"The name of each employee and the date and time on which they searched records in respect of my vehicle, MB0110, and driver's license, 21084964 and DC licence, 103939 for the January 1st, 1997 through to May 1st, 1998."

Mr Baird also sought access to "correspondence relating to that vehicle and licence being incoming correspondence and outgoing correspondence to any party other than yourself, and all internal memos, missids, comment sheets, reports, advices or any other documents generated by any employee which in any way relates to myself".

Some 16 documents remain in dispute. The first 15 have been released with the names of certain individuals deleted, the last document which is described as "memorandum discussing legal advice" has been withheld in toto. A schedule of the documents for which exemption is claimed is appended to these reasons.

2. There followed a lengthy dispute between VicRoads and Mr Baird as to the payment of a $20 application fee prescribed by Section 17(2)(a) of the Freedom of Information Act 1982. Eventually in April 1999 Mr Baird forwarded a Health Care Card and the demand for the $20 fee was waived. By letter dated 24 May 1999, the Freedom of Information Officer of VicRoads, Ms Freda Mandikos granted partial access to the documents sought. In a letter dated 27 May 1999 Mr Baird sought internal review of Ms Mandikos' decision. By letter dated 5 July 1999 Mr Martin Pollard, the Manager Legal Services of VicRoads informed Mr Baird that he had conducted an internal review of Ms Mandikos' decision and by letter dated 5 July 1999 advised that her determinations had been upheld. The exemptions relied upon by VicRoads were Sections 33 and 38 of the Freedom of Information Act. The other enactment which is said to activate the exemption under Section 38 of the Freedom of Information Act is Section 92 of the Road Safety Act 1989. The Corporation relied upon Section 32 of the Freedom of Information Act as an exemption for the last document for which the entire text was claimed to be exempt on the basis that the document was the subject of legal professional privilege.

3. In addition Mr Pollard in his determination relied upon Part IIIA of the Freedom of Information Act which was inserted by way of amendment in the course of 1999, became operative on 1st July 1999. This part which extends over Sections 27A to Section 27G of the Freedom of Information Act as now amended, restricts the release of what is defined in Section 27A as "personal information". That definition is as follows:

(a) that identifies any person or discloses their address or location; or

(b) from which any person's identify, address or location can reasonably be determined."

4. On 9 July 1999 Mr Baird filed an application seeking review of the determination of VicRoads.

5. It appears that part of the documentation in dispute is now under the control of the Victorian Taxi Directorate, an agency forming part of the Department of Infrastructure. When this matter came on for hearing, Dr Hanscombe who appeared on behalf of the respondent, sought and obtained an order joining the Victorian Taxi Directorate as a party to the proceeding pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998. She and her instructors represented both VicRoads and the Victorian Taxi Directorate.

6. Mr Baird believes that there are one or more people within the VicRoads organisation who are seeking to damage him by corrupting the records of his driver's licence and his motor vehicle. He referred, without being able to give much in the way of specifics to several incidents in which Police officers pulled him over, asserting (according to Mr Baird incorrectly) that he held no current licence. He says that a friend of his, a Mr Bedson, a disabled man who is a radio enthusiast, has by monitoring Police transmissions, heard directions to mobile patrols to stop Mr Baird at the direction of VicRoads. In a previous period not covered by this request, records released to Mr Baird show that in a 52 week period his driver's licence and car registration particulars were accessed on some 53 occasions. He says that this is indicative of excessive and improper activity. In April 1997 Mr Baird sought access to the names of officers involved in accessing the same records as are at the heart of the present proceeding. The names of those officers were withheld by VicRoads but upon an application to review, the Administrative Appeals Tribunal (Deputy President Preuss) decided in proceeding 1997/026836 that those names should be released. The only exemption relied upon by VicRoads was that constituted by Section 33 of the Freedom of Information Act on the basis that the disclosure of the names "would involve the unreasonable disclosure of information relating to the personal affairs ..." of the officers. Ms Preuss held that the exemption was not made out. With the exception of the claim for legal professional privilege, this proceeding represents a "re-run" of the dispute heard and determined by Ms Preuss in that the information sought is of the identical character. Her conclusions were based upon the scope of the Section 33 exemption as a matter of law, not upon particular findings of fact. It would seem that one could reach a different conclusion in this proceeding only on the footing that:

