from 4/2/99 page - last two words on the second line of entry for 6.10pm

- in the first line, the date and the next 5 words;

- in the fifth line, the date and the next 3 words;

2. The decision under review is otherwise affirmed.

Mr Grinberg of Counsel, instructed by Drago Dragojlovic, Freedom of Information Legal Officer.

1 This is an application for review of a decision by the Freedom of Information Officer of the Respondent to refuse the Applicant access to certain documents or parts of documents which he had requested.

2 Over the course of the hearing, some further documents were released[1]. The attached schedule sets out those documents still in issue at the end of the hearing, together with details of the sections of the Freedom of Information Act 1982 ("the Act") under which exemptions in respect of each were claimed.

3 Evidence was called for the Respondent from Superintendent Paul Murnane, formerly of the Freedom of Information Section of the Respondent. This took the form of a written statement, significantly supplemented by oral evidence, and he was cross-examined.

4 The Applicant himself gave evidence, initially in the form of a witness statement with a large number of attachments or exhibits, and he also gave further oral evidence and was cross-examined. He also called in support of his case a Mr Ronald Irwin, whose lengthy witness statement (some of which he said was a compilation from previous statements and not in his own words), and further oral evidence I allowed to be put before me, but without accepting that much if any of it was relevant to the issues before me. As Mr McHugh represented himself, rather than spend much hearing time isolating which parts of his own and Mr Irwin's statements were relevant and which were not, I indicated that, whilst I allowed all of these oral and written statements to be submitted, I would only have regard in my decision to those parts of his material which I considered relevant to the issues before me.

5 The Applicant has been a member of Victoria Police since April 1970 and has been deployed in Mildura since 1981. In late 1998 he came to the attention of police officers involved in what was known as the Kale Taskforce, which was investigating the circumstances surrounding the deaths of Jennifer Tanner, who died on 14 November 1984, and of Adele Bailey, who disappeared in September 1978 and whose remains were found in August 1995.

6 Four Kale team members, including Inspector Paul Newman and Detective Sergeant Martin Allison, travelled to Mildura in mid-February 1999. Leading up to that they obtained a warrant on application to a Judge of the Supreme Court for listening devices to be placed in the Applicant's home. This was apparently granted on 16 February 1999. On 23 February 1999, two of them interviewed the Applicant in relation to the murder of Adele Bailey. At the same time, another two spoke with the Applicant's wife on the subject of their interview with her husband. Alert to the possibility of listening devices having been placed, later on 23 February Mr McHugh searched his house and found and dismantled listening devices which ad been placed there. He has spent the last five and a half years seeking redress for what he alleges were improper or illegal actions by the police in obtaining the warrant in circumstances he says fell far short of proving sufficient suspicion of his involvement in any offence connected with the disappearance of Adele Bailey.

7 In his pursuit of various avenues of redress over the years, there have been various forms of investigation or review of the circumstances of which the Applicant complains. There were two reports of the Ombudsman, a report from Australian Federal Police at the request of Victoria Police, and a large number of interviews with various officers within the Victoria Police, including the Chief Commissioner, after the second Ombudsman's report.

8 The Applicant informed me that he has also made a number of FOI requests in respect of each of which he says he has had to seek review and make applications to this Tribunal, although none seems to have reached a final decision. The application before me in fact arose from a deemed request by him for certain documents arising from the hearing of two previous applications before Judge Higgins last October, which were withdrawn once his further request was to be processed.

9 The relevance of all of these circumstances is that, little by little, the Applicant has acquired much information and documentation as to what occurred before, during and after the events of which he complains, and he seeks to use some of the previously obtained documents to pursue those presently in issue. He also seeks to use all of that background to argue that even if the documents are exempt the Tribunal should order that the public interest requires their release, under Section 50(4) of the Act (a power not available for a document exempt under s.33). The Applicant also sought to argue broadly for release of documents under s.31(2), but that sub-section could not be invoked for documents other than any in respect of which exemption under s.31(1) otherwise applied.

Document 1 (Extracts from the Daybook of Detective Sergeant Allison)

10 Five words on a page for 4 February 1999 have been withheld from the Applicant, in reliance on Section 33(1) of the Act, on the basis that their disclosure would be unreasonable release of personal affairs of a person.

11 The first three words read together identify a person. Both the context in which they fall to be read on that page and the evidence of Mr Murnane satisfy me that the person who would be so identified would be categorised as a confidential informant. Mr Murnane's evidence was that it is important for the proper functioning of the Police Force that police officers are able to confer in confidence with very many different people who can provide information for their investigations and that, were the identity of such persons known to be able to be discovered through applications such as this, then the ability of police to obtain information through people who wish their involvement to remain secret from those on whom they provide information would be diminished. I am satisfied that the identity of this person would disclose someone who was providing information to the investigating officer in confidence, in the expectation of confidentiality being maintained, and that disclosure of this person's identity would be unreasonable as it could undermine the ability of police to continue to receive information on such basis.

