For Respondent: Ms R Ellyard of counsel instructed by Victorian Government Solicitor

1. For a number of years prior to 2006, senior management in Victoria Police, received regular feedback about poor relations between the majority of personnel within Stawell Police Station and other units in the Stawell police complex. There were allegations of inappropriate behaviour in the workplace made by a number of serving and former members.
2. There were allegations and counter-allegations of bullying against a number of senior members serving in the complex. There were factions. One faction blamed the other and vice versa. Indeed, Mr Davis, the applicant in this proceeding, was both a complainant and a respondent to complaints.
3. Following lengthy but unsuccessful dispute resolution procedures, a Health and Wellbeing Assessment was commissioned and ultimately carried out by the now Superintendent Tony de Ridder. The purpose of that Assessment was to report on the health and wellbeing at Stawell, rather than to investigate and resolve particular complaints. His report was published. He made a number of recommendations.
4. I observe here that Mr Davis in his evidence to the Tribunal painted a picture that was slightly less grim than the foregoing narrative would suggest. Nevertheless, he has in recent years been absent on stress-related WorkCover for extended periods.
5. Amongst Superintendent de Ridder's recommendations was a proposal that Mr Davis, along with two other sergeants, be relocated to alternate work locations as a matter of urgency and that they not return to work at Stawell Police Station. It is fair to say that Mr Davis strongly disagrees with that recommendation.
6. There followed a directed transfer of Mr Davis under Regulation 21 of the Police Regulations 2003 from Stawell Police Station to Geelong. Mr Davis applied to the Police Appeals Board for review of that transfer. That application was heard together with the application of two other sergeants, also the subject of directed transfers, on 13 February 2008. They were represented at that hearing. The Board set aside the directed transfer to Geelong and recommended that -
   • the three applicants should not return to Stawell Police Station
   • a mediation process be established between regional management and the applicants with a view to identifying possible positions for relocation of the members, such positions being commensurate with their training and experience and medical factors as identified by their medical practitioners
   • as part of any return to work program the three applicants be required to participate in workplace conflict resolution training.

1. Against that background, Mr Davis has made two applications under the Freedom of Information Act 1982 (the Act), for access to documents held by Victoria Police.
2. By letter dated 12 May 2007, he requested release of various documents relating to his directed transfer to Geelong. The request was divided into information in 10 categories. He made a second request on 5 October 2007, referring to five files in particular, for all documents relating to himself, held by the Equity and Conflict Resolution Unit.
3. His requests were processed. In relation to his first request, 524 pages of material were identified, comprising 219 documents. Access was denied in full to 218 of the documents, the last was released in full.
4. For the second request, 1007 pages were identified. Some pages were released in full, some in part, other denied in full.
5. Mr Davis applied to this Tribunal for review of the two decisions denying him access.
6. The volume of documents to which access was sought was reduced following discussion between the parties.
7. The documents in dispute in the first application fell into the following five classes -

Class 1 - reports and documents produced by the Respondent in relation to the investigation of bullying complaints at Stawell Police Station (the investigation)

Class 4 - correspondence in relation to the investigation

1. Documents were selected for decision on whether they were exempt from release or not, from the five classes of documents Mr Davis continued to be interested in. In addition, there were a number of documents, the subject of the second request, selected for decision. During the hearing, the documents selected for determination changed slightly. For example, one document selected (a mobile phone number), Mr Davis indicated he no longer pursued. Another document, a report prepared by an external party turned out to be one which Mr Davis already had the parts which referred to him, so he chose not to pursue it. An earlier Health and Wellbeing Assessment of the Stawell Police Station conducted by Andrew Carnegie, was chosen to replace it.
2. Thus, there are 18 documents before me for decision.

1. The hearing proceeded before me on 23 and 24 June 2008. Mr Davis represented himself. He had prepared a statement, gave evidence, was cross-examined, and made submissions.
2. Ms Ellyard, counsel for Victoria Police, called two witnesses. Superintendent John Hendrickson is the Superintendent in Charge of Region 2 (West) Division 4 (Wimmera) and responsible for all aspects of policing in the Division. He had prepared two statements. He gave evidence and was cross-examined. A small portion of his evidence was given in the absence of Mr Davis. It was evidence about claims of "retribution" by Mr Davis which, if disclosed to him, may have disclosed the contents of the documents claimed to be exempt from release.
3. Counsel also called Superintendent Tony de Ridder the author of the April 2006 Health and Wellbeing Assessment report. He had prepared a statement, gave evidence and was cross-examined. Ms Ellyard made submissions.

1. Victoria Police claims that all the documents are exempt from release under s 30(1), s 33 and s 35 of the Act.
2. I will consider each document in turn in the classes set out earlier in these reasons followed by the six documents in the second application.