(a) Part IIIA of the Freedom of Information Act applies and produces a different result to the one in the earlier proceeding;

(b) There is some additional exemption which was available but not put to Ms Preuss; or

7. I received without objection from Mr Baird a substantial number of confidential witness statements from officers of VicRoads and the Victorian Taxi Directorate whose identities would be disclosed if the material sought by Mr Baird were to be released. In one way or another, all stated that they were apprehensive as to the use which Mr Baird might make of the knowledge of their involvement with his records. Mr Baird swore that he had not misused the information released to him as a result of the determination in 1997/026836. He said that he sought the information to build up the "jigsaw" of what he believed was a conspiracy against him and once he reached his conclusions or acquired any further information, these matters would be examined by written correspondence with senior VicRoads or Taxi Directorate executives not by direct contact to any of the officers whose names were disclosed. Dr Hanscombe on behalf of both VicRoads and the Taxi Directorate, submitted that the officers involved had good cause to be apprehensive. As she cross-examined Mr Baird at great length upon alleged brushes with the law both in traffic and other matters. Mr Baird denied a large part or perhaps most of what was put to him in cross-examination. Whether or not I am required to make any findings as to these matters will depend upon my conclusion as to the application of Part IIIA of the Freedom of Information Act and the Section 33 exemption claimed.

Part IIIA of the Freedom of Information Act 1982

8. An important and preliminary issue which arises is as to whether Part IIIA of the Freedom of Information Act 1982 applies to this proceeding. As previously noted Mr Baird's request for access to documents under the Freedom of Information Act was made over a year before the commencement of Part IIIA. Even if one regards the initial application as not fully operative having regard to the dispute as to the payment of a fee, the application was accepted for processing in April 1999 and a determination was made upon it in May 1999. All of these steps were completed before the commencement of Part IIIA. The classic exposition in Australian jurisprudence of the principle that amending statutes are presumed not to operate retrospectively is to be found in a judgment of Dixon CJ in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261. His Honour said:

"The general rule of the Common Law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying for facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. That, given rights and liabilities fixed by reference to past facts, matters or events, the law pointing or regulating the manner in which they are to be enforced or their enjoyment as to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, not withstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed." [1957] HCA 7; (1957) 96 CLR 261, 267

This presumption is of course rebuttable by any express or implied contrary intention. The most obvious example would be express transitional provisions creating a different regime. The Freedom of Information (Amendment) Act 1999 which inserted Part IIIA into the 1982 Act contains no transitional provisions.

9. The key question in accordance with Sir Owen Dixon's formulation is whether in the events described there exist "rights or liabilities" which the Freedom of Information Act in its unamended form "had defined by reference to the past events".

10. Part IIIA bestows a review function on the Tribunal with respect to the release of "personal information". Section 27D creates a right for a person denied access to personal information to apply to this Tribunal if an agency or minister refuses to grant access to a document to which this part applies, or grants access to a copy of the document from which the personal information has been deleted. Dr Hanscombe submitted that the reconsideration conducted by Mr Pollard which was completed on the 5th of July, amounted to a refusal such as Section 27D refers to and accordingly Part IIIA applies to this proceeding and there is no question of retrospectivity.

11. It is necessary now to consider a number of authorities to determine in what circumstances a party with some sort of process pending is to be regarded as having a vested right to have the process completed on the basis of the former law and in accordance with the principle enunciated by Dixon CJ.

12. In Murphy's case itself, the plaintiff Ms Maxwell commenced an action on 30 November 1954 based on the alleged wrongful death of her husband on 19 March 1951. Until 16 December 1953 the relevant statute required that such an action be brought within 12 months of the death of the deceased person. As from that date the period was extended to six years. The majority of the court concluded that the one year time limitation and the compensation to relatives apt had the effect of conferring "a right of action which [was] to endure for 12 months from the death ... when the time expired the right of action was terminated or defeated". The effect of the amending statute therefore was to affect accrued rights and therefore it was presumed not to operate retrospectively. [1957] HCA 7; (1957) 96 CLR 261, 268

