Cochrane v Melbourne Polytechnic (Review and Regulation) [2017] VCAT 1816 (9 November 2017)

1. The Statements of Legal Contentions of Melbourne Polytechnic cited 146 cases, and three volumes of authorities were provided. Mr Cochrane also referred to a number of the authorities cited by Melbourne Polytechnic and some additional cases.
2. I will refer to the authorities to the extent necessary but do not propose to review in detail the case law to do with the three exemptions in issue here. Many of the general principles are well-established.
3. Of most relevance in this proceeding were the cases to do with educational institutions, particularly those concerning internal communications about staff performance, personal information about staff or students, or consideration of complaints by staff, students or parents. This was not a case where the documents concerned Government policy, or the decisions of Cabinet.
4. They include:
   • AB v Department of Education and Early Childhood Development [2011] VCAT 1263
   • Benson v La Trobe University [2012 VCAT 717
   • Love v University of Melbourne (unreported, Victorian Civil and Administrative Tribunal, Senior Member Walker, 13 February 2001).
   • McNamara v Deakin University [2011] VCAT 1089
   • Mees v University of Melbourne [2009] VCAT 782
5. As Mr Cochrane submitted, unlike in many of the educational institution cases cited in Melbourne Polytechnic's Statement of Legal Contentions, in his case there was no formal investigation or review relating to him. Nevertheless the consideration of the exemptions in those cases is useful.
6. In relation to public interest considerations, Mr Cochrane referred to and relied upon the statement in the High Court decision in Commonwealth v John Fairfax & Ltd (the "Defence Papers Case").[4]

1. This criteria has relevance, in relation to consideration of s 35(1)(b), to Mr Cochrane's general submission that the truth or untruth of the information in a document is relevant to whether it is exempt under the FOI Act.
2. In Marke v Victoria Police [2006] VCAT 1364 at [56], in the context of s 35(1)(b), Senior Member J Preuss referred to a similar submission of the applicant in that case that an undertaking of confidentiality from ESD investigators could encourage false statements and allegations from dishonest persons who know their falsities will never be challenged. The Senior Member observed:

1. In Victoria Police v Marke [2008] VSCA 218 at 19, Maxwell P summarised the considerations relevant to whether disclosure of personal information would be unreasonable:
   • The nature of the personal information
   • The sensitivity (past and present) of the personal information
   • Any view about disclosure expressed by any person to whom the personal information relates
   • The relationship between the personal information and any other information in the document
   • How the personal information was obtained by the agency (whether voluntarily or involuntarily, and whether or not in confidence)
   • Whether and to what extent the personal information was already known to the applicant
   • The nature of any interest which the applicant can demonstrate in the information in the document other than the personal information, or the personal information.[13]
2. As submitted by Mr Cochrane, referring to Victoria Police v Marke [2008] VSCA 218 at 75, whether a complainant was actuated by malice, or made a deliberately false report, is relevant to whether disclosure would be unreasonable.
3. Weinberg J at 75 and 76 observed:

(1978) 142 CLR 1