1 The decision of the respondent not to release documents 8, 9, 13, 15, and 17 is affirmed.

2 The decision of the respondent not to release document 16 is set aside and substituted with a decision that at the expiration of 28 days access should be granted to document 16 with the deletions as specified in the reasons attached.

Mr M Harding of counsel instructed by Holding Redlich

Dr S McNicol of counsel instructed by Victorian Government Solicitor

1 In May 2005, Mr Anthony Biviano, the applicant in these proceedings, who lives interstate, sent an email to the Ethical Standards Department (ESD) of Victoria Police. In that email Mr Biviano alleged that in February 1997, an attempt on his life was made by a Victorian police officer whose surname he provided. He claimed that the attempt had been kept a secret until recently.

2 Mr Biviano's allegation is that in 1997 he had attended an appointment with a physician and he says :

The doctor, unknowing to myself, prescribed myself a lethal daily dosage of medication that should have killed me. The doctor on the instructions of officer ... prescribed this lethal dosage in his attempt to kill me. This was definitely not a mistake and doctors do not go to police for medical advice. ...

3 When an allegation about a police officer is made, it is investigated by ESD.

4 Mr Biviano in his evidence at the hearing of this application confirmed that the alleged event had occurred when he had returned from the US for a funeral. He was on Haloperidol medication before he left the US and had not taken any medication before the alleged event. He claims the doctor prescribed him Haloperidol medication and he was in hospital thereafter for some weeks.

5 According to Mr Biviano, he sent the email after he had overheard his uncles talking about it. He confirmed he had never approached them for a statement. What he says he overheard was not set out in the email to ESD.

6 Detective Senior Sergeant Eastwood conducted an investigation. Mr Biviano was informed of the outcome of the investigation by letter dated 13 December 2005. He was advised that the police officer, and doctor concerned had been interviewed as well as his mother, 17 police officers and 9 civilians who had relevant information. He was advised that the doctor and police officer vehemently denied any conspiracy or inappropriate behaviour towards him and all other police officers and civilians interviewed denied having any knowledge of any such conspiracy or inappropriate behaviour. He was advised that the allegation was found to be unfounded, meaning that the available evidence clearly establishes that there are no grounds for the complaint whatsoever.

7 Mr Biviano applied to Victoria Police under the Freedom of Information Act 1982 for access to all the documents in relation to the investigation. Various documents have been released in full or in part, but there remain some six documents which are claimed to be exempt from release.

8 The hearing proceeded before me on 7 December 2006. Mr Harding represented Mr Biviano and Dr McNicol, Victoria Police. Mr Biviano gave evidence and the Victoria Police relied on the evidence of Detective Senior Sergeant Eastwood who had prepared a statement and was cross-examined. Both parties made submissions. Among the documents released in part before the hearing was the doctor's response to ESD, which indicated that his records showed only one visit; a history that Mr Biviano in the USA had been on Haloperidol twice per day for a mental disorder, and more recently had been on Benztropine twice per day. The doctor made a specific note of a discussion with Mr Biviano and the person with him that it would be preferable for him to admit to hospital rather than writing a prescription for him. He could see no evidence in his clinical notes of having prescribed him medication. During the hearing, it did not appear that Mr Biviano recollected having read that letter. He insisted the doctor had prescribed him medication.

9 As I said, there remain six documents in dispute, documents 8, 9, 13, 15, 16 and 17 as they are numbered in the schedule of exempt documents. Victoria Police claim they are all exempt from release as internal working documents (s 30(1)); as documents containing personal information (s 33) and as documents containing material obtained in confidence (s 35(1)(b)). Mr Harding conceded that Document 17 was exempt under s 30(1) of the Act.

10 Turning to the documents.

11 Document 8 is the Detective Senior Sergeant's report and recommendations to his superior officer about his investigation into the allegations. Victoria Police claim that the document is exempt as set out above, which includes being exempt under s 30(1) of the Act.

12 Under s 30(1) a document is exempt from release if disclosure would disclose matters in the nature of opinion, advice or recommendation prepared by an officer or consultation or deliberation between officers, prepared in the course of, or for the purposes of the deliberative processes involved in the agency's functions and that disclosure would be contrary to the public interest.

13 The Detective Senior Sergeant gave the following evidence about the document, relevant to this exemption :

•

As a result of the delegation from Detective Inspector Attrill, he understood his role to be to investigate the allegation and to write a report for him on the results of his investigation. He believed the report would only be going to senior officers of ESD, and to be reviewed by the Office of Police Integrity (Victoria) and so advised all interviewees that the information that they supplied to him was 'in confidence'.

•

In preparing his final report, he understood it to be a confidential document prepared only for the internal purposes of the ESD and the Office of Police Integrity, unless criminal charges were laid as a result of the investigation, or disciplinary action taken against a serving police employee. The expectation that the final report would be confidential enabled him to be entirely frank in his views.

