15.1 34 pages were released to the Applicant outside the FOI Act;

15.2 a further 19 documents had been identified as falling within the request;

(a) three documents, comprising three pages were released in full;

(b) seven documents, comprising 12 pages, were released in part with reductions to remove exempt material pursuant to ss 30(1), 31(1)(a), and 35(1)(b) of the FOI Act;

(c) access to nine documents, comprising 24 pages, was refused in full, with exemptions claimed under ss 30(1), 31(1)(a), and 35(1)(b) of the FOI Act.

1. Accordingly, there are 16 Documents over which the Respondent claims exemption in part or full.[1]
2. The Applicant has now abandoned his claim for the Documents numbered 1, 4, 5, 6, 10, 13 and 14 listed in the Schedule of Documents so that only the remaining 9 Documents are in dispute in this proceeding.
3. Pursuant to s 46(3) and Schedule 1, cl 29 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act), the Respondent's reasons for the decision are set out in its letter dated 24 September 2015.
4. On or about 4 October 2015, the Applicant made an application for review of the decision to the FOI Commissioner.
5. The FOI Commissioner did not make a decision within the required period under s 49J of the FOI Act. Accordingly, on 30 November 2015 the Applicant made an application to the Tribunal under s 50(1) of the FOI Act.
6. By letter dated 7 December 2015, the Respondent was given notice by the Tribunal of the application for review.
7. On 23 December 2015, the Acting FOI Commissioner advised that the Applicant's application was dismissed pursuant to s 49G(1)(c) of the FOI Act, as the Applicant had made an application for review to the Tribunal and in those circumstances, he considered the review would be more appropriately dealt with by the Tribunal.

1. The Respondent variously relies upon four categories of exemptions under the FOI Act.[2]
2. First, in relation to internal working documents pursuant to s 30(1) of the FOI Act, the Respondent must satisfy the two limbs of that subsection, namely that the relevant Document/s fall within one of the elements of s 30(1)(a); and that the disclosure of the Document/s would be contrary to the public interest.[3]
3. Accordingly, the Document will be exempt under s 30(1) if its disclosure would relevantly:

1. disclose opinions, advice or recommendations of an officer; or 2. disclose consultations or deliberations between officers; and

1. which took place in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency; and

1. be contrary to the public interest.
2. The purpose of the exemption is:

... To protect the deliberative processes of government and to ensure that measure of confidentiality which will enable policy and like decisions to be taken after the frankest possible exchange of views and ideas between officers of the public service.[4]

1. A member of the Victoria Police or staff of the HJO or other agencies fall within the s 4 definition of 'officer' and 'between officers' for the purpose of s 30(1)(a).
2. The Respondent usefully identified a number of authorities which provide guidance to the interpretation of this exemption:[5]

A personal view, an opinion recommended or offered, or a presentation worthy of acceptance fall within the scope of the term 'opinion, advice or recommendation'[6]

1. The document should either record the opinion, advice or recommendation, or disclose it.[7]
2. Equally, a document that discloses matter in the nature of a 'consultation or deliberation' falls within s 30(1)(a). The Tribunal accepts that the investigative process into the conduct of members, conducted by Victoria Police, is a deliberative process for the purpose of s 30(1).[8]
3. The term 'deliberative processes' is wide enough to include any of the processes of deliberation or consultation involved in the functions of an agency, what may be described as the agency's thinking processes.[9]
4. It is acknowledged that often there will be factors in favour and factors against disclosure. It is in this circumstance that the Tribunal must determine, on balance, where the public interest lies.[10]
5. The above considerations will inform the Tribunal in assessing the claimed exemption under s 30(1).
6. Secondly, in relation to law enforcement documents pursuant to s 31(1)(a) of the FOI Act, the HJO will not disclose information if it would be likely to improperly affect an investigation, or the administration or enforcement of a particular law. The Respondent also relies upon this exemption in relation to documents which fall within the category of investigations and deliberations of the HJO to determine whether the Applicant was a fit and proper person to be appointed in accordance with s 14(2)(e)(iv) of the HJ Act.
7. If such information were released, the Respondent submits that HJO staff and other individuals involved in investigations and appointments may be reluctant to report fully and state their frank opinions and recommendations. This in turn would impact on the ability of the HJO to determine the suitability of proposed appointees and therefore prejudice the administration of the HJ Act.
8. I accept that an internal police investigation, which has the potential for criminal or disciplinary procedures against police officers, is part of the 'administration of the law'. Disclosure of the statements provided to Victoria Police as part of this investigation would be reasonably likely to prejudice the current investigation and the enforcement of the law in respect of the matters subject to investigation.
9. Thirdly, in relation to personal information pursuant to s 33(1) of the FOI Act, it is necessary to determine whether the information falls within 'personal information' in accordance with the following recognised principles:

