1. Mr Glascott is serving a term of imprisonment, having been convicted of murder.
2. He is making an application to the High Court of Australia for leave to appeal his conviction, having unsuccessfully appealed his conviction to the Court of Appeal of the Supreme Court of Victoria.[1] He has counsel's opinion concerning potential successful bases for his application to the High Court. I understand he is legally represented in that application. He represented himself at the hearing in this proceeding.
3. Mr Glascott made a request to Victoria Police under the Freedom of Information Act 1982 (the FOI Act) for the audio recording of a 000 call made by a witness (the Witness) which was part of the evidence in the criminal proceeding (the committal and trial) which led to his conviction. The Witness described the make, model and registration number of a car. That description was used to identify Mr Glascott's car as present near the scene of the murder at the relevant time. Mr Glascott claims his car could not have been present because, while he was in the area earlier in the day, he was well away from it at the time of the murder. He also claims he recalls the 000 recording played at the trial recording the witness saying the registration number was RSS070, while his car's registration number was RSZ078.
4. Victoria Police and then the Freedom of Information Commissioner decided the 000 recording was exempt from release under the FOI Act. Mr Glascott applied to VCAT for review of the FOI Commissioner's decision.
5. Mr Glascott seeks access to a copy of the recording, saying he wishes to hear the witness's description of the car and to have the recording forensically examined to investigate whether the cassette recording played at the murder trial is in fact a different recording to the CD recording provided by Victoria Police in this proceeding. He also says he needs it to progress his application for leave to appeal his conviction to the High Court.
6. Victoria Police submits VCAT should affirm the decision that the recording is exempt from release:
   1. Primarily under s 35(1)(b) of the FOI Act as release would divulge matter communicated in confidence by the Witness via the 000 system to the Emergency Services Telecommunications Agency and Victoria Police and would be reasonably likely to impair their ability to obtain similar information from other people in future; and
   2. Under s 33(1) of the FOI Act as release would involve the unreasonable disclosure of information relating to the personal affairs of the Witness.

1. While Mr Glascott was at one point legally represented in this proceeding, he represented himself at the hearing, appearing via video link from prison. I had previously refused his application to attend in person, saying if his appearance in person became necessary in order to ensure the hearing was fair, the proceeding may be adjourned part heard to another day. In my view, it did not become necessary. Mr Glascott did not apply for an adjournment.
2. Mr Nekvapil of counsel appeared for Victoria Police.
3. The following witnesses gave evidence and were cross-examined:

1. Inspector Peter Ferguson, Local Area Commander, Police Communications D24 of the State Emergencies and Security Command; 2. Acting Detective Sergeant Scott Jones, who was a member of the Homicide Squad investigating team in the investigation of the murder of Mr Robinson;

1. Mr Robin Davey, Manager, FOI Division of Victoria Police; and

1. Mr Glascott.
2. Mr Glascott sought to summons a number of witnesses. He had foreshadowed this before the hearing. I refused to grant leave for him to do so, giving oral reasons. In summary I refused leave because he was seeking to re-litigate issues concerning his trial. The evidence he sought to adduce would not have been relevant to his FOI request.
3. I reserved my decision. Since the hearing, Mr Glascott has sent further correspondence to VCAT. I have not considered it.

1. Before the hearing, Victoria Police provided VCAT a CD of the 000 recording. Unfortunately, it was blank. Another copy was provided at the hearing which I adjourned in order to listen to it. With Victoria Police's consent, I advised the hearing that the 000 recording clearly records the Witness repeating more than once the registration number RSZ078, that of Mr Glascott's car. Also, Mr Glascott had advised that lawyers, who I understand were acting for him in this proceeding and the High Court application pro bono, listened to a copy of the recording, reached the same conclusion and ceased to act for him in this proceeding. I understand they continued to act for him in the High Court application.

