Beauchamp v Department of Education (General) [2006] VCAT 1653

1 The decision of the respondent is affirmed for reports 2, 3, 4, 5, 6, 7, 8, 9, 10 and 13.

2 The decision of the respondent is set aside with respect to reports 11 and 12 and at the expiration of 28 days those reports with the full deletions proposed by the applicant are to be released to the applicant.

3 The decision of the respondent with respect to Report 1 is varied, such that at the expiration of 28 days, the report is to be released to the applicant without the deletions proposed by the applicant, except for the part identified in these reasons, which part I have found is exempt from release under s 33(1) of the Act.

Mr J Pizer of counsel instructed by Corrs Chambers Westgarth

Mr Willis of counsel instructed by Mallesons Stephen Jaques

1 The Department of Education & Training provides primary and secondary education for Victorian children. It is a large Department with a range of responsibilities. One of those is to manage emergencies and particular incidents within schools.

2 The Department's branch which has responsibility for those matters is the Emergency and Security Management Branch (ESM).

3 The following paragraphs[1] explain the role and functions of the ESM, and the background to this proceeding. Between January 2002 and April 2005, the period the subject of this application :

5. ..... ESM has been notified in accordance with Department circulars and policies, of a variety of critical incidents which have come to the attention of school officers and which impact in some way on students, staff or visitors to schools.

6. The alleged incidents reported are diverse instances in which the safety of staff or students is or may be potentially at risk.

7. ESM has been designated by the Department as the single, central reporting point for all such incidents. Trained operators take telephone calls from schools and enter the details of the alleged incident, as reported, in a computer system maintained by ESM, in accordance with a standard format ("emergency notification reports"). A single page report, entitled "Emergency Notification", is immediately generated, printed and distributed to responsible Department officers, including a trained psychologist employed by the Department, for assessment and follow-up action.

8. Among the incident reports recorded by ESM are those which set out details of alleged substance abuse, alleged assaults which may in some way have involved or affected students and alleged assaults which may in some way have involved or affected teachers or principals.

9. ESM has a database management computer programme which permits details of reports of alleged assaults to be extracted and classified by whether the incident involved or affected a student or a member of staff and whether the incident occurred on school property or offsite ("Incident Report Summary").

4 As I understand, ESM typically receives approximately 5000 incident reports a year, of which approximately 1000 are automatically generated by school alarm systems.

5 Ms Paula Beauchamp, the applicant in this proceeding, is a reporter with the Herald Sun newspaper. In March 2005, she sought access to incident reports lodged with ESM since January 2002. She confined her request to incident reports about assaults in the following three categories :

(a) a computer printout of the incident reports relating to assaults perpetrated against students on and off school sites since 1 January 2002;

(b) a computer printout of the incident reports relating to assaults perpetrated against teachers and principals on and off school sites since 1 January 2002; and

(c) emergency notification reports relating to substance abuse on and off school sites since 1 January 2002.

6 Access to those reports was denied. On internal review the decision to refuse access was maintained. Ms Beauchamp applied to this Tribunal for review of the decision.

7 Whilst I am unaware how many incident reports relevant to the categories requested were generated between January 2002 and April 2005, following inspection of the incident reports, (subject to undertakings of confidentiality) by the applicant's legal representatives, the dispute in these proceedings was confined to 13 selected incident reports. I am not privy to how these 13 reports were selected.

8 Of the 13 selected, the Department says there are

•

nine incident reports from the computer printout of incident reports of assaults against students;

•

one incident report from the computer printout of incident reports of assaults against teachers and principals;

•

three individual emergency notification reports of substance abuse.

9 The Department submits that each document is exempt from release under several provisions of the Freedom of Information Act 1982 (the FOI Act).

10 First, the Department claims they are exempt under s 33 of the FOI Act, as disclosure would involve unreasonable disclosure of information relating to the personal affairs of any person (principally, but not exclusively, the students concerned).

11 Secondly, it claims they are exempt under s 35(1)(b) of the FOI Act as disclosure would divulge information communicated in confidence and disclosure of the information would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of the Department to obtain similar information in the future.

12 Thirdly, the Department contends that some of the documents are exempt in part by reason of s 38 of the FOI Act. The relevant secrecy provision being s 4 of the Judicial Proceedings Reports Act 1958 (Vic).

13 Mr Willis, counsel for the Department, submitted that it is not practicable for the Department to grant access to a copy of the documents with deletions so as to make the copy not exempt. This was so, he submitted, on two bases :

(a)

In respect of the personal privacy ground of exemption, the Respondent submits that the report as a whole divulges personal information of the persons (mostly students) concerned. After the deletions proposed by the applicant, release of the documents would still involve the disclosure of information relating to personal affairs of the students/staff concerned. The mere deletion of names and other matters proposed by the Applicant will leave much information relating to the personal affairs of the persons involved. Circumstantial detail permitting identification will remain.

