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

1. This proceeding concerns a dispute within the Stanley Fire Brigade of the Country Fire Authority surrounding the requested turnout of the Stanley Tanker in January 2013. On receiving the callout, the Brigade Captain declined to dispatch the tanker as requested, offering another vehicle in its place.
2. Mr Ian (Fred) McGregor, a CFA volunteer for nearly 40 years, took the view that the Captain was not authorised to refuse the request.
3. Others took different views. There were meetings and conversations, culminating in Mr McGregor complaining to the CFA, alleging the Brigade Captain, a CFA operations officer and a CFA operations manager had bullied and harassed him (the Complaint).
4. In March 2014, an independent investigation by the Lkagroup (Lka), which the CFA had engaged as part of its response to the Complaint, resulted in preliminary findings that none of the allegations against the three men were substantiated.
5. In April 2014, Mr McGregor, as he was invited to do so, responded, putting further information and views to the CFA.
6. In August 2014, the CFA advised Mr McGregor of the final outcome; none of his allegations were found substantiated.
7. In April 2015, the CFA's Chief Officer wrote to Mr McGregor describing the Stanley Captain's decision concerning the tanker on 5 January 2013 as appropriate in the circumstances. The Chief Officer was aware of the outcome of the complaint and considered the matter closed.
8. In July 2015, under the Freedom of Information Act 1982, Mr McGregor requested from the Country Fire Authority documents related to the Complaint and the investigation.
9. By October 2015, the CFA had located 107 documents, consisting of 243 pages relevant to Mr McGregor's FOI request. The CFA provided some documents in full, some documents in part and refused access to some documents.
10. Mr McGregor sought review of the CFA's decision by the Freedom of Information Commissioner. In May 2016, the Commissioner decided to disclose further documents to Mr McGregor, but again decided to disclose some in full, some in part and to refuse access to some.
11. The CFA applied to VCAT for review of that decision. It objected to further documentation being disclosed. On 6 March 2016, this came before me for hearing. Mr McGregor and his partner, Ms Hicks put Mr McGregor's case. Ms Walsh of counsel represented the CFA. I heard evidence from Mr McGregor, Ms Hicks and Mr Anthony O'Day, the CFA's Acting Deputy Chief Officer. I heard submissions and reserved my decision.
12. As commonly occurs in FOI cases, by the time the matter came before VCAT for hearing the CFA had refined its position concerning the text it submitted should remain redacted. It provided me with copies of the documents in question showing, in green highlight, its current position. My decision in this proceeding is based on that position as shown in those documents. Where I use the words, "as currently redacted" I am referring to the documents with the redactions indicated in the green highlight. Therefore my decision is based on the assumption that the CFA has or will provide Mr McGregor with all the documents to the extent indicated in the highlighted documents provided to me.

1. Under s 13 of the Act, Mr McGregor has the right to obtain documents, unless a document is wholly or in part an exempt document as defined by the Act.
2. Section 3 says the object of the Act is to extend as far as possible the right of the community to access information in the possession of the Government of Victoria and other bodies constituted under the law of Victoria for public purposes and that any discretions conferred by the Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
3. Section 16 requires agencies to administer the Act with a view to making the maximum amount of information promptly and inexpensively available to the public.
4. The CFA bears the onus of satisfying VCAT the redacted text is exempt from disclosure under the Act. It claims exemption under sections 30(1), 33(1) and 35(1).

