1. The respondent is to release to the applicant the third paragraph of Document 5, as described in this decision. This order comes into effect after the expiry of 28 days from the date of this decision.
2. The decision under review is otherwise affirmed.

1. Mr Rudy Frugtniet obtained a law degree from Deakin University in 2001, but has not been allowed to sign the role of practitioners in Victoria.[1] In addition, civil proceedings were taken against him in VCAT, resulting in him being declared a disqualified person for three years from April 2011.[2] This prevented him from being employed by a law practice, even as a non-lawyer. The declaration was made on the basis of a finding that at Werribee Magistrates' Court on 25 May 2010, Mr Frugtniet appeared on behalf of parties to a proceeding and intentionally misrepresented himself to a Magistrate, and to opposing counsel, as being a practising solicitor.
2. Under the Freedom of Information Act 1982 (FOI Act) Mr Frugtniet seeks documents relating to the investigation of his conduct by the Law Institute of Victoria (LIV), Legal Services Board (LSB) and Legal Services Commissioner (LSC). (The VCAT disqualification proceeding was conducted by the LIV as the delegate of the LSB.) In particular Mr Frugtniet seeks documents relating to the decision to commence criminal proceedings against him in the Magistrates' Court for engaging in legal practice without a practising certificate (subsequently withdrawn). He believes an injustice has occurred, whereby VCAT refused to stay the disqualification proceedings against him. He is concerned VCAT was wrongly told it was unlikely that a prosecution would be commenced against him.
3. Mr Frugtniet's FOI request was made in April 2013. In May 2013, the LSB responded, refusing access to all documents it held which are covered by the request. In June 2013, Mr Frugtniet sought review by the FOI Commissioner. Then followed extensive correspondence between the LSB and the FOI Commissioner. This related to the way in which the secrecy provisions in the Legal Profession Act 2004 (LPA), and other matters, affected the conduct of the review by the FOI Commissioner. Ultimately, the LSB refused to produce the documents in dispute to the FOI Commissioner. So in March 2014, she determined to dismiss Mr Frugtniet's application for review under s 49G(1)(c) of the FOI Act on the basis that it would more appropriately be dealt with by VCAT.
4. There are six documents (referred to below as 'Documents') in dispute. They fall into three categories:
   • First, Documents 1 and 3 ─ Investigation Reports. Document 1 is the Interim Investigation Report into Mr Frugtniet's conduct by Mr John Mazaris, Senior Solicitor in the Professional Standard Division of the LIV, dated 23 September 2010 (including 39 attachments). Document 3 is a Supplementary Interim Investigation Report by Mr Mazaris, dated 22 November 2010 (plus six attachments). It deals with Mr Frugtniet's response when the allegations in the first report were put to him.
   • Second, Documents 2 and 4 ─ internal LSB memoranda. Document 2 is an internal memorandum from an LSB lawyer to another officer of the LSB who is also a lawyer dated 27 September 2014 (four pages). Document 4 is an internal briefing memo from an LSB lawyer to the Legal Services Commissioner, Mr Michael McGarvie, dated 4 March 2011 (three pages).
   • Third, Documents 5 and 6 ─ emails. Document 5 is a single page email dated 24 March 2011, from a legal adviser of the LSB to the LIV solicitor instructing in the VCAT disqualification proceedings, Mr Joe Barravecchio. Document 6 is also a single page email to Mr Barravecchio on the same day, but from a different LSB lawyer. These were sent during the pre-lunch session of the VCAT proceeding that day. They relate to the question of whether a criminal prosecution would be brought against Mr Frugtniet.
5. The LSB claims the following four exemptions apply to all of the Documents:
   • Section 30 (internal working documents)
   • Section 32 (legal professional privilege/client legal privilege)
   • Section 33 (documents affecting personal privacy)
   • Section 38 (documents to which secrecy provisions apply)

In addition, the LSB claims that the two reports (Documents 1 and 3) are exempt under s 35 (material obtained in confidence).

1. The starting point under the FOI Act is a presumption that any person has the right to obtain documents from government agencies subject only to exceptions and exemptions set out in the FOI Act. Section 3(2) states that it is the intention of Parliament that the provisions of the FOI Act be interpreted so as to further that object, and any discretions conferred by the Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
2. The respondent bears the onus of proof in seeking to establish that the disputed documents are exempt.[3]

1. The particular issues which it appears Mr Frugtniet is concerned about and have motivated this FOI review are: that VCAT refused to stay the disqualification proceedings despite his submission that his right to silence in any later criminal proceedings would be prejudiced if it proceeded; and that this was on the basis of misleading statements by the LIV's counsel to VCAT that a prosecution was unlikely, whereas, as subsequently became apparent, the LSC had already determined to prosecute (and criminal charges were indeed filed against him a month after the VCAT hearing concluded).
2. The LIV accepted that it had given incorrect information to VCAT. The following account draws on an affidavit sworn by Mr Barravecchio, seeking to set the record straight. This affidavit was filed on 21 February 2012, in the appeal proceedings against the VCAT three year disqualification decision, brought by Mr Frugtniet in the Court of Appeal. It also draws upon oral evidence given in this hearing by Mr Frugtniet about what occurred during the VCAT disqualification proceeding, and from the transcript of several parts of the hearing which he provided to the Tribunal. I am conscious, however, that the material provided to me during the course of this FOI review does not comprise the 'full story' of what occurred in the VCAT disqualification proceedings.
3. Those proceedings ran before Vice President Judge Jenkins for five days: 21 February, 8, 9 and 24 March and 8 April 2011. On the first day, Mr Frugtniet (who at that stage was representing himself) raised the issue of whether the LSB was contemplating bringing any criminal proceeding against him in the future for engaging in legal practice without a practising certificate. The point was that the continuation of the disqualification proceeding may deprive him of the benefit of the privilege against self incrimination in any such future criminal proceeding. Mr Geoffrey Coates, the Manager of Compliance at the LSB, gave evidence that no recommendation had been put to the LSB to prosecute Mr Frugtniet and the LSB had not contemplated that. As described below, this was not in fact correct.
4. On the second hearing day, 8 March 2011, Mr Michael Brett Young, CEO of the LIV, gave evidence. He was asked to make enquiries over the lunch adjournment, to seek to ascertain whether there was an investigation report into Mr Frugtniet's conduct at Werribee Magistrates' Court on 25 May 2010. Over the lunch adjournment, Mr Brett Young located the report (which it appears is Document 1 in this review) and brought it to the VCAT hearing room. With the agreement of Mr Holdenson QC, counsel for the LIV (who said he had not seen the report) it was handed to Mr Milanovic (counsel then acting for Mr Frugtniet) in order to enable him to formulate any proper questions to put in cross examination. This volume, which was quite substantial, was left with Mr Milanovic and Mr Frugtniet in the hearing room, while the matter was stood down to enable this to occur. Mr Frugtniet said the hearing resumed about 45 minutes later, questioning concluded and he believed the report was then handed back to Mr Brett Young without being tendered.
5. On the fourth VCAT hearing day, 24 March 2011, Mr Holdenson, made a disclosure to Judge Jenkins to the effect that a prosecution of Mr Frugtniet had in fact been contemplated (contrary to what Mr Coates had said). He disclosed that an email to Mr Barravecchio that day (Document 5) included the statement

