1. Under section 75(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) and having regard to section 50(6) of the Freedom of Information Act 1982 (Vic), the application for review in respect of documents 5, 6, 59 (attachment only), 71, 74, 75 and 76 is dismissed.
2. The respondent's decisions in respect of documents 2, 4, 7, 48, 56, 58-2, 59, 60, 64, 72 and 77 are varied in accordance with Attachment A of these reasons.
3. The respondent's decision in respect of documents 23, 29, 34, 44, 45, 50, 51, 58-1 and 63 are affirmed.

1. This proceeding concerns an application former Detective Sergeant Lance Marke[1] made on 9 December 2020 for access to documents held by Victoria Police under the Freedom of Information Act 1982 (Vic) (FOI Act and the Request).
2. The Request had five parts which arose from events I describe shortly.
3. On 2 March 2021, Victoria Police decided to refuse to process the Request on the basis that it would substantially and unreasonably divert its resources from its other operations.[2]
4. On 4 March 2021, Marke exercised his right to seek review of Victoria Police's decision by the Information Commissioner.[3]
5. On 9 April 2021, Marke made an application for review to the Tribunal on the basis that the Information Commissioner had not made a decision within the required statutory timeframe.[4]
6. Following a compulsory conference at the Tribunal on 11 August 2021, an agreement was reached to refine the Request and Victoria Police was invited to reconsider its decision.[5]
7. Victoria Police made its reconsidered decision on 18 October 2021 and, on the application of Marke, it became the decision under review. Victoria Police had located 79 documents and released to Marke 18 in full, 43 in part and denied access to 18 in full. Victoria Police's decision relied on the exemptions in sections 33(1) and 35(1)(b) of the FOI Act.
8. As at the first hearing day in March 2025, there were 27 documents still in dispute. Marke agreed that one of those (Document 47) had been mis-filed and was irrelevant to him and his Request. Accordingly, no consideration of it was required.
9. Before the second hearing day, Victoria Police reviewed the remaining 26 Documents again. On 17 April 2025, it released updated versions of six documents: two had been previously withheld in full and were released in part and four which had already been released in part, had further information released. All of the 26 Documents remained in dispute between the parties.
10. The originally allocated hearing date of 25 January 2023 was vacated due to unexpected illness and unavailability. The hearing was relisted for 23 August 2023. Due to resourcing issues within the Tribunal, that hearing date was vacated and adjourned to a date to be fixed. In due course, the hearing was re-listed on 4 March 2025. The parties' evidence was heard that day and then, with their agreement, it was adjourned to 12 May 2025 to hear submissions.
11. My decision has been made on the final version of the Documents, taking account of all further disclosures that have occurred throughout the life of the proceeding. I have decided that some of the claimed exemptions do not apply in whole or in part and so further information is to be disclosed to Marke. I have otherwise affirmed Victoria Police's decision.
12. As is common in FOI Act matters, it is necessary to write Reasons with care to explain the decision but not disclose information found to be exempt. In addition, care is required to preserve appeal rights (particularly those of the agency) and so material found not to be exempt is referred to with some caution.
13. I acknowledge the regrettable lengthy delay in this matter being heard and decided.

1. This application concerns Documents which relate to events which occurred between around 2002 and around 2014. Many of the Documents Marke seeks in his proceeding are related to documents which have been disclosed to him in the past (in whole or in part) under the FOI Act or otherwise.
2. Since 2004, Marke has applied to the Tribunal to review decisions made by Victoria Police under the FOI Act, in his 'search for truth' about the events described below. This application is a further iteration of that quest.
3. Marke retired after a 36 year long career with Victoria Police during part of which he held the rank of Detective Sergeant.
4. He seeks 'the truth' about investigations Victoria Police undertook into his conduct while he was a police member. He seeks the truth about Victoria Police investigations and other decision making regarding complaints he made about others, both when he was a police member and after.
5. As I understand it and as further summarised later, in his view, the investigations have been poorly conducted and, were potentially, the product of cover ups. He wishes to know the details of what was alleged against him and by whom and the steps in Victoria Police's investigations to clear his name and reputation for the sake of his own physical and mental health and for his family. He believes a thorough consideration of the information contained in the Documents before me, alongside others he holds, will reveal offences or legal breaches committed by others and, as I understood it, the inherent flaws involved in police investigating other police.
6. As to the Documents before me, Victoria Police relies on the personal affairs exemption contained in section 33(1) of the FOI Act to submit that it would be unreasonable to disclose all or certain parts of the information contained in the Documents. For some Documents it also claims they are exempt in full or in part under section 35(1)(b) of the FOI Act because the information they contain was obtained in confidence and disclosure would be contrary to the public interest because it would be reasonably likely to impair Victoria Police's ability to obtain like information in future.
7. Because Marke knows most of the people referred to and involved in the events of concern to him and because he has had a large amount of information disclosed to him in the past, he disputes the contention that disclosure of personal affairs information, now in 2025, would be unreasonable. He questions whether some of the information Victoria Police considers to be personal affairs information is genuinely of that kind in circumstances where it is connected to police member's roles and duties.
8. He disputes the evidence Victoria Police relies on to prove information was obtained in confidence and that disclosure would be contrary to the public interest.
9. To prove its case, Victoria Police relied on the experience and operational knowledge of Inspector Craig Matters (the Deputy Freedom of Information Officer at Victoria Police's Freedom of Information Division (FOI Division)) and previous FOI Act decisions.
10. Marke relied on his own experience and knowledge as a police member and other FOI Act decisions.
11. In summary, I have found that:
    • Some of the information said to be exempt under the personal affairs exemption is not within section 33(1) of the FOI Act because it solely relates to the individual's professional role and duties;
    • It would not be unreasonable to disclose some personal affairs information when considered in the specific context, what has previously been disclosed publicly about certain events/matters (including in Tribunal decisions) and in light of information previously disclosed to Marke under the FOI Act;
    • For some Documents, I have found that the preconditions for the obtained in confidence exemption in section 35(1)(b) of the FOI Act have been proven by Victoria Police;
    • Parts of some Documents are exempt under section 35(1)(b) of the FOI Act because they contain quotes or summaries of information which has previously been found to be exempt under the same provision;
    • Some parts of some Documents are also exempt under section 33(1) of the FOI Act on the basis that it would be unreasonable to disclose the information where earlier findings of exemption under section 35(1)(b) of the FOI Act were made; and
    • For some information, including that which has been the subject of earlier findings, it would be unreasonable to disclose information where it is in the nature of a first-hand account of events.
12. It is convenient to record now that, as sometimes occurs in FOI Act applications, Victoria Police relied on written and oral submissions it wished to be kept confidential because they may have disclosed material which it said was exempt. Marke was entirely cooperative about that kind of material to which I have had regard as needed.
13. These Reasons have had regard to the materials contained in the parties' joint Tribunal Book (TB) and materials received later.

1. Markes' five-part Request arises from three sets of events. Each of them has been described in a number of previous Tribunal decisions.

1. This summary comes from Senior Member Preuss' 2006 decision in proceeding G638/2004 (2006 Marke)[6] and parts of Document 56 to which Marke has been given access.
2. In around August/September 2002, two police officers (the Officers) stationed at the Seymour police station commenced an investigation into allegations that an Anglican priest, Father Alan Sapsford, had sexually assaulted former altar boys.
3. Sapsford died from natural causes in March 2003, prior to the scheduled committal proceedings.
4. In around May 2003, the Officers raised concerns with the Ethical Standards Division (ESD - now Professional Standard Command (PSC)) about Marke's conduct in respect of the Victoria Police investigation into Sapsford. In short, they alleged Marke had attempted to pervert the course of justice by interfering with the investigation. An investigation into those allegations against Marke was commenced by ESD.
5. Soon thereafter, the Australian Broadcasting Commission (ABC) in its 7:30 Report televised a story in relation to the allegations against Sapsford. There was a claim of a cover up by the Anglican Church of paedophilia within the church. The programme featured a person (referred to by a pseudonym in the story) who alleged that Marke had interfered in the criminal investigation of Sapsford.
6. Marke has at all times vehemently denied the allegations that he perverted the course of justice, whether made by the Officers and in the media. He claimed the allegations were falsely made with the intention of assassinating his character and reputation.
7. The ESD investigation into Marke was completed on 10 October 2003.
8. The allegations against Marke were found not to have been substantiated.
9. Marke believed that the finding should have been one of exoneration and, on 13 July 2004, he sought a review of the findings. On 26 October 2004, the finding was changed to 'unfounded' but no finding of 'exoneration' was made. When he asked Matters in cross-examination at the hearing before me, Matters agreed with the proposition that there was no evidence Marke had perverted the course of justice.
10. ESD refused a request by Marke to commence a formal investigation into the conduct of the Officers, that conduct including the Officers making of allegations against Marke.
11. On 24 June 2010, the then managing director of the ABC wrote to Marke referring to the 7:30 Report story and the outcome of the ESD investigation into Marke (as part of the settlement of defamation proceedings Marke brought against the ABC). The letter said:[7]

Since our report, [an ESD] investigation concluded that the allegations against [Marke] were unfounded. The ABC and [journalist Heather Ewart] accept the ESD findings and unreservedly apologise to [Marke] and his family for any harm our report caused. The ABC acknowledges that the allegations were reported without giving [Marke] an opportunity to respond to them personally, although in accordance with Victoria Police protocol a response was sought from the Police Media Unit, which simply confirmed that an ESD investigation was underway.

1. It is convenient to note that, in cross-examination, it was suggested to Marke that the above letter 'put the matter to bed' regarding the allegedly defamatory criminal allegations. Marke's view was that the defamation matter was concluded but that had not settled all issues because there are still records within Victoria Police which contain misinformation and inaccurate findings of ESD's investigations. He said 'once the truth is revealed in those matters' it might 'put it all to bed' and he would like that to occur before he passes on.
2. In this proceeding, the Documents in part 1 of the Request (Documents 2, 4, 5, 6 and 7) specifically relate to the whole of these events which I refer to as the Sapsford Related Allegations. Some of the other Documents also make some reference to the Sapsford Related Allegations.

1. The following largely comes from Senior Member Davis' 2007 decision in proceeding G449/2006[8] (2007 Marke) and parts of Document 23 to which Marke has been given access.
2. In February 2004, Marke had a chance meeting with a person in a school carpark near Seymour. Marke initiated a discussion with the person about whether the allegations made against him in the 7:30 Report story were correct.[9] Marke was keen to have the person admit that the relevant allegations against him were incorrect.
3. Marke secretly taped the conversation. In 2007 Marke, SM Davis noted in his reasons for decision that the recording was played during the hearing and it was his view that it did not suggest that the other person was, in any way hindered, coerced or intimidated during the conversation. He added that the conversation appeared to be completely voluntary by both parties.[10]
4. There was a further interaction between Marke and the same person in March 2005 outside a bakery in the Seymour area.
5. SM Davis commented that it appeared to him that the meeting at the bakery was completely coincidental.[11] As reflected in Document 23 in this proceeding, Marke was at the bakery to speak to a staff member, who was a family member who worked there.
6. While at the end of the conversation, the person wished Marke 'A Happy Easter', material released to and well known to Marke shows that they later made a complaint about the interactions between them.
7. An investigation was undertaken ESD. The complaint about Marke relating to the two meetings was ultimately found by ESD to not be substantiated.
8. After the ESD investigation had been completed, in around March 2006, Marke alleged that the person had committed the offence of making a false report to police. Victoria Police concluded no such offence had been committed and communicated that decision to Marke.
9. Marke continues to believe that he can prove the person made a false report.
10. In this proceeding, the Documents in Part 2 of the Request (Documents 23, 29, 34, 44, 45, 48, 50 and 51) relate to the Post 7:30 Report Events.

1. On 26 July 2006, Marke made a formal complaint to the Chief Commissioner of Police to the effect that the Chief Commissioner was required to investigate what was an allegation of serious misconduct against the Officers. Marke maintains that such an investigation ought to have been conducted and the failure to do so breached the Chief Commissioner's obligations under section 86M of the now repealed Police Regulation Act 1958 (Vic) (1958 VP Act). That provision said:

The Chief Commissioner must investigate a complaint made to a member of the police force about the serious misconduct of a member of the police force.

1. Disclosed information in Document 56 indicates that the formal complaint was made as to the conduct of the Officers at a time when Marke was contemplating commencing civil proceedings arising from the 7:30 Report story on the Sapsford Related Allegations. As noted earlier, the request for the investigation was refused in around 2006 and none has been undertaken since.
2. In his evidence in cross-examination, Marke maintained his complaint concerned 'serious misconduct' and that the Chief Commissioner ought to have investigated as required by section 86M of the 1958 VP Act. He further maintained that the Officers had made false statements.
3. In this proceeding, the Documents in Part 3 of the Request (Documents 56 and 58-1) relate to the Chief Commissioner Complaint.

1. The following comes from my 2020 decision in proceedings Z962/2017 and Z236/2018[12] (2020 Marke).
2. In the summary, I use the name of a police member who was the subject of my decision in 2020 Marke. I found her name was not exempt and it was later provided to Marke in the final version of the 2020 Marke documents. In light of that, where I refer to her in the context of information that has been disclosed to Marke, I use her name.
3. The summary refers to one of two staff members who were employed at the Honorary Justice Office (HJO) and were involved in the events. One of those was Julia Young, a manager, who was the subject of findings in 2020 Marke and her name has been disclosed in certain documents released to Marke. I have used that name in the summary below as the name is not exempt.
4. I record that Victoria Police did not appeal the findings mentioned above and so it is not necessary for me to revisit them in this application.
5. In around 2014, an acquaintance encouraged Marke to apply to be a bail justice.
6. He did so and all appeared to be progressing well, with Marke completing training, a screening process, interviews and a final assessment.
7. On 2 July 2014, he received a phone call from Young, informing him that Victoria Police had provided information which indicated possible issues with his application.
8. Marke assumed the 'issues' related to the events relating to the Sapsford investigation and so he prepared a private and confidential letter dated 2 July 2014 setting out his version of what happened, explaining he may have erred in not mentioning it earlier in the application process.
9. On 7 July 2014, Marke received an email from Young which advised relevant assessments had been completed and he had been deemed competent. The email said the next step was for the file to be referred for a final recommendation and referral to the Attorney-General to sign off.
10. On 22 July 2014, Marke received another telephone call from Young. He was told that Elizabeth Murphy, a female acting inspector from Seymour police station, had called the HJO raising concerns about Marke's suitability to be a bail justice. Young agreed to email Marke about what had been said.
11. The resulting email said, amongst other things, that the HJO received a verbal notification from Victoria Police on Friday 20 June 2014 in relation to Marke's suitability to undertake the bail justice role and that 'these comments were not recently substantiated in writing by Victoria Police when requested by HJO'. The email went on to say that 'to ensure due diligence is followed in preparing your application for appointment as bail justice for recommendation to the Attorney-General' Marke's responses were sought relating to specified matters including the allegations made against him in the context of the Sapsford investigation, matters related to his time at Seymour police station and the circumstances in which he resigned from Victoria Police.
12. Marke was told he was welcome to respond in writing and he did so on 22 July 2014.
13. What then followed over the next year were the three complaint processes initiated by Marke against Victoria Police:
    • A Conduct Complaint made against Murphy which was considered by PSC;
    • A Privacy Complaint against Murphy which was considered by Victoria Police's Privacy Unit; and
    • A complaint directed to the Independent Broad-based Anti-Corruption Commission (IBAC and IBAC Complaint).
14. As he was dissatisfied with the outcomes of those Complaint processes, Marke commenced defamation proceedings against Victoria Police and the State of Victoria.
15. On 7 July 2015, after commencing those proceedings, Marke wrote to the HJO formally withdrawing his application. Marke subsequently sought to reinstate his application to be a bail justice but was told the HJO was not recruiting in his area.
16. The defamation proceeding was settled between the parties on a largely confidential basis but a letter of apology was issued. On 25 September 2015, Deputy Commissioner Shane Patton wrote to Marke on behalf of the State of Victoria. That letter was addressed 'To whomever it may concern' and was headed 'Apology'. It referred to the statements about Marke made to the HJO and stated that they 'were defamatory of Lance Marke' and were 'without foundation'. The letter also stated that there were 'no matters that would exclude [Marke] from being appointed as a Bail Justice'.[13]
17. Part 4 of Marke's application in this proceeding concerns the conduct and outcomes of the Conduct Complaint he made about Murphy.
18. Part 5 of Marke's application in this proceeding concerns the conduct and outcomes of the Privacy Complaint he made about Murphy.
19. In this proceeding, the Documents in Parts 4 and 5 of the Request (Documents 58-2, 59, 60, 63, 64, 71, 72, 74, 75, 76 and 77) relate to the Bail Justice Application.

