Bowes v Victoria Police [2002] VCAT 739

3. The respondent released some of the information sought but denied access to other information on the grounds that it was exempt by virtue of s.33(1) of the Freedom of Information Act in that its disclosure would involve the unreasonable disclosure of information relating to the personal affairs of a person viz the alleged offender and that its release would be unreasonable. It elaborated upon its decision by stating that as the documents have never been presented in a Court, that they were not public documents to which the applicant had a right of access and that, if they were released and happened to fall into "the hands of the uninformed", an impression could be gained that criminal charges had been heard against the alleged offender.

4. The information in dispute was filed with the Tribunal and included a tape of a brief interview with the alleged offender. It was set out in a Schedule of Documents in Dispute filed by the respondent. To that schedule, a further document numbered 6A was added at the outset of proceedings consisting of notes of Constable Williams.

5. The information in dispute was released to counsel for the applicant upon counsel furnishing the usual undertaking.

6. Evidence was given by Police Superintendent Paul Murnane who told the Tribunal that the alleged offender had admitted the assault. He said that although it is unusual, from time to time, even where a party admits to an offence, nevertheless, the police do not proceed with a charge.

7. In a statement filed with the Tribunal (Exhibit 1), Superintendent Murnane expressed the view that a person providing information to the police often does so in the belief that confidence will be maintained except to the extent that the law requires disclosure for the purpose of enforcing the criminal law. He also expressed the opinion that "the imperative to protect the privacy of a subject becomes more pressing, in circumstances where no criminal charge is filed because of inadequacy of evidence". He cited a provision of the Victoria Police Revised Code of Conduct in relation to members of the Police Force ensuring that confidential private and sensitive information is handled in line with good practice and that the integrity of such information is maintained at all times.

8. In his evidence to the Tribunal, Senior Constable Williams, the investigating officer, said that the applicant and the alleged offender provided conflicting accounts of what had occurred at the incident. It would appear that having regard to the conflict, to what he perceived to be the minor nature of the injury and the absence of independent witnesses, it was determined that no charge would be authorized. He alleged that he told the applicant that if he wanted to pursue the matter further, he would have to consider whatever civil remedies were open to him. That was denied by the applicant.

9. Senior Constable Williams expressed the opinion that if police disclosed personal information, there would be a resultant risk of alienating members of the public and diminishing co-operation with the police. He also expressed the view that were the material in dispute to be released in circumstances where no charge had been laid, there was potential to mislead, create mischief and cause detriment to the alleged offender in both his personal and professional life.

10. The respondent filed a statement of public interest grounds briefly summarized as follows :

(i) were the information to be released, it may be used for purposes which were not within the contemplation of those who provided it and the release may be perceived as a breach of confidence by them

(ii) such misuse of the information may lead to a loss of confidence in the police force and inhibit its ability to obtain similar information in the future

(iii) the release of answers given in interview in circumstances where no charge was laid would create the possibility of the information being misused "by way of distorted, ambiguous or selective publication" and such release may discourage other suspects in future from voluntarily answering questions thereby hindering the investigation process

(iv) to release personal information concerning potential witnesses may create apprehension that assisting the police can expose people to adverse risks able to be avoided by simply declining to provide information to the police.

11. In his statement of public interest grounds, the applicant submitted that it was in the public interest for the community to be properly informed about matters relating to the adequacy and worth of the operations of a Government Agency and, in particular, there was a public interest in ensuring impartiality in the activities of an agency. In this case, it appeared to be the perception of the applicant that because the investigating officer and the alleged offender lived in the same block of units and allegedly took part in common activities, those circumstances, in some way, resulted in the alleged offender not being charged.

12. The circumstances and documents in dispute in this matter bear substantial similarity to those before the Tribunal in the matter of Re Simpson and Victoria Police (No G50665/2001 decided by Ms Preuss on 9 April 2002 but unreported). In that case, as in this case, the parties to whom the information in dispute related, were notified of the request and objected to the release of it.

13. The Simpson case also involved an alleged assault and a subsequent police investigation. In that case also, the alleged offender admitted the assault and there was a determination by the investigating officer that there was insufficient evidence to lay a charge. In that case, the documents in dispute contained the names and other identifying features of people nominated by the applicant as perpetrators of the criminal offence. Also in that case, there was evidence from Superintendent Murnane that it was necessary to protect the privacy of those who supplied information to the police or who were interviewed by them.

14. In determining whether disclosure was unreasonable in regard to the information in dispute in Simpson's case, Ms Preuss had regard to two competing public interests - that in protecting an individual's right to privacy on the one hand and, on the other, the public's right to disclosure. Save for some information in that case, she formed the view that the public interest in protecting privacy outweighed the public interest in disclosure. Notwithstanding that the applicant was highly critical of the police investigation, she pointed out in her oral reasons for decision that the applicant did in fact have other avenues to which he could turn in relation to the investigation.

15. The information in this case is, on its face, information relating to the personal affairs of a person. Notwithstanding that counsel for the applicant was given access to the material in dispute, having read it, she did not contend otherwise and the applicant's case was really confined to the issue of whether disclosure would be reasonable.

16. Counsel for the applicant submitted that what the applicant was seeking was to have his concerns confirmed "in a material way". She said that to release the information in dispute would ensure accountability. I agree with and adopt the words of Ms Preuss in Re Trainer and Melbourne Metropolitan Board of Works 2 VAR 358 at 365 :

".... (I)n considering the test of unreasonableness one must not consider merely the disclosure of the documents to a particular applicant. Reasonableness must be considered as if disclosure was to the world at large".

17. It was not disputed that the test of unreasonableness requires the balancing of competing public interests viz the balancing of the public interest in protecting an individual's right to privacy on the one hand and the public interest in disclosure on the other. I accept the probability that information of the kind sought by the applicant would have been furnished to the respondent in the belief that it was confidential. I also accept that it is in the public interest to respect that confidentiality in the absence of a public interest in disclosure which outweighs it. The suspicions of the applicant in themselves are insufficient to alter the balance.

18. In this case, the applicant has instituted or is about to institute civil proceedings against the alleged offender and appears to believe that the personal information contained in the documents in dispute would, in some way, assist his case. However, the applicant does have available to him the opportunity to subpoena the documents in dispute should they have relevance and he is not solely dependent upon obtaining the information through the Freedom of Information process. Furthermore, upon examining the information in dispute, it does not appear to me that the release of it would further the concerns of the applicant that there may have been some impartiality in regard to the prosecution of the alleged offender.

19. In the circumstances of this case, the right to privacy outweighs the public right to disclosure and accordingly, I affirm the decision of the respondent. "