1 Decision of respondent affirmed.

2 Costs reserved.

Mr B Dennis of counsel instructed by the Victorian Government Solicitor

1 On 7 May 2006 the applicant, who is a Detective Sergeant in the Victoria Police Force, requested access to documents relating to :

Investigations conducted by Detective Sergeant Sattler of ESD and Inspector Johnson of Benalla regarding allegations by Mary-Anne Leonard on or before 05.02.2004 and 29.03.2005. Some of the requested documents may be located in ESD files C3-4/4517/2002 and C3-3/2658/2004; and

Issues, complaints and/or circumstances whereby Superintendent Johns and Acting Superintendent Stella issued formal directions to myself on or about 05.07/05 and 14.07.2005. Some of the requested documents may be located in CCP file 05/010090.

2 As a result of that request and a failure by the respondent to answer it within the required time, there was a deemed refusal of access to the documents pursuant to s 53 of the Freedom of Information Act 1982 (the Act). However, the respondent has granted the applicant access to a number of the requested documents and access to a number of parts of those documents. At the time of hearing before me, there were 22 separate documents in dispute in whole or in part. It should be noted that documents referred to as Document 12 in the Schedule of Documents in Dispute is divided into parts being (a), (b), (c), (d) and (e). In the application heard before me, the applicant sought access to the documents in dispute.

3 The parties to this dispute litigated a freedom of information matter before Senior Member Preuss (see Marke v Victoria Police (General 2006 VCAT 1364). Senior Member Preuss has, in my view, correctly summarised a number of background facts to this proceeding in her decision insofar as it was relevant to her decision. She stated at paragraphs 1-17 inclusive of her decision, a number of relevant matters. She said :

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.

4 There are other relevant matters relating to the application before me which were not covered by Senior Member Preuss in her decision.

5 On 5 February 2004, the applicant met the complainant in a school carpark near Seymour. It would appear the purpose of the discussion was whether the allegations made against the applicant in the 7:30 Report (which has been referred to by Ms Preuss) were correct. The applicant was keen to have the complainant admit that the allegations against him in relation to the matters discussed in the 7:30 Report were incorrect. It should be noted that the applicant secretly taped the conversation with the complainant on this day. That tape was played to me during the hearing of this application. In my view, the contents of that tape do not suggest that the complainant was, in any way hindered, coerced or intimidated during the conversation. The conversation appeared to be completely voluntary by both parties.

6 There was a further meeting between the applicant and the complainant on 23 March 2005 outside a baker's shop in the Seymour area. While the complainant at the end of the conversation wished the applicant "A Happy Easter", it would appear from the complainant's subsequent correspondence that she was concerned about the events of that meeting. It should be noted that it appears to me that the meeting between the applicant and the complainant outside the baker's shop was completely coincidental. The applicant was at the shop to speak to a staff member about a completely unrelated matter and the complainant, I presume, was there for the purposes of shopping. The documents comprising the complaint are to be found in Documents 2, 3, 4, 5 and 6.

7 The complaint by the complainant relating to both the schoolyard and the baker's shop conversations was ultimately found by the Ethical Standards Department (ESD) of the respondent to not be substantiated. It should be noted that the term "not substantiated" is used in the Glossary of Terms for the Disciplinary Investigation Manual. It there sets out the meanings of different terms that are apparently used in relation to police investigations. Relevantly, it is stated :

NOT SUBSTANTIATED Means the weight of available evidence does not support the account of events as described by the complainant, but is weighted in favour of the account given by the police members.

UNFOUNDED Means the available evidence clearly establishes that there are no grounds for the complaint whatsoever.

EXONERATED Means that the evidence clearly establishes that a particular member is not involved in a complaint, or is completely free from blame.

FALSE REPORT Where there is sufficient evidence to charge the complainant with making a false report to police.

8 The applicant was upset by the finding of "unsubstantiated" and entered into correspondence with a complaint of his own suggesting that the complainant should be charged with making a false report to police. The applicant alleges that his complaint of making a false report was not properly investigated or investigated at all by the respondent. He relies on the evidence of Inspector Johnson where Inspector Johnson stated that his superiors told him not to investigate the applicant's complaint. In my view, the allegation by the applicant that the complaint was not investigated at all is not necessarily correct. The applicant's complaint was looked at and probably examined by very senior members of the Victoria Police Force (with the rank of Superintendent) and they obviously came to the conclusion that there was not sufficient evidence to do further investigation. In my view, it does not necessarily follow because a senior member of the respondent informed Inspector Johnson not to investigate the applicant's complaint that the applicant's complaint was not investigated. On the balance of probability, I find that it is likely that the complaint was at least investigated at a preliminary level and a view was then held by the respondent that a charge of false reporting to police pursuant to the Summary Offences Act could not be sustained against the complainant.

