1 The decision under review is set aside in relation to parts of Documents 36 and 40 and within 14 days the applicant is granted access to that material.

2 The decision under review is affirmed in relation to Documents 4, 6, 9, 12, 13, 21, 24, 35 and 39 and parts of Documents 36 and 40.

1 Most of Detective Sergeant Lance Marke's 31 year career as a member of the Victoria Police Force has been devoted to crime investigation. He has been stationed at Seymour Police Station since 1987 and he has held the position of officer-in-charge of the Seymour Crime Investigation Unit since 1994. During his career he has received numerous commendations for dedication displayed during investigations and for successful prosecutions.

2 On 3 April 2003, he commenced long service leave with no reason to suspect that events which were about to befall him would cast a shadow over his reputation and standing in his local community.

3 On 29 April 2003, the Ethical Standards Department (ESD) of the Police led by Inspector Christopher Enright and Detective Acting Senior Sergeant Helen Sattler commenced an investigation to establish whether Detective Marke had attempted to pervert the course of justice by hindering a police investigation. The police investigation related to allegations that an Anglican priest, Father Alan Sapsford, had sexually assaulted former altar boys.

4 The ESD investigation was a result of allegations by police officers Detective Senior Constable Matthew Neilson and Senior Constable Tamara Chippindall to the effect that Detective Marke had interfered with the Sapsford investigation.

5 On 7 May 2003, shortly after the ESD investigation commenced, the Australian Broadcasting Commission in its 7:30 Report televised a story in relation to the allegations against Pastor Sapsford in which there were claims of a cover up by the Anglican Church of paedophilia within the church. The programme featured a woman who alleged that Detective Marke had interfered in the criminal investigation of Sapsford. In May 2003, Derryn Hinch on Melbourne's 3AW took up the story as did the Seymour Telegraph on 14 May 2003.

6 Detective Marke has at all times vehemently denied the allegations made by Chippindall and Neilson and in the media, and he claims that the allegations were falsely made with the intention of assassinating his character and reputation.

7 On 10 October 2003, at the completion of the ESD investigation, Sattler found that the allegations against Detective Marke were not substantiated. Detective Marke believed that the finding should have been one of exoneration and, on 13 July 2004, he sought a review of Sattler's findings by ESD. On 26 October 2004, Acting Assistant Commissioner Cornelius of ESD changed the finding to unfounded but declined to make a finding of exoneration. Cornelius refused a request by Detective Marke to commence a formal investigation into the conduct of Chippindall and Neilson.

8 Detective Marke remains unhappy with the findings of ESD. He alleges that Chippindall and Neilson have made misleading or false statements about him and he believes disciplinary or criminal proceedings should be instituted against them. He has had an audience with Deputy Commissioner Nancarrow concerning these matters and he has sought a review by the Office of Police Integrity.

9 He has also made a complaint to the Ombudsman regarding the ESD inquiry, the behaviour of Chippindall and Neilson and other matters, including delays by Police in processing his request for documents. He is dissatisfied with the Ombudsman's findings and he has made further allegations to the Ombudsman which are now being investigated.

10 These proceedings concern a request by Detective Marke under the Freedom of Information Act 1982 (the Act) for access to documents held by Police relating to the ESD investigation. He was granted access to some of the documents. However, other documents were not released or released in part only on the basis that they were exempt under the Act. The documents claimed to be exempt are the subject of the dispute before this Tribunal.

11 In about August 2002, Neilson and Chippindall who were at that time both stationed at Seymour CIU, began an investigation into allegations that Sapsford had been guilty of gross indecency and indecent assault on former altar boys. In September 2002 Sapsford was interviewed by Police and charged with 20 counts of sexual assault. In March 2003, he died of an unrelated medical condition and the matters against him were formally discharged.

12 In early 2003, Chippindall and Neilson raised concerns with the Office of Public Prosecutions (OPP) that Detective Marke had interfered with the police investigation of Sapsford and they subsequently made the allegations to ESD after being advised to do so by a barrister at the OPP.

13 The ESD is a separate department of Police located in a secure area. It investigates corruption and prosecutes misconduct and criminal offences committed by members of the Police.

14 During the course of its investigation of Detective Marke, ESD investigators spoke to a large number of people including Chippindall and Neilson, other police officers, staff at Seymour Magistrates Court, members of the Seymour Anglican Church community, possible victims of Sapsford and members of the Sapsford family.

15 An independent investigation called Operation Trout Cod was established by Police in about June 2003 at the request of ESD to investigate complaints by parishioners of Christ Church Seymour, including that they had received abusive and threatening calls after they called for action against Sapsford. Some of the documents in dispute relate to that investigation.

16 The ESD investigation was completed by Sattler in September 2003 and she provided a report dated 10 October 2003 of just over 8 pages. Detective Marke has received a copy of her report. The file was forwarded to the Ombudsman for review of the investigation, and to the ESD Discipline Advisory Unit to consider whether any disciplinary breaches had occurred.

