Victorian Civil and Administrative Tribunal|1999-04-30

Gunawan v Dept of Education [1999] VCAT 665 (30 April 1999)

This is an application by Mrs Gunawan for access to a number of documents. I will not go through the procedural history other than to note that as a result of directions made by a member of this Tribunal. It was agreed that the request for access would be confined to 41 disputed documents listed in the revised schedule of documents which was provided to the Tribunal and which was filed and served on 2 December 1998 (a copy of which is attached to these reasons for decision). This matter has been divided into two parts. This part concerns itself only with the request for access in relation to those 41 documents, and the other part of the proceeding has been held in abeyance, subject to the conclusion of this particular part of the proceedings.

The 41documents fall into five categories and I was considerably assisted by the extensive submissions filed by Mr Pizer on behalf of the Respondent. Mrs Gunawan appeared in person and relied on the evidence which she gave and upon evidence given by Mrs Rita Ortel, Mrs Gustas and Detective Senior Constable Reynolds. She also relied on statements of Judith Stitt, on a letter from a Professor Christopher Goddard, as well on a statement of Miss Jude Wallace.

Mr Pizer, on behalf of the respondent, relied on two statements of Miss Elizabeth Hall, the Manager of the complaints and investigations unit of the respondent. Miss Hall appeared before the Tribunal and gave evidence.

The grounds of exemption relate to documents which fall into five categories: documents which relate to the employment of the teacher, documents which relate to the trial of the teacher, documents which relate to the unit's investigation of the teacher, documents involving communications with the department's legal advisers, and finally documents relating to the disciplining of the teacher. The respondent claimed that each of the disputed documents, some of which were partially released, is an exempt document under one or more of ss.30(1), 31(1), 32(1), 33(1) and 35(1)(b) of the Freedom of Information Act 1982 ("the Act"). It was further submitted by the respondent that to the extent that the public interest override in s.50(4) of the Act was applicable, it did not require that access be granted to any of the exempt documents.

I turn to the exemptions. Exemption is claimed under s.30 in respect of documents 67, 97, 129, 136, 140, 148, 155 and 156. It is unnecessary here to describe each of the documents at length, as they are adequately described in the attached revised schedule.

A document will be exempt under s.30(1) if I am satisfied of the following three matters: that disclosure of the document would disclose matters in the nature of opinions, advice or recommendations prepared by an officer or minister; or consultation or deliberation that has taken place between officers, ministers or an officer and a minister, and the opinion, advice or recommendation was prepared, or the consultation or deliberation took place 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 disclosure of the document would be contrary to the public interest. Section 30(3) provides that a document will not be exempt under S.30(1) by reason only of purely factual material contained therein.

I accept the uncontradicted evidence of Miss Hall contained in her statement at paragraphs 49 and 51, paragraphs 75 to 77, and paragraphs 86 to 87. I am satisfied that the material in document 67, 97, 129, 136, 140, 148, 155 and 156 satisfy the first requirement that I have referred to, and I am also satisfied that to the extent that the documents contain any factual material, that material is so linked with the opinion, recommendation or advice that it is not properly severable.

I am also satisfied that the second matter is satisfied, namely that the opinion, recommendation or advice was given or made in the context of the deliberative processes involved in the functions of the Department in determining what action, if any, was appropriate to be taken in relation to the teacher.

In relation to whether or not disclosure of the document would be contrary to the public interest, I refer to paragraph 77 of Miss Hall's statement, and I have taken into account the submissions made by Mrs Gunawan that free communication or knowledge in the community at large of all these processes is somehow what the public interest dictates, and that her assessment of what the public interest is should override any public interest which is said to exist in terms of the confidentiality of the process by which the Department investigates the conduct of teachers under the Teaching Service Act.