The Board will be seeking to prosecute Mr Frugtniet pursuant to 7.2.10(1)(a) of the Act ...

Mr Holdenson told Judge Jenkins that the author of the email had said to him that a recommendation to prosecute for unqualified practice has been made to the delegate of the Board.

1. Mr Milanovic then renewed the application for the VCAT disqualification proceeding to be stayed pending any subsequent criminal proceeding. In the course of subsequent discussion with Judge Jenkins, Mr Holdenson said that no decision had been made to prosecute, and that the prospect of there being a criminal proceeding was fanciful.[4] (In actual fact, although neither Mr Holdenson, nor his junior Mr Randall, nor Mr Barravecchio knew it at the time, the Legal Services Commissioner, Mr McGarvie, had already (on 15 March 2011) approved the bringing of criminal proceedings against Mr Frugtniet.)
2. On 8 April 2011 VCAT's decision was handed down. Mr Frugtniet was declared to be a disqualified person for three years.
3. Judge Jenkins' decision gave reasons for refusing to stay the VCAT proceeding pending any criminal prosecution. First, she said that no decision had been made to prosecute. (As indicated, that was not in fact correct.) Second, she said there is no imperative that the LSB or the LIV first exhaust any criminal charges which may be supported on the evidence in lieu of the VCAT application. Third, she said that by 24 March 2011, when the application to stay the VCAT proceedings was renewed, the evidence had all been given and only final addresses remained. In those circumstances there was no capacity for anything further to occur which could interfere with the right to silence. Accordingly, Judge Jenkins concluded that there was no inhibition to the matter being finalised.[5]
4. As stated, Mr Frugtniet appealed to the Court of Appeal against the VCAT disqualification decision. Mr Barravecchio's affidavit in the Court of Appeal proceedings was sworn on 21 February 2012. It stated that in February 2012, he became aware that by the date the VCAT disqualification case commenced (on 21 February 2011) the Legal Services Commissioner, acting as the LSB's delegate, had in fact approved a recommendation that the matter be referred to Victoria Police for prosecution. Mr Barravecchio's affidavit stated he had been advised that referral to the Police never occurred. It also stated that he had been informed neither Mr Holdenson, nor Mr Randall were aware of these matters either, until February 2012.
5. Secondly, Mr Barravecchio's affidavit recited the events which occurred in the Tribunal on 24 March 2011, described above. It stated that neither Mr Holdenson, Mr Randall nor Mr Barravecchio were aware, until February 2012, that Mr McGarvie had in fact, on or about 15 March 2011, approved a recommendation that criminal proceedings be brought by the LSB [as opposed to the Police] against Mr Frugtniet.
6. Thirdly, Mr Barravecchio's affidavit stated that the charges against Mr Frugtniet would be withdrawn at the next mention in the Magistrates' Court, on 22 February 2012, the day after his affidavit was sworn. The charges were so withdrawn. Mr Frugtniet said he had received an amount for costs in relation to the withdrawn prosecution. It appears this withdrawal occurred without the two investigator's reports, being Documents 1 and 3, being disclosed to Mr Frugtniet, whether through pretrial disclosure under the Criminal Procedure Act 2009 or otherwise ─ Mr Frugtniet said no prosecution brief was served on him.
7. Mr Frugtniet's appeal was heard on 30 July 2012. The Court of Appeal decision was handed down on 13 August 2012.[6] Mr Frugtniet was unsuccessful in seeking to overturn the disqualification. He was however successful in having a VCAT finding of contempt and a costs order against him overturned. It was in the context of dealing with costs that the Court of Appeal referred to Mr Frugtniet's submissions about VCAT being misled as to the prospects of criminal proceedings being commenced against him. It determined the costs issue on another basis, however.[7]

1. On behalf of the LSB, evidence was given in support of the application of the exemptions by Mr David Forbes, General Counsel to the LSB and LSC. He provided a witness statement, and was cross-examined.
2. Mr Frugtniet filed a single page witness statement, a single page statement of public interest grounds and a two page statement of legal contentions prior to the hearing. He attached a copy of the charges brought against him in the Magistrates' Court, Mr Barravecchio's affidavit, a 24 page extract of transcript of the VCAT disqualification proceedings comprising the evidence given by Mr Coates of the LSB on the first day of the hearing, plus three pages of transcript from the second day, relating to the evidence of Mr Brett Young, referred to above.
3. Although Mr Batskos indicated he did not wish to cross-examine Mr Frugtniet on his witness statement, I allowed Mr Frugtniet to give oral evidence, which was then the subject of cross-examination.
4. Both parties filed written submissions after the conclusion of the hearing, with leave of the Tribunal.