17 In December 2003, the OPP recommended that no criminal charges be laid. The ESD Disciplinary Unit formed the view that there was insufficient evidence to support any disciplinary action against Detective Marke for unprofessional conduct or wrongdoing. A minor peripheral issue was identified by the Unit in relation to a lack of communication between members at the Seymour CIU, and a Management Intervention Model (MIM file) was created within ESD and referred to local management for the purpose of a conciliation process. In August 2004, Detective Marke was counselled by Superintendent Rodney Johns, who was superintendent-in-charge of region 4 based at Seymour, in relation to communication and management issues.

18 After the commencement of the hearing a revised schedule of documents was exchanged by the parties which contained samples of the different categories of documents in dispute, and it was agreed that the hearing would proceed on the basis of this revised schedule. The sampling was undertaken because the total documents in dispute were numerous and could not be dealt with expeditiously within one hearing.

19 The documents in the revised schedule and the exemptions relied on by the Police are set out below :

Letter to Bishop of Wangaratta by a non-police person

s 33

Statement of Neilson taken by Sattler and unsigned draft version of the statement

Ss 33, 35(1)(b)

Ss 33, 35(1)(b)

ss 30, 33

Statement of A Hawkins with related typed and handwritten notes

ss 33, 35(1)(b)

ss 33, 35(1)(b)

ss 33, 35(1)(b)

ss 33, 35(1)(b)

ss 30, 33, 35(1)(b)

Diary and day book entries of operation Trout Cod Investigator (Detective Senior Constable Brown)

ss 33, 35(1)(b)

Parts of summary by Detective Constables Brown and Bodsworth of meeting with Chippindall at Seymour Police Station

ss 33, 35(1)(b)

20 A significant number of documents have been released by the Police to Detective Marke. One document released by the previous Police FOI officer was a summary of the statements provided by police and non-police witnesses to ESD investigators. The names and identifying features of some non-police witnesses have been deleted and details such as phone numbers of police witnesses but not their names. The document was Doc 170 in the original schedule of exempt documents and it was prepared by Sattler during the ESD investigation.

21 The police claim that the documents in dispute are exempt under sections 30, 33 and 35(1)(b) of the FOI Act. A fourth claim of exemption, under s 38, was withdrawn during the hearing.

22 Section 30(1) and (3) relevantly states :

(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act -

(a) would disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers, or an officer and a Minister, in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government; and

(3) This section does not apply to a document by reason only of purely factual material contained in the document.

(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).

"information relating to the personal affairs of any person" includes information -

(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.

24 Section 35(1)(b) of the FOI Act relevantly 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

25 The public interest is relevant to s 30, s 35(1)(b) and s 50(4). Section 50(4) permits the Tribunal to override most of the exemptions provided for in the Act including s 30 and s 35.

26 The public interest grounds upon which Detective Marke relied included :

•

Public interest supports decent standards in human conduct for the good order and wellbeing of the community.

•

Public interest affords a level of openness and honesty.

•

Public interest is advanced by truthful and accurate information.

•

Public interest requires intervention to avoid significant and avoidable injustice and provides the opportunity of righting any injustice.

•

Public interest is powerful and effective when there is community acceptance that justice is not only done, but is seen to be done.

•

Public interest has an obligation to protect innocent citizens from harm.

•

Public interest requires that right and ethical behaviour prevails over the disclosure of any misconduct.

•

Public interest is advanced if information reveals some form of illegality, impropriety, sharp practice or wrongdoing.

•

Public interest is advanced if evidence discloses false statements, misinformation or misconduct, particularly by public officials.

•

Public interest is most appropriate when there is a desirability to 'clear the air' about matters of disquiet.

27 Mr Dennis, counsel for the Police, relied on the following public interest grounds :

•

The information which would be released may be used for purposes which were not within the contemplation of those who provided the information and may be perceived as a breach of confidence by those individuals.

•

The use of information for purposes not contemplated by the providers of that information may lead to a loss of confidence in the police force and inhibit its ability to obtain similar information in the future. The result would be less effective law enforcement.

•

The release of personal information concerning potential witnesses may create apprehension in the mind of those and other individuals that assisting the police can expose them to adverse risks which can be avoided by simply declining to provide information to police. Witnesses whose testimony is used in court are protected by the judicial process because any interference with witnesses constitutes a contempt of court.

28 Detective Marke conducted his case before the Tribunal. He relied on written statements by him, other police officers and members of the public, and lengthy submissions. Several of those witnesses referred to Detective Marke's high ethical standards, his honesty and professionalism. I accept their evidence in relation to those matters.

29 He also provided in writing an undertaking that if any exempt documents were released to him they would not be disclosed or produced by him to any person or third party without the permission of the Tribunal or the police. He said, however, he retained the right to produce or release such documents to any legal representative or "investigating official" acting on his behalf.