Whilst I acknowledge the desirability to the extent that it is possible, of a complaints or a disciplinary process being transparent to the extent that those making complaints know what it is that the process entails, this does not carry with it the necessity that the process itself be given to scrutiny by any person who wishes to scrutinise it, because of what I see to be the overriding interest, the overriding public interest in the proper investigation of such complaints and the proper investigation of such complaints carries with it in this area, as it does in the area of child protection generally or in the area of criminal law generally, the necessity for officers to be able to communicate freely with persons who bring complaints to the attention of the relevant authorities, in circumstances of confidentiality. To the extent that a person is the subject of an investigation under the Teaching Service Act, all measures should be taken to ensure that that person is dealt with fairly in the process right up until its conclusion. There is a public interest in protecting the integrity of that process so as to ensure that allegations are properly investigated, and that just outcomes are achieved. It would compromise the necessary purity of that process to expose it to scrutiny willy-nilly at all stages, and on that basis I am satisfied that disclosure of the disputed documents for which exemption is claimed under s.30 would be contrary to the public interest.

In respect of document 148, the only matter that was outstanding related to the handwritten notation on that document. It is quite clear from the evidence that was given by Miss Hall and from the matters raised in her statement, that the notation itself contained matters in the nature of an opinion prepared by an officer of the department in the course of or for the purposes of the deliberative processes involved in the functions of the government, and I also find that the notation does not contain any relevant factual material, and for the same reasons that I have just given in relation to the other documents for which exemption is claimed under that section, I find that disclosure of the notation would be contrary to the public interest. I refer also to paragraph 81 of Miss Hall's first statement which refers to the need for the unit to conduct full and frank discussions with its lawyers in relation to the various legal issues concerning the disciplinary process, and I accept her evidence to the effect that if this kind of correspondence were to be disclosed, the officers of the unit would be more reluctant to make full and frank disclosures to its lawyers and that they might compromise the independent legal advice process to the unit itself. This, in turn, would adversely affect the operations of the unit and would compromise the quality of the legal advice to be able to be provided by its lawyers.

Turning to document 67, which is a recommendation from a general manager to the Department that the letter be sent out in a particular form. My understanding from the evidence is that the document was never sent out in that or any other form, and on that basis it would be inappropriate for the document to be released because the authorities in this regard make it clear that it would be inappropriate to release such documents where the document itself demonstrates that the advice was not accepted. In this particular case the document was never sent out. The advice or recommendation that was originally made in it was not ultimately accepted or followed. I am satisfied that it would be contrary to the public interest for that document to be released, because release of it now would create confusion as to whether or not it reflected in any sense a concluded view by the Department in relation to a particular matter.

I note Mrs Gunawan's submissions in relation to her assertion that the public interest will somehow be served by openness which would involve the release of documents, even though they happen to be internal working documents. It is difficult to meet that submission on its own terms, other than to repeat my satisfaction that it would be unreasonable to disclose the documents pursuant to the last limb of s.30(1).

I turn to s.31(1)(a). Exemption is claimed under this section for documents 91, 97, 109, 115-117, 159 and 162. That section provides that a document is an exempt document if its disclosure under the Act would or would reasonably be likely to prejudice the investigation of a breach or possible breach of the law, or prejudice the enforcement or proper administration of the law in a particular instance. I accept that it is clear that investigations carried out by the unit often amount to a monitoring of compliance with the provisions of the law, and I think that it is consistent with the authorities to find that those activities do form part of the administration of the law for the purposes of s.31(1) of the Act, because that section has been held to include of course the legal process involving or enforcing the criminal or civil law, and that is the criminal law or civil law as expressed by statute, regulations and common law.

There is some question as to whether prejudice is to the enforcement or proper administration of the law in a particular instance. I do not propose to decide this question as the documents for which exemption is claimed under s.31(1)(a) (documents 91, 97, 109, 115-117, 159, 162) are ones in respect of which the exemptions are upheld on other grounds elsewhere in this decision.

I turn now to the exemptions claimed pursuant to 31(1)(c) of the Act for documents 91, 97, 115 and 162. Section 31(1)(c) of the Act prevents disclosure or makes a document an exempt document if its disclosure under the Act would, or would reasonably be likely to disclose or enable a person to ascertain the identify of a confidential source of information in relation to the enforcement or administration of the law. For these reasons just outlined, I am satisfied that the activities of the unit of the respondent in this matter is engaged in activities relating to the enforcement or administration of the law, and I am satisfied on the basis of my scrutiny of the documents and the evidence that I have heard from Miss Hall, that disclosure of the information in the documents in question would disclose the names and other identifying information or confidential sources of information of the respondent. Certainly the section is wide enough to include information which would not, by itself, identify the confidential source of information, but which would tend to result in the identification of such a confidential source of information, and I am satisfied that documents 91, 97, 15, 162 are exempt under s.31(1)(c).