SECTION 33 - PERSONAL PRIVACY

1. Section 33 of the FOI Act provides protection for individuals against unreasonable disclosure of information relating to their personal affairs.
2. Prior to the hearing, the LSB carried out a notification process under s 53A of the FOI Act. It notified 51 persons of the request made by Mr Frugtniet for documents. It received responses from a number of those persons, and prepared a summary for the Tribunal. It prepared submissions and evidence in support of the application of s 33 to the Documents.
3. In his submissions filed after the hearing however, Mr Frugtniet 'consented to any deletions in respect of parties names, addresses and other details that may identify ... individuals'. I understand that Mr Frugtniet's ultimate position is that he does not seek any part of any of the Documents which would be exempt under s 33, thus nullifying s 33 as an issue in this case.
4. This would entail deletions being undertaken so as to reveal only information which does not comprise names, addresses or any other details which might identify individuals. However, given that I have found all the Documents are subject to other exemptions and should not be released (except for one paragraph in Document 5) it is not necessary to carry out that exercise.

1. Section 35 renders documents exempt under the FOI Act to the extent that release would divulge information obtained in confidence by the LSB, and that disclosure would be contrary to the public interest because it would be reasonably likely to impair the LSB from obtaining similar information in the future.
2. The LSB only relied on s 35 in relation to the two investigator's reports, Documents 1 and 3. It produced submissions and evidence to support the contention that persons who had provided information to it about Mr Frugtniet's activities had done so on the basis that it would not be released unless this became necessary as part of consequential legal action against Mr Frugtniet. It submitted that if such information was released under FOI, this would undermine the LSB's ability to obtain such information in the future as part of carrying out its regulatory activities for the purpose of protecting the public. This argument appears to be a valid one given the LSB's role, and the importance of preserving confidential sources of information.
3. It is not necessary to consider the submissions and evidence in relation to s 35 in detail, however. First, the information concerned is likely to overlap to a significant degree with the information which is exempt under s 33 (relating to personal affairs of individuals). Second, similarly to the position under s 33, it is not necessary to distinguish material in each of the Documents which is covered by the s 35 exemption from that which is not. This is because of my findings that the exemptions in s 30 and s 32 apply to the whole of the Documents in any event (save for one paragraph from Document 5).

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 or client legal privilege.

1. Nekvapil's Victorian Administrative Law summarises the position[8], saying that a document will be privileged if:

(a) it contains a confidential communication between the client (or the client's agent) and the client's professional legal advisers that was made for the dominant purpose of obtaining or providing legal advice or is referrable to pending or completed litigation;

(b) it contains a confidential communication between the client's professional legal advisers and third parties that was made for the dominant purpose of pending or contemplated litigation; or

(c) it contains confidential communication between the client (or the client's agent) and third parties that was made for the purpose of obtaining information to be submitted to the client's professional legal advisers for the dominant purpose of obtaining advice on pending or completed litigation.[9]

1. Having read the disputed documents, it is clear to me that they are all legally privileged.
2. Documents 1 and 3 are the reports by Mr Mazaris (LIV senior solicitor) who conducted the investigation into Mr Frugtniet's conduct at the Werribee Magistrates' Court on 25 May 2010. They comprise his report of the investigation he conducted, and his recommendations about what actions should be taken against Mr Frugtniet under LPA. This is confidential legal advice. Mr Mazaris' two reports clearly fall within (a) of the description of legal privilege above. The requisite lawyer/client relationship here is between Mr Mazaris and the LIV (as delegate of the LSB).
3. I am satisfied that the copies of documents which are attached to the two reports were made for the purpose of providing the legal advice set out in those reports. This is obvious from the content of the reports, and the way the attached documents were referred to in them. I accept that the principle which formed the basis of the High Court's decision in Commissioner of Australian Federal Police v Propend Finance Pty Ltd,[10] applies here, so that such photocopies are privileged, even if the original documents are not privileged because they were not brought into existence for a privileged purpose.
4. Documents 2 and 4 each comprise confidential legal advice from an in-house LSB lawyer to a superior, concerning action which should be taken against Mr Frugtniet. Document 2 follows the first investigation report and Document 4 was written after the VCAT disqualification proceedings had commenced.
5. The fact that the legal advice was provided by a salaried legal adviser does not affect the existence of the privilege.[11] Nor does the fact that the advice also covers what might be described as 'policy' issues. The dominant purpose of both documents was clearly to provide legal advice. Such 'policy issues' themselves have a legal flavour, in any event.
6. Documents 5 and 6 are both emails from LSB legal officers to the LIV solicitor who was instructing counsel in the VCAT disqualification proceedings against Mr Frugtniet. They relate to issues concerning that proceeding, and to the prosecution of Mr Frugtniet in the Magistrates' Court for breaches of the LPA.
7. These documents are subject to both legal advice privilege and litigation privilege. They comprise information exchanged between lawyers employed by bodies jointly involved in the regulation of the provision of legal services. They are about Mr Frugtniet's conduct, and current and proposed action against him. As such, they fall within category (a) in the description from Nekvapil above.

1. Mr Frugtniet contended that legal privilege had been waived in relation to all six Documents. Different considerations apply when considering the possibility of waiver of legal privilege in relation to the three categories of Documents.