30 The hearing was adjourned at the request of Police in its third day because an issue arose as to whether confidentiality was breached when confidential material was included in the MIM file when it was referred to local management. Following the adjournment, the Police called evidence from a number of police officers as to the handling of the MIM file.

31 There were matters raised at the hearing by the parties which were not directly relevant to the matters I have to decide. They included the wisdom of the appointment of Superintendent Johns as a resolution officer and the processes of the Professional Development Committee in relation to management issues, the appropriateness of a police directive to Detective Marke not to contact police or civilian witnesses in these proceedings and whether Detective Marke had harassed police officers and civilians who had made statements to ESD. Ultimately, it was not necessary for me to make findings in relation to those matters.

32 Detective Marke gave evidence that the allegations made by Neilson and Chippindall, the ESD inquiry, and the 7:30 Report and other media coverage had had a devastating effect on his health, life and character and his family. He made a number of allegations against Chippindall and Neilson including that they had given false and misleading information to ESD, that they had conspired to pervert the course of justice, that Neilson had given false information to the ABC and to the alleged victims of Sapsford to progress the Sapsford investigation, and that Neilson and Chippindall breached provisions of the Police Regulation Act 1958.

33 Detective Marke said he was dissatisfied with the ESD finding of "not substantiated" because he knew there was no credible evidence which could support any allegations of wrongdoing against him. He said that ESD failed to conduct a thorough and professional investigation or investigate his allegations of misconduct by police officers.

34 He claimed that ESD investigators had played a role in having him named in the 7:30 Report. He expressed a number of concerns in relation to the management issues identified by ESD and he said that when he was counselled by Johns on 17 August 2004 in relation to management issues identified at Seymour CIU, the counselling was based on false information provided by Neilson and Chippindall.

35 Detective Marke expressed concern that Johns had knowledge of the allegations against him in the 7:30 Report before the programme went to air and that he failed to let Detective Marke know in advance about the investigation and the 7:30 Report. Detective Marke said that if he had been informed he would have made himself available for interview immediately as he had done nothing wrong. Detective Marke said that injustices had occurred when he was named in the media as being a suspect for criminal allegations prior to the investigation being completed.

36 Detective Marke criticized the Police for their failure properly to inform the public, and particularly his local community, of the outcome of the ESD inquiry notwithstanding he had prepared a memo for them to release to the public. Detective Marke said there were false allegations in relation to his connection with the Sapsford family, including that he went on a school camp with Sapsford's son-in-law. This misled ESD investigators and another investigation, the Trout Cod Investigation. Detective Marke said that police had refused to reveal the identity of the person providing the false information.

37 He contended that the material in dispute was not confidential. He said that the MIM file (which contains some of the documents for which exemption was claimed) could be read by police administration staff particularly whilst the file was at Seymour Police Station for some three months and this was likely given the nature of the allegations and the publicity surrounding the matter.

38 Detective Marke said he lodged the FOI application with the police in an attempt to search for the truth, and as he was dissatisfied with the lack of answers and any apparent interest from ESD investigators in pursuing people he believed had made false statements. He alleged that the evidence identified many injustices against him. He said that further injustices had occurred in the unacceptable delays in the proceedings caused by the police in relation to the FOI application. He said that he wanted to clear the air about the allegations and investigation.

39 Document 4 is a letter dated 9 October 2002 from a non-police person to the Bishop of Wangaratta. Exemption is claimed for it under s 33. The letter on its face conveys concerns of the writer about certain matters and reveals personal information about the writer and others. The writer has indicated he seeks confidentiality for the material.

40 Determining whether release of information relating to the personal affairs of an individual would be unreasonable requires a balancing of interests and a consideration of all the circumstances, including the interest that an applicant has in the information, the nature of the information, the circumstances in which the information was obtained and the likelihood of the information being information that the person concerned would not wish to have disclosed[1].

41 In my view, the public interest in protecting the privacy of the writer and others referred to in the letter outweighs the interest in disclosure having regard to the sensitive matters discussed in the document, the fact that the material does not contain information of significance in relation to the ESD investigation and the various matters of concern raised by Detective Marke and the writer's opposition to release.

42 Detective Marke gave an undertaking referred to earlier that he would not make the material public. Given the limited nature of the undertaking, I think that it would be of little comfort to the individuals whose private affairs are involved.

43 I am satisfied the release of the document would involve the unreasonable disclosure of information relating to the personal affairs of the writer and others and it is exempt under s 33.

44 The s 35(1)(b) exemption is claimed in relation to Documents 6, 9, 21 and 24. The Documents are statements taken by ESD investigators for the purposes of the ESD investigation from Chippindall, Neilson and two non-police witnesses.

45 In Ryder v Booth[2] King J observed in relation to s 35(1)(b) that whether information is communicated in confidence is a question of fact and it is not necessary to consider whether legal obligations of confidence are set up by the communications in question. Gray J observed at p.878 :

It is necessary to look at the terms of the document, the nature of the information, the purpose for which and the circumstances in which it was provided, in determining its confidentiality.