1. These documents comprise reports and documents produced by Victoria Police in relation to the investigation of bullying complaints at Stawell Police Station.

1. This document is dated 20 May 2006 and is titled "Evidence report to support the recommendations made in the report on the health and wellbeing of Stawell Police Station". It was prepared by Superintendent de Ridder and addressed to Superintendent Hendrickson. It is marked "restricted" and "strictly confidential".
2. It will be recalled that Superintendent de Ridder had prepared a Health and Wellbeing Assessment report which was made public. Superintendent Hendrickson gave evidence that at his request Superintendent de Ridder provided him with this document in confidence. It contains extensive details of the evidence relied on by Superintendent de Ridder in making the recommendations in the report. He says that it was crucial that that information was provided to him because without it, he would have been unable to make properly informed decisions about how best to resolve the crisis at Stawell. I accepted that evidence.

3. Superintendent de Ridder's evidence about document 1 is as follows :

Document 1 is a report based on the aggregated views expressed by a great number of people who participated in the Assessment. It was created only for the purposes of reporting to the Divisional Superintendent some of the details upon which recommendations were made in order to ensure fairness in terms of these recommendations and demonstrate to him that there was a substantial reason for each of them. It contains information that would clearly identify those who participated and this would then breach the confidentiality and trust that was reinforced to these members at the outset of the Assessment and which formed the basis on which they participated. It also contains very detailed analysis of the evidence given by participants and my opinions of that evidence.

I prepared Document 1 on the basis that it was for the eyes of Superintendent Hendrickson only. I was very frank in the details included in this document because I believed that such frankness was necessary to ensure that there was a certainty and justifiability in terms of the recommendations that had been made. I could not have and would not have been so frank if the document was a document for broader distribution. The nature of the issues contained in the document could only be canvassed in strict confidence and this is the reason for the document being classified accordingly.

1. I have inspected this "evidence" report. It refers to the fact the report itself is to be made public and to the necessity of protecting sources of specific information and "levels of details" about certain events. It explains that for that reason, details about incidents that occurred, which resulted in the problems at Stawell, and the specific identity of individuals, were not included in the public report. It explains that the purpose of this "evidence" report is to provide the delegate with an "in confidence" description of the evidence that resulted in the Superintendent's conclusions, in order to support the delegate in their decision making in acting upon the recommendations.
2. The report contains detailed explanations for each of the recommendations made. Much of the explanations contain personal information about a whole raft of persons involved at Stawell.

Section 30(1) Exemption - Internal Working Documents

1. Victoria Police claim this evidence report is exempt from release under s 30(1) of the Act. This exemption concerns internal working documents. The relevant exemption is as follows :

(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act -

(a) would disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers, or an officer and a Minister, in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government; and

1. It will be seen that establishment of this exemption requires proof of two things. First, that the document in question falls within sub-paragraph (a) which is generally summarised as describing 'internal working documents'. If the document satisfies that description, the second consideration is whether its release would be contrary to the public interest. Proof that a document is an internal working document in itself does not make out the exemption, it must be proven additionally that release would be contrary to the public interest.
2. From my inspection of the document and from the evidence of both superintendents, which I accept, it is abundantly clear that the evidence report comprises opinion, advice and recommendation prepared by Superintendent de Ridder at Superintendent Hendrickson's request for the purpose of the deliberative processes involved in the functions of Victoria Police. Thus, I am satisfied that the requirements under s 30(1)(a) are met.
3. Would release be contrary to the public interest?
4. I agree with Ms Ellyard's submissions that I must carry out a balancing exercise to determine whether disclosure would be contrary to the public interest. Counsel submitted that the following considerations were pertinent to carrying out that balancing exercise :
   • The competing considerations are the public interest in disclosure against the public interest in protecting the deliberative processes of government agencies: Ryder v Booth [1985] VicRp 86; [1985] VR 869.
   • The higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely the communication should not be disclosed: Howard v Treasurer of the Commonwealth [1985] AATA 100; (1985) 3 AAR 169.
   • The factors to be taken into account in performing the balancing exercise include, relevantly :
     • (a) the degree of sensitivity of the issues involved for consideration;
     • (b) whether disclosure is likely to inhibit frankness and candour in the making of communications;
     • (c) whether disclosure will lead to confusion or unnecessary debate
     • (d) the likelihood that disclosure will inhibit the independence of officers or the making of proper and detailed submissions
     • (e) the significance of the document in itself; and
     • (f) mischief being cased by possible misinterpretation of the contents of the document.

Hulls v Victorian Casino and Gaming Authority (1998) 12 VAR 483.

