Victorian Civil and Administrative Tribunal|2001-07-06

Al Hakim v Ombudsman [2001] VCAT 1972 (6 July 2001)

IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

2. The respondent's decision is otherwise affirmed.

1. By letter dated 5 July 2000 to the Ombudsman Dr Al Hakim ("the applicant") requested the following documents under the Freedom of Information Act 1982 ("the FOI Act"):

" ...all documents other than exempt documents held on your investigating file relating to my complaint against the Monash University."

2. A large number of documents was examined by Dr B W Perry, the principal officer of the respondent, and many documents were released to the applicant subject to deletion of the exempt portions of the documents. However, exemptions were claimed wholly or in part in relation to a number of documents, and the respondent notified the applicant of this claim for exemption on 7 August 2000.

3. On 28 August 2000 the applicant filed an application for review of the decision of the respondent classifying some of the above documents as wholly or partially exempt documents.

4. The documents in dispute are set out in an Amended Schedule of Exempt Documents as follows:

Various file notes of John Flemming created during his consideration of the complaint

Sections 30, 38 of the Freedom of Information Act 1982 and s.20 of the Ombudsman Act 1973.

Two file notes prepared by Robert Seamer during his assessment of the complaint

Sections 30, 38 of the Freedom of Information Act 1982 and s.20 of the Ombudsman Act 1973.

Letter to the Ombudsman from Monash University. John Flemming's pencilled in the comments have been deleted (partial deletion).

Applicant's letter to the Ombudsman. John Flemming's pencilled in comments have been deleted (partial deletion).

Filenote that recorded the private telephone number of two people (partial deletion)

Filenote that recorded information about another complaint and included another complainant's name (partial deletion)

Filenote that recorded another complainant's private telephone number (partial deletion)

Interview notes prepared by John Flemming following his interview of D Jenney

Sections 30, 33, 38 of the Freedom of Information Act 1982 and s.20 of the Ombudsman Act 1973.

Interview notes prepared by John Flemming following his interview of A Roberts.

Sections 30, 35, 38 of the Freedom of Information Act 1982 and s.20 of the Ombudsman Act 1973.

Interview notes prepared by John Flemming following his interview of N De Toro

Sections 30, 35, 38 of the Freedom of Information Act 1982 and s.20 of the Ombudsman Act 1973.

Interview notes prepared by John Flemming following his interview of D Kennedy

Sections 30, 35, 38 of the Freedom of Information Act 1982 and s.20 of the Ombudsman Act 1973.

Interview notes prepared by John Flemming following his interview of Professor J Price

Sections 30, 35, 38 of the Freedom of Information Act 1982 and s.20 of the Ombudsman Act 1973.

Interview notes prepared by John Flemming following his interview of T Berreem

Sections 30, 35, 38 of the Freedom of Information Act 1982 and s.20 of the Ombudsman Act 1973.

Interview notes prepared by John Flemming following his interview of Professor P Dransfield

Sections 30, 35, 38 of the Freedom of Information Act 1982 and s.20 of the Ombudsman Act 1973.

Letter to Ombudsman from Monash University. John Flemming's pencilled in comments have been deleted (partial deletion)

Audio tape of interview conducted by Mr Flemming with D Jenney

Sections 30, 35, 38 of the Freedom of Information Act 1982 and s.20 of the Ombudsman Act 1973.

Audio tape of the interview conducted by Mr Flemming with A Roberts

Sections 30, 35, 38 of the Freedom of Information Act 1982 and s.20 of the Ombudsman Act 1973.

Audio tape of the interview conducted by Mr Flemming with N De Toro

Sections 30, 35, 38 of the Freedom of Information Act 1982 and s.20 of the Ombudsman Act 1973

Audio tape of the interview conducted by Mr Flemming with D Kennedy

Sections 30, 35, 38 of the Freedom of Information Act 1982 and s.20 of the Ombudsman Act 1973

Audio tape of the interview conducted by Mr Flemming with Professor J Price

Sections 30, 35, 38 of the Freedom of Information Act 1982 and s.20 of the Ombudsman Act 1973

Audio tape of the interview conducted by Mr Flemming with T Berreem

Sections 30, 35, 38 of the Freedom of Information Act 1982 and s.20 of the Ombudsman Act 1973

Audio tape of the interview conducted by Mr Flemming with Professor P Dransfield

Sections 30, 35, 38 of the Freedom of Information Act 1982 and s.20 of the Ombudsman Act 1973

Audio tape of the interview conducted by Mr Flemming with A Lazar, P Marshall and A Armstrong

Sections 30, 35, 38 of the Freedom of Information Act 1982 and s.20 of the Ombudsman Act 1973

5. The background to this application is set out in considerable detail in the applicant's statement (dated 13 December 2000), submissions (dated 13 December 2000) and further material filed with the Tribunal during the course of the hearing.