46 The authorities indicate that no formal confidentiality agreement or an agreement by word of mouth is required to establish that information was communicated in confidence and that the understanding and the circumstances surrounding the communication or the very nature of the information may be sufficient in themselves[3].

47 Marks J in the Full Court of the Supreme Court in Department of Agriculture and Rural Affairs v Binnie[4] said :

The expression 'reasonably likely' is substantially idiomatic, its meaning not necessarily unlocked by close dissection. In its ordinary use, it speaks of a chance of an event occurring or not occurring which is real - not fanciful or remote. It does not refer to a chance which is more likely than not to occur, that is, one which is 'odds on', or where between nil and certainty it should be placed. A chance which in common parlance is described as 'reasonable' is one that is 'fair', 'sufficient' or 'worth noting'.

48 It is insufficient to show that a specific individual may be resentful or unwilling to provide information in future; there must be damage to the respondent's ability to obtain similar information in the future[5]. What is required is "a degree of impairment going beyond that which is merely trifling" and one which is more probable than not[6].

49 I turn to the first requirement of the section that disclosure must divulge information or matter communicated in confidence by or on behalf of a person.

50 The main witnesses called for the Police on this question were Sattler and Detective Inspector Westfield. Westfield is attached to ESD. Unlike Sattler, he was not involved in this investigation. I found both officers to be honest and forthright witnesses. They gave their evidence in an impartial manner and I accept their evidence as to the following matters:

•

Generally, complaints made to ESD and statements obtained from witnesses are received and held in confidence unless a criminal prosecution or disciplinary charges ensue.

•

Confidentiality is established by directives set out in various internal documents including the Victoria Police Manual and the ESD Discipline Investigation Manual[7].

•

Complainants and witnesses will not always be offered confidentiality. However, in the present case Neilson, Chippindall and the civilian witnesses were advised that their statements to ESD would be kept confidential unless there were disciplinary or criminal proceedings.

51 Applying the principles earlier referred to and having regard to the evidence before me I am satisfied that the information in the statements was communicated in confidence. There was an understanding on the part of the providers of the information and the Police that except in limited circumstances the information would be kept confidential. Confidentiality was also indicated by the nature of the communications and the circumstances surrounding the provision of the information to ESD.

52 In this regard, Sattler gave evidence that the nature of the original complaint involving allegations of sexual offences, the fact that the allegations had yet to be tested in court and that the defendant had recently died, but had surviving family members, made it an extremely sensitive matter to investigate. She said that Neilson, Chippindall and Senior Constable Stevens had all expressed concern about what might happen if their statements were released to Detective Marke. Neilson and Chippindall expressed concern that the fact that they had made statements to ESD would impact on their career and they believed they might be ostracised by the members of the police force as a result.

53 I am also satisfied that the second limb of s 35(1)(b) has been satisfied, namely that disclosure of the information would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of the Police to obtain similar information in the future. The combined evidence of Sattler and Westfield of ESD, which I accept, was as follows :

•

Disclosure of documents such as the documents in dispute will make the investigation of police corruption very difficult as the number of statements ESD will be able to obtain from witnesses will diminish.

•

Investigation of police members gives rise to tensions associated with colleagues investigating each other and having knowledge of the general investigation process. This factor can make the conduct of internal investigations extremely difficult and sensitive and release of any information concerning investigations can lead to further tensions between members and to harassment, intimidation and ostracism of police members.

•

It is vital for ESD to establish and maintain a relationship of trust with officers and with the public. To this end it is crucial that ESD investigations are conducted upon assurances and understandings of confidentiality.

•

The idea of giving information to ESD is something of a taboo and akin to dobbing in a fellow officer.

•

Release of information provided by civilian witnesses through the FOI process will be perceived as a breach of assurance given to civilian witnesses of confidentiality and in some cases, will create a real fear of repercussions.

•

Although officers can be directed to provide documents or be interviewed in relation to disciplinary matters, ESD does not have a coercive power to obtain a statement from officers in relation to criminal matters.

•

Disclosure of the documents would impair the ability of Police to obtain the same quality of information.

54 On the evidence before me it is more probable than not that there will be damage to the respondent's ability to obtain similar information in the future. I respectfully adopt the following observations of Megay SM in Tanner v Victoria Police[8]:

It seems to me that if absolute confidentiality about evidence received from sources both inside and outside the police force in relation to allegations of police impropriety and corruption cannot be guaranteed and maintained, then the role of the Ethical Standards Department is doomed and our community is the poorer for it. This may seem an unduly florid response but if ever there was a public interest in maintaining confidentiality to ensure that the ability of an agency to obtain similar information in the future is not undermined or impaired, it is in relation to the investigations conducted by the Ethical Standards Department into the officers of Victoria Police.

55 Detective Marke submitted that police officers who gave truthful information to ESD had nothing to fear from the forces of law and order. Whilst this may be so, they may have something to fear from fellow officers. In an ideal world, police officers are committed to the highest standards, but in reality, as Sattler indicated in her evidence, officers fear that giving information to ESD may impinge on their career development and subject them to harassment, intimidation and ostracism.