9 The applicant is also concerned at directions that were given to him to refrain from direct contact with persons who had made statements to the ESD. One such direction was made on 5 July 2005 by Superintendent Rodney Johns. The direction I understand related to the hearing, to which I have already referred, before Senior Member Preuss. On 5 July, Superintendent Johns directed :

Now I direct that you not make any direct contact with civilian witnesses in these matters.

Further, by way of an email dated 14 July 2005, Acting Superintendent Stella of the Privacy Division of the respondent, inter alia directed :

Unless I notify you otherwise, I will also maintain my direction for you to refrain from direct contact with a person who made a statement to ESD. I would also point out that you should not place yourself in a position where people could accuse you of intimidation or interference.

10 The applicant was incensed by these directions and wrote a letter to the Chief Commissioner of Police. The applicant felt that he had done nothing wrong. As a result, on 3 January 2006, Deputy Commissioner Bob Hastings wrote to the applicant, inter alia, in the following terms :

I have given further consideration to your request and I have determined to revoke the direction. In reaching this decision I have taken into account, amongst other things, your assurance that you have acted appropriately and have not pressured witnesses who made statements to ESD.

11 It is in these circumstances that the applicant has made the request for the documents referred to in the Schedule of documents and the hearing before me took place.

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

Part of the first page of a 2-page letter from Detective Sergeant Sattler to a person dated 13 October 2004

(denied access to the name and address and other text that identifies a person as well as information communicated in confidence)

Two page letter from complainant to Superintendent Rod Johns dated 29 March 2005

Part of an e-mail from complainant to Superintendent Johns dated 5 April 2005 17:00 hours and part of an e-mail from Superintendent Johns to complainant dated 5 April 2005 17:18 hours

(denied name and address of complainant and information communicated by complainant in confidence in respect to first e-mail and denied name of complainant in respect to second e-mail)

One page letter from complainant to Superintendent, Division 4 (Upper Goulburn) dated 5 April 2005

Part of an e-mail from complainant to Superintendent Johns dated 7 April 2005 at 8:51 hours and part of an e-mail from Superintendent Johns to complainant dated 7 April 2005 at 8:56 hours

(denied name and address of complainant and information communicated by complainant in confidence in respect to first e-mail and denied name of complainant in respect to second e-mail)

Part of the third page of a 3-page ESD Complaint/Incident Form lodged on 7.4.05

(denied access to the name and address and other text that identifies the complainant as well as information communicated by the complainant in confidence)

Day book notes made by Inspector Frank Johnson in respect to his conversation with the complainant dated 1.8.05

Part of a handwritten file note by Christine Michaleas, legal officer, Freedom of Information & Privacy Division to Detective Acting Inspector Noy on 30.6.05

(denied access to the name of a person and confidential communications relating to that person)

Part of diary entry of then A/Superintendent Bruce Thompson dated 7.10.05 at 1050 hours relating to his telephone conversation with Mr Brian Dennis of counsel

Part of diary entry of then A/Superintendent Bruce Thompson dated 26.10.05 at 1220 hours relating to his telephone conversation with Superintendent Johns

Part of file note of then A/Superintendent Bruce Thompson dated 28.10.05 relating to his telephone conversation with Mr Brian Dennis of counsel

a) A/Supt Thompson to Supt Johns dated 27.10.05 at 1528 hours;

b) Christine Michaleas, legal officer, to A/Supt Thompson dated 27.10.05 at 1621 hours;

c) A/Supt Thompson to Supt Johns dated 28.10.05 at 1202 hours;

d) Supt Johns to A/Supt Thompson dated 28.10.05 at 1402 hours;

e) A/Supt Thompson to Supt Johns dated 28.10.05 at 1409 hours

Facsimile from Christine Michaleas, legal officer to Brian Dennis of counsel dated 4.11.05 and handwritten file note by Ms Michaleas of her telephone conversation with Mr Dennis on 4.11.05 at 1510 hours and handwritten file note by Ms Michaleas of her telephone conversation with Inspector Frank Johnson on 4.11.05 at 1532 hours