1. Transcript from the Trial records the Witness confirming she gave 000 the number RSZ078.[2] In tendering the cassette tape as evidence, counsel for the prosecution commented that, as played in court the tape was not clear but was clear when counsel listened to it before the trial and would be clear when the jury could listen to it. The judge noted the playing of the recording in the courtroom was "a far from perfect reproduction" and made arrangements for the jury to listen to the tape in the jury room.[3]
2. The transcript also records that Mr Glascott's barrister conceding the Witness identified his car's registration number when she rang 000. His barrister challenged that Mr Glascott was necessarily the person who drove the car to the place where the Witness saw it.[4]
3. It is apparent from the transcript that one issue with hearing the recording at the trial was that it contained a 'time voice over', recording the time as the call progressed. From experience in another VCAT proceeding where a 000 recording was in evidence, I know the time voice over can make it difficult to hear the recorded conversation. The recording provided to me in this proceeding did not have a time voice over and was clear.

1. Over the months between Mr Glascott's application and the hearing, he had posted to VCAT a variety of documents which I considered, including correspondence with other government agencies about his other FOI requests and the documents he obtained via those requests.
2. In January 2014, Mr Glascott wrote to VCAT complaining he was in lock down, as Victoria Police had complained he had attempted to write to the Witness.

1. In a long career with Victoria Police, Inspector Ferguson has served for the last 15 years in State Emergencies and Security Command. As part of his duties, he represents Victoria Police concerning state and national issues that relate to emergency call taking, dispatch and operational communications.
2. He said all calls made to 000 are answered by Telstra. If the caller seeks police assistance, he or she is transferred to the Victorian Emergency Services Telecommunications Authority (ESTA). An ESTA call taker records details and transfers the call to an ESTA radio operator at a State Emergency Communications Centres (SECC) who contacts the relevant police unit.
3. Inspector Ferguson says information provided by callers to the Victoria Police via 000 is communicated in confidence by those persons. Callers are often reluctant to get involved other than to promptly bring the matter to the Police's attention.
4. In his experience, they are often reluctant to give their name and address. If callers do provide this, it is on the understanding that their identity will remain confidential unless disclosure is required during an investigation and/or legal proceedings.
5. This is because a significant number of calls to 000 are made in circumstances involving a threat to a person's life or safety or some other serious breach of the peace. Sometimes a caller may have some personal connection to the incident that he or she is reporting and may not wish to be identified. On other occasions the caller may have no such connection other than to witness the incident that he or she is reporting.
6. The Inspector said, Victoria Police has fostered and developed the understanding of confidentiality over many years by not disclosing the identity of callers to 000. If caller's identities were disclosed, confidence in the security of emergency calls would become substantially impaired because the willingness of the public to report incidents of crime or make calls for emergency assistance by telephoning 000 would be substantially reduced.
7. Members of the public are well aware that in making a call to 000 they risk becoming involved in a police response and potentially an ongoing investigation. It is essential that police cultivate and protect, the public's willingness to report incidents of crime or emergency by calling 000 by ensuring confidentiality.
8. According to Inspector Ferguson, Victoria Police requires ESTA call takers to receive emergency calls in confidence.
9. Any request by Victoria Police for access to a recording is only granted where access is required to assist in the actual response to a call, such as disclosure to Homicide Squad investigators or where access is likely to assist members of Professional Standards Command who are investigating a complaint against a police member. In these circumstances, it is made clear to Victoria Police members that callers' identities must be kept confidential and not disclosed to any person outside the Victoria Police.
10. Recordings are only provided outside Victoria Police when there is a legal obligation to do so, such as for use in court.
11. Inspector Ferguson said Victoria Police would ordinarily release a 000 call recording to the person who made the call, if that person requested a copy of the call recording under the FOI Act.
12. On the issue of recording calls, recordings are securely stored at the SECC.
13. When a copy of recording is to be provided, it is copied from digital medium on which it was first recorded to the current medium at the time of the request. At the time of Mr Glascott's trial, the recording would have been copied to cassette tape. Now, recordings are copied to CD.
14. Concerning the call relevant to this proceeding, Inspector Ferguson said the computer disk records an emergency call made by the Witness.
15. She made the call on the understanding that she wanted to assist police in responding to a situation observed as suspicious. The Witness did not want to see police at the time of the police attendance. In Inspector Ferguson's experience, this implied the Witness' desire to keep her identity and personal affairs confidential.
16. In Inspector Ferguson's opinion, if the call recording was disclosed to Mr Glascott under the FOI Act, this would undermine the confidential basis and understanding on which such information is provided. If members of the public were to become aware that such disclosure had occurred, they would be unwilling to provide such information in future. This would only add to the hesitation many members of the public already experience about coming forward to assist police by voluntarily providing information about possible criminal activity.
17. During cross-examination, the Inspector said there was no way the master recording of a 000 call can be altered and recordings are not disposed of, subject to the fact that old analogue tapes are deteriorating.