6. In 1990, the applicant was a lecturer at Chisholm Institute of Technology, which amalgamated with Monash University. Subsequently, the applicant failed to be appointed to a permanent Senior Lecturer position. The applicant complained to the Ombudsman about the selection process and his failure to be appointed. An investigation of the applicant's complaint was undertaken by the Ombudsman, and the results of the investigation were communicated to the applicant in letters dated16 October 1995 and 4 December 1995. In that correspondence, the Ombudsman listed the persons who had been interviewed during the course of the investigation.

7. According to the Amended Schedule of Disputed Documents (a copy of which is attached to these reasons for decision), there are 26 documents in dispute. However, the document numbers referred to in the Respondent's Statement of Legal Contentions do not correspond with the documents set out in the Amended Schedule. Mr Tracey said at the hearing that the references in the Statement of Legal Contentions to Mr Seamer (who did not give evidence before me) ought to be read to refer to Mr Flemming. I have assumed in these reasons for decision that the exemptions relied upon are those as set out in the Amended Schedule, except in relation to document 11, where the exemptions set out in the Amended Schedule do not correspond with the exemptions referred to in Mr Flemming's statement (at paragraph 28A). In relation to document 11, I have assumed that the exemptions relied upon are those as set out in Mr Flemming's statement (at paragraph 28A).

8. The respondent relies on exemptions established by s.20 of the Ombudsman Act 1973 ("the Ombudsman Act"), and ss.25, 30, 33, 35 and 38 of the FOI Act. The disputed documents fall into the following categories:

(a) File notes created by officers of the respondent (documents1,2, 8- 10);

(d) Letter to the Ombudsman from Monash University (documents 4-6, 18);

(e) Audio-tapes of the interviews conducted during the Ombudsman's investigation (documents 19-26).

9. It was conceded by the applicant during the course of the hearing that the draft letters (documents 3 and 7) were exempt documents.

10. Section 3(2) of the Ombudsman Act provides for the appointment of the Ombudsman by the Governor-in-Council. Section 13 of the Act provides that the principal function of the Ombudsman is to enquire into or investigate any administrative action taken in any government department or public statutory body to which the Ombudsman Act applies or by any member of staff of a municipal council.

11. A complaint may be made by any person or organisation to the Ombudsman. The Ombudsman may investigate the complaint in accordance with the Act. The Ombudsman may decline to investigate a complaint which is trivial, frivolous or vexatious or not made in good faith, or which has been made after more than 12 months without satisfactory explanation. In addition, the Ombudsman may of his own motion conduct an investigation under the Act. The Ombudsman may delegate his powers and functions (see s.11). The usual practice is for complaints to be delegated to an investigating officer to conduct the investigation and prepare a report of recommendation.

12. Every investigation under the Ombudsman Act is conducted in private (s.17(2)). The Ombudsman may obtain information from such persons and in such a manner as he thinks fit: s.17(3).

13. Section 10 requires the Ombudsman and every officer of the Ombudsman, before commencing the duties, to take an oath or make an affirmation that he or she will faithfully and impartially perform his or her duties and will not, except in accordance with the Ombudsman Act or Part IVA of the Police Regulation Act 1958, divulge information received or obtained by him under the Ombudsman Act or Part IVA of the Police Regulation Act 1958.

14. The Ombudsman Act provides that any person (other than a complainant) who obtains information in the course of, or as the result of, the exercise of the Ombudsman's functions shall not disclose the information except in limited circumstances: s.20. Disclosure of information contrary to this provision is an offence: s.20(2).

15. At the completion of an investigation, if the Ombudsman is of the opinion that the administrative action was contrary to law, unreasonable, unjust, oppressive or improperly discriminatory, taken for an improper purpose, based wholly or partly on a mistake of law or fact, or otherwise wrong, he may report his opinion to the relevant authority and make such recommendations as he thinks fit: s.23. These recommendations may include that departmental practices be varied, that action should be taken to rectify or mitigate the effects of administrative action, or that any law be reconsidered. The Ombudsman is obliged to notify the complainant of the outcome of his investigation:s.24.

