(b) VCAT Proceeding Z856/2019 (Z856), which concerns the request made on 25 March 2019 for access to invoices relating to expenditure pertaining to certain litigation between Mr Tucker and the SRO (or the State of Victoria).[7]

1. By consent, on 3 February 2020, the Tribunal ordered that the two proceedings are to remain separate but be heard and determined together.
2. The SRO tendered the following Exhibits in confidence for the assistance of the Tribunal:

(a) Exhibit G, comprising Confidential Documents in Dispute for Z515 (Z515 CD);

(b) Exhibit L, comprising Confidential Documents in Dispute for Z856 (Z856 CD);

(c) Exhibit M, comprising Confidential Exhibits for Z515; and

(d) Exhibit N, comprising Confidential Exhibits for Z856.

1. The SRO variously claims exemptions under ss 30(1), 32(1), 34(1) and 34(4) of the FOIA for the whole of the disputed documents in both proceedings.
2. Mr Tucker refers to the OVIC decisions and otherwise asserts that there is a public interest of central importance in the full disclosure of the invoices and documents.[8]

1. Mr Tucker was previously employed as a lawyer at the SRO[9] and has a long history of disputation and litigation in relation to the SRO.[10]
2. The following decisions published by the Fair Work Commission and the Supreme Court of Victoria give an overview of the history of Mr Tucker's employment with the SRO, the circumstances in which his employment ended, and the nature of his employment-related litigation:

• Tobias John Tucker v The State of Victoria & Anor [2019] VSC 420.[11]

1. Toby Tucker v State of Victoria [2019] FWC 3896.[12]
2. Mr Tucker has also engaged in litigation in relation to the SRO, which to date has resulted in the following published decisions and judgments:[13]
   • Tucker v State of Victoria & Anor [2019] VSC 420.
   • Toby Tucker v State of Victoria [2019] FWC 3896.
   • Tucker v Commissioner of State Revenue (Costs Ruling) [2019] VSC 481.
   • Commissioner of State Revenue v Tucker [2019] VCAT 1840.
   • Tucker v Commissioner of State Revenue [2019] VCAT 2018.
   • Tucker v State Revenue Office [2020] VCAT 53.
   • Tucker v State Revenue Office (No 2) [2020] VCAT 273.
   • Tucker v State of Victoria & Anor (Undertaking as to Damages) [2020] VSC 121.
   • Toby Tucker v State of Victoria [2020] FWC 1943.
   • Toby Tucker v State of Victoria [2020] FWC 3159.
   • Toby Tucker v State of Victoria [2020] FWCFB 4971.
3. The Applicant's Counsel submitted to the effect that Mr Tucker has consistently demonstrated a propensity to act unreasonably and make unfounded allegations in litigation. For instance, in the course of his previous proceedings against the SRO, Mr Tucker made the following allegations and submissions about the SRO, its staff, or lawyers:[14]

1. That the SRO conducted the proceedings vexatiously. The Tribunal dismissed this as not correct.[15] 2. That the SRO acted with a collateral purpose in bringing a proceeding. The Tribunal rejected this as baseless.[16]

1. That the SRO failed to comply with orders of the Tribunal. The Tribunal rejected this.[17]

1. That the SRO breached the Model Litigant guidelines. The Tribunal rejected this.[18] 2. That the SRO (or its lawyers) behaved contemptuously by threatening a potential witness to a proceeding. The Tribunal dismissed this as having no substance.[19] 3. That the SRO (or its FOI Officer) had been guilty of a breach of duty or misconduct in administration of the FOIA. The Tribunal dismissed this.[20] 4. That counsel for the SRO had coached a witness during a hearing. Notwithstanding that the Tribunal dismissed this allegation as being inappropriate and without basis when raised during the hearing, Mr Tucker repeated the allegation in subsequent submissions to the Tribunal and the Tribunal ordered the allegation struck out.[21] 5. An allegation that [what] the SRO submitted was "outrageous" and which the Tribunal ordered struck out from his submission on the basis that it was irrelevant and inappropriately mischievous.[22] 6. That the SRO (or its staff members) had breached his privacy in several ways. The Tribunal dismissed all the allegations.[23] 7. Attacking the credibility of SRO staff giving evidence against his interests and alleging that the SRO did not have "clean hands." The Court rejected that allegation as lacking evidence.[24] 8. That the SRO abused the process of the Supreme Court. The Court rejected this.[25]
2. Furthermore, Counsel referred to various observations made from the Bench about Mr Tucker's behaviour in the course of his litigation:

1. He gave evidence designed to place himself in a position of exaggerated importance_._[26] 2. He appeared to want to ventilate wide-ranging issues, well beyond the scope of the proceeding.[27]

1. He has wide-ranging grievances against the SRO as his former employer.[28]

1. His fervour has coloured his perception of events. He has used accusing and emotional language. He jumps to conclusions based on inferences he has drawn.[29] 2. His agitation of irrelevant issues during trial resulted in a trial that should have been, at most, two days, becoming a three-day trial.[30]
2. Mr Dunlop said that 13[31] of the FOI requests in the litigation listed above were for financial information about expenditure on certain lawyers and Worklogic. Mr Dunlop assisted in processing these requests which included creating a summary of expenditure over certain periods without disclosing other information.[32] It is these summaries which have been released.
3. Mr Tucker is also suing a staff member of the SRO as well as the SRO/State of Victoria for defamation in the Federal Court.[33]
4. The Applicant's Counsel submitted that the conduct of Mr Tucker in his prior employment with the SRO and his propensity to engage in serial litigation is of central relevance to these proceedings. The Tribunal will return to these matters below.

1. The Applicant's Counsel referred to certain long-standing principles which have been applied to Tribunal decisions in review applications:

1. Comity, uniformity and consistency between decisions is desirable.[34] 2. A Tribunal should adopt the same principles in deciding various review applications which arise under the same statute.[35]

1. While not bound by its own decisions, the Tribunal should only depart from a decision which was clearly on point if it considers it to be clearly wrong.[36]
2. The above principles will guide the Tribunal in the current proceedings.
3. Having regard to the above principles, Counsel submitted that the Tribunal should have regard to the following:
4. First, in a recent Tribunal decision, access was refused to similar documents involving very similar circumstances to the present cases where similar grounds were relied upon by the relevant agency.
5. That case also involved Maddocks invoices and other documents which the Tribunal described in a way that suggests they were similar to many of the documents involved in these proceedings. In relation to the invoices in particular, the Tribunal upheld exemptions under ss 32(1), 33(1), 34(1)(b) and 34(4)(a)(ii) of the FOIA.[37] In doing so, the Tribunal took into account a similar history of disputation and litigation between the FOI applicant and the agency as exists between Mr Tucker and the SRO. It appears no exemption was raised under s 30 in that case. The Tribunal also rejected the public interest override.[38] This case will be considered further below in the context of evidence given in the current proceedings.
6. Secondly, both of the present proceedings involve a considerable number of Maddocks invoices, many of which are captured by both requests (that is, the same invoice is in dispute in both proceedings). With limited exceptions (listed below), the SRO asserts the same exemptions over all the invoices.[39]

1. In response to Mr Tucker's request giving rise to Z515, the SRO identified 562 pages falling within scope. It released 13 pages in part and withheld from release in full 549 pages. 562 pages therefore remain in dispute, either in full or in part.[40]
2. In response to Mr Tucker's request giving rise to Z856, the SRO identified 353 pages falling within scope. It released one page in full and withheld from release in full 352 pages. 352 pages remain in dispute - all in full.[41]
3. Save where indicated otherwise below, the Applicant claims that each of the disputed documents in Z515 is exempt under the various provisions identified in the schedule to Exhibit E[42] (Z515 Schedule). The exemptions involved, in various combinations, are ss 30(1), 32(1), 33(1) and 34(1)(b) (plus s 34(4)(a)(ii) wherever s 34(1)(b) is nominated in that schedule) of the FOIA.
4. Save where indicated otherwise below, the Applicant claims that each of the disputed documents in Z856 is exempt under the various provisions identified in the schedule to Exhibit J[43] (Z856 Schedule). The exemptions involved, in various combinations, are ss 32(1), 33(1) and 34(1)(b) (plus 34(4)(a)(ii) wherever s 34(1)(b) is nominated in that schedule) of the FOIA.
5. Counsel confirmed that the SRO no longer claims exemption under s 32 of the FOIA for the following documents (although it maintains the other exemptions):

1. Z515 CD 527.[44]
2. The Tribunal also notes that Mr Tucker indicated at the Hearing that he no longer presses his request for Z515 CD 435-436. As such, it now falls out of scope of the FOI request and does not fall for consideration by the Tribunal.

1. The SRO principally relied upon the evidence of Mr Grant Dunlop who had made three witness statements and gave oral evidence.[45]
2. Mr Dunlop has held the position of Chief Financial Officer for the SRO since 2012 and otherwise worked in various roles at the SRO since May 1995, including as Team Leader and Acting Branch Manager of the Investigations Branch.[46] Mr Dunlop also holds a degree in Accounting and is a Certified Practising Accountant. In his witness statements and in oral evidence, he detailed his experience and responsibilities with the SRO.
3. The Tribunal is satisfied that Mr Dunlop is uniquely qualified and experienced to give the evidence which he did in his written statements and oral evidence.

1. Mr Tucker was formerly employed as a solicitor with the SRO. Mr Dunlop gave evidence that Mr Tucker was located in a work pod "slight to the right of my office". Mr Dunlop said that his team manages the procurement documents. Mr Duncan and his work colleagues worked in close proximity to Mr Tucker and had the opportunity to observe Mr Tucker's behaviour as an employee.[47] Conversely, Mr Tucker had an opportunity to learn more about the nature and content of documents than the average person and indeed possibly more than other SRO employees.[48]
2. Mr Dunlop also gave evidence[49] about the feedback he had received from people expressing concerns at the prospect of their information being released to Mr Tucker. In cross-examination, Mr Tucker did not contest the evidence about the capacity of staff or other affected third parties to have observed his behaviour as an employee or as a litigant or their concerns about the release of their information to him.[50]
3. The SRO placed particular reliance upon Mr Tucker's prior employment with the SRO, the significance being his ability to interpret and use information in the disputed documents in a way which would not be possible by a person who did not have his employment background or acquired knowledge.
4. Specifically, the SRO submitted that Mr Tucker has acquired extensive knowledge not only from his prior employment as a lawyer with the SRO but also as a party to litigation, some of which have generated invoices the subject of the current proceedings. Counsel submits, to the effect that Mr Tucker is uniquely placed to 'knit together' such prior knowledge with the information in the disputed documents:[51]

It's not simply a case as it is sometimes of looking at the documents on its face and saying what can I glean from this. The context of the request is important ...

... he knows other information and this is a small piece of information that may help him actually complete the picture that he's trying to complete ...

Similarly though it's not simply about Mr Tucker's prior knowledge, it's about the equivalent knowledge of the other people who you will see from the disputed documents who aren't Mr Tucker, who aren't related to Mr Tucker but whose litigation or work place disputes or similar have got caught up in his request.

So if it's released they too bring their prior knowledge as an employee, for example, or as a litigant to knit together the information that they can gain from that document. Information that you or I with no other connection to the matter would look at and say, well what does this even mean? To them it means something.[52]

1. Counsel gave the following simple example of how Mr Tucker could effectively complete the redacted names in documents by reason of his prior involvement in litigation:[53]

Mr Tucker knows who the barristers are who have appeared against him so if he gets a fee slip for a certain period with the name redacted, of course he knows whose commercial or personal information that involves because he knows who appeared in his case during that period.

1. The evidence relating to Mr Tucker's employment background and experience and his litigation history are matters of potentially significant relevance to the application of the provisions under which exemptions are claimed. These matters will be considered further below.

1. Mr Dunlop confirmed that, other than where parts of documents have been released to Mr Tucker, the SRO has kept confidential all of the disputed documents, in both FOI requests.[54]

1. Mr Dunlop described the range of policies and procedures as well as training undertaken on a regular basis in terms of the importance of maintaining confidentiality. In particular, he described:[55]

(a) the specific procedures for protecting and securing both soft copy and hard copy documents;

(b) how servers and systems are subject to annual penetration testing and review from the Victorian Auditor General's office;

(c) how the SRO is subject to statutory confidentiality and secrecy requirements under the Tax Administration Act 1997 and similar;

(d) in some detail, the measures taken by the SRO to train its staff on maintaining confidentiality of documents; and

(e) how staff can be subject to disciplinary action if they are found to breach confidentiality requirements.

1. Mr Dunlop confirmed that the importance of the SRO maintaining confidentiality arose because:[56]

we deal with a range of personal and commercial information which is quite sensitive and obviously the importance of protecting that data from disclosure is of paramount importance to ... the operation of the State Revenue Office.

1. Mr Dunlop described how State purchase contracts work as follows:[57]

the state purchase contracts are ... whole of government purchasing arrangements for common goods and services where we use the aggregate demand of government to achieve value for money in relation to purchases of goods and services ... the government legal services panel [is] arranged under that sort of contract.

1. Mr Dunlop is the SRO contact for that panel. Maddocks was engaged in those matters under the panel contract in relation to the invoices and related materials that are in dispute in both proceedings. There is a confidential tender process under which rates are set for legal firms on that panel for the period of the contract. The rates bid by the successful firms are not made public.[58]
2. The Government controls access to those rates as follows:[59]

It's maintained on a confidential portal ... that requires password access and it's only available to a select number of contract managers within the various organisations that are able to access that panel.

1. Mr Dunlop also described a register of approved providers in relation to workplace investigations or workplace complaints who are engaged using the normal procurement processes. This register is maintained by the Victorian Public Sector Commission comprising the preferred providers in relation to those types of activities. Worklogic is one of those preferred or pre‑approved businesses.[60] Documentation in relation to those sorts of contracts is kept on an internal database with access restricted by user ID:[61]

The access is limited normally to our corporate governance unit who are responsible for oversight of the procurement process and also a limited number of people normally including the contract manager and the evaluation panel and from time to time access is granted to other areas such as in these matters in relation to FOI requests.