13. In Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819 a subdivider of land lodged an application to subdivide certain properties for industrial or commercial premises with the City of Nunawading. Twelve days after lodgment of the application the Local Government Act was amended empowering the Council to request the owner of land to pay a security amount of not more than one-twentieth of the site value of the land. If that request were not complied with Council was empowered to refuse to seal the plan of subdivision. The subdivider contended that in the circumstances he was entitled to have his application dealt with in accordance with the law as it stood on the date of lodgment of the application with Council and that he was not subject to any requirement to make the contribution. The Full Court of the Supreme Court (Winneke CJ, Gowans and Starke JJ) rejected this argument. The Court observed:

"If the conclusion is justified (as it appears to be) that the mere taking of procedural steps under a statute and the expectation of achieving a benefit from an administrative authority does not create a right to continuance of the proceedings after the appeal of the statute, then the conclusion seems equally justified that the mere taking of such procedural steps does not create a right to the continuance of the proceedings unaffected by amended of the statute.

The fact that various periods for procedural steps are measured under the Act from the date of submission of the plan appears to have no relevance to the matter being discussed. It attaches some importance to the date of submission in the procedural scheme but it lends no inference that a right is vested at that time in the person submitting the claim." [1973] VicRp 81; [1973] VR 819, 826

14. In reaching its conclusion in Robertson's case the Full Court applied the reasoning of the Judicial Committee of the Privy Council (Lord Denning, Lord Morris of Borth-Y-Gest and the Right Hon. L.M.D. D'Silva) in Director of Public Works v Ho Po Sang [1961] AC 901. A lessee of Crown lands had a pending application for a rebuilding certificate as at the date when the statute authorising the grant of that certificate was repealed. The Director of Public Works purported to grant the certificate nevertheless. Their Lordships concluded that the issue of the certificate after the repeal of the statute authorising it was invalid because there was no accrued right which was preserved despite the repeal. Lord Morris of Borth-Y-Gest delivered the advice of their Lordships. He observed that as at the date of the repeal of the statute authorising the grant of the rebuilding certificate

"The lessee was quite unable to know whether or not he would be given a re-building certificate, and until the petitions and cross-petitions were taken into considerable by the Governor-in-Council no-one could know. The question was open and unresolved. The issue rested in the future the lessee had no more than a hope or expectation of that he would be given a re-building certificate even though he may have had grounds for optimism as to his prospects." [1961] AC 901, 921-2

15. More recently in Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430 the High Court of Australia once again considered this issue. Mr Esber applied for a redemption of his entitlement to future payments of compensation in accordance with the Compensation (Commonwealth Government Employees) Act 1971 of the Commonwealth. His application was unsuccessful and thereafter he sought review of the adverse determination from the Commonwealth Administrative Appeals Tribunal. Whilst that review was pending a new statute, the Commonwealth Employees Rehabilitation and Compensation Act 1988 repealed the provision authorising the redemption. Mr Esber contended that he was entitled to have his case adjudicated in accordance with the old law. A majority of the Court, Mason C.J., Deane, Toohey and Gaudron JJ said:

"If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim ... once the appellant lodged an application to the Tribunal to review the delegate's decision he had a right to have the decision if the delegate reconsidered and determined by the Tribunal. It was not merely "a power to take advantage of an enactment". Nor was it a mere matter of procedure; it was a substantive right." (1992) 174 CLR 43, 44

It may be thought that Esber's case represents a somewhat more liberal view as to what might be regarded as an accrued right than the decision of their Lordships in Ho Po Sang. To the extent that there is an inconsistency I should follow the decision of the High Court. See Viro v The Queen (1978) 141 CLR 88.

16. It is trite to say that every case depends upon its own facts and circumstances. What was the situation of Mr Baird as at 30 June 1999, that is, immediately prior to the enactment of Part IIIA? Did he have any accrued right? The starting point of any analysis is the fundamental right of access granted by the Freedom of Information Act. Section 13 provides:

"Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to--

(a) a document of an agency, other than an exempt document; or

(b) an official document of a Minister, other than an exempt document."