• It is in the interests of good administration of Victoria Police that senior officers are able, in a management context, to make direct comment on the character and conduct of individual officers without being inhibited by the thought that the comments and assessments will become public: Flemington Kensington Community Legal Centre v Victoria Police [2007] VCAT 1237 at [19]. It follows that it would be contrary to the public interest to release documents containing such direct comments.
• It is in the public interest that recommendations and advice on which decisions to change procedures or police are based should be able to be provided in confidence to avoid later comparisons between the advice and any changed procedures ultimately introduced: McHugh v Victoria Police [2004] VCAT 1658.

1. Whilst Mr Davis did not make separate submissions about the application of s 30(1)(b) and whether release would be contrary to the public interest, he did make a statement of "public interest grounds". He contends that -

Disclosure of the documents in dispute will advance or promote the public interest in :

(a) clearing the air in relation to doubts about the justification for and propriety of the decision by the Respondent to transfer the Applicant to Geelong Police Station from Stawell Police Station;

(b) holding the Respondent accountable for its decisions relating to the transfer of police members;

(c) helping ensure that the Respondent will act according to due process and the law and will not engage in private vendettas;

(d) denial of natural justice to the Applicant;

(e) righting the injustice done to the Applicant; and

(f) the purity of public administration.

1. It was clear from his evidence during the hearing that he is aggrieved by the decision to remove him from Stawell Police Station. He wants to return there. He believes that the Superintendents used information to unlawfully transfer him and sack him by stealth. He says there is no doom and gloom at Stawell and that it has not been the case for a long time. He referred to his own situation and to the fact that he had never had any problems during his working life. He says that throughout his career, he has never been counselled, and that he has references from persons "at the very top". He believes that both Superintendents are quite biased towards him and that Superintendent Hendrickson in particular is conducting a vendetta against him.
2. In conducting the balancing exercise, Mr Davis submitted that I should take into account that he has been denied natural justice and due process in the decision to transfer him under Regulation 21 and the conduct of his Police Appeals Board hearing. As I understand his submission, he says he has not been given the details of the events that he believes led to the recommendation for the Regulation 21 transfer, and his appeal. Therefore, because the events concern him, he should be given access to that material for reasons of natural justice, so the argument goes.
3. Even were I to accept his claims that he was denied natural justice in those proceedings, any remedy in that respect would lie elsewhere. By itself, his contentions of such denial, his claims of bias towards him and vendetta, even accepting that that were the case, are not sufficient to persuade me that release would not be contrary to the public interest.
4. I accepted the evidence of both Superintendents about the importance of protecting their deliberations at the highest level about extremely sensitive matters concerning not only Mr Davis but a whole range of other persons in the circumstances of a health and wellbeing assessment of a dysfunctional police station.
5. Further, the following evidence of Superintendent Hendrickson, which I accept, outlines the serious impact release of documents, including this document, would have -
   • I ... believe that if any of them were released to the Applicant the impact on the present members at Stawell, the members who have left Stawell to avoid the ongoing conflict and all of their families would be potentially catastrophic. The conflicts at Stawell have infiltrated families, schools and community clubs. I believe they have eaten into community confidence in police like a cancer. In addition, the constant re-emergence and re-living of events which proceedings such as this bring about continues to affect those who were involved in or affected by the conflicts. It is impossible for me to overstate the detrimental effect these issues have had on the community of police members and their families in the Stawell area, as well as on the broader community who are entitled to expect a committed and professional police presence in their area.
   • In my view, any Health and Well Being related document should be carefully considered before release for fear of identifying affected individuals or revealing material received in confidence. This includes all of the sample documents and particularly the documents 1, 40, 41, 81, 108 and 19.
   • I am aware that the Applicant submits that release of the documents is in the public interest because it will 'clear the air' in relation to doubts about the decision to transfer him from Stawell. I believe the release of the documents will have the opposite effect. Their release into the public domain will provide more opportunities for recriminations against those who have complained, are perceived to have complained, have offered support to victims of inappropriate behaviour or participated in the de Ridder assessment. Such recriminations have previously occurred in response to earlier complaints made by members.
   • The de Ridder assessment, and earlier investigations and complaints about the conduct of members at Stawell, were all conducted in confidence and on the clear understanding that the personal views and concerns of members would be kept confidential. All members who came forward to participate in the assessments or who made complaints took advantage of the promise of confidentiality, including the Applicant.
   • In the course of management's ongoing attempts to resolve the workplace conflicts at Stawell, a range of options were considered and the opinions of a number of people sought. Some of those options and opinions could not be implemented because they were unsuitable for the Victoria Police context and industrial relations system. I am concerned that the release of any documents showing the deliberations of management would undermine confidence in police management, hinder future deliberations and cause unnecessary debate.
   • The sample documents do not only relate to the Applicant. They contain extensive personal information about a number of other members at Stawell and details of their own concerns and work performance. I believe that the disclosure of any of that material would be unreasonable. There is such animosity between some of those members that it would be most inappropriate for any member to be given access to documents disclosing management's view of any other members. It is also important that Victoria Police fulfil its obligations to members to keep their personal information confidential. As in any work place, police members have the right to confidentiality regarding performance reviews, complaints and management assessments of their conduct.
6. Those considerations, in my view, clearly weigh in favour of a finding that release would be contrary to the public interest.
7. Weighing those interests, the balance clearly falls in favour of a finding that release is contrary to the public interest.
8. I am therefore satisfied Document 1 is exempt from release under s 30(1) of the Act.