56 Detective Marke submitted that an undertaking of confidentiality from ESD investigators "could encourage false statements and allegations from dishonest persons who know their falsities will never be challenged[9]. Whilst I accept this may be the case, Parliament in balancing the competing interests of the public and providers of information found it necessary to include the exemption in the legislation without any requirement that it be truthful or accurate.

57 Detective Marke argued that the required degree of impairment could not be established in this case where Police had released (with personal details deleted) a substantial amount of documents, including Document 170 being the summary of the witness statements.

58 In my view there is a difference between strong suspicions as to the identity of a person and a strong belief as to the exact nature of a statement and the absolute knowledge that possession of the text would give. In the present case what stands between this applicant and the actions he wishes to take to the disadvantage of the officers who made the statements is that he does not have the actual texts. It follows that maintaining the exemption bestows a measure of protection on those who made the statements and a withdrawal of the protection would result in not upholding the exemption.

59 Detective Marke submitted that the ESD's ability to obtain similar information in the future, if the material was released, would not be impaired as officers can be directed under the Police Regulation Act to answer questions related to disciplinary matters. As DP Galvin observed in Re Lapidos and Ombudsman No 2 information voluntarily given may come from an unexpected source and resort to the coercive powers may not result in as full a flow of information as might have been provided without coercion[10]. Further, ESD does not have coercive powers in relation to criminal matters.

60 Detective Marke sought to rely on a statement of an officer who said that in FOI proceedings before this tribunal in 2001 the police had released to him statements by officers given to ESD. Detective Marke argued that such release told against the arguments advanced by Police in this case under s 35 of the FOI Act. In my view it is unsafe to draw any conclusion from that case in the absence of a full understanding of the circumstances in which the material was released and the particular facts of the case.

61 Document 12 is described in the amended schedule of exempt documents as the investigative notes of Sattler. It is undated. It was prepared by Sattler when she was considering obtaining a search warrant to seize the files of Sapsford's solicitor, Mr John Price. On its face it provides reasons why the warrant was obtained, sets out allegations against Detective Marke, poses a series of questions by Sattler which appear to reveal her thought processes in weighing up the allegations and what might be found in Price's files during the ESD investigation and her observations in relation to Price. Exemption is claimed for the document under sections 30 and 33.

62 Section 30(1) requires first that for a document to be exempt it must be "an internal working document" in that it meets the requirements of s 30(1)(a) and secondly, that its release will be contrary to the public interest under s 30(1)(b).

63 In my view the material falls within s 30(1)(a) in that if disclosed, it would disclose matter in the nature of advice prepared by Sattler for herself to assist her in carrying out her investigation. As Macnamara DP noted in Re Mildenhall and Department of Education[11], a personal aide-memoire whose release would disclose matter in the nature of advice and recommendation falls under s 30(1)(a). I am also satisfied that release would disclose advice for the purposes of the deliberative processes of the police in that the investigative process conducted by ESD is a deliberative process.

64 Some of the material could be categorised as factual in that it records allegations and information received from witnesses. In my view, however, the factual material and the material which falls within s 30(1)(a) are so intertwined that it would be hard to separate them to produce an expurgated document of any meaning[12]. On that basis it is not appropriate that I release the purely factual material.

65 In relation to the public interest, Sattler gave evidence that she regarded the ability of the ESD investigator, his or her superiors and other relevant members to communicate with each other frankly and that this was a critical part of any successful ESD investigation process. She said that if she had known there was a risk that documents that she created in confidence would be accessible, she would have been more circumspect in her record keeping to avoid compromising the integrity of the investigation and prejudicing the overall functions and objective of ESD.

66 I accept her evidence. It is contrary to the public interest to impede investigations of this nature by discouraging careful record keeping and note-taking or indeed by divulging internal written exchanges between officers within the course of an investigation into allegations where such exchanges are important if not crucial to the investigation process[13].

67 The Tribunal must balance public access to documents against the need to protect the deliberative processes of government. In the present case the latter outweighs the former.

68 The s 35(1)(b) exemption was claimed for Document 13. That document is in fact several documents. It comprises a statement taken by Sattler for the ESD investigation from Ms Hawkins who was at the time of the ESD investigation a lawyer employed by OPP and involved in the Sapsford investigation. It also comprises Ms Hawkins' handwritten notes and a statement by her which is undated but appears to be a summary of her statement given to Sattler. I am satisfied that the statement and summary falls within s 35(1)(b) for reasons similar to those given in relation to documents 6, 9, 21 and 24.

69 Ms Hawkins' handwritten notes relate to a time prior to the commencement of the ESD inquiry and appear to be her notes of an attendance on Chippindall and Neilson during the Sapsford investigation. She provided a statement to the tribunal in which she said that she provided her file notes to ESD on the basis that they would be used in the investigation and she would not have done so if she had known they would be released.

