Ms S McNicol of counsel instructed by Messrs.Mallesons

1 Mr and Mrs Baker seek access to the complete Report of Investigation of Parents' Complaint at Mornington Park Primary School prepared by Joan Callahan & Associates in November 2004. Some portions of the report have been released, but not the document in its entirety.

2 The report was prepared at the instigation of Ms Jan Lake who is the Regional Director of the Southern Metropolitan Region of the Department of Education and Training. Ms Lake ordered the review following an incident at the school where the eleven year old son of the applicants attempted to hang himself.

3 Ms Callahan's terms of reference were set by Mr Michael Small, also from the Southern Metropolitan Regional Office. Ms Callahan told the Tribunal that following her briefing by Mr Small it was clear she was to concentrate of whether the school had followed due process in handling the actual incident. Her impression was that "the Region wanted to do the right thing by all the parties by engaging an independent person to review the handling of the incident and the subsequent attention paid by the school to due process".

4 Mrs Baker gave a number of reasons why she required access to the document in its entirety but it is clear most of her desires will remain unsatisfied as Ms Callahan's terms of reference were quite specific and not in any way identical with the sort of information desired by the applicant.

5 Exemption is claimed pursuant to section 30(1) (the internal working document exemption), section 33(1) (documents affecting personal privacy) and section 35(1)(b) (information communicated in confidence) of the Freedom of Information Act 1982 ("the Act").

6 Ms. Baker gave evidence. So too did Mr Darrell John Fraser (a departmental Deputy Secretary), Ms Joan Callahan (the investigator) and Ms Sharon Briggs (the former assistant principal at Mornington park Primary School).

7 I will deal first with the exemption pursuant to section 33(1). The only information relating to the personal affairs of any person (apart from the applicants and their son) found in the entire exempt document is that which identifies two people, in this case the principal and the assistant principal. Their participation in the investigation is known to all so obviously the disclosure of their identity would not be unreasonable in the circumstances. The balance of the material cannot be said to be relating to personal affairs. It relates to the evidence they gave about the events on 24 August 2004 and the events that followed that date and the interpretation each placed on those events. Just because evidence is given by a person involved in an incident does not make that evidence information relating to personal affairs. That is simply not the intention of the legislation. As a result the exemption under section 33(1) is not made out. Mr Fraser expressed the view that because the document contained the teachers' version of personal experiences and particular events and their reactions to those events, that constituted exempt personal information but I do not accept that. The events and their recounting of them in no way constitute information relating to their personal affairs.

8 The Tribunal did receive a letter from one of the parties indicating that he or she did not wish his or her personal information disclosed but as the subjects canvassed in that letter were not in any way referred to in the report, their wishes can be put to one side.

9 The next claim for exemption arises under section 30(1). That section provides relevantly that a document is an exempt document if it is a document the disclosure of which -

(a) would disclose matter in the nature of opinion, advice or recommendation prepared by an officer......in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency......:and

(b) would be contrary to the public interest.

(3) This section does not apply to a document by reason only of factual material contained in the document.

11 The bulk of the material not yet released in the document cannot be said to be in the nature of opinion, advice or recommendation. Rather is it a recounting of facts as seen by the individuals in question. That is not the case however with the chapter headed "Conclusions".

12 Although Ms Callahan made much of the candid analysis found in section 4 of report, I considered that chapter to be little more than a pulling together of the factual strands of the investigation. Not so the views expressed in Chapter 5. This is clearly in the nature of advice and opinion (inextricably mixed with some factual analysis), the opinions expressed are presumably a product of years of experience by the author both as a teacher and as a clinical psychologist. Of course, the advice and opinion might not necessarily be the subject of agreement with any particular reader, but on Ms Callahan's evidence, it was expressed without fear or favour and secure in the knowledge that the report was being prepared for Ms Lake for her purposes alone.

13 I have no difficulty in finding that the advice and opinion has taken place for the purposes of the department's deliberative processes. Ms Callahan is clearly an "officer" for the purposes of the legislation (see s.5 of the Act). The role of the department in relation to the report was, according to the evidence of Mr Fraser, to consider Ms Callahan's findings and recommendations and to determine appropriate action no doubt assisted by her expert and independent view. The production of the report itself and the conclusions expressed therein by the author are clearly part of the continuum of the deliberative process engaged in by the department in its consideration of the incident and its aftermath. I am reinforced in that view by the passage from Re Waterford and the Department of Treasury (No 2) [1984] AATA 67; (1984) 5 ALD 588,606, a passage approved in may cases since. There the Court stated that -

[Deliberative process is] wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency.....In short.... its thinking processes - the processes of reflection, for example, upon the wisdom and experience of a proposal, a particular decision of a course of action.