Issues Cover Sheet by A/Superintendent Lisa McMeeken for distribution to Commander of Legal Services and Chief Commissioner of Police dated 2.12.05

Memorandum from Acting Commander Dunne to A/Supt McMeeken dated 8.12.05

Memorandum from Ms Michaleas, legal officer, to A/Supt McMeeken dated 8.12.05

Memorandum from A/Supt McMeeken to Commander Legal Services dated 9.12.05

Issues Cover Sheet by A/Superintendent McMeeken for distribution to Commander of Legal Services and Chief Commissioner of Police dated 20.12.05

13 Pursuant to s 53A of the Act, the respondent notified the complainant that matters in this proceeding may affect her personal privacy. The complainant responded to that notification and the respondent has correctly summarised the s 53A response of the complainant in the following terms :

1. The Respondent provided notice to one person (the Notified) in relation to the above-mentioned application for review (the Application) in accordance with s 53A of the Freedom of Information Act 1982 (the Act).

2. A response was received from the Notified, dated 22 February 2007, indicating that the Notified did not wish to intervene in the Application. The response, however expressed that the Notified wished that all personal information pertaining to the Notified remain confidential.

3. The Notified is fearful of the Applicant, and is concerned about the Applicant's intentions for seeking personal information pertaining to the Notified. It is the Notified's submission that even if the documents in dispute are provided to the Applicant with the Notified's name obscured, the Applicant would be able to ascertain the identity of the Notified.

14 Mr Dennis, counsel for the respondent, has usefully and accurately categorised these documents in the following manner :

i

Documents 1 to 7 inclusive consist of or relate to communications between a complainant and police officers. Exemption is claimed in respect of parts of documents 1, 3, 5 and 6 and whole of documents 2, 4 and 7 on the grounds that they contain personal information and information communicated in confidence (sections 33(1) and 35(1)(b)).

ii

Documents 1, 3, 5 and 6 may be further sub-characterised as relating to a complaint made by a complainant to police about the behaviour of the applicant on 23 March 2005 in confronting the complainant outside a shop in Seymour.

iii

Documents 9 to 18 inclusive consist of documents recording legal advice provided to Victoria Police or referring to or responding to that advice. Exemption is claimed in respect of parts of documents, 9, 10 and 11 and the whole of documents 12 to 18 inclusive on the grounds that they contain or disclose parts of that legal advice (section 32(1)) except for document 12(a).

•

Exemption is claimed in respect of document 8 on the grounds that it contains personal information and information provided in confidence to an agency (sections 33(1) and 35(1)(b))

•

Exemption is also claimed in respect of documents 10 to 14 inclusive on the grounds that they contain personal information and are internal working documents (sections 33(1) and 31(a)& (b))

•

In respect of documents 16-18 inclusive, in addition to the claim for legal professional privilege, an exemption is claimed on the grounds that they are internal working documents (section 30(1)(b)).

It should also be noted that the exemption in relation to Document 12(a) is also claimed pursuant to s 31(a) and (b) as being internal working documents and personal information pursuant to s 33(1) of the Act.

15 The relevant statutory provisions relating to this application are to be found in the Freedom of Information Act 1982 and they are :

(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

(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

(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.

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

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

16 Documents 1 to 7 consist of complaint by the complainant and answers to the complaint by the respondent and various staff of the respondent.

17 Document 7 relates to the same complaint but it is handwritten notes relating to a conversation by Inspector Johnson with the complainant on 1 August 2005. All of those documents or the parts of documents that are in dispute contain personal information by containing names and other matters. The documents are clearly able to identify people and the reader of those documents would be capable of identifying personal details of individuals. The applicant referred to Re Hunt and Victoria Police (a decision of Member Nedovic of the Administrative Appeals Tribunal of 27 May 1994) which case suggested that it would take considerable persuasion to conclude that a statement by a police officer about matters occurring or arising in the course of officers' official duties is exempt on the basis that it relates to the personal affairs of the officer. That case is different from this situation where names are mentioned which relate to the personal affairs of the people that are named other than police officers. Further, since Hunt's case was decided, s 33 was amended in 1999 to include sub-section (9). Prior to that time, sub-section (9) did not exist.