16. There are a number of other provisions which emphasise the confidential nature of the Ombudsman's work, including s.17(2) (investigations to be private), 18(3)and (4) (Crown privilege does not justify non-cooperation with the Ombudsman) and 20A(cooperation with Commonwealth Ombudsman).

17. The office of Ombudsman is an agency within the meaning of s.5(1) of the FOI Act because it is a "department", being an office specified in s.16(1) of the Public Sector Management and Employment Act 1998 (Vic). This has been the case since the enactment of the Freedom of Information Legislation (Amendment) Act 1993 (Vic) and the former s.17 of the Public Sector Management Act 1992 (Vic).

18. From 1987 to 1993, pursuant to Regulation 6 of the Freedom of Information Regulations 1998, the Ombudsman was not an agency for the purposes of the FOI Act. At the time of the hearing, there was a Bill before the Victorian Parliament (the Whistleblowers Protection Bill, clause 114) which would restore the former position and exempt the Ombudsman from the FOI Act.

19. During the course of preparing these reasons for decision, my attention was drawn by the solicitors for the respondent to the fact that the new Whistleblowers Protection Bill passed on 19 June 2001, and that the new s.29A of the Ombudsman Act 1973 came into operation on 19 June 2001.

20. By s.13 the FOI Act confirmed a right of access to documents in accordance with the Act. As has been held previously by this Tribunal, this right accrued to an applicant on the making of a request for access. It is to be presumed that the right would not be affected by subsequent statutory amendments in the absence of express contrary intention: see Re Baird and Vicroads (No 2) 16 VAR 92, per DP Macnamara.

21. It follows that, for present purposes, the office of Ombudsman is to be treated as being subject to the FOI Act.

22. Exemption under s.38 of the FOI Act is claimed for each of the documents in dispute. Section 38 provides:

"38. Documents to which secrecy provisions of enactments apply

A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications."

23. The enactment which the respondent contends satisfies s.38 of the FOI Act is s.20 of the Ombudsman Act, which provides:

"20. Person obtaining information shall not disclose or take advantage of it

(1) A person (other than the complainant) who obtains or receives information in the course or as a result of the exercise of the functions of the Ombudsman under this Act--

(i) for the purposes of the exercise of the functions of the Ombudsman and of any report or recommendation to be made under this Act; or

(ii) for the purposes of any proceedings in relation to an offence against this Act or section 19 of the Evidence Act 1958; or

(iii) for the purposes of any communication authorized under section 20A of this Act; and

(b) shall not take advantage of any knowledge gained from that information to benefit himself or any other person.

(2) A person who in contravention of this section discloses information or takes advantage of knowledge gained from information shall be guilty of an offence against this Act.

(3) Information obtained or received by a party from the Ombudsman in the course or as a result of the exercise of the functions of the Ombudsman under this Act is not admissible as evidence (if given by that party) in any legal proceedings other than proceedings in relation to an offence against this Act or section 19 of the Evidence Act 1958.

(4) Proceedings may only be instituted for an offence under sub-section (2)-

(b) by or with the consent of the Director of Public Prosecutions."

24. It was submitted by Mr Tracey QC, who appeared for the respondent, that s.38 of the Act applies to s.20 of the Ombudsman Act, which is an enactment "applying specifically to information of a kind contained in" the documents in this case, namely information obtained or received in the course of or as a result of the exercise of the functions of the Ombudsman under the Ombudsman Act.

25. Mr Tracey submitted that this conclusion is supported by the decision of Judge Hassett in Deasey v Geschke (unreported, 11 November 1984), pp40-42. In that decision, His Honour distinguished the decisions of the Federal Court of Australia in Kavvadias v Commonwealth Ombudsman [1984] FCA 55; (1984) 1 FCR 80, and News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR64. His Honour noted in particular that ss.35 and 35A of the Ombudsman Act 1976 (Cth) were very different from provisions of the Victorian Act. Mr Tracey submitted that the decision in Deasey v Geschke is consistent with later authority: Department of Premier and Cabinet v Birrell [No 2][1990] VR51; Re Berryman and Department of Education (unreported, VCAT, Macnamara DP, 4 February 1999), and Young v Wicks (1986)13 FCR 85.