1. Mr Frugtniet contended that legal privilege was waived in relation to Documents 1 and 3 on the basis that he and his counsel inspected a report for 45 minutes during the VCAT hearing on 8 March 2011.[12] In fact, it appears that only one of two reports was disclosed to Mr Frugtniet in the VCAT hearing, probably Document 1. On this basis, it could not be contended that waiver of legal privilege has occurred in relation to Document 3.[13]
2. Implied waiver of legal privilege occurs when the conduct of the client (whose privilege it is - not the lawyer's) is inconsistent with the maintenance of confidential communications between the client and the lawyer. This is a question for the court (or tribunal) to decide, where necessary informed by considerations of fairness.[14] So, for example, a client may not allege their lawyer gave negligent advice, and then rely on the privilege to prevent disclosure of that advice.[15]
3. The question is whether, in effect, the privilege holder has directly or indirectly put the contents of an otherwise privileged communication in the issue in the litigation, either in making a claim or by way of defence.[16] This often arises in the context of commercial litigation. In DSC (Holdings) Pty Ltd v Intertan Inc, Allsop J, said that waiver arises when:

... the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication.[17]

1. In relation to Document 1, the evidence I received was to the effect that in the course of responding to an application by Mr Frugtniet for the VCAT proceeding to be stayed, part of Mr Mazaris' report was made available for inspection by Mr Frugtniet and his counsel. This was to enable appropriate questions to be put in cross-examination to a witness relating to the issue of whether or not a stay should be granted.
2. This disclosure seems to me not to have been made in order to achieve any forensic advantage in the VCAT proceedings: it was not relied upon as part of the LIV's case that Mr Frugtneit be disqualified. It appears rather to have been provided out of fairness to Mr Frugtniet in relation to a subsidiary issue - his application for stay. Disclosure was provided in a limited way - no copy was provided - and not in a way which put into issue the actual content of the advice (similarly to the position in the Osland cases).
3. I am conscious that in Mann v Carnell, the High Court found it significant that the legal advice, which concerned an action brought by Dr Mann against the Crown, was not shown to Dr Mann himself. Rather it was given confidentially to an independent MP, to demonstrate the reasonableness of a settlement reached, and payout made to Dr Mann. The High Court said that had the MP been at liberty to show this legal advice to Dr Mann, that would have waived privilege.[18]
4. I also note this is an unusual situation, compared to most of the cases which were reviewed by Maxwell P in Secretary to the Department of Justice v Osland,[19] many of which involved some form of disclosure of a solicitor's or counsel's advice in the course of a commercial dispute. In that sense, this case is more akin to Mann v Carnell and Osland.[20] But as Maxwell P emphasised, each case depends on whether, in its own particular circumstances, the requisite inconsistency exists, between the disclosure on the one hand, and the maintenance of confidentiality on the other.[21] I have concluded that here, it does not.
5. Nor does the potential for future disclosure of the two reports, or parts of their contents, pursuant to the prosecution's obligations under the Criminal Procedure Act 2009 affect my conclusion.[22] It is not clear that the reports and their attachments would have been disclosed in full, or in their present form, had the prosecution proceeded. More importantly, the prosecution did not proceed, and so the obligation under that Act is no longer of any relevance.
6. Accordingly, I conclude that legal privilege has not been waived in relation to either Document 1 or Document 3.

1. Mr Frugtniet contended that because these documents were based on the report of the investigator, 'a continuum on which Legal Professional Privilege if it existed has been waived'. I reject that contention. Those two documents are differentiated from the investigation reports in time, and by their content. I have found privilege was not waived in relation to those two reports in any event. There is no basis for suggesting that privilege has been waived in relation to Documents 2 and 4.

1. In relation to documents 5 and 6, Mr Frugtniet's submission stated:

As the decision of Judge Jenkins discloses the very fact that such emails were in part disclosed waives all rights to any such claim of Legal Professional Privilege. (sic)[23]

1. It is clear that part of the first email (Document 5) was disclosed. Part of it was read out in the hearing and was quoted in the VCAT decision.[24]
2. The LSB Reply Submissions appeared to accept that the disclosure of the three sentence passage which is quoted in the VCAT decision constitutes a waiver in relation to that text.[25] I agree.
3. The LSB contends, however, that legal privilege in relation to the remainder of Document 5 has not been waived. Again I agree. The key question here is in effect whether the limited disclosure having been made, fairness requires that the privilege no longer applies in relation to the whole document, or for all purposes.[26] In this case, I can identify no such unfairness to Mr Frugtniet - I was not made aware of any ongoing proceedings, or other circumstances, in which it could be argued that this disclosure could confer an unfair advantage on the LSB. On the contrary, it was made on the basis that out of fairness, and to avoid misleading the Tribunal, it should be disclosed.
4. In contrast to Document 5, the second email of 24 March 2011 (Document 6) was not quoted directly in Judge Jenkins' decision. Although some of the language of paragraph 22 of that decision is similar to that used in Document 6, I received no evidence to indicate that the email was in fact read out, in whole or in part. The apparent use by counsel of some of the language from instructions received puts whatever words were spoken into the public arena, but that is a different thing to waiving privilege over the document containing that language. I am not satisfied there has been a waiver of legal privilege in relation to Document 6.
5. The upshot is that I find that legal privilege continues to apply to all six Documents, except for the third paragraph of Document 5. Hence, the Documents are all exempt under s 32, save for that paragraph.

SECTION 30 - INTERNAL WORKING DOCUMENTS

1. The LSB claimed that all six documents were exempt under s 30. This relevantly provides:

(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

(3) This section does not apply to a document by reason only of purely factual material contained in the document.