18 The applicant also referred me to Akers v Victoria Police (No 1) (2003) VCAT 397 which relates to information obtained in the course of an ESD investigation and it was held that that was not personal affairs. However, that case, unlike this, did not involve the identifiable names or identities of certain people.

19 It is clear to me that as the documents contain information which would identify people, they clearly fall within "personal affairs" as referred to in s 33.

20 The applicant stated that -

The Tribunal is required to balance two competing interests;

(i) the individual's right to personal privacy; against

(ii) the basic purpose of the Act which is to extend, as far as possible, the right of the applicant to access information which relates to him, which is in the possession of the respondent.

21 What I believe the applicant was getting at by this statement was that I must balance the interest that he was referring to, to determine whether the release of the information would be "unreasonable" within the meaning of s 33(1): Pizer (formerly authored by Kyrou) in Victorian Administrative Law at paragraph 2351 states :

In essence the test of "unreasonableness" involves the balancing of two competing interests. The balance is between the interest in protecting an individual's right to privacy on the one hand, and the interest in disclosure of the information on the other. If the interest in protecting privacy outweighs the interest in disclosure, the document in question is exempt because its disclosure is considered to be 'unreasonable'. But if the interest in protecting the privacy does not outweigh the interest in disclosure, the document is not exempt because its disclosure is not considered to be 'unreasonable'.

22 It is also clear that it is unreasonable to disclose personal information where the person to whom the information relates does not want it disclosed (see Page v Metropolitan Transit Authority (1988) 2 VAR 243 at 245-246. It is clear that the complainant does not want the information in these documents disclosed by her response to a s 53A notice which was given.

23 The applicant submitted that as he believes that he knows the identity of the complainant as a result of other documents which have been released to him, it would not be unreasonable to release these documents (1 to 7) to him. He also states that he has an interest in this information because he wants a finding against him in relation to the ESD inquiry "exonerated" and a finding in relation to the reports against the complainant of "false report" which he says is a crime.

24 I thus accept that the applicant has an interest in having this information released to him. However, in my view, it is clear that a release of these documents is a release to the world at large, not just to the applicant. At paragraph 2351 Pizer in his book states :

Accepting the relevance of the applicant's interest in the information - or the purpose for which access is required - appears to be in direct conflict with the principle, which has been accepted on numerous occasions by the VCAT (and by its predecessor, the AAT), that 'reasonableness' must be considered as if the disclosure were to the world at large : Traynor v Melbourne Metropolitan Board of Works (No 2) (1988) 2 VAR 358 at 365 (numerous other decisions were cited in support of this proposition by the learned author).

25 The proposition that documents released under freedom of information are released to the world at large was argued before and considered by Coghlan DP in Beauchamp v Department of Education [2006] VCAT 1653 (18 August 2006). The Deputy President unequivocally found such documents were released to the world at large. At paragraph 43 ff she stated :

43. However, I do not accept Mr Pizer's submission that s 33(1) is to be interpreted by reference to the capacity of the applicant herself potentially to identify the individuals concerned from the information were it disclosed. This is because disclosure under the Act is disclosure to the public at large, not just to the applicant. I agree with Mr Willis' submissions that there is nothing in s 33 which requires that identification be by the applicant or her readers.

44. With the exception of s 33, no exemptions under the Act depend on the identity of the applicant. Under s 33(2) the provisions of s 33(1) do not have effect where the request is for one's own information. Yet for anyone else applying, once there has been a decision that a document is determined not to be exempt under s 33, should anyone else make an application, the decision must be the same. Unlike a document obtained in Court proceedings where there is an implied undertaking a document will not be used for any other purpose, no such undertaking applies when a document is released under the Act.

45. Despite Mr Pizer's submissions, I regard it as unrealistic to suggest that release to a reporter with a media organisation will not necessarily entail the possibility or likelihood of widespread dissemination throughout the community. Having released to one journalist with a media organisation, any other person or organisation would be entitled to access. Hence in considering whether there is disclosure, I proceed on the basis that this disclosure, if made, would effectively be to any member of the community, and that the capability of the information, either direct or indirectly identifying an individual, needs to be considered in that context.