Section 33 Exemption - Information concerning the personal affairs of persons

1. The Victoria Police also claim Document 1 is exempt from disclosure under s 33(1) of the Act.
2. Under s 33(1) of the Act a document is an exempt document if two conditions are satisfied :

(a) first that disclosure of the document would involve the disclosure of 'information relating to the personal affairs' of a person; and

(b) secondly, such disclosure would be unreasonable.

1. Under s 33(9) "information relating to the personal affairs" of a person, includes information that identifies a person or discloses their address or location and information from which those matters could reasonably be determined. It is well accepted that it is also information that concerns or affects a person as an individual[1] and that opinions and observations that a person makes about another's conduct may be part of that first person's personal affairs[2].
2. If I am satisfied that the information is "information relating to the personal affairs" of a person, I then need to decide whether disclosure would be unreasonable.
3. It is well accepted in this context that deciding whether disclosure is "unreasonable" involves a balancing of competing interests. (see generally Page and Metropolitan Transit Authority (1988) 2 VAR 243; Ryder v Booth [1985] VicRp 86; [1985] VR 869; Department of Agriculture v Binnie [1989] VicRp 73; [1989] VR 836; Re Herald & Weekly Times and Victorian Curriculum & Assessment Authority [2004] VCAT 924; (2004) 21 VAR 68; Medical Practitioners Board of Victoria v Sifredi (2000) VAR 347).
4. The balance is between the public interest in protecting an individual's right to privacy on the one hand and the public interest in disclosure on the other.
5. Ms Ellyard also submitted that :
   • The Tribunal must look to all the circumstances, including the purpose for which access is required, the nature of the information, and the circumstances in which the information was obtained: Re Page and Metropolitan Transit Authority (1988) 2 VAR 243.
   • The Tribunal must also consider the extent to which the information is available to the public. The fact that some part of the information may be known to the applicant does not prevent the document from being an exempt document: Gunawan v Dept of Education (unreported VCAT 15 December 1998).
   • In the present case release would be unreasonable because :
     • - the material is sensitive;
     • - the material is not available to the public;
     • - the material was obtained in the context of investigations and assessments of serious allegations of a bullying culture within Stawell Police Station;
     • - the material was obtained in confidence;
     • - the evidence establishes that the persons whose affairs are contained in the documents would be opposed to their information being released to the applicant; and
     • - the applicant seeks the material to pursue perceived grievances against the respondent.
6. Mr Davis in his oral submissions said that because he knows everyone who lives in Stawell and everyone knows what everyone else is doing, the documents should be given to him so he can get on with his life.
7. The document clearly contains parts that are replete with information concerning the personal affairs of a wide range of people involved in the health and wellbeing assessment. It is clear that that information is personal to them.
8. According to the evidence of Superintendent Hendrickson which I accepted, the information came about as part of a health and wellbeing assessment rather than as part of an investigation into specific complaints.
9. I also accepted his evidence that disclosure would be unreasonable because there is such animosity between some of the members involved. With that evidence in mind and the evidence set out earlier on the adverse consequences were the documents released, in these circumstances, I am satisfied that it would be unreasonable to disclose the personal information.
10. I am therefore satisfied that those parts of the document containing personal information are exempt from release under s 33(1) of the Act.
11. I observe here that it would be possible to apply s 25 of the Act to the document to delete these parts which are exempt under s 33. There would remain material he might still seek access to. It is material that, for example, sets out some context and methodology. As I have found some parts not exempt under s 33, and already the whole document is exempt under s 30(1), the "public interest override", available under s 50(4) of the Act, still has some limited application.

Section 35(1) Exemption - Material obtained in confidence.

