1. In May 2010, VCAT received an application for review under the Freedom of Information Act 1982 (the FOI Act) from Mr Benson, seeking orders that La Trobe University release documents to him.
2. After a protracted procedural history[1], on 8 March 2012 I heard Mr Benson's application. Mr Benson represented himself. Mr M. Batskos, Solicitor represented La Trobe University.
3. Mr Benson was the subject of a complaint (the First Complaint) against him by a work colleague (the Complainant) at La Trobe University where he was and is employed, as is the Complainant. The University engaged Landers & Rogers Solicitors to investigate and report. A second complaint (the Second Complaint) was made about Mr Benson's conduct over a two-day period. The conduct was related to the investigation of the First Complaint. The University engaged another firm of solicitors, Justicia Lawyers and Consultants (Justicia), to investigate the Second Complaint.
4. The report about the First Complaint concluded the complaint was not substantiated. The report concerning the Second Complaint concluded Mr Benson's conduct over the two-day period amounted to misconduct under University policy. The outcome was the University placed a copy of a letter to Mr Benson about the misconduct finding on his personnel file.
5. Mr Benson asks VCAT to order the University to release both reports to him in full, with information identifying individuals removed.
6. The University submits the reports are, exempt from release under sections 30(1) (internal working documents), 32 (legal professional privilege), 33 (document affecting personal privacy) and 35 (material obtained in confidence) of the FOI Act.

1. Mr Gary Nolan, Manager, La Trobe Health and Safety Unit, People and Culture Division at the University gave evidence. In his opinion, neither report should be disclosed.
2. In summary his evidence which I regarded as relevant to founding exemptions under sections 30(1), 33 and 35(1) of the FOI Act is:

1. He was familiar with the L&R report and the Justicia Report; 2. In early 2009 the Complainant complained of being bullied by Mr Benson. In Mr Nolan's opinion, it became clear the Complainant was making allegations in the nature of sexual harassment. He referred to complaint to the Equity and Diversity Unit, which specialises in dealing with such complaints. The Complainant was advised to and made a formal complaint to that Unit. In August 2009, the Complainant advised she wished to proceed with a complaint and made further allegations about Mr Benson's conduct since March 2009;

1. The University engaged Landers and Rogers to investigate and report on whether the alleged conduct occurred and if so, whether it amounted to sexual harassment. Mr Benson was advised of this.

1. The University received further complaints about Mr Benson's conduct on 23 and 24 September 2009 alleging he had been aggressive, angry and intimidating, or rude and abrupt with various staff. Justicia was engaged to investigate these complaints; 2. In December 2009, Mr Nolan met with Mr Benson to inform him that Justicia had concluded his conduct in September 2009 amounted to misconduct under the University's enterprise bargaining agreement. The sanction was a copy of the letter to Mr Benson about the report was placed on his personal file; 3. In January 2010, Mr Nolan met with Mr Benson to inform him that the L&R Report concluded that allegations of sexual harassment were not substantiated; 4. Both the L&R report and the Justicia Report detail complaints and allegations made, documents considered by the investigators, the framework of the investigation process, detail of what various parties said during interviews with the investigators and in any written submissions and investigators findings, conclusions, advice and recommendations; 5. All people interviewed in the course of both investigations gave information on the understanding that what they said would be treated as confidential; 6. I do not detail Mr Nolan's evidence about legal professional privilege, given I have found it unnecessary to deal with the exemption under section 32 (see below); 7. Mr Nolan said that if either report was to be released there would be a serious adverse effect on the conduct of future investigations into allegations about staff conduct at the University. In his view, it is in the interests of everyone involved in an investigation into staff conduct that the investigation report is kept confidential. He forms his view given his previous experience in carrying out staff conduct investigations; 8. If contributions to investigations such as the ones relevant here are not kept confidential, staff would be reluctant in the future to provide information to investigators. To the extent they may do so, they may be less forthcoming. If people are not prepared to contribute, or are not prepared to contribute to the full extent of their knowledge, that undermines the University's ability to deal with allegations about staff;

1. The University is unable to compel staff who may be witnesses to matters subject to a complaint to provide information. People generally provide information to investigators on the understanding that the communications will be kept confidential;