26 Therefore, what I must consider is not whether the applicant knows the identity of the person or persons concerned but whether it would be unreasonable to release these documents because the world at large would then know the identity of the persons concerned. Looking at the privacy issue in this light, in my view, it would be unreasonable to release these documents. I take that view after having balanced the applicant's right to know and the importance of transparency, as against protecting personal information of the person or persons mentioned in the document. In doing that exercise, I have come to the conclusion that it would be unreasonable to release these documents and thus, in relation to documents 1 to 7 inclusive, I find that they are exempt pursuant to s 33 of the Act. I further note that the non-personal information contained in documents 1 to 7 is so intertwined with the personal information that further release of parts of these documents would not be practicable or possible. Having made this finding, I am not required to consider the public interest override referred to in s 50(4) in relation to these documents.

27 Document 8 has been described by Superintendent McMeeken at paragraph 3 of her witness statement which she identified as true and correct, in the following terms :

Document 8 is a handwritten file note prepared by Ms Christine Michaleas (Legal officer, FOI & Privacy Division, Victoria Police). Access to the file note has been denied in part to the Applicant under sections 33(1) and 35(1)(b) of the FOI Act on the basis that the document contains information provided in confidence and its release would involve the unreasonable disclosure of information relating to the personal affairs of the person named in the file note.

28 There are a number of persons named in this document who could readily be identified from the document itself. Thus, it is clear to me, for the reasons stated, in relation to documents 1 to 7, that the information contained in this document is personal information. Further, in my view, doing the balancing exercise required in deciding whether it is unreasonable or not to release this document, having read this document, it would be of little value to the applicant in his quest to "have crimes investigated" and to have himself exonerated in relation to matters alleged against him. Thus, in consideration of this document, I have come to the conclusion that the release of document 8 would involve unreasonable disclosure of personal affairs of other persons. In those circumstances, the exemption in relation to document 8 is made out.

DOCUMENTS 9 to 11, 12(b), (c), (d) AND (e) TO 18 INCLUSIVE

29 In relation to the documents referred to in the Schedule as 9, 10, 11, 12(b) to (e), 13, 14, 15, 16, 17 and 18, the respondent has claimed an exemption pursuant to s 32(1). This is the exemption usually referred to as "legal professional privilege" exemption.

30 Superintendent McMeeken describes these documents in her witness statement as follows :

In summary, the documents concern personal information relating to third parties, confidential legal communications between a person and a solicitor/barrister and information exchanged by Victoria Police members.

Document 9 is part of a diary entry made by a Victoria Police member relating to a conversation with barrister, Mr Brian Denis. ..... the diary entry attracts legal professional privilege as it relates to confidential communications between an officer of the respondent and a barrister the dominant purpose of which was to obtain legal advice.

Document 10 is part of a diary entry made by a member of Victoria Police relating to a conversation with another police member. Access to the diary entry has been denied in part to the Applicant under sections 30(1)(a) and (b), 32(1) and 33(1) of the FOI Act on the basis that the diary entry constitutes an internal working document that would disclose information that forms part of the deliberative process involved in the functions of Victoria Police in dealing with the conduct of its members. It is imperative that the exchange of information between members of police, who are charged with managing a member's conduct, can take place in confidence and without fear of it being released under FOI to the person under investigation. The release of such information would inhibit candour in future communications between members responsible for management of the member concerned. Accordingly, it is my view that the public interest would not be served if members of police, who are charged with managing a member's conduct, could not engage in full and frank discussions in relation to that member and any action taken/not taken against him or her (as the case may be).

Document 11 is part of a file note made by a Victoria Police member relating to a telephone conversation with barrister, Mr Brian Dennis. ..... The dominant purpose of the communication was to obtain legal advice. Further, its release would involve the unreasonable disclosure of information relating to the personal affairs of the person named in the file note. ...

..... Documents 12(a), (c), (d) and (e) comprise emails exchanged between the members of Victoria Police. Document 12(b) is an email from a legal officer to a member of Victoria Police. Access to each of the documents except 12(a) has been denied on the basis that they attract legal professional privilege because they contain confidential communications between members of the police force which record legal advice received by the Respondent from counsel engaged by the Respondent. The dominant purpose of each of the documents was to convey the legal advice to the recipient. Release of two of the emails (Documents 12(b) and (e)), would involve the unreasonable disclosure of information relating to the personal affairs of the person named in the emails. Four of the emails (Documents (a), (c), (d) and (e)) constitute internal working documents that comprise information that forms part of the deliberative process involved in the functions of Victoria Police in dealing with the conduct of its members.