(b)

In respect of the impairment of information ground, the vice (the impairment which is reasonably likely to result) will be caused by the fact of release, rather than the content of what is released. The Respondent submits that any release is likely to result in impairment. In such a case, no amount of editing or deletion will remove the ground of exemption.

14 At the commencement of the hearing, Ms Beauchamp's counsel, Mr Pizer, made it clear that his client did not seek access to the entire documents. He explained that his client's primary case is that the documents should be released with only precise dates (ie the day and month of the incident) and the names of individuals deleted. In the alternative, he explained she sought the documents be released with the following information deleted : the day and month of the incident; the names of individuals; the names of schools (leaving in whether they were primary, secondary, special etc), and the location of any police stations and DHS offices referred to.

15 I interpolate here that s 25 of the FOI Act now provides :

25. Deletion of exempt matter or irrelevant material

(a) a decision is made not to grant a request for access to a document on the ground that it is an exempt document or that to grant the request would disclose information that would reasonably be regarded as irrelevant to the request;

(b) it is practicable for the agency or Minister to grant access to a copy of the document with such deletions as to make the copy not an exempt document or a document that would not disclose such information (as the case requires); and

(c) it appears from the request, or the applicant subsequently indicates, that the applicant would wish to have access to such a copy -

the agency or Minister shall grant access to such a copy of the document.

16 Mr Pizer submitted that the position then is that the documents in dispute should be released because, once appropriate deletions are made, the Department has failed to discharge its onus of proving that :

(a)

those documents are exempt documents under any of sections 33(1), 35(1)(b) or 38 of the Freedom of Information Act 1982 ("the FOI Act"); but if the Tribunal were to find that any of the documents in dispute were exempt under section 35(1)(b) or section 38 -

(b)

the public interest does not require the release of those documents under section 50(4) of the FOI Act.

17 A document is exempt from release under s 33(1) of the FOI Act if the following two conditions are satisfied :

(a) if disclosure would involve the disclosure of information relating to the personal affairs of any person; and

18 Mr Pizer did not press that the s 33 exemption did not apply to the documents without any deletions.

19 The focus of argument about this exemption was on whether, with the deletions proposed in either of the two ways made, the exemption continued to be made out.

20 Mr Pizer submitted that the first condition of s 33(1) could not be satisfied unless disclosure of the document is capable, either directly or indirectly, of identifying a particular individual. Further, as I understand his submissions, that s 33(9) whilst an "inclusive" definition, informed one about what was identifying information that amounted to disclosure, and that s 33(9) dealt exclusively with the subject matter. He then put forward propositions about what situations each limb of s 33(9) covered.

21 Section 33(9) states :

"information relating to the personal affairs of any person" includes information -

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

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

22 He submitted that the first limb of the s 33(9) definition is confined to information that either expressly names a person or is an accurate visual image of a person. The second limb he submitted covers the situation where the information in the document does not, by itself, identify a person but that person's identity can reasonably be ascertained by connecting the information in the document with other known information or with information that could be acquired after taking reasonable steps.

23 He went on to make submissions about what was meant by whether "any person's identity .... can reasonably be determined"[2] submitting that it meant whether a person's identity can reasonably be "found out or established precisely" from the information, submitting that it was not sufficient that it can reasonably be guessed at or speculated about. He then submitted that the appropriate question to ask was whether the "applicant" could reasonably determine a person's identity from the information in question, and it was wrong to ask whether any member of the public could reasonably determine it. It was equally wrong, he submitted, to fix the applicant with special knowledge that could only be obtained from direct or indirect involvement in the incidents. In support of this contention, he examined in detail what disclosure under the Act meant and whether it was disclosure to the applicant or to the world at large.

24 Mr Willis submitted that the applicant's contention that the most relevant part of s 33 is s 33(9) is based on a fallacy. He submitted that s 33(9) merely extends the operation of s 33; it does not confine it. Further, there was no authority for limiting s 33(9)(a) to information that 'either expressly names a person or is an accurate visual image of a person'. Counsel referred to authority to the contrary in WL v La Trobe University[3], which dealt with analogous language under the Information Privacy Act 2000 (Vic). He referred to the following passage in paragraph 18 of those reasons :

One could also conceive of situations where information which did not include one's name or photograph would, because of the singular nature of the information, mean that it could be no one else but a particular person, and in that way reveal one's identity. In that case the identity would be capable of being clearly perceived by looking just at the information; (emphasis added).

25 He submitted that clearly in that case the Tribunal did not limit the definition only to cases where a person is named or pictured.