1. An important aspect of the need for confidentiality is to protect the reputation of the person in relation to whom the allegations are made. This is particularly relevant in cases where the allegations are not upheld, as was the case with the L&R Report; 2. If the material provided in the context of investigations is not kept confidential, it jeopardises the available options for resolution. For example, if the person who is subject of the complaint thinks the matter is widely known that person is less likely to engage in mediation or other negotiation; 3. If the investigation process was not kept confidential, that would deter some staff from making complaints; and 4. Mr Benson has said to Mr Nolan in the past that he was thinking of writing a book about his experiences of the two investigations and surrounding circumstances. Therefore, Mr Nolan sees there to be a likelihood that the material if released may be disseminated to the world at large.
2. Mr Benson cross-examined Mr Nolan. In my view, Mr Nolan's responses did not detract from the credibility of his evidence.

1. Once Mr Benson applied to VCAT, section 53A of the FOI Act required the University to give people that could be identified in the report is the opportunity to either intervene in the proceeding or submit a statement as to whether they do or do not object to release of information relating to their personal affairs.
2. The university sent notices to 31 people, who all responded. Twenty-two objected, eight consented and one neither consented nor objected. I have read their responses.

1. Mr Benson's evidence is contained in the lengthy written statements provided to VCAT during this proceeding and oral evidence at the hearing.
2. He sees great injustice in how the University dealt with allegations against him. He speaks of the Complainant making allegations against him on previous occasions, with no allegations being substantiated. He describes the harm was done to his reputation and well-being. He says the process of investigating the First Complaint failed to protect his privacy. He notes if the allegations had been made with respect to criminal matters, he would have had his day in court, in an open justice system. He says if he obtains the Reports, this will provide some protection against further unsubstantiated complaints by the Complainant. Also, it will allow him to discuss with the relevant university staff (senior administrative personnel, not colleagues generally) about how the complaints system may be improved.
3. I say without criticism that Mr Benson tended to wish to put evidence before VCAT about the detail of the University's actions in investigating him and specific incidents between him and the Complainant. That is understandable in terms of his concern about his reputation. However, that is not the issue I am called on to decide. Therefore, I regard much of his evidence as irrelevant.

1. Under section 13 of the FOI Act, Mr Benson has the right to obtain documents from WorkCover unless a document is wholly or in part an exempt document as defined by the Act, subject to exemptions set out in the Act. The relevant exemptions are now described.
2. Section 30 concerns the internal working documents exemption.

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

(a) would disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers, or an officer and a Minister, in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government; and

(1A) Subsection (1) applies in relation to a council as if for "Minister" there were substituted "member of the council".

(2) In the case of a document of the kind referred to in section 8(1), the matter referred to in subsection (1)(a) of this section does not include matter that is provided for the use or guidance of, or is used or may be used for, the purpose of making decisions or recommendations, or enforcing enactments or schemes, referred to in section 8(1).

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

(4) This section does not apply to the record of a final decision, order or ruling given in the exercise of an adjudicative function, and any reason which explains that decision, order or ruling.

(5) Where a decision is made under Part III that an applicant is not entitled to access to a document by reason of the application of this section, the notice under section 27 shall state the public interest considerations on which the decision is based.

(6) Subsection (1) shall cease to apply to a document brought into existence after the day of commencement of this section when a period of ten years has elapsed since the last day of the year in which the document came into existence.

(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

1. Section 33 concerns document affecting personal privacy. It relevantly says,

(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).

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.

1. The issue of what are personal affairs was discussed by Macnamara DP in Corry v Victoria Police - FOI Privacy Division (General) [2010] VCAT 1096 (9 June 2010). He said, at para 12,

... I gave a decision named Milthorpe v Mt Alexander Shire Council [1997] 12 VAR 105 in which I stated:

The paradigm for the operation of Section 33 arises where an agency collects material as to the life of an ordinary citizen. ... More difficult issues arise where the individual involved is an officer of the agency. Matters in the officer's personnel file might generally be regarded as "personal" to the officer involved. In another sense, to the extent that the personnel file records the officer's conduct in performance of his official duties, the information might be regarded as "official" rather than related to his personal affairs.