26. A different result was reached by Mr A F Smith (as His Honour then was) in Lapidos v Ombudsman (unreported, Administrative Appeals Tribunal, 3 September 1987), pp 16-20. His Honour held that s.20 lacks the degree of specificity required by s.38 of the Act. The same conclusion was reached by Miss E H Curtain (as Her Honour then was) in Re Horesh and Ombudsman (1986) 1 VAR 149, at 150-151. Neither of these cases referred to the decision of Deasey and Geshke.

27. The applicant submitted that the exemption sought under s.38 was not made out, and urged me to follow the decision of Senior Member Preuss in Woodford v Ombudsman (unreported, VCAT, 5 April 2001).

28. It should be noted that at the time of the decisions in Lapidos v Ombudsman, Re Horesh and Ombudsman, and Deasey and Geschke, s.20 of the Ombudsman Act then provided:

"(1) A person who obtains or receives information in the course of an investigation under this Act

(i) for the purpose of the investigation and of any report or recommendation to be made thereon under this Act; or

(ii) for the purposes any proceedings in relation to an offence against this Act or section 19 of the Evidence Act 1958; or

(iii) for the purpose of any communication authorized under section 20A of this Act."

29. The above cases were discussed in detail in Woodford v Ombudsman at pp.19-26. In that case, dealing with s.20 of the Ombudsman Act in its current form, Senior Member Preuss adopted the reasoning in Kavvadias and found (at paragraph 52 of the reasons for decision) that none of the disputed documents attracted the exemption under s.38 because the language of s.20 of the Ombudsman Act "says nothing about the intrinsic characteristics of the kind of information in question". At paragraph 56 of the reasons for decision, Senior Member Preuss said that the approach in Deasey v Geschke "leaves little work for the adverb 'specifically' as is contained in s.38".

30. In Kavvadias v Cth Ombudsman, the Full Court of the Federal Court in dealing with s.35(2) of the Ombudsman Act 1986 (Cth) found it did not attract the s.38 exemption. The section prohibited an officer from disclosing to any person any information acquired by him "by reason of his being an officer, being information that was disclosed or obtained under the provisions of this Act,...". At p 85, the Court said:

"It seems to us that s.38 requires that there be a more direct and explicit reference to the nature of the information itself. Information is the commodity being dealt with in the Act, not the discipline or integrity of officers.....".

31. In News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64, the Full Court of the Federal Court considered s.47 of the National Companies and Securities Commission Act 1976 (Cth), which prohibited a servant or agent of the defendant from disclosing, except in the performance of his official duties, information acquired by him during the course of his employment. The Court held that s.38 of the Freedom of Information Act (Cth) should be construed as applying to enactments which specified the nature of quality of the information which was prohibited from disclosure, but did not apply to an enactment which identified the information solely by reference to the capacity of the person who had received or possessed it. The Court held further that an enactment would apply "specifically", within the meaning of s.38 to information of a kind if the enactment was formulated with such precision that it referred with particularity to the information.

32. The decisions of Kavvadias and News Corporation were distinguished by His Honour Judge Hassett in Deasey and Geschke.

33. Mr Tracey submitted that I ought not follow the decision in Woodford in relation to the exemption sought pursuant to s.38 of the Act. He submitted that in spite of the analysis of Berryman at paragraph 59 of that decision, the case of Berryman is on all fours with the instant case and should be followed.

34. The applicant submitted that I should follow the decision of Senior Member Preuss in the case of Woodford.

35. In both Woodford and Berryman, reference was made to the decision of the Full Federal Court in Harrigan v Department of Health (1986) 72 ALR 293 at pp 294-295, where, in a joint judgment as members of the Full Court of the Federal Court, Fisher and Jackson JJ said with respect to the provision in the Federal Act which corresponded with s.38 of the Victorian Act:

"The operation of s.38 has been considered by the Court on several occasions and the effect of those decisions, so far as presently relevant, may be stated as follows:

_(a) An enactment does not satisfy s.38 if it does no more than prohibit the disclosure of information identified only by reference to the capacity of the person who has received or is in possession of the information (_News Corporation Limited v National Companies and Securities Commission (1984) 1 FCR at 70; [1984] FCA 36; 52 ALR 277 at 283, per Bowen CJ and Fisher J).