14 I accepted that evidence.

15 It is clear from the report itself that it satisfies the first part of the exemption, because by its very nature it contains opinion, advice and recommendation, prepared in the course of his reporting to his senior officer as part of Victoria Police's function. Is its release contrary to the public interest? This consideration involves a balancing exercise, having regard to all the circumstances, balancing the factors in favour of disclosure against the factors against disclosure.

16 Dr McNicol drew my attention to several decisions which she submitted were relevant to these considerations. She submitted in Re Giudice and Environment Protection Authority (unreported), Megay SM, 14 May 2004, highlighted the public interest in communication -

in circumstances of departmental internal investigations ..., when successful outcomes depend on the ability of all parties to be frank, to speak their minds, to voice their opinions without "fear or favour" and to seek the views of parties and expect them to be delivered with impunity.

17 Counsel referred to a decision of Judge Higgins in Re Hoskin (No 1) [2003] VCAT 946 where his Honour held that

it would be contrary to the public interest to release "personal and critical assessments made by individuals with regard to the applicant" having regard to the nature of the document, the purpose for which it was generated and the need to ensure frankness and candour in the investigation (into how to manage the applicant) being carried out.

18 Finally, counsel referred to the decision of Gunawan v Department of Education [1999] VCAT 665 :

It is necessary to protect the integrity of a complaints or disciplinary process, such as an ESD investigation, by not disclosing the consultative and deliberative processes of investigators and other officers, and their opinions and recommendations, to the world at large.

19 Both parties have put forward submissions on the public interest that are equally relevant to my considerations in carrying out this balancing exercise.

20 In the statement that Mr Biviano says his solicitors prepared for him, he says that :

•

I have been informed by Victoria Police that my complaint has been investigated and that no wrongdoing was found on .... behalf

•

I have never received an explanation for the decision in regard to my complaint. I am troubled by the lack of information received about the complaint.

21 The following matters concerning the public interest were raised for Mr Biviano :

•

The public interest in ensuring that decisions made by Victoria Police and its Ethical Standards Division and the Office of Police Integrity, about matters of illegality or some other form of wrongdoing, are made in an open, accountable and transparent manner.

•

The public interest in ensuring that decisions made by Victoria Police and its Ethical Standards Division and the Office of Police Integrity, about matters of illegality or some other form of wrongdoing, are made properly and fairly.

•

The public interest in ensuring that decisions made by Victoria Police and its Ethical Standards Division and the Office of Police Integrity, about matters of illegality or some other form of wrongdoing, are made in accordance with principles of natural justice.

•

The public interest in ensuring that a person who has had a complaint to the Victoria Police and its Ethical Standards Division dismissed is informed as to why the decision was made so that they are able to test the legitimacy of the decision.

•

The public interest in ensuring that a person who has had a complaint to the Victoria Police and its Ethical Standards Division dismissed is informed as to steps undertaken in the decision making process so that they are able to test the legitimacy of the decision making process.

22 Mr Harding also contended that there is a public interest in ESD being publicly accountable, open and transparent, which can be achieved by release of the documents.

23 Despite the matters raised in support of the claim that the public interest required the release of the documents, it emerged during the hearing that Mr Biviano had in fact received quite a comprehensive written explanation about why his allegation was found to be unfounded and that although it had been asserted he had not been interviewed as part of the inquiry, in fact he had.

24 Whilst Mr Biviano may have his own reasons for seeking the information, Victoria Police submitted that -

•

There is a public interest in not unnecessarily disclosing the personal affairs of persons to the world at large against their wishes.

•

There is a public interest in maintaining the confidentiality of investigations conducted by the Ethical Standards Department (ESD) of the Victoria Police, particularly where no disciplinary action or charges are laid against the police member who is the subject of the ESD investigation.

•

There is a public interest in maintaining the confidentiality of statements provided by civilian witnesses to an ESD investigator in order to uphold community expectation, and police assurances, that such information is given in confidence and will not be released unless charges are laid against a police member. Failure to ensure such confidentiality will result in members of the public being less willing to assist ESD investigators in the future, which is not in the public interest.

•

There is a public interest in maintaining the confidentiality of information provided by members of the Victoria Police to ESD investigators in order to ensure the effectiveness of ESD investigations. Lack of cooperation and assistance by members of the Police Force, because of fear that what they say will not remain confidential, will detract from the ability of ESD investigators to investigate corruption and misconduct in the Force, which is not in the public interest.

•

There is a public interest in ESD investigators, police members and relevant Departmental officers being able to communicate about ESD investigations in a frank and candid manner in order to ensure best outcomes to investigations. Frankness and candour will be hindered by an expectation that such communications may be released to the world at large.