70 I am satisfied that the material falls within s 35(1)(b) in that it is information provided by Hawkins to ESD in confidence. For reasons given earlier, release would impair the ability of ESD to obtain similar information in the future.

71 Section 33 is also claimed for the notes. In part the material contains information relating to the personal affairs of others associated with Sapsford. It is information probably known to Detective Marke but disclosure to the world at large would, in my view, be unreasonable given the personal nature of the information. Accordingly, that material is also exempt under s 33.

72 Document 35 comprises parts of undated diary entries made by Sattler during the ESD investigation. The material appears on its face to record information received by Sattler from individuals who gave information for the purposes of the ESD investigation. It falls into the same category as the statements taken by ESD investigators and is exempt under s 35(1)(b).

73 Document 36 comprises a large bundle of e-mails received or written by Sattler or other police officers. Parts of the e-mails have been released. Exemption is claimed for the material pursuant to sections 30, 33 and 35(1)(b). Due to the large number of emails involved I have selected 10 as representative of the bundle.

74 Several of the e-mails do not appear to fall within any of the exemptions. I have reached this conclusion in the absence of direct evidence regarding the circumstances in which the e-mails were sent and keeping in mind that the respondent bears the onus of establishing the exemption[14]. The e-mails which are not exempt are as follows :

•

A Police officer to Sattler 12.5.03. 16:53. The identity of the author of the email has been deleted. The document concerns an arrangement for a meeting or conversation. Whilst it relates to the author's personal affairs because it identifies the person[15], it appears to be uncontroversial and the evidence does not establish that disclosure would be unreasonable. It does not fall within the other two exemptions claimed for it in that it does not disclose matter in the nature of opinion, advice or recommendation, it would not be contrary to the public interest to disclose it and it does not meet any of the requirements of s 35(1)(b).

•

Sattler to a police officer 7.5.03. 12:47. It has been released with the deletion of the name of the recipient of the email. It relates to that person's personal affairs but it appears to concern routine matters. Again, it does not fall within s 30 or s 35(1)(b).

75 The following e-mails would, if released disclose information obtained from witnesses interviewed by ESD or the names of those witnesses. They are exempt under s 35(1)(b) for reasons similar to those given in relation to the earlier documents of this nature :

•

Enright to Sattler 21 May 2003 14:14

•

Enright to Sattler 28 May 2003 12.58

•

Sattler to Anscombe 8 October 2003 09.56

•

Sattler to Lay 5 June 2003 17:17.

•

Maher to Smith 21.05.03 12:29 identifies several people and relates to personal matters concerning them. I think it likely that the people concerned would not wish to have the information disclosed and it is not clear what interest Detective Marke has in the information.

•

Smith to Johns 21.05.03 13:25. This email refers to two non-police people and release of the material would involve the disclosure of their personal affairs for reasons similar to those given in relation to the previous email.

•

Sattler to Daly 25.08.03 15:42. In the email Sattler gives information to Daly regarding the ESD inquiry including her views as to a particular matter. For reasons similar to those given in relation to Document 12 it is exempt.

•

Sattler to Hawkins 29.05.03 16:54. The email sets out the questions asked by Sattler of Hawkins when she was providing her statement. In my view, the material falls within s 30. Disclosure would disclose matter in the nature of advice prepared by Sattler to herself to assist her in carrying out her investigation. I am also satisfied that release would disclose advice for the purposes of the deliberative process of ESD and for reasons given earlier would be contrary to the public interest to release it.

78 Document 39 is a diary and day book entry of Operation Trout Cod investigator Detective Senior Constable Brown. It was the evidence of Detective Senior Constable Bodsworth that Brown's notes recorded a conversation between Bodsworth and a non-police person in the course of the Trout Cod investigation and that Brown took the notes whilst Bodsworth spoke to the person. Exemption is claimed for the material under ss 33 and 35(1)(b).

79 It was Bodsworth's evidence, which I accept, that the person interviewed had an expectation that the information would be used solely to assist the investigation. I am satisfied the material relates to the personal affairs of the person who provided the information and numerous other people to whom he referred. The information is highly personal. Some of the material is related to the police investigation of Sapsford or the ESD investigation. In my view, disclosure would be unreasonable because of the private nature of the information, the fact that the person who provided it would not have expected it to be made public and the high likelihood that the various people referred to would object to the release of such information.

80 Document 40 has been released in part to Detective Marke. It is a summary of information given to Bodsworth and Brown by Chippindall on 5 June 2003. Bodsworth gave evidence that he believed that Chippindall provided the information in the expectation that that it would be used solely to assist the investigation and not be released to the public.

81 The first part of the withheld material (2/3rds down the 1st page) would, if released, reveal the name of a non-police person who gave information to the police regarding Sapsford. The information has been released. I am satisfied that name is exempt under s 33 as if released it would reveal the person who gave information of a highly personal nature and certain views of the person. The names of the officers who interviewed that person do not appear to fall within s 33 because the evidence does not establish that disclosure would be an unreasonable disclosure of those people's personal affairs. Further, it is not clear how the officers' names fall within s 35. Accordingly the names of the officers are not exempt.