Section 30(1) - internal working documents exemption

1. A document is exempt under s 30(1) if, relevant to this proceeding:
   • (a) Disclosure of the document would disclose matter in the nature of:
     1. opinion, advice or recommendation prepared by an officer; or
     2. consultation or deliberation that has taken place between officers; and
   • (b) The opinion, advice, recommendation, consultation or deliberation was prepared or took place in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of Government; and
   • (c) Disclosure would be contrary to the public interest.
2. In Friends of Mallacoota Inc v Department of Planning and Community Development [2011] VCAT 1889, Hampel J summarised the considerations that might arise when deciding whether disclosure would be contrary to the public interest:[1]
   • (a) The nature of the information and the nature of the document. The more sensitive or contentious the issues involved in the communication, the more likely it is that the communication should not be disclosed;
   • (b) Draft internal working documents or preliminary advices and opinions are more generally than not inappropriate for disclosure, particularly when the final version of the document has been made public;
   • (c) It is contrary to the public interest to disclose documents reflecting possibilities considered but not eventually adopted, as such 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;
   • (d) Decision-makers should be judged on the final decision and their reasons for it, not on what might have been considered or recommended by others in preliminary or draft internal working documents;
   • (e) 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, investigative or other process;
   • (f) Disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making process; and
   • (g) Public interest concerns the interest of the public as distinct from the interest of individuals.

1. A document is exempt under s 33(1) if two tests are met:
   1. The document in question must contain information relating to the personal affairs of a person (including a deceased person); and
   2. Disclosure of that information must be unreasonable.
2. Under s 33(9), information relating to the personal affairs of any person includes information:
   1. That identifies any person or discloses their address or location; or
   2. From which any person's identity, address or location can reasonably be determined.
3. In the decision of the Supreme Court of Victoria Court of Appeal in Victoria Police v Marke [2008] VSCA 218, Weinberg JA and Pagone AJA approached the question as to whether release would entail unreasonable disclosure as requiring a balancing exercise. See [96] - [98] per Pagone AJA where His Honour said it was necessary in this context to consider:

Any matter that is relevant to the statutory condition, which bears logically upon a consideration of it, and which may have a probative effect upon the decision-maker.

Section 35(1) - documents in confidence exemption

1. Section 35 concerns the material obtained in confidence exemption.

35 Documents containing material obtained in confidence

(1) A document is an exempt document if its disclosure under this Act would divulge any information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister, and -

(a) the information would be exempt matter if it were generated by an agency or a Minister; or

(b) the disclosure of the information under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.

(a) acquired by an agency or a Minister from a business, commercial or financial undertaking; and

(b) that relates to trade secrets or other matters of a business, commercial or financial nature.

1. In Casey CC v Environment Protection Authority (General) [2010] VCAT 453 Judge Macnamara[2] discussed the relevant test:

In Re Pepperell and Ministry of Housing & Construction (1989) 3 VAR 191 Mr Galvin considered the question in what circumstances information would be regarded for the purposes of the section as "having been communicated in confidence". He referred to an unreported decision of Judge Hassett given in the County Court in the matter of Deasey v Geschke and said:

"It would appear to be an arguable conclusion from His Honour's words that, in his view, in determining whether information was communicated in confidence, it is sufficient to have regard either to the intention of the author or the attitude of the recipient.

An actual understanding as to confidentiality on the part of the recipient would not appear to be essential."

"Where confidentially is apparent from the nature of the information, it would appear to be unnecessary to have regard to how the information was in fact received."

It would seem therefore that no formal confidentiality agreement is required to establish that information was communicated in confidence nor is it necessary to establish a "meeting of the minds". Conversely the mere fact that a letter is headed "private and confidential" is not sufficient in itself to establish that that communication was made in confidence, Re Barnes and Commissioner for Corporate Affairs (1985) 1 VAR 16 at 18.[3]

As to the meaning of the word "impair" King J**,** as a Member of the Full Court in Ryder v Booth [1985] VicRp 86; [1985] VR 869 (at 885) adopted a definition from the Shorter Oxford Dictionary in the following terms: "to make worse, less valuable, or weaker; to lessen injuriously; to damage, injure.". As Gray J (at 880) noted in the same case: "The degree of impairment which must be shown to be a likely result is, in my opinion, a degree of impairment going beyond a trifling or minimal impairment." Young CJ said (at 872) it was not sufficient to prove the relevant impairment that there were feelings of resentment among those whose information was given in confidence:

at having the confidence arbitrarily destroyed by the operation of the legislation, but it is another thing altogether to say that they or others will not provide such information in future. It is not sufficient to show that some people may be inhibited from reporting so frankly if they know that their report may be disclosed. More is required to satisfy the onus case upon the agency by s.55(2) of the Act.

