• Any notes or documents taken by the Vice-Chancellor into her meeting with the panel on 5 October

3. On 26 November 2009 the University made a decision regarding her request, granting partial access to some documents and refusing access to others claiming them to be exempt under the FOI Act. At Ms. McNamara's request there was an internal review following which the University made a decision dated 17 December 2009. Some further material was released to Ms. McNamara but access to other material was refused. On 14 January 2010 Ms. McNamara applied to VCAT for review of the decision. The proceeding subsequently took an unusual course. It is unnecessary to record the details of that but it involved Ms. McNamara ultimately making a fresh request for access so that it would be clear that a possible exemption under section 33(1) of the Act (documents affecting personal privacy) would be considered by the primary decision-maker and on internal review. Ms. McNamara's application to VCAT was then amended so that all matters could be considered by the Tribunal[1]. The University had to notify persons to whom certain information related under section 53A of the Act. There were some delays, for instance because of the availability of witnesses. All this meant that the hearing did not take place until 13 April 2011. I reserved my decision.

4. The exemptions relied on by the University were first, under section 30, that documents were internal working documents whose disclosure would be contrary to the public interest; secondly, under section 33(1), that disclosure would involve the unreasonable disclosure of information relating to the personal affairs of any person; and, thirdly, under section 35(1), that disclosure would divulge information communicated in confidence and that disclosure would be contrary to the public interest because it would be reasonably likely to impair the ability of the University to obtain similar information in future. The parties finally confirmed that there were four documents in dispute. Those documents and the exemptions claimed in relation to the documents were, omitting the dates, as follows -

Document 1 - Submission by Human Resources Services Division of the University to Review Panel - UGU ("the Review Panel") (ss 30, 33 and 35)

Document 2 - Submission by Financial and Business Services Division of the University to the Review Panel (ss 30, 33 and 35)

Document 3 - Handwritten notes of Panel members, including Chair and Secretary (ss 30, 33 and 35)

Document 4 - Documents and notes taken by Vice-Chancellor into the meeting with the Review Panel (ss 30 and 33)

1. I mention, incidentally, that the Vice-Chancellor at the time is not the current Vice-Chancellor. The first three of these documents were claimed to be exempt in full. The last was claimed to be exempt in part.

Wendy Cooper, Director of the University's Human Resources Services Division, made two witness statements. She gave oral evidence and was cross-examined. In her first statement, dated 10 September 2010, she described what she said was akin to an "internal audit process" that may be said to have been formalised in 2004 on a five-year cycle but which had operated on a cyclical basis for years prior to that. Reviews are conducted by a panel comprising University representatives and external experts. The UGU has a number of responsibilities. One is managing the University's compliance with legislation and the University's policies and procedures. In late 2009 there was a review of the UGU. Consistent with usual procedure the Terms of Reference required the Review Panel to consider matters including the UGU's organisation and management, its performance from the point of view of service delivery and "customer satisfaction", and its relationship with the Faculties and other areas of the University. The review commenced with a "self-study" report made by the UGU setting out its assessment of its own performance in relation to the Terms of Reference. The report has been and remains accessible to University staff via the University's intranet. After the report was submitted submissions were invited from all parts of the University on the report and the Terms of Reference. The making of submissions is not mandatory, Ms. Cooper said, but provides an opportunity for input into the improvement of service delivery by the area being reviewed. This is to enable the Review Panel to see whether the "self-study" report accords with "the general feeling" about how well the area is performing. In the case of the review of the UGU, the Review Panel spent two days conducting interviews. In accordance with the "usual process" the panel interviewed the Vice-Chancellor and Head of the UGU and senior managers within the UGU (including Ms. McNamara), among other people. All interviews were conducted in private. The Review Panel produced its report in November 2009 with comments and recommendations. Following that the Vice-Chancellor invited the Executive Director of her office (who has responsibility for the UGU) to consider the panel's report and prepare a response. The Vice-Chancellor reviewed the panel's report and the response and prepared her own response in relation to the recommendations. The Vice-Chancellor's response was published on the University's intranet.