1. 'personal information' has been given a wide interpretation;[11] 2. information that 'concerns or affects' the person as an individual is personal information;[12]

1. a person's personal opinion of another person, or the conduct, may be 'personal information' regarding the opinion holder;[13] and

1. that information is 'fairly benign' will not deprive the information of its personal character.[14]
2. I am satisfied that the Documents clearly contain 'personal information' in accordance with the above principles comprising:

1. the names of a number of people; 2. for parts of documents 15 and 16, the opinion of the person about the conduct of another person; and

1. information from which a person can be identified.
2. In determining whether disclosure is unreasonable, again the authorities provide significant guidance, in particular:

1. the Tribunal must identify all facts and matters relevant to the question and make an evaluative judgement based on them;[15] 2. the Tribunal should not proceed on the assumption that disclosure will be to the world at large, but the potential for such disclosure is a relevant consideration;[16]

1. relevant factors to consider include:[17] 1. the more sensitive the information the more likely disclosure would be unreasonable; 2. the circumstances in which the information was obtained; 3. whether the provision of information involved the voluntary cooperation on the understanding of confidentiality.

1. The extent to which the information is otherwise available to the public; 2. an applicant's interest in the documents; 3. whether release of the documents will promote any public interest; and 4. the views of the person to whom the information relates
2. The Tribunal will consider below whether disclosure of the Documents is unreasonable in this case.
3. Fourthly, in relation to information received in confidence pursuant to s 35(1)(b) of the FOI Act, the Respondent submits that, of the remaining Documents in dispute, documents 12, 15 and 16 are exempt, in whole or in part by reason that:[18]
   1. disclosure of the Document would reveal information that was communicated to the agency in circumstances of confidence; and
   2. disclosure of the confidential information is contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of the agency to obtain similar information in the future.
4. Whether information was obtained in confidence is a question of fact;[19] it is not necessary to show a legal obligation of confidence;[20] and the information may be received in confidence although be available for use in subsequent legal proceedings.[21]
5. I am satisfied that the relevant information relates to the Applicant's suitability for appointment as a bail justice and that such information was provided in confidence having regard to:
   1. the Applicant's agreement at the outset for the HJO to make confidential enquiries about him;[22] and
   2. the methodology by which HJO undertake their work processing, investigation and assessment of applications in confidence.[23]
6. Whether disclosure would be reasonably likely to impair [meaning damage or injure[24]] the Respondent's ability to obtain information in future, is a question of fact;[25] and must be considered in light of the seriousness of the consequences of disclosure.[26] These matters will also be considered further below.
7. Finally, the Tribunal retains a discretionary power to grant access to an exempt document where 'the public interest requires' pursuant to s 50(4) of the FOI Act. (public interest override).[27]
8. The High Court commented upon the ambit and operation of the public interest override as follows:[28]

1. the power is not to be characterised as one exercised only in exceptional circumstances; 2. the word 'requires' directs the decision-maker to identify a high threshold public interest before the power can be exercised, that is, it is not enough that access to the documents could be justified in the public interest; and

1. it defines an evaluative standard requiring restraint in the exercise of the power.
2. In summary, the Respondent has identified the following public interest grounds as militating against the release of the Documents in this case:[29]

1. promoting the disclosure of information about an applicant's suitability for appointment as a bail justice; 2. preserving the HJO's current practices and processes in respect of the investigation and vetting of applicants for appointment;

1. avoiding the confusion and unnecessary debate that may result from the release of partial, incomplete or draft versions of documents; and

1. preserving public confidence in the office of bail justice by preserving practices and processes directed at ensuring high-quality appointments to the office.
2. The Respondent further submits that there has been no matter of public interest which has been identified which would require release of the documents. Rather, the material before the Tribunal discloses a transparent and fair inquiry into the Applicant's suitability for office. The Applicant voluntarily withdrew his application and has not otherwise criticised the HJO or any of its processes. There is no element of disquiet or mischief that would require intervention of the Tribunal.