_(b) An enactment does not satisfy s.38 if it does not more than prohibit the disclosure of information identified only as information obtained in pursuance of the enactment in which the prohibition is found (_Kavvadias v Commonwealth Ombudsman [1984] FCA 55; (1984) 1 FCR 80 at 85; [1984] FCA 55; 52 ALR 728 at 733).

_(c) The two types of enactment to which we have referred do not satisfy s.38 because they do not sufficiently identify the type of information which is the subject of the prohibition upon disclosure. A provision, however, which identifies the information as information "respecting the affairs of another person" would ordinarily be sufficiently specific to satisfy s.38 (_FCT v. Swiss Aluminium Australia Limited (1986) 66 ALR at 162-3 (Bowen CJ) and at 167, 168-9 (Jackson J))."

36. Their Honours concluded therefore that the prohibition under Section 130(1) of the Health Insurance Act which related to information "with respect to the affairs of another person" was sufficiently specific to attract the exemption under the Federal Act.

37. I agree with and adopt the analysis of Senior Member Preuss in Woodford outlined above. I consider that the effect of s.20 of the Ombudsman Act is to prohibit all persons (other than the complainant) from disclosing information that it obtained or received pursuant to the Act. The section makes blanket reference to "information" in such a manner as to suggest that it applies to any and all information obtained or received in connection with the functions exercised under the Ombudsman Act. To my mind, the language of s.20 contains no reference to the "kind" of information obtained and is materially different in this regard to the phrases which have been held to attract the exemption under s.38 of the Act. Moreover, the language of s20 is in terms which are different to those the subject of the decision in Deasey and Geshke, and I consider that there is no longer any reference (if such could be gleaned from s.20 in its original form) with particularity to the information such as to warrant distinguishing the cases of Kavvadias and News Corporation.

38. In Berryman, for example, clause 4.19 of the Teaching Service Order was held to attract the operation of the exemption under s.38 because there was specific reference to information collected during the course of the complaints process (see p. 20). Similarly, in Young v Wicks, the relevant regulation prohibited disclosure of a report or other document relating to an accident or incident that is or has been the subject of an investigation. In Harrigan, the relevant provision prohibited disclosure of information relating to the affairs of another person. In each of these cases, the wording of the relevant provision expressly provides some link to a kind of information, other than information in general acquired by officers during the course of employment.

39. Finally, I consider that the language of s.20 still falls within the proscription set out by the Full Federal Court in Harrigan, namely that it does no more than prohibit the disclosure of information identified only as information obtained in pursuance of the enactment in which the prohibition is found.

40. Accordingly, the exemption sought under s.38 of the FOI Act is not made out.

41. Section 35 of the Freedom of Information Act provides:

"Documents containing material obtained in confidence

(1) 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 or a Minister, and--

(a) the information would be exempt matter if it were generated by an agency or a Minister; or

(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.

(a) acquired by an agency or a Minister from a business, commercial or financial undertaking; and

(b) that relates to trade secrets or other matters of a business, commercial or financial nature."

42. Mr John Flemming, the Assistant Ombudsman at the time of the investigation into the complaint made by the applicant concerning the circumstances in which he failed to obtain a position as Senior Lecturer at Monash University, gave evidence in support of the claim for exemption in relation to the disputed documents.

43. Mr Flemming said that this was a relevant exemption because of the belief of Dr Perry, the principal officer, that information received by him during the course of his inquiries into a complaint was usually given to him in confidence by the parties concerned. He said Dr Perry believed that if such confidential information were released it would be likely to impair his ability to obtain similar information in the future. He said this exemption was applicable not only to information supplied to the Ombudsman by the complainant but also to information and advice provided by witnesses and respondent authorities. Although there was power under the Ombudsman Act for the principal officer to obtain information from witnesses and an authority, he believed it was more expedient and efficient to obtain information and advice on an informal cooperative basis rather than to compel people to provide the information being sought. However, it was believed that the ability of the Ombudsman to obtain such voluntary information in the future would be impaired by release of documents or information sought by the applicant. This in turn would result in interference with the effective discharge of the principal officer's statutory duties.

44. Mr Flemming said that it was his practice when interviewing witnesses in the investigation of the applicant's complaint, to appraise witnesses of the role of the Ombudsman, and the confidential nature of the investigation being carried out. He said he did so in order to encourage frankness on the part of the witnesses in relation to the amount and nature of information that would be divulged, which might be far more limited if such an undertaking were not given. He said that because much of the evidence given by the witnesses related to the applicant's performance at a job interview, it was expected that any comments made would remain confidential.