17. In Birrell v Victorian Economic Development Corporation (1989) 3 VAR 358 Judge Jones, then President of the Administrative Appeals Tribunal, had to consider whether the transfer of certain documents from the Victorian Economic Development Corporation (which was subject to the Freedom of Information Act) to the Rural Finance Commission (which was not) after a request for access to those documents had been made, operated to deprive the Administrative Appeals Tribunal of jurisdiction to review the question of the release of the document. His Honour concluded that the transfer did not. He remarked:

"In my view, the following conclusions apply to the FOI Act. The right arises in respect of particular documents. It comes into existence as an enforceable right when, and only when, request is made in accordance with S.17. The right is to access the document of an agency for which a request is made. For the right to arise the document must be a document of an agency (that is, in the possession of an agency) when the request is made as the right only attaches to such a document. The critical point of time is the point of time when the request is made. The right that arises is a right to obtain access in accordance with the FOI Act, that is by means laid down in the Act. There is a correlative duty on an agency to grant access pursuant to S.20. However, where a request for access relates to exempt documents or documents otherwise excluded from access under the Act, there is no enforceable right of access. Consequently there is no correlative duty in these circumstances to grant access pursuant to S.20 and by way of necessary implication there is power to refuse access in such circumstances. If access is refused the FOI Act gives an applicant a right of internal review and a right of review by the Tribunal, which stands in the shoes of the agency and makes what it considers to be the correct or preferable decision." (1989) 3 VAR 358, 370

"If access could be defeated by an agency parting with possession after a request is made, the scheme and object of the FOI Act would be undermined. It would mean that an applicant could be denied access to a document that he requested and which was in the agency's possession at the time of the request even though it was not caught by the exemption or exception provisions. That, in my view, is not what Parliament intended when enacting the FOI Act."

His Honour overruled the objection to the Tribunal's jurisdiction.

18. In my view it is clear that in accordance with the principle enunciated in Esber's case, Mr Baird had a right to have his application for access to documents determined in accordance with the law as it stood when he made his application. As Judge Jones observed, the date of the request for access is the critical date which fixes the rights and duties of requesting citizen and agency. The Freedom of Information Act specifically creates an enforceable right of access. As at 30 June 1999 Mr Baird had such a right, unless it appeared that the documents which he sought were exempt. If they were not exempt, there is no discretion in either the agency or this Tribunal upon the review to refuse him access. He had a right not a mere hope or expectation.

19. I reject Dr Hanscombe's submission that there is any significance to be attached to the fact that the administrative review conducted by Mr Pollard was completed on 5 July. Section 51 of the Freedom of Information Act provides that except where the initial determination refusing access or complete access to a document ahs been made by the responsible minister or principal officer of the agency, a person is not entitled to seek review of the adverse determination unless he has sought an internal review of the decision. Accordingly the conduct of an internal review is a key step and a jurisdictional issue with regard to the Tribunal's power of review under Part VI of the Freedom of Information Act. In contrast, under Part IIIA of the Act, under Section 27D(1) an applicant for access who is refused under that Part, may seek an immediate review of the refusal from the Tribunal without undergoing an administrative review. This only goes to show that the conduct of an administrative review is relevant to Part VI of the Act and wholly irrelevant to Part IIIA and it is wrong to seek to attach any particular significance, for the purposes of Part IIIA to the date upon which an administrative review under Part VI has been carried out. It is clear that the refusal referred to in Section 27D(1) is the initial refusal and refusal upon an internal review is no more a separate refusal than the continued resistance to the grant of access by an agency through Counsel at a Tribunal hearing, is a further "refusal".

20. In my view the rights and liabilities of Mr Baird and VicRoads (and if it matters, the Victorian Taxi Directorate) were fixed as at the date of Mr Baird's initial request and there is nothing to displace the presumption that the enactment of Part IIIA does not have the effect of disturbing those vested rights and duty.

21. Section 33 of the Freedom of Information Act renders a document exempt "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)".

22. Dr Hanscombe submitted that "a person's name relates to his or her personal affairs". She referred to Simons v Victorian Egg Marketing Board (1985) 1 VAR 54; Mildenhall v Department of Treasury (Administrative Appeals Tribunal, Galvin DP, 15 January 1990); Cremmen v Frankston Hospital (1989) 4 VAR 7; Simons v Victoria Police (1990) 4 VAR 266. In Simons' case, the applicant, a journalist, sought access to the names and addresses of licensed free-range egg producers in Victoria. Judge Higgins (as he now is) refused access, remarking:

"A person's name and his address are clearly matters of personal affairs in themselves and as such ought to be entitled to the protection of S.33 of the Act."