1. Mr Lance Marke (Applicant) filed two statements dated 17 and 18 February 2019.[30] Following is a brief summary.
2. The Applicant describes himself as 62 years of age, currently a self-employed farmer living in the Seymour area and a retired Detective Sergeant. During his 36 year professional career with Victoria Police he mostly undertook Criminal Investigations and Prosecuting matters in the Magistrates Court.
3. In 2014, with the encouragement of a local bail justice, the Applicant applied to become a bail justice. He described his motivation thus:[31]

... it was something more I could do voluntarily for the good of our local community. The duties and role of a Bail Justice would also support, compliment and reinforce my commitment and strong held beliefs in justice and fairness for all.

1. He completed all the preliminary requirements and on 7 July 2014 he received an email from the HJO to confirm that he had been deemed 'competent' for appointment as a Bail Justice and that a recommendation was being prepared for the Attorney General to sign off.
2. On 2 July 2014, the Applicant was informed by telephone by the HJO Manager that Victoria Police had informed the HJO of possible issues with his application. The Applicant assumed that the issues raised by Victoria Police may have related to an incident that occurred in 2003. The Applicant prepared a 'Private and Confidential' letter, dated 2 July 2014 which he emailed to the Manager of the HJO. In this letter he addressed what he described as the false and misleading corruption allegations which had been made against him in 2003, when he was a Detective Sergeant and Officer in Charge of the Seymour Crime Investigation Unit.
3. The Applicant received another telephone call from the Manager of the HJO advising him that information had been provided by telephone from a female acting inspector from Seymour police on Friday 20 June 2014. Subsequently the HJO Manager emailed to the Applicant a list of the statements made by the Inspector and asked him to respond, if he wished to do so. The statements alleged that the Applicant:

(1) resigned from the police force while under investigation for perverting the course of justice. The matter was in relation to an alleged sexual assault that the Applicant was investigating where it was alleged that he attempted to persuade the complainant(s) not to proceed with the charges. The accused in this matter was a family member or close family friend;

(2) was charged with the assault of two police officers;

(3) was suspended from duty pending an investigation during which time the Applicant was also banned from the police station premises;

(4) resigned prior to the completion of the investigation at which time VicPol made a decision not to proceed any further with the investigation or related charges.

1. The Applicant responded by statutory declaration to the HJO to the effect that all these statements are false and derogatory except that he was asked to refrain from attending the police station whilst on sick leave. He was not under investigation for any matter at the time.
2. On 24 July 2014, the Applicant subsequently submitted a formal complaint against the senior police officer, to Victoria Police. However, the Applicant was dissatisfied with the outcome and subsequently issued defamation proceedings.
3. On 25 September 2015, the Deputy Commissioner on behalf of Victoria Police and the State of Victoria issued a written apology. The apology admitted that Victoria Police had communicated to the Manager HJO words which were defamatory of the Applicant and were without foundation. The apology also stated that the Applicant's police record indicates no matters that would exclude him from being appointed as a Bail Justice.
4. The Applicant subsequently lodged 'on line' an expression of interest on three occasions during 2018 in becoming a Bail Justice. He has not received any further communication about these expressions of interest, other than an acknowledgment of receipt, notwithstanding the Applicant's belief that there remains a shortage of Bail Justices in the Seymour and surrounding areas. Before the Tribunal, the Applicant expressed the same belief and concerns as to why he had not been contacted.
5. Under cross examination, Mr Szuba of the HJO clarified that:

1. once an expression of interest has been received, it remains current for two years; 2. if the HJO identifies a need where a person may satisfy the requisite criteria then that person will be given an application form;

1. Seymour has not been identified as having a need for further bail justices since the Applicant has filed his further expression of interest;

1. hearings by bail justices have declined significantly; and 2. there has not been any recruitment for bail justices since January 2017.
2. In his Statement, the Applicant expressed the following concerns in support of his reliance upon the 'public interest' discretion under s 50(4) of the FOI Act:

There is a genuine concern that any secrecy can foster unsatisfactory practices and can breed corruption.

