1 On 21 March 2004, Mr Neil Leed, the applicant in these proceedings, made a request to the respondent, the City of Casey (the Council) for access to documents.

2 The request, addressed to the Freedom of Information Officer, was for:

all documents relating to a Planning Contravention Notice No PC G115/03 issued to me Dec 30, 2003 by City of Casey (Officer Geoff McDonald) see my letter herewith.

3 The planning contravention notice referred to, relates to Mr Leed's property at 31-35 Rowellan Avenue, Harkaway. From the accompanying letter, it is clear that Mr Leed sought access to documents that identify the complainant whose complaint led to the issuing of the contravention notice. His letter in part reads :

I deny that the shed on my property has been or is being used as a warehouse store but seek access to your file on the basis that I believe this complaint has been maliciously made and not out of genuine concern for planning and the environment in this area. The complaint may also have involved criminal activity on the part of the complainant.

4 On 19 April 2004, Mr Jarrod Doake, the Team Leader Information Management, and who was then the Freedom of Information Officer with the Council wrote to Mr Leed refusing access. Following a request for internal review, the decision to refuse access was confirmed.

5 On 12 July 2004, Mr Leed applied to this Tribunal for review of that decision.

6 There is only one document in dispute, an extract from the Council's computerised Customer Request Tracing System, titled request No 354352. It contains evidence of a complaint received and identifies the person who made the complaint.

7 The hearing proceeded before me on 28 October 2004. Ms Olynyk, solicitor, appeared for the Council. She called Mr Geoff McDonald, the Planning Investigations Officer and Mr Robert Pedder who was the Freedom of Information Officer at the time of the request and who is now the Manager Corporate Support. They tendered witness statements, gave evidence and were cross-examined. Ms Olynyk also tendered a statement of Mr Jarrod Doake the current Team Leader, Information Management.

8 Mr Mulholland, solicitor, appeared for Mr Leed. He called Mr Leed, who tendered a witness statement, gave evidence and was cross-examined. He also tendered a statement of Ms Jodi Delaney.

9 Both parties made extensive written submissions, addressing the law applicable to the application of the exemptions claimed and referring to the material relied on by the parties. Both representatives spoke to those submissions in the hearing.

10 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.

11 In this case there was no issue about whether the information sought was information relating to the personal affairs of any person. Therefore, the consideration of the application of the s 33 exemption focussed on whether disclosure of the information would be unreasonable.

12 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.

13 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, and the interest of the applicant and purpose for which the applicant requires release (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; 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).

14 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.

15 The Council also claims the 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.

16 For this 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).

17 Mr Leed has owned a block of land in Harkaway since 1991. On that block there is a sizeable shed and a horse shelter. According to Mr Leed, he has, for many years, had difficulties with a particular neighbour. He believes that that neighbour made what he regards as a malicious complaint to the Council about the use of that shed. He understands that that complaint led to the issuing of the planning contravention notice which he also disputes.

18 Mr Leed makes no secret of the fact that having formed a preliminary view as to the identity of the complainant, and believing that that person has potentially engaged in criminal or unlawful conduct by trespassing on his property, he seeks confirmation of the identity by seeking disclosure under the Act, to consider what action he might choose to then take.

19 As I said, both parties made extensive and comprehensive written submissions and spoke to those submissions in the hearing. There is no need to repeat them.

20 So far as the exemption claimed under s 33 is concerned, the submissions focussed on whether disclosure was unreasonable.

21 The respondent, having referred to the relevant principles and cases, particularly Re Page and Metropolitan Transit Authority (1988) 1 VAR 54; Re Gunawan and Department of Education (unreported VCAT Davis M, 15 December 1998); Gregory White v Pyrenees Shire Council [2001] VCAT 2043 and Russell Howden v Mornington Peninsula Shire Council [2004] VCAT 1829, that guided one in the consideration, submitted disclosure would be unreasonable in the circumstances. In particular, the respondent submitted that release would be an unreasonable disclosure of one's personal affairs as the "request for service" to the Council was made to and treated by the Council in confidence and its release may exacerbate the applicant's sense of grievance with respect to the person who made the complaint. Further, the Council submitted that there has recently been an increased recognition and protection of an individual's right to privacy through the enactment of privacy laws. The respondent relied on the evidence of Mr Pedder and Mr McDonald in support of this submission.