1. Under s 35(1)(b) of the Act a document is exempt from release if the following two conditions are satisfied :
   • (a) disclosure of the document would divulge information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister; and
   • (b) 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.
2. Ms Ellyard drew my attention to a number of principles to apply in determining whether or not a document was exempt under this section.
3. The first issue to decide is whether the disclosure would divulge information communicated in confidence.
4. Mr Davis met with Superintendent de Ridder as part of the Health and Wellbeing Assessment. He insists he was never told the information he gave was given in confidence. That might well be the case, but that does not mean others were not or did not understand that to be the case.
5. According to Superintendent de Ridder's evidence, it was very clear that he had proceeded on the basis of strict confidentiality. That fact appears in his report. The fact that all the longer interviews were conducted offsite to ensure anonymity in line with the agreed terms of reference, supports that information was given and received in confidence.
6. The following evidence of Superintendent de Ridder, which I accepted, further confirms that it was information given in confidence :
   • No names were recorded and no lists of who was spoken to were kept. Each interview extended to about an hour to an hour and a half. In addition to the more formal interviews and informal discussions at the station some discussions on the telephone were also conducted. Overall, there were very few members ultimately that did not have an opportunity to have input into the Assessment. It was indicated to me that some were not prepared to speak to me in person because they feared harassment if found out, and those members sent messages instead. In some cases these messages comprised of a direct comment along the lines of "you have spoken to {a person} and I agree with everything they said". These conversations were in effect members adopting the comments made by others.
   • It was stressed to each of the members that their participation in my assessment was totally confidential. My view is that without this assurance of confidentiality many members would not have been prepared to speak to me. The situation at Stawell was very bad in terms of its effect on the emotional wellbeing of personnel and there was a great deal of concern about whether my assessment would actually achieve anything and whether what people said would find its way back to the members being complained about. A number of participants had had bad experiences of matters which ought to have been kept confidential being released and leading to harassment and bullying. In that context only assurances of total confidentiality could persuade people to talk to me.
7. I am satisfied the information was communicated in confidence.
8. Would disclosure impair the agency's ability to obtain similar information in the future?
9. The Superintendents stressed that this was a Health and Wellbeing Assessment that needed to be conducted for the welfare of all those at Stawell and that Victoria Police have an obligation to resolve workplace conflicts.
10. Superintendent de Ridder's evidence was clear that participation in the process was voluntary and was carried out in the strictest of confidence.
11. I have already referred to evidence which I accepted about the adverse impacts if the information were released.
12. I am therefore satisfied that release would impair the ability of the agency to acquire such information in the future. It is essential for Victoria Police to be able to carry out their workplace obligations. It would be contrary to the public interest if the ability of the agency to obtain such information in the future was impaired.
13. I am satisfied Document 1 is exempt from release under s 35(1) of the Act.

1. This is a document headed "Incidents since return to work of sergeants". It is undated. It is claimed to be exempt from release under s 30(1), s 33 and s 35(1).
2. Its author is not apparent on its face, but according to Superintendent Hendrickson's evidence, those at the workplace would clearly know who the author is, and I accept that. Superintendent de Ridder confirmed that whilst it was never part of his assessment, having now seen it, he regarded its release as very undesirable because its release would identify the author.
3. A perusal of the document shows that it contains matters personal not only to the author but also contains the names of a large number of other people. It complains about other people. It is about their personal affairs as well.
4. It clearly satisfies the first limb of the s 33 exemption.
5. Is release unreasonable? Given the situation at Stawell and the evidence of the difficulties I have already referred to, the culture of claim and counterclaim, and the factionalism, I am satisfied its release is unreasonable.
6. It is impossible to redact the document to remove what is not personal information.
7. I am satisfied the entire document is exempt from release under s 33 of the Act.

1. This is a document titled "Stawell Health and Wellbeing Assessment". It is undated but was "last printed" on 5 September 2005.
2. Superintendent Hendrickson gave evidence about the document. He believed it had been prepared by the previous Superintendent, working through earlier recommendations following the "Carnegie" report in April 2004. In his opinion, it is not the sort of report that would be widely available to the rank and file, certainly not to the individuals involved.
3. It contains proposed recommendations which were not implemented, and personal information.
4. Victoria Police claim it is exempt from release under all three provisions.
5. So far as the s 33 exemption is concerned, it clearly contains personal information and for the reasons already expressed, I am satisfied release is unreasonable.
6. It would be possible to redact the document to remove that information, but in doing so I accept it might make it meaningless.
7. In any event, it is also claimed to be exempt under s 30(1) as an internal working document.
8. In light of the Superintendent's evidence, which I accepted, about the document and having inspected it, I am satisfied that it contains matters in the nature of opinion and advice. I am mindful that the recommendations discussed were not implemented. Its release would give rise to unhealthy debate about why things were or were not done. Given that Mr Davis continues to hold strong views, asserts he is the victim and in no way responsible for the situation, its release would, in all the circumstances, be contrary to the public interest.
9. I am satisfied Document 41 is exempt from release under s 30(1).

1. This is a briefing note dated 3 July 2004 from the Superintendent at the time to the Assistant Commissioner. It is an update on the "Carnegie" report.
2. Victoria Police claim it is exempt from release under s 33 and s 35(1).
3. I have inspected the document. It entirely contains information relating to the personal affairs of a number of persons. It cannot be redacted.
4. For the reasons set out earlier, its release is unreasonable. I am satisfied the entire document is exempt from release under s 33(1) of the Act.