1. The Acting Detective Sergeant had reviewed the trial transcript and confirmed the recording was played to the jury during the Witness' evidence. At no stage during the trial did Mr Glascott or his counsel request a copy of the recording.
2. He also noted that according to the transcript, during the 000 call the Witness gave the registration number RSZ 078. The Acting Detective Sergeant was aware Mr Glascott believed the registration number given was different and not related to his vehicle.
3. Acting Detective Sergeant Jones had been in contact with the Witness, who confirmed Mr Glascott had contacted her by mail. He says the Witness was frightened of Mr Glascott.
4. To the best of his knowledge, the Witness was not aware of this proceeding. He expected if she was aware, she would have contacted him expressing her fears about the prospects of Mr Glascott obtaining the recording, her involvement in a further proceeding and/or the possibility of further contact by him.

1. The Acting Detective Sergeant believed contacting the Witness to seek her view about release of the 000 recording would be devastating for her. He had not advised her of this proceeding as he has no doubt that would cause her anguish.
2. The Witness had told him she would never make a 000 call again. The Acting Detective Sergeant described her as a fragile witness who became quite emotional both prior to and whilst giving evidence, especially under cross-examination. She has said she was unable to sleep or eat properly before giving evidence. She also expressed concern with regards to her name and image being published by media outlets during the course of the trial, although no suppression application was made.

1. Mr Davey gave evidence that, in the normal course of an FOI proceeding where exemption is claimed under s 33(1) of the FOI Act, people are contacted under s 53A of the FOI Act to seek their views as to release of any information relating to their personal affairs. However, in this case, Victoria Police decided it was not practicable to seek the Witness' views.
2. He said Mr Glascott had sent correspondence to the Respondent, in which he described attempts to locate the Witness and communicate with her.
3. Victoria Police considered that giving the Witness a s 53A Notice would cause her distress. Victoria Police was aware the Witness does not want Mr Glascott to receive any personal information relating to her.

1. Not surprisingly, as a self-represented Applicant, Mr Glascott mixed evidence and submissions. In terms of evidence he said in summary:

1. He seeks the recording so that he can revisit issues of what the witness described as the registration number, make and model of the relevant car and so that he can have the recording forensically examined. He suspects it has been tampered with, if it records the Witness giving the registration number of his car. This is part of his attempt to have the High Court overturn his conviction and order a re-trial. He has made progress toward this end, for example he has obtained a further forensic evidence report which, he says, supports his case; 2. He poses no threat to the Witness. He only wants access to the recording. He is content for his solicitors acting in his High Court matter to receive a copy of the recording. He has no need to receive it personally;

1. Other FOI requests have resulted in him obtaining a variety of the documentary evidence used in his trial, some of it very sensitive; and

1. That his trial was unfair and his lawyers incompetent.
2. Mr Glascott provided a forensic report dated 14 December 2012, concerning DNA found on the matches said to have been used during an arson attempt related to the murder. The report appears to raise questions, not give answers, about the reliability of DNA evidence used in the course of Mr Glascott's trial. It recommends further investigations. The report has no relevance to the issue of the registration number.
3. In cross-examination, Mr Nekvapil asked why, in his appeal to the Court of Appeal, it appeared from the Court's decision that Mr Glascott had not raised the 000 issue. Mr Glascott said he raised about 300 grounds but being self-represented did not pursue them all.