1. Having considered the Documents and the evidence, I have concluded that save for that part of Document 5 which was disclosed to VCAT and quoted in the VCAT decision, all the disputed Documents are exempt under s 30.
2. It is quite clear from a review of Documents 1 - 4 that they all provide opinion, advice and recommendations, and comprise consultation and deliberation between officers. This is for the purpose of determining what conduct Mr Frugtniet had engaged in, and what steps should be taken in response. The fact that Documents 1 and 3 are authored by an LIV solicitor, and addressed to the LSB does not affect this conclusion, as the LIV was acting as the LSB's delegate.
3. It is also clear that the two emails which are Documents 5 and 6 were created for the purpose of consultation (again, between officers of the LSB, and its delegate, the LIV).
4. In all cases, the Documents were created in the course of the LSB's deliberations about action taken, and to be taken, in response to Mr Frugtniet's conduct.
5. That leaves the question of whether disclosure would be contrary to the public interest.
6. In relation to the two investigation reports (Documents 1 and 3), some of the most obvious public interest factors relied upon by the LSB depend on those documents being legally privileged, material having been obtained in confidence and the statutory confidentiality provisions applying. I accept that to the extent those exemptions apply, there is strong public interest ─ in not undermining the long established doctrine of legal privilege, not prejudicing confidential sources of information, and not undermining the confidentiality regime established by the relevant legislation.
7. Aside from these considerations, the LSB relied on a number of the commonly invoked public interest factors in relation to its claim for exemption under s 30. A number of these I do not regard as particularly strong. I do accept, however, that the discussion of courses of action not necessarily followed through should not be released, since that does have potential to inhibit good regulatory practice, for the benefit of consumers of legal services, and the public generally. I also accept to some extent that release of detailed descriptions of the way in which the investigator carried out his inquiries and followed up leads, would cause reports to be less extensively expressed in future.
8. To that extent, I find that Document 1 is exempt under s 30 independently of the application of the exemptions under ss 32, 35 and 38.
9. I also accept that the disclosure of further steps described in the evidence gathering process referred to in Document 3, and the analysis by Mr Mazaris of Mr Frugtniet's responses, is material which if released, would tend to undermine the effectiveness of that process in the future.
10. Accordingly, I find that Document 3 is also exempt under s 30, independently of ss 32, 35 and 38.
11. In relation to Documents 2 and 4, again, there is a strong public interest against release, to the extent that the exemptions relating to legal privilege, and relevant statutory confidentiality provisions apply.
12. Documents 2 and 4 contain frank assessments of strategic matters relating to the conduct of the LSB's regulatory function. The frankness and candour argument does genuinely apply in relation to these. Also, I accept that their release would create a misleading impression that actions were taken, which in fact were not.
13. Accordingly, I find Documents 2 and 4 are exempt under s 30, independently of the position in relation to ss 32 and 38.
14. Document 5, as stated, was partially disclosed: it was read out during the Tribunal hearing, and quoted in the Tribunal's decision. In these circumstances, it cannot be maintained that disclosure is contrary to the public interest.
15. The remainder of Document 5, however, relates to different matters. It is an email from an LSB lawyer to an LIV lawyer. It relates to various aspects of the proceeding being conducted against Mr Frugtniet. In my view, it is certainly contrary to the public interest for communications between regulators of this nature to be released, as it would inhibit the free exchange of information necessary for the effective conduct of such proceedings for the purpose of protecting the public.
16. Hence, the remaining parts of Document 5 are exempt under s 30, quite apart from the application of the exemptions in ss 32 and 38.
17. Document 6 is an email from a different lawyer at the LSB to the same LIV lawyer, Mr Barravecchio. The same reasons apply, to yield the conclusion that Document 6 is also exempt under s 30, independently of ss 32 and 38.
18. In summary, I find there are strong public interest factors to support the conclusion that each of the Documents is exempt under s 30. And even if the exemptions under ss 32, 35 and 38 did not apply, the documents would all be independently exempt under s 30 in any event.

SECTION 38 - DOCUMENTS TO WHICH SECRECY PROVISIONS APPLY

A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications.

1. This provision imposes three requirements for documents to be exempt:
   1. There must be in force an enactment.
   2. The enactment must apply specifically to information of a kind contained in a document, and
   3. The enactment must prohibit persons referred to from disclosing information of that kind (either absolutely or subject to exceptions or qualifications).
2. The third limb requires that the enactment must specify which persons are prohibited from disclosing information. However, the cases demonstrate that in order to satisfy the second limb, it is not sufficient if an enactment merely prohibits disclosure of information by persons who are officers of an agency in the course of their duties. Rather, the enactment must refer to information which is described with sufficient specificity.

1. The three secrecy provisions which the LSC relies on are all located towards the end of the LPA.
2. The first is a general confidentiality provision applicable to members of the LSB, the LSC and their employees and agents. It is s 6.4.5(2). It states:

(2) A person to whom this section applies must not, directly or indirectly, make a record of, disclose or communicate to any person any information relating to the affairs of any person or law practice acquired in the performance of functions under this Act, unless -

(a) it is necessary to do so for the purpose of, or in connection with, the performance of a function under this Act; or

(b) the person to whom the information relates gives written consent to the making of the record, disclosure or communication.

Amongst others, this provision applies to a person to whom the LSB has delegated functions.

1. The second secrecy provision is located within the Division of the LPA dealing with investigations and prosecution of offences. An investigator has power to require a person to provide information (s 7.2.7). Complementary to this is the secrecy obligation imposed on investigators by s 7.2.9(1), which provides:

(1) An investigator must not disclose information acquired in the course of an investigation under this Division except -

(a) as is necessary for the purpose of conducting the investigation and making the report of the investigation; or

(c) with the consent of the person to whom the information relates.

This is subject to exceptions which allow disclosure to the police, LSB, LSC, or a court or Tribunal, etc, for law enforcement purposes (s 7.2.9(2)).

1. The LSB did not rely on this second secrecy provision in relation to Documents 5 and 6, the two emails. This is on the basis that they do not relate to the investigation.
2. This provision is relied on, however, in relation to Documents 1, 2, 3 and 4. The decision in Secretary to the Department of Justice v Western Suburbs Legal Service Inc[27] makes it clear that it does not matter if the specified information is in the hands of another, as opposed to the investigator. That does not prevent s 38 from applying to Documents 1, 2, 3 and 4.
3. The third secrecy provision relied on by the LSB is located within 'Division 3 - General' of Part 7.2 of the LPA, together with other miscellaneous provisions. It is s 7.2.15, headed 'Confidentiality' and provides:

(1) A relevant person must not disclose to any other person, whether directly or indirectly, any personal information[28] obtained by reason of being a relevant person.