26 So far as the construction of s 33(9)(b) was concerned, Mr Willis submitted that the construction proposed by the applicant was not supported by authority. He submitted that the applicant contends for an overly narrow reading of what constitutes the disclosure of documents involving the personal affairs of a person. Counsel submitted that the applicant's contentions are not supported by the well-known passage in Ryder v Booth [1985] VicRp 86; [1985] VR 869 at 877 favouring a liberal approach to rights of access and a restrictive approach to exemptions. He said dicta in that case must be read in the knowledge that Parliament has amended s 33 to clarify and reinforce the protection of the personal privacy of persons who might be identified in documents held by government.

27 Mr Willis submitted that the attempt to construe s 33(1) by reference to s 33(9) is first tendentious and secondly largely irrelevant.

28 Counsel submitted that quite apart from s 33(9) and without recourse to it, the information reported in each document is clearly "information relating to the personal affairs of any person" (being, in each case, the persons who are mentioned in each document). Thus counsel submitted :

In the case of personal privacy and s 33, two forms of public interest or public rights compete - the right of citizens to have access to information held by government and the right of citizens to personal privacy. An overly narrow reading of what constitutes the disclosure of information relating to the personal affairs of a person is not supported[4].

29 I do not accept Mr Pizer's submission to the effect that s 33(9) deals exhaustively with how the meaning of the phrase "disclosure of information relating to the personal affairs of any person" in s 33(1) is to be interpreted, such as to confine the operation of s 33 in the way suggested, that is, by reference to the provisions in s 33(9).

30 Section 33(9) was first introduced by the 53rd Parliament by Act No 38/1999. That amendment inserted a new s 33(9) as follows :

information relating to the personal affairs of any person does not include personal information within the meaning of section 27A.

31 Section 27A was part of a new Part IIIA inserted, which specifically addressed documents containing personal information. It created a regime of very strict access to such information. It defined "personal information" to mean information -

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

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

32 According to the Second Reading Speech, the Act was amended to make it clear that a third party's name, address and other identifying information is personal information and that the amendments seek to ensure that governmental officers and employees have, in suitable circumstances, their identities protected from disclosure.

33 Those amendments were shortlived and were repealed by the 54th Parliament by Act No 57/1999. Section 33(9) was substituted by the current s 33(9) and came into operation on 1 January 2000. As commentary on the legislation has observed[5] the amendments reversed a trend of finding that the name of an officer of an agency, in the context of the performance of their duties, is not information relating to their personal affairs[6] and that a distinction should be drawn between "those aspects of an individual's life which might be said to be of a private character and those relating to or arising from any position, office or other public activity with which the person occupies his or her time"[7].

34 It is in the context of that legislative history, that the passages in the Second Reading Speech and Explanatory Memorandum that Mr Pizer had referred to in his submissions, are best understood. Whilst the purpose of the amendment was to provide increased access to information, it was a clarifying amendment making it clear what "information relating to the personal affairs of any person" includes.

35 As Mr Pizer himself observed, s 33(9) is an inclusive definition. Without taking away from the meaning of personal affairs of any person which has long been regarded as being "matters of private concern to an individual"[8], it is now clear that those matters of private concern include information that identifies any person or discloses their address or location and information from which any person's identity, address or location can reasonably be determined.

36 The proper approach to the application of s 33(1) is to consider the document and decide if disclosure would involve the disclosure of information relating to the personal affairs of a person and to consider whether such disclosure is unreasonable.

37 Seen in that context, Mr Pizer's submissions about the bearing of s 33(9) on s 33(1), as I understand them, and the meaning of whether "any person's identity .... can reasonably be determined" and about who must be able to identify persons from the information, can be put to one side at this point.

38 Mr Pizer submitted that the s 33(1) exemption can only be satisfied if disclosure of the document is capable either directly or indirectly of identifying a particular individual. He relied in support of this submission, on the following sentence from the decision of Deputy President Macnamara in O'Sullivan v Department of Health & Community Services (No 2) (1995) 9 VAR 1 at 14 that

There will only be a disclosure of personal affairs if the document is capable, either directly or indirectly, of identifying a particular person whose affairs are mentioned.

39 Mr Willis submitted that that sentence in context, was addressing whether or not disclosure was unreasonable, not whether the information related to someone's personal affairs, and he referred to other particular parts of the paragraph.