1. Mr Dunlop described the general expenditure claim form[62] (GECF) which is attached to invoices and sets out the high-level information contained within the invoice. It is used to enter the invoice information into SRO's financial system for the purpose of payment of that invoice and remains stored as a confidential form once completed. Once created, signed and the invoice processed, the GECF is stored in a secure storage site at the Ballarat office and at the end of each month transported via a secure courier facility to the Melbourne office, together with the invoices, for the month end accounting processes, after which it is returned to Ballarat. At both Melbourne and Ballarat, the GECFs and invoices are kept within a secure lockable storage. The soft copy is stored within the user's system when the document is first created and is subject to confidentiality protocol.
2. Mr Dunlop explained the reason for the measures taken to preserve confidentiality as follows:[63]

It relates to obviously commercial arrangements between the SRO and the vendor in these circumstances. It sets out the amount of fees that have been charged by the vendor, it refers to contract numbers which are also maintained confidentiality over and it refers to obviously the vendor and the vendor's details and it contains obviously user details and signatures ...

It obviously shows the period for which the services were rendered.

1. Mr Dunlop confirmed that some of the invoices concerning Mr Tucker's litigation had been shared with the DTF on a need-to-know basis, where they are also kept confidentially and treated in the same manner from a security perspective on systems comparable to SRO.[64]
2. The Form 104 GECF described by Mr Dunlop appears throughout the disputed documents in both proceedings, are typical in form and content and raise the same confidentiality concerns.[65]
3. Equally, there are other purchase orders and other Forms 101 each involved in these proceedings which are typical in form and content to the purchase order and Form 101 described below by Mr Dunlop, all of which have been kept confidential.[66]
4. Mr Dunlop was taken through the GECF and Maddocks invoice in some detail to illustrate the kinds of detailed information, including not only the names of barristers but also persons with whom they dealt and sufficient financial information to enable a reader to easily calculate hourly rates being charged. Mr Dunlop also recognised the signature appearing in the document which he said would be readily recognizable by anyone who knew relevant SRO employees.
5. The 'purchase order' which appears in this document is raised by the SRO to create a commitment to expenditure in relation to services or goods or services that are provided. It contains the details of the vendor and contacts, subject matter and period of service. It is generated in both soft and hard copy form. It bears an order number which refers back to the original documentation in terms that is used to prepare the purchase order. When combined with the Form 101, the purchase order number can indicate that it does relate to a particular contract or a particular matter as such.[67]

So on these forms there are various references that on their face might be different numbers but ... they interrelate with each other and as you learn the number, for instance, for the purchase order and then you learn the number of the internal file number and then you learn what Maddocks' file number is, you start to be able to link up and connect the documents that are associated with a particular matter or proceeding or advice ... or a particular contract ...[68]

1. The vendor number is also an ID that connects this, for example, to Maddocks.
2. The Form 101 is used to raise the commitment.[69] The details contained in the Form 101 are similar to that in the purchase order, the additional information being: the financial details, which include SRO specific codes (identifying the source of the funds); and the project number, which refers to the actual contract that the Form 101 relates to followed by the estimate of the fees for that period. It also includes details of the contact officer and delegated officer and signature.[70]
3. Mr Dunlop was referred to another Maddocks invoice, not involving Mr Tucker,[71] which was also kept confidential by reason of the sensitive nature of the content, namely:[72]

It refers to services provided by an individual vendor, the period for which those services were provided, the rates on which were charged, the details of the personnel who were involved in the provision of those services, their position, their hours, their rate and total value as described previously in the other invoices. It also indicates obviously a fee charge for a particular type of service.

1. Furthermore, Mr Dunlop confirmed that the type of service is relevant to both the SRO and Maddocks because:[73]

the State Revenue Office has purchased something from the vendor ... And in purchasing that thing there might be others in the marketplace that perhaps don't know that that can be sold ... The service may otherwise be provided at a different value ... the vendor might not want others to know that you've paid for it ... Because there might be others that undercut them ... or others who may wish to charge for a similar service ... And you might be getting a similar service from others but as a result of them seeing this they might say, well damn it, there's a floor now, we're not going below that ... Because it's pretty obvious what they've sold.

1. Mr Dunlop was referred to another invoice[74] to demonstrate another concern. Unlike the previous invoice, the subject line in this case could encompass 'all manner of things' within the scope of this bill. Mr Dunlop confirmed that in the narration there is a reference to someone by shorthand and given the context in which this reference appears, he could work out the identity of the person, as could other SRO staff. However, the person being referenced does not necessarily know about this work. Mr Dunlop is familiar with Maddocks using a similar shorthand, throughout various of its invoices such that the SRO staff may be able to identify other people being referred to in other bills, by similar shorthand and those people equally might not always know that this work is being done.[75]
2. Mr Dunlop was referred to another invoice[76] which raised the precise circumstances and concern described in the previous invoice. Again, generally, someone who works at the SRO would know who the person is that is referred to in the shorthand narration, but that person would not necessarily know that this work has been done.
3. Mr Dunlop also confirmed that there are invoices around subjects like this throughout the other invoices that are in dispute and all have been kept confidential.[77]
4. Mr Dunlop was referred to another single page invoice,[78] which records quite extensive details, including:

(i) description of tasks and detailed narration describing a methodology (also seen in other documents),

(j) GST and fee per attendance (so it is possible to calculate the rate per hour),

(m) signature indicating that they are accepting the invoice and that it is approved to pay, date and purchase order number.

Mr Dunlop confirmed that he recognised the signature, as would other SRO staff. All other invoices from this provider have been kept confidential in the same way.

1. Hence, the creation of the invoice and information recorded follows the same purchase order process as described above.
2. Mr Dunlop was referred to another bundle of documents[79] which also relates to the provider in the previous invoice. This document is a proposal, including a methodology, to do certain services which are described in some detail, including names of people and various matters and an estimate of fees. It includes confidential information from a third party obtained by the SRO which has been passed to the provider in order to make the proposal, all of which has been kept confidential. The methodology is not standard but rather what the entity proposes and how they go about conducting or providing their service to the SRO. The proposal is signed with a job title and the author's name also appears in other confidential documents. Again, the hourly rates can be calculated from the information provided. In addition, the proposal also includes service fees for their entire service and also matters which have been flagged for the SRO's attention, which may indicate a greater familiarity by the provider with SRO processes.
3. Mr Dunlop also explained the process of contract variation, which follows a process set out in the standard form Contract Variation Memorandum (CVM),[80] which also contemplates multiple steps and approvals. In summary, it shows a description of the work, proposed variation, budget and completion date variations. Mr Dunlop could again identify the persons signing at various stages of approval, from their signature, as could other SRO staff.
4. The CVM is created in hard copy and soft copy form and kept confidential according to the usual protocols.
5. Mr Dunlop confirmed that:[81]

the contract number would indicate that there's currently some information available in the system and that you'd be able to use that number to potentially view that information ... so there's various layers at which you could take that or you could take the dates and maybe the description or there's various ways you could cut this to cross‑reference information elsewhere on the system or that someone else otherwise knows ... And add to that picture

1. Mr Dunlop was referred to an email chain[82] which includes names, contact details and various opinions and advices. Some parts of the email chain have been withheld altogether and some parts have been released to Mr Tucker in redacted form because the redacted information:[83]

relates to the commercial arrangement between the SRO and the vendor. It also indicates, I think, a time value in relation to the value that's being sought to be obtained ...

... it's giving a degree of a description ... about what that work involves and how to manage it ... and also considerations in terms of entering into an arrangement with that vendor ...

It [could] give them an inside edge if they see this sort of discussion going internally ... it's possible that they may be able to restructure arrangements perhaps to address those types of issues that are considered.

1. Mr Dunlop referred to the commercial sensitivity of variation discussions:[84]

it [is] sensitive in the sense that it's revealing what [the SRO thinks] about the value of it but also revealing to others what's been charged for work that's been done over a specific period in a specific matter ... or expected to be charged for a specific period or matter ... the provider wouldn't want others to know that [because] ... it indicates obviously the additional funds that are being sought. It could also provide an indication of the date range of those funds or the types of matters that are being undertaken ...

So if you know enough about what the job is that they're describing there and saying they need more money for, you're saying you need more money for it as an agency, [that will] tell someone who might have some knowledge of how that market works how much they've charged for that job ... or how much is proposed to be charged for a particular item of work that's being undertaken ...

... so then if they come and bid for that work competitively with this provider they might underbid them ... But similarly from [SRO's] perspective it's sensitive because it sets a floor price.

1. Mr Dunlop also explained why there is sensitivity within the SRO about people's names being released in association with them working at the SRO:[85]

SRO employees work in an extremely sensitive environment. We deal with personal taxation affairs, commercial relationships et cetera. In order to protect staff from unwarranted contact we typically withhold publishing employee's names and contact details. We generally only provide name and contact details of specific individuals where it's required for the purposes of undertaking a specific matter.

Also ... aggressive vendors sometimes who try to sell products et cetera. Opinion shopping. People who, if we have a range of names that are available people will often ring multiple people potentially to seek different opinions or views ... On tax matters ... this is from a governance perspective ... that this is discouraged ...

1. Mr Dunlop was referred to another email chain[86] between the SRO and the DTF. Mr Dunlop explained that as an agency of the DTF, the SRO has responsibility for reporting to the Secretary to the DTF in relation to SRO activities. Also, whilst the SRO has its own individual budget, its financial accounts et cetera, form part of the DFT financial accounts. The SRO and the DTF are discussing a variation because:

As we're an agency of DTF, DTF have a procurement unit which oversees SRO procurements. They also play a role in approving procurements above a particular value via the internal procurement unit at DTF which consists of a range of representatives throughout DTF's business and also a representative from the State Revenue Office.[87]

1. The email chain includes opinions given in response to advice sought, including a description of the detail of some of the work under the relevant contract and opinions about the work being performed by the provider. Mr Dunlop explained that it was not in SRO's interests for these opinions (albeit complimentary) to be revealed to the provider. The SRO does not necessarily want providers to know how important they are when looking for competitive rates because:[88]

it gives them a sense of their value ... that might interfere with the rates, for instance, that you're able to get out of that provider ... potentially or the level of service ...

(a) counter opinion, as part of an ongoing discussion;

(b) reference to named people and their role in the contract; and

(c) draft text, for comment, of something that may be used in future,

(d) followed by a further exchange of opinions; and

(e) an indication that advice may be sent through to someone;

(f) followed by a variation request, which because of the value involved, is in a different format and is sent to the DTF internal procurement unit for their consideration.

(g) identifying DTF and SRO reference numbers, recorded in their respective systems (which could be used to cross reference to other DTF/SRO documents);

(k) original costs and variations approved and justification;

(m) signatures, which Mr Dunlop recognises, as would other SRO staff. [89]

1. Mr Dunlop described this whole process as being kept confidential. The information was particularly commercially sensitive:[90]

because it's telling the market what [the SRO/DTF] think this particular work was worth and might be worth in the future ... and providing details of various matters that relate to that work.

1. Mr Dunlop was referred to a document headed "Procurement: Executive Paper Summary" which he described as a form forwarded to their executive for consideration, after already going through several layers of approval:[91]

It's normally attached to this paper as a copy, either of a variation request or an approval memorandum in relation to a procurement that's been undertaken. It consists of a recommendation in terms of who to appoint, the services and the value, the period as well and also provides obviously a background in terms of the matter that's being considered for approval.

... it's a paper for consideration by the executive as a discussion for final sign off in this matter ... the certification for funding happens before it actually goes to the executive for consideration.

1. Accordingly, the disputed documents variously include:

all of which are kept confidential. The documents contain descriptions in varying levels but increasing detail, as the contract ages, including:

(g) reasons for any variation, including commercial and sensitive (privileged) information; and

(h) discussion regarding parties involved in litigation with SRO.[92]

1. Mr Dunlop was referred to a document headed "SRO Legal Services Order"[93] which is prepared by the SRO and is equivalent, in terms of content and purpose, to other legal service orders in the disputed documents:[94]

It's forwarded to the vendor and ... in this case it's the initial engagement so it refers to the ... period of the initial engagement and the value that was approved in relation to that engagement and obviously provides contact details et cetera ... we've got the description under that heading Nature of Services Required ... The type of matters that are being considered ... or may be considered ... the area of law ... the matter description that really describes what it's about ... Then the type of work, the type of advice et cetera that's going to be provided ... then a delivery timeframe and extensions.

1. These orders are similarly kept confidential as between the SRO and the provider for the reasons given in relation to other documents:

(d) the types of services that are being provided; and

1. Mr Dunlop was referred to a document headed Procurement Approval Memorandum (PAM)[96] which:[97]

is to recommend a particular provider after the conduct of the actual procurement process. Obviously sets out a range of details, supplier background, descriptions, whether there's contingency, the type of process undertaken, the number of people and the details ... vendors who have been approached ... And also the evaluation outcome, a range, a list of risks and again the sign off blocks at the end there on p.528.

So in essence this is what you think of people who bid for a job?---Yes, that's correct.

1. Mr Dunlop explained that the information is sensitive because:[98]

it indicates obviously a ranking and when combined with the evaluation matrix above it details the reasons for why those people were ranked in a particular manner and it also indicates, particularly in relation to the last line [in the text of the evaluation], why that person was not recommended for that position, for that piece of work I should say ... and also in the evaluation outcome they're ranked last on the basis of the text in the evaluation.

... on the right of that evaluation outcome [are] table prices [which is] ... what they bid.

1. Mr Dunlop confirmed that if you knew enough about the matter, how the entities bid and how they charge for their work, you would know the value of the work that they are expected to undertake, which in turn may set a floor or a ceiling depending on who is looking at it and how they might bid in future for this kind of work.
2. Mr Dunlop confirmed that within the PAM, there is effectively an accumulation or layering of opinions between internal personnel leading to signoffs by relevant officers: the contract manager, corporate governance and a financial delegate. Furthermore, all of the PAMs contained in the disputed documents follow a standard process and have been kept confidential.[99]
3. Mr Dunlop referred to pages 276-288 of the Z515 CD and confirmed that this is a bundle of the typical forms associated with processing these sorts of payments that are involved in this request.
4. Mr Dunlop also confirmed that there is an overlap between the disputed documents in Z515 and Z856, that is, in both requests the same invoices and associated documents appear.[100]

1. The Applicant's Counsel characterised the evidence presented on behalf of the Applicant as relevantly demonstrating the following:[101]

(a) "The SRO has been meticulous in its consideration of the need to procure the various services, as well as the value and quality of the services";

(b) "It is also evident from the face of the documents and from Mr Dunlop's evidence[102] that there is a significant level of scrutiny, internal and external, written into those procedures";

(c) "The internal scrutiny is evidenced by the layers of internal consultation and approval apparent even from the face of the documents, as well as the involvement of DTF at a certain level of expenditure";

(e) "The external scrutiny comes in the form of Departmental and Ministerial oversight, and oversight by the Public Accounts and Estimates Committee of Parliament, the Victorian Auditor General's Office and the Ombudsman and [Independent Broad-based Anti-corruption Commission]";[103]

(f) "Maddocks was engaged at rates arranged under the Government's centralised Legal Services Panel, which is created through a State Purchase Contract",[104] and not a rate set by the SRO; and

(g) Mr Tucker, by his behaviour and his litigation, has effectively caused the SRO to procure many of the services reflected in the documents.