14 I find that Chapter 5 of the report falls within the ambit of section 30(1)(a). The question then for deliberation is whether or not release would be contrary to the public interest. Both Ms Callahan and Mr Fraser gave evidence that in their view disclosure would undermine the practice of confidential communications between senior staff (and by inference, consultants) and further that the use to which information might be put would be detrimental to the harmony the school environment. Mr Fraser said it was critical to the proper management of a school and to the fulfilment of the school's duty of care to its students, that decisions about complaint are based on solid, accurate information which is given freely and frankly.

15 What is required of the Tribunal is to balance the interest of the public having access to documents on the one hand against the public interest in protecting the deliberative processes of government. In my view in this case the latter outweighs the former. Ms Callahan was hired as an independent enquirer. She was hired by a senior officer of the department for the very purposes of obtaining independent advice from someone who had no involvement in either the incident or the school or indeed the department but who had the appropriate experience to understand the complexity of the issues involved. It was her evidence that she thought the report was for Ms Lake and for Ms Lake alone. It would hardly be conducive to a full and frank enquiry of matters as serious as this if an independent consultant were to be constrained by the fear of disclosure particularly in relation to advice and opinion given that is of a professional nature. Although I received no evidence about why Ms Callahan was chosen for the task, I infer that her particular experience as a clinical psychologist was one of the influential factors and in my view the public interest is not served by disclosing what are tantamount to her professional conclusions.

16 That takes me to the exemption claimed pursuant to section 35(1)(b). Ms Callahan gave evidence that she had certainly inferred confidentiality and believed she would have promised it. Ms Briggs was adamant she had understood the interview was confidential and that was the basis on which she took part in the process. She said that had she known that confidentiality was not an essential part of the process, she might not have been as open and expansive as she was. Furthermore she said that had she thought otherwise she would have engaged a lawyer. I accept the evidence of Ms Callahan and Ms Briggs (Ms Callahan in her capacity of interviewer and Ms Briggs in hers as interviewee) that in relation to the interview process there was a positive promise of and expectation of confidentiality. But that of course is not enough to satisfy the exemption. The Tribunal must be satisfied that disclosure would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency to obtain similar information in the future.

17 The question whether disclosure will be reasonably likely to impair the respondent's ability to obtain similar information in the future is one of fact. In Ryder v Booth [1985] VicRp 86; [1985] VR 869 the Full Court considered an exemption claimed under section 35. At p.880 Gray J stated that:

Section 35(1)(b) is a wordy provision and the Court heard much argument about the meaning of the words and expressions contained therein. I was left with the impression that the sub-section would have achieved its purpose if it had read "the disclosure of the document would impair the ability of the agency to obtain similar information in the future". If this had been the case, the agency would be required to prove, upon the balance of probabilities, that disclosure would result in the impairment stipulated.

As things stand, the presence in the sub-section of the expressions "contrary to the public interest" and "reasonably likely" gave rise to lively but not very helpful argument. In my opinion, the expression "likely" means, in the present context, "more probably than not". The expression "reasonably" seems to add nothing. The degree of impairment which must be shown to be a likely result of disclosure is, in my opinion, a degree of impairment going beyond a trifling or minimal impairment.

18 In the same case, King J considered what was meant by the phrase "contrary to the public interest". At p.885 he said -

I do not think that s.35(1)(b) can be read to require proof only that the disclosure would be reasonably likely to impair the ability of the defendants to obtain similar information in the future. The reference to "public interest" is an additional requirement and means that in addition to an answer in favour of the appellants to the last-mentioned question the person or persons applying s.35(1)(b) must find that such impairment is so damaging to the public as to warrant non-disclosure of the documents under consideration. In addition the words "be reasonably likely to" cannot be ignored. If they were not present, the question whether the disclosure of the document would impair the appellant's ability to obtain such information in future would have to be decided on the balance of probabilities, with the onus on the appellants. The inclusion of the above-cited words means that the question whether such disclosure would be reasonably likely to impair the aforesaid ability of the appellants must itself be answered on the balance of probabilities with the onus of proof on the appellants. I think that these words are probably chosen because it was realised that the matters required to be established by s.35(1)(b) do not lend themselves to the usual formal manner of proof involved in litigation, but have to be decided in a more general way.

19 From their Honours' reasoning, three questions must be answered in this case. First, does the evidence establish that the respondent's ability to obtain similar information in the future will be impaired? If so, is the degree of that impairment more than minimal or trifling? And of course, has the respondent discharged the onus set out in s 55(2) of the Act?