45. Exemption is claimed under this head in relation to documents 12-17, and 19-26, which are described by the respondent as "interview notes prepared by Mr Flemming after interviews" with various witnesses (documents 12-17), and audio tapes of the interviews conducted with various witnesses (documents20-26).

46. Mr Flemming said that the interview notes were in fact notes made some weeks after the interviews, which were typed by his secretary directly from the tapes of the interviews, but that they represented only what the secretary had apparently understood from the tapes. The notes contained many blank spaces where the secretary had been unable to decipher some dialogue, and had never been corrected in an attempt to make full and correct transcript of the interviews. Rather, Mr Flemming said he used these notes purely as an aide-memoire to assist him in the preparation of interviews with other witnesses. He said he told each of the interviewees that the interview material would be kept confidential.

47. Mr Tracey submitted that the exemption under s.35(1)(b) was upheld by Senior Member Preuss in Woodford in respect of documents of a similar character and that I should follow that decision in respect of documents 12-17 and 19-26. Mr Tracey submitted that the nature of the confidential communications in question is amply demonstrated by the evidence of Mr Flemming, who also gave evidence concerning the likelihood that disclosure would impair the Ombudsman's ability to obtain information from agencies or third persons in the future. Mr Tracey referred me to Ryder v Booth [1985] VicRp 86; [1985] VR 869, at 879 and 884; and Gunawan and Department of Education (unreported, VCAT, Davis SM, 15 December 1998). Mr Tracey submitted that it is fundamental to the performance of the Ombudsman's investigative functions that agencies and third persons can be assured of confidentiality in their dealings and communications with the Ombudsman and his office.

48. The applicant submitted that even if the documents in respect of which the exemption under s.35(1)(b) is claimed are confidential, their disclosure is not against the public interest. Moreover, the applicant relied on statements (Exhibits E and F) by Mr Jenney and Mr Berreen, two of the interviewees interviewed by Mr Flemming to the effect that they consent to the release of the notes of interview and the audio tapes of their respective interviews to "any interested person". Mr Jenney was present at the hearing and confirmed his consent to the release of the documents (11 and 19) relating to his interview with Mr Flemming. According to the applicant, Mr Berreen was unable to attend the hearing.

49. The willingness of Mr Jenney (and, presumably, Mr Berreen) to have the tapes and notes of their interviews disclosed does not compel a determination in favour of disclosure under s.35(1)(b) for all the tapes and records of the interviews. However, in my view it militates in favour of disclosure of the documents relating to the interviews with Mr Jenney and Mr Berreen (documents 11,16,19 and 24), and on the material before me, I am not satisfied that the exemption under s.35(1)(b) is made out in respect of those documents.

50. However, in relation to documents 12-15, 17, 20-23, and 25-26, I am satisfied on the uncontradicted evidence of Mr Flemming that the information was communicated in confidence and that disclosure of the material would be contrary to the public interest in that persons would be less likely to volunteer information and speak freely to the investigator if confidentiality were not observed and therefore would be likely to impair the ability of the agency to obtain similar information in the future. In this regard, I refer to previous decisions of this Tribunal in Re Lapidos (No 2) and Woodford v Ombudsman (at paragraphs 78-101). Accordingly, those interview notes and tapes of interview are exempt under s.35(1)(b) of the FOI Act.

"Documents containing material obtained in confidence

(a) the information would be exempt matter if it were generated by an agency or a Minister; or

(a) acquired by an agency or a Minister from a business, commercial or financial undertaking; and

(b) that relates to trade secrets or other matters of a business, commercial or financial nature."

52. Exemption is claimed under this head for the following documents (either wholly or in part): a number of file notes prepared during the course of the investigation or assessment of the complaint (documents 1,2, 8-10); correspondence between the Ombudsman and other persons including the applicant bearing handwritten comments in pencil by Mr Fleming (documents 4-6, 18); and interview notes and audio tapes relating to a number of interviews conducted by Mr Flemming (documents 11-17, 19-26).

53. Documents 12-15, 17, 20-23 and 25-26 were dealt with above in relation to the exemption claimed under s.35(1)(b)of the FOI Act. As I have found them to be exempt under s.35(1)(b) of the FOI Act, I do not consider them again under this head.