I take Their Honours to be saying [in Federal Court of Australia in Department of Social Security v Dyrenfurth [1988] FCA 148; (1988) 8 AAR 544, 549 ] that this means, what appears in a personnel file might or might not according to the general description of the concept of personal affairs be regarded as material relative to the personal affairs of the officer. One may consider for instance, a fairly clear example where a personnel file includes an observation as to some personal family difficulty which has affected the officer's performance, some illness from which the officer suffers and so on. ...

1. Megay SM in Baker v Department of Education and Training (General) [2005] VCAT 2263) (28 October 2005) (at 7). She said about a report of investigation of a parents' complaint at a primary school,

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 ... 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.

1. Section 35 concerns the material obtained in confidence exemption.

35 Documents containing material obtained in confidence

(1) A document is an exempt document if its disclosure under this Act would divulge any information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister, and -

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

(b) the disclosure of the information under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.

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

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

1. In Corry v Victoria Police - FOI Privacy Division (General) [2010] VCAT 282 (15 March 2010), Macnamara DP referred to leading authorities concerning section 35(1), saying at para 52,

In Ryder v Booth access was sought to medical reports furnished to the State Superannuation Board. Based on the Court's view that it was insufficient to make out the exemption that examining doctors would report less candidly the exemption was held not to be made out. In Medical Practitioners Board of Victoria v Sifredi [2000] VSC 33; (2000) 16 VAR 347 Hedigan J held on appeal that this Tribunal was entitled to conclude that a response given by a practitioner to the Board in the course of its enquiry into a complaint against the practitioner was not exempt under Section 35(1)(b) because the evidence did not establish that a practitioner in these circumstances would not respond at all, merely that he or she might respond with greater circumspection or less candour.

1. Section 50(4) (discussed below) is known as 'the public interest override'. It empowers me to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), or in section 33) where I am of opinion that the public interest requires that access to the document should be granted under this Act.
2. The High Court of Australia has confirmed that decision-makers must be satisfied to a high threshold that the public interest necessitates release of the document. In Osland v Secretary to the Department of Justice [2010] HCA 24, French CJ, Gummow and Bell JJ. said at paragraph 14,

It must be accepted that the word "requires" which appears in section 50(4) directs the decision-maker to identify a high-threshold public interest before the power can be exercised. It is not enough that access to the documents could be justified in the public interest.

1. The Court said the high threshold existed (at para 48) where,

The nature of the differences between the advices, throwing up opinions about the fairness and authority of the criminal justice system, the circumstances of Mrs Osland 's situation, and asserted inadequacies in the law in relation to chronic domestic violence, was such as to be capable of supporting the formation of an opinion that the public interest required the disclosure of the documents. It was, at the very least, arguable, in the circumstances of the case, that the high-threshold public interest standard was met and that the public interest required disclosure of the contending, essentially normative propositions which the Attorney-General had before him when he recommended that Mrs Osland 's petition be denied.

1. I consider both the L&R Report and the Justicia Report to be exempt under sections 30(1), 33 (partly) and 35 of the FOI Act. Further, in my view the public interest does not require the documents be released. I do not see it as practicable to produce a redacted version.
2. Given the above, I do not consider it necessary to decide the issue of exemption under section 32.

1. The University contended under Section 30(1), that release of the L&R Report would clearly disclose matter in the nature of opinion, advice and recommendation prepared by an officer (Landers & Rogers) in the course of and for the purpose of, the deliberative processes involved in the functions of an agency (the University) and would be contrary to the public interest. It submits it would be contrary the public interest if the University was unable to maintain a confidential process to address workplace disputes where employees give evidence on a confidential basis. Mr Batskos referred to the decision Davis SM of VCAT in Mees v University of Melbourne (General) [2009] VCAT 782 (6 May 2009).
2. I view the L&R Report as exempt under section 30(1) because:

1. Its release would disclose matter in the nature of opinion, advice and recommendation; 2. It was prepared by an "officer". The term, "officer" is relevantly defined in section 3 of the FOI Act. In this situation, Lander & Rogers is an "officer". VCAT has repeatedly ruled that consultants, including lawyers, when engaged by an agency are officers _(s_ee Davis SM in Mees v University of Melbourne at 31 and Koch v Swinburne University [2004] VCAT 1513);

1. It was prepared in the course of and for the purpose of, the deliberative processes involved in the functions of an agency. To paraphrase Davis SM in Mees (at 32), the reports concerns the course of an internal investigation whereby a complaint was investigated. It forms part of the deliberative process of the agency involved in the function of the agency and matters relating to staff issues; and

1. Its release and would be contrary to the public interest. Again, paraphrasing Davis SM in Mees (35 to 40), I accept Mr Nolan's evidence that University employees gave information to the Report's author in confidence.

In my view, releasing the L&R Report would put the deliberative process of the University and possibly similar institutions in Victoria at risk of not being able to obtain similar information in the future. Any advantage gained by Mr Benson would be far outweighed by the disadvantage that would be suffered in trying to persuade University staff to provide information in the context of the investigation of a complaint process.

I accept Mr Nolan's evidence that a number of the people who gave Landers & Rogers information would be distressed if the description of that information was released.

Twenty-two staff are most concerned at the prospect that the information may be released to Mr Benson, them having provided information in confidence. That said, I do not, and am not required to, accept that all concerns they raise appear well grounded. I also note eight do not object. It is evident if these matters are not kept confidential, it would inhibit the University staff from giving similar information in future situations. The free flow of information between the University and its staff should not be impeded.

While the matter does not concern the high workings of government, it is nonetheless important that in an institution such as the University there be efficient and economical conduct and protection of the deliberative process.

I took a similar view in Styles v Victorian Workcover Authority [2010] VCAT 1815.

Finally on this issue, while I have primarily considered VCAT's decision in Mees in the above discussion, I note the many other examples of VCAT's similar decisions in Gunawan v Department of Education (unreported, VCAT, Davis SM, 15 December 1998, Koch v Swinburne University [2004] VCAT 1513 at [19], Giudice v Environment Protection Authority (unreported, VCAT, Megay, SM, 14 May 2004), Royce v Department of Justice [2006] VCAT 1699, Mann v Medical Board of Australia [2010] VCAT 1525, AB v Department of Education and Early Childhood Development [2011] VCAT 1263 and Friends of Mallacoota v Department of Planning and Community Development [2011] VCAT 1889.

1. I view a significant portion of the L&R Report as exempt under section 33 as its release would be an unreasonable disclosure of information concerning the personal affairs of the Complainant. I will not here describe the nature of those personal affairs. The information is clearly beyond what might be described as, "official affairs".
2. The report records information from witnesses. In my view, it is information relating to their personal affairs under section 33(9), as it is information that identifies those people. They provided the information in confidence.
3. In my view, where people have not consented to release, release of that information is not reasonable. This is not a case where Mr Benson is well aware of everyone who has provided evidence (as was the case in Baker (quoted above), where release was not found to be unreasonable.
4. I note eight people consent to release. If I had not decided other exemptions apply, I would not have considered release of those parts of the Report which records the information those people gave as unreasonable.

1. I also regard L&R Report as exempt under section 35(1). In my view:
   1. Its disclosure would divulge information communicated in confidence by or on behalf of a person (university staff) to an agency (the University via Landers & Rogers).

Again paraphrasing Davis SM in Mees (at 49), I find there was a shared understanding by both the giver and the receiver, at the time the information was given that the receiver would keep the information secret. On the basis of Mr Nolan's evidence and the section 53A statements (with respect to those who objected), I am satisfied that understanding continues.

1. The 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. Given the circumstances of the work environment in which information was given and accepting Mr Nolan's evidence, I am satisfied disclosure of this information would have a serious negative effect on other people giving information in the future. In my view, the test in Ryder v Booth is well met.

