The decision of the respondent not to grant access to the documents is affirmed.

1 On 9 February 2004, Mr Russell Howden together with Ms Sylvia Deuschle wrote to the Mornington Peninsula Shire Council (the Council). The letter was in relation to a "Freedom of Information Request". It stated :

Early in January an amount of vegetation was removed from behind our property by council contractors. No other properties were affected.

Subsequent questioning of the environmental officer, Mr Simon Thorning, revealed that a number of complaints regarding the fire risks and trees that we had planted with council permission, had been received. As would be expected in Mr Thorning's position, he would not elaborate as to the source of those complaints.

We are therefore submitting a request to you, under the FOI regulations to obtain the source of those complaints.

2 Mr Oldmeadow, the Council Officer, wrote to Mr Howden and Ms Deuschle on 10 February 2004 refusing access to the source of any complaints. Following a request for internal review, the decision to refuse access was confirmed, and Mr Howden and Ms Deuschle were notified of that decision in a letter dated 21 April 2004.

3 On 9 June 2004, Mr Howden applied to this Tribunal for review of the decision to deny access.

4 The Council filed a "schedule" of the documents in dispute. The schedule refers to 15 documents, although it turns out that Documents 1 and 2 are the same document and Document 4 is the data entry input of Document 3.

5 The exempt documents comprise a number of extracts from the Council's data base and an anonymous written communication. The former records calls received by the Council's customer service section. These date back to 1997.

6 The hearing proceeded before me on 9 September 2004. Ms Morgan, solicitor, appeared for the Council. She called Mr Leigh Oldmeadow, the Council FOI officer and Mr Simon Thorning, the Council's Natural Systems Team Leader. They tendered witness statements, gave evidence and were cross-examined. Through Mr Oldmeadow, two pieces of correspondence were tendered as confidential exhibits together with one of the Council's letters returned to sender. These were letters sent in response to the Council's obligations under s 53A of the Freedom of Information Act 1982 (the FOI Act) to notify those whose personal information, the subject of the request, was the subject of this application for review. The Tribunal had independently received correspondence from one of the persons who had made a complaint about vegetation in the Reserve, and who asked the Tribunal not to release their name.

7 Mr Howden prepared a witness statement tendered in evidence, gave evidence and was cross-examined. He also called his wife Ms Deuschle who had prepared a statement, gave evidence and was cross-examined.

9 Early in the hearing, I raised whether Mr Howden was aware of the substance of the calls to the Council's customer service section. He indicated that he did not and strangely that he did not know he could ask about that.

10 Mindful of the provisions of s 25 of the Act, I stood the matter down for the Council to consider whether it could release further information. Given that the request had always just been for "the source" of the information, which Mr Howden did not dispute, I understand that the Council was reluctant to release the substance of the calls given the potential for identification of who might have made the call, were it to do so.

11 The Council claims that the documents are exempt from release under s 33 and s 35 of the FOI Act. The relevant parts of s 33 state :

(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 sub-section (4), the provisions of sub-section (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.

(2A) An agency or Minister, in deciding whether the disclosure of a document under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person, must take into account, in addition to any other matters, whether the disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person.

"information relating to the personal affairs of any person"

(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.

Under s 33(1) of the Act, a document is exempt from release if two conditions are satisfied. First, if disclosure would involve the disclosure of information relating to the personal affairs of a person; secondly, that such disclosure is unreasonable.

12 In this case there was no issue about whether the information sought was information relating to the personal affairs of any person. Mr Howden conceded that it did. Thus, the issues relating to the s 33 exemption focussed on whether disclosure would be unreasonable.

13 To satisfy the exemption, disclosure of such information must be unreasonable. The test of unreasonableness involves a balancing of competing interests. On the one hand protecting the right to personal privacy of an individual whose affairs may be unreasonably disclosed by granting access to the information against the object of the Act to extend as far as possible the right of the community to access to information in the possession of government or an agency.