23. In Mildenhall's case, Mr Mildenhall, then an opposition front bencher, sought access to documents relating to the appointment of Centaurus Corporate Finance as the project manager and principal adviser to the Government of Victoria for the restructuring and privatisation of the Victorian TAB. Mr Galvin proceeded upon the footing that the names of individuals constituted information relating to their personal affairs. Whilst it is not entirely apparent from Mr Galvin's reasons, the names which he was considering appear to be names of persons associated with Centaurus Corporate Finance and unsuccessful tenderers, that is persons other than agency officers.

24. In Cremmen's case the applicant sought access to the names of doctors, nurses and staff who may have witnessed a fight involving him and the police. The Tribunal member Mr K.R. Howe, referring to the hospital's duty rosters, observed:

"The names of the people appearing on the roster was information relating to their personal affairs". (1989) 4 VAR 7, 8

25. In Reilly v Kilmore District Hospital (1993) 6 VAR 16, Mrs Bretherton considered an application for access to documents by a director of nursing at the hospital who had become aware of staff dissatisfaction with her. She sought access to certain documents presented to the Hospital Board by the staff. Mrs Bretherton upheld an exemption under Section 33 with respect to one of the documents in dispute. She said of the exemption "What has caught by the Section is information that identifies an individual and can be readily associated with that person".

26. In Billinghurst v Attorney-General's Department (Administrative Appeals Tribunal of Victoria 3 February 1992, Judge A.F. Smith) His Honour considered an application by Mr Billinghurst for access to documents which "would reveal the identity, the names and other particulars of officers of the Sheriff". The Sheriff swore that:

"If this type of information revealing the identity of his officer's were to be revealed under the Act, there would be a loss of moral amongst all the officers and, moreover, in the case of some of them there would be reason to believe that they would fear harassment based on past experience of harassment by telephone and by letters and, in one instance, harassment took the form of the slashing of tyres of a motor vehicle belonging to the officer concerned."

"It is not disputed that under S.33 of the Act the revelation even of a person's name of address constitutes the disclosure of information relating to the personal affairs of a person."

27. In Perton v Department of Manufacturing and Industry Development (1991) 5 VAR 149 access was sought to the names of the public servants involved in the execution of a costly Government project. Judge Fricke, Deputy President, held those names to be exempt under Section 33. He said:

"It seems reasonably clear that the disclosure of the public servants' names would involve the disclosure of information relating to the personal affairs of those public servants. It has already been held on a number of occasions that a person's name, address and telephone number relate to his person affairs ..."

28. In Simons v Victoria Police (1990) 4 VAR 266 Mr P. Wilson, sitting as a member of the Administrative Appeals Tribunal, considered an application for access to documents showing the number and types of complaints made against seven police officers, once again gave a very wide meaning to the Section 33 exemption.

29. It will be seen that these authorities certainly support the view that the name of an individual is without more to be regarded as information relative to his personal affairs. They draw no distinction for these purposes between the names of agency officers and of ordinary citizens whose names and particulars may for one reason or another be recorded by an agency which receives a freedom of information request. These decisions are characterised by an assumption without analysis that the name of an individual is information concerning his personal affairs. The first critical analysis of this proposition is to be found in a unanimous decision of the New South Wales Court of Appeal in Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606. The Court concluded that where the disclosure of the names of an agency's employees revealed no more than the fact that they were performing their public duties, no disclosure of their personal affairs was involved. The Court was referred to some of the Victorian authorities to the contrary but disagreed. Mahoney JA (as he then was) said:

"A person's name would not, I think, ordinarily be, as such, part of his personal affairs.

The fact that a person is a public servant involved in a particular transaction or on duty at a particular time may, in some circumstances, "involve" the disclosure of information concerning his personal affairs. Thus, it may involve that he was not at home at a particular time. Whether it will do so will depend upon the circumstances and what is suggested to be "involved". In the present case, the suggestion is essentially that what will be disclosed is that the person took part in the passage of information to Queensland. That, I think, is not part of the "personal affairs" of the person in question; it is part only of their public duties and the discharge of them. But it was submitted, at least at one stage, that the mere fact that a person, a public servant, performs a particular function or performed it on a particular occasion is part of "private affairs". Special cases apart, I do not think that this would be so. I do not think that it is this which the exemption is intended to protect."