40 It is worthwhile quoting the full paragraph :

The exemptions sought are under ss 31(1)(c), 33(1) and 38. Accordingly, the exemptions would appear to centre around the disclosure of the identity of informants or notifiers or the disclosure of personal affairs. There will only be a disclosure of personal affairs if the document is capable either, directly, or indirectly, of identifying a particular individual whose affairs are mentioned. The document identifies a particular 'notifier' and accordingly under the combined effect of s 64(4) of the Children and Young Persons Act and s 38 of the Freedom of Information Act, the document would appear to be exempt. The existence of that exemption might be removed by the deletion of the notifier's identity. However, the document also contains extensive references to the names of individuals, addresses and various family features, which in themselves would be calculated to identify individuals. It seems to me that the family lives both of the children and of the adults involved are clearly their 'personal affairs'. Given that s 26 of the Children and Young Persons Act guarantees the secrecy of the names of the children who are subject of protection applications in the Children's Court - a form of legal proceeding in which the matters referred to in this document would normally be dealt with in - it is to my mind unreasonable for these personal affairs to be disclosed. Accordingly, I uphold the exemption claimed under s 33(1). The references to names, locations and identifiable features are so extensive in the document that it would not, in my view, be practicable to release the document with deletions.

41 A careful reading of the whole paragraph suggests that the Deputy President looked first at whether the information if released could lead to the identification of a particular individual. Having decided that even if the names were deleted, that the balance of the information could lead to identification, he then considered whether release was unreasonable or not.

42 It is logical and I agree with Mr Pizer that there will only be disclosure of personal affairs if the document is capable, either directly or indirectly of identifying a particular person whose affairs are mentioned. Whether there is disclosure will depend on a close examination of the information in each particular case. Whilst there may be deletion of dates, names, places etc, from a document, as in O'Sullivan's case, other references in the information may be calculated to identify individuals such that even with deletions, if what is left is released, there will still be disclosure of a person's personal information.

43 However, I do not accept Mr Pizer's submission that s 33(1) is to be interpreted by reference to the capacity of the applicant herself potentially to identify the individuals concerned from the information were it disclosed. This is because disclosure under the Act is disclosure to the public at large, not just to the applicant. I agree with Mr Willis' submissions that there is nothing in s 33 which requires that identification be by the applicant or her readers.

44 With the exception of s 33, no exemptions under the Act depend on the identity of the applicant. Under s 33(2) the provisions of s 33(1) do not have effect where the request is for one's own information. Yet for anyone else applying, once there has been a decision that a document is determined not to be exempt under s 33, should anyone else make an application, the decision must be the same. Unlike a document obtained in Court proceedings where there is an implied undertaking a document will not be used for any other purpose, no such undertaking applies when a document is released under the Act.

45 Despite Mr Pizer's submissions, I regard it as unrealistic to suggest that release to a reporter with a media organisation will not necessarily entail the possibility or likelihood of widespread dissemination throughout the community. Having released to one journalist with a media organisation, any other person or organisation would be entitled to access. Hence in considering whether there is disclosure, I proceed on the basis that this disclosure, if made, would effectively be to any member of the community, and that the capability of the information, either direct or indirectly identifying an individual, needs to be considered in that context.

46 There was another point raised about "disclosure" and whether there could be disclosure if the information released could only be recognised by those who already knew about the events. It is a nice point, but so far as it bears on the matters before me, I accepted Mr Craig's evidence[9] which was that whilst people might know some details about an incident, they might not know all the detail. It follows that in those circumstances, if all the information were disclosed, there could be release of personal information not otherwise known to those people.

47 Turning to the documents.

48 The Department submits that the documents contain information about the personal affairs of students and in some cases, staff and parents. I have inspected the documents and am satisfied they do.

49 Mr John North, Senior Advisor, Student Critical Incident Advisory Unit of the Department prepared a confidential statement about the documents. He had contacted the principals of the various schools named in the 13 notifications (reports) and had sought information about each incident. He gave evidence and was cross-examined; much of his evidence was given in camera.

50 This is a report of an assault on the principal by a parent. According to Mr North, the principal remembered the incident clearly because of its seriousness. The assailant was subsequently charged and convicted. Counselling and support were provided to a number of staff and students after the incident.

51 The report also contains some updated information concerning allegations not directly related to the incident which involve the personal affairs of named persons other than the "major" parties concerned in the assault.

52 Putting to one side the material just referred to, whilst release of the balance of the material even with the proposed deletions would clearly involve the disclosure of information relating to the personal affairs of the persons concerned, given the singular nature of the detail, it is difficult to see that disclosure is unreasonable. This is because the information has already passed into the public arena. According to the evidence before me, the assailant was charged and convicted.

53 I am not satisfied even leaving in the name of the school, the dates etc, that the exemption under s 33(1) for that part of the document has been made out.

54 However, the name of the student referred to and the updated information, clearly personal information, is different. I am satisfied that even with the name withheld, disclosure could lead to the identification of the individual because of the nature of the information and its context. I am satisfied disclosure would be unreasonable because it is the personal information of a child, and it is merely allegation. I find that this part of the document is exempt under s 33(1) of the Act and that it is practicable to delete this part, so that the balance of the document is not exempt.