1. I have had regard to the written[14] and oral submissions made by the parties as to the applicable law. Given many of the concepts are well known and not controversial, it has not been necessary to summarise all of those submissions. I have instead focussed on those parts of the submissions which were directly relevant to the issues raised by the Documents.

1. The objects of the FOI Act are set out in section 3 and include to extend as far as possible the right of the community to access to information (section 3(1)).
2. Section 3(1)(b) says that the object is to be achieved in part by creating a general right of access to information in documentary form in the possession of Ministers and agencies limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies.
3. Section 3(2) says it is the intention of the Parliament that the provisions of the FOI Act be interpreted so as to further the section 3(1) object and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

1. As a consequence of section 55 of the FOI Act, in this case, Victoria Police has the onus of establishing that its 23 August 2019 decision was justified or that the Tribunal should give a decision adverse to Marke.

1. Section 53A of the FOI Act, says that, if an agency decides to refuse to grant access to a document because that would involve the unreasonable disclosure of information relating to the personal affairs of a person and the matter comes before the Tribunal for review, the agency, as soon as practicable after being notified of the application, must, if practicable, give written notice to the relevant person.
2. The notice must inform the person to whom it is directed of their right to intervene in the review and request the person to inform the Tribunal, within 21 days after the day on which the notice was given, whether or not the person intends to intervene.
3. The evidence before me as to section 53A notices in this matter came from Matters' witness statement signed on 21 April 2022 which he adopted in his oral evidence (Matters' Statement[15]). Some of the following is also relevant to the claims for exemption under section 33(1) of the FOI Act.
4. In summary:[16]
   • Matters was aware from his review of 2007 Marke, that the person referred to in that decision as 'the complainant' responded to a notice given to them under section 53A of the FOI Act. The complainant wished for all personal information relating to them to remain confidential, and said that they were 'fearful' of Marke;
   • From his review of 2020 Marke, it was apparent that Victoria Police had caused notices to be issued under section 53A of the FOI Act to three people (identified in the Reasons as Officer 2, Person 20 and Person 21 - I note the names of those people were found not to be exempt). All three objected to the release of their personal information, including one person who did not want to be involved in ongoing litigation or be traced by any party. The personal information of each of those three people appears in the Documents;
   • Victoria Police did not send notices under section 53A of the FOI Act in this proceeding, on the basis that it was not practicable to do so, in circumstances where the issues have previously been before the Tribunal, the Documents are now old and those contact details which are held on file, may well be out of date. Matters stated that 'it is not practicable for Victoria Police to find their details'; and
   • Reference was made to the 'long history of requests' by Marke under the FOI Act and the long history of disputes between Marke and Victoria Police. Matters then stated:

My view is that persons would not wish for their information to be released to [Marke] given that the length of time that has since passed, and that he has made many complaints against members and Victoria Police as a whole. In my experience, persons would be concerned that if their information was released to [Marke], they would be the subject of further complaints and they would want to move on with their lives. The expectation of confidentiality which I have described above, would continue to apply, in my view, such that those persons would not now want their details to be released outside of criminal or misconduct matters.

1. The following comes from Quigley J's decision (in her capacity as President of the Tribunal) in Tucker v Commissioner of State Revenue[17] (Tucker).

Section 25 of the FOI Act requires an agency, in some circumstances, to grant access to a document that has been redacted to remove information that would render the document exempt or that is otherwise irrelevant to the applicant's request.

The section applies where:

(a) A decision is made not to grant a request for access to a document on the ground that it is an exempt document or to grant the request would disclose information that would reasonably be regarded as irrelevant to the request;

(b) It is practicable for the agency to grant access to a copy of the document with such deletions as to make the copy not an exempt document or a document that would not disclose such information, as the case requires; and

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

The Tribunal has considered the circumstances in which it will be practicable for an agency to delete material and grant access to a copy of a document. The two necessary considerations are:

(a) the ease with which the agency is able to delete exempt or irrelevant material; and

(b) the efficacy of the outcome of making such deletions and still allow the document once redacted to continue to be meaningful.

1. For those Documents where I have found information is to be disclosed, I have done so satisfied that it is practicable for the editing to be undertaken and that Marke would wish to have access. In reaching that view, I have had regard to the long history of documents being disclosed by Victoria Police to Marke in part after editing.
2. It is convenient to record now that, where I have found a Document exempt in full, for each one I concluded that it could not be edited under section 25 because the exempt information so was embedded in the personal affairs information (under section 33(1) of the FOI Act) or the confidential information (under section 35(1)(b) of the FOI Act) that editing was not practicable or editing would not render the Document not exempt.

MARKE'S APPLICATION FOR CORRECTION UNDER SECTION 39 OF THE FOI ACT

1. In his materials and at the hearing, Marke referred to having an independent judicial body look into the issues of concern. However, he is not financially able to fund proceedings of that kind. His immediate intention is to make use of the Documents to assist in an existing application for correction before the Tribunal. He believes that application will reveal that inadequate investigations were undertaken and specific wrongdoing on the part of certain people.
2. The application for correction was made under section 39 of the FOI Act, which provides:

Where a document containing information relating to the personal affairs of a person (including a deceased person) is released to the person who is the subject of that information...that person shall be entitled to request the correction or amendment of any part of that information where it is inaccurate, incomplete, out of date, or where it would give a misleading impression.

1. Victoria Police expressed concern about the impact on individuals if further information was disclosed because, through his section 39 application, all of the past events would be raised again and potentially cause distress to the individuals about matters they thought long dealt with. Relevant to that was the fact Marke continues to make serious adverse allegations about many individuals.[18]
2. In his witness statement dated 3 August 2022[19] which he adopted as evidence at the hearing (Marke's Statement) and in his written submissions dated 3 August 2022[20] (Marke's August 2022 Written Submissions) Marke explained his intention to make use of further access to the Documents in his existing (and possibly other) section 39 applications. He suggested that the Documents ought to be found to not be exempt so they would be available for that purpose (see summary of Marke's evidence below from [194]).
3. Victoria Police made submissions on the likelihood Marke would succeed in his application under section 39 of the FOI Act. The concerns about a future section 39 application relating to these Documents was one of the bases on which Victoria Police disputed any suggestion there was a public interest in the Documents being disclosed (relevant to its claim under section 35(1)(b) of the FOI Act).
4. In my opinion, Marke's future intentions as to the section 39 application or how that may possibly impact on third parties is irrelevant to whether the Documents before should be found to be exempt.
5. Marke was entitled to make and remains entitled to pursue the application. He correctly notes that it may only be made in respect of documents and/or content that has been actually disclosed, either because no claim for exemption has been made or because there has been a finding that a document in whole or in part is not exempt.
6. Whether or not a correction ought to be made under section 39 of the FOI Act is quite separate from the assessment of whether information in the Documents before me is exempt. Information cannot be assessed as not exempt so as to further a section 39 application: that would put the cart before the horse.
7. While I have had no further regard to the impacts of my assessment on the section 39 application, I encourage Marke to have careful regard to a recent Supreme Court of Victoria decision on the purpose and scope of such applications.[21]

REQUESTS FOR REPEAT REVIEWS - SECTION 50(6) OF THE FOI ACT

1. While originally claiming a number of Documents were exempt under a mix of sections 33(1) and 35(1)(b) of the FOI Act, later Victoria Police submitted that Marke had previously sought access to some of those and that, under section 50(6) of the FOI Act, the application for review in respect of those Documents ought to be refused.
2. Section 50(6) of the FOI Act says:

The Tribunal may refuse to review a decision of an agency or Minister to refuse the request of a person for access to a document if the Tribunal is satisfied that it has previously reviewed a decision of the agency or Minister to refuse access to the same document or the same information.

1. I considered the above provision in Marke v Victoria Police[22] (2019 G Marke), an application brought by Marke's wife, Gunhild Marke (G Marke). In that case, Victoria Police submitted that eight documents she sought access to had already been considered by the Tribunal and it made the same submissions in this case concerning Documents 59 (in part), 71, 74, 75 and 76.
2. The issues in this proceeding are:
   • Whether the relevant parts of Marke's Request are for access to a document which has previously been the subject of review by the Tribunal and been refused;[23] and
   • How to assess the discretion in section 50(6) of the FOI Act, noting the word 'may'.
3. In 2019 G Marke, I compared section 50(6) with section 24A of the FOI Act which provides that an agency may refuse to grant access to documents without having processed the request, if the agency is satisfied it was made by, or on behalf of, a person who, on at least one previous occasion, had made a request for access to the same documents or the same information. Section 24A provides that, on review, the Tribunal may confirm a refusal if there are 'not reasonable grounds for making the request again'.
4. While that reasonable grounds test does not appear in section 50(6), I have used it in assessing whether there is evidence indicating there are reasonable grounds for the repeat request so that the identified Documents ought to be reviewed again.
5. As to outcome, in G Marke, I took the same approach as that adopted by Senior Member Megay in a decision she made in 2014 (referred to below), finding the application in so far as it concerned the same documents amounted to an abuse of process under section 75(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act).[24] That was because section 50(6) of the FOI Act is consistent with the law regarding abuse of process and is directed at attempts to re-litigate earlier findings about the same subject matter.[25]

1. The previous decisions which bore upon this issue are as follows:
   • SM Preuss' decision in 2006 Marke which concerned 41 documents and which was decided by 'sampling': that is eight categories of documents were identified and then 11 sample documents representing the eight categories were considered by the Tribunal with the decision on each representative document being applied to each document in the relevant category;
   • SM Davis' decision in 2007 Marke which concerned 18 disputed documents where access had been given to some in part. Marke appealed the Tribunal's decision in 2007 Marke. Hansen J decided to allow the appeal and remitted the matter to be heard again by a different member, in accordance with the reasons.[26] Victoria Police then appealed that decision to the Supreme Court of Victoria, Court of Appeal. Hansen J's decision was upheld.[27] Marke withdrew the application and so 2007 Marke was never re-heard by the Tribunal. As a consequence, there has been no prior decision on the 18 documents;
   • SM Megay's 2014 decision in proceeding Z618/2013 (2014 Marke). The application concerned 33 documents. On 14 October 2014, Marke's application was dismissed as an abuse of process under section 75(1)(b) of the VCAT Act in respect to 25 of those documents on the basis that they had been the subject of findings in 2006 Marke.[28] Specifically, 23 of the documents in 2014 Marke, had been found to be exempt under section 35(1)(b) of the FOI Act (and section 50(4) was found not to apply) in 2006 Marke. Two were found to be exempt under section 30(1) and one was found to be exempt under both sections 30(1) and 35(1)(b) in 2006 Marke;
   • My 2019 G Marke decision in which I found a group of documents (identified as 'Part 1') were the same as those which had been the subject of 2006 Marke and 2019 Marke; and
   • My 2020 Marke decision which concerned six documents which related to Marke's 2014 Bail Justice Application and the aftermath of that Application. I decided to vary the decision under review to release further information to Marke and otherwise affirmed Victoria Police's decision. Victoria Police did not appeal my decision, but Marke did. On 13 August 2021, O'Meara J gave his decision on the appeal[29] (2021 Marke Appeal), dismissing the application.

Materials to assist with the section 50(6) consideration

1. In addition to having access to unredacted copies of all Documents the subject of this proceeding, the following materials assisted me to consider Victoria Police's April 2022 and 2025 Written Submissions on section 50(6) of the FOI Act.

Comparison table - this proceeding, 2006 Marke, 2014 Marke, 2019 Marke and 2020 Marke

1. At the end of the May 2025 hearing, I asked Victoria Police to prepare and send to the Tribunal and Marke, a table which identified (using neutral language) those Documents in this proceeding which it said had been considered in one of the proceedings referred to above.
2. On 22 May 2025, the table was sent to the Tribunal and Marke. It identified the number of the Document in this proceeding and then the document number in the other proceeding/s as appropriate.

Schedules of documents from 2006 Marke and 2014 Marke

1. Also at my request, Victoria Police provided schedules of the documents which had been the subject of the decisions in 2006 Marke and 2014 Marke.
2. Marke was copied into a 22 May 2025 email explaining the requested schedules would be provided to me separately and confidentially. That was necessary because disclosure of the schedules would have disclosed to Marke details about the documents found to be exempt in those proceedings and would also disclose information in the Documents before me. So, while Marke did not have access to the 2006 and 2014 Marke Schedules, he was aware of the nature of the additional material I had before me.
3. On 26 May 2025, I was provided with the 2006 and 2014 Marke Schedules of documents on a confidential basis.
4. As stated above, 2006 Marke was decided by sampling. The 2006 Marke Schedule identifies the documents in issue in 2006 Marke (including by reference to dates, names and type of document) and which of the selected 11 documents fell into the eight categories relied on for the sampling process. The 2006 Marke Schedule has allowed me to understand which of the Documents before me are the same as those considered in 2006. I have also been able to identify how some Documents before me are of a similar kind or contain similar information to those in 2006 Marke.
5. Although the 2014 Marke Schedule contained less descriptive information than in the 2006 Marke Schedule, it allowed me to identify the documents in issue in 2014 Marke which had already been ruled on in 2006 Marke. The 2014 Marke Schedule allowed me to identify which of the Documents before me had also been the subject of 2014 Marke and which of the Documents before me are of a similar kind or contain similar information to that in 2014 Marke.

1. Also at my request, Victoria Police provided Marke and I with a copy of the final version of the documents released after the appeal of 2020 Marke. That was of assistance to me because I could identify documents from that case which are the same as those in this. I could also identify documents and information which is similar to that in the Documents before me.