1. VCAT's role in this proceeding is to make what it considers to be the correct and preferable decision based on the evidence before it, which is here more comprehensive than that before the FOI Commissioner, on the basis of the current law, which remains unchanged from when the Commissioner made his decision.

1. Mr O'Day has been employed by the CFO 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.
2. I quote his witness statement:

The CFA always conducts such investigations [where bullying and/or harassment are alleged] 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 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 the 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.

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 undermine potentially 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.

1. Giving oral evidence, Mr O'Day spoke of the CFA Policy concerning "Prevention of Discrimination, Harassment, Bullying or Violence at CFA", which sets out that complaints will be dealt with fairly and confidentially. Nothing in those protocols suggests information given in confidence by those approached during investigation will be given to the complainant, the importance of people volunteering to give information to investigators, that volunteers cannot be compelled and, where in a small community issues in dispute may well be known, the importance of the CFA not "adding fuel to the fire".
2. Mr O'Day noted that the complaint from Mr McGregor signed (Document 15) makes clear that it is a confidential process. Formal documents produced during the investigation also made that confidentiality clear.

1. Ms Hicks substantially put Mr McGregor's case and evidence.
2. As well as being Mr McGregor's partner, Ms Hicks has volunteered with the CFA for about 9 ½ years. Her father was one of the founding members of the Stanley Brigade. In a professional life she is an Occupational Health & Safety consultant and has been since 1993. She spoke of having experience as a consultant running workplace investigations, including relating to bullying and harassment, without relying on confidentiality to obtain evidence.
3. She put a view contrary to that of Acting Deputy Chief Officer. In her view the CFA does not support complainants in the investigation process, which itself in her view lacks transparency and useful feedback to the complainant. This risks recrimination and rumourmongering, particularly in small communities, such as Stanley with a population of about 600.[4]
4. She spoke of the negative impact for her and her partner and family of documents not being fully released.
5. She put the view that in such investigations people will volunteer to give information because of that person's preparedness to assist in finalising a matter in a fair and just manner, not requiring available secrecy. She spoke of an, unnamed, separate complaint to the CFA where she was advised information she wished to provide would be shared with a third party, and she may not be advised of that.
6. She cited a CFA publication, "Freedom of Information Administrative Guidelines, January 2010, page 15 which says "anything you write, record, publish etc as part or as a result of your role in CFA is FOI-able".
7. In Ms Hick's view, the trust and respect between members of the CFA brigade is vital to a brigade's ability to perform its functions safely and effectively and can only be achieved with openness and transparency.
8. She spoke eloquently of the distress this dispute has caused Mr McGregor, her, her family and members of the community.

1. In my view, the exempt documents, so far their further disclosure would disclose to Mr McGregor and any person to whom he wished to publish them to opinion and deliberation of CFA officers concerning Mr McGregor's complaint and the investigation, is exempt under s 30(1). Release would be contrary to the public interest.
2. 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

1. VCAT has made many similar decisions includes 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.
2. Further, the exempt documents, so far as their further disclosure would disclose information provided by persons to the investigators in confidence, accepting Mr O'Day's evidence that the information was given 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. This impairment would likely go beyond potential witnesses being less forthcoming than they otherwise would be. I accept the evidence that it could well amount to refusal to provide evidence.
3. 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. His 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.
4. 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.
5. Concerning identifying information appearing in the emails, I take a similar view to that of the FOI Commissioner that disclosure of names of those Mr McGregor complains about does not involve the unreasonable disclosure of personal information relating to the affairs of any person. That said, the names of non-executive CFA officers involved in the correspondence are exempt from disclosure.
6. I take a different view concerning formal correspondence related to the investigation. As I discussed below, the names of those complained about appearing in those documents should not be disclosed. With some exceptions, I do not address such text as I set out decisions concerning each document.

