The decision under review is varied as described in the following reasons.

1. Ms Andrea Hicks has volunteered with the Country Fire Authority for about 9 ½ years. Her father was one of the founding members of the Stanley Fire Brigade.
2. In October 2013, she made the following allegations of bullying: Allegation 1 against a brigade captain (eight incidents spanning August 2012 to July 2013), Allegation 2 against a brigade member (an incident in January 2013) and Allegation 3 against another brigade member (an incident in July and an incident in October 2013).
3. The CFA engaged an independent investigator. After a preliminary assessment, an allegation concerning one incident of misconduct by the brigade captain was found to be substantiated. The captain is reported to have in the course of the investigation, acknowledged his fault and said if given the opportunity he would unreservedly apologise. All other allegations were found not substantiated.
4. Ms Hicks sought reviews of those findings, resulting in confirmation of the findings.
5. Under the Freedom of Information Act 1982 (FOI Act), Ms Hicks requested from the CFA documents related to the above. The CFA released documents in whole or in part and refused to release other documents. Ms Hicks sought review by the Freedom of Information Commissioner who in April 2017 decided to release further documents to Ms Hicks. The CFA seeks review of that decision by VCAT, opposing the release of those documents.
6. Shortly before the hearing on 5 October 2017, Ms Hicks advised she would not appear at the hearing but could be telephoned from the hearing if input from her was required. This was in the context of Ms Hicks being the respondent in this proceeding with the CFA being the applicant.
7. At hearing, the CFA put its case to me for decision. Ms Hicks' input was not required. I reserved my decision.
8. A short time ago I decided a review by VCAT concerning an FOI request by Ms Hicks' partner, Mr Ian McGregor, concerning the same Fire Brigade. While I was not aware of it before I heard this case, Ms Walsh for the CFA advised me that the parties had agreed it would be appropriate, in the interests of efficiency, for me to hear this case.

1. I apply in this case the summary of the law relating to the FOI Act and VCAT's role on review as set out in Country Fire Authority v McGregor (Review and Regulation) [2017] VCAT 582.[1]

1. Mr O'Day has been employed by the CFA for 23 years. He started as a firefighter, progressing through operational roles and in July 2016 was appointed Acting Deputy Chief Officer. Before that, he volunteered for five years from the age of 16. He has run many investigations. He had read the documents related to this case. He appeared at the hearing before me to confirm his witness statement is true and correct and made a few extra comments which added little in substance to his witness statement.
2. I quote his witness statement:

The CFA always conducts investigations such as those involved in these documents confidentially (often with support of external consultants) to protect brigades and local communities from the damaging flow-on effects. Releasing information of the type involved in this case will always risk recrimination and rumour-mongering. A brigade member is a member of the local community and in my experience issues arising in a brigade will tend to flow over in the local community and vice-versa. The effect of this is exacerbated in small brigades and small communities such as Stanley. In this instance, the brigade supports a small rural community of about 300 - 700 people. Stanley is also relatively remote, lying roughly between Beechworth and Myrtleford.

In my experience, releasing information such as that involved in this case could likely have a disastrous impact on a brigade and local community such as Stanley.

A related issue is the need to encourage people (often members of the brigade and local community) to participate fully in an investigation. This might be by way of volunteering information or giving a statement, or even offering an opinion about the matters being investigated. In my experience, most people will only do so if they are assured that their identities and information will be kept confidential. This is again due to the fear of recrimination, etc., and also a desire to maintain good relations with others in the community. If the people in this brigade or other brigades were to discover that the CFA had released this sort of information, I am confident that they would likely refuse to participate, or wouldn't participate as fully as they might otherwise, in future investigations due to a fear that their information might also be released. The CFA can't compel them to participate in the investigations.

A further related issue is the need to encourage members to make complaints in the first place. Again, in my experience, most people will only do so if they are assured that their identities and information will be kept confidential due to fear of recrimination, etc., and also a desire to maintain good relations with others in their brigade and the community. If the people in this brigade or other brigades were to discover that the CFA had released the details of volunteer's individual complaints, I am confident that they would be less likely to make complaints in future due to a fear that their information might also be released.

Complaints are also an important way of ensuring that any issues in the CFA are brought to its attention and are dealt with. It is therefore very important that CFA members feel they are able to make complaints without the content of those complaints being released. In fact, the CFA has a confidential telephone hotline for its volunteers to make complaints; 1800 Hotline for bullying, harassment and discrimination. The CFA set up this confidential hotline in order to encourage volunteers to make complaints, without fear of recrimination.