Fundamental to our democracy, our justice system, always provides an opportunity to test the accuracy and veracity of the truthfulness in statements made during the course of an investigation.

The legitimacy of how police obtain statements from persons relies on the process being fair and proper and open to scrutiny.

Those accused of wrongdoing, in fact all members of our democratic community, must be able to trust that the police and our justice system will adhere to the highest standards of integrity and propriety.

The truth must prevail. This truth will eventually set me free of many injustices.

Applicant's Statement of Legal Contentions dated 17 February 2019

1. I do not propose to repeat the relevant statutory provisions otherwise recorded above.
2. In relation to internal working documents, the Applicant submitted that the exemption relates to information gathered within an agency rather than information obtained from outside an agency.
3. In my view, this submission is misconceived. The Documents in respect of which exemption is claimed are documents which were clearly created within the HJO, notwithstanding that they may have related to information sourced from outside the HJO.
4. In relation to personal affairs, the Applicant appears to be submitting that he is already aware of the names of certain Departmental staff members who may have made statements regarding the police investigation. Accordingly he appears to be suggesting that the s 33(1) exemption cannot be claimed against him. Again, this submission is misconceived and the exemption does not in any way depend upon the purported knowledge of the Applicant.
5. In relation to the question of whether the disclosure of information relating to personal affairs would be unreasonable, the Applicant has referred to a list of authorities where information would not be regarded as relating to the 'personal affairs' of the person providing such information. The Applicant otherwise directed the Tribunal's attention to his motivation in seeking such information and submitted, in summary, that:[32]

1. the Applicant's motive and rationale is commendable, reasonable and justifiable; 2. the Applicant wishes to determine the adequacy of the inquiry (presumably referring to the police investigation);

1. disclosure of the information will 'clear the air' regarding the defamatory statements made about him;

1. the persons providing the information could have expected the Applicant to seek access; 2. any sensitivity regarding the 'personal affairs' is more likely to relate to the Applicant than the person providing the information; and 3. the Applicant has a profound interest in the information.
2. In my view, the matters raised are either misconceived or not relevant to the question of unreasonableness in the circumstances of this case. I will address this matter further below.
3. In relation to documents containing material obtained in confidence, the Applicant appears to focus upon the circumstances giving rise to the information in question rather than the circumstances whereby such information was obtained by the HJO. Before the Tribunal, the Applicant submitted to the effect that it could not have been intended that the HJO or other agency could claim exemption from disclosure of information found to be false, misleading and defamatory. For reasons further addressed below, the Applicant has misconceived the role and responsibility of the HJO.
4. In relation to whether disclosure of the documents would be reasonably likely to impair the ability of an agency to obtain similar formation future, the Applicant submitted that the significant volume of information already released by the HJO would militate against such likelihood. Where the Applicant is merely seeking the truth, he submitted that there should be no impediment to the release of such documents.
5. In relation to the Applicant's claim for public interest override, the Applicant submits that the Respondent has not discharged its onus to prove why the Tribunal should not exercise its discretion in the public interest. Furthermore, natural justice dictates that the Applicant should not be denied access to the Documents sought.
6. It is not in dispute that the HJO afforded natural justice to the Applicant in communicating to him the contents of statements which the HJO had received. It is also not in contention that the Applicant was given adequate opportunity to respond to such statements. Indeed, the Applicant expressed his satisfaction with his dealings with the HJO and made no criticism of their management of the application process.
7. It is also not in contention that the Applicant subsequently received an unequivocal apology from the Victoria Police and acknowledgement that the subject statements provided to the HJO were false, misleading and defamatory.

1. Mr Jan Szuba is a Principal Project Officer at the HJO. Mr Szuba made a witness statement dated 16 January 2019 and gave oral evidence at the hearing.

1. Mr Szuba confirmed that written notices were sent to persons whose personal information may be disclosed if certain contested documents were released.[33] Some recipients objected to the release of their personal information by reason of their concerns that such release to the Applicant:

1. would have an adverse impact on their health, sense of personal safety and well-being; 2. would have an adverse effect on their colleagues;

1. would be unreasonable given their limited involvement in the Applicant's bail justice application;

1. would be unreasonable because it would not further the Applicant's purpose in seeking the documents; 2. may be detrimental to their professional standing; and 3. would be unreasonable because they did not wish to be personally implicated in proceedings or to be involved in any further litigation.
2. Where the Respondent knows that recipients do not object to their personal information being released, it has been released. Furthermore, where a person's identity may be redacted due to other exemptions claimed but such person has not objected to its release, the Respondent makes no claim for exemptions pursuant to s 33(1) of the FOI Act.