12 An exemption under Section 33(1) is not subject to the power conferred on this Tribunal in sub-section 50(4) of the Freedom of Information Act ("public interest override"). The first three words on this document should remain exempt from release.

13 There are two further words which were sought to be withheld from the Applicant on this page although during final submissions Mr Grinberg conceded that the release of that information, albeit the name of a person, would not be unreasonable in the circumstances. The two words in my view should be released as, although they do identify a person whose personal information is still protected by the Act, the association of that person's name with the Applicant's is not unknown to him and is a central fact in the history of these events. In my view, it would not be unreasonable for that information to be disclosed.

14 Also forming part of Document 1, is a page dated 10 February 1999 from the Day Book of Detective Sergeant Allison. Nineteen lines of text for that entry are sought to be excluded from release, in reliance on Section 33(1) - that release would unreasonably disclose personal information about the affairs of a person, and Section 35- that release would disclose information provided in confidence, the disclosure of which would be against the public interest.

15 The first two lines in question clearly disclose the identity of a person. That person was given notice under Section 53A of the Act and the Tribunal received a letter, apparently from the person, which satisfies me that the information was provided in the expectation that that the name of the person and the information itself would be kept confidential. The person was not a member of the Police Force, nor directly involved in the events then being investigated by Detective Sergeant Allison. I am satisfied that disclosure of that person's identity would be unreasonable in the circumstances.

16 On reading the balance of the entry, which contains the information provided confidentially, I am satisfied that it is the type of information which it is in the public interest that police officers be able to obtain when required and that, if they cannot maintain that confidentially, it would be reasonably likely to impair their ability to obtain similar information in the future. For this reason I am satisfied that the information is exempt under Section 35 of the Act and I am not satisfied under Section 50(4) that public interest requires its release.

17 I have considered whether there is any part of the information which would be able to be disclosed without either revealing the identity of the person who consulted with Detective Allison on 10 February 1999 or which would not be a significant enough betrayal of confidentiality to inhibit the flow of such information in the future. I have concluded that, although some words could clearly be released without infringing those considerations, they would be almost meaningless alone and such release could well be confusing or likely to mislead.

18 A third entry from Detective Sergeant Allison's Day Book, for 17 May 1999, has had seven lines in total deleted as exempt under Section 30(1). Mr Murnane said of these that they contained opinion or comment by the officer who wrote them, and that, as such, they formed part of the deliberative processes by which police officers make comments or express opinions in their notes, which may be useful later as reminders, or for other investigating officers who may take over any part of an investigation. He further said that it is against the public interest for these to be released because the potential to have such comments released might inhibit police from feeling free to note their opinions or comments contemporaneously with events, and that could undermine the keeping of as fulsome notes as might be useful.

19 As to the first two and a half lines, the entry appears to have been an opinion or comment of D/S Allison at the time, but it was a comment which, in my view, would be likely to be ordered to be released in a variety of other circumstances, including were the notes to have become relevant to a prosecution and sought to be inspected by the accused person. I do not consider that the release of a comment such as this is against the public interest, because the prospect of police ceasing to make such notations in future is in my view only minimal. I shall direct that those three lines be released.

20 The next portion deleted from release, while a little more coloured in its expression of attribution of motive to Mr McHugh is, in my view, ultimately in the same category. I do not consider it to be contrary to the public interest that comments such as this be potentially available for release and I would direct that those also be released to Mr McHugh.

21 Each of these documents is a briefing paper from Detective Inspector Newman to senior officers in Victoria Police. Although their timing and purpose was different, each contains the same fifteen lines of text which the Respondent has refused to release to the Applicant, relying on Section 33(1) and Section 31(1)(d). The text not released in each document is identical, albeit in different type.

22 The first seven lines of each contains information which would reveal the personal affairs (identity) of other persons, and the essence of information sought in confidence from them. I am satisfied that release of their identities would be unreasonable. I am also satisfied that it would be against the public interest for persons in such positions to feel inhibited from providing such information in confidence without fear of disclosure, both of that information and of their identity, and that release of such information would be likely to impair the ability of police to obtain information of this nature as fulsomely in the future.

23 I do not see, however, that the entry date or the prefacing words reveal anything that would infringe those principles and, at least the introductory words for the first entry would already be known to the Applicant in light of previous documents he has seen. The balance of those lines should remain unreleased.

24 The balance of the material in these documents claimed to be exempted from release to the Applicant are said to reveal information about the Technical Surveillance Unit of the Victoria Police which, if released at large, would be likely to disclose methods or procedures of investigation which could undermine future police investigations. Exemption is therefore claimed under Section 31(1)(d). The irony of this is that Mr Murnane himself concedes that the Applicant, as a police officer, would know of such operational matters.

25 These entries refer to what were apparently Technical Surveillance Unit operations in relation to Mr McHugh some five and a half years ago. Mr Murnane's evidence in relation to these was necessarily in general form - he not having actually seen these documents prior to the day he was called to give evidence - and therefore he had not been able to make investigations as to the specifics of these precise entries.

