The applicant subsequently complained to the Commission in respect of the conduct of the municipal building surveyor. The Commission conducted an extensive and lengthy investigation into the complaint and ultimately determined that the complaint was not substantiated in that there was no breach of the Building Act 1993 or the Building Regulations 1994.

The documents in dispute in this proceeding were generated during the course of the investigation and during the consideration by the Commission of matters raised by the complaint and the investigation process (including witness statements and legal advice obtained by the Commission).

Therein lies what I consider to be a correct summary of the background of this dispute.

1. A number of documents were released to the applicant and at the time of this hearing, there were three documents which were still in dispute and which I must determine whether they should be released or not.
2. An exemption pursuant to s 35(1)(b) of the Freedom of Information Act 1982 (the Act) has been claimed for Documents 3 and 4 and an exemption pursuant to s 32 of the Act has been claimed for Document 6.

1. The relevant parts of those sections read as follows :

(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.

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 -

(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.

1. Both these sections have what is known as a public interest override which is referred to in s 50(4) of that Act, which reads as follows :

50(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), 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. The other statutory provision that is relevant to this proceeding is s 234A(1)(c) of the Building Act 1993 which reads as follows :

1. It is in the light of these statutory provisions that I must consider the matter that is before me.
2. I will consider the documents where the exemption claimed is that of 35(1)(b), ie Documents 3 and 4 together. I will then consider Document 6 for which s 32 exemption is claimed, ie the legal professional privilege exemption. I will then consider whether the public interest override applies to these documents pursuant to s 50(4) of the Act.

DOCUMENTS 3 AND 4 - MATERIAL OBTAINED IN CONFIDENCE

1. Documents 3 and 4 are correctly described by Mr Douglas in his witness statement. He there states :

Document 3 is the record of an interview conducted on 29 September 2006 between the Commission's investigator and the municipal building surveyor of the Council. The information collected through the interview process was provided to assist the Commission with its investigation of the complaint. In circumstances where the subject of an interview is charged with an offence or the matter is referred to the BPB for inquiry, that person would receive a copy of the record of interview and be provided with information to the effect that the record would be used in proceedings under the Building Act but would otherwise remain confidential. (It is noted "BPB" stands for Builders' Practitioners' Board).

Document 4 is the statement made on 9 October 2006 by an officer of Westernport Water to the investigator for the purpose of assisting the investigator with the investigation. The statement was taken and witnessed by the Commission's investigator. It was treated as having been received in confidence by the Commission as are all such witness statements taken during investigations. Confidentiality of such processes is imperative if the investigation process is to function properly.

1. The question that I must now ask is whether these documents come within s 35(1)(b).
2. The exemption applies in relation to information provided to an agency by the officers or employees of the agency; is considered to be communicated by the agency. In this particular case, when the persons from the agency receive this information it is likely that both the persons giving the information and those that are receiving it would know about the provisions in the Building Act 1993 to which I have previously referred, that is, s 234A and, as such, I am satisfied that both the persons who were responsible for the making of these documents , that is, the person who gave the interview and the person who made the statement knew that the information was being given in confidence.
3. Mr Batskos stated that it would be difficult for the respondent to obtain information in future if information such as this was not given in confidence. Mr Douglas stated in oral evidence that he believed it would be very difficult to obtain witnesses to give information without the confidentiality assurance and that the respondent had no power of compulsion to enforce people to give such information. He further said that to his knowledge no such information that had ever been given was made public.
4. I put it to Mr Batskos during submissions whether it was likely that a person who gives information in order to protect their own personal integrity would not still give information. He said this is different from the cases concerning the Medical Board because of the provision, to which I have already referred to (s 234A). He also said that there was a system in place where people knew that this was likely to be a situation where the confidentiality would be continued. He said the staff were aware of their legal obligations under s 234A of the Building Act which limited circumstances in which information gathered during work could be disclosed. He said it creates an expectation or understanding of those in the building industry about how the information is gathered. He said it was the general policy that complainants were not provided with access to investigation documents although they were informed of the outcome of the investigation. He referred to paragraph 23 of Mr Douglas' statement:

Disclosure of the information collected through the investigation process would undermine public confidence in the Commission's investigation process. Individuals provide information in confidence and investigators explain through initial discussion that the information they provide will be used for the investigation of the complaint, but otherwise kept confidential. Individuals do not expect the information to be disclosed otherwise.