1. It is convenient to state here that 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 Mr McGregor 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 advised that it had become apparent that various text, predominantly if not wholly in emails, was irrelevant to Mr McGregor's FOI request. Usually this was where the email was dealing with making administrative arrangements concerning both the events of concern to Mr McGregor and events which had nothing to do with that.
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. With some exceptions, I do not address such text as I set out decisions concerning each document.

1. Turning to the documents, I address them in chronological order, rather than the document number order used in this proceeding.

1. The document as currently redacted is to be released with the names of the three persons unredacted.
2. 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 Mr McGregor to whom the redactions relate. I do not accept that releasing this information would add "fuel to fire". Mr McGregor could, with the version of this document already released to him, indicate to an interested person who the related redactions related to.
3. 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.
4. I apply this reasoning concerning other emails in dispute as discussed below.

Email of 16 January 2013 - Document 89 - 33(1), 35(1)(b)

1. The document as currently redacted is to be released with the names of the three persons and Mr McGregor's partner unredacted, except where such names appear in text which is otherwise redacted under s 33 and/or 35(1)(b).
2. To have those names appear in the middle of white space where text is redacted under s 33 and/or 35(1)(b), would be meaningless and possibly misleading.
3. All text other than names currently redacted under s 33(1) is to remain redacted. As it happens, there is some personal sensitive material concerning a person which appears in the email (exempt under s 33(1)), as well as material which I accept was received in confidence and is exempt under s 35(1)(b).
4. If the information received in confidence was disclosed, it would impair the CFA's ability to obtain similar information from others in the future.

1. The document as currently redacted is to be released with the names of the three persons and Mr McGregor's partner unredacted.
2. Also, the words proceeding "from CFA from", toward the end of the page are to be released. The words do not appear to relate to disclosure information relating to personal affairs.
3. That decided, I note this email and many of the emails addressed below are the flotsam and jetsam of this request, and very probably of no interest to Mr McGregor.

1. Decision as per Document 90, noting the Document 91 forms part of a latter email trail and includes at least part of Document 90.

Email of 14 February 2013 - Document 63 - 30(1), 33(1)

1. The document as currently redacted is to be released with the names of the three persons and Mr McGregor's partner unredacted, except where such names appear in text which is otherwise redacted under s 30(1) and/33(1).
2. The redaction at line 3 is affirmed, being of a personal nature concerning the author, irrelevant to the issues concerning Mr McGregor.
3. I affirm the decision to redact all text currently redacted under s 30(1).
4. Brigade officers should be free to communicate, in the context of the complaint, as they seek to deal with the complaint, in the nature of opinion and deliberation, concerning sensitive issues without fear of release of that communication under the FOI Act, unless it is evident that such communication is in some way improper.

Email of 19 February 2013 - Document 92 - 30(1), 33(1), 35(1)(b)

1. The document as currently redacted is to be released with the names of the three persons and Mr McGregor's partner unredacted, except where such names appear in text which is otherwise redacted under s 30(1) and/or 35(1)(b).
2. I affirm the decision to redact all text are currently redacted under s 30(1) and/or s 35 for the reasons already given.

Memorandum dated 5 March 2013 - Document 68 - 30(1), 33(1)

1. The CFA's decisions to redact text under s 33(1) in this formal document affirmed. In my view, accepting the evidence of the risk of adding fuel to the fire, it would be unreasonable to further disclose the names in question.
2. I affirm the decision to redact the sentence currently redacted under s 30(1) - point 6 of the memorandum and the redacted material on the second page and the opinion in the final sentence, repeating my above reasoning.

Email dated 26 April 2013 - Document 81 - 30(1), 33(1)

1. The document as currently redacted is to be released with the names of the three persons unredacted
2. I affirm the decision to redact the two sentences currently redacted under s 30(1), for the reasons given above.

Draft of Document 22 being draft letter to Mr McGregor dated 8 May 2013 - Document 84 - 30(1)

1. VCAT has long held and here once again holds that draft letters are exempt from release under s 30(1) - see Penhallurick v Glen Ira CC [2012] VCAT 370 at [25]. The final version, Document 22, was released to Mr McGregor.