82 The name of another non-police person interviewed by police has been withheld in the next paragraph. It also is exempt under s 33 as is the name of an alleged victim of harassing phone calls on the next page. In my view disclosure would be unreasonable because it is unlikely those people would agree to release and release would achieve little in terms of the concerns raised by Marke.

83 On the third page there is a list of complainants known to Chippindall. They appear to be people who gave information to Police during the Sapsford investigation. The material is also exempt under s 33 for reasons just given.

84 The paragraph on the third page commencing with the word "In" and finishing with the word "matters" does not appear to fall within s 35(1)(b) or s 33. It relates to what appears to be a clerical matter and the evidence does not establish it would be unreasonable to disclose the material for the purposes of sections 33 or that the material meets the requirements of section 35.

85 In the next paragraph two sentences have been withheld. The material meets the requirement of s 35(1)(b) in that it is information received in confidence from Chippindall and release would be contrary to the public interest for reasons similar to those given in relation to the earlier documents of this nature.

86 The last paragraph that has been withheld starts with the word "on" and finishes with the word "Division". It relates to a person's personal affairs but the evidence does not establish that it would be unreasonable to disclose the material which appears to be unremarkable in nature.

87 An issue arose during the course of the hearing as to whether confidentiality was breached by Police when the MIM file was compiled and referred to local management, and whether as a result the police could not maintain its claim for exemption under sections 33 and 35.

88 The evidence establishes that on 30 March 2004 the MIM file was created within ESD and provided to Detective Inspector Westfield of ESD who at that time was the ethics and professional standards officer (EPSO) for Region 4, to implement the management intervention model. Region 4 is the area in which Detective Marke works.

89 It appears that the MIM file contained amongst other things Sattler's summary of witness statements (Document 170) without deletion of personal information, Sattler's report, Detective Marke's statement to ESD, and Documents 8 and 29 being statements by Neilson and Chippindall. The latter two are documents claimed to be exempt by the Police. These were not included in the amended schedule of documents produced for this hearing but as I understand it are representative of document 6.

90 I say this material appears to have been included in the file, as it was on the file when produced to the tribunal and there was no convincing evidence that the material has not been on the file since it was compiled within ESD.

91 The MIM file appears to have been delivered either personally or by internal mail to a number of other officers who were not within ESD. For example, Westfield delivered it to Superintendent Proctor at Knox Police headquarters. Knox was at that time attached to Region 4 and chairperson of the Professional Development Committee (PDC) which oversaw and advised on ESD files.

92 On 3 May 2004, Proctor took the file to a PDC meeting. Two representatives from the Police Association were amongst those who attended. The file was not made available to those present but Proctor gave an overview of the file. There is no suggestion that he revealed any confidential material at that meeting.

93 On 17 June 2004, Proctor handed the file to Johns for the purposes of applying management intervention and resolution. It appears the file was processed by administrative officers and remained at Seymour for several months.

94 On 18 August 2004, Superintendent Cartwright, who was at the time Acting Assistant Commissioner for Region 4, received the file from Johns. He attached certain reports to the file and forwarded it to the regional Ethical Professional Standards Officer. It appears that at some point in time the file may have been seen by Acting Superintendent Hocking.

95 Inspector Feltham gave evidence as to the confidential procedures surrounding the handling of MIM files. He said that security is attached to an MIM file in the same manner as an ESD file.

96 I accept that Detective Marke's MIM file was one of the first of its kind and that handling procedures described by Feltham may have improved. However, in the present case the inclusion in the MIM file of confidential and highly personal information provided by witnesses which has no relevance to management issues is highly regrettable and constitutes a breach of confidence. It is also of concern that the file cover sheet on the MIM file makes no reference to the file being confidential or private and that it was left at Seymour Police station for a considerable time where there may have been people tempted to read its contents.

97 I am convinced however of the correctness of the quest by Police for confidentiality in relation to the exempt material and there is no reason, in my view, to make a bad breach of confidence worse (unless obliged to do so by the FOI Act) by releasing the documents in dispute.

98 Further, the fact that the confidential material was widely circulated ought not alone destroy the confidential character of the material. All police establishments have large quantities of documents which would be regarded as confidential for a variety of reasons. Therefore to have documents circulated from one police location to another where it can be accessed by a number of people falls short of the release to the world at large.

99 I have already made a finding in relation to the public interest in relation to s 30 and s 35(1)(b). However, the wider public interest considerations under s 50(4) make it appropriate that I consider s 50(4) in relation to the s 30 and s 35(1)(b) exemptions.

100 Pursuant to s 50(4), the Tribunal has the power to decide that access should be granted to an exempt document where it is of the opinion that the public interest requires that access to the documents should be granted under the Act.