The application of section 50(6) to Documents in this proceeding

1. In 2006 Marke, the Tribunal affirmed Victoria Police's claims on exemption on two specific documents, finding they were exempt under section 35(1)(b) of the FOI Act. The category those two documents represented included Documents 5 and 6 in this proceeding which concerned the Sapsford Related Allegations.
2. In his 25 April 2025 written submissions (Marke's April 2025 Submissions), Marke queried whether these two Documents had been found to be exempt in 2006 Marke. I confirm they were as follows.
3. Documents 5 and 6 were specifically considered in 2014 Marke and were included in the orders SM Megay made partially dismissing the application under section 75(1)(b) of the VCAT Act.
4. Documents 5 and 6 were included in the Part 1 group of documents considered under section 50(6) in 2019 G Marke. There was no dispute that they and others had been ruled on by SM Preuss in 2006 Marke and were the subject of SM Megay's orders in 2014 Marke. The application, in so far as it related to those same documents, was dismissed under section 75(1)(b) of the VCAT Act.
5. As discussed above, section 50(6) of the FOI Act confers a discretion on the Tribunal. I have treated that discretion as wide and open ended and, as a vehicle to exercise it, I have considered whether there are reasonable grounds for the Documents to again be reviewed.
6. At the hearing, Marke asked questions of Matters in cross-examination and made submissions to the effect that he believed certain police members had been given the option of whether to make statements in the ESD investigation into his conduct in connection with the Sapsford Related Allegations. He suggested that, if the statements had been given voluntarily, they could not be regarded as confidential in the way Matters referred to in his evidence (summarised below). I understood him to be referring to [50] and [52] in 2006 Marke where it was recorded that the Officers were 'advised their statements to ESD would be kept confidential unless there were disciplinary or criminal proceedings'.
7. Marke produced two documents which contained tables of summaries of statements given by a range of people (some named and some not) (Summary Tables).[30] The Summary Tables included summaries of the statements he believed were contained in Documents 5 and 6.
8. In short, Marke believed that the Officers had made statements and then revised them so as to change the evidence they gave. I understood that he believes the changes impacted on the Chief Commissioner's 2006 decision not to investigate the Officers and that in turn relates to his request for access to Documents in part 3 of the Request in this proceeding. He said words to the effect that, if he had regard to the schedule of documents in the reasons for 2006 Marke and the Summary Tables he could 'join the dots'. He also referred to his view that the Officers had been 'loose with the truth' and his wish to have those and other Documents so as to seek correction under section 39 of the FOI Act.
9. Matters agreed with the proposition that, if there had been either disciplinary or criminal proceedings against Marke arising from the Sapsford Related Allegations, he would have been given all relevant statements, including those made by the Officers.
10. In the course of questioning Matters, Marke stated he had received the Summary Tables through an FOI Act application made 'many years ago'. The representatives of Victoria Police were unaware of the origin of the documents and the circumstances in which they had been disclosed.
11. Marke's 12 May 2025 written submissions,[31] (Markes' May 2025 Submissions) stated that neither Officer had given direct evidence before me about confidentiality attaching to the Documents (under section 35(1)(b) of the FOI Act). He contended that, due to the age of Documents 5 and 6, the information about him ought to be released with any personal affairs information redacted. He wanted to know if the statements were sworn as to the truth of their contents. He suggested that, as over the years, the facts and matters relevant to section 33(1) of the FOI Act had changed so much they now required 'a fresh set of eyes to assist in formulating an updated evaluative judgement which could influence the Tribunal to ignore this provision'. He referred to changes in how the reasonableness test under section 33(1) had changed (including as a result of Court and Tribunal decisions), that the Officers were no longer police members and, given his continued search for truth, he considered the 'obvious falsities in the documents' to favour release.[32]
12. It was apparent from Marke's evidence at the hearing that he believed the existence of other witness statements made by the Officers showed they had improperly (and probably dishonestly) changed their evidence. He did not accept the proposition that, in the course of an investigation, witnesses may recall further evidence or may, as a result of requests for clarification, modify or further explain content in an earlier statement.
13. Marke's April 2025 Submissions asserted that Documents 5 and 6 most likely contained 'false and misleading information' relating to his personal affairs' and that it was therefore reasonable that they be released.[33] Leaving aside the claimed exemptions, I do not accept that the information in the Documents can be characterised in that way nor that Marke's belief about that calls for reconsideration.
14. Even if the content of the Summary Tables was comparable to the content of Documents 5 and 6, I am not persuaded that would warrant an exercise of the discretion in section 50(6) of the FOI Act.
15. I have reached that view in circumstances where Documents 5 and 6 were found to be exempt in 2006 under section 35(1)(b) of the FOI Act. While Marke may believe the Summary Tables reveal the content of Documents 5 and 6, at no time has he been given complete access to statements of that kind. Relevant to that view is SM Preuss' comments in 2006 Marke about the difference between 'strong suspicions' as to the identity of the maker of a statement and what it contains and the 'absolute knowledge that possession of the text would give'.[34] I consider that statement has equal application to these two (and other) witness statements contained in the Documents before me.
16. I also note the following comments made by SM Megay in 2014 Marke in response to a submission that, because section 30(1) of the FOI Act has a 10-year life span,[35] the documents found exempt under that provision ought to be released:[36]

In my view the section does not operate to change the character of a document, once it has been the subject of deliberation and subsequent Tribunal order refusing access, from being exempt to suddenly being available for disclosure. Rather it strikes me the document relates to applications for access that have not been the subject of FOI proceedings with resulting findings of exempt status. These 2 documents remain part of the group of documents about which I have ruled under s 75(1)(b) of the Act.

1. Accepting that Documents 5 and 6 before me were found to be exempt under section 35(1)(b) of the FOI Act in 2006 Marke, I agree with and adopt the concept that the passing of time itself does not 'operate to change the character of the document' where it has already been deliberated on and found to be exempt.
2. Further, having reviewed Documents 5 and 6 and having had regard to the Summary Tables, I do not accept that they reveal 'obvious falsities'. There is nothing before me to show circumstances have changed such that the earlier finding they were exempt ought to be revisited.
3. I find the correct and preferable decision is that section 50(6) applies to Documents 5 and 6.
4. At the hearing, Marke explained that, at the time he sought access to Documents 5 and 6, he did not realise that they had been the subject of a previous FOI Act application. On that basis he disputed the suggestion it was an abuse of process to apply again. I accept that evidence as to motivation but disagree with the conclusion.
5. In the circumstances and consistent with 2014 Marke, despite Marke's understanding at the time, the further request for access to the same documents which were considered and ruled on in Marke 2006 is properly characterised an abuse of process under section 75(1)(b) of the VCAT Act and so that part of the application has been dismissed.

1. The Documents listed above were considered by me in 2020 Marke and were identified in that decision as follows:
   • Attachment to Document 59 was document 5;
   • Document 71 was page 13 of document 1; and
   • Documents 74, 75 and 76 were pages 3, 4 and 5 to 8 of document 3b.
2. In 2020 Marke, I decided that document 5 was to be released subject to two redactions[37] and page 13 of document 1 was to be released subject to a number of redactions.[38] I found part of document 5 was exempt under section 35(1)(b) of the FOI Act and that part of document 1 was exempt under the same provision, as well as under section 33(1) of the FOI Act.[39] I found that, where section 35(1)(b) applied to those documents, the public interest override in section 50(4) of the FOI Act did not require that the exempt material be released.[40]
3. In 2020 Marke, I found that the whole of document 3b was exempt under sections 33(1) and 35(1)(b) of the FOI Act and further that the public interest override in section 50(4) of the FOI Act did not require that the exempt material be released.[41]
4. These Documents are sought because Marke says that the investigation into Murphy relating to his Bail Justice Application was incomplete and substandard. In his cross-examination of Matters, Marke suggested that information ought to have been obtained in a more formal fashion, including via written and signed statements. As referred to earlier, he believes he can provide sufficient evidence to establish that Murphy 'committed the offence of misconduct in public office'.
5. In 2020 Marke, I found the equivalents of Documents 59 (part), 71, 74, 75 and 76 were exempt under a mix of sections 35(1)(b) and section 33(1) of the FOI Act.[42]
6. Marke's views about the adequacy or otherwise of the way in which his complaints about Murphy were dealt with are neither new nor sufficient to warrant a second consideration of any of the above Documents.
7. I find the correct and preferable decision is that section 50(6) applies to Documents 59 (part), 71, 74, 75 and 76.
8. In the circumstances and consistent with 2014 Marke, Marke's further request for access to the same documents which were considered and ruled on in 2020 Marke is an abuse of process under section 75(1)(b) of the VCAT Act and so that part of the application has been dismissed.

1. As stated above, Victoria Police relied on the exemption contained in section 33(1) of the FOI Act for all the Documents.

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).

1. In order to find that a document or part of a document is exempt from disclosure under section 33(1), two criteria must be met:
   • that disclosure of the document would disclose information relating to the personal affairs of any person; and
   • that such disclosure would be unreasonable.

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.

1. Clearly people's names fall within the meaning of 'personal affairs information'. Descriptive information may also have the effect of identifying a person.
2. Consistent with his approach in other cases,[43] Marke made plain that he had no interest in telephone numbers or email addresses and the like. He has said the same in respect of people's signatures. I have understood that Marke does not seek information such as individual police member's identifying numbers. Accordingly, I have proceeded on the basis that, where information such as that appears and Victoria Police relies on the section 33(1) exemption, that information may be treated as if it were exempt and appropriately redacted.

Documents containing a mix of personal affairs information about Marke and others

1. Section 33(2) of the FOI Act provides that, subject to specified provisions (none of which apply here):

the provisions of subsection (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.

1. In the Supreme Court of Victoria's decision on the appeal from 2020 Marke,[44] O'Meara J considered how section 33(2) applies where a document contains information about an applicant for access as well as about others' personal affairs. Marke contended that the exemption in section 33(1) of the FOI Act ought not to apply 'if the information in question amounts to or involves information concerning him'.
2. His Honour said:[45]

On the construction of sub-s 33(2) of the FOI Act evidently contended for by the applicant, the exemption stated in sub-s 33(1) of the FOI Act would be without effect where any material concerning a person such as him is referred to in a document, even if it is there referred to in a manner that also amounts to the personal affairs of another person.

Sub-section 33(1) is in broad terms and has been broadly construed. The construction of sub-s 33(2) contended for by the applicant would significantly erode or nullify the operation of the sub-section which precedes it and to which it is evidently intended to be no more than a distinct exception.

Sub-sections 33(1) and (2) must be read in the order and terms in which they appear. Sub-section 33(2) is plainly only an exception to the general terms of an exemption stated in sub-s 33(1). The former will displace the latter where the material included within the document relates 'only' to the person in question. That is not the present instance.

1. Under section 33(2A), the agency must take into account, in addition to any other matters, whether the disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person.
2. As discussed in 2020 Marke,[46] I was satisfied that, over the many years, Marke has not inappropriately approached or communicated with people involved in the events summarised above or those whose names he has been given. Other than within the context of section 53A of the FOI Act, Victoria Police made no broad submission before me that section 33(2A) required consideration in this proceeding.
3. Accordingly, I take the same approach to section 33(2A) of the FOI Act as I did in 2020 Marke, finding that the provision is not relevant to this proceeding.

The assessment of unreasonableness of disclosure - potentially relevant factors

1. In its 2008 decision in Victoria Police v Marke (2008 Marke Court of Appeal), the Victorian Supreme Court, Court of Appeal considered Victoria Police's appeal of Hansen J's decision regarding 2007 Marke.
2. In doing so the Court made it plain that, while the intended use of personal affairs information may be a relevant consideration, the consideration called for by section 33(1) is not a 'balancing exercise' between interests or right of the individuals involved but rather a consideration of all of the circumstances, including the individual's right to privacy and the general right of access to information under the FOI Act. Further, it decided that it is not to be assumed that disclosed information will be published to the world at large.[47]
3. The Court of Appeal referred to the following matters as potentially relevant in a particular case:[48]

(a) The interest the applicant has in the information and the purpose for which access is sought;

(b) The nature of the information that would be disclosed;

(c) The circumstances in which the information was obtained;

(d) The extent of possible dissemination of the information;

(e) The likelihood of the material being information that the person concerned would not wish to have disclose without consent;

(f) Whether the information has any current relevance; and

(g) Whether the public interest would be promoted by release of the information.

1. The above is not a check list which all must fall in the FOI applicant's favour - they are a guide only. The provision includes 'understandably wide language' because 'the circumstances in which the section may operate are wide, disparate and unpredictable'. Two sets of competing objectives are involved: the 'fundamental importance in a liberal democracy (public disclosure and personal privacy) and a weighing of one against the other must depend upon the specifics of each case in which the two objectives come into conflict'.[49]
2. I make findings about the above factors below after summarising the evidence.

THE OBTAINED IN CONFIDENCE EXEMPTION - SECTION 35

1. Victoria Police relied on the exemption in section 35(1)(b) in respect of Documents 44, 50, 51 and 58-1.
2. Noting that, during the proceeding, the substance of Document 44 was disclosed to Marke, with the exclusion of section 33(1) information, I proceeded on the basis that section 35(1)(b) was no longer relied on.

1. Section 35(1)(b) of the FOI Act says relevantly:

(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 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.

1. It has long been accepted that whether information was obtained in confidence is a question of fact and that it may be implied from the circumstances. It is understood that the question is to be considered from the perspective of the communicator and that perspective may also be inferred from the circumstances.[50]
2. In XYZ v Victoria Police, (XYZ) Bell J found that, for the exemption to apply, it is not necessary for the information obtained to have been 'absolutely confidential'.[51] His Honour said:[52]

all aspects of the circumstances surrounding the communication of the information, and the nature of any agreement as to how and when, if at all, the information could be used, are relevant in determining whether it was communicated in confidence. Information may be received confidentially even if it is understood that it might later be used by the police in legal proceedings.

