advising all police of the threat made by Mr Akers."

104. There is little in document 45 which is not described in that statement.

105. Inspector Penno's evidence in paragraph 19 of his statement says:

"Document 45 reveals a procedure for alerting members of the Force when certain events occur. Disclosure of this procedure would be to prejudice its usefulness in the future."

106. This is a general statement. The title given to the document in the schedule of documents in dispute and the description in Inspector Stubberfield's evidence reveal everything which is in the document as far as I can see. If there is some subtle relationship between what was said to Inspector Stubberfield by Mr Akers and what was conveyed via the switched message, that subtlety has not been revealed to me and was not described by counsel for the Respondent when I sought further explanation. In my view the document reveals no method or procedure which has not been fully revealed by the Respondent's evidence. I was not provided with sufficient evidence to make out any exemption under section 31(1)(d) nor can I divine sufficient reason from the document itself. Therefore, the claimed exemption fails.

107. An exemption is also claimed under section 30 indicating that disclosure of this document would disclose opinion, advice or recommendation and that disclosure would be contrary to the public interest. Perhaps the first limb of this is made out in the sense that the switched message provides advice of a kind about Mr Akers expressed intentions. The second limb, that it is contrary to the public interest that such material be released is harder to make out. The only relevant evidence given was by Inspector Penno who said that if such internal documents were released

"The ability of the Victoria Police to put forward and discuss options for dealing with domestic violence would be impaired should members of the Force be made aware that their advice will be disseminated outside the Force."

108. I am not persuaded that this fairly general statement applies to the document in this case. There is nothing in the switched message which has not already been revealed in the statements made nor is there anything which the police should in any way be concerned about having disseminated. Indeed the warning seems entirely appropriate. It is an attempt to ensure that any self destructive intent of Mr Akers is not brought to fruition. Accordingly the exemption claimed under section 30 also fails and the Respondent's decision in regard to this document is set aside.

109. The remaining documents have been withheld in part.

110. Some material withheld from this document, a briefing note, concerns the personal affairs of Terry Anne Akers. Some such material has been released to the Applicant pursuant to this application already. The Respondent claims that it would be unreasonable to disclose the remaining personal affairs information. This claim is upheld for the reasons given in paragraphs 46 to 74 above.

111. An exemption is also claimed for some material pursuant to section 30(1). Inspector Penno in his statement said at paragraph 20:

"The document was created to assist the station commander in his deliberative function ... The ability of the Victoria Police to put forward and discuss options ... would be impaired should members of the Force be made aware that their advice will be disseminated outside the Force."

112. In relation to this document I accept that this evidence is relevant. I am persuaded that situations involving domestic violence call for a careful approach to the release of information, as Inspector Penno attested and find that the exemption claimed pursuant to section 30(1) should stand. The Respondent's decision in relation to this document is affirmed. An exemption is also claimed pursuant to section 31(1)(e) for this document. For the reasons given earlier in relation to other documents there is not sufficient evidence for me to find that this exemption is made out.

113. This is also a briefing note. The material for which an exemption is claimed under Section 33(1) in this document reveals the personal affairs of a person other than the Applicant. The information is the contact details of a caller to police. General evidence was given by Inspector Stubberfield that such calls are confidential. I accept this evidence as applying to the caller in this document. I find that it would be unreasonable to release this information in this and all the other circumstances. The Respondent's decision is affirmed.

114. The exemption claimed under section 33(1) for the withheld information in this police report is affirmed for reasons given earlier as it pertains to the personal affairs of Terryanne Akers. Exemption is also claimed under section 30(1) and evidence was given about this claimed exemption in general by Inspector Penno in paragraph 20 of his statement quoted in relation to documents 46-7.

115. In this case the material was an expression of opinion given as part of the deliberative process of the agency concerned and as set out in Inspector Penno's evidence I accept that it will be not in the public interest for it to be released.

116. The Respondent's decision is affirmed on the basis of the first two exemptions claimed and it is not necessary to consider the other claims.

117. In this police report exemption is claimed for just over one line, pursuant to section 30(1) and section 31(1)(e). As found in relation to other documents there is not sufficient evidence for an exemption under section 31(1)(e) to be upheld, however the claimed exemption under section 30(1) is affirmed for the same reasons as those given in relation to document 49.

118. The exemption claimed pursuant to section 33(1) for the material withheld in this police report is upheld for the same reasons as those given earlier in relation to other documents. It concerns the personal affairs of Terryanne Akers and other persons. I refer to the reasons given earlier for exempting information about the personal affairs of Ms Akers and of other persons connected with the allegations of domestic violence, as set out regarding documents 5 and 6. Similarly, the exemption claimed under section 31(1)(c) is upheld for reasons given earlier in relation to other documents. The other exemptions need not be considered.

119. For reasons given earlier and referred to in relation to documents 51 - 53 the claimed exemption pursuant to section 33(1) is upheld in relation to this document also. The claimed exemption under section 31(1)(c) is also upheld. It is particularly important to protect the identity of confidential sources of information in relation to the enforcement of the law regarding domestic violence. For reasons given earlier, I note the claimed exemption under section 31(1)(e) is not made out.

120. The claimed exemption under section 33(1) is upheld as for other documents. It concerns the personal affairs of persons other than the Applicant or Terry Anne Akers but it would be unreasonable to disclose those personal affairs in this case. This document identifies persons on a witness list. It seems that they did not appear as witnesses, however, taking into account all of the factors canvassed earlier in relation to exemptions claimed under section 33 including the likely wishes of the persons concerned I find that the exemption under section 33(1) is made out. It is not necessary to consider the other claimed exemptions.

121. Material referring to personal affairs of person other than the Applicant and Terryanne Akers has been withheld from this statement of Senior Constable Nolan which was released in part. The exemptions claimed under section 33(1) and section 31(1)(c) are affirmed for reasons given earlier in relation to other documents and referred to in relation to documents 51 - 53 and these are sufficient to exempt all the withheld material.

122. There were two documents to which the Applicant sought access in this application and for which the Respondent has claimed exemptions. In relation to the first document exemptions are claimed under section 31(1)(c), section 33(1) and section 35(1)(b). The claimed exemption under Section 33(1) is upheld as the information concerns the personal affairs of Terryanne Akers, for the reasons given earlier. It is unnecessary to consider the other sections.

123. The second document withheld in part in relation to this application also has exemptions claimed under section 31(1)(c), 33(1) and 35(1)(b). I find that the claimed exemptions in relation to this withheld material are all made out, on the basis of Inspector Penno's evidence, given at paragraphs 11 and 12 of his statement. He said:

"....neither the caller's name nor the content of the call were disclosed to Mr Akers..... disclosure of this information will substantially impair the force's ability to receive similar calls for assistance in future. Without an assurance of confidentiality, a caller is likely to fear harassment...."

124. In the light of my findings, the decision of the Respondent is affirmed in relation to all documents in both these applications except document 45. Twenty-eight days from today, access is granted to document 45.