1. The Tribunal endorses each of the above propositions. In particular:

(a) The evidence of Mr Dunlop was clear, comprehensive, consistent and compelling and not challenged in any meaningful way by Mr Tucker; and

(b) Mr Dunlop gave an accurate description and meaningful explanation of the disputed documents to which he was referred, including the nature of the sensitive information, and otherwise gave a credible account of the significance of the likely adverse consequences if such documents were released.

1. As indicated above, the Applicant claimed exemptions rely not only upon the information apparent on the face of the disputed documents, but also what else will be revealed to someone like Mr Tucker, having regard to the knowledge he has acquired through prior employment with the SRO and from extensive involvement in litigation.
2. As a result of his previous employment with the SRO and his disputation and litigation with the SRO, Counsel submitted that:[105]

(f) Mr Tucker is able to knit together information in the documents with his existing knowledge, or to draw inferences from the information as a result of that existing knowledge, and thereby obtain even more information from the documents than might a person with no previous knowledge or connection to those matters. It is again relevant that he was located physically close to Mr Dunlop's team (which manages the procurement documents) when he worked at the SRO. This means he clearly has had an opportunity to learn more about the nature and content of those documents than the average person.

(g) There is clearly a considerable risk that Mr Tucker would seek to use documents such as those he seeks in these proceedings to further his campaign in that respect, including by taking them out of context, thus aggravating the interference with personal privacy and commercial confidentiality, but also exposing the SRO and its staff and external providers to unwarranted and misplaced criticism.

(h) In the same way, other SRO employees/former employees whose information or matters are also caught in the scope of Mr Tucker's requests, or who have pre-existing knowledge of such matters, will also be able to knit together that knowledge with the information in the documents and thereby obtain more information than might otherwise be assumed. Similarly, it is well-known that the SRO is from time-to-time engaged in disputes and legal proceedings with tax litigants and others. Such parties will also have pre-existing knowledge arising from their involvement with the SRO, which can be knitted together with the disputed information in these cases.

(i) Furthermore, it is also well-known that there are persons and entities who have a vested interest in using such information mischievously and out of context to attack the SRO or its external representatives (such as its solicitors).

1. The Tribunal endorses each of the above submissions which are consistent with the evidence given by Mr Dunlop. The matters are directly relevant to the balancing of interests or establishment of a public interest otherwise involved in ss 30(1) and 50(4); and also to the question of (un)reasonableness under ss 33(1), 34(1) and 34(4) of the FOI.

(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

(a) in relation to an agency, other than a council, includes a member of the agency, a member of the staff of the agency, and any person employed by or for the agency, whether that person is one to whom the provisions of the Public Administration Act 2004 apply or not ...

1. There is ample authority for the interpretation of these provisions and the relevant factors to be taken into account. Accordingly:[106]
   1. Independent consultants and legal advisers are considered officers for the purposes of the exemption.[107]
   2. "Deliberative processes" has been interpreted broadly to include any of the processes of deliberation or consideration involved in the functions of an agency, including its thinking processes and the processes of reflection, for example, upon the wisdom and experience of a proposal, a particular decision or a course of action.[108]
   3. A document need only relate to the relevant deliberative processes and need not comprise those processes. A document created after the completion of a decision-making process, but which records that process, can therefore fall within the exemption.[109]
2. It is self-evident from an examination of the disputed documents in Z515 and the evidence of Mr Duncan that each of the above factors are relevant in this proceeding.
3. Applying the usual principles,[110] Counsel submits that disclosure of the documents for which s 30(1) is claimed would be contrary to the public interest on the following grounds:

(b) They all involve opinion or advice; in many, it is preliminary opinion or advice;

(c) Some reflect possibilities considered but not eventually adopted;

(d) Disclosure would be likely to lead to confusion and ill-informed debate, to give a spurious standing to such documents or promote pointless and captious debate about what might have happened rather than what did;

(e) Decision-makers should be judged on the final decision and their reasons for it, not on what might have been considered or recommended at an earlier stage. It is also relevant that some documents bear a dual purpose, 'which still attracts s 30(1) because despite the fact there might be an endorsement on there that suggests a level of finality, it is the discussion also being recorded that leads to that final position;'[111]

(f) It is contrary to the public interest to disclose documents that would have an adverse effect on the integrity or effectiveness of a decision-making or investigative process or other process. There is clear evidence that disclosing these documents would have such an effect. In particular, Mr Dunlop was adamant that there would be a chilling effect on those processes if the documents are disclosed.[112] This was based on his own previous experience, but it is also eminently reasonable to assume such an effect should the information be disclosed to persons such as Mr Tucker who are engaged in on-going disputation and litigation with the SRO (and, in Mr Tucker's case, a claim for defamation against a staff member);

(g) The documents do not fairly disclose the reasons for every relevant decision subsequently taken and therefore disclosure may be unfair to a decision-maker and may prejudice the integrity of the decision-making process. Handwritten amendments may allude to other relevant considerations which are not disclosed on the face of the documents;[113]

(h) Public interest concerns the interest of the public as distinct from the interest of individuals, however deeply they may feel their grievances;

1. It does not matter if the document also contains factual material where this is inextricably intertwined with other deliberative matter and is not properly severable.[114] Factual material embedded in the deliberative content of a document cannot be said to be purely factual.[115]
2. Counsel cited a number of examples of the latter point where documents have recorded decisions and a chain of reasoning or exchange of opinions and advice which suggest an outcome or leads to that decision.[116] Accordingly, facts are inextricably linked to opinions and advice.
3. The Tribunal endorses each of the above submissions of Counsel, which are consistent with an examination of the disputed documents in Z515 and the evidence given by Mr Dunlop.
4. In his Statement concerning Z515, Mr Dunlop detailed concerns in relation to the disclosure of certain documents for which exemption is claimed under s 30(1).[117] In oral evidence, Mr Dunlop described in some detail the confidential documents which are illustrative of the internal communications, including:

(a) the nature of information in various emails; and

(d) chains of communication that are passing between the SRO and its consultant, such as invoices (for instance from Maddocks) including detailed narrations.

1. Mr Dunlop confirmed his view that upon review of the documents, all of these communications that have been passing between officers or between the SRO and the DTF or between the SRO and, for example Maddocks, either taken individually or as a whole, tend to reveal the matters that are being advised upon or the matters that opinions are being exchanged on, which give rise to the following concerns:[118]

The concerns relate primarily to the fact that the communication as we've discussed previously is often part of a chain of communications. Those communications don't always reflect the final decision as such and also apart from the commercial aspects of it, those communications are confidential and are treated as such.

My concern obviously relates to if these matters are made public it may inhibit the ability of all parties to the procurement process and the actual processes themselves from expressing opinions freely throughout the process and that has potential to have flow on effects in terms of both the quality of the procurements, the level of services provided and also the willingness of vendors to potentially deal with the SRO into the future.

1. In regard to the internal communications, Mr Dunlop said:[119]

Well, a communication is often done by, excuse the term, but lower level staff within the organisation and while they're treated confidentially I feel that those staff are, feel a lot more free in terms of being able to provide advice throughout the process and to even query higher level staff in relation to their views and their opinions.

Should those thought processes be made public or dealt with in a public sphere then it may mean that those staff are reluctant to provide that type of advice moving into the future.

1. Mr Dunlop also confirmed that he had seen first-hand this kind of reaction from staff "From time to time".[120] Mr Dunlop also confirmed that this confidential free flow of opinions would not occur if conducted openly on the internet.
2. In regard to the external communications, Mr Dunlop also confirmed that disclosure would have an effect on the providers who are responding or participating in the procurement process by exposing information that they keep confidential about how they put together their packages:[121]

obviously as part of the previous discussions there's details of rates and fees for services or particular types of services. Obviously if those rates are made public it puts them potentially at a competitive disadvantage where if other vendors are able to potentially undercut them or their existing clients potentially seek lower fees or potentially move to other providers who are offering a lower fee.

It also impacts, I think, on the ability or the willingness of those vendors to deal with the SRO moving into the future if we can't guarantee or guarantee that those types of information will be kept confidential.

1. Counsel provided the following list of documents to which Mr Dunlop was taken during his oral evidence, by way of example, which contain information for which exemption is claimed under s 30(1):[122]

1. Confidential Exhibit G Invoices at Z515 CD 46, 279-281, 286-287 (repeated at Confidential Exhibit L Z856 CD 108-110 & 114-115), Confidential Exhibit G Z515 CD 411 and 415: billing narratives revealing opinion, consultation, or deliberation, either taken alone or when knitted together with other information; 2. Confidential Exhibit G Z515 CD 423-426: confirmation of advice sought and opinion about how to proceed, and a record of deliberation;

1. Confidential Exhibit G Z515 CD 437, 485-487, 491-494 and 526-529: Contract variation or procurement approval documents revealing opinion, consultation, or deliberation, either taken alone or when knitted together with other information;

1. Confidential Exhibit G Z515 CD 439-440, 445-453 and 478-482: internal SRO or SRO/DTF email discussions revealing opinion, consultation, or deliberation; and 2. Confidential Exhibit G Z515 CD 495-497: Legal Services Order recording advice sought, opinion given (for example, fee cap).
2. The Tribunal has examined all of the confidential documents cited above and is satisfied as to the accuracy of the descriptions given.
3. The Tribunal has also examined all of the disputed documents in Z515 with reference to the claimed exemption under s 30(1).

1. For the reasons given above, the Tribunal finds that the documents identified in the Z515 Schedule, for which exemption is claimed, fall within s 30(1).

(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 or client legal privilege.

(2) A document of the kind referred to in section 8(1) is not an exempt document by virtue of subsection (1) of this section by reason only of the inclusion in the document of a matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in section 8(1).

1. Again, there are extensive authorities on the interpretation and application of this provision. Incorporated below are extracts from Counsel's submissions which the Tribunal accepts are well settled and uncontentious.[123]
2. Legal professional privilege protects the confidentiality of certain communications made in connection with giving or receiving legal advice or the provision of legal services. A document is privileged if it contains a confidential communication between the client (or the client's agent, such as a solicitor engaging counsel on behalf of the client) and the client's professional legal advisers that was made for the dominant purpose of obtaining or providing legal advice.[124]
3. Normally, the loss of privilege or confidentiality consequent on disclosure of the information (which Counsel submits will be the case here) should weigh heavily against disclosure.[125]
4. Specifically, a document will be privileged if it:

(a) Contains a confidential communication that was made for the dominant purpose of obtaining or providing legal advice or is referable to pending or contemplated litigation, whether or not litigation actually eventuated;[126]

(b) Discloses the matters upon which an agency obtained legal advice or intended to obtain legal advice, which extends to requests to bid or give a proposal or cost a job, such as asking a solicitor, "Can you quote for this?", the "this" is privileged;[127] or

(c) Contains a summary of legal advice, even if that summary has been prepared by a non-lawyer[128] (such as a legal secretary or barrister's clerk).

1. Furthermore, the legal privilege extends to solicitor's invoice, a barrister's fee slip and internal communications reflecting advice received from a lawyer.
2. Counsel confirmed that the SRO asserts its legal professional privilege in respect of all of the invoices (save for the invoice commencing at Z515 CD 9) and many of the other documents because in various parts they:[129]

1. Summarise confidential communications that were made for the dominant purpose of obtaining or providing legal advice; 2. Are referable to pending or contemplated litigation;

1. Disclose the matters upon which the SRO obtained legal advice or intended to obtain advice; and/or

1. Contain summaries of legal advice.
2. Having examined the relevant disputed invoices, the Tribunal is satisfied that the above fairly describes the content of the invoices in relevant categories.
3. Furthermore, the Tribunal accepts that the content of the invoices fit the following description advanced by Counsel:[130]
   1. ... taken individually and collectively, the invoices reveal matters central to the lawyer-client relationship, including the state of preparation for hearing, evidence that had been obtained, the degree to which the SRO was preparing to litigate the matters, the content and nature of discussions between the SRO and its lawyers, advice sought and given, and similar matters.[131]
   2. ... the narration of the services provided is exempt because it is sufficiently detailed to disclose information about the work undertaken and the nature and content of the advice provided to the SRO. Read together, the narrations enable at least an inference to be drawn as to the nature or content of privileged communications (including instructions, advice, actions taken and timing).[132]
4. The Tribunal accepts, on the basis of Mr Dunlop's evidence and the surrounding circumstances, that by reason of Mr Tucker's prior employment with the SRO he was in a unique position to acquire direct knowledge of the issues arising in the matters concerning him. In turn, he can apply such information to the information in the documents and thereby obtain further information from the invoices that could not be reasonably discerned by another person with no previous involvement in the matters. Similarly, the people involved in the other matters are in a position to do likewise with the invoices concerning them, as are those who have been involved in similar matters, if not these precise matters.
5. Counsel confirmed that the SRO has not waived its privilege in the content of the documents and seeks to protect that privilege. Any act which is inconsistent with the maintenance of the strictest levels of confidentiality, such as providing partial access to associated materials under an FOI request, creates a real and significant risk that an argument of waiver of privilege may succeed. The Tribunal agrees.
6. Furthermore, in the Tribunal's view, it is self-evident that loss of privilege would likely result in significant adverse impact on the SRO, particularly given the state of litigation or disputation between the SRO and Mr Tucker (and between the SRO and other parties or future litigants). Mr Tucker's (or a third person's) capacity to 'knit the information together' (even if only partially released) with his other knowledge can only exacerbate any such loss of privilege.
7. Counsel submits that the SRO is concerned that Mr Tucker has specifically sought legal invoices in an attempt to access privileged material primarily relating to his own matters and use it for his own advantage in his continuing litigation and disputation with the State. In the context of Mr Tucker's litigation history, the Tribunal accepts that this is a realistic and reasonable concern.
8. Consistent with Counsel's submission,[133] the Tribunal is satisfied that the evidence of Mr Dunlop readily demonstrated how privilege attaches to information which arises simply by knowing precisely what level of engagement the lawyers for the other party had over a period of time, such as:

(a) whether advice was sought on those issues that came up in that time; and

(b) the sort of advice they would have been getting about it; or

(c) the sort of activity that would have been undertaken, because you can see the amount that was spent on it.

