Mr Jason Pizer of counsel instructed by Mallesons Stephen Jacques.

The Applicant lives at Charlton, some 100km north-west of Bendigo. As an adult, he has sought at various times to be enrolled at Charlton Prep to l2 College ("the College"). In particular, in March 2004, he sought enrolment as a VCE student, which was refused by the then principal, Mr John Harley.

The Applicant made a freedom of information application to the Respondent the Department of Education and Training, seeking documents relating to this incident. The only document remaining in dispute between the parties is a Statement of Service printed from the Respondent's records which includes details of Mr Harley's employment history with the Respondent, from which details of his leave of various sorts and other irrelevant material has been deleted (as permitted by section 25 of the Freedom of Information Act 1982 ("the Act").

The Respondent claimed that the document was exempt under section 33 of the Act because the information in it is Mr Harley's personal information and disclosure of that information would be unreasonable. The Applicant disputed this, contending that all Mr Harley's appointments are publicly known anyway and that the Applicant needed the information.

Section 33(1) provides:

33(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).

The Applicant gave evidence and had no legal representation at the hearing before me on 7 September 2006 and the Respondent was represented by Mr Jason Pizer, instructed by Mallesons Stephens Jacques.

The Applicant relied on four documents: his application, dated 19 May 2006 a "statement of evidence and legal contentions" filed at the Tribunal on 15 August 2006 and two further documents filed on 4 September 2006. The Applicant's contentions, set out in the documents upon which he relied, in his short oral submission and in his viva voce evidence, were at times difficult to decipher. However, extracting the Applicant's relevant contentions from the material I have mentioned, they were as follows: that in March 2004 Mr Harley, on improper grounds, refused to enrol the Applicant as a student at Charlton College; that the Respondent Department negligently failed to follow up this lapse; that Mr Harley wrongly had the Applicant charged with trespass when the Applicant entered the school in July 2004; that at various times the Respondent Department had provided training, executive directions and memoranda to Mr Harley on how to handle enrolment applications; that if the Applicant could access the information about Mr Harley's complete employment record with the Respondent Department, the Applicant would be able to cross-reference the records with training and information provided to principals by the Respondent Department. The Applicant's aim appeared to be demonstrating that Mr Harley should have known better when he refused to enrol Mr Hansen.

The Applicant conceded in his third document filed on 4 September 2006 that he required Mr Harley's work history only from 1996 onwards. He then contended that the information he sought was already in the public arena and that Mr Harley's various appointments were all matters of public knowledge and not private to him. Finally, in the fourth document on which the Applicant relied, also filed on 4 September 2006, the Applicant contended that Mr Harley was an unreliable witness as he had told two different stories about whether the Applicant said he had ridden his bike from Charlton to Bendigo (a distance of over 100km).

At the hearing, the Applicant said he required the information contained in the document in dispute so that when he appealed he could inform the court about all the instances where Mr Harley had acted without authority. However, the Applicant gave no evidence of what this 'appeal' was about. The Applicant also contended that Mr Harley told the police (in the course of having the Applicant charged with trespass) that Mr Harley was unable to enrol the Applicant at Charlton College.

Does the information in the document relate to "personal affairs"?

It is well established that information relates to a person's personal affairs if it concerns or affects that person as an individual. The Respondent referred to the explanation in Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429 at 436 given by Lockart J -

I prefer the view that the "personal affairs" of a person within the meaning of ss 41(1) and 12(2) of the FOI Act connotes information which concerns or affects the person as an individual whether it is known to other persons or not. For example, a document may contain statements about a person's private life, in the sense of his personal life, which is widely known in various sections of the community. Something may be notorious, but its notoriety does not deprive it of the character of information relating to the person's "personal affairs".

As the Respondent submitted, it is also well established that information in the personnel file of an agency officer relates to the officer's personal affairs. In Traynor v Melbourne and Metropolitan Board of Works (1998) 2 VAR 358 at 365, the Tribunal said -

"the applicant seeks information....concerning sick leave, staff transfer, higher duties promotions and annual leave and acting higher duties for other persons....I am satisfied that the information sought by the applicant relates to the personal affairs of the employees concerned in that it contains matters of private concern relating to them."