Documents 13-18 comprise various written confidential communications between Legal Officer, Ms Michaleas and barrister, Brian Dennis, and between myself and the Commander of Legal Services, Chief Commissioner of Police, Acting Commander Dunne or Ms Michaleas. Access to these six document has been denied in full to the Applicant under sections 30(1)(a) and (b) and 32(1) of the FOI Act on the basis that these documents constitute internal working documents that comprise information that forms part of the deliberative process involved in the functions of Victoria Police in dealing with the conduct of its members. The respondent claims legal professional privilege in respect of these documents on the grounds that as they relate to confidential communications between a legal officer who is a solicitor and a barrister and between a solicitor and various members of Victoria Police in relation to this proceeding. The dominant purposes of such communications were the provision of legal advice and contemplation of litigation.

31 After having read documents 10, 12 (a) and 12(d), I am of the view that these documents do not come within the ambit of legal professional privilege. It is noted that the respondent has not actually claimed legal professional privilege in relation to document 12(a) although Superintendent McMeeken appears to make comment in relation to that document in that vein.

32 Therefore, I will deal with documents 9 to 18 inclusive, but excluding documents 10, 12(a) and 12(d) which I will deal with separately.

33 In Pizer's book, to which I have already referred, (at para 2345), the author, after referring to the High Court case of Esso Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49 and Daniels Corp v ACCC [2002] HCA 49; (2002) 213 CLR 543 states :

More specifically, a document will be privileged (and thus exempt under s 32(1) of the Act) if :

(a) it contains a confidential communication between the client (or the client's agent) and the client's professional legal advisers that was made for the dominant purpose of obtaining or providing legal advice or is referrable to pending or completed litigation;

(b) it contains a confidential communication between the client's professional legal advisers and third parties that was made for the dominant purpose of pending or contemplated litigation; or

(c) it contains confidential communication between the client (or the client's agent) and third parties that was made for the purpose of obtaining information to be submitted to the client's professional legal advisers for the dominant purpose of obtaining advice on pending or completed litigation.

34 In my view, this is a correct statement of the law regarding legal professional privilege and, after having read documents 9, 11, 12(b), (c) and (e), 13, 14, 15, 16, 17 and 18, I am of the view that, subject to the public interest override of s 50(4), those documents are exempt pursuant to s 32(1).

35 The respondent submitted that these documents were, inter alia, exempt pursuant to s 30(1)(a) and (b). At paragraph 2325 of Pizer's book, the author summarises the requirement of s 30(1). It is noted that I accepted this summary as an accurate statement of the law in Western Suburbs Legal Service v Victoria Police (unreported AAT 3 June 1998). In that summary the author states as follows :

1. The document must contain 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; and

2. Such matter must be made in the course of, or for the purposes of, the deliberative process involved in the functions of an agency or Minister or of the government; and

3. Disclosure of the matter under the FOI Act would be contrary to the public interest.

36 After having read documents 10, 12(a) and (d), it is clear to me that those documents are all in the nature of opinion, consultation and deliberation between officers in the course of or for the purposes of the deliberative process of the respondent. (see Re Henderson v Victoria Police (1991) 5 VAR 1; Re Gordon v Commissioner of Corporate Affairs (1985) 1 VAR 114). In Re Waterford and Department of Treasury (No 2) [1984] AATA 67; (1984) 5 ALD 588 at 606, the Full Commonwealth AAT described the deliberative process as :

Wide enough to include any of the processes of deliberation involved in the function of an agency ... thinking process - the process of reflection, for example, upon the wisdom and the experience of a proposal, a particular decision or a course of action.

37 Applying these tests to the three documents in question, I conclude that they are documents that come within the meaning of s 30(1)(a).

38 The next question to decide is whether the release of the documents would be contrary to public interest pursuant to s 30(1)(b). The determination of this question is, as Mr Dennis submitted, one involving, "balancing the competing public interest considerations, being, on the one hand, the public's right to know and, on the other hand, the public interest in the perception of the deliberative process of the respondent".