1. In his oral submissions, Marke drew a distinction between when the circumstances in which information was communicated demonstrate that it was provided with an expectation of confidentiality and how that information may be managed later, including how it is stored and to whom it may be disclosed within or outside Victoria Police. I accept that distinction may be made and that the relevant factual enquiry concerns the circumstances in which the information was communicated.
2. In 2020 Marke, I canvassed past decisions about section 31(1)(b) where there was direct evidence given about how the relevant information was communicated and why it may raise the public interest.[53]
3. In summary:
   • In Ryder v Booth,[54] the documents in issue under section 35(1)(b) were medical reports written by medical specialists for use by the State Superannuation Board. The documents were found to be confidential in part because they were headed 'Confidential Medical Report'. The evidence before the County Court at first instance as to the public interest test came from a number of medical practitioners. Those practitioners expressed a range of opinions about the impact of disclosure of those reports and whether they would be unlikely to provide similar reports in future;
   • In Porter v Victoria Police (Porter),[55] the applicant (a police officer) sought access to documents another police officer had written about her concerning her performance as a probationary police officer. That officer gave evidence before the Tribunal that he wrote the document after expressing performance related concerns about Ms Porter to his senior officer who asked for it to be put in writing. In those circumstances and having expressed his opinions in a full and frank manner, he considered the contents of his report to be confidential. SM Megay heard evidence from the superintendent then in charge of the Freedom of Information and Privacy Division and the relevant freedom of information officer;
   • In 2006 Marke, SM Preuss heard evidence from one of the officers involved in the ESD investigation into Marke and another who had interviewed a person involved;[56] and
   • In XYZ Bell J was asked to determine whether exemptions including that contained in section 35(1)(b) applied to a number of documents, all of which related to an internal investigation into a police officer by the predecessor of the PSC. His Honour heard evidence from the officer who undertook the internal investigation. As I understood it, that evidence related in part to information she obtained from confidential informants that was relied on when applying for warrants. She also gave evidence about how those warrants were executed and her subsequent dealings with XYZ and others. The reasons for decision indicate the officer was the subject of extensive cross-examination. A Chief Superintendent gave evidence about a report he wrote which was in dispute and why it was said to be exempt. He was also cross-examined. His Honour decided section 35(1)(b) applied to a number of documents which contained information provided by confidential sources, having regard to the evidence of the witnesses mentioned.
4. Of further assistance in respect of proof of the first limb of section 35(1)(b) of the FOI Act, is a case to which Marke referred me ahead of the final hearing date: the Federal Court of Australia's decision in Bachelard v Australian Federal Police[57] (Bachelard).
5. Bachelard concerned whether an exemption in the Freedom of Information Act 1982 (Cth) (Cth FOI Act) applied to information obtained from a confidential source. Under section 37(1)(b) of the Cth FOI Act, relevantly, a document is exempt if its disclosure would or could reasonably be expected to disclose the existence or identity of a confidential source of information in relation to the enforcement or administration of the law (that exemption is comparable to that contained in section 31(1)(c) of the FOI Act).
6. McDonald J wrote the leading judgment and, relevantly, concluded that the section 37(1)(b) exemption was misapplied largely because the Administrative Appeals Tribunal misunderstood the effect of a section in the Australian Federal Police Act 1979 (Cth) on confidential sources and the confidentiality to be attached to the information in issue. The other members of the Court made remarks and observations on the issues, including whether information is to be treated as confidential.
7. Victoria Police submitted that the decision was of no relevance or assistance given it concerned a different exemption from that before me and focussed on the identities of the persons said to have been confidential sources (or informers) rather than police members or witnesses like those involved in the Documents before me.
8. While I accept that the exemption in issue in Bachelard is materially different to sections 35(1)(b) FOI Act, especially given it concerns the protection of information obtained in relation to the enforcement or administration of the law, I nevertheless found some of the observations to be of assistance. In particular:
   • Wigney J (who agreed with McDonald J) concluded that, when determining whether a person is or was a confidential source of information, the focus is not so much on the position of the recipient of the information and how it intended or was required to treat or deal with the information from the source. The question is not whether the recipient of the information unilaterally considered that the information it received from the source should remain confidential, or considered that the identity of the source should remain confidential, or had a practice of treating such information as confidential information. Rather, the focus of the assessment is on the position of the informer, and the circumstances and basis upon which they provided information to the authorities. Did the source provide the information under an express or implied assurance or undertaking that their identity would remain confidential, or on the understanding gleaned from the circumstances in which the information was provided that the law enforcement agency would not disclose their identity;[58] and
   • Thawley J said that, in the absence of direct evidence about the officer's understanding as to whether the officer's identity would be kept confidential, the question is whether such an inference should be drawn having regard to the absence of direct evidence on the topic, the context, and the facts and circumstances as established by the material before the tribunal.[59]
9. Accident Compensation Commission v Croom,[60] a case referred to in Bachelard, concerned the corresponding FOI Act provision concerning 'informers' (section 33(1)(c)), O'Bryan J in the Court of Appeal said that, it was open to the Tribunal to find there was no evidence that any witness provided information in confidence even where there was evidence that the person collecting the information offered to maintain confidence in the document. The shortcoming was because there was no evidence that the person from whom the statement was taken wished their identity to be protected from disclosure.[61]
10. On the suggestion in Bachelard that the witnesses or individuals could have been called to give their own evidence,[62] before me Victoria Police submitted that, in this proceeding, their identities would be disclosed and so undermine the claimed exemption. It was a matter for Victoria Police, but I note that the submission does not take into account the Tribunal's capacity to hear evidence in the absence of an applicant or to hear evidence from the police members who took the statements or to whom information was communicated.

Would disclosure impair Victoria Police's ability to obtain information in the future?

1. As to the second limb of section 35(1)(b) of the FOI Act, whether disclosure would be reasonably likely to impair (meaning damage or injure) the relevant agency's ability to obtain information in future, is also a question of fact and must be considered in light of the seriousness of the consequences of disclosure. The 'reasonably likely' element of the impairment test in section 35(1)(b) means 'more probable than not'.[63]
2. In XYZ, Bell J accepted the applicant's submission that, in applying the impairment test in s 35(1)(b), the agency would be less likely to be impaired by disclosure from obtaining similar information in the future from police officers, and others in a similar position. His Honour referred to what was said in Porter[64] 'officers of Victoria Police are a robust group of individuals not easily cowed by threats of disclosure'.[65]
3. However, his Honour also found that maintaining the confidentiality of 'information provided confidentially in the course of investigating police corruption and misconduct is indispensable to the integrity and effectiveness of the investigation'. His Honour stated that police members, government employees and 'members of the general community would be less likely to provide information to those investigating the police if they believed the information might later be released to the targets of the investigation or disseminated even more widely'.[66]
4. When it comes to the application of the public interest test, it may be relevant to give weight to circumstances where the makers of statements or providers of information were willing to do so voluntarily, including in the context of an investigation undertaken by ESD or PSC. Also relevant may be whether the people were under any legal or professional compulsion to do so.

1. Victoria Police called Matters to give evidence in respect of the Documents and claimed exemptions. He adopted the Matters' Statement as his evidence and was cross-examined.
2. As stated above, Marke adopted his Statement and he was cross-examined.

1. In summary and most relevant to this application, Matters:[67]
   • Is a sworn member of Victoria Police who holds the rank of Inspector;
   • Has been a member of Victoria Police for over 40 years and over that time has performed roles in frontline operational areas including station, divisional and regional command as well as in project, support and corporate areas;
   • Is the Deputy Freedom of Information Officer at the FOI Division. He holds responsibilities as a delegate to make decisions under the FOI Act and, as a member of the leadership group of the FOI Division, he has worked in that position since the 11 July 2016.
   • He has professional experience and training dealing with persons who have made complaints about police members. Since 1995, in his role as a supervisor and manager, he has frequently been allocated PSC (and its predecessor ESD) files for investigation at a local level. He is a current member of the Local Professional Standards Committee for the FOI Division's Command of Corporate and Regulatory Services. He is still 'occasionally' allocated PSC files for investigation by himself, as well as files to allocate to staff to work on under his oversight;
   • Has taken numerous statements from witnesses and persons involved in investigations and complaints, for the purpose of preparing briefs of evidence and for consideration of further action by Victoria Police; and
   • Has received training throughout his career in relation to taking statements. The way he was trained to deal with confidentiality 'continues to apply'. He is aware that Victoria Police policy contains information, guidelines and advice around the taking of statements and witness statements and his evidence was given by reference to his knowledge of that information, those guidelines and that advice.

1. I have summarised above evidence Matters gave about the likely views of certain people about disclosure of their personal affairs information to Marke or more generally (see from [82] above).
2. Some of the evidence concerning the obtained in confidence exemption is also relevant to section 33(1).

1. Matters' Statement and his oral evidence focussed on his knowledge about and experience of how PSC (and similar) investigations are undertaken. His evidence was similar to that given in 2020 Marke.[68]
2. In essence, Matters' evidence was that, where internal investigations are being undertaken into police member's conduct, it is essential that any other police members who elect to provide statements are assured that those will be treated confidentially, unless criminal or disciplinary charges follow. Those assurances are essential to the building of trust and confidence in those police members who provide information voluntarily.
3. As to those being investigated, Matters stated that the complaints relate to the individual's 'professionalism and integrity, their professional standing, their reputation, and their capacity to abide by the law'. Further, the fact of an investigation and its outcome were said to 'relate to Victoria Police members' professionalism, integrity and compliance with the law'.
4. Matters' view was that the names of the police members in the Documents in dispute remained confidential and sensitive, even though many years had passed. He referred to concerns about public disclosure of the fact an individual is a police member.
5. He stated that, where police members have been the subject of ESD/PSC investigations and there have been no adverse findings against them, 'the need to protect their identities was even greater, as a matter of fairness to them and to protect them from the risk of unsupported accusations being made public'.
6. Matters gave similar evidence about the importance of members of the public being assured or expecting that their statements or information they provided by other means being kept confidential subject to any later charges being laid. As he put it, that is an essential part of Victoria Police doing its job.
7. Matters relied on Victoria Police policies which, amongst other things, require that contents of internal investigations and associated correspondence 'must remain confidential' and that 'a clear explanation must be given to any complainant/witness of the circumstances where a court may require disclosure of their statement, including that the statement may be used in proceedings against them'. The policies provide that the person about whom the complaint is made is not entitled to receive a copy of the complaint and are not allowed to read the letter or statement of complaint.
8. As to the second limb of section 35(1)(b) of the FOI Act, Matters gave evidence that, where police members give information under coercion, they tend to give only the bare minimum and so resort to coercive powers may stem the free flow of information and so stimy the investigation. He stated that, to establish and maintain such a relationship it is crucial that the investigations are conducted upon assurances and understandings of confidentiality. He said the confidence of members' involvement is required to secure the integrity of the process of investigation.
9. Matters referred to the necessity for Victoria Police to maintain the confidentiality of the identities of and information provided by members of the public. That was said to be necessary to allow Victoria Police to do its job as it relied on members of the public being willing to provide information and make complaints in a frank and candid manner. His evidence was that, unless the public generally has confidence their information will be kept confidential, they may not be willing to provide information which Victoria Police cannot compel them to provide.
10. In cross-examination, Marke asked Matters more questions about the circumstances in which information is gathered or statements are taken and what assurances are offered. He asked about how contents of complaints or allegations are put to individuals when they are being formally interviewed, including with the interview being recorded. In his answers and later in re-examination, Matters confirmed that people who are being interviewed are not given copies of other's statements containing allegations or complaints and the source for those is not disclosed.
11. I have taken that evidence, and that summarised earlier, to be relied on in support of the risk that, if statements or documents containing information provided on a confidential basis are disclosed, others will be deterred from providing statements or evidence of who they are and what they have said is given to the person about whom they complained.

1. Marke's Statement starts with the following:[69]

I already know identities of most if not all the persons and police officers involved in these matters from my own personal knowledge and from information that has been released or provided to me by the Respondent, Victoria Police.

What I am requesting through this review process is the authorised release of information under the provisions of the Freedom of Information Act that relates to me, a victim of many indiscretions at the hands of police officers and persons who have wronged me.

What I do seek is material information about what police officers and persons have said about me, personal matters relating to me, my character, reputation, allegations against me etc which I personally know to be mostly false, misleading hearsay defamatory; etc which is often the result policing failures resulting in false rumours and innuendoes, which is so wrong.

I suspect that much of the information requested is factually untrue and incorrect and I wish to set the records straight to reflect the truth of all matters. The interest I have in this request material is at the highest level possible because all I want is the truth and justice. I seek the requested information for my own purpose in an attempt to right many wrongs. My request cannot be objectionable because I have a proven history of no inappropriate use of any previously released material.

Statements, comments notes and opinions made by police officers in the course of their sworn duty recording their own policing observations and other alleged factual information should never be classified as their own 'personal affairs'.

Victoria Police have consistently avoided to report the truth on many matters. Because Victoria Police have consistently failed to search for and report the truth of matters it seems it is up to FOI Applicants to prove the truth about matters hopefully by setting the records straight.

It is only right, proper and lawful under the FOI Act for Applicants to know what information is held about them by our Government, Premier Cain referred to that in the Second Reading.

It is only when this information if released to an Applicant the Applicant can form a view about the truthfulness and correctness of their own personal information held by Government.

If the information is truthful an Applicant would most likely be accepting of the information. If the information is untruthful and/or incorrect the Applicant has a right to challenge and correct the records this under the provisions of section 39 of the Act.

It is a fact that police and persons have provided false and misleading information about me intentionally in order to cause me much personal harm and to blacken my name. character and reputation, which is wrong.

It is my intention through the power of truth and justice to correct all the Government records which harm my character before I pass on. It is most important to me that the truth must be recorded and available to future generations of my family.

We are here before this Tribunal today because Victoria Police have habitually failed to perform their statutory duty to a required standard. They have failed to search for and report the truth in the four incidents referred to in this hearing. They have failed to conduct proper and thorough investigations. Predetermined intentional inept investigations resulting in no police officer being held to account breeds corruption and misconduct and is of public interest - a travesty of justice, which is not the policing function I knew.

I request the information sought to assist in establishing the truth about certain matters whereby I have been the victim of malfeasance at the hands of corrupt and incompetent members of Victoria Police on three occasions.

...

My long-term mental health continues to suffer until hopefully one day the truth and justice set me free.

1. Marke's Statement refers to his efforts to resolve his disputes with Victoria Police and then sets out his particular concerns about the five parts of his Request. I come to those shortly.
2. Marke's Statement concluded with the following:

There is evidence of repeated concealment of wrongdoing by Victoria Police which, by default encourages corrupt and/or criminal conduct.

There is evidence of misconduct and improper practices in connection with all my complaints.

There is evidence of cover-ups committed by senior police which is reprehensible conduct.

Victoria Police have displayed a consistent attitude of not wanting to search for and identify the truth in all these matters in order to protect the wicked and corrupt actions of dishonest police.

In each incident mentioned there is evidence of Victoria Police contravening 'the rule of law' either by the misconduct of corrupt police officers or premeditated substandard investigative methods designed to cover up police misconduct.

Due to inadequacies in Victoria Police being able to conduct a thorough investigation searching for and reporting the whole truth about matters involving me there is now a great deal of incorrect and misinformation about me held in files referenced to in this case, held by Victoria Police.

It is my human right and section 39 of the FOI Act supports this; I want the incorrect information to be corrected to record the truth of matters.

Section 39 [of the FOI Act] can only be activated when requested information has been released to an Applicant.

It follows then, that it is reasonable in all circumstances and within the powers of the FOI Act to release the requested information to the Applicant.

1. I next summarise Marke's evidence about the five parts to his Request including his concerns about the events which are connected with the Documents and his purpose in seeking them now.[70]

1. In respect of Part 1 which concerns the Sapsford Allegations, Marke describes what occurred as 'a wicked incident almost 20 years ago where fabricated criminal complaints were made against me'.
2. Marke describes concerns he has about changes in the statements the Officer's made and his belief that they contain false and misleading information.
3. Marke asserted that he was in a position to demonstrate on balance to 'an independent competent judicial savvy inquisitor' that the Officers and others involved 'conspired to make false and misleading serious criminal allegations against me, which is a wrongdoing'.
4. In addition to protecting his name and reputation for his family, Marke wishes to correct the record and address his reputation in the community.

1. Marke started by describing his continuing belief that the person he spoke to after the 7:30 Report program was aired had made a false report to Victoria Police. He later referred to her as 'reckless with the truth'. He then described the interactions that led to the report she made about him and the complaint he made about her.
2. He referred to the complaints made being found not to be substantiated and a later instruction he was given not to approach any person (police member or not) who had made a statement to ESD about the allegations against him. He recounted how that instruction was later found to be unlawful, however, by then further damage had already been done to his reputation.
3. Marke referred to the investigation into the person's allegations against him as 'substandard' and one that ought not to have been accepted.
4. He then stated that, because of his 'vast knowledge and experience in investigations and prosecutions', he was in a position to provide sufficient evidence to demonstrate on balance to 'an independent competent judicial savvy inquisitor' that the person 'made a false report to police which is a wrongdoing'. He added that police records 'should record the truth that in fact [the person] made a false report to police'.