(2) Subsection (1) does not apply to the disclosure of information -

(a) to the extent that the disclosure is reasonably required to perform functions under this Act, the regulations or the legal profession rules, or under any other Act or regulations; or

(b) to the extent that the relevant person is expressly authorised, permitted or required to disclose the information under this Act, the regulations or the legal profession rules, or under any other Act or regulations; or

(c) with the prior consent in writing of the person to whom the information relates; or

(d) to a court or tribunal in the course of legal proceedings; or

(e) pursuant to an order of a court or tribunal under any Act or law; or

(f) to the extent the disclosure is reasonably required to enable the enforcement or investigation of the criminal law or a disciplinary matter.

A 'relevant person' includes a person currently or previously employed by or acting at the direction of the LSB.

1. It is immediately apparent that the first and third limbs of s 38 of the FOI Act are satisfied in relation to all three of these secrecy provisions: each is an enactment in force, and in each case, specified persons are prohibited from disclosing information (subject to exceptions or qualifications in each case).
2. Relevantly:
   • The first secrecy provision (s 6.4.5(2)) applies to a person to whom the LSB has delegated functions.
   • The second secrecy provision (s 7.2.9(1)) applies to an investigator.
   • The third secrecy provision (s 7.2.15(1)) applies to a person currently or previously employed by or acting at the direction of the LSB.

1. I now turn to the second limb of s 38. This directs attention to the nature of the information referred to in the relevant secrecy provision.
2. The first and third secrecy provisions relied on both refer to personal information:
   • Section 6.4.5(2) refers to 'any information relating to the affairs of any person or law practice'.
   • Section 7.2.15(1) refers to 'any personal information'.
3. The authorities accept that these formulations are sufficiently specific to satisfy the second limb. That is, such formulations do satisfy the requirement that they 'apply specifically to information of [that] kind contained in the document'. See Richardson v Business Licensing Authority[29] and XYZ v Victoria Police.[30] I find that the second limb of s 38 is satisfied by both the first and third secrecy provisions.
4. The second secrecy provision refers to 'information acquired in the course of an investigation'. Virtually identical words in the former version of s 20 of the Ombudsman Act 1973 were held to identify the information to be protected with sufficient specificity in Deasey v Geschke.[31] In Re Berryman v Department of Education[32] the Tribunal reached the same conclusion in relation to 'information collected during the course of the process' [relating to the handling of complaints against school teachers]. On the other hand, a different view was taken in Lapidos v Ombudsman[33] and Woodford v Ombudsman.[34]
5. On balance, I find the protected information is described with sufficient specificity in s 7.2.9(1). Here, the overall effect of the provision is more specific than was the case in Berryman, for example, in that it is confined to information acquired by an investigator in the course of an investigation, rather than a wider group of persons involved in a more broadly defined 'complaints process'.
6. Thus I find the second limb of s 38 is satisfied by the second secrecy provision.

1. The main point argued by Mr Frugtniet in relation to s 38 was that he had consented to the release of his personal information, and so the three secrecy provisions did not apply. As noted, each of these three provisions includes an exception which operates where consent to disclosure is given by the person to whom the information relates (written consent in the case of the first and third secrecy provisions).
2. Mr Batskos contended that Mr Frugtniet's consent did not stop s 38 from applying. He pointed to the final words of s 38, which allow for the applicable secrecy provision to be subject to exceptions or qualifications. He said that even if there is an exception (such as a person consenting to the release of their personal information) s 38 still applies to render applicable documents exempt.
3. Mr Batskos also said:

What might (not must) be accessible outside the freedom of information regime by operation of an exception or qualification to a secrecy provision is irrelevant to determining whether a document is exempt under s 38 of the FOI Act.

1. I am not certain that the position is as broad and unequivocal as Mr Batskos submitted. The only authority he referred to as relating specifically to this question was Morgan v Equal Opportunity Commission Victoria.[35] But in that case it was significant that there was no exception provided under which a person could give consent to release of their personal information.[36] That is in contrast to the position here, where the three secrecy provisions all contain such an exception. It seems consistent with the purpose of the FOI Act that where there is a secrecy provision which contains an exception where a person consents to the disclosure of their personal affairs, then to that extent, the secrecy provision should not render the material exempt under s 38.
2. However in this case, if Mr Frugtniet's submission is accepted, when Documents 1 and 3 are considered, it would be necessary to carry out the task of sifting out information relating to the personal affairs of other persons from information relating exclusively to the personal affairs of Mr Frugtniet. This would not necessarily be easy. But it would be necessary, because if Mr Frugtniet's submission was accepted, the personal information of others would still be protected and fall within s 38.[37] Nor is there any requirement for s 38 akin to the obligation concerning documents exempt under s 33, to ascertain the views of such other persons.[38]
3. Accordingly, if Mr Frugtniet's argument about his consent modifying the operation of the secrecy provisions, thereby nullifying the application of s 38 is accepted, it would not prevent s 38 from applying to some of the information in Documents 1 and 3, at least.
4. In relation to s 38, however, I am conscious of a number of matters. First, these issues were not argued to the level of fine detail which an analysis of this type requires. Second, I was not provided with a copy of the written consent by Mr Frugtniet, which is required for the first and third secrecy provisions.[39] And third, I have found the documents exempt on other grounds in any event. In these circumstances, I will not make definitive findings on s 38.