Ms. Cooper said that she had participated in reviews as Review Panel member, a member of staff in an area subject to review, and as a person who has made a submission.

As the author of document 1 Ms. Cooper said that she specifically requested the submission to remain confidential because it contained what she considered to be sensitive subject matter and her own frank opinions. In her experience requests to keep such submissions confidential were honoured but even without that request submissions were kept confidential. She did not believe the submissions were provided to the Vice-Chancellor. Where submissions were quoted in the panel's report they were not referred to in a way that would identify the source. Ms. Cooper expressed the view that if it were requested that submissions be kept confidential but were disclosed submissions would be "much less forthcoming and honest". She herself would not have included what she did in document 1 if she had been aware that it would be released under the FOI Act. Without a "complete and honest" account the Review Panel would not have an adequate idea about the nature of the issues, who to interview, and what recommendations for improvement to consider or make. Disclosure of such material to Ms. McNamara, and potentially a much wider audience, would weaken the review process, Ms. Cooper said. Although Ms. Cooper was not the author of document 2, she said that the same comments applied to it. She noted that document 2 was expressly marked "CONFIDENTIAL".

Concerning document 3, Ms. Cooper said that these notes appeared to be a mixture of aides-memoir, notes of questions put to and answers given by interviewees, panel members' thoughts, and notes of discussions, among other things. She said she imagined that the words and phrases there were meaningful to the note-taker but not necessarily to anyone else. They were susceptible to misinterpretation, she said, and they would not necessarily reflect the final views of panel members or the Review Panel itself. Release of that would not advance understanding of the matters taken into account by the panel nor matters taken into account by the Vice-Chancellor nor her final decision.

The disputed parts of document 4 were notes made by the Vice-Chancellor on the UGU's "self-study" report that she took to her meeting with the panel. The notes identified her views at that time. They appeared to be an aide-memoir identifying issues that she wanted to discuss with the panel. They reflected her thought processes at the time in relation to issues raised in the report. Ms. Cooper said she had similar concerns in relation to that as those expressed in relation to document 3.

In her second witness statement, dated 16 February 2011, Ms. Cooper added that the documents contained information about the personal affairs of particular persons including their names, employment positions, other information enabling their identities to be ascertained, and personal statements of opinion by identifiable individuals (such as those of the Vice-Chancellor in document 4). Ms. Cooper said disclosure of the documents to Ms. McNamara would have the effect of disclosing unreasonably information about various persons. This was so even though the documents might appear "non-identifying or innocuous". This was for reasons to do with Ms. McNamara's position within the University, her involvement in the UGU, her participation in the review process for the UGU, and the provision to her of information contained in other documents. It was noted again that Ms. McNamara had access to relevant material on the University's intranet.

Ms. Cooper was cross-examined by Ms. McNamara especially about some restructures within the University. She agreed that there were efforts made to implement recommendations arising from the review of the UGU. Re-examined by Mr. Batskos, Ms. Cooper said that her view was that a restructure of the UGU was a result of changes to "portfolio arrangements" at senior executive level and not necessarily the result of the review.

For the purpose of the hearing Ms. McNamara relied on two witness statements and gave oral evidence. In one, dated 11 October 2010, she said that she was "deeply concerned" about the reviews, saying that the manner in which they are conducted is inappropriate and that "shrouding the process in secrecy is undesirable". She had witnessed the effects of the reviews on staff for six years. She referred to policy and procedures documents. She said that the Terms of Reference, the report and responses to the report were accessible by staff. Ms. McNamara said that the reviews had become increasingly focussed on "human resources matters and individuals" and were used as a springboard for changes to people's jobs and redundancies and they affected people's reputations.

Ms. McNamara said that reviews had attracted many non-confidential submissions over the years. She described her own experience as secretary to two reviews. One review received no confidential submissions. The other received a confidential submission from a staff member in their personal capacity but the person indicated that it could be used in any way that the panel saw fit. During another review the head of division being reviewed was given a copy of the submissions. She also described what took place when she and colleagues were interviewed by the Review Panel when the UGU was reviewed. On one occasion Ms. McNamara questioned whether a report concerning another area of the University should be treated confidentially. She said in effect that it was not and added, by implication, that the episode had serious professional consequences for persons named in it.