1. As summarised earlier, in July 2006 Marke made a formal request to the Chief Commissioner to investigate the conduct of the Officers in the context of the Sapsford Allegations. No investigation was undertaken and Marke considered that the Chief Commissioner breached the 1958 VP Act in failing to do so.
2. Marke's Statement says that 'because of his vast knowledge and experience in investigations and prosecutions' he was in a position to provide sufficient evidence to establish on balance to 'an independent competent judicial savvy inquisitor' that the Chief Commissioner failed to comply with the 1958 VP Act by failing to conduct 'the required mandatory investigation' into his 'serious complaints 'against the Officers and other senior police.

1. Marke's Statement summarised the facts concerning the Bail Justice Application and explained the basis on which he considered that Murphy had defamed his 'character and reputation by making false and dishonest statements' to the HJO after he 'had been deemed to be competent for appointment'.
2. Marke referred to the defamation proceedings he commenced and the settlement reached.
3. He referred to the investigation into his complaints which he described as 'very shabby' and neither a 'thorough' nor 'professional'. He suggested there was 'a smell of police cover-up throughout the investigation.' Having reviewed a redacted version of the final investigation report, Marke considered he could identify many inadequacies in the investigation process. He expressed the opinion that the investigator 'failed to establish the truth and was a willing patty in a police cover-up to protect the wrongdoings of another senior police officer'.
4. He stated that because of his 'vast knowledge and experience in investigations and prosecutions' he was in a position to provide sufficient evidence to establish on balance to 'an independent competent judicial savvy inquisitor' that Murphy 'committed the offence of misconduct in public office, which is a wrongdoing'. He asserted that it is a fact that Murphy breached 'policing duties and the official police complaint file should disclose this truth'.

Part 5 - the aftermath of the Bail Justice Application

1. After describing how the defamation proceeding was commenced and resolved, Marke referred to the PSC investigation into his complaints and the resulting final report.
2. He described the investigation as 'very shabby' and indicated a failure to conduct 'a thorough and professional investigation'. He suggested there was the 'smell of a police cover-up throughout the investigation'. He suggested that a police member of the incorrect rank was assigned the investigation. He suggested that the investigator failed to establish the truth and was also a willing participant in a police misconduct cover up.
3. He then stated that because of his 'vast knowledge and experience in investigation and prosecutions' he was in a position to provide sufficient evidence to establish on balance to 'an independent competent judicial savvy inquisitor' that Murphy breached his privacy and contravened the provisions of the Privacy and Data Protection Act 2014 (Vic) 'which is a wrongdoing'.
4. In his evidence in cross-examination, Marke maintained that Murphy had breached her policing duties in 2014, that her conduct amounted to misconduct in public office and that Victoria Police had failed to conduct a search for truth. He asserted the reason for that was because of the 'brotherhood', senior officers protecting senior officers via a 'woeful investigation' in which there was no search for the truth.
5. As to possible impacts on others if personal affairs information (or information revealing wrongdoing was disclosed, Marke accepted that might cause 'anguish' to some, however, he submitted that more harm than good would come from disclosure as it would put to rest 'beliefs and suspicions which might otherwise continue to fester'.[71]
6. On the overall position, Marke described his as a 'very unique case' and that, after careful deliberation, the evidence ought to weigh in favour of disclosure.[72]

1. In addition to asserting he was already aware of the individual's identities, Marke disputed whether much of the withheld information could fall within personal affairs information given police members' statements and reports were involved. He referred to the difference between police members doing their work and engaging in their professional capacities and matters which are genuinely personal to them.
2. As stated above, Marke had no wish to receive personal information such as contact details and signatures.
3. Marke's May 2025 Submissions listed 19 matters which he asked me to consider under reasonableness. He referred to the age of the Documents and suggested their contents could be regarded as 'innocuous' to everyone but himself. He referred to delays within the Tribunal and suggested that some concessions (such as those applied to sentences, fines and the like during the COVID-19 pandemic) could be applied to this application. He reiterated his many concerns about the information in the Documents and the manner of the ESD/PSC investigations. He suggested that, due to the passing of time, no harm could come to others who may have been 'careless with the truth' if the information was disclosed but that it would help set him free from his many years of suffering. He submitted that, if it was unclear where information was personal affairs information, a narrow interpretation ought to be applied. He noted the fact that he could 'readily ascertain information' by examining previously disclosed information and submitted that made disclosure 'more reasonable'.[73]

1. Marke did not accept the proposition that witness statements taken in the context of ESD/PSC investigations are of their nature confidential or are routinely taken with the requirement that they be kept confidential.
2. Marke's Statement and his oral evidence was based on his experience as a police member and detective. In cross-examination, he referred to having taken 'hundreds and hundreds' of them over time 'in order to determine the truth of matters' but that he had:

Never ever used the premise that they were confidential, sure you wouldn't leave them, leave them lying around the office, or you know taking them home and putting them on the kitchen table or anything like that. They are treated as confidential as a security thing but never as confidential as far as people being able to assess and make judgments about the truthfulness of what it was and the strength of the evidence of the person who made the statement and their reliability and things like that.

1. He then added that he had 'never ever' said to a person he was taking a statement from 'Hey, this is going to be confidential don't you worry about that' because 'the whole purpose of taking a statement in the first place is this search for the truth'. Marke explained that what police and investigators do is gather evidence, often from people who are willing to make statements about what they have seen, heard and know and those people are 'willing to later give the evidence in a court or in civil proceedings if they have to'.
2. Marke then referred to hundreds of statements being released 'by Victoria Police every day of the week' because 'they have to disclose' them.
3. In cross-examination, there were a number of questions directed to the confidentiality of witness statements, particularly those made by police members, with a focus on if and when they are made available to a person complained of.
4. Marke then referred to hundreds of statements being released 'by Victoria Police every day of the week' because 'they have to disclose' them.
5. Marke later stated that, if a person is charged, the statement must be handed over. He was asked if someone was not charged, would he hand over a statement which contained allegations against a person, to the person the subject of the allegations. Marke agreed that the statement would not be disclosed during the investigation stage or if no charges were laid but that the substance of the allegations in the statement may be disclosed as part of the investigation including an interview with the alleged offender.
6. While maintaining his belief that the relevant investigations had been inadequate and failed to find the truth, including about police members who he believed had made false statements, Marke made some relevant concessions.
7. Marke was asked whether he would disclose a statement to a person outside prosecuting authorities if no charges had been laid. After clarifying that the question was referring to a third party unrelated to the investigation, Marke said he would not do so unless required to by law. It was suggested that was the case because the statement was confidential. Marke agreed that you would not disclose them to everyone, such as a journalist or anyone who happened to walk in off the street and say 'I want Joe Blow's statement'.
8. When asked if he had ever told a witness that their statement would be treated in confidence subject to future use in a proceeding, Marke said he had never used those words and there was no requirement to use those words. He stated that he would say 'I'm investigating such and such, I believe you might have some information that could help me with that. I'd like to take a statement off you. It is important that what you tell me is the truth about matters because if it is not truthful it will not help me with my investigation.'
9. Marke confirmed he was aware he would have received the statements relevant to the Sapsford Related Allegations had he been charged with a disciplinary or criminal offence. He added that he wanted them so that he can show Victoria Police where the falsities are in the statements. He stated he had asked Victoria Police to sit with him and go through the statements for that purpose since 'day 1'. He said he was the only one who knew the truth about the matters in the statement and was the only one interested in the truth about them. When it was put to Marke that, if he did not agree with content of the statements he would say it was not true, he said 'Well I know the truth'.
10. As to the Post 7:30 Report events, Marke confirmed he had received a range of material about the complaint about his conduct over the years, but he had never received the formal complaint documents. He confirmed he did not know exactly what was said in those documents, but he was aware of the detail of the allegations made about him.
11. Marke's May 2025 Submissions contended that the public interest was against information which disclosed 'iniquity' and that 'promoting transparency and accountability in government agencies is a relevant public interest'.[74]

1. I start with some broad findings about the appropriate approach to categories or kinds of information and documents and whether they are exempt under section 33(1) of the FOI Act. These findings are particularly tailored to this proceeding, taking into account the Request and the surrounding factual context, the previous decisions made about like documents and the large amount of information which has been disclosed to Marke over time.
2. I then make findings about the usual factors to be considered.

Names and personal affairs information of police members and others

1. It is accepted that the names and other identifying information of police members is personal information for the purposes of section 33(1) of the FOI Act even where it arises in a context which shows the police member was acting in a professional rather than personal capacity.[75]
2. In 2020 Marke, I found that, generally speaking, the names of police members below a certain rank were not prima facie exempt where the information concerns their official duties. That extended to circumstances where they expressed opinions and, after analysis, reached conclusions about matters in ESD or like investigations which fell within the scope of their duties.[76] Those conclusions were not the subject of appeal by Victoria Police.
3. I also found there may be circumstances where it would be unreasonable to disclose names of police members where section 35(1)(b) of the FOI Act was not proven to apply but where there is a basis to conclude that information was communicated by individual police members with an expectation of confidentiality. The available evidence may allow inferences about the circumstances to be drawn. If the pre-conditions are met, their names and information which may be regarded as personal affairs information, may be exempt.[77]
4. I took the same approach to information about or provided by members of the public.[78]
5. In Harrison v Victoria Police, I considered the delineation between personal and professional information, finding there were no absolute rules about how to identify where the professional might become personal affairs information within section 33(1) of the FOI Act. I did not accept that there was a binding rule that the concept of 'personal affairs information' will always exclude or include information about a person's professional duties or when they were acting in their professional capacity. Where the information falls will depend on the context for the content and, sometimes, additional information about the person will be highly relevant. I noted that, in some cases, it might be possible to readily conclude that there is no personal element in the document and so section 33(1) might not apply. In another case, whether section 33(1) applies will depend on an analysis of the kind of information plus other surrounding material. In many cases, a decision will need to be made about whether disclosure would be unreasonable.[79]
6. I apply those same principles in this proceeding.

1. In 2020 Marke, my approach was to have regard to what names or other information had previously been disclosed to Marke and what had already been publicly referred to through Court and Tribunal decisions.[80]
2. Previous open disclosure tended to support a finding that disclosure of the same or like information would not be unreasonable. Particularly sensitive information or information (or substantially similar information) previously withheld tended to support a finding that disclosure would be unreasonable. On the point, I accept Victoria Police's submission in this proceeding that the same or similar information contained in a different form of document might impact on the degree of sensitivity.[81]
3. I have adopted the same approach in this matter and add another consideration.
4. As referred to earlier (see [126] above), in 2006 Marke, SM Preuss noted that there is a difference between 'strong suspicions as to the identity of the maker of a statement' and the 'absolute knowledge that possession of the text would give'. In my view, the same may be said of a strong suspicion about what a statement or like document may contain and the absolute knowledge of precisely what and how the author of the document communicated the information.
5. Although SM Preuss' comments arose in the context of the application of the exemption in section 35(1)(b), in my view they also have relevance to the unreasonableness test in section 33(1) of the FOI Act. That is because the way in which a person phrases certain information and the way they contextualise it may go beyond or be materially different from a summary or re-statement written by another person. I accept the submission that, for some documents, the status of a first-hand account may be materially different when it comes to the assessment of claimed exemptions.[82]
6. Consistent with 2020 Marke:[83]
   • If names have been disclosed to Marke previously without any confidentiality obligation or other limit being placed on him, in general their names as they appear in documents before me will be disclosed. There are two provisos: first where the name is linked to other material which is unreasonable to release or where the circumstances in which Marke obtained the documents containing the names is unclear. As to one of Marke's submissions, there is a difference between information not being claimed or found to be exempt under the FOI Act and his personal capacity to ascertain information by examining other documents in light of his personal knowledge. The assessment of whether disclosure is not unreasonable is broader in nature and is specific to the Documents and information in issue;
   • If the personal affairs information in issue is available to the public through decisions of Courts and the Tribunal and some is within Marke's control such that he is able to publish or disclose it as he wishes, that information is more likely to be disclosed; and
   • If the documents contain personal affairs information which concerns only the relevant person and disclosure of that would neither clarify nor add to the information Marke has or seeks, it would usually be unreasonable for that content to be disclosed.

1. I now make specific overarching findings about the Documents in this proceeding.

Do the documents contain personal affairs information?

1. There was no dispute that individual's addresses and other contact details and matters such as police member's identifying numbers are personal affairs information. Marke did not seek that kind of material and nor did he seek information about people that was 'very personal and private to themselves'.[84]
2. There was no dispute that names are within the meaning of personal affairs information and that information which indicated individual's actions and opinions might fall within that descriptor. In this proceeding there was a dispute about whether the actions taken by police members and their opinions are within the meaning of personal affairs information.

1. I next turn to the factors enunciated in 2008 Marke Court of Appeal.

The interest Marke has in the information and the purpose for which access is sought

1. I have summarised above Marke's evidence as to his interest in the Documents in each part of his Request as well as his broader interest.
2. As is apparent from Marke's Statement, he seeks the Documents to assist in him making an application for correction under section 39 of the FOI Act. Marke's May 2025 Submissions explained further that obtaining the Documents in this proceeding and then using them in his section 39 application would assist him in addressing matters such as:
   • Whether police members should investigate alleged misconduct by other police members;
   • A failure to undertake professional investigations leading to failures to establish the truth generally and specifically in his case; and
   • Transparency and accountability in government agencies.
3. I find Marke's purpose in seeking the Documents is to support his endeavours to find the whole of the truth about the events summarised above (including via the correction application) which, I accept have had painful impacts on him and his family.

The nature of the information that would be disclosed

1. The Documents concern the events summarised above, including the various internal investigations into Marke and others. They relate to Marke in that sense, but at times are more focussed on information about others or the views of others.
2. As will become apparent from the discussion of individual Documents, they comprise witness statements (or similar), communications between police members in the context of ESD/PSC investigations and reports prepared following those (both into Marke's conduct and that of others). Other Documents include procedural information.
3. The Documents contain police member's personal affairs information including names, professional roles and their particular involvement in events. As discussed in context, some of the personal information has been disclosed before. Other information has been found to not be unreasonable to disclose because it is more in the nature of the professional information.
4. As foreshadowed earlier, some of the information has particular sensitivity by way of it being a first-hand account and containing the person's own means of expression and their personal opinions about events in which they have been involved.
5. As indicated by the above discussion, I accept that, even where material has been disclosed previously, the form in which it appears in the Document (especially if it is a first-hand account) may place 'a different colour or context' on the information Marke already holds.[85]

The circumstances in which the information was obtained

1. I make findings below about the evidence before me as to whether the information was obtained in confidence (under section 35(1)(b) of the FOI Act). They also apply to this factor.
2. While generalised evidence has been of little assistance, evidence from within the Documents or from other sources (such as previous decisions) has been relevant to my assessment of the reasonableness of disclosure.
3. Where there is actual evidence or the particular circumstances indicate that the personal affairs information was obtained in confidence or with an expectation of confidentiality, I have weighed that as supporting a finding of unreasonableness under section 33(1) of the FOI Act. Where information was volunteered, I have looked at the whole of the circumstances in which it was provided and any sensitivity about those when considering whether disclosure would be unreasonable.