1. It appears from Mr Frugtniet's submissions that he seeks to invoke the public interest override, to the extent any of the documents are found to be exempt.
2. Section 50(4) of the FOI Act states:

(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 public interest factors asserted by Mr Frugtniet in his submission prior to the hearing were:
   • The public interest in a person having a right of access to their personal records or to documents containing decisions which affect them. (In his written submissions filed after the hearing, Mr Frugtniet referred to the possibility of civil action that he might be able to take.)
   • Community concern about the issues dealt with in the Documents, particularly where some of the material in the Documents is already public knowledge, and disclosure would complete the picture of what is known about that matter, and enable adequate public debate about this.
   • The desirability of transparency in government decision-making.

He also contended that the sensitivity of the material in the Documents has diminished over time.

1. Mr Frugtniet further suggested during the hearing and in his subsequent written submission that there had been 'mala fides' and that practices had been_' deployed for an improper purpose'_. Neither his oral nor his written submissions were expressed with any precision or in any detail, beyond the general implication that there was something improper in the way his matters had been handled, and in particular, that the Tribunal had been advised no prosecution was approved to be commenced against him, when in fact it had been.
2. Mr Frugtniet also referred to the fact that different counsel appeared on behalf of the LIV before the Court of Appeal to the counsel who appeared at VCAT. And he suggested that the time for service of the summons for the criminal charges brought against him had been improperly extended. In the form they were put to the Tribunal, these two suggestions were no more than vaguely expressed speculation. No public interest is articulated in relation to these matters, let alone one which would require release of documents. So I make no further reference to them.

1. As has been said in many cases,[40] it is not enough for the override to be invoked that access to documents could be justified in the public interest. A 'high threshold' public interest must be identified. In XYZ v Victoria Police[41] Bell P said:

The proper application of the public interest override requires me to identify and balance the countervailing public interest considerations, and then to consider whether the considerations in favour of disclosure are so strong as to override the considerations against disclosure, particularly the interests protected by the exemptions. The public interest considerations in favour of disclosure must be so strong as to convincingly demand or necessitate release. The tribunal does not simply decide whether it is in the public interest for the documents to be released - the public interest must 'require' release in the emphatic sense in which that term is used.

1. In order for the release of any of the Documents to occur under s 50(4), the Tribunal must be satisfied that the exemptions under all of ss 30, 32, 35 and 38 (where applicable) are to be overridden.
2. Taking legal privilege as an example, this is a longstanding common law doctrine, firmly entrenched in the law[42] and so the public interest factors in favour of maintaining legal privilege are regarded as being very strong. However, on appropriate occasions, the privilege will be able to be overturned under s 50(4) of the FOI Act. Osland v Secretary to the Department of Justice[43] is an example.
3. In Re Chadwick and Department of Property and Services,[44] Judge Rowlands said:

It requires public interest factors of a high order to countervail the doctrine [of legal privilege] in the balancing process which must take place if there are competing public interest factors to be considered.

1. In Osland, the High Court gave guidance as to how the override is to be applied. French CJ, Gummow and Bell JJ said:

Relevantly to this appeal, the exercise of the power conferred by s 50(4) requires satisfaction of two conditions. The first is the condition that, as a matter of law, the material before the Tribunal is capable of supporting the formation by it of an opinion that the public interest requires that access to the documents should be granted. That condition may also be expressed as a limitation, namely, that the opinion referred to by the sub-section is an opinion which is such that it can be formed by a reasonable decision-maker who correctly understands the meaning of the law under which that decision-maker acts. The second condition is that the Tribunal actually forms the opinion that the public interest requires that access to the documents should be granted. This is an evaluative and essentially factual judgment.[45]...

... it must be accepted that the word "requires" which appears in section 50(4) directs the decision-maker to identify a high-threshold public interest before the power can be exercised. It is not enough that access to the documents could be justified in the public interest.[46]

1. In terms of the first condition identified by the High Court, the interest must be a 'public' interest.[47] In this case, I find it hard to conclude that Mr Frugtniet's concerns relate to something more than his own private interests. He has referred, for example, to bringing 'civil proceedings in respect of incorrect testimony'. What is required is that the matters Mr Frugtniet raises constitute an issue potentially of concern to the wider community. It is not clear from the information I received that the way in which the disqualification proceedings and prosecution of Mr Frugtniet were handled constitute such an issue. Second, to the extent he simply seeks to invoke general policy considerations such as the desirability of transparency and decision-making, as the above authorities indicate, that is not enough to enliven the override.[48]
2. So the analysis may not proceed to the second condition identified by the High Court. Even if it does, however, I find the public interest factors Mr Frugtniet has sought to rely on fall well short of convincingly demanding or necessitating release of the Documents in this case.
3. The situation is simply that VCAT was given incorrect information during the disqualification proceedings brought against Mr Frugtniet. There is no indication that this was due to anything other than inadvertence. That information did not relate to any matter which bore on the decision whether to disqualify him or not. In any event, Mr Frugtniet appealed, notification was given to the Court of Appeal of the incorrect information given (in an affidavit sworn by the instructing LIV solicitor) and the disqualification was not overturned by the Court of Appeal.
4. I do not regard these circumstances as giving rise to a public interest (assuming there is a public interest) which demands or necessitates release. This case is not of the same ilk as Chadwick, or Smith[49] or any of the other cases where the public interest was found to necessitate overriding legal privilege, or any of the exemptions in ss 30, 35 or 38.
5. Also, having viewed the Documents, it is apparent they do not disclose anything further which is of significance in relation to the public interests Mr Frugtniet has identified.
6. I am fortified in my conclusion by the fact that Mr Frugtniet's concerns were raised before the Court of Appeal, which, beyond a passing reference to the possibility of incorrect information being given to the Tribunal being a possible basis for overturning his costs order against Mr Frugtniet, made no adverse comments. [50] The Court of Appeal had before it Mr Barravecchio's affidavit which notified it of the incorrect information which had been provided to VCAT.
7. I also note that Judge Jenkins' decision suggests that had the Tribunal been aware that a decision had been made by the Legal Services Commissioner as the delegate of the LSB to bring criminal charges against Mr Frugtniet, it still would have proceeded with the disqualification proceeding. She said:

Furthermore there is no imperative that the Board or its Delegate first exhaust any criminal charges which may be supported on the evidence in lieu of the current Application.[51]

1. Finally, of course, the criminal charges against Mr Frugtniet were in fact withdrawn, and so the issue about interference with his right to silence never arose.
2. Accordingly, I conclude that s 50(4) does not apply to override the exempt status of the documents in dispute in this case.