In relation to s.32, legal and professional privilege, Mrs Gunawan correctly submitted that it was a matter for the Tribunal to decide whether or not these documents fell within the general principles which allowed for legal professional privilege, and without going into all the legal principles which are well known, the exemption under s.32 is available if the document is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

There is uncontradicted evidence before me that documents 91, 93, 97, 122, 123, 129, 137, 138, 139, 140, 148, 151 and 153 are documents which fall within the ambit of this section. Documents 122, 129, 137, 138-140, 148 and 151 contain confidential communications between the respondent and the respondent's professional, including in-house or external legal advisers, that were made for the sole purpose of obtaining or providing legal advice. The evidence of Miss Hall in relation to those documents as contained in paragraphs 61 and 78 and 79 and 81 of her statement, make it clear that those documents were brought into existence for the sole purpose of obtaining or providing legal advice.

There are a number of other documents within that section for which exemption is claimed: documents 91, 93, 97, 123 and 136, and these documents constitute notes, memoranda or other documents prepared by the client, or the client's legal advisers, which recorded confidential communications between a client and its professional legal advisers, and it is submitted by Mr Pizer that they, too, are privileged. Mr Pizer relied on the Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR, 244 at 246 as authority for the proposition that the documents which record the confidential communications between a client and its professional legal advisers are also privileged and I accept that this is so.

By extension or by analogy the file notes prepared by officers of the client of telephone conversations with the client's barrister will also be privileged and that covers documents 91, 93 and 97, and for those reasons I accept that those documents are exempt under s.32(1) of the Act.

Document 136 is a document which records legal advice given to the client and there is authority to the effect that a document which records that legal advice is also privileged: Re City Parking Pty Ltd v the City of Melbourne (1996) 10 VAR, 170 at 196-197. Again, Mrs Hall's evidence supports that conclusion and on that basis I find that Document 136 is also exempt under S.32(1) of the Act.

Document 123 and document 122 appear to be documents which record instructions given to the respondent's barrister and instructions that were in fact given to the respondent's barrister, and for reasons which I have already given in relation to documents 91, 93 and 97, those documents are exempt under s.32(1) of the Act.

Documents 149 and 154 relate to a bill of costs. They are identical documents. It was submitted on behalf of the respondent that the bill of costs attracts legal professional privilege because its disclosure would reveal the "nature of the transaction or matter": See Packer v Deputy Commissioner of Taxation 1998 73 FLR 205. This is because the bill indicates particular steps which the teacher's solicitors took inferentially at the request of the teacher and matters upon which the teacher received advice. A bill of costs was held to be exempt under s.32(1) for these reasons in the Re City Parking case, to which I have previously referred, and on that basis I am satisfied that the bill of costs was provided to the respondent by the teacher on a confidential basis for the limited purpose of seeking reimbursement of those costs. Since Mrs Gunawan has been made aware and the Tribunal has been made aware that the department and the public purse did not bear any of the teacher's legal expenses, I do not consider that any consideration of fairness or public interest requires disclosure of the document. This document was provided to the respondent in circumstances of confidentiality and nothing in what has been said by Mrs Gunawan in relation to the public interest or in relation to the aims of her research, or in relation to any of the matters to which she wishes to legitimately have regard, would be served by release of this particular document, and on that basis I find that it is also exempt.

Turning to s.33(1). Mrs Gunawan submitted that because the alleged abuse occurred while the teacher was an employee of the Department and because she had the consent of a victim of the alleged abuse, that consent was sufficient to allay any of the concerns arising out of release of the information that related to the personal affairs of a person under this section.

Mrs Gunawan also made a number of submissions that related to her views about whether or not the function of the Department was somehow to protect the teacher and that these provisions of confidentiality, in their effect, gave more protection to teachers than they did to members of the community or to the alleged victims of abuse.

Section 33(1) provides that a document is an exempt document if its disclosure under this Act would reasonable disclosure of information relating to the personal affairs of any person.

It is clear from the terms of that section that it is not sufficient to overcome any claim of exemption to simply rely on the consent of one person to whom the information might relate. In this particular instance, Mrs Gunawan has submitted that because an alleged victim of the abuse by this particular teacher has consented to disclosure of this information, disclosure would not be unreasonable in those circumstances.