1. Furthermore, when combined with other known information, the unmasking of the privilege has the following adverse consequences:

(a) It is inherently unfair when there is an expectation that the privilege will be preserved;

(b) It stops people putting that level of detail into records, which is otherwise desirable: staff are faced with either not having proper procurement records or not having proper legal advice; and

(c) It adds to the capacity of that person seeking the information to use it for a mischievous or unfair purpose. For instance, a comment can be made out of context, such as: "Look how much they spent on this, at that time I was just doing X."

1. Preserving legal professional privilege will also protect the provider's commercial information. Counsel gave the following scenario of how a purchase order in the disputed documents could be used.[134] It reveals on its face the amount that is being budgeted, which reveals its expectation about the level of intensity on matters on which it was going to seek advice:[135]

Now if you also know that in between those dates or around that time you have, for example, lodged a statement of claim, you know that, "They were going and seeking advice on my statement of claim." There you go, you've got the evidence. You might not otherwise have known they engaged [in] X or a lawyer ... you now see that they've obtained advice on something and that is covered by s.32 ...

1. Counsel referred to other disputed documents, a procurement summary and a legal services order,[136] described by Mr Dunlop, which on their face might appear not to be revealing but combined with knowledge of what else the parties were engaged in at the time indicates that advice was being obtained on such a matter.
2. Mr Dunlop also gave oral evidence regarding an invoice for advice on a matter, which did not relate to Mr Tucker: Mr Dunlop recognised the person's initials and believed other SRO staff could also do so, particularly from the context in the narration; and the person, bearing those initials, would not necessarily know that that work was being done.
3. Mr Dunlop confirmed his concerns that if information that is legally privileged is revealed in that sort of narration throughout the invoices, then:[137]

if they now saw a copy of that invoice, looking at the detail in that narration ... they would actually, first of all discover that there's been advice sought and given ... And secondly from the narration, given what they know about their own matter that provoked the advice, they'd be able to work out pretty clearly what that advice was ... and also given the way in which the SRO subsequently interacted with them in light of the advice.

1. Mr Dunlop confirmed that these concerns about the legal privilege apply not just to Maddocks invoices, but the barristers' invoices that might be involved. Furthermore, it is important to have detailed narrations in those invoices because it allows the SRO to be able to reconcile actions that have been undertaken by reference to matters that have been considered and discussed and where advice has been sought. It also shows what the SRO is getting for the money paid per day or unit of time and also assists with the auditing and governance type processes.[138] Mr Dunlop suggested that it would place the SRO in an invidious position if it had to reduce the narration to ensure nothing privileged is revealed or conversely lose the privilege.
2. The same concerns apply to an email chain which deals with an existing contract, where lawyers are involved and advice is sought and certain advice anticipated.
3. In his Statement, Mr Dunlop detailed concerns in relation to the disclosure of certain documents for which exemption is claimed under s 32, which concerns have also been adopted in his subsequent Statement regarding Z856.[139]
4. Counsel provided the following list of documents to which Mr Dunlop was taken during his oral evidence, by way of example, which contain privileged information:[140]

1. Confidential Exhibit G Z515 CD 44-47, 277-287 and 409-412: legal invoices containing description of attendance/advice sought or given, dates, lengths and types of attendance, level of lawyer attending, amount charged per attendance and in total (revealing the level and length of attendance). 2. Confidential Exhibit G Z515 CD 276: Form 104 General Expenditure Claim form recording total expenditure on a specific matter over a specific period of time (revealing the level and intensity of activity).

1. Confidential Exhibit G Z515 CD 288: Purchase Order revealing amount budgeted and committed for the procurement of legal advice over a particular period in respect of a particular matter, in turn revealing the SRO's expectation about the level and intensity of legal advice required for the matter.

1. Confidential Exhibit G Z515 CD 289: Form 101 Requisition Summary revealing amounts budgeted and spent on legal services over a particular period in respect of a particular matter, revealing the level and intensity of activity. 2. Confidential Exhibit G Z515 CD 491-494: Contract variation and procurement documents recording the amount spent and budgeted for certain litigation and advice over a certain period of time, the nature of the advice, the level and intensity of the advice, and the SRO's anticipation of those matters going forward. 3. Confidential Exhibit G Z515 CD 495-497: Legal Services Order recording advice sought and anticipated cost involved.
2. The Tribunal has examined all of the confidential documents cited above and is satisfied as to the accuracy of the descriptions given.
3. The Tribunal has also examined all of the disputed documents in both proceedings with reference to the claimed exemption under s 32(1).

1. For the reasons given above, the Tribunal finds that the documents identified in the Z515 Schedule and the Z856 Schedule, for which exemption is claimed, fall within s 32(1).

(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). [emphasis added]

• (2A) An agency or Minister, in deciding whether the disclosure of a document under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person, must take into account, in addition to any other matters, whether the disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person.

1. The SRO FOI Team prepared a summary of responses to its inquiries made of people whose personal and commercial affairs information were affected by the request in Z515[141] and in Z856.[142]
2. Mr Dunlop was referred to these summaries in oral evidence and confirmed that the responses in those two bundles reflect the sorts of concerns that have been expressed to him.[143]
3. "Physical safety" as considered in s 33(2A) is not just about actual safety; it is also about the perception that one is safe. Thus, disclosure may endanger a person's physical safety within the meaning of the FOIA, if that disclosure makes that person feel less safe.[144] The mere fact that release of the information could create apprehension in the minds of the person concerned may be enough to render disclosure unreasonable.[145] The likelihood that release could lead an affected person to suffer stress, anxiety or embarrassment is also relevant.[146] The Tribunal is satisfied that the material in Confidential Exhibits M and N contain responses from affected third parties reflecting such concerns.
4. Again, there are extensive authorities on the interpretation and application of this provision. Incorporated below are extracts from Counsel's submissions which the Tribunal accepts are well settled and uncontentious.[147]
5. Relevant to this case, a document is exempt under s 33(1) if the following two limbs are satisfied:

(a) If access were granted to the document, it would involve the disclosure of information relating to the personal affairs of any person (including by reference to the definition in s 33(9); and

(b) Such disclosure would involve the unreasonable disclosure of that information.

1. The phrase personal affairs has been interpreted widely and encompasses matters of private concern to an individual[148] or that affect or concern a person as an individual.[149] The protection applies to all natural persons, including officers of agencies and also includes the employees of contractors that are engaged by agencies.[150] To read down the expression any person in s 33(9) to exclude agency officers is impermissible.[151]
2. Names and information enabling the identity of persons to be ascertained clearly relate to a person's personal affairs as they enable a person to be directly or indirectly identified.[152]
3. The simple removal of names etc assumes an extremely narrow definition of information relating to personal affairs. The proper meaning of the phrase extends beyond a name or simple personal identification.[153] For instance, although a name may not be revealed, you may still connect a name to an opinion because you know they have been previously involved in the matter. Hence the opinion is also protected personal information.
4. Barristers are sole operators, which means that their rates and fees are very closely related to their income. Barristers' overheads such as rent and clerking fee are generally publicly available, which means it is relatively simple (especially for someone with experience in the legal profession) to calculate a barrister's income, from a certain proceeding, fairly accurately based on their rates and fees charged in that proceeding. For example, knowing what a barrister charged for a single day or a particular appearance will reveal with some accuracy their income for that day or appearance. That income is clearly personal affairs information.
5. Similarly, hourly rates are linked to the formula by which most professional services firms calculate employee salaries (that is, hourly rates are comprised of salary and overhead distribution). If a person knows that formula and knows enough about the employer, they will be able to use a solicitor's hourly rate to calculate an estimate of the solicitor's likely salary. Again, that is personal affairs information.
6. Counsel submits that Mr Tucker's prior employment as a solicitor and his experience in the profession are relevant here as he can be expected to have insight into and knowledge of these broader matters which will assist him in reverse engineering such information from the documents. Furthermore, there are many others in the community with that knowledge who will be able to do the same with access to the documents. The Tribunal accepts that both of these propositions are self-evident.
7. Counsel further submits that, with respect to unreasonableness:[154]

1. A document may involve unreasonable disclosure of personal information about an individual not only because of what is in the document taken alone, but also because of what that information may reveal when it is considered in light of other information that may be known to the person seeking the document.[155] Here, even if names are removed, there remains other information that will be sufficient to disclose to Mr Tucker, based on information already known to him, the personal affairs information in the documents. Mr Tucker's capacity to knit together his pre-existing knowledge with any information that may be released from the documents is of particular relevance to considering whether personal affairs information might be disclosed here, even indirectly, and whether that disclosure is unreasonable. 2. For example, Mr Tucker is likely to know the name of counsel appearing for the SRO in any of his matters. Removing counsel's name from the fee slip therefore will not protect counsel's personal affairs information.

1. Pursuant to s 13 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) a person has a right not to have his or her privacy arbitrarily interfered with. The interference in this case would be arbitrary, arising simply on Mr Tucker's request and for no other reason.[156]

1. It is unreasonable to release the personal affairs information of persons who have been consulted and have responded saying that they do not want their names and personal information released.[157] The fact that Mr Tucker is suing [an] SRO staff member for defamation would make release in the face of such refusals all the more unreasonable, as does his broader history of litigation and disputation in connection with the SRO. [As revealed in Confidential Exhibits M and N, the vast majority of the people affected by Mr Tucker's request (being his former colleagues and various external providers who have advised or represented the SRO in matters affecting his interests) are adamant that they oppose him receiving their information. The fact that Mr Tucker is suing [an] SRO staff member for defamation would make release in the face of such refusals all the more unreasonable, as does his broader history of litigation and disputation in connection with the SRO.] [158] 2. The affected persons would not be in a position to address any comment or criticism directed at them as a result of disclosure, if their details were subject to unconditional release under the FOIA. The likelihood of Mr Tucker making such comment or criticism is high, given his demonstrated propensity for disputation and litigation in relation to the SRO. 3. Disclosure of a document under the FOIA is about disclosure or release to a particular applicant[159] but potential disclosure to the world at large is clearly a relevant consideration.[160] The same risks apply in respect of release to the world at large, particularly with respect to the capacity of present and past SRO employees and those engaged in litigation or disputation with the SRO at various times (whose matters are the subject of some of the documents) to knit together the disclosed information with their pre-existing knowledge. 4. There is no power under the FOIA for the SRO (or Tribunal) to grant access on a conditional basis. The very notion of access being granted on the basis of an applicant's assurance of non-disclosure is repugnant to the scheme of the FOIA.[161] There can therefore be no control assured over the information if it is released under this request. 5. Once a document is made available under the FOIA it has the potential to be disseminated widely. It is appropriate to approach the balancing exercise required under s 33(1) with that assumption firmly in place. The assumption will hold true in the vast majority of cases.[162] The loss of control of information in a document, potentially to the world at large, is an important consideration when balancing the interests of the various parties. Ordinarily a decision-maker will need to bear in mind that disclosure to a particular person will mean that the decision-maker will have no further control in limiting disclosure of the information to any other person and, therefore, that it would be potentially available to the world at large.[163] 6. The extent of possible dissemination of the material containing the information is capable, in an appropriate case, of being an important consideration bearing upon the resolution of the issue.[164] 7. Disclosure is more likely to be unreasonable where the applicant's reason for seeking access is out of some particular personal crusade, or for the purpose of embarrassing or otherwise harming the third persons concerned.[165] As revealed by his litigation history alone, Mr Tucker is clearly engaging in something of a personal crusade here.[166] 8. There is no public interest in disclosure of the personal affairs information here and disclosure is contrary to the public interest for the reasons already enunciated.[167]

1. Disclosure would likely inhibit the ability of the SRO to obtain similar information from similar sources and of a similarly frank and candid nature in future if this information is disclosed.

1. The types of factors which can be taken into account in determining whether disclosure would be unreasonable include the factors set out in Page v Metropolitan Transit Authority:[168]

(i) The interest that Mr Tucker has in the information in question.[169] He has shown no proper interest in it.

(ii) The nature of the information to be disclosed.[170] It is personal information, including personal financial information, which was obtained or generated merely as a result of the affected persons being employed to perform the day-to-day activities of the SRO, or being engaged in their professional capacity to advise or represent the SRO.

(iii) The circumstances in which the information was obtained.[171] Again, it was obtained or generated merely as a result of the affected persons being employed to perform the day-to-day activities of the SRO, or being engaged in their professional capacity to advise or represent the SRO. It was obtained confidentially and often in the context of litigation concerning Mr Tucker (or other persons) or workplace investigations (both of which give rise to particular sensitivities). Many of the documents in question were created only because external providers were engaged to advise or represent the SRO in proceedings brought by Mr Tucker or arising from his FOI requests.[172] The remainder of the information has no connection to Mr Tucker.

(iv) The likelihood of the information being such that the person concerned would not wish to have it disclosed.[173] Many of the affected persons have indicated their objection to the information being disclosed. It is reasonable to assume most people would not consent to the disclosure, given the circumstances in which the information was obtained by the SRO and given Mr Tucker's lack of any true interest in obtaining it, and also given his litigation history (including the defamation claim).

(v) Whether the information has any current relevance.[174] It does.

1. In the Tribunal's view, the above propositions are compelling, consistent with prior authorities and consistent with a proper reading of the disputed documents in context.
2. In the Tribunal's view, the following evidence of Mr Dunlop weighs heavily in favour of the claimed exemptions under ss 33 and 34:

(a) The reasonable expectation of confidentiality by parties likely to be identified in documents and the lengths taken to ensure that such confidentiality is preserved.[175] To this end, Mr Dunlop confirmed that: the SRO has maintained the confidentiality of all disputed documents; staff are trained in the importance of confidentiality and strict procedures and protocols are in place at every stage from the creation of the document to its ultimate storage; and to breach confidentiality is a disciplinary matter; and

(b) Personal and business information must be assessed in context. Counsel submitted that even if personal or business information (such as names or contact details) are available in a particular forum (for example, a business directory or a clerk's website), it does not follow that such information should be released in another context.[176] For example, a person may be content to have their name published in connection with holding a particular job title, but not in connection with being involved in an HR investigation. Similarly, a business may be keen to promote its contact details through a particular website to potential clients, but not the salaries of its staff or the terms on which it is engaged by a particular client.