Ms. McNamara's witness statement went further by saying that the review process involved numerous conflicts of interest, for instance with the Vice-Chancellor appointing panel members, most of whom were staff subordinate to her, and deciding whether or not to accept recommendations. Staff making submissions were likely to be superiors or subordinates of those panel members drawn from the ranks of University staff. Ms. McNamara referred to an occasion when a report concerning another area discussed her role and said she was not invited to meet with the panel or comment on the panel's observations regarding her role.

In the other witness statement relied on, dated 21 March 2011, Ms. McNamara said that the report mentioned at the end of the previous paragraph had been published on the University's website. Evidently responding to Ms. Cooper's statements, Ms. McNamara said that the University's review process was not in the nature of an internal audit or "any other recognisable process, including any recognisable human resources process". There was already an audit plan extending to performance audits as well as financial ones. There were other relevant processes including for staff performance evaluations giving the Vice-Chancellor and others "ample opportunity to give negative feedback and raise their concerns". She said that the University operated "a very tough workplace" and that the "one-sided" review process was particularly traumatising. She said that the University relied on secrecy to achieve "shock outcomes" (one of which she described that involved substituting one staff member for another with "no process at all"). Secrecy had become the norm, she said. After making some further comments about the attitude and behaviour of some senior personnel to staff, Ms. McNamara said that she had no intention of distributing to the world at large any documents released to her as the result of her application.

Cross-examined by Mr. Batskos, Ms. McNamara agreed that the reviews described in evidence were part of what the University calls CQI (continuing quality improvement) and that the policy document was accessible by members of the public on the Vice-Chancellor's section of the University's website.[2] A link took the visitor to a page listing reviews, including past years' reviews, that had been formally commenced. In the case of the review of the UGU access to information about the review was restricted to staff. Staff could see documents such as the Terms of Reference and the Vice-Chancellor's response. Ms. McNamara maintained that the process was shrouded in secrecy and remarked that use of the word "normally" at a number of points in the policy document - for instance, that reviews "are normally conducted every five years ..." - meant that the University had "a lot of room to move".

1. Before dealing with each of the documents I make some comments about the submissions relating to sections 30, 33 and 35. After that I deal with some questions including the public interest. There were lengthy written and oral submissions for both parties. Numerous authorities were cited. It is convenient to refer to them, but only to the extent necessary, in the course of considering each claimed basis for exemption. The claims under sections 30 and 33 were common to all documents. I begin with section 33.

"(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person ...

(a) information relating to the personal affairs of any person includes information -

(b) that identifies any person or discloses their address or location; or

(c) from which any person's identity, address or location can reasonably be determined."

1. Ms. McNamara's written submissions regarding section 33 went immediately to the question whether disclosure would be unreasonable - that is, she did not contest that the information related to the personal affairs of any person. She submitted that there were many factors that the Tribunal could take into account in considering whether disclosure would be unreasonable. I need mention only some. Ms. McNamara said that the University and its senior officers were in a very powerful position in relation to her. The University had structured the review process to maximise the collection of personal affairs information while "neglecting" to inform those affected and publishing what it chose to. It was undesirable to have a "flawed" process protected by the personal affairs provisions of the FOI Act. Disclosure would not impact on the University's capacity to collect similar information. Her concerns were meritorious. There was an "unlikelihood" that she would disclose the personal affairs information to the world at large. In a later document her submissions were more or less summarised by saying that evaluating the competing interests (of privacy and the general right to access under the FOI Act) was a "broad exercise" and that in the present circumstances it would be unreasonable for disclosure not to be made in the absence of any demonstrated countervailing interest in the privacy of personal affairs information. At the hearing she distinguished the position of "the persons being reviewed" and persons meeting with the Review Panel. She confirmed that she did not pursue access to information in the case of persons who were not the authors of documents but, where persons had given consent, the information should be released.