Personal affairs refers to matters of private concern to an individual and personal affairs can be personal affairs whether or not there is knowledge in the public arena about a person's private life or their personal affairs. I has been suggested that s.33(1) cannot be invoked if an individual's identity cannot be derived from the documents, and it is Mr Pizer's submission that the release of the documents would involve information which would identify the various persons whose personal information is contained therein, and on that basis he has submitted that the documents - that is all of the documents in dispute except document 148 are documents in relation to which the exemption under s.33(1) is claimed by the respondent. Mr Pizer referred to authority to the effect that the mere fact that documents relate to work performance or capacity to work, do not deprive those documents from having character which relates to their personal affairs, and I accept that the authorities cited, including that of Re Milthorpe v Mt Alexander Shire Council (1997) 12 VR, 105 at 107, and Olekovsky v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR, 429 at 434, are authorities for that proposition.

Mr Pizer, in dealing with the authorities, dealt with the rebuttable presumption and the conclusion which he relies on emanates from the authorities referred to in his submission and is similar to a conclusion that was reached in Re Gunawan v the Directorate of School Education, where it was observed by the Tribunal at page 425 that, "Where the material relates to the teacher's personal affairs, it can do so in so far as it concerns his general conduct and reputation, albeit in his role as a teacher. As such, the matter is of a private concern to him."

The disclosure itself in order to come under the ambit of S.33(1) must involve the disclosure of personal information, and I accept Mr Pizer's submission that this phrase is a fairly wide one. It includes the release of information which would involve disclosing information concerning the personal affairs of not just the teacher but of other persons who may be referred to in the documents, and I have to consider whether or not the disclosure would be unreasonable in the circumstances.

The unreasonableness test involves the balancing of two competing public interests. One is the public interest in protecting an individual's right to privacy, and that includes not just the teacher in this case, but any persons who are capable of being identified in the documents if they are released, and I must weigh the public interest in protecting the individual's right to privacy on the one hand, against the public interest in the disclosure of the information on the other.

The public interest in protecting rights to privacy, is I think, well understood. The public interest which is asserted by Mrs Gunawan in support of disclosure of the information is a little more difficult to identify precisely. When this request for documents was originally framed, it was framed in terms of a desire by Mrs Gunawan to undertake case studies or profiles of offending teachers, so as to better understand the complaint process. In her oral evidence Mrs Gunawan said that that was not all that she sought to do, and her request was reformulated by her during the hearing in terms of being a concern for listening to children, knowing how to listen to them and the complaint process. She said that her focus was not on the teacher but on the Department which fails to get people to listen to children and intervene early to protect them from abuse.

On a number of occasions I sought to elicit from Mrs Gunawan what it was precisely that she asserted the public interest was in disclosure of information of this kind, and she expressed the view that she is in a position by virtue of her own personal experience and the experiences of those who have discussed their own experiences with her to somehow put together material, or conduct research which would expose gaps in either communications between the Department and the police, or trace the complaint process to highlight some gaps in it, or alternatively, as she put it on another occasion, to prevent abuse before it happened.

If there was a public interest in disclosure I must consider all the circumstances of the case, bearing in mind that the purpose of the section is to prevent the unreasonable invasion of the privacy of third parties, and the disclosure under the Act is disclosure not just to the applicant, but to the world at large. The factors that I can take into account in determining whether a disclosure is unreasonable includes the nature of the information and how it was obtained and its availability of the public, the identity and attitude of the persons whose privacy may be affected by the disclosure, and the identity and motives of the applicant.

Mrs Gunawan asserted on a number of occasions during the hearing that the public interest in knowing the contents of these documents outweighs completely any considerations of confidentiality, and she referred to confidentiality as being a vehicle by which the Department obstructed access to documents and attempted to protect, or assist in the protection of persons who might be abusing children in the context of their employment.

In relation to these particular documents, there appears to be absolutely no evidence of a controversy about the process adopted or the procedures adopted by the Department in deciding to carry out an investigation of the conduct of the teacher, or about the way in which it carried out that investigation of the teacher. To the extent that it is regrettable that the investigation was not able to be completed, or the inquiry was not able to be completed because the teacher resigned, that is not something which can be laid at the feet of the respondent as a matter which properly raises an issue of impropriety or corruption, or any other inadequacy on their part. It is simply a fact that the Department lost jurisdiction to continue an inquiry once the teacher resigned.