1. Counsel provided the following list of documents to which Mr Dunlop was taken during his oral evidence, by way of example, which contain information for which exemption is claimed under s 33(1):[177]

1. Confidential Exhibit G Z515 CD 9-11 - names, phone numbers, personal billing rates (which are connected directly to the person's income). 2. Confidential Exhibit G Z515 CD 44- 47 - names, phone numbers, email addresses, billing rates, initials of third parties about whom advice was being given.

1. Confidential Exhibit G Z515 CD 276-282, 284 & 286-289 - names, signatures, phone numbers, email addresses, billing rates.

1. Confidential Exhibit G Z515 CD 409-411 - names, phone numbers, email addresses, billing rates, initials of person about whom advice was being given. 2. Confidential Exhibit G Z515 CD 415 - names, email addresses, signatures. 3. Confidential Exhibit G Z515 CD 423, 424, 426, 435, 436 - names (including name and context in para 3 and first bullet point in p 423), email addresses, signatures. 4. Confidential Exhibit G Z515 CD 445-450 - names, email addresses, phone numbers, personal opinions. 5. Confidential Exhibit G Z515 CD 478-482 - names, email addresses, phone numbers, personal opinions. 6. Confidential Exhibit G Z515 CD 485-487 - names, signatures, opinion. 7. Confidential Exhibit G Z515 CD 491 - names, signatures, opinion. 8. Confidential Exhibit G Z515 CD 492 - names, signatures, opinion.

1. Confidential Exhibit G Z515 CD 493-494 - names, signatures, opinion.

1. Confidential Exhibit G Z515 CD 495-497 - names, signatures, email addresses. 2. Confidential Exhibit G Z515 CD 526-529 - names, signatures, opinion.
2. The Tribunal has examined all of the confidential documents cited above and is satisfied as to the accuracy of the descriptions given.
3. The Tribunal has also examined all of the disputed documents in both proceedings with reference to the claimed exemption under s 33(1).

Section 33 findings

1. For the reasons given above, the Tribunal finds that the documents identified in the Z515 Schedule and the Z856 Schedule, for which exemption is claimed, fall within s 33(1).
2. In making the above finding, the Tribunal has taken into account that the propensity for complaint, accusation, disputation and litigation set out above can reasonably be expected to increase significantly the distress and anxiety in third parties whose information is captured by Mr Tucker's requests. This is particularly so given the sensitive (and often peripheral) context in which their information has been captured.

Section 34(1)(b) of the FOIA

1. Section 34(1)(b) provides:

(1) A document is an exempt document if its disclosure under this Act would disclose information acquired by an agency or a Minister from a business, commercial or financial undertaking and the information relates to -

(b) other matters of a business, commercial or financial nature and the disclosure of the information would be likely to expose the undertaking unreasonably to disadvantage.

1. Accordingly, a document is exempt under this provision if it satisfies four elements:

(a) It would disclose information acquired by an agency;

(b) It is acquired from a business, commercial or financial undertaking: the barristers, the barristers' clerks, Maddocks, Worklogic, et cetera, are such undertakings;

(c) The information relates to matters of a business, commercial or financial nature: bills, quotes, bids, et cetera, procurement discussions, are all related to that kind of information; and

(d) Disclosure of the information would be likely to expose the undertaking unreasonably to disadvantage.

1. Disclosure of the disputed documents self-evidently would disclose information acquired by the SRO.
2. That information was acquired from the undertakings. An entity engaged in trade or commerce is a business, commercial or financial undertaking.[178] Each of the undertakings is self-evidently engaged in trade or commerce and therefore comes within the class whose information is protected by this exemption.
3. The information need not have come directly from each undertaking. For example, it is sufficient if it was acquired by the agency from a third party[179] as is the case here when the barrister and their clerk submitted an invoice to Maddocks which in turn submitted it to the SRO.
4. The information contained in the disputed documents self-evidently relates to matters of a business commercial or financial nature:[180]

1. Phrases such as relates to are of broad import[181] and require no more than a relationship, whether direct or indirect, between two subject matters.[182] The words are among the broadest which could be used to denote a relationship between one subject matter and another.[183] For something to "relate to" something else, what must be established is whether there is a sufficient or material, rather than a causal connection or relationship between the two subjects.[184] The information that would be disclosed by the disclosure of the disputed documents has a sufficient or material connection or relationship to matters of a business nature etc to fall within the exemption. 2. The words business, commercial or financial information have their ordinary meaning. The information acquired by SRO in the disputed documents is clearly of such a nature, including estimates, rates, fees and personnel applied to each task and the methodology applied to the tasks. (In respect of methodology, see for example Z515 CD pp 424 & 425.)

1. The documents contain rates, methodology, and other commercial details that are not generally available to competitors in the relevant market. Fee information is not usually available outside the immediate advisor/client relationship.
2. Disclosure of the business, commercial or financial information must expose the undertaking not just to some disadvantage, but to unreasonable disadvantage. That is, it must unreasonably disadvantage the undertaking.[185] Counsel submits that such unreasonable disadvantage would happen here because all of them, the barrister, the solicitors, Worklogic, et cetera, are operating in a competitive market and they make this clear in the Confidential Exhibits, at M and N.
3. In determining whether disclosure would expose the business undertaking unreasonably to disadvantage, in this case the Tribunal may take into account any of the considerations set out in s 34(2)(a), (c) and (d) of the FOIA, including:

(a) Whether the information is generally available to competitors of the undertaking. Mr Dunlop's evidence is that positive steps are taken to keep it confidential;

(b) Whether the information could be disclosed without causing substantial harm to the competitive position of the undertaking. Mr Dunlop described how others would undercut the barristers, solicitors, Worklogic et cetera. Also relevant is the specific evidence of the assessment of a series of quotes that were obtained and the reference to quotes coming from other parties who were not successful, of which goes to their commercial business and financial affairs' information; and

(c) Whether there are any considerations in the public interest in favour of disclosure which outweigh considerations of competitive disadvantage to the undertaking, for instance, the public interest in evaluating environmental controls. Mr Dunlop described these as normal, ordinary transactions.

1. In oral evidence, Mr Dunlop described the method used by professional service firms like Maddocks in setting fee earner budgets and the methodology used by barristers to determine rates is quite different.[186] In reference to his Statement dealing with the s 34(4) exemption, Mr Dunlop confirmed that releasing the commercial information of Maddocks or Worklogic can cause them damage by allowing competitors to potentially undercut their rates and also allowing existing customers to seek lower rates thus impacting the competitive position within the legal services market. The market is damaged by the release of such information by setting a floor, potentially in relation to the pricing. Over the longer term, that floor may rise as competitors lose some advantage leading to higher costs for purchasers of the service over the longer term.[187]
2. Mr Dunlop also said that releasing such confidential information can have the effect of driving service providers out of the market:[188]

Because they don't, obviously the providers don't like or don't want their personal or their rates to be made public and therefore may lose confidence in the ability of the SRO or other ... entities to maintain confidentiality of those rates and therefore they may be reluctant to deal with them moving forward.

And also presumably that has an effect on not just the providers who move out of a market but also the customers who are seeking to purchase that sort of service, it might narrow the available field for example?---Yes, narrow the available field and also potentially push prices up as more and more people leave the market.

It might reduce the quality if different- - -?---Quite possibly, yes.

Yes, okay. And how does it affect government more generally, not simply the State Revenue Office, if bills to you or bids to you that reveal these sorts of commercial data become public?---Well, it reduces the confidence in the SRO ... or other entities as well to maintain confidentiality of data, potentially in a broader application confidentiality across other types of information as well.

1. Mr Dunlop confirmed that there would also be a corresponding reluctance on SRO's part to put as much information into a bid if it were likely to be released.
2. Mr Dunlop further explained the problem of creating a floor in the market:[189]

Well, the floor would occur obviously once those rates are published. ... vendors may lower their rates to a similar level and conversely also other vendors who see that the SRO are willing to accept a particular rate would potentially increase their rates to the point where the rates become very similar, a floor is set moving forward.

And as a rule the government doesn't publish this information, does it? It publishes broader expenditure, not individual rates or expenditure on individual matters when we're talking about the size of the sorts of things we're looking at here?---Yes, that's correct.

Okay. Is that informed by the same concerns, the same policy considerations?---Yes, that's my understanding, yes.

Yes, and under the legal services panel that information is most certainly not published?---No, as explained previously.

1. Mr Dunlop was referred to a number of the responses to inquiries made in the Confidential Exhibits for Z515 and confirmed that these were typical of the concerns raised and what he had been told.
2. In summary, Mr Dunlop gave the following evidence to illustrate unreasonable disadvantage to the affected undertakings in support of SRO's reliance upon s 34(1):[190]

1. Mr Tucker's other knowledge of related matters and the use to which the information would or may be put by him, and the likelihood that the information would be published more widely.[191] Similarly the capacity of persons other than Mr Tucker who have other knowledge about the matters involved in the documents. 2. The nature of the information, being sensitive information of great value to market competitors, and that the disclosure would give a competitor of the business an advantage[192] (and would disadvantage the undertaking) and enable a competitor to engage in destructive competition with the business,[193] as well as the impact on the undertakings' dealings with their other clients (if, for example, the undertakings had agreed to lower their rates for the SRO - or the state government generally, as is common).

1. The circumstances in which the information was obtained by the Department, including that it was obtained under the auspices of confidential contracts.

1. Whether the business concerned has consented to disclosure. Here, they have not. 2. Whether disclosure would cause any person stress, anxiety or embarrassment. Here, it will. 3. The current relevance of the information. Here, the information remains current. 4. Whether there is any public interest in disclosure or non-disclosure. Here, there is none. 5. There can be no commendable reason for seeking the particular information in question,[194] and there is in fact no commendable motive for wanting the information and it could be used for some mischievous purpose.[195] 6. It seems clear that the information is sought out of some sort of personal crusade by Mr Tucker.[196] 7. There is no demonstrable need or purpose for Mr Tucker (or any other person) to know the contents of the documents.[197] Note in particular the level of scrutiny to which the various procurement and expenditure is subject - both through internal SRO processes and through the DTF's oversight of the SRO's expenditure at certain levels. Note also the role played by various external agencies in scrutinising such matters, including the [Victorian Auditor-General's Office], Parliamentary committees, the relevant Minister and also bodies such as [the Independent Broad-based Anti-corruption Commission].
2. Pursuant to FOIA s 34(3), the SRO sought the undertakings' views as to whether disclosure of the relevant documents should occur. Each objected to the disclosure of their commercially sensitive information, raising various concerns such as, that the disclosure of such information would affect their competitive position in their respective market-places and their dealings with other clients.
3. Counsel provided the following list of documents to which Mr Dunlop was taken during his oral evidence, by way of example, which contain information for which exemption is claimed under s 34(1)(b):[198]

1. All invoices. 2. Confidential Exhibit G Z515 CD 276: Form 104 General Expenditure Claim recording amounts spent on services for a particular matter over a particular period of time.

1. Confidential Exhibit G Z515 CD 288: Purchase Order recording amount budgeted (based on a knowledge of the rates etc involved) for a particular matter over a particular period of time.

1. Confidential Exhibit G Z515 CD 289: Form 101 Requisition Summary recording amounts budgeted (based on a knowledge of the rates etc involved) and spent for a particular matter over a particular period of time. 2. Confidential Exhibit G Z515 CD423-431: Proposal for services for a particular matter - in particular the rates, estimate and methodology. 3. Confidential Exhibit G Z515 CD 445-453 and 478-482: Discussions about the likely cost of procuring a certain service over a particular time and the history of expenditure on that matter to that point of time. 4. Confidential Exhibit G Z515 CD 485-487, 491-497 and 526-529: Contract Variations and Approvals and a Legal Services Order recording the likely cost of procuring a certain service over a particular time and the history of expenditure on that matter to that point of time.
2. The Tribunal has examined in detail all of the confidential documents cited above and is satisfied as to the accuracy of the descriptions given and the application of s 34(1)(b).

1. For the reasons given above, the Tribunal finds that the documents identified in the Z515 Schedule and the Z856 Schedule, for which exemption is claimed, fall within s 34(1)(b).

(ii) in the case of an agency engaged in trade or commerce - information of a business, commercial or financial nature -

that would if disclosed under this Act be likely to expose the agency unreasonably to disadvantage ...

1. Accordingly, a document is exempt under s 34(4)(a)(ii) of the FOIA if the following conditions are satisfied:

(b) The document contains information of a business, commercial or financial nature; and

(c) Disclosure of the information would be likely to expose the agency unreasonably to disadvantage.[199]

1. The words trade and commerce are not terms of art; rather, they are expressions of fact and terms of common knowledge.[200]
2. By engaging the external undertakings in commercial contracts, the SRO was engaged in trade or commerce.
3. An agency can be engaged in trade or commerce even if the agency's activities are predominantly governmental. It can be engaged in trade or commerce even if the trade or commerce is an insignificant part or only incidental to its other functions.[201]
4. There is nothing in the section which requires trade and commerce to be the predominant activity of the relevant agency. It is sufficient if the agency is engaged in trade or commerce at all, even if this trade and commerce were incidental to the Department's larger operation.[202]
5. The words business, commercial and financial have the same ordinary meaning as in s 34(1). It has already been established that the relevant documents contain information of that nature.
6. The disadvantage to the agency must be likely to occur, that is, it is probable, well might happen or is true.[203]
7. There must be disadvantage in a business, commercial or financial sense.[204] Disadvantage can occur where it reduces an agency's capacity to compete in a market or to negotiate future contracts, even where they are mere possibilities.[205]
8. The unreasonable disadvantage need not involve substantial harm;[206] it does not require the establishment of any very extensive or onerous matters.[207]
9. Whether the disadvantage occasioned by the disclosure would be 'unreasonable' involves a consideration of all the circumstances, including:[208]

(a) The nature of the information. The Tribunal accepts that here it is sensitive.