2. I mention at this point that there were disputes about whether some of the authorities that were cited actually stood for the proposition they were said to stand for[3]. Those disputes are largely peripheral to the decision that I have to make. I do not intend to refer to each and every one of the authorities cited or to deal with the disputes regarding the principles emerging from them save where that is really necessary. In the instance that is relevant to my consideration of section 33, whether or not a particular case supported the proposition that the public interest could be taken into account when deciding whether disclosure would be unreasonable, other cases do support that.[4] I set out my conclusions in relation to the public interest below. For now I indicate that, for reasons I shall give, I do not see that the public interest in disclosure outweighs the public interest in personal privacy.

3. So far as other factors are concerned I make these general comments. In his written submissions especially, Mr. Batskos referred to the well-known principles set out by the Court of Appeal in Victoria Police v Marke[5] but he also submitted that a number of the factors put forward by Ms. McNamara did not bear relevantly, logically or probatively on the balancing exercise.[6] The main factors referred to in Marke that apply in this case appear to me to be these ones. There is the potential for disclosure to the world at large. Ms. McNamara appeared to put her intentions differently - at one point saying she had no intention to distribute the documents; at another saying that there was an "unlikelihood" that she would do so. As a member of staff with access to documents on the intranet Ms. McNamara is in a different position to someone who might have virtually no prospect of matching names of review participants to their comments[7]. There are competing interests but (as the evidence and the section 53A summary mentioned below indicate) the right to privacy is strong. Ms. McNamara has the interest in the documents that she informed me of but, to the extent that her concern related to the review process itself, I do not see that access to the documents assists her substantially if at all. The circumstances in which the information was obtained is relevant as are the wishes of a significant number of persons affected. Specifically, the likelihood of stress and anxiety caused at least to one of the persons involved is a factor that should be considered[8] and the section 53A summary indicates that. It appears that Ms. McNamara's submission that there was "no evidence that disclosure [would] result in any negative impacts for those individuals" may have been made before the section 53A summary became available. The section 53A summary indicates that this should be considered.

4. Ms. McNamara made clear to me the concerns she had regarding the review process and its consequences. I do not have to make findings in relation to that, however, for the present exercise is not judicial review of those processes. The exercise is one of merits review of a decision or decisions made under the FOI Act. What I do find - on evidence that was substantially not contradicted - is that the review process itself (that, is what the process is) is not secret even if some steps are conducted in private and if information may be provided in confidence.

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

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

• (b) would be contrary to the public interest ...

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

1. Underlying Ms. McNamara's submissions concerning section 30 was her attack on the review process itself. She said that the University was wrong to liken the process to an internal audit process. On the contrary, she had concerns about the process based on privacy and other considerations. She said the process was "akin to a combination of a staff performance review and a grievance process" both of which were provided for in the University's 2009-2012 Enterprise Agreement. The review process circumvented that agreement, she said. Even if the review process did not involve a breach of the law it was "irregular and improper ... inherently unfair and unsound". Ms. McNamara submitted that it was "in the public interest for there to be a disincentive for a public body such as the [University] to conduct opaque, not to mention unlawful, processes".

2. Ms. McNamara cited numerous cases to illustrate her submission, as I understood it, that, for a deliberative process to be relied on successfully for the purposes of section 30, it had to be regular, based in law and recognised[9], whereas the University's process was not. She cited Porter v Victoria Police[10], saying that the circumstances in which an officer provides an opinion must be the deliberative processes of an agency and not "situations which lack specificity, directions and purposeful decision making". Porter concerned documents constituting what the Tribunal there described as a "complaint" by one officer to another that concerned the applicant.[11] The documents did not come into being in the context of a performance assessment or similar exercise. The documents could not therefore said to be "part of the thought processes of the agency or of any reflective consultation".[12] Ms. McNamara argued that the University's review process was "completely at large", resembling the casting of a wide net "looking for issues and complaints". It was not part of the deliberative processes of the respondent but rather "just a scan of the environment".