1. Superintendent Hendrickson gave evidence about this document. It is the record of certain diary entries made by Inspector Smith who was previously stationed at Stawell. The entries comprise details of personal concerns and complaints raised by members at Stawell.
2. Victoria Police claim it is exempt from release under all three provisions.
3. I have inspected the document. It records a lot of different contacts with a lot of different people. It is apparent on its face that it all concerns information relating to the personal affairs of those persons.
4. For the same reasons I have expressed earlier, I am satisfied its release is unreasonable.
5. It cannot be redacted. I am satisfied the entire document is exempt from release under s 33 of the Act.

1. Superintendent Hendrickson gave evidence that this document is a lengthy response by an individual to an earlier Health and Wellbeing Assessment. I agree having perused the document.
2. The accompanying letter makes it clear that it is for the perusal of only two people named and that it is provided on the basis that it is not to be placed on the person's personnel record, nor used in any proceedings nor released in any way to named persons.
3. The document raises issues specific to the author.
4. Victoria Police claim it is exempt from release under all three provisions.
5. The document speaks for itself. In its entirety, it contains information relating to the personal affairs of the author and others mentioned. For the same reasons set out earlier, I am satisfied its release is unreasonable.
6. I am satisfied the entire document is exempt from release under s 33 of the Act.

1. There is one document in this class. The original document chosen was substituted during the hearing with another document - the April 2004 Health and Wellbeing Assessment of the Stawell Police Station conducted by Andrew Carnegie.
2. It will be recalled that a number of attempts were made to resolve issues at Stawell. Those attempts include assessments by external consultants and this document is one of those assessments.
3. Exhibit 6 in this proceeding which is the Victoria Police brief for the Police Appeals Board hearing, contains a copy of this report in a form that has already been released to Mr Davis. He had provided extensive written feedback as part of the assessment. The part of the document that has been released to him relates to the issues specific to him. He seeks access to the balance.
4. Victoria Police claim that balance is exempt from release under s 33 and s 30(1).
5. A comparison of the complete document with the redacted document released to him reveals that what is deleted is information concerning the personal affairs of persons other than Mr Davis.
6. For the reasons set out earlier in these reasons, I am satisfied release of that information is unreasonable. I am therefore satisfied that the complete form of Document 55 (in proceeding G65/2008) is exempt from release under s 33 of the Act.

1. Document 90 has been selected in this category. It is a "complaint/incident form" to which is attached a statement. The form could be redacted, but it is the statement attached that contains the substance of the complaint/incident.
2. Victoria Police claim it is exempt from release under s 33 and s 35(1)(b).
3. Superintendent Hendrickson gave evidence about the document. He pointed out that there is one passing reference to Mr Davis in the document otherwise the complaint essentially concerns someone else and arose in circumstances when there were factions at Stawell.
4. A perusal of the document confirms the Superintendent's description and I accept the context he suggests.
5. It is information that concerns the personal affairs of persons other than Mr Davis. The release of his name without more is meaningless.
6. For the reasons set out earlier in these reasons, I am satisfied that release of the document is unreasonable. I am therefore satisfied that document 90 is exempt from release under s 33 of the Act.

CLASS 4 - CORRESPONDENCE IN RELATION TO THE INVESTIGATION

1. There are two documents in this class, documents 4 and 19.
2. Document 4 is an email from a Sergeant to Superintendent de Ridder.
3. Superintendent Hendrickson gave evidence that from his discussions with the author, the author would be devastated were it released to anyone.
4. An inspection of the document reveals that it contains a person's personal information. As I understand the Superintendent's evidence, which I accepted, even to release dates and times might lead to the identification of the author.
5. I am satisfied it is personal information and for the reasons set out earlier in these reasons, I am satisfied that release of the document is unreasonable. I am therefore satisfied that document 4 is exempt from release under s 33 of the Act.
6. Document 19 is an email Superintendent de Ridder received from an Inspector Dorman in April 2006. In his evidence, the Superintendent explained the context in which he received it. He explained that it provided a lot of confidential information and identifiable information about the circumstances at Stawell and advice given to him for the assessment he was undertaking. He explained it was essential he receive such information because it was received from a person who was at the station. He said that anything they spoke about was confidential, and was not to be talked about.
7. Victoria Police claims the document is exempt from release under s 30(1)(a), s 33 and s 35(1)(b).
8. An inspection of the document reveals that it is replete with personal information and frank opinion and advice.
9. Aside from those parts which I am satisfied for reasons already expressed, are exempt under s 33, I am satisfied that as a whole the document is an internal working document exempt under s 30(1). It contains opinions, detailed proposals, extensive information about personal affairs and is the kind of information Superintendent de Ridder said he needed to obtain to perform his assessment properly.
10. For the reasons already expressed, I am satisfied its release would be contrary to the public interest. It is important that the ability to give full and frank advice at the highest levels is maintained. I am therefore satisfied that all of Document 19 is exempt from release under s 30(1) of the Act.

