1. The respondent's decision is affirmed in relation to all documents except the last 5 lines of page 5 of document 1 and the first 2 paragraphs of page 6 of document 1 with all names and occupations removed.
2. 35 days from today access is granted, with all names and occupations removed, to the last 5 lines of page 5 of document 1 and the first 2 paragraphs of page 6 of document 1

1. On 30 September 2010 Mr Steve Drew ("the applicant") sought access under the Freedom of Information Act ("the FOI Act") to documents in the possession of the Victoria Police FOI Division ("the respondent").
2. The applicant has been a member of the Victoria Police Force since January 1996.
3. On the Freedom of Information Request Form, the applicant provided the following factual context for his request:

On 8 February 2006, I was criminally summons by ESD with Affray, Intentionally Cause Injury, Recklessly Cause Injury, Unlawful Assault, Assault by Kicking and Assault in Company upon a male person named Darren Halls, at the Rochford winery on the 19th February 2005, and immediately suspended from all police duties.

On 10th February 2006, Senior Detective Adam Higgins, my alleged co-offender, was similarly summonsed by ESD with the above-mentioned serious criminal offences and immediately suspended from police duties.

On the 27th November 2006, Higgins was fully discharged at the Melbourne Magistrates Court committal hearing by Magistrate Bakos who determined the evidence against him was "extremely weak".

On the 20th June 2008, I was fully acquitted of affray, common-law assault, affray and common-law assault at the Melbourne County Court trial by her Honour Judge Wilmoth with "No Case to Answer".

On the 23rd June 2008, I was further suspended from all police duties by ESD pending the outcome of an internal disciplinary investigation as to whether or not I breached section 69 of the Police Regulations Act 1958 namely by engaging in conduct unbecoming.

On 8 July 2010, I received official written notification from ESD that the result of its final determination in regards to the "specific allegation... You assaulted Darren Halls by kicking him" was "not substantiated".

On the 12th July 2010, Higgins similarly received official written notification from ESD that the result of its final determination in regards to the same specific allegation was "not substantiated".

I respectfully submit to Victoria Police that Higgins and I were both falsely identified and wrongfully summonsed with serious criminal offences as a direct result of the collective actions of ESD and OPP. I am extremely disappointed in the manner in which this alleged incident has been criminally investigated, prosecuted and further internally reviewed by ESD and strongly disagree with the final determination of internal disciplinary investigation against Higgins and myself. I wish to further respectfully advise Victoria Police all concerning issues relating to this matter will be subject to official complaints with the appropriate authorities.

I respectfully request access to complete and unaltered copies of all available documents and other materials, from Victoria Police, OPP, OPI and any other relevant Victorian State government department/s or statutory authorities involved in the criminal process and/or subsequent internal disciplinary investigation of the alleged criminal incident involving possible off duty sworn and unsworn members of the Victoria Police Force at the Rochford winery on the 19th February 2005.

1. The respondent identified 89 documents as being relevant to the request and has released, (or is in the process of releasing), 87 documents in whole or in part. The parties have, by negotiation, narrowed the field of dispute substantially, with the applicant conceding that he does not consider individual personal details, (names, dates of birth, addresses, telephone numbers and ranks of individuals), to be relevant to his request. This information has been redacted by the respondent on that basis.
2. These proceedings relate to the remaining documents contained in an Ethical Standards Department ("ESD") investigation file and concern the status of 17 documents.

1. The object of the FOI Act as set out in section 3 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 by creating a general right of access to information in documentary form.
2. The section does, however relevantly acknowledge that the right to access must of necessity be limited by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies.
3. Pursuant to section 55 of the FOI Act, the respondent bears the onus of proving that a document, or part of the document, is exempt from production.
4. Section 33(1) of the FOI Act makes a document an exempt document where its release would involve the unreasonable disclosure of information relating to the personal affairs of any person and it is on this basis that the respondent opposes the release of the documents the subject of this application.

1. When determining whether documents are exempt from disclosure by virtue of section 33(1), I am therefore required to consider:
   • (a) whether the information relates to the personal affairs of any person.

There is nothing mysterious about the words of the section. The phrase "personal affairs" is, and should be widely construed. Information which "concerns or affects" a person as an individual relating to his/her health, private behaviour, home-life, personal or family relationships is included[1] in the compass of "personal affairs".

(b) whether its release would involve an unreasonable disclosure.