54. Mr Flemming said that in relation to the file notes prepared by the Ombudsman or his staff, it was believed that disclosure would divulge evaluative material prepared during the deliberative process of officers and would be contrary to the public interest, on the basis that officers would refrain from expressing personal opinion regarding their assessments of a complaint. That reluctance in turn would interfere with the conduct of investigations carried out by his office.

55. In relation to the notes of interviews, Mr Flemming said that these did not include his opinions, but were rough notes of his interviews with persons during the course of his investigation. He said that disclosure would impair the ability of the Ombudsman to do his or her job because of the undertaking of confidentiality given at the outset.

56. Mr Tracey submitted that the whole of the investigative process of the Ombudsman is a deliberative process and that all the documents under this head comprise documents which record the opinions, recommendations or deliberations of officers of the Ombudsman's office. Having perused the documents in respect which exemption is claimed under s.30, I have reached the following conclusions:

Documents 11, 16, 19, 24 [interview notes and tapes of interviews]

57. I am not persuaded that these documents fall within s.30(1)(a), being documents which constitute or disclose matters in the nature of "opinion, advice or recommendation", or "deliberation" for the purpose of the "deliberative processes" of the Ombudsman.

58. Notwithstanding the decision of Deasey v Geschke which found the whole of the investigative process of the Ombudsman to be a deliberative process, personal aide-memoires, and notes of interviews with persons outside an agency have been held not to be exempt under this section: see Re Birrell and Department of Premier & Cabinet (No1)(1986)1 VAR230 at 240; Re Adams and Legal Aid Commission (1987) 2 VAR 61; Re Hulls and Department of Treasury and Finance (No 2) (1998) 14 VAR 295 at 320-324; Re Borthwick and Health Commission of Victoria (1985) 1 VAR 25 at 31.

59. Even if these documents do fall within s.30(1)(a), I am not satisfied that disclosure of them, so long after the events referred to therein, would be contrary to the public interest, as required by s.30(1)(b) of the Act. The applicant is aware of the matters dealt with in the documents, which do not concern matters of high public policy, and having regard to the factors to be considered in the balancing process, as set out in Re Hulls and Victorian Casino and Gaming Authority (1998) 12 VAR 483, I am not satisfied that disclosure of these documents would be contrary to the public interest.

60. Accordingly, I am not satisfied that the exemption claimed under s.30(1) for these documents is made out.

Documents 1,2, 4-6, 18 [file notes, correspondence annotated by Mr Flemming]

61. Document 1 comprises various file notes of Mr Flemming created during his consideration of the complaint. Document 2 comprises two file notes prepared by Robert Seamer during his assessment of the complaint. I am satisfied that Documents 1 and 2 fall within s.30(1)(a)of the Act. Documents 4-6 and 18 comprise correspondence upon which Mr Flemming made brief notes in pencil.

62. Mr Flemming said that the files notes were made to assist himself and Mr Seamer in dealing with the complaint. They were tentative in nature, not intended to reflect any concluded view, and have not been published. On the other hand, the results of the Ombudsman's investigation has been published. He said the information or material in the documents could be misleading.

63. I accept the uncontradicted evidence of Mr Flemming in this regard. The final report of the Ombudsman in relation to the investigation of this complaint has been released and in my view, having considered the factors relevant to the public interest requirement, as set out in Re Hulls and Victorian Casino and Gaming Authority (1998) 12 VAR 483, it is not in the public interest for preliminary notes made by investigating officers, which were made as part of the deliberative process of the agency but which do not reflect any concluded view of the agency, to be disclosed, as disclosure in these circumstances would be likely to lead to confusion and unnecessary debate. Documents 1 and 2 are therefore exempt pursuant to s.30(1) of the Act.

64. Documents 4-6 and 18 are items of correspondence between the applicant and the respondent which bear a few handwritten annotations in pencil by Mr Flemming. Those annotations have been deleted pursuant to s.25 of the Act on the basis that they contain exempt information. I accept that these annotations were made by Mr Flemming during the course of his consideration of the complaint, and that they fall within s.30(1)(a) of the FOI Act. For the reasons outlined in paragraph 62 and 63 above, I find that Documents 4-6 and 18 are exempt pursuant to s.30(1) of the FOI Act.

"(1) 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 (including a deceased person)".