1. Mr Szuba provided a concise explanation of the workings of the HJO. In summary, the HJO:

1. administers the HJ Act and provides managerial and administrative support for honorary justices (who include bail justices and justices of the peace) who volunteer across Victoria; 2. assists the Attorney General with the appointment, reappointment, suspension and removal of honorary justices; and

1. provides training and ongoing management of honorary justices, including in relation to the Code of Conduct for honorary justices.

1. The role of the honorary justice encompasses:
   1. in the case of justices of the peace, certifying documents, witnessing statutory declarations and other documents and taking affidavits; and
   2. in the case of bail justices, conducting after-hours hearings for bail applications and also conducting Interim Accommodation Order applications relating to children.
2. Under the HJ Act, the power to appoint and reappoint is exercised by the Governor in Council. Mr Szuba emphasised that in performing its functions, the HJO is mindful that the role of honorary justices is significant; persons appointed to such position must demonstrate high standards of integrity and professionalism; the functioning of the HJO must promote confidence in the persons appointed; and that the process of appointment is conducted in an independent, fair and impartial way.
3. Mr Szuba further details the investigations undertaken by the HJO in the appointment process, including probity checks and assessments, interviews and training. In regard to receipt of information, Mr Szuba stated:[34]

The HJO rarely receives information from external sources about a person applying to be appointed as a bail justice. Typically, decisions on applications are made by reference to... information provided by the applicant... and at interview, probity checks and confidential enquiries that the person's consent in their application form for the HJO to make...

In contrast, DJCS does typically receive information from external sources regarding honorary justices once appointed... including members of the public, police officers and the Department of Health and Human Services...The HJO thoroughly investigates information provided by external sources and has systems and processes in place for dealing with information from external sources about the character and suitability of bail justices during their appointment...

1. Where the HJO does receive information which may adversely affect the appointment of an applicant it will deal with such information in accordance with the basic rules of natural justice.[35] Mr Szuba further details the general policies concerning confidentiality and restricting access to information to those with a legitimate business need to know.
2. Mr Szuba acknowledged that, in his experience, people within the community would generally not remember if a person in office is eventually exonerated of an alleged wrongdoing. Accordingly, the need to maintain confidentiality is critical.

If information is irrelevant, uncertain, unsubstantiated or baseless but potentially harmful to the person and so the role if appointed, the HJO will treat it [sic] confidentially to protect the person...

1. Mr Szuba detailed at some length the reasons why releasing complaints and other information received by the HJO in confidence would highly likely impair the ability of the HJO to obtain similar information in future:[36]

1. The giving of information by members of the public is frequently conditional upon the HJO receiving it on a confidential basis. If the HJO were inhibited in agreeing to such confidentiality it would almost certainly discourage certain persons from providing information or making complaints; 2. Public confidence in bail justices would be undermined if the HJO were inhibited in receiving and investigating complaints and concerns which may not otherwise be on the public record;

1. Complaints or part thereof, received by the HJO, may relate to sensitive personal matters which if publicly disclosed could cause harm, distress or embarrassment to the complainant and further discourage future complainants;

1. Disclosure of the source and details of complaints may expose the complainants to the risk of recrimination by an applicant; 2. Victoria Police play an integral role in bail hearings and accordingly have frequent contact with bail justices. Accordingly there are frequent interactions between Victoria Police and HJO where appropriate where there is information relevant to the suitability of a particular applicant. Again notifications and information received from Victoria Police is treated as confidential. This is particularly critical where there may be an ongoing investigation; and 3. Similarly, the HJO may receive information or complaints from other external agencies, such as the Department of Health and Human Services, which also plays a role with bail justices in the context of applications for interim accommodation orders. The same issues of confidentiality apply.
2. Mr Szuba further detailed the management of confidential information, once received, the process of further investigation, internal deliberations and production of related documents. Mr Szuba outlined the reasons why it would be contrary to the public interest for the investigation or deliberation documents to be disclosed, as follows:[37]