In making this assessment, I must take into account a range of factors, including the interest that the applicant has in the information in question, the nature of the information to be disclosed, the circumstances in which information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, the sensitivity of the information and whether the information has any current relevance together with all other relevant matters which may assist in the logical evaluation of which objective should prevail.[2]

1. In broad terms, the applicant contends that it is not unreasonable to provide information detailing the movements, observations and knowledge of persons known to have been involved in this matter, which resulted in him being "falsely identified and wrongfully charged with serious criminal offences". The applicant prepared a statement on 6 March 2012 in which he stated that:

I am seeking these documents to lodge a further and separate complaint to be filed with the soon-to-be established independent broad-based anticorruption commission (IBAC) and/or other appropriate authorities to conduct a further review of the manner in which Higgins and myself have been grossly mistreated.

1. The statement is some 16 pages in length and gives a detailed factual context to the reasons why the applicant contends that he has been subjected to an injustice. Relevantly for the purposes of this application, the statement reflects a detailed knowledge of the names and activities of the people involved in the incident(s) which took place on 19 February 2005.
2. The respondent's position in relation to each of the documents (or part documents) in dispute, is that they are exempt from release by virtue of section 33(1) of the FOI Act.
3. The respondent broadly classifies them as follows:
   • (a) category one - the respondent submits that this withheld information relates to individuals private behaviour and relationships, their degree of cooperation with the respondent's investigation, observations and activities of persons;
   • (b) category two - the respondent submits that this withheld information relates to the personal relationships, employment status and exposure to disciplinary action arising from private behaviour outside of the workplace as well as to interactions with ESD; and
   • (c) category three -the respondent submits that this withheld information contains the health and medical information of a third party(s).

1. I will now address each of the documents by reference to the categories and considerations outlined above.

1. This is a representative document being an interim report from Detective Acting Senior Sergeant Perrett ("Perrett") to Acting Detective Inspector Wilkins dated 30 August 2005. Perrett was not called to give evidence. I was told that this was because he was on indefinite sick leave (for health reasons).
2. The document contains Perrett's investigation and presents a summary of the incident as extracted from witness statements obtained by Victoria Police. It is 17 pages in length and the applicant was provided with a redacted copy of the document. Inspector Wilkins made a statement dated 24 February 2012 and gave evidence at the hearing.
3. The information withheld in document 1 relates to the personal affairs of the persons named therein as defined by section 33(1). Names and occupations are detailed as well as information which connects people to each other as friends, family or acquaintances. These are relationship details. There is also information which has been withheld which describes the intimate personal activities of individuals.
4. I note at this time that it is not the role of the tribunal in these proceedings to make any determination as to the merits or otherwise of the internal police investigation and subsequent prosecution of the applicant. It is clear from the statement and evidence given before the tribunal by the applicant, that he feels a passionate need to pursue any avenue open to him to have the matters relating to the internal investigation, subsequent prosecution and entries made on the Register of Complaints, Serious Incidents and Discipline database fully reviewed and examined. It is equally clear from the statement and evidence of Inspector Wilkins that the respondent contends that the investigations and subsequent prosecutions were conducted appropriately and that the database entries are proper.
5. Pages 1, 2, 4, 5 (except the last paragraph, discussed below), 15, 16 and 17 have only names removed and I note that the applicant does not seek the release of names.
6. The withheld information on pages 3 and 14 of the document contains medical and health material. It also gives a description of intimate conduct and personal activities of a potentially embarrassing nature. The release of this information would readily enable connections to be made between people which would not in any way assist the applicant in his stated purpose for seeking the release of the information. I find that it would be unreasonable to disclose the information contained therein.
7. In relation to pages 7-13 I accept the evidence of Inspector Wilkins that the withheld information "contains a summary of the observations and activities of a number of persons who did not witness the incident or who otherwise had only a marginal role in the investigation". None of this information would assist the applicant in proving or disproving the allegations he makes. I find that it would be unreasonable to disclose the information contained therein.
8. The respondent did not provide any meaningful reason for why the last 5 lines of page 5 and the first 2 paragraphs of page 6 (but with names and occupations withheld) should be withheld. The material contains the observations of people who witnessed and became involved in the Rochford winery incident. It is likely that the material is already (in a different form), in the public arena as the observations recorded would have been relevant to the criminal prosecution. The exemption claimed for these documents is not upheld and the respondent's decision is varied so that it is ordered to release to the applicant 35 days from today, with all names and occupations removed, the last 5 lines of page 5 of document 1 and the first 2 paragraphs of page 6 of document 1.
9. I find that it would be unreasonable to release the last paragraph of page 6 for the same reasons as the reasons I have given in relation to pages 7-13 above.