On that basis I do not see that there is any public controversy in relation to the way in which this particular teacher has been dealt with by the Department, and I appreciate that Mrs Gunawan's assertion about public interest in disclosure here related largely to her understandable disappointment with the way in which procedures might previously have been undertaken in relation to another case and in relation to other documents, but all that falls for me to consider here today, is the question as to whether or not there is something in the air, or something of an improper nature which requires the air to be cleared which is of such overwhelming importance that it requires disclosure of these particular documents. There is no evidence other than the evidence of Mrs Gunawan that access to these documents would assist her in doing what she wishes to do, which is to either prepare case histories or to prepare research which would somehow focus on children and on the complaint process, and there is nothing to suggest there is an impropriety which requires exposure, such that the documents must be released in the public interest.

The manner in which the information was obtained is also a relevant factor, and I note that much of the information was obtained in circumstances of confidentiality. The other matter to which I can have regard is the identity and motives of the applicant. It is certainly not the case that there is any evidence that Mrs Gunawan is a person who has a propensity to make mischievous, oppressive or abusive applications such as was the case referred to by Mr Pizer in Re sharell v The Legal Aid Commission of Victoria, an unreported decision of Judge Strong, who was then Deputy President, on 9 June 1994, at page 9.

However, the motives of the applicant are relevant. Disclosure is less likely to be unreasonable where the applicant's motives are commendable, and disclosure is more likely to be unreasonable if the applicant's reason for seeking access is out of some particular personal crusade or for the purpose of embarrassing or otherwise harming third persons concerned.

In this regard I must take into account Mrs Gunawan's own stated position in relation to this research namely, that in spite of the acquittal of this particular teacher of criminal charges, she has a firm view that he was guilty of those charges, that notwithstanding the acquittal, she thinks that it would serve as a deterrent for other teachers who might be equally guilty, and yet perhaps presumably also have been acquitted of criminal charges, if their names were to be made public and if their alleged conduct were to be exposed. In these circumstances I am not satisfied that Mrs Gunawan's motives in seeking disclosure are commendable.

Turning to the documents themselves: A number of documents (35, 56, 82, 91, 97, 115,124, 126, 129, 135, 137, 140, 152, 159, 162) contain information relating to the personal affairs of individuals other than the teacher.

A number of documents (35, 56, 82, 91, 97, 115,124, 126, 129, 135, 137, 140, 152, 159, 162) contain information including the names, telephone numbers and addresses of persons such as potential witnesses and informants to the police and/or the unit. Some of the documents contain information such as the names of alleged victims and the details of their alleged sexual abuse, and clearly that information relates to the personal affairs of those third persons. Document 152 contains information relating to the teacher's children, and quite clearly that information would relate to the personal affairs of those children, and certainly the disclosure of that information would involve an unreasonable invasion of their privacy.

Document 35 appears to contain, by reason of a typographical error, the name of another teacher, and I think it is beyond question that the disclosure of that other person, that other teacher's name, would involve the unreasonable disclosure of his personal affairs or her personal affairs, for reasons that were set out in paragraph 45 of Miss Hall's statement.

There are a number of documents (28, 30, 33, 35 and 39) which do not relate specifically to the teacher's personal affairs but which relate or contain information which is sufficiently specific to enable the identification of the teacher. It was submitted by Mr Pizer that disclosure of such information would involve the disclosure of the personal affairs of the teacher, and I am satisfied that that is indeed the case.

Document number 53 is a recreation leave form. It shows the recreation leave taken by the teacher over a two year period. Mr Pizer referred to authority to the effect that this information relates to the teacher's personal affairs. That was the authority of the case of Traynor, and I accept that that is the case. In relation to that particular document Mrs Hall has given evidence again which was uncontradicted in relation to the unreasonableness of the release of that document, and I accept that evidence and find that there is no public interest in the disclosure of that document.

Documents 35, or page 3 of it and document 152 contain information relating to the assessment of performance of the teacher, and I do accept that the relevant authority, that of Griffith's case, is such as to render it appropriate to consider that this information relates to the personal affairs of the teacher, and on that basis I do not consider that there is any public interest in disclosure of that particular document.