(b) The circumstances in which the information was obtained or created. The Tribunal accepts that here it was obtained or created in confidential circumstances.

(c) The likelihood of the information being information that the person concerned would not wish to have disclosed without consent. The Tribunal accepts that here neither the SRO nor the relevant undertakings wish to disclose the information.

(d) Whether the information has any current relevance. The Tribunal accepts that the evidence confirms it is still current.

(e) Whether there is any public interest in disclosure. The Tribunal is not satisfied that any public interest in disclosure has been proven.

1. Counsel submits that having regard to the above, disclosure of the information will expose the SRO to disadvantage because:[209]

1. It will reduce the SRO's capacity to compete in a market or to negotiate future contracts, even where they are mere possibilities,[210] by creating a floor to the rates bid/offered to it or the State in the future in respect of similar work. 2. It will reduce service offerings and the quality of providers if suppliers leave the market out of fear of their confidential information being released under similar requests in the future.

1. It will remove the uncertainty from the market that contributes to competitive bids for Government work (and for its work).

1. It will reduce the detail provided by suppliers when invoicing the SRO for services, which at the very least will increase the SRO's costs of administering and scrutinising contract performance and billing.
2. In the Tribunal's view, the above propositions are consistent with Mr Dunlop's evidence and consistent with a proper reading of the disputed documents in context.
3. Counsel provided the following list of documents to which Mr Dunlop was taken during his oral evidence, by way of example, which contain information for which exemption is claimed under s 34(4)(a)(ii):[211]

1. All invoices. 2. Confidential Exhibit G Z515 CD 276: Form 104 General Expenditure Claim recording amounts spent on services for a particular matter over a particular period of time.

1. Confidential Exhibit G Z515 CD 288: Purchase Order recording amount budgeted (based on a knowledge of the rates etc involved) for a particular matter over a particular period of time.

1. Confidential Exhibit G Z515 CD 289: Form 101 Requisition Summary recording amounts budgeted (based on a knowledge of the rates etc involved) and spent for a particular matter over a particular period of time. 2. Confidential Exhibit G Z515 CD 423-431: Proposal for services for a particular matter - in particular the rates, estimate and methodology. 3. Confidential Exhibit G Z515 CD 445-453 and 478-482: discussions about the likely cost of procuring a certain service over a particular time and the history of expenditure on that matter to that point of time. 4. Confidential Exhibit G Z515 CD 485-487, 491-497 and 526-529: Contract Variations and Approvals and a Legal Services Order recording the likely cost of procuring a certain service over a particular time and the history of expenditure on that matter to that point of time.
2. The Tribunal has examined in detail all of the confidential documents cited above and is satisfied as to the accuracy of the descriptions given and the application of s 34(4)(a)(ii).

1. For the reasons given above, the Tribunal finds that the documents identified in the Z515 Schedule and the Z856 Schedule, for which exemption is claimed, fall within s 34(4)(a)(ii) for which exemption is claimed.

Non-Exempt Documents - Section 25(b) of the FOIA

1. Counsel acknowledged that there are clearly parts of the disputed documents to which no exemption applies. However, Counsel submits that s 25(b) of the FOIA has particular relevance in this instance.
2. Section 25 provides as follows:

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. [emphasis added]

1. The Tribunal has previously considered the circumstances in which it will be practicable for an agency to delete material and grant access to an edited copy of a document. The two necessary considerations are:[212]

(a) "The ease with which the agency is able to delete exempt or irrelevant material"; and

(b) "The efficacy of the outcome of making such deletions - that is, whether the document, once redacted, will continue to be meaningful."

1. I accept Counsel's submission that, in this case, it would be remarkably difficult to delete the exempt material, so intertwined is it with the remainder; the documents are voluminous; and even if such deletions could be made, nothing meaningful will result.[213]
2. I also accept that the following factors are each applicable to the relevant documents in this case:[214]

(a) Redaction would result in a document not being meaningful and capable of being read in context. Here, the remaining information will be stripped of all context and will in some instances result in disjointed words being released.

(b) Redaction would result in a document that does not contain information specifically sought by the applicant.

(c) Redacted documents could be rendered misleading or unintelligible. This will certainly be the case here.

1. Accordingly, the Tribunal finds that it is not practicable, having regard to relevant factors, for the SRO to produce to Mr Tucker the material that is not exempt, in a redacted form.

Section 50(4) of the FOIA - Public Interest Override

(4) On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power 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), section 31A, or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act. [emphasis added]

1. Accordingly, the override has no application to any material found to be exempt under s 33. To the extent that the Tribunal has found that documents otherwise qualify for exemption, Mr Tucker bears the onus of establishing that the public interest nevertheless requires access to the exempt documents.[215]
2. In forming a requisite opinion for the purpose of s 50(4) the Tribunal is guided by a number of established principles and guidelines:[216]

(a) The cases consistently emphasise to the effect that the requisite public interest must be demonstrable and self-evident:

(i) 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;"[217]

(ii) The public interest must require release in the sense that it demands or necessitates release;[218]

(iii) To apply s 50(4) properly the Tribunal has to be able to express itself in terms which conveyed that "it had no practical alternative but to allow access" and that "result has to be emphatic";[219] and

(iv) Descriptions of the Tribunal's power to override an exemption, such as "most extraordinary provision"[220] and "significant and exceptional power"[221] indicate that it should be exercised conservatively and sparingly;

(b) There will not be a public interest in disclosure, if disclosure merely provides information or gratifies curiosity. There is a recognisable difference between what is in the public interest and what is of interest to the public.[222] The fact that an individual or even a section of the public may be interested in the subject matter of a document does not equate with disclosure of that document being in the public interest;[223]

(c) The public interest is concerned with the benefit of the community as a whole, not the benefit of an individual or group of individuals.[224] There is generally no public interest in disclosing documents relating to a matter of personal significance to an individual;[225]

(d) "Abstract policy considerations, such as the desirability of greater transparency in decision making" are irrelevant in the application of s 50(4).[226] This is because, at the level of general policy, the FOIA itself has already struck the balance between the public interest in the maintenance of functionality and operations of government agencies, on the one hand, and the public interest in access to documents relevant to executive decision-making, on the other;[227]

(e) While there is an understandable and necessary public interest in transparency of government processes, it does not follow that the process must itself be open to scrutiny by any person who wishes to scrutinise it; and

(f) The following have no role in the consideration and application of s 50(4):[228]

(i) Revealing the reason for a government decision, any background information, and what information was considered in making it;

(ii) Enhancing scrutiny of government decision making and how government came to make a particular decision;

(iii) Ensuring government processes are transparent and accountable;

(iv) Enabling the public to determine whether the decision was reasonably justifiable; or

1. It follows that the override should not be invoked unless disclosure of the document itself would actually advance or promote the asserted public interest. Accordingly, in determining whether to invoke the public interest override, the Tribunal has previously had regard to the fact that a large volume of material had already been disclosed and the exempt documents provided no significant additional information relative to the issues of public interest raised. As a result, the Tribunal found no basis to override the exemption under s 30(1).[229] In these proceedings, the SRO has released expenditure totals.[230]
2. When considering whether to override the s 32 exemption, the Tribunal must also balance the importance of legal professional privilege. This privilege is a common law right based upon public interest considerations. Accordingly, there must be very compelling factors to justify overriding the doctrine of legal professional privilege.
3. Equally, when considering whether to override the s 34 exemption, the Tribunal must also balance the importance of a public interest in protecting sensitive information of a business, commercial or financial nature.
4. In Mr Tucker's Statement of Public Interest Grounds, he identified the following bases for the public interest override:[231]
   1. There is public interest in ensuring that when government agencies use taxpayer money to engage contractors and consultants, those services providers are independent of the highest quality and represent value for money. When the conduct of services providers is in question, this can only be achieved if their qualifications and work is open to scrutiny.
   2. There is public interest in ensuring that government agencies comply with the Civil Procedure Act 2010 (Vic) and the Attorney General's Model Litigant Guidelines by ensuring that legal fees are reasonable and proportionate to:

(a) the complexity or importance of the issues in dispute; and

1. There is public interest in the SRO's expenditure of taxpayers' money on expensive consultants as evidenced by attached record of the Victorian Parliament, dated 12 June 2019.

As such, the interests of the respondent are not personal to him - he represents the interests of the public.

1. In his Closing Submissions,[232] Mr Tucker stated:

The respondent asserts that there is a public interest of central importance in the full disclosure of the invoices and documents including:

(a) to verify that the SRO has kept its expenditure of taxpayer money reasonable and proportionate; and

(b) to ensure that the SRO's lawyers and consultants have provided value for money.

1. Mr Tucker also seeks to justify the public interest as follows:[233]

Further, the SRO's refusal to produce the invoices and other documents with respect to its expenditure creates an inference that:

(b) the consultants and lawyers who have received taxpayer money have engaged in overcharging; and

(c) the SRO has breached its obligations to keep its costs reasonable and proportionate.[234]

1. Mr Tucker's reference, in his Statement of Public Interest Grounds, to an attached record of the Victorian Parliament, is irrelevant as explained to him at the commencement of the Hearing.
2. Section 50(4) does not fall to be considered unless the Tribunal has already found that documents are exempt. The policies and guidelines, which have developed in the context of the Tribunal considering the application of s 50(4), clearly exclude matters of personal interest or the desirability to subject government decisions, procedures and expenditure to scrutiny.
3. Unfortunately, Mr Tucker appears to assume the mantle of a representative of the public and the role of scrutinizing and enforcing the statutory obligations of an agency such as the SRO. In doing so, he mistakenly equates the public interest with his deeply held private interest.
4. In the Tribunal's view, Mr Tucker's submissions all suffer from the fatal flaw that they have not addressed in any way why the exemptions should be overridden. He appears to start from the premise that, in withholding the disputed documents, the SRO must have something to hide and therefore its decisions and expenditure is suspect and should be exposed in the public interest. Mr Tucker's reasoning is demonstrably devoid of any evidentiary basis. In particular, he has not identified any public interest which would be advanced or promoted by the disclosure of any of the disputed documents.
5. Furthermore, he has not presented any material before the Tribunal to support an opinion that the public interest (reasonably) requires that access to the documents should be granted.[235] Indeed, his written submissions are replete with spurious and misconceived allegations[236] and irrelevant references.
6. The Tribunal also notes that many of Mr Tucker's public interest contentions and purported concerns about the SRO's handling of his various requests and litigation have been considered and dismissed in the proceedings referred to above.
7. The observations made by President Quigley J are equally apposite to the s 50(4) claim in these proceedings:[237]

there are extensive investigative powers in those bodies to which any complaint by Mr Tucker might be directed and these investigative bodies have extensive inquisitorial and coercive powers to investigative any conduct or procedural concern without the detail sought by Mr Tucker in this case.

1. Consequently, to the degree to which the documents are exempt under ss 30, 32 and 34 FOIA, the Tribunal finds that there is nothing either relevant or persuasive in Mr Tucker's submissions and there is otherwise no evidence before the Tribunal to establish a proper basis for the Tribunal to exercise the power contained in s 50(4) FOIA.

1. The Applicant's Counsel has raised a number of concerns in regard to certain statements contained in Mr Tucker's Closing Submissions, which in the Tribunal's view also highlight the irreverent and mischievous approach adopted by Mr Tucker throughout the Hearing. Indeed, many allegations made during the course of the Hearing, which the Tribunal directed, to the effect, were irrelevant, misconceived or otherwise without any evidentiary basis, appear to be repeated in some form in the Submissions.[238]
2. It is convenient to deal with these matters in the order addressed by the Applicant's Counsel in Reply in addition to other concerns of the Tribunal, outlined below.
3. Mr Tucker has asserted throughout his Submissions that the SRO has "concealed" information, thereby implying improper or worse behaviour. There is no evidence of concealment and the allegation is misconceived in the context of the FOIA. The SRO has withheld information from release in reliance upon exemptions under the FOIA.
4. OVIC's decision to vary the SRO's decisions does not equate to a finding that the SRO "misapplied" the relevant exemptions, as alleged by Mr Tucker at [24] and [28] of his Submissions.
5. Mr Dunlop gave evidence of the extensive internal and external scrutiny to which the SRO is subject.[239] Aside from purporting to dismiss generally the evidence of SRO's witness, Mr Tucker did not challenge such evidence in any meaningful way. There is no basis for Mr Tucker's assertions at [38] or [39].
6. Mr Tucker appears to have misconceived the nature of the current review before the Tribunal. Specifically, Counsel correctly points out that:

(a) There is nothing in the FOIA which gives an OVIC decision any particular weight or status during a review application in the Tribunal, which is conducted as a de novo hearing;

(b) The SRO does not bear the onus referred to under s 55(2) of the FOIA, which expressly exempts applications under s 50(3D) made by an agency (such as SRO) for review of a decision made by OVIC under s 49P;

(c) The evidence presented and the hearing process before the Tribunal is necessarily more extensive than the review conducted by OVIC; and

(d) The only question before the Tribunal is "What is the correct or preferable decision?".[240]

1. Mr Tucker makes selective reference to the objects of the FOIA. While acknowledging that the right of access to information is limited only by exceptions and exemptions necessary for the protection of essential public interests, he omitted the additional reference to "the private and business affairs of persons in respect of whom information is collected and held by agencies." It is the latter kinds of information which has been a particular focus and concern of the SRO, where affected third parties have expressed reasonable concerns that such information could be used against their interests.[241]
2. Mr Tucker appears to equate certain information, which in isolation has been disclosed to him, as indistinguishable in nature and effect to the information in disputed documents which he is seeking. Having not had access to the disputed documents, Mr Tucker is hardly in a position to make such an assessment. However, the Tribunal does have such access and can make such assessment.
3. Having now heard, read and examined all the evidence, the Tribunal endorses the following Submissions in Reply made by the Applicant's Counsel:

(a) Mr Tucker has not put before the Tribunal any evidence of relevant information in the disputed documents being publicly known. The only information Mr Tucker does claim to know (such as business names, ABNs or business contact details) is peripheral to the information he has requested;

(b) Mr Tucker has not responded to the Applicant's evidence, in reliance upon s 25 of the FOIA, that it is either not practicable to redact the exempt material from a document or such deletions would only leave irrelevant information, such as the Maddocks logo on an invoice;

(c) Mr Tucker did not challenge Mr Dunlop's evidence that the relevant information has always been treated confidentially and continues to be kept confidential;

(d) Mr Tucker's assertions that he knows certain information in the disputed documents is clearly negated by the Tribunal's examination of such documents;[242]

(e) Mr Tucker makes reference to information about people and businesses which is published and easily accessible. From these facts he appears to make the proposition that the SRO cannot seriously rely upon any confidentiality or sensitivity in the content of the disputed documents. Mr Tucker has either misunderstood and/or underestimated the nature of the disputed documents; the highly regulated and scrutinised role performed by the SRO in the circumstances; and the relevant interests of third parties in maintaining their privacy. Counsel clarified these issues as follows:

1. ... The fact that a piece of information is publicly available (for example, WorkLogic's ABN) or that Mr Tucker already holds one part of a picture (for example, the name of a lawyer appearing in one of his cases) underscores the risk that releasing such information in connection with sensitive information (such as a billing rate) would immediately expose the private personal and business affairs of third parties. It also heightens the potential for him to knit together information in order to expose (for example) otherwise privileged or properly internal communications.
2. Mr Tucker's access to such information, particularly when combined with the cavalier attitude that he has demonstrated in making serious allegations against the SRO and named individuals without merit, is a relevant matter for the Tribunal to take into consideration when assessing the (un)reasonableness of disclosure in the context of FOIA ss 33, 34(1) and 34(4), and when balancing the interests involved in s 30(1) or examining the existence of a public interest under s 50(4).