I note also that the CFA is heavily reliant on volunteers to perform its functions in protecting local communities. In my experience, the CFA is often the focal point for the local community, given its important role. It's critical that the CFA attracts volunteers and support from local communities to perform its functions. Building trust with the local community is important to achieving this.

Trust between the members of a brigade is also vital to the brigade's ability to perform its functions safely and effectively.

There is a danger that, if complaints aren't investigated confidentially, or if parts of the investigation are made public, people will start to draw their own conclusions about the case, or take sides, often pre-emptively and often without a proper basis. This can make life very difficult for those involved in the process who are living in that community or working/volunteering with that brigade. For example, knowing officially that an allegation is being investigated might invest the allegation with a credibility that it otherwise does not merit.

This local community context means that the issues are more sensitive than might otherwise be apparent from the face of the documents. In my experience, people involved in this investigation potentially could suffer stress, anxiety or embarrassment if they were identified or if their opinions or statements were released. There might be consequences for their safety if the information was released, or (more likely) they might fear for their safety or feel unsafe. It is vital in CFA operations that all team members have trust and faith in one another at all times.

Given the nature of the work performed by brigades (being broadly the control, suppression and prevention of fire), it is vitally important to build and maintain brigade discipline. Disciplinary investigations are an important part of this process. Undermining that process (such as by releasing otherwise confidential information gathered during an investigation) would in turn potentially undermine brigade discipline, and poses a direct threat to the performance and safety of brigade members and their capacity to protect the local community.

The CFA takes positive steps to protect the confidentiality of the information in question. These steps include having in place document management processes which require storing hard copies under lock and key, and soft copies on a secure drive on the CFA server. In both instances access is restricted to the Diversity Consultant (currently Michelle Taylor) and her immediate manager.

The CFA has formal internal procedures and processes in place to manage complaints by volunteers, such as bullying. The process provides for the initial resolution of the complaint at the local level. Then, where the complaint is not resolved at the local level, matters can be formally dealt with in accordance with Part 4 of the Country Fire Authority Regulations 2014 (Regulations).

These policies and procedures identify the need for and the requirement to keep information obtained as part of the complaints process confidential.

Volunteers are able, at any time, to lodge a report to 'CFA Safe' and the CFA 1800 Hotline for bullying, harassment and discrimination.

CFA members, officers and employees charged with disciplinary offences may also seek an appeal in accordance with the Country Fire Authority Regulations 2014 to a CFA Appeal Panel. An application can be made for review of a decision of the CFA Appeal Panel to the Supreme Court of Victoria.

I am also aware that some CFA members seek to informally have the outcome of the complaint reviewed by writing to one of the CFA executives and requesting that they review the decision.

The CFA treats complaints like the one the subject of this proceeding as having the potential to develop into litigation, and the main reason for having external consultants investigate is to determine the extent, if any, of the CFA's liability in respect of the complaint.

In addition to review by the Supreme Court of decisions of the CFA Appeal Panel, the CFA is subject to a number of other external review mechanisms which ensure that its operations are subject to scrutiny and remain transparent. These include:

Review by the Victorian Auditor-General. The Victorian Auditor-General can examine various affairs of any public sector agency in Victoria, including the effectiveness of an agency's program or service;

Ministerial inquiries. The Minister for Emergency Services can instigate reviews into the CFA. For example, the Fire Services Review, was undertaken in 2015; and Parliamentary inquiries.

1. With Ms Hicks not appearing at the hearing in this proceeding, it is appropriate to take into account the views she put advocating on behalf of her partner Mr McGregor as set out in the McGregor decision.[2]
2. In this proceeding, Ms Hicks had filed and served a public interest statement, very similar to the public interest statement provided in the McGregor case, which in summary said;

1. The CFA shuns complaints of bullying, rather than seeing them as an opportunity to stamp out bullying; 2. Disclosure of information to Ms Hicks would strengthen the integrity of the CFA in future decision-making processes of a similar nature;

1. Given a variety of policy and legislative considerations concerning the CFA as it claims to foster a harmonious supportive environment, free of bullying, releasing the documents subject to this proceeding would have substantial effect in causing cultural change at the CFA;

1. Release of the documents in dispute to her would not hamper frankness and candour of provision of information in the future. For example, when she made her complaint she was told the substance of it would be provided to those she complained about. This did not stop her providing information to the CFA for the purposes of the complaint; 2. There is a risk if the CFA does not reform in terms of its operations, financial accountability and its ability to attract appropriate volunteers who will be able to think and speak for themselves to provide robust reliable service to the public; 3. There is also the risk that reform, which release of the documents in dispute would assist, CFA volunteers will simply walk away.