1. The disclosure of complaints or information which relates to sensitive personal matters may cause harm, distress or embarrassment to the complainant and discourage others from coming forward in future; 2. The HJO affords natural justice to the person affected. Allegations are investigated thoroughly and if disclosed may unduly damage the person's reputation, particularly where information is not substantiated or a decision is taken not to act upon the information;

1. The HJO is not authorised to compel witnesses to give evidence. Accordingly, it is dependent upon persons being willing to make full and frank disclosure is without fear of liability for defamation, criticism or embarrassment;

1. HJO affords natural justice to an applicant and ensures that the applicant is made aware of any allegations or concerns which have been raised; and 2. The disclosure of internal deliberations would likely affect how officers conduct their investigations and the extent to which agencies may be prepared to make full disclosure.

1. Respondent Counsel submitted that the Documents in dispute were created in the context of the Respondent processing the Applicant's application for appointment as an honorary bail justice, including the preparation of advice to the Attorney-General on whether the Applicant is 'fit and proper' within the meaning of s 14(2) of the HJ Act.
2. Council further submitted that the Respondent undertakes a process of assessment and investigation into a candidate's fitness for office that is fair, accurate and robust and that confidentiality is vital to the efficacy of this process. There is a significant public interest in preserving the level of confidentiality maintained by the Respondent to ensure the Respondent's continued ability to undertake robust assessment and investigation into a candidate's fitness for office.
3. In his statement and evidence before the Tribunal Mr Szuba described the 9 Documents in dispute as follows:[38]

1. Document 2 is a Brief prepared by the HJO for the Attorney-General, as part of the deliberative process on the Applicant's eligibility for appointment. Certain parts of this Document have already been released to the Applicant, being material considered to be purely factual or otherwise known to the Applicant.
2. The remaining parts of the Documents contain:

1. information and consultations, obtained in confidence, as part of the deliberative process; 2. information relating to the personal affairs of persons; and

1. the opinion, advice or recommendations of offices of the Department not considered or eventually adopted by the Attorney-General.
2. The Applicant withdrew his application and commenced defamation proceedings before the brief was considered by the Attorney-General
3. Mr Szuba confirmed his opinion that documents of this kind would likely impair similar information being made available to the Attorney General in future by reason that persons may be less likely to come forward with such information; and HJO offices may be fearful of the repercussions of disclosing such information in a brief. In either event, the credibility and integrity of the appointment process could be compromised. Furthermore, release of the disputed parts of the Documents would unreasonably disclose information relating to the personal affairs of persons who have objected to such disclosure in response to the s53A notification process.[39]
4. Having now examined the contested parts of Document 2, I am satisfied that the above description correctly reflects its contents.
5. I am further satisfied that parts of the Documents variously fall within s 30(1), 33(1) and s 35(1)(b) of the FOI Act.

1. Documents 3 and 9 comprise email correspondence between officers of the HBO and an agency regarding the Applicant's complaint to Victoria Police about the provision of information to the HJO.[40]
2. Mr Szuba confirms that the consultation recorded in these documents was undertaken for the purpose of HJO's deliberative process concerning the appointment of the Applicant.
3. Having now examined the contested parts of Documents 3 and 9, I am satisfied that the above description correctly reflects its contents.
4. Similarly for Document 2, Mr Szuba stated that the confidentiality of these documents is essential to ensure free flow of information between agencies. Disclosure would be contrary to the public interest because it may impair the HJO's ability to obtain unfettered information in the future and constrain the relationship between the HJO and the relevant agency. Furthermore, release of these Documents would reveal information relating to the personal affairs of junior officers within HJO and/or the agency. Such officers are not intended to be accountable for decisions and communications and are not and should not be expected to make publicly available personal identifying information such as phone numbers and email addresses.[41]

1. Documents 7, 8, 11, 12, 15 and 16 are file notes, a memorandum and emails regarding HJO's internal working deliberations.
2. Mr Szuba confirmed that these Documents record information obtained from an agency in confidence, information relating to personal affairs, draft personal opinions and recommendations not considered or eventually adopted. The Respondent does not maintain its claim for exemption of names pursuant to s 33(1) of the FOI Act where the individual has consented to its release.[42]
3. Having now examined the contested parts of Documents 7, 8, 11, 12, 15 and 16, I am satisfied that the above description correctly reflects their contents.
4. Mr Szuba again relied upon the need for HJO to be able to obtain and record similar information in future where disclosure might otherwise inhibit a full and frank record of opinions and recommendations.