This Tribunal and its predecessor, the AAT has routinely held that a curriculum vitae relates to a person's personal affairs - Love v The University of Melbourne (2000) 16 VAR 251 at paragraph [5]. The Respondent submitted that the information contained in the document in dispute is material which could be contained in a personnel file or curriculum vitae, so that it should be regarded as relating to personal affairs.

However, in Blums v Ministry for Consumer Affairs and Housing Guarantee Fund Limited (1988) 3 VAR 69 at 78, it was suggested that details on a curriculum vitae which are a matter of public record are not exempt. This seems at first to be inconsistent with the position in Colakovski and in Knight v Medical Board of Victoria (1991) J VAR 171, where the AAT held that notoriety does not deprive a document of the character of information relating to a person's "personal affairs". In the present case, the document in dispute lists the schools at which Mr Harley has been employed, his position at each one and the time he began working there. While each of these appointments would, as the Applicant submitted, be generally known in the community relevant to each school, this document in my view is unique in that it collects all that information.

It would be possible to tell from reading this document whether there have been patterns of movement in Mr Harley's career and whether there have been long periods of leave or gaps in his employment with the Respondent Department. Therefore in my view, while each separate appointment is a matter of public knowledge to some section of the general public and a matter of public record, the collected sum of Mr Harley's appointments, the exact starting and ending dates and their order is not information available to the public already. This record of employment in my view therefore relates to Mr Harley's personal affairs. Even when the request is reduced to cover the record only from 1996, its character remains the same.

Would disclosure of the information be unreasonable?

In deciding whether release would be unreasonable for the purposes of section 33, the Tribunal should consider all the circumstances of the application, including the Applicant's interest in the information which would be disclosed, the nature of the information, the circumstances in which the information was collected or obtained, the likelihood that the person concerned would not wish to have it disclosed without consent, whether the information has any current relevance[1] and whether any public or important interest would be promoted by release of the information[2].

A person who has suffered as a result of another's unlawful act may be entitled to know the name of the person responsible[3] and the factors weighing against release of such information need to be strong to justify withholding such information[4]. Here, however, the information in dispute is not a person's name.

It may be relevant that there is a risk the Applicant would use the information to inappropriately pursue third parties and cause them needless stress[5]. A further relevant factor (or perhaps simply another way of asking whether the information has any current relevance) is whether the Applicant's purpose is likely to be achieved by granting him access to the information he seeks.

The Respondent called only one witness, Mr Harley himself. The Applicant chose not to cross-examine Mr Harley. The Applicant later disputed some of Mr Harley's evidence (such as whether a further meeting had been arranged after 30 March 2004 between the two men) however while this may have appeared important to the Applicant it carried little weight in the issue before me.

Essentially then Mr Harley's evidence was undisputed, although the Applicant did submit that Mr Harley and the Respondent had misinterpreted his actions.

19. Mr Harley said that the Applicant had behaved in an intimidating and harassing manner to Mr Harley himself and to his staff. He referred to an incident in 1998 when (staff had reported to Mr Harley) the Applicant brought a live snake to the school. The Applicant's evidence about this was that the snake was small and he merely wanted the librarian's assistance in identifying it. On its own, this incident does not appear to amount to intimidatory behaviour, although it does seem inappropriate.

20. Mr Harley produced a letter written by the Applicant to Mr Harley in October 2003, about access to the school library. The letter said in part -

"Are they going to imbue a bias to help create more little moral monsters and shit head nazies - who lie, scheme, gossip and cheat - and who lack the spine to think for themselves and are unable to stand up for what is right - as a matter of course (with the herd mentality), or are they going to lead by example, how to be of fine mettle and a sound constitution".

Again, on its own, the letter is trivial; it is ranting rather than intimidatory.

In February 2002 Mr Hanson wrote to a staff member about an adult literacy class. The envelope used for this correspondence bore a picture of two hooded "Klu Klux Klan" type figures and the words "Charlton the Friendly River Town". On its own this behaviour seems odd but not necessarily intimidatory.