1. I repeat my observations in the McGregor decision.
2. In my view, the exempt documents, so far their further disclosure would disclose to Ms Hicks and any person to whom she wished to publish them, opinion and deliberation of CFA officers concerning her complaint and the investigation, is exempt under s 30(1). Release would be contrary to the public interest.
3. VCAT has on many occasions found documents exempt under section 30(1) when they concern the investigation of a complaint because disclosure would put deliberative processes at risk. I took that view in Styles v Victorian Workcover Authority [2010] VCAT 1815 and Benson v La Trobe University (No 3) (General) [2012] VCAT 717 (18 May 2012), on both occasions quoting Mees v University of Melbourne (General) [2009] VCAT 782 (6 May 2009). See also Hanes v Australian Health Practitioner Regulation Agency (Review and Regulation) [2013] VCAT 1270
4. VCAT has made many similar decisions including Gunawan v Department of Education (unreported, VCAT, Davis SM, 15 December 1998), Koch v Swinburne University [2004] VCAT 1513 at [19], Giudice v Environment Protection Authority (unreported, VCAT, Megay, SM, 14 May 2004), Royce v Department of Justice [2006] VCAT 1699, Mann v Medical Board of Australia [2010] VCAT 1525, AB v Department of Education and Early Childhood Development [2011] VCAT 1263 and Friends of Mallacoota v Department of Planning and Community Development [2011] VCAT 1889.
5. Further, the exempt documents, so far as their further disclosure would disclose information provided by persons to the investigators in confidence, are exempt under s 35(1). I accept Mr O'Day's evidence that disclosure of such information would significantly impair the CFA's ability to obtain such further information in future investigations.
6. I prefer his evidence to Ms Hicks' evidence concerning her experience of CFA procedure and the practice of other organisations to whom she provides human resources services (see the McGregor Decision[3]). Mr O'Day's evidence stems from his far broader experience of CFA procedure and practice and is necessarily, meaning no criticism of Ms Hicks, a more independent nature related to the circumstances of this case.
7. Referring to a submission by Ms Hicks described in the McGregor decision, repeated in her public interest statement here, I place no weight on the concept that a line or two in an FOI policy document about everything being "FOI-able" means that documents in question should be disclosed. The sentence can be taken to mean no more than all documents created are subject to requests under the FOI Act. What is unsaid is that every 'FOI-able document' is subject to the exemptions in the Act.

1. All email addresses and telephone numbers which the CFA submits should remain redacted are to remain redacted. I understand this is not a contentious issue and accords with VCAT's general approach that such information is exempt under s 33(1).

1. References below to "the three persons" refer to the people Ms Hicks complained about. However, a reference with respect to any specific document to releasing the names of the three persons does not mean each of the three persons are named in that document. This avoids the need to laboriously record whether one, two or three of the names appear.

1. In the course of submissions during the hearing, the CFA submitted various text, predominantly if not wholly in emails, was irrelevant to Ms Hicks' FOI request. Usually this was where the email was dealing with making administrative arrangements concerning both the events of concern to Ms Hicks and events which had nothing to do with her complaint.
2. I have been through that text which the CFA submits is irrelevant. On its face it appears irrelevant. To fully describe each fragment of a relevant text in this decision would be cumbersome and make the decision quite hard to read.
3. Therefore, I record here that I accept the CFA's submission as to what text is irrelevant which is to remain redacted on that basis. I largely do not address such text as I set out decisions concerning the documents.

1. Turning to the documents, before the final hearing, VCAT had ordered that the CFA provide a sample of the documents in dispute and, if no objection was received, that this case would be decided on the basis of that sample, with the matter then remitted to the CFA to make any further decisions about the remainder of the documents in accord with VCAT's decision on the sample documents.
2. Ms Hicks did not object. While I have largely decided the case on the sample documents, as will be seen below, I have judged it appropriate to go beyond the sample to make comment and/or decide some of the "non-sample documents".