The documents which relate specifically, or contain information relating to the personal affairs of the teacher are documents 56, 67, 74, 82, 91, 93, 97, 109, 115-117, 122 -124, 126, 129, 135-140, 151, 153, 155-156, 159, 162 and 163 and finally 174. Those documents are said by Mr Pizer to contain information relating to the personal affairs of the teacher because they contain the teacher's name and other identifying material in the context of his trial and the subsequent investigation by the unit, and the disciplinary process instituted by the unit.

The fact that the teacher was charged with certain offences and that is a matter of public knowledge, does not necessarily deprive the information in the documents of its personal character, and again I refer to and accept the evidence by Mrs Hall which was uncontradicted in paragraphs 39 to 44 of her first statement as to the unreasonableness of the release of this information.

It must be said that some of Mrs Hall's responses were based on an understanding that the applicant was seeking to work out a profile of an offending teacher such as to make it possible to prevent abuse. To the extent that Mrs Gunawan has during the course of the hearing emphasised another aspect of her intention which relates to having the children heard and focusing on the complaint process itself, it is even less certain that disclosure of the documents here would be reasonable, because the reformulated aims of Mr Gunawan appear to be capable of being met by completely different means than the access to these documents, as has been suggested by Mr Pizer, and I think by myself during the course of this hearing.

If the objective is to obtain material or to do research on the experience of the actual or alleged victims of abuse in their contact with the Department and the way in which they experienced the handling of their complaints by the Department, there is nothing to prevent Mrs Gunawan, as she has done in the case of Mrs Ortels, from discussing the complaints process with alleged victims. It is certainly by no means necessarily the case that the public interest which Mrs Gunawan says she advances, is a public interest which requires disclosure of these particular documents.

Documents 149 and 154 consist of a letter and enclosures from the solicitors for the Teachers Industrial Organisation, to the industrial organisation itself, and the correspondence relates to the cost of representing the teacher at the trial. To the extent that the information in the documents might identify the teacher and reveal the material already revealed in those documents as relating to him, the documents also include details relating to his spouse and to the region in which he worked, and this information would involve the disclosure of information relating to the personal affairs of the teachers, and I accept that that is the case.

For reasons which Miss Hall adverts to in paragraphs 39 to 44 of her witness statement, if it were the case that Mrs Gunawan's intention was to construct a profile of an offending teacher, I am satisfied that that public interest would not be served by release of those documents. Even if Mrs Gunawan's aims are those which she has described during the course of this hearing, I am satisfied that disclosure of the documents would be unreasonable in relation to those particular documents. They relate to matters which might identify the teacher. Mrs Gunawan has made it clear that notwithstanding the teacher's acquittal, she does not see any difficulty or any problem or any concern in the public release of that teacher's name and private details, and that may well be a private view that Mrs Gunawan has, but in the context of what the public interest is, I think that it makes it more unreasonable for this information to be disclosed, if the aim of Mrs Gunawan is, as she has stated, to deter other teachers whom she considers to have offended, by exposing their names and their personal identities to the world at large.

Document 81 is the transcript of the committal proceedings in the Magistrates' Court. 73 out of 129 pages of that transcript contain evidence that was given in camera. That evidence has never been available to the public, and for reasons which have to do with the way in which the Victorian Government Reporting Service has recently conducted itself, the transcript is no longer available. It follows that the only way in which this material would ever come to light is if it is released pursuant to this section.

Mrs Gunawan has not made any submissions that relate specifically to the reasonableness or otherwise of the release of this material, other than to say that she was at the trial, and on that basis she heard more than the jury did. I accept that the alledged victim in this case has consented to the release of documents which concern her for Mrs Gunawan to conduct the research that she wishes to conduct. However, the in camera evidence also, I believe, includes evidence that was given by the other witnesses. Certainly to the extent that the in camera evidence contained specific details of the allegations made against the teacher it is clear that the information relates to his personal affairs, because the allegations case such serious aspersions on him as a person and on his reputation.