101 In Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, a decision of the Court of Appeal, their Honours Tadgell, Phillips and Batt JJA considered the operation of s 50(4). Phillips JA concluded that -

the public interest over-ride was invoked only in a case of imperative necessity. The word requires in the subsection means demands or necessitates: see at 341-342; 372-373. Further, the establishment of an exemption with respect to a document created a presumption against release under the public interest over-ride: see at 381

102 Phillips JA in Hulls case (at 350; 381) noted :

Now, while there may well be a public interest in the disclosure of documents held by ministers and agencies (as was recognised by Mason CJ in Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 31-32), it is the FOI Act which is parliament's express declaration of the extent to which such disclosure is in the public interest. The Act contains exceptions, exemptions and discretions, and each is entitled to full weight. Section 50(4) contains an 'over-ride' in specific terms and, as already mentioned, that subsection cannot be construed as authorising the Tribunal to grant access to a document which is otherwise exempt merely if the Tribunal is of opinion that it is in the public interest that the document be released.

103 Two major public interest factors upon which Detective Marke relied are to the effect that there is a need to clear the air[16], and that the injustices he has suffered should be rectified.

104 I accept that Detective Marke has suffered greatly as a result of the allegations against him, the ESD investigation and the media reports. I also accept that there can be a strong public interest in righting the injustice done to a single individual[17]. There does not appear to be anything in the documents in dispute however which, if released, would reveal an injustice done to Detective Marke, or which would assist him in redressing a crime, wrong or fraud (as he suggested in his submissions).

105 In terms of clearing the air, he has a fair knowledge of the statements provided to ESD by witnesses given he has received a large number of documents, including the summary of witness statements and Sattler's report setting out the allegations and her findings, and he acknowledges he has been able to clear his name.

106 He has sufficient understanding of the allegations against him and the evidence gathered by ESD to present his case for further investigation, and this is what he has done. Many of the matters raised by him are still under consideration by the Ombudsman and the Office of Police Integrity. They include, as I understand it his allegations against Chippendall and Neilson, the adequacy of the ESD inquiry, the processing of his FOI request and the conduct of the Police case during the hearing. In my view release of the material will not advance the articulation of the issues which Detective Marke has raised.

107 In part Detective Marke's public interest grounds were based on an assumption that the Police and more particularly ESD should be accountable and open to scrutiny in the decision-making process. However, as Macnamara DP observed in Re Birnbauer and Davey v Inner and Eastern Healthcare Network (unreported 1998/08205 24 August 1999 at p 23) if such a submission was accepted "the whole of the rest of the Freedom of Information Act including all the exemptions except those specifically excluded from the operation of s 50(4), namely the Cabinet exemptions and the personal affairs exemptions would become irrelevant. The Freedom of Information Act as a whole represents an attempt to balance competing policies. A primary commitment to disclosure of information generated by public agencies tempered by a right to retain certain (exempt) material controversial with the ultimate gloss of an ability vested in this Tribunal to override most of the exemptions in the public interest".

108 None of these matters constitute a basis for overriding the exemptions claimed for the documents. In particular, I am not satisfied that the public interest in favour of release is so strong as to demand that access be granted.

109 The decision under review is set aside in relation to parts of Documents 36 and 40 and within 14 days the applicant is granted access to that material.

110 The decision under review is affirmed in relation to Documents 4, 6, 9, 12, 13, 21, 24, 35 and 39 and parts of Documents 36 and 40.

[1] see Page v Metropolitan Transit Authority (1988) 2 VAR 243

[2] [1985] VicRp 86; [1985] VR 869 at 883

[3] Re Thwaites and Department of Health & Community Services (1995) 8 VR 361 at 366

[4] [1989] VicRp 73; [1989] VR 836 at 842

[5] Young CJ in Ryder v Booth [1985] VicRp 86; [1985] VR 869 at 872.

[6] Gunawan v Department of Education [1999] VCAT 665

[7] Clause 21 of the ESD Discipline Investigation Manual requires that the contents of all internal investigation files remain confidential, that police members are not permitted to view the complaint and complainants are not to be show police statements or records of interview. Clause 24 of the manual requires that complaint files must be kept secure at all times and information pertaining to the files not be divulged to any other person unless they have a direct official interest in the matter.

[8] 2005 VCAT 1757 at p 10

[9] Information may still be exempt if it is untrue. See Ambikapathy v Victorian Legal Aid (1999) VCAT 1361.

[10] See Re Lapidos and Ombudsman No 2 (1987) 2 VAR 148 at 154

[11] (1998) 14 VAR 87 at 90

[12] see Re Kosky and Department of Human Services (1998) 13 VAR 420 at 424

[13] see Lancaster v Department of Labour (Galvin DP 1992/20833 3 February 1994 p 17)

[16] Lawless v Secretary to Law Department (1985) 1VAR 42. In that decision Judge Rowlands P emphasized the desirability of "clearing the air".

[17] See Re Ambikapathy and Victorian Legal Aid (unreported VCAT 27 August (1999) VCAT 1361.