1. Document 65 here is Document 104 in the McGregor case.[4]
2. Concerning Document 65 here, on returning to it, I again observe that redacted text in this inconsequential email mainly consists of irrelevant information, which is exempt.
3. As I said in McGregor concerning Document 104,[5] while the names of the three persons appear, a redacted version of the document would be an incomprehensible mainly blank document. Therefore, release of a redacted version, under s 25 of the FOI Act, is not practicable in that a meaningful version could not be released.
4. Therefore, Document 65 is not to be further released.
5. For the convenience of the parties and for the CFA as it makes further decisions concerning the following documents, being those not in the sample, I record that I have been through the documents of which Document 65 is the sample document. These are documents 2, 3, 7, 8, 9, 12, 14, 15, 24, 25, 31, 32, 33, 37, 41, 44, 57, 58 (repeat of Document 100 in McGregor), 59 (repeat of Document 101 in McGregor), 60 (repeat of Document 102 in McGregor), 61, 62, 64 (repeat of Document 103 in McGregor), 66 (repeat of Document 105 in McGregor), 67, 69 (repeat of Document 107 in McGregor), 112, 113, 115, 118, 119, 121, 126, 127, 130 and 131.
6. I make the same decisions in this case as when I decided the same documents in McGregor. Therefore, Documents 58, 59, 60, 64, 66 and 69 are not to be released, beyond what I decided was to be released in the McGregor decision.
7. On the issue of s 33(1) with respect to the non-sample documents, as I decided concerning the 'McGregor Document 88', the names of the three persons should be disclosed unless those names appear with respect to material irrelevant to Ms Hicks' FOI request.
8. To that I add the names should not be disclosed if they appear in the midst of text redacted under s 30 or s 35(1)(b). That would leave names floating unintelligibly in the midst of blank space.
9. Repeating what I said in McGregor largely regarding emails, as opposed to formal documents, I do not accept releasing the names of the three persons would, under s 33(1), amount to unreasonable disclosure, it appearing to be quite evident to Ms Hicks to whom the redactions relate. I do not accept that releasing this information would add "fuel to fire". Ms Hicks could, with the version of this document already released to her, indicate to an interested person who the related redactions related to.
10. On the other hand, I accept that where the names and identifying information concerning other persons are currently redacted, such disclosure concerning people who I understand to be in operational roles of a less senior nature, and not human resources professionals, disclosure would be unreasonable and the text is to remain redacted. Such people would reasonably expect not to be identified with respect to contentious issues where they are not directly involved.
11. Based on the reasoning below (see Doc 137) concerning exemption under s 30(1), where a couple of the emails contain opinions of the authors, in my view that opinion, where decided by the CFA to be exempted, is exempt under s 30(1) of the Act. Disclosure would be unreasonable because it would undermine the CFA's investigation process concerning complaints, as evidenced by Mr O'Day.

1. Document 16 is a many page long handwritten recording of an interview with Ms Hicks, presumably written by the investigator. As already released to Ms Hicks, Document 16 gives her the substance of the document. Personal information being names and initials are redacted.
2. On the issue of s 33(1) with respect to those documents, the names of the three persons should be disclosed unless those names appear with respect to material irrelevant to Ms Hicks' FOI request.
3. The name of Ms Hicks' partner should also be disclosed if it is redacted under s 33(1). Having decided McGregor, I am confident her partner consents to such release. Similar to the three names, it would be evident to Ms Hicks where her partner's name appears.
4. The only other such document is Document 146, about which the same can be said, which appears to be an inconsequential document.

1. Once again the substance of the document is released with only personal information redacted. I once again, for the reasons given above, take the view that the three names and Ms Hick's partner's name, if they appear, should be disclosed.

1. The CFA refused to release this document, claiming exemption under ss 33 and 35(1)(b).
2. As with Document 35 in McGregor, this is a formal letter (Document 96 is the letter and Document 97 is an attachment to the letter) which informs the reader who was being complained about. If it were released and further published, a person may come to understand who the complaint was about and the outcome of the complaint. In the context of a volunteer organisation and a confidential process, it would be unacceptable to permit the risk of that scenario. This is an example where fuel should not be added to the fire.
3. In my view, for the above reason, the names of persons named are exempt under s 33(1).
4. Concerning the text of the documents, while appearing very largely to be a standard form letter, in my view there is a real risk that disclosure of such correspondence would substantially impair the ability of the CFA to assure those from whom it seeks information concerning a complaint to it that the process will be kept confidential and so release of the documents would be reasonably likely to impair the ability of an agency (the CFA) to obtain similar information in the future. The whole letter is exempt under s 35(1)(b).[6]
5. I have read the documents of which Documents 96 and 97 are a sample, being Documents 98 and 99 (a letter and attachment in the same form as Document 96 and 97), Document 101 (letter and attachment), Documents 105 and 106 (letter and attachment), Documents 107 and 108 (letter and attachment) and Document 109 (letter and attachment). Documents 96 and 97 are a representative sample of the other documents.