39 In Hulls v Victorian Casino and Gaming Authority (1997) 12 VAR 483, Judge Fagan (the then President of the AAT), at p 488 outlined the factors that should be taken into account in balancing the public interest :

Of course in the assessment of public interest under the section, there must be taken into account all factors bearing on the issue of whether disclosure of the document will be contrary to the public interest. The cases give guidance as to the kinds of factors to be taken into account. They include such matters as :

•

the right of every person to obtain access to documents as provided by s 13 of the Freedom of Information Act

•

the degree of sensitivity of the issues involved in the consideration

•

the stage of the policy development process at which the communication was made

•

whether the disclosure would be likely to inhibit frankness and candour in the making of communications

•

whether disclosure would lead to confusion or unnecessary debate having regard to possibilities discussed

•

disclosure of documents which give merely a part explanation rather than complete explanation for the taking of a particular decision

_(_see Re Howard and Treasurer (Cth) [1985] AATA 100; (1985) 3 AAR 169 per Davies J and Re Tanner and Department of Industry, Technology and Resources (1987) 2 VAR 65 per Judge Rowlands).

•

the likelihood that disclosure of the documents would inhibit the independence of officers or the making of proper and detailed research and submissions by them

•

the likelihood that disclosure would create mischief in one way or another such as a risk of mischievous interpretation

(see Re Western Mining Corp v Department of Conservation, Forests and Lands (1989) 3 VAR 150).

•

the significance of the document eg whether it is or is not merely a draft document

(See Re Brogg and Department of Premier and Cabinet, above and the Western Mining Corp case, above)

40 Bearing in mind that the circumstances and background to this application arose in a relatively small provincial town of Victoria even though there does not appear to be any current investigations, the issues in my view would be still very sensitive around the town. Further, the fact that the makers of the documents do or have worked around the town in Victoria, if the documents are released, would mean that those people would in future be likely to be inhibited in their communications with each other and their frankness and candour would also be inhibited. Further, I agree with Mr Dennis that there is a likelihood that the disclosure of the documents would inhibit the independence of the officers or the making of proper and detailed research and submissions by them. Against this interest, must be balanced the interest of the applicant and the public at large in having the documents disclosed and having a transparency in the process. In my view, it is very important that members of the police force can perform their duties and express matters of opinion with frankness and candour, without concern that those opinions would become public. On performing the balancing exercise that I am required to do in relation to s 30(1)(b), I have formed the view that it is not in the public interest that documents 10, 12 (a) and (d) be released because the release of such documents would inhibit frankness and candour by members of the police force in expressing their opinion while they are performing their duty. Thus, subject to the s 50(4) public interest override, I find that documents 10, 12(a) and (d) are exempt.

PUBLIC INTEREST OVERRIDE S 50(4)

41 Having found that the documents numbered 9 to 18 inclusive are exempt either in relation to legal professional privilege or (s 32(1) or internal working documents pursuant to s 30(1)(a) and (b), I now must consider whether s 50(4), the public interest override, applies to those documents. It is noted that s 50(4) does not apply to documents that I have already found exempt pursuant to s 33 (ie documents 1 to 8 inclusive).

42 When considering s 50(4) the first question that must be asked is what is in the public interest. That was considered by the Full Court in DPP v Smith [1991] VicRp 6; (1991) 1 VR 63 at 73. In the joint judgment, their Honours there stated :

There are many areas of national and community activities which may be the subject of the public interest. The statute does not contain any definition of the public interest. Nevertheless, used in the context of this statute it does not mean that which gratifies curiosity or merely provides information or amusement ... Similarly it is necessary to distinguish between 'what is in the public interest and what is of interest to know' ... On the other hand, 'one feature and one facet of the public interest is that justice should always be done and should be seen to be done': Ellis v Home Office [1953] 2 QB 135, at p 147 per Morris LJ. It is this feature of public interest, namely the appearance of justice having been done, which is inherent in the proper administration of justice.

The substantial issue in connection with the exercise of power under s 50(4) was whether in the sphere of the public interest in this case and the circumstances surrounding it the factor of the appearance of justice having been done impartially outweighed the competing public interest factor of legal professional privilege.

44 In Secretary of Department and Premier v Hulls [1999] VSCA 117; (1999) 15 VAR 360, the Court of Appeal considered the meaning of the word "requires" as used in s 50(4). At 374, with whom the other members of the Court agreed, stated :

Given that the test must be whether at the end of the day the tribunal is of opinion that the considerations of the public interest (to which no doubt it is referred by the applicant for access) are so strong as to override the factors which in the first place are such as to accord the document exempt status, the meaning of 'requires' is clear enough. In DPP v Smith, the tribunal found that the public interest 'necessitated' disclosure, and the decision was confirmed on appeal. To my mind that that test was wholly appropriate under s 50(4).