1. Further submissions made by Mr Tucker are either entirely irrelevant to the current proceedings or otherwise provide no meaningful basis for comparison with applications in other litigation. For instance:

(a) Mr Tucker makes reference to documents which the SRO has been ordered to disclose in the Fair Work Commission. However, no particulars are given and there is no evidentiary basis for the Tribunal to draw conclusions as to the relevance of such disclosures in these proceedings;

(b) As pointed out by the Applicant's Counsel, even if the Notice to Produce issued in the Fair Work Commission overlaps with any disputed documents in these proceedings, and even if Mr Tucker obtained copies of one or all of those documents in unredacted form, Mr Tucker in any event will be bound by the implied undertaking in respect of those copies because they will have been produced under compulsion in a legal proceeding.[243] Also, he will be subject to the laws of contempt in respect of his treatment of those documents; and

(c) The Tribunal in these proceedings must evaluate the release of documents, without constraint, under the FOIA. This is a different circumstance to that where Mr Tucker may at some stage obtain access to documents in the future, but subject to constraints, in the course of another legal proceeding. Such a circumstance is therefore entirely irrelevant to the Tribunal's consideration of whether the documents in dispute in this case ought to be released to him under the FOIA.

1. Counsel has described Mr Tucker's assertions at [67(a)] and [67(b)] of his Submissions as "baffling". They certainly do not make any sense and have been disregarded for the following reasons outlined by Counsel:[244]
   1. Footnote 49 in his Submissions refers to Documents 4, 5 and 9 in Confidential Exhibit G and TB p 13. That is the first page of the table attached to the SRO's decision Z515 letter. Mr Dunlop gave evidence about this document by referring to TB pp 293-298 ... Mr Dunlop gave evidence that the SRO released the redacted copies of Documents 4, 5 and 9 to Mr Tucker. Mr Tucker has not explained how the information he received in those redacted copies undermines the SRO's claimed exemption under FOIA s 34(1)(b) ...
   2. Footnote 50 refers to TB p 329 (the first page of the table attached to the Z856 decision letter) and Document 12. Mr Dunlop gave evidence that the description in the table on TB p 329 of Document 12 being 'partially exempt' was incorrect and that the document in fact was "wholly withheld" from release [Tr 28:11-15]. Mr Tucker has not produced that document to the Tribunal, despite inferring in his Submissions that he has a copy. Nor did he confront Mr Dunlop with the evidence that the document had been released or challenge Mr Dunlop's evidence in that respect in cross-examination.
2. Comparing the redacted documents[245] with the other exempt material, the Tribunal is satisfied that the SRO's claimed exemption is consistent with the release of the redacted documents.
3. The Tribunal also accepts Mr Dunlop's uncontradicted evidence that Document 12 has not been released.
4. For the reasons outlined above, the Tribunal finds no merit to Mr Tucker's Submissions at [54]-[60], [62], [67], [68], and [70]-[82].
5. Furthermore, Mr Tucker's assertion in [41] is inconsistent with the written and oral evidence given by Mr Dunlop and an examination of Confidential Exhibits G and L.

1. Mr Tucker informed the Tribunal at the commencement of the Hearing that he did not propose to tender any witness statements on his behalf.[246] He also confirmed that position at the close of the SRO's case when there was the following exchange:[247]

Can I just confirm that, Mr Tucker? You've chosen not to submit your witness statements so you have not been cross-examined in relation to that so that's not a document that I need to take into account at all; you understand that?

Yes, I do understand that, judge, but I do seek, as discussed yesterday, just to tender into evidence those two pages of the tribunal book, those two Hansard extracts that were annexed to my statement of interest grounds and they're the only evidence that I seek to tender in reliance of the public interest grounds that I brought in this case.

1. Counsel objected to the tender of the document.[248] I then explained to Mr Tucker as follows:[249]

... the critical statement in the respondent's statement of public interest grounds is paragraph 3 where it says, "There is public interest in SRO's expenditure of taxpayer's money on expensive consultants as evidenced by attached." Now what is attached is - if we just take that at face value ... is not evidence of anything other than what it purports to be on the face of it. It's certainly not evidence as to the statement of expensive consultants ... it's not evidence ... supporting that statement.

1. Accordingly, it was clearly indicated to Mr Tucker that the Hansard extract was irrelevant and could not be relied upon by him as evidence supporting the assertion which he made in his statement of public interest grounds.
2. Mr Tucker also informed the Tribunal at the commencement of the Hearing that he did not press his application for the Worklogic Deed of Confidentiality.[250] Accordingly, all submissions which Mr Tucker has now made in relation to the Deed are irrelevant and have been disregarded.[251]
3. The conclusion Mr Tucker draws at [76] of his Submissions is not supported on the face of the disputed documents in Confidential Exhibit G.[252]
4. In [42]-[43] Mr Tucker appears to have made reference to privileged settlement negotiations which should not have been included in his submissions and for that reason alone, these paragraphs are struck out. In any event, the matters raised in these paragraphs are irrelevant to any issue for determination by the Tribunal.
5. Mr Tucker has purported to raise objections to Mr Dunlop's evidence after the Hearing has concluded, which were not the subject of cross-examination and have been disregarded.
6. As Mr Tucker chose not to lead any evidence at the Hearing, it is impermissible for him to introduce matters which he asserts as fact for the first time in his written Closing Submissions. Into this category I would include [3], [33], [42], [43], [54], [63], [67], [72] to [76], [77], [78], [81], [102] (last two sentences), [103] and [108], all of which are struck out.
7. Finally, Mr Tucker has made several allegations and assertions which are either scandalous, misconceived, without any evidentiary basis and/or irrelevant. Into this category fall [24], [28], [30], [35], [71], [78], [79], [81] and [86], as well as the various allegations of concealment at [2], [6], [29] [62] and [76].
8. Mr Tucker has made the above allegations and assertions in his Closing Submissions despite repeated warnings and directions from the Tribunal during the Hearing.[253] Particularly offensive are the baseless and scandalous attacks on the SRO's witness. Accordingly, it is appropriate that [78], [79] and [86] of Mr Tucker's written Submissions be struck out and the remaining paragraphs referred to in the preceding paragraph herein are disregarded.
9. Mr Tucker has also been described in many of the cases cited above as undertaking a personal crusade apparently motivated by personal grievances with his former employer and the employer's staff members and other representatives (such as the lawyers).
10. In the current proceedings, I am satisfied that Mr Tucker presented as similarly motivated with his focus upon and claims of profligate expenditure or other impropriety on the part of the SRO in the face of comprehensive and compelling evidence to the contrary. I would also add to the list of critical observations made by presiding Judges and Members in previous cases, that Mr Tucker wasted time in the Hearing by raising matters and making objections which were clearly irrelevant. Furthermore, during his cross-examination of Mr Dunlop, Mr Tucker repeatedly made spurious accusations against the SRO and the witness, unrelated to the current proceedings, and otherwise failed to take the opportunity to ask questions relevant to the issues for determination by the Tribunal.
11. Having regard to these observations and Mr Tucker's propensity for litigation, the outcome of such litigation and judicial comments and observations, I am satisfied that release of the disputed documents to Mr Tucker would pose a real risk that he would seek to use such documents to further a personal campaign of his grievances against the SRO, including taking documents out of context and aggravating the interference with personal privacy and commercial confidentiality. In doing so Mr Tucker would expose the SRO, its staff and external providers to unwarranted and misplaced criticism.

1. For the reasons given, the decisions of the OVIC made on 13 June 2019 and 3 October 2019, the subject of review in proceedings Z515/2019 and Z856/2019 respectively, will be set aside.
2. The Applicant's decisions to refuse the release of documents to the Respondent, the subject of proceedings Z515/2019 and Z856/2019, will be affirmed.

[1] Exhibit D, Tribunal Book (TB) 20. This request gave rise to VCAT Proceeding Z515/2019.

[2] Exhibit E, TB 293-298. This request gave rise to VCAT Proceeding Z856/2019.

[4] Exhibit F, Z515 CD 299-318; and Exhibit K, Z856 CD 333-391.

[5] OVIC Decision C/18/0112 dated 13 June 2019, OVIC Decision C/19/01070 dated 3 October 2019.

[8] Respondent's Closing Submissions [4] and Statement of Public Interest Grounds dated 18 March 2020, TB 146.

[9] Exhibit A, TB 46, Statement of Evidence of Grant Dunlop dated 7 October 2019 at [18]; also addressed in Mr Dunlop's oral evidence on 10 November 2020.

[10] Applicant's Closing Submissions dated 20 November 2020 contains a summary of such history, incorporated below, which has some relevance to the current proceedings.

[11] See in particular: [7]-[21], [26], [159]-[162], [195]-[244].

1. [12]Transcript (Tr) 177:16-23. Counsel also cited this case (described as FOI procurement-related material derived entirely from a proceeding that Mr Tucker brought) as an example of where Mr Tucker could apply his prior knowledge to those documents to gain far more information than another person with no other insight into the matter.

[13] Refer also to Exhibit O comprising a list of all FOI requests made by Mr Tucker. TB 392-393.

[14] Applicant's Closing Submissions [3. a.-k.].

[15] [2019] VCAT 1840 at [36], [43], [56], [73], [76]-[83].

[16] [2019] VCAT 1840 at [84].

[17] [2019] VCAT 1840 at [61], [63].

[18] [2019] VCAT 1840 at [89], [96].

[19] [2020] VCAT 273 at [16], [17].

[20] [2020] VCAT 273 at [19]- [21].

[21] [2020] VCAT 273 at [29].

[22] [2020] VCAT 273 at [30].

[23] [2020] VCAT 53.

[24] [2020] VSC 121 at [121].

[25] [2020] VSC 121 at [133].

[26] [2019] FWC 3896 at [130].

[27] [2019] VCAT 1840 at [16].

[28] [2019] VCAT 1840 at [93].

[29] [2020] VSC 121 at [10].

[30] [2020] VSC 121 at [123].

[31] Mr Dunlop said that this number now includes two further requests made by Mr Tucker since Mr Dunlop's first statement.

[34] Decleah Investments Pty Ltd v Commissioner of State Revenue (2013) 97 ATR 268 at [284]; Midas v Commissioner of State Revenue [2010] VCAT 1690 at [10]; Towie v State of Victoria [2007] VCAT 1489 at [28]; Chopra v Department of Education and Training [2019] VCAT 986 at [89].

[35] Midas v Commissioner of State Revenue [2010] VCAT 1690 at [10].

[36] Midas v Commissioner of State Revenue [2010] VCAT 1690 at [10]; Towie v State of Victoria [2007] VCAT 1489 at [28]; Decleah Investments Pty Ltd v Commissioner of State Revenue (2013) 97 ATR 268 at [284]; Chiang v Commissioner of State Revenue [2016] VCAT 304 per Senior Member Davis at [10]-[13].

[37] Chopra v Department of Education and Training [2019] VCAT 1860 - in particular at [69]-[77].

[39] Found at Confidential Exhibit G, Z515 CD 1-414 and Confidential Exhibit L, Z856 CD 1-352.

[40] Exhibit A, TB 46, Statement of Evidence of Grant Dunlop dated 7 October 2019 at [19] - as corrected in oral evidence on 19 November 2020.

[41] Exhibit B, TB 143, Statement of Evidence of Grant Dunlop dated 25 February 2020 at [7]. See also oral evidence on 19 November 2020.

[44] Corrected in Tr 186:31 - 187:1-3. Z515 CD 527 is a procurement approval memo.

[45] Exhibit A, TB 44-52, Statement of Evidence of Grant Dunlop dated 7 October 2019; Exhibit B, TB 142-145, Statement of Evidence of Grant Dunlop dated 25 February 2020; and Exhibit, TB 253-265, Statement of Evidence of Grant Dunlop dated 1 May 2020.

[46] Statement of Evidence of Grant Dunlop dated 7 October 2019 [3]-[4].

[47] Tr 35:15-25. See also Exhibit A, TB 50 at [31]-[32].

[49] Supported by materials contained in the bundles at Confidential Exhibits M and N.

[50] See for example Confidential Exhibit N, 5, 65; and Confidential Exhibit M, 8, 12, 26, 40, 42, 46, 50, 55.

[62] Z515 CD 276, "Form F104 - General Expenditure Claim". This Form related to a Maddocks invoice and concerned Mr Tucker. Tr 47-49.

[63] Tr 49:16-22; 50:1-2. By way of example, Mr Dunlop identified the Form 104 used in Z515 CD 276-283 which is the same Form appearing in Z856 CD 106. Hence this is an example of a document that is covered by both requests and is in both bundles.

[70] Mr Dunlop again confirmed that initials and signatures appearing in the documents would be recognised by people who work in the SRO.

[76] Z515 CD 409-412. Tr 75:10-29.

[78] Z515 CD 415. Tr 76:14-31; 77; 78:1-24.

[79] Z515 CD 423-441; Tr 79:17-31; 80-83.