3. In submissions for the University reference was made to a number of cases including Brog v Department of Premier and Cabinet[13] where the Tribunal agreed that:

"[the meaning of 'deliberative processes' is ] wide enough to include any of the processes of deliberation involved in the functions of an agency ... in short ... its thinking processes - the process of reflection, for example, upon the wisdom and experience of a proposal, a particular decision or a course of action."

1. Ms. McNamara emphasised that the review process was actually not an internal audit and said that this was evidenced by the fact the persons involved were not specially trained for that. Mr. Batskos said that the University did not assert that the process was an internal audit but he submitted that the process was so close to one that the cases regarding internal audits weighed heavily against non-disclosure. He also submitted that whether there were cases involving a process like the review process was not the point. The point was whether the process in this case fell within the relevant legal principles. In my view references to other processes in different circumstances is not always helpful. I have to examine the present circumstances. As it was described in the evidence before me, and as I find it to be, the review process concerning the UGU was part of the University's deliberative processes. I do not consider that this conclusion would be altered by a particular aspect of the information that may be placed before the Review Panel or by a particular result that may have flowed from the process.

2. Section 30(1)(a) first requires that there be "matter in the nature of opinion, advice or recommendation". Ms. McNamara's submissions sought to confine that but, for the University, reference was made to decisions including Mildenhall v Department of Education[14] where the Tribunal noted that it was not necessary that the document itself be in the nature of opinion, advice or recommendation. Rather it was required that release of the document would disclose matter of that nature.

3. In relation to the public interest, Ms. McNamara made a number of submissions. I refer only to the main ones. Citing Mond v Department of Justice[15] she submitted that disclosure was less likely to be contrary to the public interest in a concluded matter than in one where the agency's concluded views were not known. She also pointed to cases where she said the Tribunal had expressed scepticism about the argument that disclosure might inhibit frankness and candour on the part of public officers. The public would benefit by receiving information about the exercise of public functions and powers, she said.

4. On behalf of the University it was submitted that the point in Mond was that the documents themselves represented incomplete views and information recorded in an inconclusive file note. Reference was made to cases including Hulls v Victorian Casino and Gaming Authority[16], summarising the factors to be taken into account when considering the public interest - commencing with the right of every person to obtain access to documents as provided by section 13 of the FOI Act. In this case the most important factors appear to me to include the following ones: the degree of sensitivity of the issues involved; whether disclosure would be likely to inhibit frankness and candour; and whether disclosure would be lead to confusion or unnecessary debate having regard to the possibilities discussed. Further on the subject of frankness and candour, it was submitted that the views that Ms. McNamara pointed to (in decisions other than Hulls) had to be considered in light of what was said in Secretary, Department of Justice v Osland [2007] VSCA 96 by Maxwell P - that the public interest considerations under section 30 included -

"the efficient and economical conduct of government, protection of the deliberative processes of government, particularly at high levels of government and in relation to sensitive issues, and the preservation of confidentiality so as to promote the giving of full and frank advice."[17]

1. At the hearing Mr. Batskos submitted that where scepticism had been expressed about harm to frankness and candour that was in the context where public servants had the duty to provide frank and candid advice but that the present circumstances were different. The was because University staff had a degree of discretion as to the nature and extent of their involvement in the review process.

2. In my view that factor and the others I have mentioned lead to the result in this case that the University has shown that disclosure would be contrary to the public interest. I have more to say about these matters later.

1. Section 35(1)(b) was raised by the University in relation to documents numbered 1, 2 and 3. That section provides:

"35 Documents containing material obtained in confidence

(1) A document is an exempt document if its disclosure under this Act would divulge any information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister, and -

... (b) the disclosure of the information under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future ..."