•

There is a public interest in ESD investigators being able to communicate their findings, advice, opinion and recommendations about investigations in a frank and candid manner to ensure openness and integrity in the investigation and resolution of complaints. Frankness and candour will be hindered by an expectation that such communications may be released to the world at large.

•

Where an ESD investigation has concluded that there is no basis whatsoever for a complaint about a police member, there is a public interest in preventing the details of the complaint from being disseminated to the world at large in order to prevent misinformation from being circulated.

25 Weighing those interests, the balance clearly falls in favour of non-disclosure.

26 I am satisfied release would be contrary to the public interest and document 8 is exempt from release under s 30(1) of the Act.

27 Document 9 is the appendix to Document 8. It contains summaries of information, including summaries of information from persons interviewed as part of the investigation. So far as it contains the names and any identifying details such as addresses, rank etc, of any person, that is personal information as defined in s 33(9) . To satisfy an exemption claimed under s 33, I then need to consider whether release of that personal information is unreasonable.

28 Because exemption under s 33 was claimed, the persons concerned, as required by s 53A of the Act, were all notified of Mr Biviano's request. The majority have responded and indicated they do not want their personal information disclosed, understandably concerned about any repercussions were that information released. I interpolate here that their concern may not be misplaced particularly in light of the bizarre unsolicited email Mr Biviano had recently sent to Detective Senior Sergeant Eastwood.

29 In considering whether release is unreasonable, Mr Biviano's reasons for seeking that information are a relevant consideration. He says he has never received an explanation for the decision and is troubled by the lack of information received about the complaint. Whilst the material that he has received reveals he did receive an explanation, I accept that he may be troubled by what he perceives is a lack of information. However, in light of the concerns that have been raised by persons notified, weighing those against Mr Biviano's interests, I am satisfied that it is unreasonable to release any information in the whole of document 9 that would identify anyone else or that would reveal their personal information.

30 The information in paragraphs (j) to (v) inclusive and (x) is all personal information and is exempt from release under s 33.

31 Paragraphs (b), (c), (d), (e), (f), (g), (h), (i) and (w) also contain personal information which information is exempt from release under s 33. However, there are parts of those documents that might potentially not come within the description of personal information.

32 Victoria Police have also claimed the documents are exempt from release under s 35(1) of the Act.

33 That exemption says a document is exempt from release if its disclosure would divulge any information or matter communicated in confidence by or on behalf of a person or a government to an agency and their 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.

34 Detective Senior Sergeant Eastwood gave evidence which I accepted that -

•

Over ... four months he conducted a thorough investigation into Biviano's allegation. After encountering some initial difficulty in contacting Biviano (who resides in Perth, WA), he contacted Biviano by email and discussed aspects of his complaint with him.

•

He also interviewed the doctor, 17 police officers and former police officers and 9 civilians who may have had knowledge of Biviano that could assist with the investigation. It is his usual practice to discuss terms of reference with interviewees at the commencement of the interview, in order to inform them of the purpose of the investigation.

•

In conducting the interviews, he believes that the expectation of confidentiality was essential to the free communication of highly sensitive issues. If the interviewees had believed that their private views were to be published openly, he does not believe he would have had as complete a picture of their views as those given to him. He believes that without an expectation of confidentiality, he may not have received such a full picture of the allegation or its subsequent management.

•

He found through his inquiries that there was insufficient corroborative evidence to support Biviano's allegation and as such determined that the allegation was 'Unfounded'. A determination of 'Unfounded' means that the available evidence clearly establishes that there are not grounds for the complaint whatsoever.

•

The report contains sensitive information provided to him by persons he interviewed 'in confidence' during his investigation. In his experience, persons who are interviewed by ESD investigators provide information upon an express or implied understanding that the information provided by them will remain confidential unless criminal charges are laid or disciplinary action taken as a result of the investigation.

•

It is critical to the proper management of the ESD, and to the fulfilment of ESD's obligations to the public, that ESD has detailed, accurate information about issues affecting members of the public and particularly those who have a complaint against a member of the police force.

•

In his opinion, if individuals feel they cannot make honest and frank statements about matters affecting their welfare without fear of disclosure, the information provided to the ESD is unlikely to be detailed and accurate.

•

Interviewees may also become reluctant to discuss incidents freely if records of the conversations could be released. This is so because the information discussed is often of a very sensitive nature, with the views expressed intended to provide an insight into what is often a very difficult and complex situation. Unless interviewees feel comfortable in discussing issues raised during the confidential communications, it is difficult to see how ESD investigators could appropriately deal with the issues.

•

In his opinion, release of the identities of persons involved in police investigations would diminish public confidence in the Victoria Police, and deter people from providing information and assistance to Victoria Police in the future.

•

Maintaining the confidentiality of all information relating to ESD investigations is crucial to the continued success of ESD. The ESD is located in a secure area that is separate from the rest of the Victoria Police. Access to the area and to the ESD computer database is restricted to authorised police members in order to maintain the security and confidentiality of information held by ESD. The ESD has policies and procedures that seek to protect the confidentiality of information obtained.