1. I accept both Mr Batskos' submissions and Mr Douglas' evidence in this regard. Thus I conclude in this situation if there was an absence of confidentiality, it may be likely to deter people giving information to the respondent even if their professional reputation was in question.
2. I have considered a number of the cases which Mr Batskos referred to as to whether it is likely that release of information of this nature would stop such information being given to the respondent in the future. Mr Batskos referred me to a decision of Judge Bowman in Williams v Victoria Police VCAT 1194 at 73, where his Honour said that -

Common sense dictates that persons would be less likely to make statements to the police if they were of the view that the making of such statements was not confidential. If it became known that the making of such a statement could be disclosed to the world at large, I have little doubt but that persons would be reluctant to make such statements.

1. I agree with what his Honour said there and, in my view, the same equally applies to the Building Commission in a matter such as this as it did to the Police in Williams' case that his Honour was referring to.
2. Mr Batskos in his submissions correctly stated a number of principles as to why this information should remain confidential. At paragraph 3.18 of his submissions, Mr Batskos stated :

Regardless of that comment about commonsense, the conclusion that the exemption is made out is also supported by the following evidence which, it must be said, goes beyond mere conjecture or supposition but is based on extensive experience in investigations including anecdotal evidence in support :

(a) Disclosure of the information collected through the investigation profess would undermine public confidence in the Commission's investigation process.

(b) Individuals are less forthcoming with documentary information and more circumspect in their provision of information generally if they believe the information might be disclosed to others. This has been demonstrated in instances where individuals thought disclosure of the information was inappropriate and they and others were less forthcoming in future investigations.

(c) Due to the nature of the building industry, during the course of many investigations, from time to time the same individuals we have previously interviewed in respect to other complaints may be interviewed again. They may not always be the subject of a complaint, but simply by a relevant witness. Based on previous experience the Commission is very concerned that the disclosure of information from an investigation in the present case would adversely impact on the willingness of individuals in the building industry to be interviewed or to assist with our enquiries.

(d) Furthermore, public confidence in investigations may be diminished by the disclosure of the Commission's investigation material. This is particularly so in circumstances such as this, where allegations of breaches of the law have been investigated and found to be not substantiated. The disclosure of this information would impact on individuals and the general community.

(e) Based on experience, it is believed that sources of information would either completely dry up (as participation in investigations is voluntary) or the nature and quality of the information provided would be of a much poorer quality. Responses would become more circumspect, vague or ambiguous rather than being open and honest.

(f) Disclosure of the documents in question would merely water down how the confidentiality provision in section 234A of the Building Act is perceived.

1. I agree with the submissions of Mr Batskos and, in my view, they are correct. This means that the exemptions claimed for Documents 3 and 4 are made out, subject to consideration of s 50(4) of the Act.

1. I now turn to consideration of Document 6 for which exemption is claimed under s 32 of the Act.
2. Document 6 is correctly described by Mr Douglas in his witness statement as follows :

Document 6 is an emailed letter of advice dated 23 November 2006 provided to the Commission by its lawyers, Maddocks Lawyers. It is a detailed and lengthy advice in the context of the complaint and investigation. The advice was sought and received by the Commission as a confidential piece of legal advice. There was a solicitor/client relationship between the Commission and Maddocks (who often are requested to provide advice or other legal assistance to the Commission).

1. It is very important that government departments and citizens are able to contact their legal advisers in the knowledge that both the information which they impart to their legal advisers and the information that the legal advisers impart to them are kept in confidence, particularly where litigation is contemplated. I accept that litigation was contemplated in this particular instance. Legal professional privilege has been an important part of the common law for a considerable period of time because it has been considered it is important that people have the confidence to be able to disclose matters to their legal advisers that they may not want to disclose to others. This is both a common law and fundamental human right. I refer to The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 192 ALR 561.
2. Therefore, I come to the conclusion that the exemption in s 32 of the Act in this particular instance has been made out. In coming to that conclusion, I have read the document very carefully and, in my view, it is clearly made with the intention of legal proceedings coming to pass and the dominant purpose of that document was for obtaining legal advice for contemplated litigation and that the information is given on a confidential basis.
3. Under those circumstances, I find that Document 6 is exempt pursuant to s 32 of the Act.
4. I note that the applicant stated in her submission that she thought it was unfair that this advice remain confidential because she said the Water Board, the Council and the Builders Registration Board apparently all use the same solicitor. All those organisations, she said were just "shutting the door in her face". That may be, but there is nothing to stop the applicant obtaining her own legal advice. It is important that documents such as this remain confidential between the parties and their lawyers, as I have already stated.