1. I have decided the 000 recording is exempt from release under s 35(1)(b) and s 33(1) of the Act.

(1) A document is an exempt document if its disclosure under this Act would divulge any information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister, and -

(b) the disclosure of the information under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.

1. Therefore, for a document to be exempt under s 35(1)(b), two requirements must be satisfied:
   1. That disclosure would divulge information or matter communicated in confidence by or on behalf of a person or a government to an agency; and
   2. That disclosure 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.

Was the information communicated in confidence? - Yes

1. The first requirement of the exemption, that information was communicated by the Witness in confidence is satisfied.
2. In Casey CC v Environment Protection Authority (General) [2010] VCAT 453 Vice President Macnamara (as he is now) discussed the relevant test, having done so in similar terms in various proceedings:

In Re Pepperell and Ministry of Housing & Construction (1989) 3 VAR 191 Mr Galvin considered the question in what circumstances information would be regarded for the purposes of the section as "having been communicated in confidence". He referred to an unreported decision of Judge Hassett given in the County Court in the matter of Deasey v Geschke and said:

"It would appear to be an arguable conclusion from His Honour's words that, in his view, in determining whether information was communicated in confidence, it is sufficient to have regard either to the intention of the author or the attitude of the recipient.

An actual understanding as to confidentiality on the part of the recipient would not appear to be essential."

"Where confidentially is apparent from the nature of the information, it would appear to be unnecessary to have regard to how the information was in fact received."

It would seem therefore that no formal confidentiality agreement is required to establish that information was communicated in confidence nor is it necessary to establish a "meeting of the minds". Conversely the mere fact that a letter is headed "private and confidential" is not sufficient in itself to establish that that communication was made in confidence, Re Barnes and Commissioner for Corporate Affairs (1985) 1 VAR 16 at 18.[5]

1. I accept Inspector Ferguson's evidence that callers to 000 often provide information to Victoria Police in confidence, subject to the possibility that they may be called on to give evidence in a legal proceeding.
2. I accept the Acting Detective Sergeant's evidence that in this case the Witness did just that.

Would disclosure be reasonably likely to impair the ability of Victoria Police to obtain similar information in the future? - Yes

1. The second requirement of the exemption, that disclosure would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of Victoria Police to obtain similar information in the future, is satisfied.
2. Returning to Vice President Macnamara in Casey CC:

As to the meaning of the word "impair" King J**,** as a Member of the Full Court in Ryder v Booth (at 885) adopted a definition from the Shorter Oxford Dictionary in the following terms: "to make worse, less valuable, or weaker; to lessen injuriously; to damage, injure.". As Gray J (at 880) noted in the same case: "The degree of impairment which must be shown to be a likely result is, in my opinion, a degree of impairment going beyond a trifling or minimal impairment." Young CJ said (at 872) it was not sufficient to prove the relevant impairment that there were feelings of resentment among those whose information was given in confidence:

at having the confidence arbitrarily destroyed by the operation of the legislation, but it is another thing altogether to say that they or others will not provide such information in future. It is not sufficient to show that some people may be inhibited from reporting so frankly if they know that their report may be disclosed. More is required to satisfy the onus case upon the agency by s.55(2) of the Act.