In paragraph 55 of her affidavit, Mrs Hall said that she does not believe that the fact that a person is charged with an offence should mean that the person loses all right to maintain their privacy. This is particularly so in the case of persons who are acquitted of charges laid against them. She also deposes the fact that the transcript material contains material that relates to the personal affairs of third persons namely, other alleged victims and that disclosure of the information would amount to an unreasonable invasion of their privacy.

The fact is that release of this document is to the world at large, and the alleged offender was acquitted. In these circumstances I consider it unreasonable to disclose this document.

Section 33(1) covers virtually all the documents and because it involves a consideration of unreasonableness does not require consideration of the public interest override in s.50(4).

I turn to consideration of s.35(1)(b). In relation to that section, Mrs Gunawan has relied upon submissions in paragraph 16 of the statement of Miss Wallace to the effect that many of the concerns that are held can be dealt with satisfactorily by agreement between the parties to avoid any deleterious impact on persons.

Section 35(1)(b) is relied upon by the respondent in relation to a number of documents; document 74, 82, 91 97, 109, 115, 116, 117, 135, 156, 159, 162, 163 and 174. A document will be exempt under s.35(1)(b) of the Act if two matters are satisfied: (a) if the disclosure of the document would divulge information or matter communicated in confidence by or on behalf of a person or a government to an agency or minister, and (b) disclosure of this information would be contrary to the public interest by reasons that the disclosure would be reasonably likely to impair the ability of an agency or a minister to obtain similar information in the future.

Whether disclosure would be reasonable likely to impair the ability of an agency to obtain information in the future is a question of fact, and that is a matter dealt with by the Supreme Court in Ryder v Booth [1985] VicRp 86; (1985) VR 869. By virtue of s.55(2) of this Act the agency must prove on the balance of probabilities that disclosure would result in the impairment that is referred to in s.35(1)(b). The expression 'likely' in s.35(1)(b) means more probable than not, and the degree of impairment that must be shown to be a likely result of disclosure is a degree of impairment going beyond that which is merely trifling.

Document 74, 82, 135, 156 and 159 contain information or matters which were provieed by officers of the police to officers of the unit for the purpose of assisting the unit in its investigation of the teacher. It has been submitted by the respondent that this information was provided on the basis of confidentiality and in order to underpin what Mrs Hall has said in her evidence is an essential aspect of the relationship between the unit and the police - the free exchange of information that is provided on a confidential basis.

In relation to documents 163 and 174, the information provided by the police to the unit were said to be again inherently confidential. Some of the other documents, document 91, 97, 115 and 162, contain information provided by a school principal or a member of the public, and this information was provided on a strictly confidential basis during the unit's investigation into the teacher.

Miss Hall said in her statement that disclosure would hamper both the free flow of information between the police and her investigation unit, but more particularly in the investigation of complaints against teachers in general because of the presumed reluctance of persons in the future to give information to the unit where it was not anticipated that that information would be kept confidential.

Documents 109, 116 and 117 are notes taken at the preliminary hearing for the teacher. Miss Hall has given evidence to the effect that the preliminary hearings are conducted on a confidential basis and persons not connected with the proceedings are not permitted to attend. I understand Mrs Gunawan to be dissatisfied with any procedure which does not open its doors completely to the scrutiny of either herself or somebody in the position of a parent who it is said ought to be able to have access to all the investigating material, so as to monitor the investigation process and the complaints process itself.

Mrs Gunawan's submissions do not detract from my finding that the information contained in the documents that I have referred to appears to be information which was obtained in confidence, and for the purpose of providing for the efficient and safe investigation of complaints made into the alleged behaviour of teachers. In relation to the degree of impairment that is likely to result from disclosure being more than trifling or minimal, I do not accept the assertion made by Miss Wallace in her statement that all of the concerns raised can simply be dealt with by agreement between persons to whom documents are disclosed, for the very reason of course that disclosure firstly is to the world at large, and secondly, that the concerns that are raised are not in themselves trifling, they are very substantial.

The matters that are raised by the exemptions claimed relate go to the heart of the investigation procedure and the ability of the unit to conduct an investigation that is not contaminated. It has probably a parallel, although it takes a different form, to police investigations, to the extent that both kinds of investigations have to involve a process which is fair, and which will withstand scrutiny by a higher body. I accept that the process could not take place properly if confidentiality were not guaranteed and if the free flow of information between the police and the unit could not take place in circumstances of confidentiality.