On 30 March 2004 the Applicant met with Mr Harley at Charlton College and requested to enrol in VCE. Mr Harley wrote to the Applicant on the same day refusing the request. The Applicant argued this was an improper refusal and I will return to this point. After the Applicant had visited the college in June 2004, Mr Harley took out a trespass order and sent a notice to the Applicant warning him not to enter the college. A month later, the Applicant visited the college to discuss enrolment. Mr Harley said the Applicant's demeanour was very intimidating and that the Applicant had a tape recorder. A similar incident occurred in December 2004, when the Applicant used a tape recorder and a camera to record what occurred. The Applicant was subsequently charged with and convicted of breaching the trespass order and on his appeal the conviction was upheld. None of this was disputed by the Applicant. He did however contend that Mr Harley had "lied" to the police by saying he was unable to enrol the Applicant at the school. I will return to the question of enrolment. The tale of the Applicant's visits to the college, viewed as a whole, does present a picture of intimadatory behaviour in my view.

At the hearing, when asked about an incident before Mr Harley's time as principal, when the Applicant received a letter from the then acting principal, the Applicant said "....I was subjected to gossip. He inferred I was a paedophile when I just wanted to do VCE. I thought he was an arsehole so I ripped up his letter and walked out". This example and the Applicant's reporting of it at the hearing showed at least that his behaviour and language are sometimes intemperate.

When asked at the hearing, the Applicant agreed that he had been banned from a local supermarket and a church and had taken on 'various organisations in the town'. The Applicant objected to the raising of these mattes and offered to provide his side of the story for these incidents and more. I decided not to pursue these matters as they were largely irrelevant to the issue before me. The Respondent contended they showed that the Applicant would use information to pursue third parties, but while the stories were colourful the evidence was too general for me to form such a view and I have disregarded these matters.

Leaving these matters aside and considering only the Applicant's behaviour at the college, which I have outlined, it does appear that the Applicant has behaved inappropriately, in a ranting manner, an odd manner, on one occasion intemperately and on several occasions in an intimidatory manner in relation to the college. Further, the Applicant's description of these incidents at the hearing, when asked about them, demonstrated no sense that his behaviour had been inappropriate or intimidating. Most of these occasions concerned the Applicant's attempts to enrol at the college. In these circumstances, I think it is fair to say there is a risk that the Applicant will continue to behave inappropriately about this issue and might seek to pursue persons at the other schools where Mr Harley has been employed. When asked this directly at the hearing, the Applicant said that the Respondent's counsel was "putting a slant on it". However, given the Applicant's behaviour to date about this issue, it seems likely he will continue to pursue it and he appears to undertake such a pursuit in an inappropriate way which is stressful for the other parties involved.

Alone, that risk would not be sufficient for me to say that disclosure of the document at issue would be unreasonable. There are other factors to consider.

3. The Applicant's interest in the information

During the course of his application, the Applicant said that he wanted to gain further insight into the enrolment process that Mr Harley had used regarding students aged 21 or more. However, Mr Harley gave evidence that he had never as a school principal authorised the enrolment of a person aged 21 or more and had never been requested to do so, except by the Applicant.

The Applicant also stated that he wanted to cross-reference the information about Mr Harley's information with other information, including training and materials provided to teachers and principals by the Respondent, in order to demonstrate what Mr Harley knew and what training he had had about the issue of adult enrolments in VCE. The Respondent contended that the Applicant did not require the information in the disputed document to achieve that aim; the Applicant could instead, the Respondent suggested, make FOI requests to the Respondent Department for records of training and information provided to Mr Harley. I agree this would be more appropriate as it would enable the Applicant to achieve his stated aim of finding out what training Mr Harley has had without Mr Harley's personal information being released.

If Mr Harley's refusal to enrol the Applicant in VCE and the subsequent events amounted to some wrong committed against the Applicant, there might be some public interest in releasing information which would allow the Applicant to take action to right that wrong. However, there are two problems here for the Applicant. First, none of the evidence or argument put by the Applicant suggested that obtaining this information could assist him to prove, for example, that Mr Harley's refusal to enrol the Applicant was incorrect or unauthorised or in breach of statute or outside Mr Harley's powers. How could knowledge of Mr Harley's previous employment or even of his training on enrolment issues, be relevant to whether Mr Harley was right or wrong? In my view it could not be relevant.