The extent of possible dissemination of the information

1. At [152] above, I accepted that Marke has no history of wide dissemination of personal affairs (or other) information. As stated above, while he intends to use the information in his quest for truth, including by way of applications under section 39 of the FOI Act, I am satisfied it will otherwise remain with him.

The likelihood of the material being information that the person concerned would not wish to have disclosed without consent

1. The evidence about the past known wishes of the people concerned is as summarised above at [82]. I have had regard to that now somewhat dated evidence but have been wary about assuming it is still representative of the person's wishes, or not.
2. I have made my assessment of individual wishes about their personal affairs information accepting Victoria Police's submission that, an absence of information about the individual's views, ought not to be taken to indicate consent.[86]

Whether the information has any current relevance

1. As is apparent, the events which gave rise to the creation of the Documents occurred between nearly 10 and 20 years ago.
2. Victoria Police submitted that, for the purposes of consideration of unreasonableness of disclosure, the age of the information remained relevant and weighed against disclosure given Marke's continuing wish to look into the conduct of various individuals and to prosecute his belief various people have been dishonest or acted improperly.[87]
3. I am not persuaded that the submission is of particular relevance given the statute of limitations for some criminal charges has likely long passed and some, including the Officers, are understood to no longer be police members and so are unlikely to be the subject of disciplinary proceedings.
4. Otherwise, I accept that Victoria Police has a broad policy and practice of keeping confidential information which has not led to criminal or disciplinary charges or otherwise been made generally available within the community. I noted that Marke's evidence coincided with some, if not all, of the evidence from Matters on the issue.
5. Separate from what can be gleaned about the relevance of the information to the people identified around the time the Documents were created, the only other person to whom the information is currently relevant is Marke. I accept his evidence as to his personal reasons for seeking the information and note his ongoing and strong belief that the Documents contain evidence of various forms of wrongdoing.

Whether the public interest would be promoted by release of the information

1. I accept that Marke believes that, in addition to shedding light on what happened to him and the wrongdoing of others, the Documents may be relevant to a wider discussion about the appropriateness of police investigating other police. As I read his submissions,[88] Marke's belief is very specific: it proceeds on the basis that various police members and others have (rather than may have) engaged in misconduct or other improper conduct and that the Documents will confirm that to be true while also revealing the detail of the wrongdoing.
2. I do not accept that his beliefs on those matters mean the broader public interest will be promoted if specific personal affairs information in some of the Documents is disclosed. I make that finding having read the Documents with an eye to this particular consideration.

FINDINGS ON THE OBTAINED IN CONFIDENCE EXEMPTION

1. I start with some broad findings about the appropriate approach to categories or kinds of information and documents and whether they are exempt under section 35(1)(b) of the FOI Act, tailored to this proceeding.

The evidence required to prove the information was communicated in confidence

1. As summarised above, the effect of the evidence was that both parties accepted that some level of confidentiality applies to statements taken from witnesses whether in respect of criminal or disciplinary matters. Their evidence and the Victoria Police procedures are consistent with what was said in XYZ (see [163] above).
2. In broad terms, where there is evidence in witness statements or arising from the circumstances that demonstrate or which allow an inference to be drawn, that the information was provided in confidence, the first limb of section 35(1)(b) of the FOI Act will be met. That will be the case even if the maker of the statement was aware it may be relied on later if criminal or disciplinary charges are laid.
3. Where there is no such evidence about the circumstances in which information was communicated, policies or expectations cannot demonstrate that the limb is met.

Would disclosure be contrary to the public interest?

1. As is the case for the first limb of section 35(1)(b) of the FOI Act, in order to satisfy the second limb of section 35(1)(b) of the Act, Victoria Police must demonstrate that its ability to obtain similar information in future would be impaired by disclosure of the specific Document (or information contained therein).
2. Noting the findings in 2020 Marke[89] and in XYZ[90], together with Matter's evidence before me,[91] I accept as a general proposition his evidence that members of the general community would be less likely to provide information to those investigating police members if they believed the information might later be released to the targets of the investigation or disseminated even more widely.

1. In 2020 Marke, I found that, where information found to be exempt under section 35(1)(b) was quoted or summarised in another document, it was also exempt under section 35(1)(b), despite being contained in a different format.[92]
2. That is consistent with SM Megay's description of how exempt documents do not lose their character by the passing of time (see [127] above). I consider those observations can equally apply where such information is quoted or summarised in a way that means the substance of the information is included in the new document.

1. Much of the Victoria Police's evidence was expressions of Matters' opinions, based on his long experience, of how information about complaints about possible police member misconduct is gathered and treated.
2. The only direct evidence about the circumstances in which the various Documents were created, including as to actual assurances of confidentiality being given, was contained in some Documents and in the evidence relied on in respect of the section 53A notices. I have given information of that kind weight for the purposes of the specific Document and any which is closely related.
3. In the case of the Documents before me, no criminal charges were laid against any of the people about whom Marke made allegations. No disciplinary charges were laid against Marke, the Officers or Murphy. As a result, the in-confidence nature of the statement may be regarded as intact where there is evidence that the statement or information was in fact given in confidence.
4. In his final May 2025 Submissions, Marke submitted his evidence ought to be given more weight because he had provided truthful, contemporaneous, first-hand evidence about matters which had not been challenged by Victoria Police. Those submissions were made in the context of submissions about the truthfulness of what was said in the Documents and what he described as 'the alleged grey corruption where police do not act with the integrity and lawfulness our community demands'.[93]
5. While I have had regard to Marke's evidence and submissions about what he believes the Documents contain and the reliability of what has been said and done in the past, my task is to assess whether the exemptions apply rather than undertake an inquiry into the facts.
6. Otherwise, consistent with Victorian law and having regard to the remarks and observations in Bachelard, I have treated evidence focussed on Victoria Police's attitudes to, concerns about and treatment of information which was said to be confidential, with caution.
7. I have taken the same approach in respect of the second limb of section 35(1)(b) of the FOI Act. While I readily accept that history shows that the claimed exemption has been upheld in respect of similar documents to those before me, as referred to earlier, that was the subject of specific evidence (see [166] above). So, I have given some weight to Matters' evidence and opinions on the point, mindful of the actual circumstances in which the information was obtained when deciding whether Victoria Police has discharged its onus in respect of the Documents where section 35(1)(b) has been claimed.
8. As will become apparent, I have found the exemption in section 35(1)(b) of the FOI Act proven for one Document where the information in that Document has previously been found to be exempt. The past finding has also led me to make a finding of unreasonableness under section 33(1) where the information is personal affairs information. For some of the Documents there was evidence contained in the Documents themselves which reveal those circumstances.

1. It is convenient to record here that Marke's April 2025 Submissions posed a number of questions about the Documents, such as whether the statements were signed, whether they had been sworn as true, whether they (or other documents) were attachments and whether they contained reports or notes made in a professional capacity. For many Marke noted that the in- confidence exemption under section 35(1)(b) of the FOI Act was not claimed. I have had regard to those questions as relevant.
2. Marke's April 2025 Submissions also asserted that various Documents most likely contained 'false and misleading information' relating to his personal affairs and that it was therefore reasonable that they be released.[94] That bald statement does not provide an answer to the questions I have considered under sections 33(1) and 35(1)(b) of the FOI Act. I have, however, been mindful of Marke's beliefs about the various individuals he considers have been engaged in wrongdoing, when considering whether disclosure would be unreasonable or contrary to any relevant public interest.
3. Where I have found additional information is to be disclosed, it is described in Attachment A.

1. In his Statement, Matters described Document 2 as an email chain of 21 May 2007 which relates to members' involvement in ESD investigations. Victoria Police relies on the exemption in section 33(1) for it being withheld in full. I note the 'chain' contains two emails.
2. There is no question that the emails contain personal affairs information about police members. The focus of Document 2 is on matters concerning other police members and ESD's processes.
3. While the information in Document 2 has some connection to Marke, that is not sufficient to demonstrate it is not unreasonable to disclose (see [149] above).
4. As to the processes, they are administrative in nature and do not concern Marke.
5. The processes and some of the more substantive content does not appear to be known to all of the police members mentioned, in particular those who are the subject of the more substantive content.
6. There is information which may be described as sensitive to and about some police members, including as to their role in the ESD process and outcomes.
7. Having regard to the substantive content of the Document, I am satisfied that it would be unreasonable to release it to any person other than those police members about whom it relates.
8. It is apparent from the emails that they were exchanged in the authors' professional capacities. I find it would not be unreasonable to disclose those names and titles (noting Marke does not seek contact information) and the dates of the emails.
9. I find those names are not exempt under section 33(1) of the FOI Act and are to be disclosed.

1. Matters described Document 4 as a three page report from ESD dated 17 January 2007. It describes the names, ranks, signature of persons, their involvement in an ESD investigation and matters arising or obtained in the course of an ESD investigation.
2. Document 4 has been released to Marke in part and Victoria Police relies on section 33(1) in respect of content that has been withheld.
3. The disclosed information shows that the relevant ESD investigation was that instigated by Marke's complaints about the Officers in the context of the Sapsford Related Allegations.

1. Sapsford's name has been redacted in two places on page 2. Consistent with my decision in 2020 Marke, I find it is not unreasonable to disclose the name.
2. Marke's name has been redacted in one place. That appears to be an error and it is clearly not unreasonable for the name to be disclosed.
3. I find Sapsford and Marke's names are not exempt and are to be disclosed wherever they appear.

Names which are withheld where surrounding circumstances have been released

1. As summarised earlier (see from [184]), in his Statement, in the context of evidence concerning the exemption in section 35(1)(b) of the FOI Act, Matters stated that he had no reason to consider that the members of Victoria Police assisting in ESD investigations did so other than on the expectation that their involvement in those investigations would be kept confidential. He then stated that the names of people in the Documents remain 'confidential and sensitive, even after so many years have now passed' including because it would reveal they are or were police officers.
2. In so far as that evidence has some bearing on the reasonableness test under section 33(1), I do not accept it in respect of police members where their names have been disclosed publicly in the past in connection with their involvement in the Sapsford Related Allegations. While I accept that a long time has passed since those events were in the public arena, anyone interested in the events can readily search for information and know the identities of some police members.
3. The separate fact they were police members cannot be regarded as requiring the protection of their privacy where their names have been disclosed over time. There was no specific evidence given pointing to any risk to the security of police members whether individually or more broadly if they were connected to the Sapsford Related Allegations.
4. I find it is not unreasonable for the names of certain police members to be disclosed and so they are not exempt under section 33(1) of the FOI Act.

Document 4 content which is related to the content of Documents 5 and 6

1. Four substantive sections of Document 4 have been redacted. Victoria Police relies on section 33(1) of the FOI Act for those.
2. While not necessarily direct quotes, I am satisfied that the whole of the other redacted content in Document 4 is closely related to the content of Documents 5 and 6.
3. As discussed above in respect of the repeated requests, those two Documents were found to be exempt in 2006 Marke, albeit under section 35(1)(b) of the FOI Act (see from [112] above). In making findings on four documents under section 35(1)(b) of the FOI Act, there was reference to police officers and third parties being told that their statements to ESD would be kept confidential unless there were disciplinary or criminal proceedings.[95]
4. In my view, even though a different exemption is claimed in this proceeding, it remains the case that the source material has already been found to be exempt and to make any other finding would undermine the earlier decision and, in that sense, be unreasonable to disclose under section 33(1) of the FOI Act.
5. In addition, because the content goes more to matters relating to the named people's circumstances rather than those of Marke, I consider it would be unreasonable under section 33(1) of the FOI Act to release that comparable content.
6. I make those finding notwithstanding the fact Marke has the Summary Tables referred to earlier. I agree with Victoria Police's submission that, where the provenance of those Tables held by Marke is somewhat unclear, it ought not to be assumed that Marke in fact knows the same information or that it would not be unreasonable to release the information without restriction.
7. I find all of the other redactions in Document 4 are exempt under section 33(1) of the FOI Act.

1. Matters described Document 7 as a letter from the Office of Police Integrity (OPI) to an Inspector, ESD, dated 4 January 2007. The author is identified as 'Manager Complaints' but their name and signature have been withheld. The redacted information describes the involvement of named police members in ESD and OPI investigations. Victoria Police claimed the redacted information was exempt under section 33(1) of the FOI Act.

1. For the same reasons as given earlier, I find that Sapsford's name is not exempt and is to be disclosed wherever it appears in Document 7.

1. It is apparent from the letter that it was written in the author's professional capacity. I find it would not be unreasonable to disclose that person's name (noting Marke does not seek the signature).
2. I find the author's name is not exempt under section 33(1) of the FOI Act.

Names which are withheld where surrounding circumstances have been released

1. Like parts of Document 4, the names of police members appear in the Document within context that identifies them in combination with existing publicly available information.
2. For the same reasons as given in respect of Document 4, it is not unreasonable for those names to be released and so I find those names are not exempt.

1. Victoria Police marked an alleged victim's name as exempt under section 33(1) together with some further information about that person on page 4, paragraph 1.
2. It is my understanding that the alleged victim's name has not been publicly disclosed at any time, including on the 7:30 Report concerning Sapsford. Alleged victim's names and other information of a similar kind was included in the category 2 of the sampled documents considered in 2006 Marke.
3. Having regard to the extremely personal nature of the allegations made against Sapsford, the fact those allegations and the names and circumstances of the alleged victims have not been aired publicly and given the decision in 2006 Marke, it would be unreasonable to release the alleged victim's name and other personal affairs information about them. As a result, those parts of Document 7 are exempt under section 33(1) of the FOI Act.

Document 7 content which is related to the content of Documents 5 and 6

1. As was the case for Document 4, some of the redacted information concerns other police members. For the same reasons as given in respect of Document 4 above, the information is related to that contained in Documents 5 and 6 and so it would be unreasonable to disclose that content, albeit in a different format. Further, I am satisfied that information of that kind is exempt because it is primarily personal affairs information of those officers and it would be unreasonable to disclose it to Marke.
2. On that basis, I find the substantive redactions in pages 2, 3 and 4 in Document 7 are exempt under section 33 (1) of the FOI Act.

1. Matter's Statement says that Document 23 is a letter to a complainant dated 28 April 2006. While originally denied in full, partial release was granted and all that has now been withheld is the name and address details of the addressee. Victoria Police says those details are exempt under section 33(1) of the FOI Act.
2. The context for Document 23 relates to the Post 7:30 Report Events and complaints about Marke's conduct. As stated earlier, Victoria Police concluded that the complaint about Marke had not been substantiated.
3. Given Marke does not seek contact information about individuals, that aspect of the Document does not require consideration. That leaves only the name of the addressee of the letter.
4. Although it is highly likely that Marke knows the name of the addressee given the disclosed content in Document 23 and his personal knowledge, that does not of itself mean it is reasonable to disclose the name of that person under the FOI Act. I am satisfied that Marke will not approach the addressee of the letter and seeks the redacted information to pursue his own interests and not wider distribution. Those matters suggest disclosure is not unreasonable.
5. However, as discussed in the context of the section 53A process, the relevant person has expressed concern in the past about their personal affairs information being disclosed to Marke. There are indications in other Documents that those concerns were strongly felt at the time Document 23 was created.
6. I am unwilling to presume that time may have lessened or eliminated those concerns given, since 2007, Marke has continued to seek information about the person and related matters and does so again in this proceeding.
7. In the interests of consistency with the decision in 2006 Marke (where a document containing the addressee's name was found to be exempt under section 35(1)(b) of the FOI Act) and noting that the name of the relevant addressee was not disclosed then or, as far as I can tell, at any time since, it is appropriate to find it exempt under section 33(1) of the FOI Act.
8. I find the name in Document 23 is exempt under section 33(1) of the FOI Act.