1. I accept Inspector Ferguson's evidence on this point; the potential impairment as he describes it is real and not fanciful.
2. I reject Mr Glascott's submissions that the idea of the release of the 000 tape deterring people from calling 000 is absurd given people have a duty to call 000 when necessary, will do so regardless of whether a recording may be released and releasing recordings will prevent false calls to 000. There is no evidence to support his submissions. The Inspector's opinion, based in his long experience says otherwise.
3. My approach is consistent with the decision of Judicial Member Isenberg in Camilleri v Commissioner of Police NSW Police Force [2013] NSWADT 80 where a 000 recording was not released under NSW FOI legislation. This is particularly significant given that decision relates to the Australia-wide 000 system which Telstra operates. JM Isenberg said:

Commander Robinson's evidence was that the 000 service is the principal method used by members of the public for contacting Police in the event of an emergency. Calls are kept confidential and are not ordinarily accessible to anyone (including other Police officers) other than the caller. Recordings/transcripts are not ordinarily released other than by court order and there are guidelines to that effect. Sometimes though the officer-in-charge of an investigation or the prosecutor may permit a defendant to listen to a recording or may be provided with the transcript of the 000 call.

The [New South Wales Police] submitted that there is an expectation that information reported to the Police will be kept confidential and will only be used and disclosed by the Police in the conduct of law enforcement activities. Commander Robinson's evidence as to expectations of confidentiality was that callers expected Police would hold the information provided in the strictest confidence ...

... the test is ... whether the agency will be able to obtain such information in future. In view of Commander Robinson's evidence I find that disclosure of the information could reasonably be expected to prejudice the supply to the Police of confidential information that facilitates the effective exercise of the Police's functions and that disclosure of the information could reasonably be expected to prejudice the effective exercise by the Police of the Police's functions.

1. My approach is also consistent with VCAT's general approach when deciding issues under the FOI Act to protect the confidentiality of information provided by the public to Victoria Police. In written submissions, Mr Nekvapil for Victoria Police usefully cited recent examples, RFJ v Victoria Police [2013] VCAT 1267 at [81], [163]-[167]; JCL v Victoria Police [2012] VCAT 1060 at [92], [93] and [104]; Corry v Victoria Police [2012] VCAT 135 at [56]; Kyriazis v Victoria Police [20111 VCAT 365 at [10], [17] and XYZ v Victoria Police [2010] VCAT 255 at [17], [135].
2. Having decided the 000 recording is exempt from release under s 35(1)(b), I next consider whether to invoke the public interest override under s 50(4) of the FOI Act to release it.
3. Section 50(4) says:

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 High Court of Australia has said decision-makers must be satisfied to a high threshold that the public interest requires release of the document. In Osland v Secretary to the Department of Justice [2010] HCA 24, French CJ, Gummow and Bell JJ said at paragraph 14:

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.

1. The central issue here is whether the public interest requires release, because it would assist Mr Glascott to pursue his avenue of appeal to the High Court (or perhaps further application to the Court of Appeal) against his conviction.
2. I am not of that view.
3. First, all the evidence supports a finding that the Witness reported Mr Glascott's registration number to 000.
4. Second, none of the evidence supports Mr Glascott's claim that the recording as provided on CD in this proceeding is different from the recording as provided to the Supreme Court of Victoria on cassette in Mr Glascott's trial. On the same topic, Inspector Ferguson's evidence is that the master copy cannot be altered.
5. Third, Mr Glascott's claims that the witness did not name the registration number of his car at trial and the recording has been altered appear to be recent claims, noting:

1. The claim was not made in the course of the trial; 2. In Glascott v The Queen [2011] VSCA 109 the Court of Appeal refused Mr Glascott's application for leave to appeal against conviction. It addressed 26 grounds of appeal and seven additional arguments. The Court made no reference to the Witnesses' evidence as to the registration number; and

1. It seems, as late as September 2013, Mr Glascott did not raise the issue of an altered recording. In a letter from Mr Glascott to VCAT dated 25 September 2013, received on 30 September 2013, Mr Glascott asked, "VCAT to listen to the tape ... and if VCAT believes it is the number plate RZS 078, I will withdraw my application."
2. Fourth, in its decision in Glascott, the Court of Appeal was not surprised at the Jury's decision, (see paragraph 117):