55 I will return to the question of whether the balance might still be exempt from release under s 35(1).

•

potentially very serious sexual offences investigated by police and found to be unsubstantiated, with parties misleadingly described in the reports and where there is continuing involvement of parties with the school

•

a potentially serious assault by a student with a weapon on a teacher

•

the sexual assault of a student by other students

•

an alleged assault of a student by a teacher

•

the aberrant sexual misbehaviour of students

•

a potentially violent and aggressive assault by a student on other students

•

terrorising behaviour by a student

•

aberrant sexual behaviour by young children

•

disturbed behaviour by a student which could potentially have had very serious consequences

•

the report of an apparently intoxicated student

•

the report of the possession of a small quantity of marijuana and offers to sell further quantities

•

the report of the possession by a student of a large quantity of marijuana.

57 Even with the individuals' names, the school name, dates and locations deleted as Mr Pizer suggests, what remains is still information relating to the personal affairs of the persons concerned. They are matters of private concern to those individuals. Is it information which if released, could lead directly or indirectly to the identification of a person and thus involve disclosure?

58 A perusal of the reports reveal that what remains after the deletions proposed are made, is detail which when all put together may or may not be calculated to identify particular individuals, whether they are the particulars of the individuals concerned or of other individuals, which if the documents were released, could be misidentified.

59 Mr North in his statement gave evidence that with the names deleted, there would still be people who would know which incident was being referred to and with school names also deleted that in some cases the school and individuals involved could be identified.

60 He was cross-examined and re-examined about whether disclosure with deletions could directly or indirectly identify individuals. He gave evidence that people were very good at putting two and two together and that there was a real chance that for some of the documents, release whilst not conclusively establishing the names of the individuals could lead to their identification or could lead to a real chance of misidentification.

61 Apart from Document 1, each document was put to him.

62 In cross-examination, he said that with Document 2, there was a real chance of misidentification. With Document 3, given that there were only two such incidents in the past 10 years, those in the school community could identify the individuals. The others he thought would be unlikely to identify or misidentify anyone if released.

63 In re-examination, Document 4 was put to him and he was directly asked if the details were published without the names or school but with the year reference only, would it be possible for the individual to be identified. He answered that the school staff would be able to; the victim would recognise the report, but that it was unlikely other members of the community would. His response was the same when Document 5 was put to him. With Document 6, he said further he would not be surprised that there would be much wider knowledge within the school community about the incident.

64 Similarly for Documents 7 and 8, he gave evidence that there was enough information for people to narrow down identification but not zero in on it. Particularly Document 8, his evidence was that the identity could be established because staff, students and lots of parents would be familiar with the incident.

65 With Documents 9 and 10, his evidence was those involved i.e. the parents, staff and children probably would be able to identify those involved.

66 Mr Pizer later clarified certain matters with Mr North. Thus, outside the category of persons who already knew about the incidents, Mr North said it was unlikely others would be able to identify persons. Mr North also clarified that there was no real chance of misidentification with reports 4, 5, 6, 10 and 11.

67 Mr Stuart Andrews, Principal, Kensington Community High School, also gave evidence about these matters. He had looked at the reports. He said that even with the deletion of names, individuals involved in the incidents may still be identifiable, particularly within the local/school community, and I accepted his evidence. Though his evidence was limited to names only deleted, in cross-examination he was not taken through each document and asked whether release could identify the individuals.

68 Mr Graham Clue, Manager, Emergency Management (Response & Recovery) ESM Branch, gave evidence and was cross-examined. He had looked at the reports. His evidence on this issue was :

In my experience, some incidents are often well known within school communities. Even if names of individuals are deleted, it is likely that some members of the school community will be able to identify the individuals involved in the 13 incidents.

Members of the school community (particularly parents) often recollect the days on which particular students were suspended. Where a given student is known to have been suspended on the same date as a reported incident at the school, then people who were aware of the suspension may assume (correctly or incorrectly) that the suspended student was involved in the incident. As a result, a particular student may be wrongly identified as the perpetrator of an assault.

Identification will be very easy in the case of incidents in small schools. For example, in one of these incidents the school named has less than 30 students and is situated in a very small community so in the case of the report involving the school, it would be very easy to identify both the victim and perpetrator. The risk of identification of the individuals involved would decrease over time. For recent incidents, it is highly likely that individuals may be identifiable from the description of the incident. For incidents reported 3 years ago, identification will be less likely but still possible.

69 In cross-examination however, Mr Clue conceded when documents 2-13 were put to him that, that with the names, dates, schools etc deleted, one could not identify the individuals concerned.

70 Mr Wayne Craig, Regional Director, Northern Metropolitan Region, also gave evidence. In his statement he said :

If, alternatively, the 13 reports are released with both the names of schools and individuals deleted, there will still be a risk that individuals (such as alleged victims of assaults) could be identified from the details of the relevant incidents, resulting in detrimental personal consequences.