Secondly, I was not persuaded that Mr Harley had acted wrongly or inappropriately in his refusal to enrol Mr Hansen or in the events that follows.

When the Applicant sought enrolment on 30 March 2004, Mr Harley telephoned his regional office and the Department's legal branch and was told that he was not obliged to enrol adult students and that generally students over eighteen at the start of the relevant year are not eligible for funding. Mr Harley set out these matters in his letter of the same date to the Applicant and suggested other avenues for adult education. The Applicant argued that this letter was inaccurate.

The letter (which was attached to Mr Harley's witness statement) said "schools have no obligation to enrol adult students". It mentioned that no funding is received for students over 18 years of age. It suggested alternatives and concluded "I am not in a position to enrol you at Charlton College". It also gave information about taking the matter up at regional level.

Section 25C of the Education Act 1958 provides relevantly that a principal may refuse to enrol a person if the person is over an age specified in the regulations and that the regulations may make age requirements for enrolment. Regulation 6(1) of the Education (Prescribed Age) Regulations 1999 provides that a person over 21 is not entitled to be enrolled unless he or she meets three criteria - enrolment is solely for VCE; the school is outside the metropolitan area and there is no alternative provider within 45 minutes of the school by public transport (or school bus from the persons residence) and there is no alternative provider through which the person could study by correspondence or other method.

This is not an enquiry into Mr Harley's decision to refuse enrolment. However, the Respondent's position was that it considered the Applicant did not meet all three criteria in regulation 6(2) and that even if he did the legislation still allowed a discretion to the principal to refuse a request for enrolment. Mr Harley said in his witness statement that even if the Applicant met all three criteria for adult enrolment he would refuse the Applicant's request as he considered the Applicant an inappropriate person to share a classroom with young and vulnerable students.

The Regulations and the Education Act combined do appear to leave a discretion for the principal in the circumstances which arose. The words in Mr Harley's letter of 30 March 2004 are not a full explanation of the position, but they are not inaccurate. There was no evidence that Mr Harley's decision was made out of any prejudice or unfairness or anything else which would suggest there is a public interest in its investigation.

5. Factors relevant to whether disclosure is reasonable

The information in question is personal to Mr Harley. Mr Harley stated that he considers it to be personal and objects to its disclosure. This is not a case where the alleged wrong-doer is unknown. There was no evidence any wrong was done. The information, if disclosed, would not, it seems, assist the Applicant to achieve his stated purpose, or even if it would, that purpose can be achieved without its release. The Applicant's stated purpose of finding out what Mr Harley had been taught about enrolment of persons over 21 did not appear to serve any public interest. If the Applicant intends to use the information in litigation, I was not able to see how it would be useful. In any case, as the Respondent submitted, litigation is a private use of the information and would not necessarily weigh in favour of the reasonableness of disclosure.

Accordingly, weighing up the Applicant's concerns and his interest in the information with Mr Harley's objection and all the other relevant factors, I am satisfied the balance is in favour of non-disclosure. Essentially, the Applicant's contention that he has been somehow mistreated was not made out. Further, I have found it to be likely that the Applicant will continue to pursue this issue in an inappropriate way and that risk further weighs the balance against disclosure.

For all these reasons, the decision of the Respondent is affirmed.

[1] Penhalluriak v Department of Labour and Industry (unreported, Vic Court Ct, 19 December 1983) at 45-6, per Lazans J; Ryan v Victoria Police [2001 VCAT 2021 at 24; Page v Metropolitan Transit Authority (1988 2 VAR 243 at 245-6); Targridge Pty Ltd v Road Traffic Authority (1988) 2 VAR 604; Vaughan v Department of Sustainability and Environment [2004] VCAT 1562; (2004) 21 VAR 307 (at [25]).

[2] Vaughan v Department of Sustainability and Environment at paragraph [66]

[3] AB v Department of Human Services [2001] VCAT 2020

[4] See also Akers v Victoria Police (no.1) 2003 VCAT 397

[5] Re White and Pyrenees Shire Council [2001] VCAT 2043 at 28 at 32.