1. There are two documents in this class, documents 95 and 106.
2. Document 95 comprises the notes Superintendent de Ridder took of his lengthy interview with Mr Davis away from Stawell Police Station. The Superintendent explained he took notes to help him recall the substance of what was said. They are a record of what Mr Davis said in the interview. The Superintendent explained it contains Mr Davis' views about other people and what he says was said to him.
3. The Superintendent explained that he opposed their release because if one read them, they would identify people in a jaundiced way and out of context. He made notes as an aide memoir and for the purposes of preparing his report.
4. Whilst they might contain information relating to the personal affairs of Mr Davis, they also contain information relating to the personal affairs of others. They only represent one person's version of events and they could be taken out of context. Mr Davis knows what was said in the interview because he tells us he has his own tape recording of it. However, that does not persuade me release of this document is reasonable, given the whole context in which the notes came about. I am satisfied their release is unreasonable.
5. For these reasons, I am satisfied that document 95 is exempt from release under s 33 of the Act.
6. Document 106 contains extracts from Superintendent Hendrickson's diary. During the hearing, further parts were released to Mr Davis.
7. What remains contains personal information relating to the affairs of persons other than Mr Davis. For reasons already canvassed, I am satisfied that release in all the circumstances is unreasonable. I am therefore satisfied that the remaining notes comprised in Document 106 are exempt from release under s 33 of the Act.

1. There were 7 documents selected for decision. They are documents 9, 10, 11, 28, 52, 68 and 123. Document 123 was a telephone number Mr Davis does not seek. There remain 6 documents.
2. Documents 9, 10, 11 and 28 can be considered together.
3. Document 9 is the Final Report of Allan Drought and Associates dated 11 December 2005. It is titled "Investigation of Alleged Workplace Bullying at Stawell Police Station". The document has been released except for some numbers and a personal reference on page 1, all of page 2 and the first paragraph on page 3. Attachments have not been released. The attachments include documents 10, 11 and 28.
4. Superintendent Hendrickson gave the following evidence about these documents :
   • Document 9 is a report from a previous investigator. It contains brief details of allegations made by a number of members of the Station. The complainants and the alleged perpetrators are named in the report, as well as a brief summary of evidence given in statements by witnesses. The release of the names or the allegations would reveal information obtained in confidence and is highly likely not (sic) to reawaken the controversy and conflict referred to in my earlier statement but also potentially result in retribution to the individuals named who made confidential statements to the potential detriment of others.
   • I received the report shortly after I commenced work in my present position. Complaints were made to me about the behaviour of the investigator which undermined the confidence of the process. On the basis of those complaints, in consultation with Peter Knight of the Equity and Conflict Resolution we decided to set that report aside and instead commission the de Ridder review.
   • Accordingly, the statements and report were not acted upon and do not reflect any final view taken by management. Their release would cause confusion and unnecessary debate and would not reveal anything about why and what decisions were taken by management about the situation at the Station and could potentially result in retribution to the individuals named who made confidential statements to the potential detriment of others.
   • Document 10 is a summary of statements obtained in the same earlier investigation. It contains the names of witnesses and a summary of their evidence. As the investigation was not acted on, the statements were not part of any decision-making process and their release could cause confusion and unnecessary debate about whether the allegations in them are true.
   • About 50% of the persons named in the list are still at the Station or work in the immediate vicinity of the station. I can state that the vast majority of them would be horrified at the prospect of their names, or any of their evidence, being released to the Applicant. The effect of release would be horrendous and potentially at least three members would probably require sick leave. This is the level of distress the events and issues at the Station have caused to members.
   • Document 11 is a statement from a member of the Station obtained during the earlier investigation. It is one of the statements listed in document 10.
   • As can be seen when the document is compared with the list of witnesses in document 10, the statement is not a full picture of the situation at the Station and would, if released, give a misleading impression of what the situation was.
   • I can say that if any of the statements were released a complaint would probably be made by the person concerned. Complaints have been made in the past about breaches of privacy alleged to have been caused by the release of information of this kind. The ability of Victoria Police to conduct internal inquiries and respond to complaints would be seriously compromised if such statements could not be obtained. Alleged breaches of privacy would make members less willing to make statements in future.
   • Similarly, my experience has been that documents released to one member affected by the Stawell situation have often been made available to other disaffected members. The release of document 10 would create unhelpful debate and distress because it would almost certainly be used by the Applicant to re-agitate matters which have caused such problems for the community in the past.
5. I observe here that there was evidence given in the hearing that document 28 was of the same nature as document 11. The two were provided to show views at both ends of the spectrum. Victoria Police claim the documents are exempt from release under ss 30(1), 33 and 35(1)(b).
6. I have inspected the documents. What remains in document 9 and the contents of 10 and 11 contain information concerning the personal affairs of a number of persons. The persons are clearly identifiable and the statements and summaries of those statements reveal their personal concerns and affairs. The mere fact that they have participated in this assessment concerns their personal affairs.
7. I accept Superintendent Hendrickson's evidence that the report was never taken any further, one of the reasons being that there was concern about the author's behaviour. I accept his evidence that release would reawaken the controversy and conflict that existed at the station, give a misleading picture of the situation and that there would be unnecessary debate and confusion, particularly as at least half of the persons involved are still at the station or work in the vicinity. I am satisfied release is unreasonable in those circumstances.
8. I am therefore satisfied that the unreleased parts of document 9 and documents 10, 11 and 28 are exempt from release under s 33 of the Act.