Letter dated 13 November 2013 from the CFA engaging the Lka to do the investigation - Document 35 - 33(1)

1. In my view, the names of the three persons are exempt under s 33(1).
2. This is a formal 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 but not 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.

Cover letter dated 8 December 2013 from Lka to the CFA concerning preliminary assessment of the complaint - Document 78 - 33(1)

1. For the reason concerning Document 35, the names of the persons against whom Mr McGregor complained are exempt under s 33(1).

Body of the preliminary investigation to that date - Document 79 - 33(1)

1. This preliminary assessment set out the context of the investigation, summarised Mr McGregor's allegations following an interview with him and noted potential witnesses for interview.
2. For the reason concerning Document 35, the names of the three persons are exempt under s 33(1).
3. Also, the name of the other person which appears in paragraph (a) concerning Allegation 1 is exempt. It relates to an allegation against one of the persons.
4. Under the heading "potential witnesses" the names of all persons, apart from Mr McGregor's partner, are exempt from release under s 33(1). It would be unreasonable to disclose this, in some cases, only potential involvement in the events, in the context of allegations which were not found substantiated. Disclosing this information also supports the confidentiality of the investigation process.

Email of 3 February 2014 - Document 103 - 25, 33(1)

1. Redacted text in this inconsequential email mainly consists of irrelevant information, which is exempt.
2. 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.
3. Therefore, Document 103 is not to be further released.

Email of 3 February 2014 - Document 104 - 25, 33(1)

1. For the same reasons as given for Document 103, Document 104 being related to Document 103 as part of an email chain, Document 104 is not to be further released.

1. The document as currently redacted is to be released with the names of the three persons and Mr McGregor's partner unredacted, noting the irrelevant material is to remain redacted.

Email of 3 February 2014 - Document 105 - 25, 33(1)

1. For the same reasons as given for Document 103, Document 105 is not to be further released.

Letters of 4 and 5 February 2014 to persons concerning Mr McGregor's complaint - Documents 31, 32 and 33 - 33(1)

1. These are three formal letters which informs the reader of the identity of a persons being complained about. If the names were disclosed and further published, persons may come to understand who the complaint was about but not the outcome of the complaint. In the context of a volunteer organisation, it would be unacceptable to permit the risk of that scenario.
2. Concerning the attachment to Document 33, page 3 of Document 33, the name of the other person which appears in paragraph (a) concerning Allegation 1 is exempt. It relates to allegation against one of the persons.

Emails dated 7 February 2014 - Documents 43 and 44 - 33(1)

1. The documents (two parts of an email chain) as currently redacted is to be released with the names of the three persons unredacted, with their mobile phone numbers to remain redacted.

Statements - Documents 57, 58 and 59 - 33(1), 35(1)(b)

1. The statement made by persons in the course of the investigation are as the CFA submits, partially exempt under s 33(1) and s 35(1)(b) for the reasons given above.

Email dated 19 February 2014 - Document 42 - 33(1)

1. The document as currently redacted is to be released with the names of the three persons unredacted.

Email dated 24 February 2014 - Document 102 - 25, 33(1)

1. With the redactions in this document being of irrelevant material, the decision is affirmed.

1. This statement made by a person in the course of the investigation are as the CFA submits, partially exempt under s 33(1) and s 35(1)(b) for the reasons given above.

Draft of Lka Investigation report - Document 77 - 30(1)

1. VCAT long held and here once again holds that drafts are exempt from release under s 30(1).

Letter dated 12 March 2014 from Lka to CFA - Documents 76 and 53 (one a duplicate) - 33(1)

1. This covering letter to the final report names of three persons. Consistent with above decisions, the names of those three persons in this formal document are exempt from release under s 33(1).