1. It was common ground that whether information was communicated in confidence was a question of fact but Ms. McNamara submitted that "communications by very senior and sophisticated officers to diverse panels of subordinates and outsiders" should not be so regarded. Ms. McNamara said that the officers who produced documents 1 and 2 (the submissions) were senior officers who did not need a "secret forum" and could convey their views directly to the Vice-Chancellor. She also said that the main aspect of confidentiality was that persons affected by the submissions would not be aware of what was said about them and so be able to respond. She sought to distinguish some cases concerning investigations and other processes.[18]

2. For the University it was submitted that there were various matters to consider in determining whether information was communicated in confidence: it could be express or implied from the circumstances. And, regarding the question of impairment of the agency's ability to obtain similar information, it was submitted that whether "reasonably likely" meant a real chance of impairment or, alternatively, that it was more probable than not, the test was satisfied in this case. The impairment had to be more than trifling or minimal. It had to be shown that disclosure would "make worse, less valuable, or weaker; lessen injuriously; damage or injure" the agency's ability to obtain information of the same class or character.[19]

3. Both parties cited numerous cases in this context also. I simply refer to what Deputy President Macnamara said in Corry v Victoria Police[20] quoting what he had to say in Thwaites v Department of Health and Community Services.[21]

"In Ryder v Booth [[22]] Young CJ said that the exemption created by s.35(1)(b) might be read as covering a situation where 'the disclosure of the information so as to impair the ability of the agency to obtain similar information in the future'. In Re Pepperell and Ministry of Housing & Construction [[23]] Mr Galvin considered the question in what circumstances information would be regarded for the purposes of the section as 'having been communicated in confidence'. He referred to an unreported decision of Judge Hassett given in the County Court in the matter of Deasey v Geschke [[24]] and said:

'It would appear to be an arguable conclusion from His Honour's words that, in his view, in determining whether information was communicated in confidence, it is sufficient to have regard either to the intention of the author or the attitude of the recipient.

An actual understanding as to confidentiality on the part of the recipient would not appear to be essential.'

'Where confidentially is apparent from the nature of the information, it would appear to be unnecessary to have regard to how the information was in fact received.'

It would seem therefore that no formal confidentiality agreement is required to establish that information was communicated in confidence nor is it necessary to establish a 'meeting of the minds'. Conversely the mere fact that a letter is headed 'private and confidential' is not sufficient in itself to establish that that communication was made in confidence, Re Barnes and Commissioner for Corporate Affairs [[25]]

As to the meaning of the word 'impair' King J**,** as a Member of the Full Court in Ryder v Booth (at 885) adopted a definition from the Shorter Oxford Dictionary in the following terms: 'to make worse, less valuable, or weaker; to lessen injuriously; to damage, injure.'. As Gray J (at 880) noted in the same case: 'The degree of impairment which must be shown to be a likely result is, in my opinion, a degree of impairment going beyond a trifling or minimal impairment.' Young CJ said (at 872) it was not sufficient to prove the relevant impairment that there were feelings of resentment among those whose information was given in confidence:

'at having the confidence arbitrarily destroyed by the operation of the legislation, but it is another thing altogether to say that they or others will not provide such information in future. It is not sufficient to show that some people may be inhibited from reporting so frankly if they know that their report may be disclosed. More is required to satisfy the onus case upon the agency by s.55(2) of the Act.'"

"In Ryder v Booth access was sought to medical reports furnished to the State Superannuation Board. Based on the Court's view that it was insufficient to make out the exemption that examining doctors would report less candidly the exemption was held not to be made out. In Medical Practitioners Board of Victoria v Sifredi [[26]] Hedigan J held on appeal that this Tribunal was entitled to conclude that a response given by a practitioner to the Board in the course of its enquiry into a complaint against the practitioner was not exempt under Section 35(1)(b) because the evidence did not establish that a practitioner in these circumstances would not respond at all, merely that he or she might respond with greater circumspection or less candour."[27]

1. Ms. McNamara's submissions regarding section 35(1)(b) were substantially directed to objections that she had to the process. Taking into account what I have to, I am satisfied that documents 1, 2 and 3 did contain information or matter communicated in confidence. I base this on Ms. Cooper's evidence especially but have regard also the circumstances in which the information was communicated. Having regard to that evidence, I am also satisfied that disclosure would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of the University to obtain similar information in the future - that is it would weaken the University's ability to obtain information more than in a trifling or minimal way. I expand on my reasons in this regard later.