In addition, release of the reports with names of individuals and schools deleted may lead to individuals (particularly children) mistakenly perceiving that an incident they were involved in is the incident the subject of the released report. In my roles as Principal and Regional Director, I have become aware of incidents which are similar to a number of the incidents referred to in the 13 reports, but which involved different schools and individuals. If the reports were released with the names of schools and individuals deleted, then there would potentially be many individuals in government schools across the State who would mistakenly believe the reported incidents concerned them. This may cause such individuals and their families distress and confusion, and may lead to a variety of negative consequences for them. Such consequences would be contrary to the public interest.

71 In cross-examination, he did not agree with the evidence of Mr Clue. He did not agree, for example, that for those who already knew about the incidents, disclosure would not tell them anything they did not already know. This was so because whilst there could be rumours about the incidents and people might know something, they would not know the full details. He also gave evidence that there was a real risk of persons being wrongly identified.

72 Each report was put to him. He agreed they were significant incidents. Save for reports 7, 8 and 10, his evidence was that if they were disclosed, there was a real risk of persons being identified wrongly. He believed this was the case because he was aware of similar incidents or had heard of incidents of a similar character.

73 In light of all that evidence and having inspected the reports myself, I now turn to the reports and make the following findings.

74 Report 2. The detail is specific and contains a misleading piece of spelling. The fact that it is relatively recent being a late 2004 report such that the details would not have faded from the memory of those concerned and the community concerned, the detail in my view is specific enough to have the capability that were it released, it could lead directly or indirectly to the identification of those concerned and disclose the personal information of those concerned.

75 Is disclosure unreasonable? Balancing the competing interests in protecting an individual's right to privacy and the interest in disclosure on the other, in my view the balance falls clearly in favour of a finding that disclosure would be unreasonable. In making that finding, I accepted Mr North's evidence about the outcome of his inquiries which were that the allegations were unfounded and had been made in a particular context. Balancing that against the interest in the public knowing about safety in schools, evidence given by Brian Caldwell, Managing Director of Educational Transformations Pty Ltd, called by the applicant, the balance falls in favour of non-disclosure.

76 I am satisfied that Report 2, even with the full deletions proposed, is exempt from release under s 33 of the Act.

77 Report 3 with the deletions proposed still reveals a particular sort of school. In that context the potential for identification is significantly narrowed. Given Mr North's evidence that there had only been two such incidents in 10 years, which evidence I accepted, it would not take much for the person to be identified. Those matters coupled with the description of the incident satisfy me that the information is specific enough to have the capability, if it were released, of leading either directly or indirectly to the identification of the person concerned and disclose their personal information.

78 Given Mr North's evidence about the outcome of his inquiries, particularly as to the special circumstances involved, I am satisfied disclosure is unreasonable.

79 I am satisfied that Report 3, even with the full deletions proposed, is exempt from release under s 33 of the Act.

80 Reports 5, 7, 8 and 10. These are reports variously about assaults. An assault of a pupil by a teacher, a student assaulting other students, a student threatening and terrorising other students, and a student assaulting another. The details in each are quite specific about what happened. Mr North gave evidence that those involved would recognise themselves, and school staff would be able to identify the individual or individuals and potentially the wider community could too. I am satisfied that the details are specific enough to have the potential to identify the individuals concerned if the reports with the deletions were released, such that there would be disclosure of personal information if the reports were released.

81 Is disclosure unreasonable? Apart from Mr North's evidence about the results of his inquiries, he gave evidence of a general nature about the potential effects of release, and I had further specific evidence on these matters from Mr Craig and Mr Andrews.

82 Mr Andrews is the Principal, Kensington Community High School. His school was the subject of adverse publicity as a result of a Herald-Sun article entitled "Our Most Violent Schools" published in June 2004, naming his school as the school that "topped a secret database on violence in Victorian Schools with 14 assaults". He gave evidence about the totally false and misleading impression that article gave of the school and its students; of concerns raised with him by many members of the school community, of the negative impact the article had on his students; of his feeling that the article had a deep and harmful effect on many students' self esteem, and its effect on staff morale.

83 I accepted Mr Andrews' evidence that if released, the material may still have severe negative repercussions for the students involved. He had viewed the reports and made individual comments on each. I accepted his evidence that such information may re-awaken issues for students directly involved in the incidents, and may also adversely affect others at their school who were present at the time of the incidents or aware of the issues underlying the incidents, re-awakening issues or traumas. Further, I accepted his evidence that he was concerned the more general the remaining account of the incident, the more schools or students there may be who would think that the incident involved them or their school.