PUBLIC INTEREST OVERRIDE S 50(4)

1. The next matter that I must consider, having found that the exemption is made out pursuant to s 32 in relation to Document 6 and s 35 in relation to Documents 3 and 4, is whether the public interest override applies to those documents.
2. The applicant said that the public had a real interest in knowing what is going on in councils, the Water Authority and the Commission. They should be transparent and that it is not good enough that doors be shut in the public's face. She said that without seeing documents, such as Document 3, which is a record of interview, she is unable to determine for herself whether the findings of the Commission were correct. She also said she is unable to determine whether the person who was interviewed, whoever that person might be, was in fact telling the truth. All this may be correct but, in my view, they are not matters of public interest. They are interests of a private nature. They do not demonstrate any public interest at all. This is one of the matters that was considered by the Court of Appeal in Secretary Department of Justice v Osland [2007] VSCA at [96].
3. In this matter there is no ongoing public debate or public disquiet which would be enhanced by the release of the documents which are sought. I refer to Re Simons v Department of Justice [2006] VCAT 2053. There is no public interest militating in favour of disclosure that is so strong that would justify the departure of the exemption claimed as to require or necessitate disclosure. Further, I refer back to the fact that certainly in relation to Documents 3 and 4 if the public interest override was to operate in relation to those documents, in my view, such an override would cause the difficulty to which Mr Douglas refers. That is, people would not feel free to come forward to give information to the respondent. In my view, this is not a matter to which the public have interest. I refer to the decision of Bongiorno AJA who was sitting in the Court of Appeal in Osland's case to which I have already referred. His Honour said at paragraph 129 :

But even if publicity suggests that the matter publicised is one in which the public is interested it does not, per se, demonstrate public interest in the sense that term is used in s 50(4) of the Act.

1. The applicant in her arguments said that if these documents were released, they would facilitate public accountability of a government authority. However, as Mr Batskos has correctly stated that the Court of Appeal in Osland made it clear there is no role in s 50(4) for abstract policy considerations, such as the desirability of greater transparency in decision making. Further, there is no ongoing public debate.
2. The applicant has further stated that investigations by the Building Practitioners Board were compromised and further concerns were raised about the Building Practitioners Board. Mr Batskos correctly said that the respondent in this case is not the Building Practitioners Board but the Commission and the Commission has investigated and the respondent has nothing to do with what has occurred before the Board. I accept what Mr Batskos has said that -

There has been no demonstration of illegality, impropriety, sharp practice or wrongdoing in connection with the Commission in its dealings with the matters the subject of the documents. Further, the release of the documents would not show any such illegality, impropriety, sharp practice or wrongdoing. As such, there is no reason to 'clear the air'.

1. I also note that Mr Batskos has correctly summarised from the Court of Appeal decision in Osland, where he said :

... it is clear that this aspect of the public interest override - namely that the public interest 'requires' disclosure - will only be satisfied in exceptional cases :

(a) It is a 'stringent' test and the case for release 'must, effect, be irresistible'.

(b) The word 'required' in the context of s 50(4) of the FOI Act connotes 'obligation', 'necessity' or 'compulsion'.

(c) There is notion of the imperative involved. Having regard to the fact that consideration of s 50(4) only arises after a determination has been made that a document is exempt, it is not surprising that the legislature should set the criterion for the operation of the section by reference to a concept of necessity.

(d) 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'.

(e) The Tribunal must be of the opinion that unless access was granted the public interest would suffer or be diminished in some way. Short of such a state of satisfaction the public interest would not require that there be access to the document.

1. In this particular instance, in my view, there is no requirement, obligation or necessity for this document to be released from a public point of view. Further, in my view, non-release of this document would not necessarily prevent the document being discovered in a civil court proceeding which the applicant may wish to undertake. I am not able at this stage to say whether it could or could not be discovered and inspected. That would be a matter for whoever conducted the civil court proceeding. I am not convinced, in any way, that if access is not granted to this document, the public interest would suffer or be diminished. Therefore, under these circumstances, I find that the public interest override in s 50(4) of the Act does not apply and therefore the documents will remain exempt, and the decision of the respondent will be affirmed.

1. Before I leave this matter, I wish to indicate that I have some sympathy for the applicant because clearly she has been put to a lot of expense, discomfort and a waste of time by the fact that her house has been placed over a sewer pipe. It is all most unfortunate and I can understand that the applicant is very angry about such a matter. However, that does not mean that the recognised building surveyor, respondent, the council or the Water Authority are necessarily to blame. I do not know. That may be a matter for another tribunal or court to decide on another day. But, I think it is unfortunate that this problem has occurred and I can well understand that the applicant is upset and concerned about the matter and has indeed wanted to find out all the information in relation to it. However, I believe that releasing these documents would neither be in the public interest nor as a matter of law be permissible to be released, bearing in mind the findings I have made.
2. Under those circumstances I am going to make the order which I have indicated.