14 In carrying out this balancing exercise, it is well accepted that I must have regard to all the surrounding circumstances including whether disclosure to the world at large would be unreasonable, not whether disclosure to an applicant would be unreasonable (Re Page and Metropolitan Transit Authority (1998) 2 VAR 243, at 245-246; Re Penhalluriack v DLI (unreported County Court 19/12/1983); Re Targridge Pty Ltd and TRA (1988) 2 VAR 604; Re Amusement Machine Operators Association Ltd and DSR (1988) 2 VAR 584; Re Ing and Legal Aid Commission (unrep AAT of Vic, Rizkalla DP, 25 September 1992); Re Simons and Vic Egg Marketing Board (No 1) (1985) 1 VAR 54 at 55; Re Borthwick and Health Commission of Vic (1985) 1 VAR 25 at 30).

15 In deciding under s 33 whether disclosure is unreasonable, I must, among other things, consider the interest of the applicant and purpose for which the applicant requires release (Re Penhalluriack; Re Page; Re Lapidos and Office of Corrections (No 3) (1990) 4 VAR 156; Re Knight and CORE (No 1) [2002] VCAT 1769; Re AMR and Victoria Police (unrep AAT of Vic, Levine, PM, 17 August 1994).

16 If the exemption claimed under s 33 is made out, I need not consider the application of s 50(4) which otherwise allows for release if the public interest requires it.

17 The Council also claims t he documents are exempt from release under s 35(1)(b) of the FOI Act. It states :

35. Documents containing material obtained in confidence

(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.

18 For the exemption to be made out, I have to be satisfied of two things. First, that disclosure would divulge information communicated in confidence and secondly, that disclosure would be contrary to the public interest because disclosure would be reasonably likely to impair the ability of the Council to obtain similar information in the future (see Ryder v Booth [1985] VicRp 86; [1985] VR 869; Re Marshall and Country Fire Authority (1999) 16 VAR 74; Re Sifredi and Medical Practitioners Board of Victoria (unreported, VCAT, Macnamara DP, 2 March 1999; White v Pyrenees Shire Council [2001] VCAT 2043).

(a) a decision is made not to grant a request for access to a document on the ground that it is an exempt document;

(b) it is practicable for the agency or Minister to grant access to a copy of the document with such deletions as to make the copy not an exempt document; and

(c) it appears from the request, or the applicant subsequently indicates, that the applicant would wish to have access to such a copy--

the agency or Minister shall grant access to such a copy of the document

20 Mr Howden owns two adjoining properties, 61 and 63 Kilburn Grove and Ms Deuschle his wife, owns 67 Kilburn Grove. The properties back onto a public drainage reserve, Hearn Creek Reserve (the Reserve), owned by the Shire. The three properties have no back fences.

21 On 12 January 2004, the Council began to remove vegetation from the Reserve behind Mr Howden's property. Although the vegetation removed was not from his property, Mr Howden understands that a number of complaints about the vegetation being a fire hazard had been received by the Council. He sought access to the "source of the complaints" because he could not understand why the vegetation had been removed only from behind his property. He is concerned that Council officers may have acted on spurious complaints and that certain persons may have been making frivolous complaints to annoy and harass him. He thinks this may be so, because of a complaint he had made about a noisy neighbour which led to the issuing of a noise abatement order, which was subsequently withdrawn.

22 Whilst the land cleared is not Mr Howden's, he is concerned to know who complained to the Council about the reserve being a fire risk, because he believed the complaints were spurious complaints and directed at him.

23 As I understand it, Mr Howden believes that if the source is identified, he would be able to persuade the Council the complaints were spurious.

24 Mr Thorning who gave evidence, explained that late in 2003 his area of responsibility was given further funding which enabled the Council to clear more reserves in the Shire than previously, including bushland and road reserves. The Council's fire management work was in fact increased, and of the 200 reserves in the Shire, they were able to do work in 70 of them. He explained that the Council relied on the public to advise of potential risks, then considered those risks for itself and made its own mind up about it. He explained why the clearing in the reserve had commenced behind Mr Howden's property. I accepted his evidence and am satisfied that, in all the circumstances, the reasons for clearing that area were based on the shape of the reserve and creek and took account of likely wind direction in the event of a fire. He also made the point that Council does not discuss what other people have written or telephoned in, but explained such information is collated and used by Council to make up its own mind, and I accept that evidence.

25 Mr Oldmeadow's evidence was that it was Council's policy, particularly because of its privacy obligations, not to release personal information.