1. Matters stated that Document 29 is an internal memorandum dated 27 March 2006. It has been denied in part. It contains the name of a complainant and a signature of the author of the memorandum (the latter not being sought by Marke). It contains information and opinions about Victoria Police member(s). The withheld information in the Document is said to be exempt under section 33(1) of the FOI Act.
2. Document 29 has been released to Marke in part. The released content shows that, in around March 2006, Marke alleged that a person had committed the offence of making a false report to police. Victoria Police concluded no such offence had been committed.
3. For the same reasons as given above in respect of Document 23, even though Marke may know the name of the person, it is unreasonable to now disclose that and more so in the context of the fact Marke was making a criminal allegation against the person which has not been the subject of any further action.
4. The other more substantive redacted information in Document 29 concerns a police officer's conduct and not that of Marke. Given Marke is aware of the outcome of his allegation against the person and that information does not touch on his conduct, I consider it to be unreasonable to release it. The reasons for that include those expressed in respect of Document 4.
5. I find all the withheld information in Document 29 is exempt under section 33(1) of the FOI Act.

1. Matters stated that Document 34 is a memorandum dated 9 March 2006. It has been denied in part. It contains the name of a complainant and the signature of the author of the memorandum (the latter not being sought by Marke). It describes information about the author. The withheld information is said to be exempt under section 33(1) of the FOI Act.
2. For the same reasons as given above in respect of Document 23, even though Marke may know the name of the person, it is unreasonable to now disclose that and more so in the context of the fact Marke was making a criminal allegation against the person which has not been the subject of any further action.
3. The other more substantive redacted information in Document 34 concerns the conduct of another police member. Given Marke is aware of the outcome of his allegation against the person and that part of the information does not touch on his conduct, I consider it to be unreasonable to release it. The reasons for that include those expressed in respect of Document 4.
4. I find all the withheld information in Document 34 is exempt under section 33(1) of the FOI Act.

1. Matters describes Document 44 as a memorandum dated 24 November 2005.
2. While Document 44 was initially withheld in full, an updated version was provided to Marke during this proceeding. The vast majority of the document has now been released. As referred to earlier (see [160] above), in light of the further release, I proceed on the basis that Victoria Police relies only on section 33(1) of the FOI Act.[96]
3. The disclosed content of Document 44 would readily inform Marke as to the name which has been redacted. The description of the circumstances of the interactions between Marke and the named person as has been disclosed to Marke are well known to him and were referred to in 2007 Marke.
4. As I found in respect of Document 23, disclosing the name to him via the FOI Act would be inconsistent with the fact the person's name has been previously found to be exempt under section 35(1)(b) of the FOI Act in 2006 Marke.
5. I find the withheld information in Document 44 is also exempt under section 33(1).

1. Document 45 is one the documents which was not finally ruled on as a result of Marke 2007 being set aside and the application to the Tribunal then being withdrawn.
2. Matters describes Document 45 as a letter to a complainant dated 13 October 2004. It is said to contain identifying information and contact details. It is also said to describe interactions and communications as between the complainant and ESD. It has been denied in full and is said to be exempt under section 33(1) of the FOI Act.
3. I am satisfied that Document 45 is exempt in full under section 33(1) of the FOI Act. It is best characterised as concerning the complainant and matters related to them. As indicated in 2007 Marke, the complainant did not at that time wish to have personal affairs information disclosed to Marke.[97] As discussed in the context of Document 23, I am unable to now make a finding about the complainant's current views and am unwilling to presume those concerns are no longer current.
4. While I am reluctant to make assumptions about what is or is not of interest to Marke, the content would not reveal anything more about the processes than he already knows from his personal and long professional experience. The way in which the processes are described would reveal information that is either associated with or of itself exempt information.
5. I am satisfied it would be unreasonable to disclose Document 45 and so it is exempt in full under section 33(1) of the FOI Act.
6. I am satisfied that it would not be feasible to edit Document 45 in order to make it not exempt because any disclosure would reveal exempt information.

1. Document 48 is described by Matters as a letter to a complainant dated 11 April 2005. While it was originally denied in full, during the proceeding a partial release was made. The only relevant withheld information is the name of the addressee and the name of the author of the letter (given Marke does not seek contact information or signatures). Victoria Police relies on section 33(1) for the withheld information.
2. For the same reasons as given in respect of Document 23, I find the name of the addressee is exempt under section 33(1) of the FOI Act.
3. As discussed in respect of Document 7 above, I find it is not unreasonable to disclose the name of the person who was undertaking their professional duties when writing the letter.
4. Accordingly, I find that name is not exempt under section 33(1) of the FOI Act.

1. Part of Document 50 was in dispute in 2007 Marke (being part of document 6).
2. Matters described Document 50 as a Victoria Police 'Complaint/Incident Form' dated 7 April 2005. It has been denied in part. It is claimed to be exempt under sections 33(1) and 35(1)(b) of the FOI Act.
3. Through the hearing process in this matter, Document 50 was released to Marke in part with the withheld content said to be exempt under sections 33(1) and 35(1)(b) of the FOI Act.
4. In its written submissions, Victoria Police described Document 50 as in the nature of a witness statement and as a document that discloses 'the views, recollections and state of mind' of the person and the 'fact of the making of the statement and their willingness or otherwise to be involved in the investigations and the extent to which they have been prepared to be involved in those investigations'.[98]
5. On review of the withheld information, I am satisfied it was obtained in confidence. I am further satisfied that disclosure of the information which is like that included in a witness statement would be contrary to the public interest under section 35(1)(b). I consider the withheld information falls squarely within information Bell J described in XYZ as being 'indispensable to the integrity and effectiveness' of an ESD/PSC investigation. Irrespective of outcome and whether the information was required to be produced later in a criminal or disciplinary proceeding, I accept that members of the general community would be less likely to provide information to those investigating the police if they believed the information might later be released to the targets of the investigation or disseminated even more widely.[99]
6. Because the withheld information is a first-hand account and is to be regarded as different from subsequent summaries, taken together with the matters relevant to section 35(1)(b), I find it would be unreasonable for it to be disclosed under section 33(1) of the FOI Act.
7. I find the withheld information in Document 50 is exempt under sections 33(1) and 35(1)(b) of the FOI Act.

1. Document 51 was also in dispute in 2007 Marke (being documents 2 to 5).
2. Matters described Document 51 as correspondence from a complainant. Document 51 is said to be exempt in full under sections 33(1) and 35(1)(b) of the FOI Act.
3. Document 51 was one which was said to include information provided by a complainant. I understand Victoria Police considered it to be similar in that way to Document 50.
4. Having reviewed the Document, for the same reasons as given in respect of Document 50, I find Document 51 is exempt in full under sections 33(1) and 35(1)(b) of the FOI Act. While Document 51 includes what might be regarded as procedural information, the way in which that information is set out would reveal information that is either associated with or of itself exempt information.
5. For the same reasons as given in respect of Document 45, I am satisfied that Document 51 cannot be edited so as to make it not exempt.

1. Matters stated that Document 56 is an Issues Cover Sheet of 26 October 2004. It has been denied in part to Marke. It contains information detailing the ESD complaint investigation into Marke arising from the Sapsford Related Allegations.
2. During the proceeding, further content was disclosed to Marke. The remaining redactions are said to be exempt under section 33(1) of the FOI Act.
3. One of the redacted names in Document 56 is that of Sapsford. It is to be disclosed.
4. The names of the police members referred to in Document 4 are redacted in places with all surrounding content having already been disclosed. The names where they appear in that way are to be released, with police member numbers redacted given they are not sought by Marke.
5. Some information about Marke's alleged conduct in respect of the Sapsford Related Allegations has been redacted on page 1 of Document 56. That brief reference concerns the police member's professional duties and is otherwise a matter of fact rather than anything personal such that it is not unreasonable for it to be disclosed. I find that information is not exempt under section 33(1) of the FOI Act.
6. Document 56 contains information personal to police officers of the same kind as discussed in respect of Document 2, that is it concerns them rather than Marke. For the same reasons as given above in the context of Document 2, I find that kind of information in Document 56 is exempt under section 33(1) of the FOI Act.
7. I find that, all other redactions in Document 56 are exempt under section 33(1) of the FOI Act.

1. Matters describes Document 58-1 as a document about witnesses in the investigation into allegations against Sapsford. It has been denied in full under sections 33(1) and 35(1)(b) of the FOI Act.
2. The entirety of Document 58-1 contains information of the kind found to be exempt under section 35(1)(b) of the FOI Act in 2006 Marke (under category 2). There was evidence in 2006 Marke that at least some of the persons referred to in Document 58-1 were informed that what they said would be held confidentially unless there were disciplinary or criminal proceedings.
3. Because the information has been previously found to be exempt under section 35(1)(b) of the FOI Act and because, the information has not led to any charges or further formal action, it is appropriate that it retain its confidential status.
4. In those circumstances, I also find that the whole of Document 58-1 is exempt under section 33(1) of the FOI Act as I find that disclosure would be unreasonable because it contains a large amount of personal affairs information which has been previously found to be confidential in nature.
5. I find Document 58-1 is exempt in full under sections 33(1) and 35(1)(b) of the FOI Act.
6. I am satisfied that Document 58-1 cannot be edited such that it would not be exempt.

1. Matters stated that Document 58-2 is unrelated to Document 58-1. It is a witness statement of a police member. It has been denied in full under section 33(1) of the FOI Act (and not under section 35(1)(b)).
2. On my comparison of Document 58-2 with documents 1, 2 and 9 in 2020 Marke some of the information in Document 58-2 has already been disclosed to Marke (category 1 information). Some of the names in Document 58-2 have also been previously disclosed. While the format of the relevant 2020 Marke documents is different, information of that kind refers to the witnesses' professional duties and recounts facts rather than opinions or matters of a personal nature. There is other information which identifies other police members who have been publicly identified in the past or disclosed under the FOI Act. It is not the same as statements which are in effect first-hand accounts of matters the subject of an investigation. In the circumstances I see no basis on which it could be said that the category 1 information contained in Document 58-1 is exempt under section 33(1) of the FOI Act.
3. I find, what I term category 1 information in Document 58-2, is not exempt under section 33(1) of the FOI Act.
4. When reviewing Document 58-2 it occurred to me that parts of it may have been the same as documents considered by Judge Jenkins in Marke v Department of Justice and Regulation,[100] a case which concerned documents held by that Department relating to Marke's Bail Justice Application. As Victoria Police did not raise that issue before me and it carries the onus of proof, I took the question no further.
5. On my reading of the information other than that which I have called category 1 information (category 2 information), it appeared to be the source for information which had been disclosed to Marke in 2020 Marke. It recounts steps taken by relevant people in connection with the Bail Justice Application. Those steps were undertaken by the named people in their professional capacities and their names have been disclosed in the past. In those circumstances and where the exemption in section 35(1)(b) was not claimed, I find it is not unreasonable for the category 2 information to be disclosed, withholding contact information and the like as that is not sought by Marke.
6. The statement was signed under a standard form of words which are to be disclosed with the name (but not the signature). It was witnessed by a police member who appears to be otherwise entirely uninvolved in the matter. Given the age of the Document and the incidental nature of that police member's involvement, I find it would be unreasonable to disclose that name and so it is exempt under section 33(1) of the FOI Act. Consistent with Marke's usual position, the signature on the final page and police member numbers are also to be redacted.
7. Subject to the above redactions, I find Document 58-2 is not exempt under section 33(1) of the FOI Act.

1. Matters described Document 59 (separate from the attachment) as a witness statement of a police member and it has been withheld in full. Victoria Police relies on section 33(1) of the FOI Act (and not section 35(1)(b) of the FOI Act).
2. Document 59 contains a first-hand account and it includes information relating to the police member's professional role and duties as well as the thinking that went into the formulation of opinions on a range of matters.
3. The fact of the statement having been made and the name of the maker of the statement has been disclosed through disclosed material in 2020 Marke and its description therein.
4. Some of the content in Document 59 was contained in a different form in documents in 2020 Marke. I found the relevant information was exempt under section 33(1) of the FOI Act. The exempt content related to the particular police member who made the Document 59 statement and others whose names and personal affairs information I found was exempt under section 33(1) of the FOI Act.
5. As Document 59 is closely connected to some of the information which I found was exempt, it would be inconsistent with and undermine the 2020 Marke decision to release that kind of information now, particularly where it is the first-hand account.
6. Document 59 contains information which is about Marke. It is intertwined with the maker of the statement's personal views and analysis of information relevant to a PSC investigation. I find that kind of information is exempt under section 33(1) of the FOI Act.
7. I noted McDonald J's discussion in Bachelard as to when editing under section 22 of the Cth FOI Act (broadly speaking, the equivalent of section 25 of the FOI Act) is appropriate. His Honour found that an appeal ground concerning the availability of editing was proven in a limited respect. His Honour said:[101]

Disclosure of even a heavily redacted version of each of the Statements might well have been of interest to Mr Bachelard. It would have provided an indication of the length of each of the Statements, as well as information about the understanding on which the Statements had been provided.

1. Given the regularity with which Victoria Police has provided redacted documents to Marke, including in this proceeding, there is nothing before me to indicate that it would not be practicable for the purposes of section 25 of the FOI Act for a redacted version to be produced.
2. I find it would be unreasonable to release certain personal affairs information in Document 59 so as to maintain the application of that exemption in 2020 Marke and because of its nature as a first-hand account but find other information is either not personal affairs information or it would not be unreasonable to disclose it under section 33(1) of the FOI Act.

1. Matters stated that Document 60 is a record of a conversation between two members of Victoria Police on 27 January 2015, provided for the purposes of the ESD investigation concerning Marke's Bail Justice Application. It has been denied in full under section 33(1) of the FOI Act (and not under section 35(1)(b) of the FOI Act).
2. I have compared the content of Document 60 with information disclosed in documents in 2020 Marke. While expressed in slightly different ways, the vast majority of the content has already been released to Marke. While the timing of the discussion recorded may not have been known to Marke before, that is not of itself confidential in any way nor relevant to section 33(1) of the FOI Act.
3. With the exception of the second dot point, what is recorded is not personal opinion or information unrelated to the participants' professional responsibilities. It is a factual recitation of what was covered in the discussion which has already been disclosed.
4. The one dot point which may be regarded as personal information is not particularly sensitive but it is fair to say that Marke is not the focus of what is recorded. Even though the discussion recorded occurred more than 10 years ago, I consider that, for the purposes of section 33(1) of the FOI Act, it would be unreasonable for that minor and somewhat innocuous information to be disclosed.
5. I find that, other than the second dot point, Document 60 is not exempt.