1. Having regard to my examination of the Documents, the evidence of Mr Szuba and submissions of the Respondent, I am satisfied that each of the Documents in dispute contain material in the nature of opinion, advice or recommendation as to the:

1. eligibility criteria required to be investigated and assessed pursuant to s 14(2) of the HJ Act, particularly in regard to Document 2; 2. the administration of the vetting process relevant to s 14(2), particularly in respect of documents 15 and 16; and

1. consultations between officers of the HJO and another agency, particularly in respect of documents 3, 5, 6, 9, 11 and 12, in investigating the Applicant's suitability for appointment.
2. As indicated above, I am also satisfied that each of the Documents in dispute was created to satisfy the requirements of s 14(2) of the HJ Act and whether created as part of the vetting of the Applicant against the s 14(2) criteria or investigating information provided by another agency, in either case, constituted a 'deliberative process' for the purpose of s 30(1).
3. I am further satisfied that disclosure of such Documents would be contrary to the public interest for the purpose of s 30(1)(b) by reason that:

1. the Documents contain information obtained in confidence about the Applicant's suitability for the statutory office of an honorary justice; and the information contained in such Documents is cloaked in the sensitivity which should attach to an office demanding a high degree of integrity and trust; 2. it must be noted that no decision was in fact made in relation to the Applicant's application by reason that his application was withdrawn prior to any decision being made;

1. disclosure would likely inhibit the candid exchange of information within HJO and between HJO and other agencies and from the HJO to the Attorney-General;

1. disclosure might lead to confusion or unnecessary enquiry or concern as to the completeness of documents; 2. where the decision-making process is itself incomplete, as it was in this case, disclosure of documents may give an incomplete picture of the decision-making process; and 3. disclosure may inhibit the independence of officers of the HJO or the provision of frank and fearless advice by the HJO to the Attorney-General.
2. In regard to those Documents for which exemption is claimed pursuant to s 33(1), as indicated above, in my view there is no question that the Documents, in part, comprise personal information, including names, professional identification and/or personal opinion of the person. The information is 'sensitive' in the manner previously described. In my view, it would be unreasonable to disclose such information by reason that:

1. the information relates to a statutory office of high integrity, received and maintained in confidence by the HJO; 2. relies upon the voluntary cooperation of other agencies and persons willing to make relevant statements; and

1. is not ordinarily publicly available.
2. Furthermore, there has been no identified public interest in releasing the personal information. In particular, release of the Documents will likely compromise or damage the public interest in:

1. promoting practices and processes that ensure a rigorous vetting of applicants for the position of honorary bail justice; 2. promoting practices and processes that maintain the integrity of the office of honorary bail justice;

1. the free and full exchange of information between government agencies on matters relevant to the appointment of a person to a statutory office;

1. promoting an individual's entitlement to privacy; and 2. maintaining the efficacy and integrity of the Respondent and Victoria Police's procedures for investigating an applicant's conduct.
2. I have also taken into consideration that the s 53A notice procedure has elicited responses from persons whose personal information is at stake who have raised reasonable concerns for its disclosure. These concerns assume a greater significance where there is otherwise no compelling reason identified for such disclosure.
3. In relation to the Respondent's reliance upon information received in confidence, I am satisfied that the nature and content of certain information was given and received in circumstances of confidence; in reliance upon and with the expectation of confidentiality being strictly maintained. I am further satisfied that disclosure of such confidential information is contrary to the public interest by reason of the context in which such information was received as it would likely impair the ability of the agency to obtain similar information in the future. In particular, the HJO is reliant upon the receipt of voluntary and candid information from relevant agencies. The proper discharge of its statutory duties could be severely inhibited if persons or agencies felt discouraged by the prospect of unlimited disclosure. Equally it could discourage the proper exchange of candid opinions in written communications between agencies and within the HJO.
4. In my view, the interests of the Applicant in the release of the Documents is purely a personal interest which raises no public interest whatsoever. The concerns raised by certain statements received by the HJO and the potential damage to the Applicant's reputation has been completely erased and the Applicant completely exonerated by the unequivocal apology given to the Applicant by Victoria Police. There is no further 'clearing of the air' or correction of errors which is required or warranted.
5. In my view, the Applicant has fundamentally misconceived the statutory role of the HJO. In stating this view I do not in any way intend to impute improper motives to the Applicant. The HJO has not and cannot be said to have harboured or covered up false, misleading or defamatory information merely by reason that, at any time, it is in receipt of information which ultimately proves to be false. As indicated by Mr Szuba, the Applicant underwent normal probity checks and the HJO received information and conducted an investigation and where relevant, disclosed information to the Applicant for his response. There has been no suggestion in this case that the HJO has not performed its functions properly and with due diligence. I am satisfied that the Documents fall within the exemptions claimed and there is otherwise no basis to release any part or whole of such Documents in the public interest, let alone to satisfy the personal interest of the Applicant.
6. The HJO is not functioning as an agency of the criminal justice system and its role is not to enforce the law per se. Its statutory role and indeed its resources are confined to the functions and duties articulated in the HJ Act.
7. Finally, it should be noted, as acknowledged by Respondent's Counsel during the Hearing, that the claimed exemptions are not motivated by whether a document contains content which is damaging or derogatory to the Applicant. Rather, it is a question of whether the document falls within a category or description under the relevant statutory provisions, which provide for exemption.