"There is no simple rule that disclosure of the name of a person will in every case amount to disclosure of information concerning the named person's "personal affairs". The commission is so submitted. However, I would reject that submission. It is true that disclosure of a name will disclose information concerning the person. But the submission pays insufficient attention to the composite phrase "the personal affairs". The importance of the word "affairs" has been emphasised by the Federal Tribunal: see, eg. Re Corkin and Department of Immigration and Ethnic Affairs (1984) 2 AAR 214; Re Wong and Department of Immigration and Ethnic Affairs (at 211). That word is to be interpreted as it si commonly understood in ordinary speech.

The ordinary dictionary meaning of "personal affairs" has been held to involve "matters of private concern to an individual ... in its context, the words "personal affairs" means the composite collection of activities personal to the individual concerned.

Applying that test, it cannot properly be said that the disclosure of the names of police officers and employees involved in the preparation of reports within the New South Wales Police can be classified as disclosing information concerning their personal affairs. The preparation of the reports apparently occurred in the course of the performance of their police duties. What would be disclosed is no more than the identity of officers and employees of an agency performing such duties. As such, there would appear to be nothing personal to the officers concerned. Nor should there be. It is quite different if personnel records, private relationships, health reports or (perhaps) private addresses would be disclosed. Such information would attract the exemption. But the name of an officer or employee doing no more than the apparent duties of that person could not properly be classified as information concerning the "personal affairs" of that person. The affairs disclosed are not that person's affairs but the affairs of the agency." (1993) 31 NSWLR 606, 624-5

30. The same approach was adopted by De Jersey J. (as His Honour the Chief Justice of Queensland then was) in State of Queensland v Albietz (1996) 1 QdR 215. The director of a company which had been the subject of a revenue enquiry by the Queensland Revenue Authority sought the names of Departmental officers involved in various investigations. It was contended that these names were exempt under the personal affairs exemption in the Queensland Freedom of Information statute equivalent to Section 33 of the Victorian statute. His Honour adopted and applied the reasoning of the New South Wales Court of Appeal. He observed:

"I can readily appreciate the grave apprehension of the Departmental officers concerned. The Freedom of Information Act does not confer any discretion on the Information Commissioner, or the Supreme Court, to stop disclosure of information because of any particular motivation in the applicant. Even were I satisfied that Mr Murphy intended to do nothing more constructive than cause mischief and trouble to Departmental officers, and that he was maliciously motivated, I would have no discretion under this supposedly beneficial legislation to remove his right to the disclosure." [1996] 1 QdR 215, 222

31. It was these latter authorities which led Ms Preuss to decide the identical question favourably to Mr Baird and contrary to VicRoads, though an appeal lay as of right on questions of right from Ms Preuss' decision. Pursuant to Section 52 of the Administrative Appeals Tribunal Act 1984 the respondent lodged no notice of appeal. In University of Melbourne v Robinson [1993] VicRp 67; [1993] 2 VR 177, 187 Eames J. said of the exemption created under Section 33:

"The reference to the "personal affairs of any person" suggests to me that a distinction has been drawn by the legislature between those aspects of an individual's life which might be said to be of a private character and those relating or arising from any position, office or other public activity with which the person occupies his or her time."

Ms Preuss concluded that information in no wise different to the information in dispute before me pertained to the official rather than the personal or private lives of the agency officers involved. She considered the matter at length and traversed the same ground as I have. Her conclusion is convincing and I adopt it. Dr Hanscombe relied upon a passage from the judgement of Kirby P. as he then was, in the District Court of New South Wales' case. His Honour said that the object amongst other things of the Freedom of Information Act was

"to remedy the situation produced by the "feeling of powerlessness" derived from decisions vitally affecting individuals made, in effect, by "an honourous public officials". How can the fundamental principles of "openness, accountability and responsibility" be achieved to remedy that situation if the anonymity which was said to be part of the problem is preserved ..."