84 Mr Graham Clue gave evidence about his particular concerns were the reports of assault released. In brief, he pointed out that the reports were early reports and did not confirm whether a particular incident occurred at all. They had not been certified as accurate and release may lead to individuals being wrongly identified as perpetrators and the negative matters that might flow from that, including the risk of retribution from individuals and the creation of generalised fear and misunderstanding within school communities. Further, if the name of the school were deleted, there would be a risk of persons being wrongly identified. He was concerned that any recovery process would be jeopardised by reviving memories and concerns, leading people to re-experience old traumas. I accepted his evidence.

85 Is it unreasonable to disclose these reports? Mr North's inquiries revealed with incident 5 that the incident could not be substantiated and the alleged victim was still enrolled. With incident 7 he said his inquiries revealed there had been some misbehaviour but that it had not appeared serious. With incident 8 he said the student involved had severe behavioural problems and further set out some positive outcomes. With incident 10, again he said the student had severe behavioural problems and he set out what positive outcomes there had been.

86 Mr Andrews gave evidence about the potential ramifications to the student's wellbeing were the reports disclosed and of the adverse effects release would have, by re-traumatising those involved. Further, particularly I noted his evidence about the effect of release on the students and others with severe behavioural problems and how particularly damaging for those release would be and I accepted his evidence. Mr Craig gave evidence about the potential for misidentification and the mischief that would entail.

87 I accepted their evidence. In my view, those matters that they touched upon about the particular incidents and about the potential effects of release far outweigh any public interest in release I have referred to earlier.

88 I am satisfied reports 5, 7, 8 and 10 are exempt from release under s 33 of the Act.

89 Reports 4, 6 and 9 can be grouped as they are concern matters of a prurient nature.

90 Again, with all of these reports, the details in each are quite specific about what happened. Mr North gave evidence that those involved, the teachers, parents and wider community would be able to identify the individual or individuals were the reports, with deletions, released. I am satisfied that the details are specific enough to have the potential to identify the individuals concerned if the reports, with the deletions, were released, such that there would be disclosure of personal information if the reports were released.

91 Is disclosure unreasonable? According to Mr North, the alleged victims in Reports 4 and 6 are still at the schools concerned. With Report 9 significant behaviour problems are still being addressed. As Mr Andrews points out they all involve sensitive matters of a sexual nature, and he is concerned about any adverse effect on all the children concerned were the information disclosed.

92 Given the nature of the information, the fact that children are involved and are still at school and the evidence of Mr Andrews about the impact of disclosure which I accepted, weighing that against the public interest in knowing about safety in schools, the balance falls in favour of non-disclosure.

93 I am satisfied that Reports 4, 6 and 9 are exempt from release under s 33 of the Act.

94 Report 11 is quite old, made almost 4 years ago. It gives little detail. With the full deletions proposed, it is difficult to see how disclosure could lead to the identification of the child concerned, such that there could be disclosure. In light of this finding, it is not necessary to consider whether release is unreasonable.

95 In the circumstances, I am not satisfied that release with the full deletions proposed would amount to disclosure of personal information such as to satisfy the exemption claimed under s 33.

96 Report 12 is also quite old, made well over three years ago. Given the relatively general nature of the information, it is difficult to see how, with the full deletions proposed, that release could lead to the identification of the child concerned.

97 In those circumstances, I am not satisfied that release with the full deletions proposed would amount to disclosure of personal information such as to satisfy the exemption claimed under s 33.

98 I will return to the s 35 exemption claimed with respect to these reports.

99 Whilst this report is similar to Reports 11 and 12, it contains additional material which refers particularly to what happened to the individual concerned, such that, in my view, release could lead to the identification of that individual.

100 Release, in my view, is unreasonable given that a child is involved and that publicity may have a particularly adverse impact on the child's well-being. In my view, that outweighs the public interest described before in favour of release, such that I am satisfied that Report 13 is exempt from release under s 33 of the Act.

101 I have found part of Report 1 and Reports 11 and 12 are not exempt from release under s 33 of the Act.

102 The Department also claims they are exempt from release under s 35(1)(b) of the Act.

103 A document is exempt under s 35(1)(b) of the Act if the following two conditions are satisfied :

(a) disclosure of the document would divulge information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister; and

(b) disclosure of the information 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 or obtain similar information in the future'.

104 With this exemption, again the applicant did not press that the information was communicated in confidence. Argument focussed on whether the disclosure of the documents "would be reasonably likely to impair the ability" of the Department to obtain "similar information in the future".

105 Mr Pizer submitted, there have been different interpretations of the phrase "would be reasonably likely to" in s 35(1)(b) being "more probable than not" or "a possibility that is real rather than fanciful or remote". He submitted I should follow the approach in Ryder v Booth being a decision on the precise question, and I agree with that submission.