22 The applicant's submissions also referred to a number of decisions of this Tribunal and its predecessor. It was submitted the applicant is not a vexatious applicant and that the circumstances of this case are unique insofar that it is more probable than not that the complainant, in making the complaint to the Council, has acted unlawfully and therefore the interest in disclosure should outweigh the complainant's interest in privacy. It was further submitted that the applicant's motive for seeking disclosure is to confirm the identity of a complainant for the purposes of contemplating the commencement of civil proceedings.

23 There are a number of reasons why I am of the view that the exemption claimed under s 33 is made out.

24 It is accepted that the information sought is information relating to the personal affairs of a person, so my considerations focus on whether disclosure would involve the unreasonable disclosure of that information.

25 I accepted the evidence of Mr Pedder about the Council's general practice of protecting the identity of complainants and receiving complaints in confidence and the reasons for that and his evidence that he had spoken to the complainant on several occasions who expressed their wish to have their confidentiality maintained.

26 Those factors, in my view, outweigh the interests of Mr Leed. This is particularly so where he acknowledges he has other avenues by which he might identify a potential defendant, such as Rule 13.03 of the Magistrates' Court Civil Procedure Rules (1999). I do not accept the contention that it is unreasonable to deny access because there are allegations of some unlawful conduct. They are no more than an allegation that the complainant has potentially engaged in criminal or unlawful conduct by trespassing with the express purpose of lodging the complaint. I reject the applicant's submissions that denial of access is somehow tantamount to a denial of the applicant's rights to correctly identify the complainant as a potential party to future proceedings and for him to exercise those rights, if he so chooses, to commence proceedings to protect and enforce such rights. Quite simply, he can pursue any rights he has, in other more appropriate forums.

27 Even if I am incorrect in finding the exemption under s 33 is made out, I am also satisfied it is exempt from release under s 35(1)(b).

28 Again, the parties made written submissions as to its application and spoke to those submissions in the hearing.

29 I was satisfied on the evidence of Mr Pedder, which I accept, that the information was communicated in confidence to the Council and that the complainant has expressed their wish that the information not be released.

30 Having considered all the evidence and the submissions, I am also satisfied that it would be contrary to the public interest to disclose it, in that disclosure would be reasonably likely to impair the Council's ability to obtain similar information in the future.

31 In forming that view, I accepted Mr McDonald's evidence that 60% of information about potential contraventions comes from members of the public and that the Council relies on that source for information about possible contraventions which would otherwise go undetected. I also accepted Mr Pedder's evidence that Council regularly relies on complaints received in confidence to fulfil its regulatory functions, which is in the public interest, and that were Council to release the identity of complainants, it is likely that many potential complainants would be less inclined to come forward with information, particularly if there was any potential for exposure to retaliatory or detrimental action against them for making a complaint.

32 Neither Mr McDonald's, nor Mr Pedder's evidence on these matters was shaken in cross-examination.

33 Having found the document exempt from release under s 35 and putting to one side that s 50(4) has no application where an exemption under s 33 is made out, s 50(4) of the Act gives power to grant access where I am of the opinion that the public interest requires that access be granted.

(4) On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.

35 My task is to decide whether the public interest has been demonstrated to the extent that it outweighs the competing interest of documents protected from disclosure under the Act, and requires that access should be granted.

36 "Public interest" is a term not defined in the legislation. However, the case law is clear that I need to distinguish between what is in the public interest and what is of interest to know, and what is of benefit to the community in general, not the benefit of any individual, much less the curiosity of any individual (see DPP v Smith [1991] VicRp 6; [1991] VR 63; Re Just and Department of Justice (1996) 10 VAR 126).

37 I agree with the Council's submissions the thrust of which were that there was a public interest in protecting the privacy of members of the public who communicated matters to Council in confidence for the purposes of Council carrying out its statutory obligations. I accept that that is a significant and important public interest consideration which outweighs Mr Leed's personal interest in knowing the identity of the complainant, particularly in circumstances where he has other avenues for pursuing his inquiries. There is no evidence of any broader community interest, clamour or unrest about the withholding of this information, such as to persuade me that the public interest requires that access be given.