Dr Hanscombe submitted that a distinction should be drawn as to what amounts to information concerning "the personal affairs" of an agency officer, depending upon whether the officer holds a senior and decision-making position on the one hand, so as to attract the principle enunciated by Kirby P. or on the other hand performed merely ministerial duties at the direction of others. Dr Hanscombe submitted that all of the individuals whose names might be disclosed here were in the latter category. I am unable to accept that submission. First, it is notorious that it is the most junior officers in an agency who are given the task of doing counter duty and answering telephones. Whether or not these officers are given large administrative discretions in fact they can have a significant effect of the lives of ordinary citizens who may be vitally affected by the actions and policies of an agency in their ordinary lives or their occupations. Moreover, there is nothing in the text of Section 33 to indicate that any distinction is to be made relative to the grading of particular officers. The suggested distinction, if adopted, would create a problem of major uncertainty as to how one should characterise the standing of particular officers. Dr Hanscombe also observed that Kirby P. in the passage immediately following the passage quoted, said that the earlier Victorian decisions might be justified upon the basis that Section 95(1) of the Constitution Act 1975 constrains the public statements which may be made by public servants. Some reliance was placed upon this provision in Perton`s case. It is difficult to see however how a provision in the Constitution Act can lead to the same words bearing a different meaning in Victoria to the one which they bear in New South Wales and Queensland. Moreover, the ability of public servants to "speak out" is entirely irrelevant to this proceeding. The case put by Dr Hanscombe was that these officers desired to remain anonymous. There was no suggestion that their desire for anonymity was somehow a result of their inability to "speak out" on political matters.

32. Finally, Dr Hanscombe noted an exemption existing in the Freedom of Information Act 1989 of the State of New South Wales, Section 4(1)(c) and a corresponding provision to be found in the Freedom of Information Act 1992 of the State of Queensland, Section 42(1)(c) which in both cases render exempt documents whose disclosure could reasonably be expected to "endanger the life or physical safety" of any person. The presence or absence of such a provision played no part in the reasoning of the Queensland Supreme Court or the New South Wales Court of Appeal. The presence of those provisions in Queensland and New South Wales and their absence in Victoria indicates no more than a possible lesser level of protection accorded to public servants in Victoria to that which is accorded to their counterparts in Queensland and New South Wales. The enactment of Part IIIA of the Victorian Act might be regarded as to some degree an acknowledgment of that fact.

33. The legislative history of the Freedom of Information (Amendment) Act 1999 would seem to bear this out. On 23 November 1998 this Tribunal determined an application for access under the Freedom of Information Act by one Ashley Mervin Coulston to staff rosters at the Frankston Hospital. (Coulston v Mornington Peninsula and District Hospital 1998/017288) Mr Coulston was a convicted triple murderer. He said that access to the rosters might assist him in finding witnesses who could provide him with alibi evidence to enable him to have his convictions set aside. The Tribunal applied the decisions in Albietz' case and the District Court of New South Wales' case and released the material. Some time later a storm of public protest arose. On 6 May 1999 the then Attorney-General, the Hon. Jan Wade, MLA, introduced the Freedom of Information (Amendment) Bill. At page 815 of the relevant volume of Hansard, the Attorney stated:

"Existing Victorian case law has held that a person's name or other identifying details do amount to personal information and so render a document containing that information exempt - that is, as I have said, reasonable with the deletion of that information. In the past, departments have removed personal information from requested documents on this basis.

The recent Victorian Civil and Administrative Tribunal decision of Coulston_, however, went against this line of authority. In that case, the Tribunal ruled that a hospital roster showing the names of nursing staff on duty on a particular night did not contain the personal information of those nurses and was, as a result, releasable under the Act. ... The Government seeks always and strenuously to protect its officers and employees from unwarranted invasion of privacy and threat of harm."_

According the Attorney proposed the amendment of the Freedom of Information Act by the inclusion of Part IIIA. The decision in Coulston's case was given by this Tribunal. No appeal lies as of right from its decisions, however an appeal may be brought subject to leave of the Supreme Court upon a question of law. No application for leave to appeal was filed in Coulston's case but the Government sought to amend the statute. This legislative history in my view also supports the view that Ms Preuss' earlier decision with regard to Mr Baird was correct as an application of the Freedom of Information Act 1982 as it then stood, whether or not one felt that the statute provided adequate protection to public servants and other agency officers.