I consider that the public interest overwhelmingly supports the ability of investigating agencies to properly investigate matters. If there is a desire on the part of members of the public for information as to how those processes are conducted, no doubt the respondent is able to provide detailed information as to the procedure it adopts in relation to inquiries and investigations as to the rights of the various parties, as to the rationale for the exclusion of members of the public from the preliminary hearing, and it may well be that by educating members of the public in relation to that, there might be better understanding of the need to ensure for the benefit of children, that the process is uncontaminated, because if the process is contaminated, then allegations could not be sustained even at the level of the investigating unit, and then action could not be taken against teachers in order to protect children.

Whilst I certainly do appreciate the matters that have been raised by Mrs Gunawan as her own assessment of what the public interest requires, I consider that disclosure of the information contained in those documents would be contrary to the public interest, because I accept the evidence that the unit, and possibly the police would be substantially impaired in their ability to undertake investigations in the future, and certainly the free interchange and cooperation between them would be severely compromised by any interference in the confidentiality of the process, whether it be the process of informing of abuse to the Department or the process of investigating alleged abuse by teachers, and on that basis I am satisfied that the exemption claimed in s.35(1)(b) is made out.

Turning to s.50(4). Mrs Gunawan has expressed a number of times her views in relation to what the public interest is and what it requires. Certainly, I agree as does the respondent with any measures which will assist in the early detection of abuse, which will assist in the prevention of abuse, which will assist persons who have been reluctant in the past to approach either the authorities or teachers to express their concerns. All of those things are without question in the public interest. That there should be speedy detection of abuse, that there should be a prompt and fair inquiry into circumstances of abuse, that there should be prompt action taken in relation to teachers who are the subject of allegations of abuse is beyond question.

Here, however, the Department appears to have done, in relation to the documents that are the subject matter of this case, exactly what it is required to do, and it has also made every effort to provide Mrs Gunawan with as much documentation as she requires which the respondent feels is consistent with the concerns that it has for the protection of the privacy of all those concerned, not just the teacher, and I will not go back over all that ground in relation to the matters that concern the personal affairs of not just the teacher but of other persons.

There is no evidence of any scandal or corruption or inadequacy in the way in which the department has conducted itself with respect to this teacher, so there is no issue which requires in and of itself disclosure of these documents so as to get to the bottom of some alleged impropriety or conduct by the Department.

Mrs Gunawan, I think, believes that there is an overriding public interest in openness and of a state of affairs which does not appear to protect teachers or to protect persons at the expense of alleged victims. Certainly, my understanding of the process such as it exists, whereby the department investigates the behaviour of teachers or allegations in relation to teachers, could not be described as a policy or as conduct which in any way protects the interests of teachers, it is conduct and policies which are directed to the protection of interests of students, and particularly students in respect of whom there are allegations that they have been the subject of abuse.

Mr Pizer has submitted, quite correctly, that it has been consistently held that the public interest override would not be exercised where the applicant's asserted interest was a matter of personal significance only, and did not benefit the community in general, or have wider societal significance.

I do not consider the public interest demands release of documents which would publish the names and identities of persons who might have been the subject of allegations of abuse in the past but who have the benefit of an acquittal, and the publication of the details of the allegations themselves and publication of the evidence given by other witnesses or other alleged victims in circumstances where during the course of the criminal proceedings, all of those materials were the subject of very stringent measures taken to protect anonymity and to protect confidentiality and to prevent dissemination into the wider community of those allegations and instances of their identities. I am not satisfied that the public interest requires disclosure of these documents because I have grave concern that the release of the documents may impair the ability of the agency to conduct its investigations in general in the future, and because of the unknown impact on alleged victims themselves as well as on the teacher of the release of information concerning them.

In light of the above, I consider that the exemptions claimed under s.30, s.32, s.33(1), s.31(1)(c) and s.35(1)(b) are made out, and that the public interest does not require disclosure pursuant to s.50(4) of the Act. Accordingly, the decision of the respondent is affirmed.

Gunawan v Dept of Education [1999] VCAT 665

At a glance

Court

Decision date

Source

Judgment (77 paragraphs)

Gunawan v Dept of Education [1999] VCAT 665 (30 April 1999)

Parties