106 I am mindful that ultimately it is a question of fact in each case, whether disclosure would be reasonably likely to impair the ability of the agency in obtaining similar information in the future. Young CJ in Ryder v Booth at p 872, said:

Put in terms of the present appeals this means that the question is, would the disclosure of the information damage the ability of the Board to obtain frank medical opinions in the future. It may be noted that it is the ability of the Board that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. There may well be feelings of resentment amongst those who have given information "in confidence" at having the confidence arbitrarily destroyed by the operation of the legislation, but it is another thing altogether to say that they or others will not provide such information in future. It is not sufficient to show that some people may be inhibited from reporting so frankly if they know that their report may be disclosed. More is required to satisfy the onus cast upon the agency by s 55(2) of the Act. (my emphasis)

107 Both parties agreed that "similar information" in s 35(1)(b) refers to information of the class or character obtained in the case under consideration, and the precise contents of the information in the particular case are not relevant[10].

108 Reports 11 and 12, with the full deletions proposed by the applicant and part of report 1 are the subject of my considerations of whether the s 35(1)(b) exemption applies such as to make the documents exempt from release.

109 Mr North, Mr Craig, Mr Clue and Mr Andrews gave evidence about matters relevant to whether the exemption is made out.

110 In summary, their evidence established that

•

some principals and teachers are already reluctant to inform ESM of critical incidents and disclosure would reinforce this tendency, where reporting relies on co-operation

•

after the June 2004 Herald-Sun report the number of reports dropped dramatically, principals and teachers expressed reluctance to report incidents

•

if these reports were disclosed it was reasonably likely that at least some principals and teachers will delay, make fewer or less detailed reports.

111 The thrust of the evidence was that some people might be less reluctant, that there may be a delay in reports or fewer or less detailed reports. Following the reasoning in Ryder v Booth more is required to satisfy the onus.

112 The most compelling evidence concerning this exemption was Mr Andrews' evidence. He is the principal of the school singled out by the Herald-Sun in June 2004. Having been through that, his evidence was that if the reports were released (even with the deletions proposed) and any of the events mentioned in the reports were to occur in his school today, he would report the incident and would expect the majority of principals and teachers to do the same.

113 In light of the evidence, I am not satisfied the exemption under s 35(1)(b) is made out with respect to the reports or part report in question.

114 Given my findings, it is unnecessary to consider the s 38 exemption claimed, because I have found that the relevant reports for which s 38 is claimed are already exempt from release under s 33 of the Act.

115 Further, because I have found documents for which s 35(1) is claimed are not exempt from release, and documents which I have found are exempt from release are exempt under s 33 of the Act, it is not necessary for me to consider whether or not the "public interest override" in s 50(4) applies.

116 The decision of the respondent is affirmed for reports 2, 3, 4, 5, 6, 7, 8, 9, 10 and 13.

117 The decision of the respondent is set aside with respect to reports 11 and 12 and at the expiration of 28 days those reports with the full deletions proposed by the applicant are to be released to the applicant.

118 The decision of the respondent with respect to Report 1 is varied, such that at the expiration of 28 days, the report is to be released to the applicant without the deletions proposed by the applicant, except for the part identified in these reasons, which part I have found is exempt from release under s 33(1) of the Act.

[1] Source - respondent's statement of legal contentions filed

[3] [2005] VCAT 2592, concerning a related, although different, definition in the Information Privacy Act 2000 (Vic).

[4] See Page and Metropolitan Transit Authority (1982) 2 VAR 243; Ryder v Booth [1985] VicRp 86; [1985] VR 869; Department of Agriculture v Binnie [1989] VicRp 73; [1989] VR 836; Re Herald & Weekly Times and Victorian Curriculum & Assessment Authority [2004] VCAT 924; (2004) 21 VAR 68; Medical Practitioners Board of Victoria v Sifredi (2000) VAR 347; Rosen v Department of Human Services [2006] VCAT 691 per Coghlan DP at [28]

[5] Kyrou & Pizer, Victorian Administrative Law [2350] update 83.

[6] See, eg, Re Milthorpe and Mt Alexander Shire Council (1997) 12 VAR 105; Re Baird and VicRoads (1998) 12 VAR 126; Re Coulston and Mornington Peninsula and District Hospital (unreported, VCAT, Megay SM, 22 November 1998); Re Baird and VicRoads (No 2) (1999) 16 VAR 92. See also Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606; Queensland v Albietz [1996] 1 Qd R215. See also [2353A/2].

[7] Observations made by Eames J in The University of Melbourne v Robinson [1993] VicRp 67; [1993] 2 VR 177 at 187.

[8] Re Williams and Registrar of the Federal Court of Australia [1985] AATA 226; (1985) 8 ALD 219 at 221.

[9] Mr Wayne Craig gave evidence for the Department. He is the Regional Director, Northern Metropolitan Region.

[10] Richards v Law Institute of Victoria (unreported, County Court, Judge Dixon, 13 August 1984) at 9.