34. I reject the exemption claimed under Section 33 of the Freedom of Information Act.

Exemption under Section 38 of the Freedom of Information Act

35. Section 38 of the Freedom of Information Act renders a document exempt

"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."

The enactment which is said to bring the Section 38 exemption into operation is Section 92 of the Road Safety Act 1986. I will for the purposes of these reasons assume that this Section has the necessary specificity to create a Section 38 exemption with respect to documents or information to which it applies.

36. Section 92 o the Road Safety Act is a lengthy provision. For present purposes it is sufficient to quote sub-section (2) only which contains the basic prohibition.

"(2) Subject to this section, the Corporation [that is VicRoads] or a relevant person must not -

(a) disclose information gained by the Corporation or in the course of the delegation, employment or engagement of the relevant person that is information of a personal nature or that has commercial sensitivity for the person about whom it is kept; or

(b) use the person's knowledge of any such information

37. It has not been suggested that there is any commercial sensitivity attaching to the identity of the officer's whose names are sought in this proceeding. Dr Hanscombe offered no separate submission as to why the names of these officers should be "information of a personal nature". In my view the same reasoning which operated to exclude the exemption under Section 32 of the Freedom of Information Act would lead to the conclusion that this information is not "of a personal nature".

38. I reject the exemption claimed under Section 38.

39. This exemption was not relied upon in the earlier and indistinguishable proceeding heard by Ms Preuss. Dr Hanscombe was unable to offer an explanation as to why if the exemption were available it was not then relied upon.

The Section 32 Exemption

40. Section 32 of the Freedom of Information Act renders a document exempt "if it is of such a nature that it would be privileged from production legal proceedings on the ground of legal professional privilege". Legal professional privilege extends to documents brought into existence for the sole purpose of giving or receiving legal advice or for use in existing or anticipated litigation. Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52, 122 per Dawson J. The privilege extends to a record made by a client or a servant or agent of a client of legal advice given to the client. See State Bank of South Australia v Smoothdale (No. 2) [1995] SASC 5070; (1995) 64 SASR 224; Trade Practices Commission v Sterling [1979] FCA 33; (1978) 36 FLR 244, 246; Standard Chartered Bank of Australia v Antico (1995) 36 NSWLR 87.

41. Document 16 is a record made by an officer of VicRoads of legal advice furnished by Messrs Phillips Fox to VicRoads. It is accordingly within the Section 32 exemption.

42. Nothing was said as to the operation of the public interest override under Section 50(4) of the Freedom of Information Act 1982. I have upheld exemption with respect to one document only. Even if I assume that all of the concerns raised by Mr Baird in the course of the hearing are to be regarded as considerations of public interest which might be urged to override the exemption which I have upheld for Document 16, none of them appears to "require" the release of Document 16. The record of legal advice contained in the document would be of no assistance to Mr Baird in building up the "jigsaw" which he says he is seeking to construct with the information which he has obtained and hopes to obtain. In any event I did not understand Mr Baird expressly to press for production of Document 16 at all. Dr Hanscombe suggested he may not really be seeking it and Mr Baird made no comment. He certainly did not deny Dr Hanscombe's suggestion.

43. Accordingly, I do not uphold any exemptions with respect to any of the documents save for Document 16 which I hold to be completely exempt.

Falls within Part IIIA (Y/N)

Audit of access for Driver Licence No. 21084964 from 1 January 1997 to 1 May 1998

S.33, S.38

Audit of access for Registration MBO 110 from 1 January 1997 to 1 May 1998

S.33, S.38

File note of inquiry from Magistrates' Court in Canberra

S.33, S.38

S.33, S.38

S.33, S.38

Licence summary inquiry together with handwritten notes

S.33, S.38

VicRoads facsimile transmittal face sheet requesting confirmation of conviction for the applicant

Audit of access for driver licence No. 210846964 from 2 May 1998 to 31 December 1998

Audit for access for Registration MBO 110 from 2 May 1998 to 31 December 1998

Magistrates' Court summary of order details for 3 March 1994 re David Baird