[80] TB 437-438. Tr 86-91.

[82] TB 439-441; 445-450; Tr 92:28-31; 93.

[86] Z515 CD 478-482; Tr 101:30-31; 102.

[91] Z515 CD 491. Tr 111:3; 112:1-20.

[92] Tr 114:17-31; 115; 116:1-23; Reflected in Z515 CD 491-494.

[100] Tr 44:8-12. Refer also Exhibit O, TB 415.1.

[101] Applicant's Closing Submissions [6]-[11].

[102] Oral evidence on 19 November 2020.

[103] Tr 45:6-24; 139:13-26 evidence of Mr Dunlop.

[104] Exhibit A, TB 45, Statement of Evidence of Grant Dunlop dated 7 October 2019 at [7], [8]. See also oral evidence on 19 November 2020.

[105] Applicant's Closing Submissions [2. f.-i.].

[106] Applicant's Closing Submissions [32]-[34].

[107] See for example: Thwaites v Department of Human Services (1998) 14 VAR 347; Mees v University of Melbourne [2009] VCAT 782; Koch v Swinburne University [2004] VCAT 1513; Baker v Department of Education & Training [2005] VCAT 2263.

[108] Brog v Department of Premier and Cabinet (1989) 3 VAR 201.

[109] Scott v Office of the Assistant Treasurer [2013] VCAT 2015.

[110] See in particular the factors identified in Friends of Mallacoota Inc v Department of Planning and Community Development [2011] VCAT 1889 per Judge Hampel.

[111] Tr 196, Counsel's closing address.

[112] Exhibit A, TB 48 at [22]; oral evidence on 19 November 2020.

[113] Tr 197, Counsel's closing address.

[114] Evans v Ministry for the Arts (1986) 1 VAR 315; Kosky v Department of Human Services (1998) 13 VAR 420.

[115] McIntosh v Department of Premier & Cabinet [2009] VCAT 1528; (2009) 32 VAR 371.

[116] TB 286; 445-450 (partly released email); 493.

[117] Exhibit A, TB 48. Also adopted in his Statement concerning Z856, TB 144.

[122] Applicant's Closing Submissions [37].

[123] Applicant's Closing Submissions [38]-[40].

[124] Esso Resources Limited v Commissioner of Taxation (Commonwealth) [1999] HCA 67; (1999) 201 CLR 49; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543. See also generally Osland v Secretary, Department of Justice [2008] HCA 37.

[125] Marke v Victoria Police [2007] VCAT 747 at [101].

[127] City Parking Pty Ltd v City of Melbourne (1996) 10 VAR 170, 205; Gunawan v Department of Education (unreported, VCAT, Davis SM, 15 December 1998); Bennett v Chief Executive Officer, Australian Customs Service [2003] FCA 53 at [45].

[128] Standard Chartered Bank of Australia v Antico (1993) 36 NSWLR 87, 93.

[129] Applicant's Closing Submissions [41. a.-d.].

[130] Applicant's Closing Submissions [42-43].

[131] Coulson v Department of Premier and Cabinet [2018] VCAT 229 at [64]- [75].

[132] Chopra v Department of Education and Training [2019] VCAT 1860 at [54]- [57].

[140] Applicant's Closing Submissions [47].

[141] Exhibit M: Confidential Exhibits for Z515, Third party consultations; summary of responses 1-3, together with records of the consultations with affected people at 4-70.

[142] Exhibit N: Confidential Exhibits for Z856, Third party consultations; summary of responses 1-2, together with records of the consultations with affected people at 3-65.

[144] O'Sullivan v Victoria Police [2005] VCAT 532 at [19]; Morse v Building Appeals Board (No.2) [2007] VCAT 2344 at [15].

[145] Akers v Victoria Police [2003] VCAT 397 at [43]; Koch v Swinburne University [2004] VCAT 1513 at [28]; Mann v Medical Board of Australia [2010] VCAT 1525 at [15].

[146] Reilly v Kilmore and District Hospital (1993) 6 VAR 16, 23.

[147] Applicant's Closing Submissions [48-54].

[148] See for example Hutchison v Department of Human Services (1997) 12 VAR 422, 425-426; F v Health Department (1988) 2 VAR 458, 461_._

[149] Hanson v Department of Education and Training [2007] VCAT 123 at [9].

[150] See, for example, Geelong Community Good Life Inc v Environment Protection Authority & Anor [2009] VCAT 2429 per Deputy President Coghlan at [48].

[151] Morgan v City of Port Phillip [2008] VCAT 978 at [42].

[152] O'Sullivan v Department of Health and Community Services (No.2) (1995) 9 VAR 1, 14; Beachamp v Department of Education [2006] VCAT 1653 at [42].

[153] Mickelburough v Victoria Police [2009] VCAT 2786 at [39]; Gunawan v Directorate of School Education (1994) 6 VAR 418, 425.

[154] Applicant's Closing Submissions [55].

[155] Victoria Police v Marke [2008] VSCA 218 at [7], [9], [94].

[156] Counsel referred to Exhibit N, Confidential Exhibits for Z856, 34 which illustrates by reference to a person whose information is exposed although their involvement is 'most peripheral' and 'most unimportant'. There are many examples in the disputed documents of such arbitrary disclosure.

[157] Morgan v Department of Human Services (unreported, VCAT, Senior Member Davis, 5 December 2008) at [70].

[158] Applicant's Closing Submissions [57].

[159] Victoria Police v Marke [2008] VSCA 218 at [5], [86], [99].

[160] Morgan v Department of Human Services [2008] VCAT 2420. See also XYZ v Victoria Police [2010] VCAT 255; Levy v Department of Sustainability and Environment [2011] VCAT 417 at [16]; Simpson v VicRoads [2011] VCAT 321 at [18].

[161] Victoria Police v Marke [2008] VSCA 218 at [30]- [31], [69]-[70], [105]-[106].

[162] Victoria Police v Marke [2008] VSCA 218 at [68], [80].

[163] Victoria Police v Marke [2008] VSCA 218 at [103].

[164] Victoria Police v Marke [2008] VSCA 218 at [67], [71], [72], [86], [88], [99], [105], [108].

[165] Gunawan v Department of Education (unreported, VCAT, Senior Member Davis, 15 December 1998), 18.

[166] See also Chopra v Department of Education and Training [2019] VCAT 1860 at [36]- [43].

[167] Mildenhall v Department of Planning and Development (unreported, AAT of Vic, 16 August 1995 per Member Preuss), 6.

[168] (1988) 2 VAR 243, 245-6 (Judge Jones). See also XYZ v Victoria Police [2010] VCAT 255.

[169] See also Victoria Police v Marke [2008] VSCA 218 at [19].

[170] See also Victoria Police v Marke [2008] VSCA 218.

[171] See also Victoria Police v Marke [2008] VSCA 218.

[172] Chopra v Department of Education and Training [2019] VCAT 1860 at [44].

[173] See also Victoria Police v Marke [2008] VSCA 218.

[174] See also Victoria Police v Marke [2008] VSCA 218 at [77], [100], [104].

[175] Exhibit A, TB 47 at [21]-[25], Exhibit B, TB 143 at [9], oral evidence on 19 November 2020.

[177] Applicant's Closing Submissions [61].

[178] Marple v Department of Agriculture (1995) 9 VAR 29.

[179] City Parking Pty Ltd v City of Melbourne (1996) 10 VAR 170, 198.

[180] Applicant's Closing Submissions [66].

[181] O'Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356 at 375 per Toohey and Gaudron JJ.

[182] O'Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356 per McHugh J at 376; see also Airservices Australia v Canadian Airlines International Ltd (1999) 167 ALR 392, 447 at [250] to [251]; Office of the Premier v Herald and Weekly Times Pty Limited [2013] VSCA 79 at [71]- [72].

[183] Nordland Papier AG v Anti-Dumping Authority [1999] FCA 10; (1999) 93 FCR 454, 461.

[184] J & G Knowles & Associates Pty Ltd v Commissioner of Taxation [2000] FCA 196; (2000) 96 FCR 402 at 408 (citations omitted).

[185] Asher v Victorian WorkCover Authority [2002] VCAT 369 at [12].

[190] Applicant's Closing Submissions [69].

[191] It is appropriate in light of the Court of Appeal decision in Marke v Victoria Police [2007] VSC 522 that all relevant circumstances be considered including the identity of the Applicant and the reasons for seeking the information as well as the likelihood that the information would be published more widely.

[192] State Bank of New South Wales v Department of Treasury (1991) 5 VAR 78, 84.

[193] Marple v Department of Agriculture (1995) 9 VAR 29, 49.

[194] Akers v Victoria Police (No.2) [2003] VCAT 398 at [64].

[195] Knight v CORE [ 2002] VCAT 1769 at [19]; Vaughn v Department of Sustainability and Environment [2004] VCAT 1562 at [62] ff.

[196] Conyers v Monash University [2005] VCAT 2509 at [18]; Vaughan v Department of Sustainability and Environment [2004] VCAT 1562 at [58]; Pinder v Medical Practitioners Board (1996) 10 VAR 75; Gunawan v Department of Education, (Unreported, VCAT, Senior Member Davis, 15 December 1998).

[197] White v Pyrenees Shire Council [2001] VCAT 2043.

[198] Applicant's Closing Submissions [71].

[199] Gibson v Latrobe CC [2008] VCAT 1340 at [32], [44].

[200] Re Ku-Ring-Gai Co-operative Building Society (No 12) Ltd [1978] FCA 50; (1978) 36 FLR 134 per Deane J, Brennan J agreeing.

[201] Gibson v Latrobe CC [2008] VCAT 1340 at [36]; Marple v Department of Agriculture (1995) 9 VAR 29, 47; Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] VCAT 45; (2003) 19 VAR 363 at [41]; Thwaites v Metropolitan Ambulance Service (1996) 9 VAR 427, 466.

[202] Fyfe v Department of Primary Industries [2010] VCAT 240 at [23] per Deputy President Macnamara; Marple v Department of Agriculture (1995) 9 VAR 29, 46.

[203] Asher v Department of Innovation, Industry and Regional Development [2005] VCAT 2702 at [38]; Gibson v Latrobe CC [2008] VCAT 1340 at [39].

[204] Accident Compensation Commission v Croom [1991] VicRp 72; (1991) 2 VR 322 at 325; Gibson v Latrobe CC [2008] VCAT 1340 at [40].

[205] Binnie v Department of Industry and Technology (1986) 1 VAR 345, 348; Gibson v Latrobe CC [2008] VCAT 1340 at [40].

[206] Asher v Department of Innovation, Industry and Regional Development [2005] VCAT 2702 at [38] and [45].

[207] Fyfe v Department of Primary Industries [2010] VCAT 240 at [29].

[208] Byrne v Swan Hill Rural City Council [2000] VCAT 666; (2000) 16 VAR 366, 372-3; Page v Metropolitan Transit Authority (1988) 2 VAR 243, 246.

[209] Applicant's Closing Submissions [82].

[210] Binnie v Department of Industry and Technology (1986) 1 VAR 345, 348; Gibson v Latrobe CC [2008] VCAT 1340 at [40].

[211] Applicant's Closing Submissions [83].

[212] Honeywood v Department of Human Services [2006] VCAT 2048.

[213] Exhibit G, Z515 CD 44 and following is a good example where only the Maddocks letterhead would be left after exempt information is redacted. Pages 423-431 would be left with little more than headings and perhaps the Privacy Statement after sensitive material is redacted.

[214] Proctor v Mornington Peninsula Shire [2018] VCAT 638.

[215] Re State Bank of NSW v Department of Treasury (1991) 5 VAR 78.

[216] Usefully summarised in Applicant's Closing Submissions [86]-[93].

[217] Osland v Secretary, Department of Justice [2010] HCA 24; (2010) 84 ALJR 528.

[218] XYZ v Victoria Police [2010] VCAT 255.

[219] _Secretary, Departm_ent of Justice v Osland [2007] VSCA 96; Asher v Department of Premier and Cabinet [2008] VCAT 450.

[220] Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 341.

[221] Osland v Department of Justice (2008) 234 CLR 275 at 313.

[222] Davis v Victoria Police [2008] VCAT 1343.

[223] Gibson v Latrobe CC [2008] VCAT 1340 at [74].

[224] Simons v Secretary to the Department of Justice [2006] VCAT 2053.

[225] Koch v Swinburne University [2004] VCAT 1513.

[226] Secretary, Department of Justice v Osland [2007] VSCA 96 at [94].

[227] Asher v Melbourne Water [2009] VCAT 1079 at [64]; Department of Justice v Osland (No 2) [2009] VSCA 69; Osland v Secretary, Department of Justice [2008] HCA 37.

[228] Department of Justice v Osland (No 2) [2009] VSCA 69.

[229] Mildenhall v Department of Education (1998) 14 VAR 87.

[230] TB 254 at [6] - 255 at [10] and 392-415.

[231] Statement dated 18 March 2020, TB 146.

[232] Respondent's Closing Submissions [4], dated 18 December 2020.

[234] Civil Procedure Act 2010 (Vic) s 24. Model Litigant Guidelines (Victoria) [2(g)].

[235] Osland v Department of Justice [2010] HCA 24; (2010) 241 CLR 320 at 328-9.

[236] Closing submissions, such as [3], [33-34], [38-39], [43], [63], [100].

[237] Tucker v Commissioner of State Revenue [2019] VCAT 2018 [199].

[238] For instance, matters asserted by the Respondent in his cross-examination of Mr Dunlop at Tr 142:5-143:4; 148:1-24; 161:14-162:30.

[239] For example, Tr 128:4-25; 139:13-140:1.

[240] Department of Health & Human Services v Herald and Weekly Times [2015] VCAT 291 at [9].

[241] Counsel gives the example that after Mr Tucker obtained a copy of the email included in Attachment 7 to his Submissions, he sued the author personally for defamation.

[242] I concur with Counsel's reference to the face of Confidential Exhibits G and L.

[243] See discussion in Kilppert v Veolia Environmental Services (Australia) Pty Ltd [2020] FWC 4669 at [8]- [11].

[244] Applicant's Submissions in Reply [35].

[251] Contained in [59], [67(c)] and [73]-[76].

[252] For example, 415-434 of that Exhibit.

[253] For instance, at Tr 143:1-4; 148:9-24; 154:24-30; 160:19-162:30; 167:22-174:13.