26 In my consideration of whether the documents are exempt from release under s33 of the FOI Act and whether release would be unreasonable, I am mindful of the views of the individuals who have responded to the s 53A notices, and that they have made it clear that they do not wish their details be disclosed. Further, I am conscious of Mr Howden's reasons for wanting the "source" of complaints and his views that release would be able to demonstrate to Council that the complaints were spurious and made to harass him.

27 An overview of the documents reveals that there have been a number of concerns and requests raised with Council about the Hearn Creek Reserve and nearby areas going back to 1997. Concerns are raised about potential fire risks, the density of planting etc.

28 Having considered the documents, I am not satisfied there is anything "spurious" about these complaints, or that there is anything to suggest they were made to harass Mr Howden.

30 The first two documents are identical. They record concern in October 2002 about the number of trees Mr Howden had planted behind his property on the reserve. The document contains personal information. Would disclosure be unreasonable? Given the nature and contents of the concerns, I am satisfied that the person who made the report would have done so believing that the complaint would be kept confidential. Given that, and the fact that it was made more than a year before the clearing was done, balancing all the parties' interests, I am not satisfied that non-disclosure is unreasonable, and am satisfied the exemption claimed under s 33 is made out.

31 Documents 3 and 4 concern the one complaint. Document 3 is an anonymous complaint made in November 2002. Document 4 is the data entry input for the same complaint. It concerns what is regarded as overplanting in the reserve. Whilst the complaint is anonymous, the information in the complaint is such that if released, the person's identity, address or location could be ascertained. It is therefore information relating to the personal affairs of a person. For the same reasons as for Documents 1 and 2, I am satisfied that the document is exempt from release under s 33 of the Act, and note that the person's desire to maintain confidentiality is even stronger given that the complaint is anonymous.

32 Document 5 records a complaint about dense dry grass made in January 2003. Given the information and the address it is difficult to see how the complaint is relevant to Mr Howden's request as it does not directly concern any of the reserve running along the rear of Mr Howden's property. I am however, satisfied it contains personal information and that release in the circumstances would be unreasonable.

33 Document 6 records a complaint made in January 2003 about grass at the rear of that person's property. An inspection of the document reveals that it is a complaint about a different reserve. I am satisfied however, that it contains personal information and that release in the circumstances would be unreasonable.

34 Document 7 is a request made in January 2003 for Council to inspect the overgrown Hearn Creek area in view of recent fires. The document contains personal information and, in the circumstances, I am satisfied release would be unreasonable.

35 Document 8 is a request made in February 2003 for Council to investigate fire hazards along Hearn Creek. The document contains personal information and, in the circumstances, I am satisfied release would be unreasonable.

36 Document 9 records a request to Council in March 2003 about the reserve requesting inspection and clearance of fire dangers and concerns about fire hazards. The document contains personal information and, in the circumstances, I am satisfied release would be unreasonable.

37 Document 10 records a call to Council in April 2003 seeking a meeting with a Council officer to discuss dense planting in the reserve and concerns about future fire risks. The document contains personal information and, in the circumstances, I am satisfied release would be unreasonable.

38 Document 11 records a complaint made in December 1997 about the creek area being overgrown and potential fire risk. The document contains personal information and, in the circumstances, I am satisfied release would be unreasonable.

39 Document 12 again records a December 1997 complaint about the "gully" and the efficacy of a fire break. The document contains personal information and, in the circumstances, I am satisfied release would be unreasonable.

40 Document 13 records an inquiry made with the Council in November 2003 asking if the creek area in general was on the programme to be maintained that year. The document contains personal information and, in the circumstances, I am satisfied release would be unreasonable.

41 Document 14 records a concern raised in November 2003 about an area, not the area behind Mr Howden's block, of the reserve being overgrown and difficult to access. The document contains personal information and, in the circumstances, I am satisfied release would be unreasonable.

42 Document 15 records a request made in January 2004 about slashing vegetation behind the residents' own property. The document contains personal information and, in the circumstances, I am satisfied release would be unreasonable.

43 As I have found all the documents are exempt from release under s 33 of the Act, it is not necessary to consider the application of s 50(4) nor whether the exemption under s 35 applies.

44 I have considered whether I should apply s 25 of the Act and whether it is practicable to provide documents with deletions. As so much of the substance of the information would have the tendency to identify the person making the request or complaint, and deleting the substance would make the documents meaningless, I find that it is not practicable to grant access with deletions.

45 I therefore affirm the decision of the respondent.