1. For the above reasons:
   1. I am satisfied that the Documents in dispute are exempt as claimed by the Respondent pursuant to s 30(1), s 31(1)(a), s 33(1) and/or s 35(1)(b) of the FOI Act; and
      1. I am not satisfied pursuant to s 50(4) of the FOI Act that the public interest requires the release of any or any part of such Documents.
2. Accordingly the application is dismissed.

[1] A schedule to the documents in dispute is contained in Tab 3 of the s 49 Statement.

[2] TB 3, Respondent's Statement of Legal Contentions [35]-[63].

[3] Section 30(1)(b); Re Brog and Department of Premier and Cabinet (1989) 3 VAR 201 Galvin DP.

[4] Penhallariak v Department of Labour and Industry (unreported County Court, 19 December 1983) 29.

[5] Respondent's Statement of Legal Contentions [40]-[41].

[6] Halliday v Office of Fair Trading (unreported, AAT of Victoria, Coghlan DP, 20 July 1995).

[7] Mildenhall v Department of Education (1998) 14 VAR 87.

[8] Marke v Victoria Police (General) [2006] VCAT 1364 [63] per Preuss SM.

[9] Re Waterford and Department of Treasury (No 2) [1984] AATA 67; (1984) 5 ALD 588 at 606 cited with approval in Re Brog at 208, Mees v University of Melbourne [2009] VCAT 782 [33] (Davis SM).

[10] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331.

[11] Hutchinson v Department of Human Services (1997) 12 VAR 422. (Hutchison)

[12] Hanson v Department of Education and Training [2007] VCAT 123 [9].

[13] Richardson v Business Licensing Authority [2003 [VCAT] 1053.

[15] Victoria Police v marke [2008] VSCA 218; (2008) 23 VR 223 (Marke) [68]. [76]-[77] per Weinberg JA and [96]-[98] per Pagone AJA.

[16] Marke at [27], [99], and [103] and Morgan v Department of Human Services (General) [2008] VCAT 2420 [63] per Davis SM.

[17] Page v Metropolitan Transit Authority (1988) 2 VAR 243, 246.

[18] Respondent's Statement of Legal Contentions, [54]-[59].

[19] Ryder v Booth [1985] VicRp 86; [1985] VR 869 [Ryder] at 883.

[21] Shulver v Victoria Police (1959) 9 VAR 71 at 85-88.

[22] TB Tab 3, Szuba statement, section G.

[23] Szuba Statement [35], [50] -[53].

[26] Ryder; Department of Industry, Technology and Resources (1986) 1 VAR 345; Medical Practitioners Board of Victoria v Sifredi [2000] VSC 33.

[27] Respondent's Statement of Legal Contentions [60]-[63].

[28] Osland v Secretary to the department of Justice (2010) 214 CLR 320.

[29] TB Tab 5 Respondent's Statement of Public Interest Grounds.

[32] TB Tab 8, Applicant's Statement of legal Contentions 4-5.

[33] In accordance with s 53A(2) of the FOI Act.

[34] Mr Szuba's Statement {29]-[30].