We do not consider that the jury should have had a reasonable doubt about the appellant's guilt. There was clear evidence of motive, opportunity and presence at the crime scene at the relevant time, including the fact that the applicant's car was seen there at the relevant time; clear evidence sufficient from which to infer that the accused had obtained and had in his possession a relatively rare Tokarev pistol and Tokarev ammunition which was used to kill the deceased; and clear evidence that DNA located on matches found at the scene of the crime, which it appeared had been used in the attempt to set fire to the deceased's offices, included DNA which was likely to have come from the applicant. All in all, the strength of the Crown case was such that it would have been surprising if the jury had not been satisfied of the applicant's guilt beyond reasonable doubt.

1. Finally and importantly, if Mr Glascott succeeds in putting his matter before the High Court, his lawyers will be able to seek release of the recording, via the Court's procedures and powers for use in such a proceeding. I again note I understand his lawyers have heard the recording in this proceeding. I also note if they had not, my decision would not change. Those lawyers will also be able to cite the forensic report.

1. The exemption claimed is under s 33, which relevantly says:

(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).

(2) Subject to subsection (4), the provisions of subsection (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.

information relating to the personal affairs of any person includes information -

(a) that identifies any person or discloses their address or location; or

(b) from which any person's identity, address or location can reasonably be determined.

1. Therefore, for a document to be exempt under s 33, two things are required:
   1. The document in question must contain information relating to the personal affairs of a person; and
   2. Disclosure of that information must be unreasonable.
2. The recording clearly contains information relating to the personal affairs of the witness being information that identifies the Witness, her address or location and other issues.
3. As in most cases, here a potential s 33 exemption turns on whether disclosure is, in the circumstances, unreasonable.
4. The decision of the Court of Appeal in Victoria Police v Marke [2008] VSCA 218 indicates that in considering whether disclosure is unreasonable in a particular case it is not to be supposed that disclosure of personal information in any particular application for access is to be treated necessarily as disclosure to the entire world. In Marke's case both Weinberg JA and Pagone AJA approached the question as to whether release would entail unreasonable disclosure as requiring a balancing exercise. See [96] - [98] per Pagone AJA where His Honour said it was necessary in this context to consider:

Any matter that is relevant to the statutory condition, which bears logically upon a consideration of it, and which may have a probative effect upon the decision-maker.

1. While Mr Glascott is aware of the Witnesses' identity and heard the recording at trial, in my view, release would be unreasonable because, with reference to factors discussed in Marke (noting overlap with issues I have discussed about s 35(1)(b)):

1. I accept Acting Detective Sergeant Jones' evidence that the personal information is of great sensitivity to the Witness and its release would distress her. This is in the context that I understand Mr Glascott has in recent times attempted to write to her and prior to that had written to her. I cannot assume Mr Glascott would not again try to contact her if he received the 000 recording; 2. As discussed above, the information was given in confidence;

1. The personal information is not in the public domain. That it was once played in open court does not make it so;

1. Mr Glascott says he wants the recording to support his High Court application. He is legally represented in that proceeding. I understand his lawyers have heard the recording when they acted in this proceeding. If his lawyers decide it is required, no doubt they will seek it via order of the Court. If obtained in this manner, it may only be used in that proceeding; 2. While Mr Glascott said if the recording was released under the FOI Act it could be provided to his lawyers not to him, he would later be entitled to obtain it from his lawyers; 3. The likelihood that the recording of the witnesses' description of the registration number has been altered is remote; 4. There is no public interest in releasing the information. I have accepted evidence that release appears to be against the public interest; and 5. On the basis of the evidence before me, it is clear the Witness would, if asked, oppose release. I accept it was reasonable for Victoria Police to not ask the Witness whether she opposed release.
2. Finally, the s 50(4) public interest override does not apply to s 33(1) and so need not be discussed.

[1] The Court of Appeal reduced his sentence.