Eaton v CORE [2002] VCAT 494

1. Decision of the respondent refusing access to the documents described in the refined request pursuant to s.25A(5) of the Freedom of Information Act 1982 set aside.

2. Direct that within 7 days of the date of this order the respondent identify any document or documents described in the refined request and that the respondent state in writing any exemption or exemptions asserted with respect to any such documents.

1. This is a revision of oral reasons given on 3 July 2002.

2. This is an application for review of a decision of the respondent refusing access to certain documents. The request was refined this morning by way of an application to amend the grounds of review. This was not opposed. The refined request is as follows:

(i) summaries prepared by Police for court hearings in connection with prosecutions where Alexander Dileo was defendant

3. The respondent seeks to rely on s.25A(5) of the Freedom of Information Act 1982 ("the Act") which permits a request for access to be refused without identification of the documents to which the request relates and without specification of other exemptions where -

"(a) it is apparent from the nature of the documents as described in the request that all of the documents to which the request is expressed to relate are exempt documents, and

(i) it is apparent from the nature of the documents as so described that no obligation would arise under s.25 in relation to any of those documents to grant access to an edited copy of the document, or

(ii) it is apparent from the request or as a result of consultation by the agency or Minister with the person making the request that the person would not wish to have access to an edited copy of the document."

4. It will be seen that what must be considered at this stage is, first, whether s.25A(5) can be applied to all the documents which are the subject of the request. Unless it is apparent from the nature of the request that all the documents are exempt documents, s.25A(5) has no application: Olexander v Department of Premier and Cabinet, VCAT, 23 May 2002.

5. In this regard it is sufficient for me to deal with the first class of documents described in the refined request. The summaries referred to were prepared by Police for court hearings in connection with prosecutions where Alexander Dileo was defendant. There seems to be a general understanding as to what those documents are likely to contain, namely an outline of the circumstances of the offence with which Mr Dileo was charged and other information about Mr Dileo which in the opinion of the informant might have been of value to the prosecutor in presenting the case on behalf of the prosecution and to the Court in sentencing Mr Dileo in the event that he pleaded guilty or was found guilty. Anyone who has spent any time practising in the criminal courts will be familiar with reports of this nature.

6. Mr Johns of CORE has confirmed Mr Dileo's file contains some such reports, though it is not entirely clear that they are precisely of the kind I have outlined. It is not appropriate at this stage for those documents to be further identified or shown to the Tribunal. I can but assume that they are documents of that general nature describing the behaviour of Mr Dileo and giving other information about him. Plainly, some of the information in the reports would be information relating to Mr Dileo's personal affairs. The Police reports might also obtain information about the personal affairs of other persons, e.g. victims of crimes that Mr Dileo has committed, or may have committed. I therefore accept Mr Batskos' submission that there is likely to be a good deal of information in the Police reports relating to the personal affairs of persons - whether Dileo or others.

7. That, of course, is not the end of the matter so far as s.33 is concerned. The issue which arises under that section is whether the disclosure of that information would be unreasonable and in that regard appropriate editing can be undertaken if it would be reasonably practical to do so and if the edited information would still be of value to the person making the request. In other words, if as a result of the editing there is nothing left, then obviously the ability to edit the document ceases to be a relevant consideration.

8. So far as editing is concerned, having regard to what Mr Beling has told me about the purpose for which these documents are sought, I don't have any concerns about the editing of the documents, whether that be done by the agency or ultimately by me as a member of this Tribunal. So editing is not an issue, in my view. I do not know how many documents are likely to be involved here. Again, that's a matter of surmise, but if at the end of the day the agency is called upon to produce to the Tribunal the Police summaries and breach reports, I have no expectation that it will amount to a great volume of documents.

9. As I have said, it is not simply a question of whether the documents contain personal information. It must be manifest at this stage that disclosure of that information would be unreasonable. It must be apparent from the very nature of the documents either that it would be unreasonable to disclose the entirety of the information in the documents or that so much of the contents would have to be deleted that what is left would be of no value to the applicant.

10. In this regard it is relevant for me to note the purpose for which this material is sought. The applicant is charged with serious crimes and is due to be tried in the County Court commencing on the 29th of this month. Those alleged crimes are serious enough to have resulted in the applicant being remanded in custody for nine months without bail, so I am told. I am also told that the alleged offences are of a sexual nature and that Mr Dileo is the principal Crown witness. Further, Mr Beling has told me, as he understands the case that will be presented against his client, it will essentially be word against word. It is also apparent from the material provided that Mr Dileo has a criminal history - and quite a substantial one from what I can glean. I am also told that these offences are alleged to have occurred up to 20 years ago.

11. I have presided over a sufficient number of criminal trials including sex trials to know that the combination of such circumstances is potentially very troublesome: charges which are old; a principal Crown witness with a criminal history; word against word. I can well understand that Mr Beling, in his capacity as the applicant's legal adviser is not only anxious but duty bound to gather as much information as he lawfully and reasonably can in order to discredit Mr Dileo, Mr Beling's instructions being that his client is not guilty of these crimes and that the allegations against him are false.

12. Against that background I return to the issue as to whether disclosure of this information would be manifestly unreasonable. I do not finally determine the issue of reasonableness today. This is very much in the nature of a preliminary hearing because of the exemption relied upon at the moment. It is said that it is manifest or apparent that the documents would be exempt.

13. As Mr Beling has pointed out more than once, it is the fundamental right of an accused person to have the opportunity to test the evidence of all Crown witnesses, particularly controversial ones, and for the reasons I outlined a moment ago when giving the background to this particular prosecution, there seems to be a particular need in this case for the applicant to have the opportunity to fully cross-examine Mr Dileo.

14. So on the face of it, it does seem to me that the accused has a very legitimate and substantial interest in procuring relevant information about Mr Dileo's prior criminal history and character. Mr Beling concedes that his client is not entitled to irrelevant personal information such as medical history, family history and so on. He does not seek that information. All he is seeking is information bearing upon Mr Dileo's criminal history, criminal disposition and anti-social behaviour.

15. For those reasons it is by no means apparent to me that the whole of the contents of the Police reports, which we know now to exist, would be exempt. As I said, I have no reason to doubt that appropriate editing could be undertaken if need be. It may be that when this case moves to its next step it will be found that there is not much of value in the documents at all. I do not know. I have to make the judgment today on the basis of the general nature or character of those documents.

16. So far as the breach reports are concerned, I do not have to say anything about them because unless all the documents can be shown to be exempt under s.25A(5), that sub-section has no further application.

17. Therefore, for the reasons I have just given, I have come to the conclusion that the exemption asserted in s.25A(5) is not made out and in those circumstances I think the appropriate directions for me to give are that within 7 days of the date of this order the respondent identify any document or documents described in the refined request and that the respondent state in writing any exemption or exemptions asserted with respect to any such documents.