1. Matters stated that Document 63 is a record of a conversation between a member of Victoria Police and a third party in the course of an investigation. It has been denied in full under section 33(1) of the FOI Act. It was said to contain information provided for the purposes of an investigation.
2. Having reviewed Document 63, I am satisfied that the content of the discussion is of the same kind as I found was exempt in 2020 Marke as it contains personal information about the third party and information I was satisfied the third party made apparent they wished to be treated as confidential.[102]
3. I am also satisfied from the content of Document 63 itself that the third party would not want any of the content in Document 63 disclosed.
4. I find Document 63 is exempt in full under section 33(1) of the FOI Act.
5. I am satisfied that it cannot be edited such that it would not be exempt.

1. Matters described Document 64 as an email chain of 27 January 2015. It was denied in part, relying on section 33(1) of the FOI Act. It is said to contain the names, positions and telephone numbers of police members as well as the contents of information provided in a statement to ESD (or PSC).
2. The name of the relevant police officer was the subject of findings in 2020 Marke. I see nothing in Document 64 that changes my view that the name is not exempt and note the relationship between that person and the disclosed information is apparent from material disclosed in Document 71 in this proceeding. I find that name is not exempt and is to be disclosed.
3. A small amount of information in the email's subject lines has been redacted. I am satisfied that the disclosed content contextualises that redaction and it is not exempt.
4. I find that a small part of the substantive content that has been withheld is not exempt as it has been disclosed previously and it would not be unreasonable to disclose it for the purposes of section 33(1) of the FOI Act.
5. As for the remainder of the withheld content, for the same reasons as given in respect of Document 63, I am satisfied that it is exempt under section 33(1), because it would be contrary to previous findings in 2020 Marke about the same kind of information and so it would be unreasonable for it to be disclosed.
6. I find Document 64 is exempt under section 33(1) of the FOI Act except for the redacted content in the subject lines, the name of the person with whom the emails were exchanged and the first two sentences in the substantive content.

1. Matters described Document 72 as a file note dated 20 June 2014. It has been denied in part relying on section 33(1) of the FOI Act. It is said to contain the name of an officer of an agency other than Victoria Police and the name, signature and contact details of the author of the document (noting Marke does not seek signature or contact details).
2. There are two names which have been withheld in Document 72. One is the same as one of those withheld in Document 64. For the same reasons as given above, I find that name is not exempt.
3. The second name was the subject of my decision in 2020 Marke. I found it was not exempt. The name has been released by Victoria Police in part of Document 59 in this proceeding. I can see nothing in Document 72 which calls for a different approach.
4. I find that the names of the author of Document 72 and that of the third party are not exempt under section 33(1) of the FOI Act. Accordingly, the Document is to be disclosed with contact details and the signature redacted.

1. Matters described Document 77 as a statement of a police member which has been denied in full. Victoria Police relies on section 33(1) of the FOI Act (and not section 35(1)(b) of the FOI Act).
2. Document 77 contains a first-hand account and it includes information relating to the police member's professional role and duties as well as the thinking that went into the formulation of opinions on a range of matters.
3. The fact of the statement having been made and the name of the maker of the statement has been disclosed through a combination of disclosed material in 2020 Marke and its description therein (document 9).
4. Some of the content in Document 77 was contained in a different form in documents in 2020 Marke (documents 1 and 9). I found the relevant information in those other documents was exempt under section 33(1) of the FOI Act. The exempt content related to the particular police member who made the Document 77 statement and others whose names and personal affairs information I found was exempt under section 33(1) of the FOI Act.
5. As Document 77 is closely connected to some of the information which I found was exempt, it would be inconsistent with and undermine the 2020 Marke decision to release that kind of information now, particularly where it is the first-hand account.
6. Document 77 contains information which is about Marke. It is intertwined with the maker of the statement's personal views on the information relevant to a PSC investigation. I find that kind of information is exempt under section 33(1) of the FOI Act.
7. Some of the other information in Document 77 is factual and cannot be regarded as personal affairs information. Some of the associated opinions about that factual information has been disclosed before.
8. I find it would be unreasonable to release certain personal affairs information in Document 77 so as to maintain the application of that exemption in 2020 Marke but find other information is either not personal affairs information or it would not be unreasonable to disclose it under section 33(1) of the FOI Act.
9. As discussed above in respect of McDonald J's discussion of editing in Bachelard, I find it is practicable for the purposes of section 25 of the FOI Act for a redacted version to be produced.

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.

1. To release the material based on section 50(4), the Tribunal must first decide that, as a matter of law, the material is capable of supporting the formation of an opinion that the public interest requires that access be given. Next, the Tribunal must actually form the opinion that the public interest requires that access be given. That is an evaluative and essentially factual judgment. Relevant to that task is the understanding that the word 'requires' in section 50(4) directs the Tribunal to identify a high-threshold public interest before the power can be exercised. It is not enough that access to the documents could be justified in the public interest or that the public might be interested in access. The word 'requires' means demands, not as a matter of preference, but necessity.[103] The term 'public interest' is not defined in the FOI Act and is not capable of being given a fixed and precise meaning.
2. Section 50(4) does not apply to section 33(1).
3. As I have concluded that Documents 50, 51 or 58-1 (or parts thereof) are exempt under section 35(1)(b) and are also exempt under section 33(1) of the FOI Act, strictly there is no basis on which to consider whether the public interest override is to be applied.
4. Even if it was necessary to consider section 50(4) of the FOI Act, I could not be satisfied that Documents 50, 51 or 58-1 'require' release.
5. As noted earlier, Marke's submissions on the public interest under section 50(4) of the FOI Act[104] proceeded on the basis that all of the wrongdoing he alleged was as good as proven. I accept that Marke might see a disconnect between the apologies Marke received from the ABC and Chief Commissioner Paton and Victoria Police's claims for exemption under the FOI Act for related information. That does not prove his allegations are true. As I stated earlier, my review of the relevant Documents does not expose the 'corruption and maladministration' or 'illegality, impropriety and wrongdoing' he alleges.
6. Neither those matters nor the fact Marke considers that the various ESD investigations were inadequate or poorly conducted does not demonstrate the kind of 'clearing of the air' or righting of injustice referred to in previous cases.[105]
7. As stated earlier, while accepting Marke has a deep seated and personal reason for seeking access to the Documents, that is personal to him and him alone.

Noting contact information is not sought, the names and titles of the sender and recipient of the emails and the email dates are to be disclosed.

Document 4 is to be released with the following additional information disclosed:

The names of the police members referred to in paragraphs 1, 2 and in the description of allegation 3

The names of the police members where they appear in the description of allegations 4 and 5

The names of the police members referred to in paragraph 5

Noting signatures are not sought, Document 7 is to be released with the following additional information disclosed:

The names of the police members referred to in paragraphs 1, 2 and 4 (first point)

The names of the police members referred to in points 2 and 3.

The names of the police members referred to in paragraph 4

The names of the police members referred to in paragraph 6 (first two lines)

The name of the police member referred to in paragraph 1, line 9

The names of the police members referred to in paragraph 2 (lines 8 and 9) and in paragraph 5 (lines 2 and 3)

The names of the police members referred to in paragraph 1 (line 4) and in paragraph 3 (lines 1 and 2)

Noting that contact information and signatures are not sought, Document 48 is to be released with the name of the author disclosed.

Noting that signatures and police identifying numbers are not sought, Document 56 is to be released with the following additional information disclosed:

Release all of the content which is currently redacted in paragraph 3

Release the name of the police members referred to in paragraph 6 (lines 2 and 3)

Noting contact information, signatures and police member numbers are not sought, Document 58-2 is exempt in part and is to be released with the following information disclosed:

The headings and all of the information contained in paragraphs 1 to 4.

All content, including that in the boxes and names and titles

The two sets of words above the signature of the person who made the statement and that person's name in both places

The words above the signature of the witness of the statement (but not their signature, name, rank or police number)

Noting signatures are not sought, Document 59 is exempt in part and is to be released with the following information disclosed:

All headings and footers (including the name and page numbers) in the Document

The standard form heading to the statement including the name but excluding contact information

The names of maker of the statement and the witness and the words above each of their signatures

Document 60 is exempt in part and is to be released with only the second dot point redacted.

Noting contact details are not sought, Document 64 is to be released with the following additional information to be disclosed:

The redacted content in the subject line of the emails

The name of the addressee for the emails sent on 27 January 2015 at 15:33 (at the bottom of the page) and 15:37 (at the top of the page)

The name of the sender of the email sent on 27 January 2015 at 15:37 (in the middle of the page)

The first two sentences in the email sent on 27 January 2015 at 15:37

Noting signatures and contact details are not sought, Document 72 is to be released with the following additional information to be disclosed:

Noting signatures, contact information and police member numbers are not sought, Document 77 is to be released with the following information to be disclosed:

All headings and footers (including the name and page numbers) in the Document

The standard form heading to the statement including the name but excluding contact information

Paragraph 18 from the heading '107 Statutory declarations' and paragraph 19 in full

Paragraph 25 from 'I also draw' in line 11 and then in full

The name of the maker of the statement, the set of words above their second signature and the words above the signature of the witness (but not the name of the witness, their rank or their police number)

[1] In these Reasons definitions are shown through the bolding of names or terms. Italics are used to define cases.

[2] Relying on section 25A(1) of the FOI Act.

[4] FOI Act, sections 50(1)(b) and 49J(2).

[5] Under section 51A of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

[6] Marke v Victoria Police [2006] VCAT 1364 [1]-[17].

[8] Marke v Victoria Police [2007] VCAT 747 [5]-[10].

[9] I record that, in 2007 Marke the background to the matters relating to Sapsford and the ESD investigation into Marke as contained in 2006 Marke [1]-[17] are quoted verbatim.

[12] Marke v Victoria Police [2020] VCAT 557 [5], [28]-[35].

[13] See 2020 Marke [5] for the whole content of the letter.

[14] Marke's written submissions dated 3 August 2022 (including his Statement of Public Interest Grounds) and the further written submissions dated 12 March 2025, 23 April 2025 (attaching a case of interest), 25 April 2025 and 12 May 2025. Victoria Police's written submissions dated 21 April 2022 and the open and confidential submissions dated 16 April 2025. I also reviewed emails sent by the parties including those dated 16 April 2025 (Victoria Police), 23 April 2025 (Marke), 13 May 2025 (Marke) and 22 and 26 May 2025 (Victoria Police).

[17] [2019] VCAT 2018 [53]-[55], footnotes omitted.

[18] Victoria Police's 21 April 2022 written submissions (Victoria Police's April 2022 Submissions) TB 168-185April 2022 Submissions [43].

[21] Akers v Victoria Police [2024] VSC 621.

[22] [2019] VCAT 207.

[23] In 2019 G Marke, one of the issues was whether section 50(6) of the FOI Act, required that the second application for review had been made by the same person as the first. That issue does not arise in this proceeding.

[24] Unreported decision in Z618/2013 given on 14 October 2014 (2014 Marke) [37]-[41].

[25] See the discussion by Senior Member Steele in Hoskin v Department of Education [2005] VCAT 2921 [38] to [44], including as to the effect of Judge Strong's decision in Olexander v Department of Premier and Cabinet [2002] VCAT 497.

[26] Marke v Victoria Police [2007] VSC 522.

[27] Victoria Police v Marke [2008] VSCA 218 (2008 Marke Court of Appeal).

[28] As to the other eight documents, on 6 November 2014, the proceeding was dismissed in respect of the other eight documents when no responses to an administrative mention were received. On 25 February 2015, an application for reinstatement was dismissed.

[29] [2021] VSC 483.

[30] TB 16-26. While uncertain, it may be that the Summary Tables are Document 170 in 2006 Marke - referred to at [20].

[32] Marke's May 2025 Submissions, pages 7 and 8.

[33] Marke's April 2025 Submissions, pages 2 and 3.

[37] See 2020 Marke, Schedule A, page 61.

[38] See 2020 Marke, Schedule A, page 60.

[39] Regarding document 5 in 2020 Marke, see [189] applying section 35(1)(b); and regarding document 1 in 2020 Marke, see [189], [193] and [239] applying sections 33(1) and 35(1)(b).

[40] I record those and other findings in respect of the public interest override were upheld in 2021 Marke Appeal - see [106]-[110].

[41] I record those findings were upheld in 2021 Marke Appeal [94]-[105] regarding section 35(1)(b) and [106]-[110] regarding the public interest override.

[42] Regarding document 5 in 2020 Marke, see [189] applying section 35(1)(b); regarding document 1 in 2020 Marke, see [189], [193] and [239] applying sections 33(1) and 35(1)(b); and regarding document 3b in 2020 Marke, see [182] applying sections 33(1) and 35(1)(b).

[44] Marke v Victoria Police [2021] VSC 483 (2021 Marke Appeal).

[47] 2008 Marke Court of Appeal per Maxwell P [20]-[23] and [27]-[28], per Weinberg JA [74]-[80] and [85]-[89], and per Pagone AJA [104]-[108].

[48] 2008 Marke Court of Appeal [19].

[49] 2008 Marke Court of Appeal per Pagone AJA [104]-[108] and see also Weinberg JA's comments at [68] and [76]-[77].

[50] See XYZ v Victoria Police [2010] VCAT 255 (XYZ) [265].

[54] [1985] VicRp 86; [1985] VR 869.

[55] [2005] VCAT 962.

[56] 2006 Marke [50], [52], [65] and [79].

[57] [2025] FCAFC 5.

[60] [1991] VicRp 72; [1991] 2 VR 322 (Croom)

[63] As per Judge Jenkins in Marke v Department of Justice and Regulation [2019] VCAT 479 [48] and [50] and the authorities referred to therein, including XYZ [266].

[71] Marke's August 2022 Submissions, TB 75.

[72] Marke's August 2022 Submissions, TB 76.

[73] Marke's May 2025 Submissions, particularly pages 5-7.

[75] Akers v Victoria Police [2022] VCAT 88 [79].

[76] 2020 Marke [210]-[228] and [245]-253].

[79] [2022] VCAT 280 [148]-[150].

[81] Victoria Police's April 2022 Submissions [43(1)].

[82] Victoria Police's April 2022 Submissions [35(2)] and [40], including the cases referred to therein.

[83] 2020 Marke [171], [174] and [181].

[85] Victoria Police's April 2022 Submissions [43(1)].

[86] Victoria Police's April 2022 Submissions [19].

[87] Victoria Police's April 2022 Submissions [43].

[88] Each set of written submissions, including his Statement of Public Interest Grounds directed at section 50(4) of the FOI Act - TB 78-82.

[89] 2020 Marke from [177] and [280].

[91] Matters' Statement [38]-[43] and his oral evidence.

[92] 2020 Marke [182] and [252].

[94] This statement was made in respect of Documents for which the exemption in section 33(1) of the FOI Act was claimed.

[96] I record that one redaction in Document 44 refers to '32(1)' - see page 2 paragraph 6. I understand that to be a typographical error rather than a claim under section 32 of the FOI Act which concerns legally privileged information.

[98] Victoria Police's April 2022 Submissions [35(2)].

[100] [2019] VCAT 479.

[103] See Osland v Secretary to the Department of Justice [2010] HCA 24 per French CJ, Gummow and Bell JJ [12]-[14]; Department of Premier & Cabinet v Hulls [1999] VSCA 117; (1999) 3 VR 331 at 342 to 343; and XYZ, [575] ff.

[104] Statement of Public Interest Grounds dated 3 August 2022, TB 78-82.

[105] Such as those referred to by Marke in his Statement of Public Interest Grounds, TB 80.