The "INVESTIGATION REPORT Strictly Private & Confidential" from Lka - Documents 75 (the cover page which was fully released) and 54 (the body of the report which was partially released) - 33(1), 35(1)(b)

1. CFA has only provided Mr McGregor with a heavily redacted version of the body of the report. The report redacts the names of all concerned except Mr McGregor as well as summaries of statements of witnesses.
2. In my view in this formal document, once again the names as redacted are exempt under s 33(1) and the summaries of confidential witness statements are exempt under s 35(1)(b). I affirm the decision that the document is exempt from release to the extent that current green highlighting shows.
3. I accept Acting Deputy Chief Officer O'Day's evidence that release of such a report, beyond what has been released, would be unreasonable concerning personal affairs in a small community, I accept that releasing witness statements about events long past, and within the Brigade which supports the community, would impair the ability of the CFA to obtain information on a confidential basis from witnesses in further investigations, speaking of further investigations, wherever they may occur, entirely unrelated to this matter.
4. It follows that I reject Mr McGregor's submissions that transparency requires further release.

Email dated 17 March 2014 - Document 101 - 25, 33(1)

1. For the same reasons as given for Document 103, Document 101 is not to be further released.

Email dated 24 March 2014 - Document 100 - 25, 33(1)

1. For the same reasons as given for Document 103, Document 100 is not to be further released.

Email dated 24 March 2014 - Document 106 - 25, 33(1)

1. For the same reasons as given for Document 103, Document 106 is not to be further released.

1. This statement made by a person in the course of the investigation are as the CFA submits, partially exempt under s 33(1) and s 35(1)(b) for the reasons given above.

Email dated 31 March 2014 - Document 107 - 25, 30(1), 33(1)

1. For the same reasons as given for Document 103, Document 107 is not to be further released.

Letters dated 31 March 2014 from the CFA to two of the three persons - Documents 28 and 29 - 33(1)

1. With the Investigation Report received from Lka, the CFA followed its process, asking those involved for any further information before it decided its response to Mr McGregor's complaint.
2. These letters advise those persons of progress to date and ask whether those persons sought to make any further comment.
3. As with Document 35, the names of the persons against whom Mr McGregor complained are exempt under s 33(1), as is the name of another person on page 3 of Document 28.

1. The document as currently redacted is to be released with the names of the three persons unredacted. The references to positions, not names, in paragraphs 2, 3 and 5, are also to be released. While Mr McGregor may then be able to deduce who is being spoken of, it is highly likely that he can do so in any event and discussion of positions not names in my view is not sufficiently identifying to justify exemption under s 33(1).

Emails dated 23 September 2014 - Documents 93 and 94

1. I accept the CFA's submission/evidence from the bar table that the redacted text in these inconsequential emails is irrelevant.

1. Once again, I accept the redacted text is irrelevant. However, if on review, the CFA reaches the conclusion that in fact the person referred to by surname (not the CFA officers corresponding in the email) is in fact relevant, that name is to be released.

1. This later email includes Document 96 as part of an email chain. Concerning Document 97, I repeat my decision concerning Document 96.

1. I repeat my decision concerning Document 96, this document being a very similar inconsequential nature. This is also part of the above email chain.

1. I repeat my decision concerning Document 96, this document being a very similar inconsequential nature.

1. One irrelevant word appears in the body of this email; not to be released.

1. This short draft deliberative email, which does not address the substance of Mr McGregor's complaint, is exempt under s 30(1). Once again, officers should be able to make brief exchanges without having to contemplate release under FOI.

1. The approximately 15 words redacted are irrelevant. The names of the three persons and/or Mr McGregor's partner do not occur.

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) 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 an event on one day in January 2013 concerning officers of the Stanley Brigade. Mr McGregor, as he 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. Mr McGregor is unhappy with the result of the investigation.
2. While I accept the events in question have had significant negative impact on Mr McGregor, Mr Hicks and others in the Stanley community, which is of itself most regrettable, nothing in the facts of this case brings me close to deciding that the public interest requires access to the documents in question.

[4] Concerning the population of Stanley, Stanley.vic.au puts the population at 690. I suspect Mr O'Day's figure of 300 comes from the 2006 census which is the first result on a Google search concerning Stanley's population. However, all of these numbers constitute a small community.