26 These entries appear to me to be more descriptive of events than of investigative procedures or modes of operation other than in very general terms. To the extent that such procedures or techniques are disclosed in them, I have no direct evidence that they are still used, and I am not satisfied that there is betrayed in these entries anything likely to prejudice the ability of technical surveillance activities within the Victoria Police now or in the future. I do not find the exemption established, and shall direct that these lines of this document be released.

27 Access has been denied to seven lines of text in paragraph 20 of a document which is called a draft of the Affidavit in Support of an Application for a Listening Device Warrant. Mr McHugh has already had released to him the equivalent paragraph in the final version of that affidavit, but also with certain parts deleted. He is aware that the words not released from the commencement of this paragraph and its second line refer to an interview with a registered informer. Sub-paragraphs (a) and (b) of paragraph 20 have not been released to him and both contain information about the registered informer. So far as the information reveals personal information about the affairs of persons, I accept that the information may lead to identification of the registered informer. Mr Murnane's evidence was that the ability of police to keep confidential the identity of registered informers is regarded as of very great importance in policing operations. I accept that, and that such information falls squarely within the exemption under s. 31(1)(c) as release of this information would be reasonably likely to disclose or enable a person to ascertain the identity of a confidential source of information in relation to the enforcement or administration of the law. I also accept that release of the name of the officer who obtained the information is personal information which it would be unreasonable to disclose because it might lead to the ascertaining of the identity of the registered informer. The exemption is made out under both s. 33(1) and s.31(1)(c).

28 Mr McHugh argues that under s.31(2) the exemption does not apply to this document because it falls into various circumstances there set out. I am not satisfied that this portion of this document falls into any of those categories. Finally, while the section is one for which the overriding public interest discretion in s.50(4) can be applied, I do not consider that it is in the public interest that this information be disclosed. As well as the need to keep the identity of registered informers secret, I am of the view that to disclose portions of draft documents, in contexts such as this, can be contrary to the public interest in that it is likely to mislead or confuse, and could well lead to speculation as to why changes occurred between drafts and a final version. I confirm the decision not to release any of the unreleased portion of Document 4.

29 Access has been denied to this document in full. It is a two-page report dated 24 June 2002, from Commander D P Henry to the Assistant Commissioner, Ethical Standards Department. It is headed in very large and bold type "IN CONFIDENCE", although I accept that that alsone is not determinant of this exemption and Mr McHugh has already obtained copies of a considerable number of documents that are headed "In confidence". On reading the content of this document and the person to whom it is addressed, I am satisfied of the following:

* That it was written in the expectation that it would be kept confidential.

* That it was written to a section of Victoria Police which has a particularly strong need to be able to receive such communications in confidence. The nature of investigating issues of ethical standards within the Police requires there to be an ability to obtain information from other police officers who have or may still know or work with those being investigated, and to obtain such information an assurance of confidentiality is likely to be very important.

* There is a strong public interest in facilitating the ability of the Ethical Standards Department to receive reports on the conduct of police officers.

* In many cases, the identity of authors of such communications might also be a matter for confidentiality but, in this case, the authorship has been revealed.

30 In my view the exemption is made out under both Section 30(1) and Section 35.

31 The only portions of this document which remain in issue are 22 lines of text on page 7. The overall document is a report on the subject: "Review of Issues Identified by Ombudsman - Complaint by Detective Senior Constable McHugh and Mrs McHugh", written by Superintendent Sandra Langlands. The report sets out aspects of the background and complaint by the Applicant and his wife which led to the second Ombudsman's report, and addresses some of the concerns raised in that report discussing changes by which they may be avoided in future. The portions sought to be kept exempt express beliefs or opinions by the author of the document and, as to two paragraphs, contain recommendations.

32 Mr Murnane said that it is important that police officers asked to prepare such reports as this, be free to express their opinions or advice as openly as possible and to make recommendations accordingly without being inhibited by the potential for release of such opinions or recommendations to an individual or the public at large. He and the Applicant both said that there were new guidelines for procedures for police applying for warrants for listening devices issued after this.

33 On reading this document I am satisfied that it contains advice to Senior Command of the Respondent, which is appropriately categorised as part of the deliberative processes enabling an agency such as the Respondent to collect from individuals, designated with review tasks, their frank opinions and recommendations. It is common ground in this case that following this review new instructions were implemented for the proper procedures involved in investigations and the materials being collected and provided in support of applications for warrants for listening devices. In my view, it is in the public interest that both the recommendations and opinion or advice on which the author based them be able to be kept from release so as not to deter such frank advice being provided in writing in the future. I am satisfied in this case that such advice should be able to be obtained without being subject to release and potential comparison with any changed procedures ultimately introduced. I shall not order the release of any parts not already disclosed of Document 9.

[1] Released documents appear in red and were: 6 words from 4/2/99 in document 1; document 5 except for names other than the Applicant's; documents 7 & 8; 2 lines form p 1 and 4 lines form p 8 of document 9; document 10 except for one name.