Application under Section 119 of the Victorian Civil and Administrative Tribunal Act 1998 is dismissed.

1. This proceeding has been brought back before the Tribunal for a second time pursuant to Section 119 of the Victorian Civil and Administrative Tribunal Act 1998.
2. Section 119 is the Tribunal's equivalent of what is known in Court as the slip rule. On 15 Mach 2010 I published a reserved decision with respect to an application by Mr Corry for access to certain documents under the Freedom of Information Act 1982 which documents were in the custody of Victoria Police. My determination was generally favourable to Mr Corry except insofar as I held exempt material which identified certain individuals in obedience as I understood it to Section 33(9).
3. Following the publication of my decision the respondent, Victoria Police, made the present application. In a facsimile transmission addressed to me dated 9 April, a representative of the respondent contended that I had failed adequately to deal with the exemptions claimed with respect to a number of documents under Section 33(1) of the Freedom of Information Act 1982. That section provides:

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).

1. The personal affairs involved in the contention were those of two police officers who had attended a complaint relative to alleged domestic violence at the applicant's residence. These officers were also the subject of complaints to the Ethical Standards Department of Victoria Police by the applicant and the documents in question were generated in the course of that investigation. I dealt at length with those documents with reference to exemptions under Sections 30(1) of the Freedom of Information Act and Section 35(1)(b) of the Freedom of Information Act. As I understood the case that was being put on behalf of the respondent, the Section 33(1) exemption was being relied upon only with respect to the identities of the officers involved. Given that the complainant was already aware of the identities of the officers against whom he had complained when they attended at what was then his residence on the subject night and had attended court in the subsequent proceedings, the names were of no significance. In the circumstances therefore I concluded it would be unreasonable to disclose them.
2. It appears however that the respondent was putting a wider contention than that. The respondent was contending that insofar as the officers were engaged in communications about their actions on the relevant evening and subsequently, the account of those matters and the account which the officers themselves gave related to their personal affairs. In the letter to me the respondent states:

The respondent acknowledges that the way in which the case proceeded before you did not make it sufficiently clear that the Section 33(1) exemption was claimed in relation to the entirety of the four documents and takes responsibility for not having drawn it specifically to your attention as author

1. At the hearing today Ms Latif who appears on behalf of the respondent has taken me to paragraphs in the respondent's outline of contentions which in retrospect clearly enough raise the issues which the respondent now seeks to agitate or re-agitate. Certainly as argument proceed orally in the course of the hearing these matters were not prominent in my mind and so I did not deal with them. I accept however that the outline sufficiently raises the issues and whilst it was magnanimous of Victoria Police to take responsibility, at least some or perhaps all of the responsibility must lie on my shoulders.
2. Mr Corry, the applicant, contends that it is simply incompetent to raise these matters under the Tribunal's slip rule, Section 119. I put it to Ms Latif that there were significant and difficult issues as to the use of the slip rule in circumstances such as the present but that it would be appropriate to put those considerations to one side for a moment to consider in a general sense the merit of the argument that was being put to consider whether I was persuaded that if it were open to me to re-visit the determination that I had made whether I should do it. Hence I have only heard Ms Latif on what I might describe as the underlying merits of this application to correct and I have not heard from her on the application of Section 119.
3. She has drawn two decisions of the Administrative Appeals Tribunal to my attention, namely Perton v Attorney-Generals Department (1992) 5 VAR 302 and Gunawan v Directorate of School Education (1994) 6 VAR 219. Both of those determinations of the Administrative Appeals Tribunal give what I might describe as a wide meaning to the concept of personal affairs. So for instance in Gunawan's case the Tribunal concluded that a report into the conduct of a teacher in the Victorian State school system related to his personal affairs. Of course much has happened with respect to the Section 33 exemption since the decisions in question were given. Some of that history is set out at paragraph [18] of my principal determination. That paragraph indicates how decisions of the Queensland Supreme Court and the Court of Appeal of New South Wales have given a narrower view to what constitutes personal affairs in the relevant Freedom of Information Act exemptions. In Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 and Queensland v Abetz [1996] 1 QdR 215 the New South Wales Court of Appeal in the first case and Chief Justice De Jersey of the Supreme Court of Queensland as he now is in the second, held that the concept of personal affairs in the relevant exemption did not extend to the name under which an officer in the public service discharged his or her official duty.
4. As a result of those decisions a controversial decision of this Tribunal was given, namely Coulston v Mornington Peninsula and District Hospital. In that case the duty roster of a group of nurses at the relevant hospital was disclosed to a convicted murderer who contended that these names would assist him in establishing an alibi which he wanted to rely upon to reopen his conviction. This decision caused a storm of protest. As a result the Victorian Act was amended by the addition of sub-section (9) which says:

Information relating to the personal affairs of any person includes information -

(a) that identifies any person or discloses their address or location; or

(b) from which any person's identity, address or location can reasonably be determined.

1. In University of Melbourne v Robinson [1993] VicRp 67; [1993] 2 VR 177 Eames J said that the reference to the personal affairs of any person suggests:

That a distinction has been drawn by the legislature between those aspects of an individual's life which might be said to be of a private character and those relating to or arising from any position, office or other public activity with which the person occupies his or her time.

1. On that view what these officers did in the execution or purported execution of their duties on the subject night and the account which they gave to their superiors of these matters is part of their official lives and not part of their personal affairs at all. As a result of the New South Wales and Queensland decisions I gave a decision named Milthorpe v Mt Alexander Shire Council [1997] 12 VAR 105 in which I stated:

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

1. Gunawan's case and also Perton's case appear to have been based upon a dictum of the Federal Court of Australia in Department of Social Security v Dyrenfurth [1988] FCA 148; (1988) 8 AAR 544, 549 where Their Honours said:

In our view, it cannot be laid down by way of definition that an assessment of the capacity or previous work performance of an employee or prospective employee necessarily contains "information relating to the personal affairs" of that person. Equally, however, it is not permissible to construe the phrase, as the Tribunal appears to have done, as being incapable of application to information contained in an assessment of capacity or work performance.

1. I take Their Honours to be saying that this means, what appears in a personnel file might or might not according to the general description of the concept of personal affairs be regarded as material relative to the personal affairs of the officer. One may consider for instance, a fairly clear example where a personnel file includes an observation as to some personal family difficulty which has affected the officer's performance, some illness from which the officer suffers and so on. How does all this apply to the present situation? There is nothing of the sort which I have just described in the documents which are here in question. They are no more than an investigation and response by the Police Ethical Standards Group into the discharge of official duties by police officers. They clearly relate to the officers' official lives and not their personal affairs. Clearly also the amendment to Section 33 after Coulston's case to which I made reference, namely sub-section (9) is not brought into play by the passages in question. I have already upheld the exemption under sub-section (9) relative to these documents. In light of the later decisions of the Supreme Court of Queensland, the Court of Appeal of New South Wales and decisions in this Tribunal, namely Coulston and Milthorpe, I believe that the statements in Gunawan and Perton can no longer be regarded as safe guides to the application of the Section 33 exemption.
2. In my view in accordance with the distinction drawn by Eames J in Robinson's case the material in question clearly relates to the official lives of the officers and not to the their personal affairs. It follows therefore that aside from any difficulty as to the application of Section 119 in the present circumstances I would not, assuming that I am free to do so, wish to revise the outcome of this proceeding.