45 The applicant submitted that the public has an interest in ensuring that the ESD investigation was conducted competently in a search for truth and that investigations of the respondent must be accountable, transparent and open to scrutiny. He stated referring to several memos, that have already been released to him, that the ESD investigation was incomplete and incompetent in that it failed to search for the whole truth.

46 Further, he stated that Inspector Johnson failed to investigate the applicant's complaint that the complainant had made a false report to police. He concluded therefore that "prime facie evidence of illegality, unlawfulness and impropriety and powers of the Tribunal to exercise its discretion to disclose documents under the public interest override provisions".

47 He further stated that the respondent has abused its power in issuing unlawful, unreasonable and unjust directions to him and finally, he stated that there were delays in the ESD investigation and that "justice has been denied".

48 While I believe the applicant was genuine in his belief in making the assertions to which I have outlined above, I formed the view that in making the assertions to which I have referred to, he was doing no more than stating suspicions. He referred to a number of memos which certainly did not prove and, in my view, did not even suggest that the ESD investigation was "incomplete and incompetent". Further, I have already mentioned the fact that Inspector Johnson stated that he was instructed not to investigate the applicant's complaint that a complainant made a false complaint to police. This, of itself, does not suggest that the complaint was not investigated. Inspector Johnson was instructed not to investigate by a superior officer. It does not suggest that the superior officer did not investigate the complaint.

49 Further, in my view, if a complaint is made to police, it is appropriate for the complaint to be looked at and see whether, on its face, there would be enough evidence to support a conviction. If there is insufficient evidence to support a conviction, then, the matter should be taken no further. It is not incumbent upon Victoria Police to investigate every complaint that is made in minute detail and, to a degree, where "every rock and stone has been turned over". That would be imposing a far too onerous task on an already busy police force. In my view, it cannot be in the public interest for the police to make a full, thorough and lengthy investigation into each complaint that is made about a possible crime. If that were to happen, clearly the police would be inhibited from performing other and perhaps more important duties. In any event, I am not satisfied on the evidence that the applicant's complaint was not fully investigated and that the ESD investigation was not conducted in a proper manner. The applicant seems to have made the allegations, which he relies on, without knowing full details of the matters and without realising the type of evidence that would be necessary to justify a conviction of false reporting to police. When the applicant was given an opportunity in cross-examination to demonstrate that the complainant had intended to make a false report to police, he was only able to point to scattered references to communications which would not prove the necessary intent on the part of the person who allegedly made the "false complaint". Therefore, on a most basic level, the applicant failed to show that there was any likelihood that if his complaint of false complaint to police had been further investigated, it would have been likely to yield fruit. On the contrary, I am of the view that investigating the complaint further would have been futile.

50 I agree with Mr Dennis when he stated that, I :

should conclude that there was no evidence of falsity in the complaint made and the police officers acted in a bona fide manner and that they do not have to spend a great deal of time investigating complaints which on their face cannot be proved by further investigation.

51 Further, I note that the applicant's assertions have been tested by the Office of Police Integrity, which is an independent office and after their investigation, there was no adverse comment made.

52 The applicant made similar submissions to me as he made to Preuss SM in the case to which I have already referred. Mr Dennis stated that Preuss SM had correctly dealt with those submissions at paragraphs 99 to 108 inclusive of her decision [2006] VCAT 1364. I agree with Mr Dennis and incorporate by reference what Preuss SM there said.

53 Bearing all these factors in mind, I have formed the opinion that the public interest does not require the exemptions which I have found in this proceeding to exist (s 30(1)(a) and (b) and s 32(1)) to be overridden. While the applicant may be highly suspicious that there has been improper conduct, on hearing all of the evidence, I am far from satisfied that that suspicion has any foundation.

54 I thus find in relation to documents 1 to 8, the personal privacy exemption in s 33(1) applies, and in documents 9 to 18 inclusive, either the exemption of legal professional privilege pursuant to s 32(1) or internal working documents pursuant to s 30(1)(a) and (b) applies. In relation to the latter two category of documents, I have balanced the factors to consider whether the public interest override (s 50(4)) is applicable and I have come to the conclusion that the public interest does not require the release of the documents sought. As a consequence, I will affirm the decision of the respondent.

55 I note that an exemption was claimed in relation to a number of the documents pursuant to s 35 of the Act, that is, documents containing material obtained in confidence. However, because I have decided this proceeding on other sections of the Act, I do not need to consider that section.