66. This exemption is relied upon in respect of documents 8-10. In documents 8-10 there has been partial deletion of the private telephone numbers of a number of persons, and of information concerning another complaint, as well as the name of another complainant.

67. Mr Flemming said that it was inappropriate to release documents which contained information regarding the private affairs of third persons because that information was essentially private and confidential between those third persons and the Ombudsman.

68. I am satisfied that the deleted portions of documents 8-10 consist of information relating to the personal affairs of persons other than the applicant. In all the circumstances, I consider that disclosure of the information would be unreasonable for the purposes of s.33, and is therefore exempt.

69. In his statement of public interest grounds, the applicant contended that disclosure of the documents in dispute would advance or promote the public interest (inter alia) in:

* Exposing the way Monash University operates in defending administrative actions;

* Revealing the basis upon which the applicant failed to be appointed to the position of senior lecturer at Monash University;

* Determining whether the investigation of the Ombudsman addressed the substance of the complaint;

* The Ombudsman ensuring that Monash University properly applied its own selection criteria to the applicant's performance;

* The Ombudsman explaining how he could be satisfied with the appointment process at Monash university and the failure of the university to appoint the applicant as a senior lecturer.

70. On behalf of the respondent it was submitted that there is a public interest in:

* Ensuring that investigations undertaken by the Ombudsman of a complaint are conducted with complete cooperation and candour on the part of all those involved and those with relevant information;

* Persons providing all relevant information to the Ombudsman and his staff, where necessary in confidence;

* Not disclosing information provided to the Ombudsman in confidence so that persons in the future are willing to cooperate and provide confidential information relevant to a complaint;

* Enabling members of the Ombudsman's office during the course of an investigation of a complaint to record information, opinions and recommendations to the Ombudsman in response to the complaint;

* Not disclosing the internal working documents of the Ombudsman and his office generated in relation to the complaints process, so as to ensure that officers can reach independent decisions;

* Not disclosing personal information which relates to third parties and is received in the course of an investigation by the Ombudsman.

71. During the course of his submissions, the applicant referred me to a number of additional authorities, including: Re Young and State Insurance Office, (1986) 1 VAR 267; Re Solaci and Ombudsman, (1987) 1 VAR 467; Lewins v Australian National University (1995) 133 ALR 452; Re Cole and Department of Justice (1994) 8 VAR 114; Re VXF and Human Rights and Equal Opportunity Commission (1989) 17 ALD 491; Medical Practitioners Board of Victoria v Sifredi [2000] VSC 33; (2000) 16 VAR 347; and Re Coleman and Director, Local Government Department, Pentland (1985) 1 VAR 9.

72. The applicant submitted that release of the documents would clear the air in relation to his misgivings about the circumstances in which he failed to be appointed to the position of Senior Lecturer at Monash University. In particular, he wanted information concerning the motivation or factual basis upon which some interviewees asserted that he was, in his words, "antagonistic to industry".

73. The Court of Appeal has considered the operation of the public interest override constituted by s.50(4) in Department of Premier and Cabinet v Robert Hulls [1999] VSCA 117 where Phillips JA concluded at p. 372-3 that the word "requires" means "demands" or "necessitates", and that the override was to be invoked only where it was imperative, rather than merely desirable in the public interest. In that case, His Honour also referred (at page 381) to the need to give full weight to each of the exceptions, exemptions and discretions contained in the FOI Act.

74. I am not satisfied on the material before me that the public interest "requires" release of the documents such as to warrant overriding the exemptions made out as outlined above.

75. It follows from the above that the respondent has made out its claim for exemptions with respect to all the disputed documents except documents 11,16,19 and 24.

76. In view of these findings, I made the following orders:

(i) Within 28 days from this day, access is granted to the following documents: 11, 16, 19 and 24.

(ii) The respondent's decision is otherwise affirmed.

Sector Management and Employment Act 1998(Vic)

Information Legislation (Amendment) Act 1993(Vic)

Companies and Securities Commission Act 1976(Cth)

Information Act 1982

Police Regulation Act 1958

Sector Management Act 1992

Information Regulations 1998

Al Hakim v Ombudsman [2001] VCAT 1972

At a glance

Court

Decision date

Source

Judgment (184 paragraphs)

Al Hakim v Ombudsman [2001] VCAT 1972 (6 July 2001)

Parties

Legislation Cited (9)

Cases Cited (4)