1. Turning to Section 25, Mr Batskos submitted that I am not obliged to consider whether it is practicable to grant access to a copy of the Report with such deletions as to make it not an exempt, because, in the words of section 25(3), it does not appear from the FOI request, nor has Mr Benson subsequently indicated, that he would wish to have access to such a copy.
2. I have not needed to reach a final view on the submission. I cannot see a way that required deletions could be made which would leave an intelligible document, without the risk that partial release is also likely to create the disadvantage that would be suffered in trying to persuade volunteers to provide information of a similar client to that provided here in the future.
3. I reach this view after considering previous decisions and commentary about section 25. Pizer in Victorian Administrative Law (para FOI.25.40) leads off his discussion of "practicable", saying',

The primary meaning of "practicable" given by the Shorter Oxford English Dictionary is "capable of being carried out in action; feasible. The primary meaning of "feasible" given is capable of being done, carried out, or dealt with successfully in any way; possible; practicable.

1. With respect to Mr Batskos' submission, I will comment that in the context of the FOI Act, which is to be interpreted to provide access to documents (see section 3), the submission troubles me. I mean that in the sense that reliance on section 25(3) to avoid the possibility of a redacted version of the document being released seems overly technical. Often, particularly with self-represented parties that even with legal representation, it will not be apparent the applicant must specifically request a document with deletions should the whole document not be released. Most applicants would say it is obvious they would want that.
2. In any case, section 25(3) creates an obligation to consider the release of the exemptions if requested. In my view, even if the request is not made VCAT, in the shoes of the decision-maker, has discretion to release such a document which, if practicable, would ordinarily be exercised.

1. I accept that Mr Benson is concerned about what he says is the injustice of the processes he has been through. However, in the context of my above views on the evidence and my reasons concerning the applicable exemptions, I do not accept that the public interest requires the release of the L&R Report.

1. While I have considered the Justicia Report separately and it concerns different events, the principles I discuss above with respect to section 30(1), 33 and 35(1) lead me to decide it also falls squarely within those exemptions.
2. I view the Justicia Report as exempt under section 30(1) because:

1. Its release would disclose matter in the nature of opinion, advice and recommendation; 2. It was prepared by an "officer" as defined in section 3 of the FOI Act, being Justitia;

1. It was prepared in the course of and for the purpose of, the deliberative processes involved in the functions of an agency, being the University. The report concerns the course of an internal investigation whereby a complaint was investigated. It forms part of the deliberative process of the agency involved in the function of the agency and matters relating to staff issues; and

1. Its release and would be contrary to the public interest for the reasons set out above concerning the L&R Report.

1. Unlike the L&R Report, the Justicia Report contains little information about the Complainant. Therefore, in my view its release would not be an unreasonable disclosure of information concerning the personal affairs of the Complainant.
2. The report records information from witnesses. None have consented to release. In my view, it is information relating to their personal affairs under section 33(9) as it is information that identifies those people. In the relevant circumstances, they have provided information in confidence. In my view, where people have not consented to release, release of that information is not reasonable. This is not a case where Mr Benson is well aware of everyone who has provided evidence (as was the case in Baker (quoted above)) where release was not found to be unreasonable.

1. I also regard the Justicia Report as exempt under section 35(1)(b), because:
   1. Its disclosure would divulge information communicated in confidence by or on behalf of a person (university staff) to an agency (the University via Justicia).

Again paraphrasing Davis SM in Mees (at 49), I find there was a shared understanding by both the giver (the staff members and the receiver the University via Justicia), at the time the information was given that the receiver would keep the information secret. On the basis of Mr Nolan's evidence I am satisfied that understanding continues.

1. The 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. Given the circumstances of the work environment in which information was given and accepting Mr Nolan's evidence, I am satisfied disclosure of this information would have a serious effect on other people giving information in the future. In my view, the test in Ryder v Booth is well met.

1. Again, I cannot see a way that required deletions could be made which would leave an intelligible document, without the risk that partial release is also likely to create the disadvantage that would be suffered in trying to persuade volunteers to provide information of a similar client to that provided here in the future.

1. Given my above views, I do not accept that the public interest requires the release of the Justicia Report.

[1] See orders and reasons in Benson v La Trobe University (General) [2011] VCAT 2064 (3 November 2011) and Benson v La Trobe University (No 2) (General) [2012] VCAT 134 (1 February 2012)