•

In his opinion, disclosure of the information claimed to be exempt would impair the ability of the Ethical Standard Department to obtain similar information in the future, for the reasons outlined above.

35 Mr Harding sought to challenge the officer's evidence about the information having been given in confidence, seeking to press that confidentiality could never be guaranteed, because it was always possible a matter might proceed to the laying of charges. Whilst that might be the case were an investigation to go further and charges laid, that possibility does not mean the information given was not given in confidence. The reality in this case was that Mr Biviano's flimsy allegations, based as they were on a conversation between uncles he says he overheard, and his recollection of circumstances where he himself acknowledged he had a history of mental illness, went nowhere and were found to be unfounded.

36 I am satisfied that given the nature of the information gathered and because on its face much of it indicates it was given in confidence, supported by the advice to the Tribunal of those contacted, plus the evidence of the officer which I accepted, that it was all given in confidence as part of the inquiry into the allegations.

37 I am also satisfied, accepting the officer's evidence that release is contrary to the public interest because release would impair the ability of ESD to acquire similar information in the future.

38 I am satisfied that all parts of this document except for paragraph (a) are exempt from release under s 35(1)(b) of the Act.

39 This leaves paragraph (a) which is not a summary of interview with Mr Biviano, but the officer's summary of relevant inquiries and views. It is in the nature of opinion formed as part of the deliberative process. For the same reasons as set out earlier, I am satisfied release would be contrary to the public interest. It is exempt from release under s 30(1) of the Act.

40 Document 13 is correspondence between police officers. Clearly the document contains advice and was created as part of the Detective Senior Sergeant's investigations. For the same reasons expressed earlier, I am satisfied its release would be contrary to the public interest. I am satisfied it is exempt from release under s 30(1) of the Act.

41 Document 15 is a statement from a witness. It is prefaced that it is made in confidence and that the author does not wish its contents to be disclosed to any person without the author's permission except for very limited purposes.

42 For the same reasons as set out previously in relation to the s 35(1)(b) exemption, I am satisfied that its release would be contrary to the public interest. I am satisfied it is exempt from release under s 35(1).

43 This is correspondence from the investigating officer to the doctor concerned, requesting a report and asking the doctor to address certain issues. The doctor responded and that response has been released to Mr Biviano, apart from the personal information of the doctor and the person who attended the clinic with Biviano on the day concerned.

44 The objection to the release of this document only clearly emerged during submissions. Though exemptions had been claimed under s 30, s 33 and s 35, Victoria Police objected to the release because it was submitted release would disclose police methodology and procedures. This was the case it was argued, even though the reply had been released, because the reply had not answered all the questions.

45 Such a claim would be a claim for exemption under s 31 of the Act. It was not claimed nor was there any evidence given to support such a claim.

46 Further, it is difficult to see that the document is exempt from release under s 30(1) or s 35. It does not disclose opinion, advice or recommendation, or consultation or deliberation between officers, such as to satisfy the s 30(1) exemption.

47 Nor is it information provided in confidence to an agency such that s 35(1) is satisfied.

48 The letter contains of course personal information of the doctor and the officer about whom the allegation was made. Whilst Mr Biviano knows who they are, release of this information in this context involves release to the world at large. In those circumstances, I am satisfied that release of the doctor's personal information is unreasonable. I am also satisfied release of the other person's personal information is unreasonable, particularly given that person's strong objection to its release. However, applying s 25 those details can be deleted, such as to make the document no longer exempt from release. Access should be granted subject to those deletions.

49 It is conceded this document is exempt from release under s 30(1) as an internal working document.

50 So far as documents or parts of documents remain that I have found exempt from release under s 30(1) or s 35(1)(b), it remains for me to consider whether the public interest requires their release as provided by s 50(4) of the Act.

51 Section 50(4) of the Act gives the tribunal the power to grant access where it is of the opinion that the public interest requires that access be granted.

52 I have already canvassed public interest considerations when considering the application of s 30(1)[1], but there are also documents I have found exempt from release under s 35(1).

53 There is no need to set out submissions on the public interest again, but applying s 50(4) and weighing those interests, the balance clearly falls in favour of non-disclosure.

54 The decision of the respondent not to release documents 8, 9, 13, 15, and 17 is affirmed.

55 The decision of the respondent not to release document 16 is set aside and substituted with a decision that at the expiration of 28 days access should be granted to document 16 with the deletions as specified in the reasons attached.

Anne Coghlan

Deputy President

[1] See Re Mallesons and Environment Protection Authority (unreported, AAT of Vic, Judge smith P; 20 August 1991) and Newnham v Victoria Police Force (1997) 12 VAR 389 about whether there is in fact a need to effectively address the same issue.