1. This letter was released to Ms Hicks apart from personal information being redacted under section 33(1). The letter confirms the engagement of the independent preliminary investigators concerning one of the people Ms Hicks complained about
2. As with document 35 in McGregor, I take the view that the name is exempt under s 33(1).
3. If the full letter were released and further published, a person may come to understand who the complaint was about but not substance nor the outcome of the complaint. In the context of a volunteer organisation, it would be unacceptable to permit the risk of that scenario. This is another example where fuel should not be added to the fire.
4. Document 110 is a standalone document, in that it is not a sample related to other documents.

1. This is a draft of the preliminary investigation. A very heavily redacted version of the document has been released to Ms Hicks. I affirm that decision.
2. VCAT has long held that drafts are exempt from release under s 30(1) - see Penhallurick v Glen Ira CC [2012] VCAT 370 at [25]. The final version, of the Report was released to Ms Hicks, with fewer redactions
3. Had Document 137 not already been released to Ms Hicks, I would have taken the view that large portions of the draft are clearly exempt and that releasing a redacted version was not appropriate as the released version would be essentially meaningless, which in my view the released version is (i.e. Document 137 appears meaningless).
4. With Document 137 released, I affirm the CFA's decisions to redact the text under sections 30, 33 and 35(1)(b).
5. While Document 137 was presented to me as a sample document, on reflection after the hearing, I have difficulty with that approach given Document 137 is a draft and the other two reports, Documents 138 and 140 appear to be final documents, and are much more fully released to Ms Hicks.
6. Document 138 is a preliminary assessment report by the independent investigator. The report summarises Ms Hicks' complaint, distils allegations made by her against the three persons and records Ms Hicks' views as to who should be interviewed as witnesses. Ms Hicks' complaint is attached. The Report makes no conclusion as to whether her complaint should be substantiated or not.
7. The Report has been released to Ms Hicks, with personal information redacted under section 33. In affirming all of the redactions made, I take the same view as expressed above, concerning release of formal documents produced in the course of investigation.
8. Document 140 appears to be a different version of Document 138, again with redaction under section 33, about which I make the same decision, affirming the redactions.

1. This is a witness statement from one of the people Ms Hicks lodged a complaint about.
2. Once again it is appropriate that VCAT affirm the decision to exempt text in the document where a skeletal version of Document 144 has been provided to Ms Hicks, protecting the investigative process with exemptions made under s 33(1) and 35(1)(b).
3. Document 144 is a representative sample of Documents 141, 142, and 143.

1. This memorandum describes the steps in a CFA process concerning Ms Hicks, related to but not addressing the substance of her complaint. The name of one person is redacted in the version she has been provided with.
2. I affirm the redaction under s 33, once again observing that formal documents such as this are exempt in that it would be unreasonable to by way of such disclosure of an incidental documents, to identify in a formal document one of the people the subject of Ms Hicks' complaint.

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), or in section 33(1)) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.

1. In Osland v Secretary to the Department of Justice [2010] HCA 24, the High Court of Australia has said decision-makers must be satisfied to a high threshold that the public interest requires release of the document.
2. French CJ, Gummow and Bell JJ said at [12] to [14]:

... it must be accepted that the word "requires" which appears in s 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. The terminology of the sub-section does not define a rule so much as an evaluative standard requiring restraint in the exercise of the power. It is, like many common law standards, "predicated on fact-value complexes, not on mere facts", to be applied by the decision-maker.

1. This case concerns events described above concerning officers of the Stanley Brigade. Ms Hicks, as she was entitled to do, made a complaint. The CFA, as it was obliged to do, investigated the complaint and, in my view, has properly maintained confidentiality surrounding that investigation. Ms Hicks is unhappy with the result of the investigation.
2. While I accept the events in question are of great concern to Ms Hicks nothing in the facts of this case brings me close to deciding that the public interest requires access to the documents in question.

[4] See paragraph 85 of the McGregor decision.

[5] Making reference to the reasons for decision concerning Document 103 in the McGregor decision.

[6] For discussion of the law relating to s 35(1)(b), see the McGregor decision, from paragraph 22.