1. These documents are summaries prepared for the information of police executive command. The withheld information contains medical information and once again gives a description of intimate personal activities of a potentially embarrassing nature. There is no basis for its disclosure. The release of any part of it would readily enable connections to be made between people which would not in any way assist the applicant in his stated purpose for seeking the release of the information. I find that it would be unreasonable to disclose the information contained therein.

1. This category relates to a range of documents that do not directly relate to the incident and contains information relating to personal relationships, employment and interactions with the ESD. Category 2 consists of documents 4-16.

1. This comprises a transcript of a tape-recorded record of Interview with Senior Constable Sullivan.
2. The only withheld information on pages 1-4 and 12-27 of the transcript are names and I note that the applicant does not seek the release of names. The withheld information on pages 5-11describes the intimate behaviour of a person who does not wish to have the information disclosed. It is potentially embarrassing and its release would not assist the applicant in any way in his stated objectives. I find that it would be unreasonable to disclose the information contained therein.

1. This document comprises 2 audio taped interviews conducted with Senior Constable Higgins (which has already been released) and Senior Constable Sullivan which will be released by consent with only names being redacted. The Tribunal notes that the respondent originally considered that it was unable to provide a redacted version of the audio recordings and accordingly claimed an exemption over the whole of the document. The respondent subsequently discovered that it was in fact able to make the necessary redactions and has agreed to the release of the interviews.

1. This document is an assessment and opinion in relation to potential disciplinary action.
2. The withheld information consists of names which I note that the applicant does not seek to have released as well as material relating to the employment status of an individual and disciplinary action in respect of an individual arising from private behaviour outside the workplace. It also contains information pertaining to the willingness or otherwise of individuals to assist with criminal or disciplinary investigations. The material is of a personal nature.
3. I find that it would be unreasonable to disclose the withheld information. The information was obtained in the context of an ESD investigation involving the co-operation of civilians. (Whilst the evidence may have been obtained with a degree of confidentiality, I note that the respondent places no reliance on confidentiality in this context).
4. Although there may be some public knowledge of the investigation and criminal prosecution of the incident, the particular documents the subject of this application are not in the public arena.
5. Three individuals object to their personal information being disclosed pursuant to section 53(A) of the FOI Act. Their objections are expressed in a manner which demonstrates the degree of anxiety that attends this application. I accept that the views of these individuals combined with the sensitive nature of the information tend against release of the documents.
6. The current relevance of the material is limited. The incident occurred in 2005 and the applicant has been acquitted of criminal wrongdoing and has returned to full employment with Victoria Police. It is relevant that he has already pursued administrative avenues of review in relation to the investigation. The information would not assist the applicant in his stated purpose for seeking access to it.

1. I make the same findings and rulings as I make for Document 6.

1. This category relates to medical documents and authority to release medical documents. The only category three is document 17. It describes the circumstances of the injury, the nature of the injury sustained and the treatment received by a person involved in the incident.
2. I accept the evidence of Inspector Wilkins that whilst a description of the injury and treatment of the individual was disclosed during the prosecution of the applicant that document 17 was not in a brief of evidence provided to the applicant.
3. There is no current relevance of the material. The incident occurred in 2005 and the applicant has been acquitted of criminal wrongdoing and has returned to full employment with Victoria Police. It is relevant that he has already pursued administrative avenues of review in relation to the investigation. The information would not assist the applicant in his stated purpose for seeking access to it.

1. I am satisfied in the circumstances of this case that it would be unreasonable to disclose the personal information of private citizens save and except for the parts of document one to which I have referred in these reasons.
2. The respondent's decision is affirmed in relation to all documents except the last 5 lines of page 5 of document 1 and the first 2 paragraphs of page 6 of document 1 with all names and occupations removed.
3. 35 days from today access is granted, with all names and occupations removed, to the last 5 lines of page 5 of document 1 and the first 2 paragraphs of page 6 of document 1.

[1] See for example Hanson v Department of Education and Training [2007] VCAT 123; RE F and Health Department (1988) 2 VAR 458; Hutchinson v Department of Human Services (1997) 12 VAR 422;

[2] See for example Victoria Police v Marke (2008) VR, 223; Re Page and Metropolitan Transit Authority (2008) 2 VAR 243