1. This is a statement prepared by one of the persons stationed at Stawell. Superintendent Hendrickson's evidence is that it is quite clear on its face why it should not be released. It is a 12 page statement made on 31 August 2005. Victoria Police claim it is exempt from release under ss 30(1), 33 and 35(1)(b) of the Act.
2. An inspection of the document clearly reveals it is replete with information concerning the personal affairs of the author and others.
3. For all the reasons I expressed in relation to documents 9, 10, 11 and 28, I am satisfied that release of this document is unreasonable.
4. I am satisfied document 52 is exempt from release under s 33 of the Act.

1. Document 68 is an email sent by a member of the station to Peter Knight of Victoria Police's Equity and Conflict Resolution Unit. It will be recalled that he was the person who had determined there should be a Health and Wellbeing Assessment of the Station.
2. Superintendent Hendrickson gave the following evidence about the email :
   • The email contains earlier email exchange between that member and me. The emails were sent at a time when the de Ridder review was in progress and give an indication of the enormous difficulties I and others were facing in our attempts to manage and resolve the situation at the Station.
   • The emails were sent with an expectation of confidentiality and all Victoria Police members are entitled to expect that such communications would be kept confidential. It was certainly never my attention or expectation that they be released to anyone other than the person concerned and the persons to whom that person chose to forward them. In addition, the release of the emails would only serve to reopen past controversies which, for the reasons I have set out in my earlier statement, would be damaging to the Station, the Stawell community, and Victoria Police.
3. Victoria Police claim the document is exempt from release under ss 30(1), 33 and 35(1)(b).
4. I have inspected the document. The email is dated 3 April 2006 and contains attachments being earlier emails.
5. Apart from the contents being personal information, the nature of the communications coupled with the Superintendent's evidence, satisfy me that it would have been sent in confidence. I accept the Superintendent's earlier evidence about the importance of maintaining confidence in circumstances such as this, where to release the document would have serious implications on the ability to receive such information in the future, essential for proper management reasons.
6. While I am satisfied parts are exempt from release under s 33, I am satisfied that the document as a whole is exempt from release under s 35(1)(b) of the Act.

SECTION 50(4) - THE PUBLIC INTEREST OVERRIDE

1. Whilst I have found the major part of the documents in dispute exempt under s 33 of the Act, there are some parts of documents I have found are not exempt under s 33 but exempt under s 30(1) or s 35. The "public interest override" needs to be considered with respect to those parts of the documents.
2. Section 50(4) of the Act provides for release where this Tribunal is of the opinion that the public interest requires that access to the document should be granted under the Act.
3. The task of the Tribunal is to decide whether the public interest has been demonstrated to the extent that it outweighs the competing interest of documents protected from disclosure by specific provisions of the Act and requires that access should be granted.
4. "Public interest" is a term not defined in the legislation. However, the case law is clear in that we need to distinguish between what is in the public interest and what is of interest for the public to know.
5. Ms Ellyard referred to the decision of the Court of Appeal in Secretary, Department of Justice v Osland [2007] VSCA 96, and the high "public interest requires" test set out therein such that the public interest "demands" or "necessitates" release.
6. No one denies that Mr Davis has a personal interest in the release of the documents but I am not satisfied that he has put before me anything that would satisfy me that the public interest requires release of the documents.
7. His allegations of denial of natural justice in his proceedings in relation to the Regulation 21 transfer at the Police Appeals Board are matters personal to him and are not such that the public interest demands or necessitates the release.
8. I am not satisfied the public interest requires their release.

1. For these reasons I affirm the decisions of the respondent.

[1] See Hansen v Department of Education & Training [2007] VCAT 123

[2] See Re Richardson and Business Licensing Authority [2003] VCAT 1053