1. The decision of the respondent is affirmed, save in relation to the paragraph of Document 5.

1. It is unfortunate that the FOI Commissioner was not able to obtain the Documents in this instance. This deprived the parties, and VCAT, of the benefit of the additional independent review which she conducts. Consideration might be given to whether this situation truly reflects Parliament's intention in establishing the Office of the FOI Commissioner.

1. [1] Mr Frugtniet has twice been refused admission to practice as a lawyer, first in 2002, and then again in 2005, because of his failure to disclose previous criminal charges and convictions at the time of seeking admission to practice - Frugtniet v Board of Examiners [2002] VSC 140 (per Pagone J); Frugtniet v Board of Examiners [2005] VSC 332 (per Gillard J).

[2] Law Institute of Victoria Ltd v Frugtniet [2011] VCAT 596 (per Vice President Judge Jenkins).

[4] This statement was taken from Mr Barravecchio's affidavit. I was not provided with any explanation of how this discussion unfolded.

[5] Law Institute of Victoria Ltd v Frugtniet 2011 [VCAT] 596 at [16]-[27].

[6] Frugtniet v Law Institute of Victoria Limited [2012] VSCA 178.

[9] See Esso Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49 and Daniels Corp v ACCC (2002) 13 CLR 543.

[10] (1997) 188 CLR 501, at 508, per Brennan CJ.

[11] Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54.

[12] Mr Frugtniet's Legal Submission of 18 September 2014 at [11].

[13] Even if the Document which was viewed in the VCAT hearing room was in fact Document 3, it does not make any difference, on the conclusion I have reached - see below.

[14] Mann v Carnell (1999) HCA 66 at [29]; [1999] HCA 66; (1999) 201 CLR 1.

[15] Benecke v National Australia Bank (1993) 35 NSWLR 110; Lillicrap v Nalver & Son (a firm) [1993] 1 LR 94.

[16] Commissioner of Taxation v Rio Tinto Limited [2006] FCA 254; (2006) 151 FCR 34; 229 ALR 304; [2006] AFC 86.

[17] (2003) 127 FCR 499; [2003] FCA 384.

[18] Mann v Carnell [1999] HCA 66 at [34]; [1999] HCA 66; (1999) 201 CLR 1.

[19] [2007] VSCA 96 at [11] - [69].

[20] [2010] VSCA 96 at [11] - [60].

[21] Maxwell P's analysis of waiver was expressly approved by the High Court - Osland v Secretary to the Department of Justice (2008) HCA 37; (2008) 234 CLR 275 at [50].

[22] Mr Frugtniet's Legal Submission of 18 September 2014 at [15].

[23] Mr Frugtniet's Legal Submission of 18 September 2014 at [34].

[24] Law Institute of Victoria Limited v Frugtniet [2011] VCAT 596 at [20] (albeit that the last sentence in the quoted passage in the VCAT decision in fact appears at the beginning of the quoted passage in document 5, not at the end).

[25] Paragraph 3.29 of the LSB's Reply Submissions.

[26] Goldberg v Ng (1995) HCA 39; (1995) at [18]; [1995] HCA 39; (1995) 185 CLR 83 at 95 - 6.

[27] [2009] VSC 68.

[28] 'personal information' is defined in a way similar to the definition in the Privacy and Data Protection Act 2014.

[29] [2003] VCAT 1053.

[30] [2010] VCAT 255 at [293] - [306].

[31] Unreported decision of the AAT, per Hassett J, 11 November 1994.

[32] Unreported, VCAT, per Macnamara DP 4 February 1999.

[33] Unreported, AAT, per Mr AF Smith, 3 September 1987.

[34] Unreported, VCAT per Preuss SM, 5 April 2001.

[35] [2006] VCAT 1965.

[37] It is true there are significant components of Documents 1 and 3 which do not contain personal information relating to any person other than Mr Frugtniet. These are of lesser significance, however, as they comprise things such as copies of reported court decisions, and copies of legislative provisions.

[38] Although the s 53A process which has been carried out in this case might assist.

[39] A copy of a consent to release to the FOI Commissioner was included within the s 49 materials, but I am not aware of any formal written consent for release more broadly.

[40] Notably Osland v Secretary to the Department of Justice [2010] HCA 24 at [14]; [2010] HCA 24; (2010) 241 CLR 320.

[41] [2010] VCAT 255 at [575].

[42] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 685, per Stephen, Mason and Murphy JJ.

[43] [2005] VCAT 1648; (2005) 23 VAR 378 at [38].

[44] [1987] 1 VAR 444 at page 454.

[45] [2010] HCA 24 at [12]- [13].

[46] [2010] HCA 24 at [14].

[47] Arundell v Department of Justice [2011] VCAT 1088 at [19].

[48] Pallis v Roads Corporation [2013] VCAT 1967 at [62].

[49] Smith v Attorney General's Department (1989) 2 VAR 543, and upheld on appeal [1991] VicRp 6; [1991] 1 VR 63.

[50] Frugtniet v Law Institute of Victoria Ltd [2012] VSCA 178 at [35] - [36].

[51] Law Institute of Victoria Limited v Frugtniet [2011] VCAT 596 at [18].