20 Counsel for the respondent, having referred to Ryder v Booth went on to submit as follows:

The inquiry is directed to the "entire class of potential suppliers of the relevant class of information" and the necessary level of impairment is made out if even a significant minority of agency officers would be firmly resistant to providing similar information to the Department in the future. See Re Sifredi and Medical Practitioners Board of Victoria [1999] VCAT 87 at 8 (affirmed on appeal by the Supreme Court: _Medical Practitioners Board of Victoria v Sifred_i (2000)16 VAR 347. Clearly each case turns on its own facts. That said, the following observations of the Tribunal in Re O'Sullivan and Department of Education, Employment and Training (unreported VCAT SM Megay, 1 November 2002) are apposite:

"46...In my view, where the interests of children and their education are concerned, any impediment to the free flow of information and discussion between school principals and other officers is contrary to the public interest. It is in the public interest that the educative processes of our schools should not be hampered by a disclosure of sensitive and confidential communications dealing with children and their wellbeing."

21 The solicitor for the applicants for his part submitted that there might some parts of the material that would attract the exemption but pointed to the evidence of Mr Fraser who said he would expect the staff to give honest answers and Ms Briggs who said she would tell the truth in any event.

22 Ms Briggs seemed quite flustered by questions from the Tribunal about what she would do if confidentiality were not promised and as best I understood her nervous response (although her meaning was not entirely clear) it was that her co-operation might not have been quite as open and forthcoming had she thought disclosure was on the cards.

23 Mr Fraser was not so reticent. In fact he was quite adamant that information obtained through this type of process was a primary source from which departmental decisions were informed. In his statement he stated -

The information provided by staff must be detailed and accurate and I believe that is must not be constrained by doubts about whether it will remain confidential. In my opinion, if staff feel they cannot make honest and frank statements about incidents and their management, the value of investigative reports as a tool to inform decisions of Regional Directors, and the Department more generally, will be diminished due to the reticence of staff to disclose information.

If there is no frank and honest exchange of information between staff and the Regional Office in relation to incidents and the management, and the information provided is not detailed and accurate, the Department will not be equipped to identify inadequacies in its policies and procedures. If so, the Department's response to the incident may not be appropriate. If the Department's response is not appropriate, the welfare of students or staff may not be adequately protected and flaws in policies and procedures may remain in the system undetected.

24 As I understand the regime in place for investigations of this kind, there is no statutory obligation on the interviewees to co-operate. The community places great reliance of the public school system, on its teachers and administrators and it is essential that those teachers and administrators are not hampered in the task of gaining a proper perspective of schoolyard and classroom incidents for the better management of the school system as a whole and for the imperative of student safety.

25 The portion of Ms Briggs' evidence that was to my mind most telling was her statement that had she thought disclosure was a possibility, she would not have taken part in the interview without a lawyer. Although she said she would have told the truth she felt that her evidence would not have been so expansive. Ms Briggs has obviously been much distressed by this incident and its aftermath but she impressed me as an honest and thoughtful witness. Based on her evidence I formed the view that the ability of the department to gather such evidence in the future would be impaired in a manner that was neither trifling nor minimal but of some considerable substance. Whilst the imposition of lawyers into the process at such an early stage is certainly a tool to protect individual rights, in my view it would hardly be conducive to the free flow of information in the information gathering stage of the inquiry. And that would be a regrettable consequence .

26 I accept the evidence given by Mr Fraser that disclosure would be contrary to the public interest for the very reason that his department's ability to obtain similar information in the future would be impaired for the reasons he set out. I confirm the views I expressed in O'Sullivan's case as set out in paragraph 20 hereof.

27 It was clear from the evidence of Ms Baker that she and her husband have been frustrated by their dealings with the school and the department. It may well be that initially the school was slow to react and inform but it is clear that by the time it did, the Bakers had "closed the gates" and were not willing to participate further. But their frustration, understandable though it is, is not a reason to override the clear exemptions provided by the legislation. Mr Cunliffe did not really press the "public interest override" provided in section 50(4) of the Act with any great enthusiasm save to refer to media interest and to his clients' anguish. It is clear that what is required by section 50(4) is that the public interest must demand or necessitate release and that it is not sufficient that release will satisfy personal grievances or personal curiosity. Release must benefit the community in general or have (as the cases put it)"wider social significance". I am not persuaded that is the case here.

28 It follows that the respondent's decision made on 17 January 2005 is affirmed.