"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. I need to consider this provision in relation to sections 30 and 35.

2. The parties submitted statements of the public interest grounds on which they relied. The grounds put forward by Ms. McNamara were the need to ensure that universities observe the principles of administrative law, their obligations under human rights law, and their obligations as employer; to ensure their processes were fair, ethical, reasonable, lawful, accountable and otherwise proper; and to minimise inefficiencies relating to, and the amount of public money spent on, internal administrative matters such as reviews and their consequences. In her written submissions, addressing section 50(4), Ms. McNamara re-stated and elaborated upon her concerns regarding the review process. For the University it was submitted that "[m]ere advancement of accountability or transparency or of [Ms. McNamara's] personal interest ought not to satisfy the Tribunal that there is an overriding public interest that requires the release of the documents." It was further submitted that the matters of concern to Ms. McNamara could be "fully raised and debated in public fora and elsewhere without access to the disputed documents". Reference was made to the following statement made by the High Court in Osland v Secretary to the Department of Justice[28]

"[T]he exercise of the power conferred by s 50(4) requires satisfaction of two conditions. The first is the condition that, as a matter of law, the material before the Tribunal is capable of supporting the formation by it of an opinion that the public interest requires that access to the documents should be granted. That condition may also be expressed as a limitation, namely, that the opinion referred to by the sub-section is an opinion which is such that it can be formed by a reasonable decision-maker who correctly understands the meaning of the law under which that decision-maker acts ... The second condition is that the Tribunal actually forms the opinion that the public interest requires that access to the documents should be granted. This is an evaluative and essentially factual judgment. If the Tribunal forms the requisite opinion, its power to grant access is enlivened. In the ordinary case, the exercise of the power will be subsumed in the formation of the necessary opinion."

"[T]he word 'requires' which appears in s 50(4) directs the decision-maker 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."[29] (Emphasis added)

1. It was emphasised on behalf of the University that public interest meant public interest that and not the benefit or interest of an individual or group of individuals. It was submitted that the grounds put forward by Ms. McNamara were "abstract policy considerations" of the kind stated by the Court of Appeal in Osland[30] to have no role in the consideration and application of section 50(4). In that case Bongiorno AJA made these observations:

"As Maxwell P said on the last occasion, abstract policy considerations such as [the proper accountability of the Minister] have no place in the s 50(4) analysis - in this or any other case. As Kirby J pointed out in the High Court appeal, FOI legislation is itself a mechanism by which the public interest in transparency and accountability is intended to be advanced ...But at the level of general policy, the Act itself has already struck a balance between the public interest in the maintenance of legal professional privilege, on the one hand, and the public interest in access to documents relevant to executive decision-making, on the other. The potential application of s 50(4) in a particular case falls to be considered in that legislative context."[31]

1. Ms. McNamara submitted that her concerns were not "abstract" and she sought to distinguish the Osland decisions in that they concerned legal professional privilege. I consider that the point about the balance struck by the FOI Act applies also when one is considering sections like 30 and 35. Minds may differ as to whether her concerns (relative to those in Osland) are properly to be characterised as abstract but they are similar in that she essentially expresses them as going to matters of accountability on the part of the University. Whatever the position, I do not see there to be a public interest of the kind contemplated in Osland for section 50(4) to operate. I do not see that the high-threshold public interest is present. I also accept the submission on behalf of the University that disclosure would not advance the public interest grounds put forward by Ms. McNamara. I do not consider that the public interest requires disclosure for, adapting the words of Bongiorno AJA in Osland, I am not of the opinion that unless access was granted the public interest would suffer or be diminished in some way[32].

Submissions about the Information Privacy Act 2000 and the Charter of Human Rights and Responsibilities Act 2006

1. Ms. McNamara made further submissions "in the event that the lawfulness of the review process becomes a key issue"[33]. They were detailed submissions focussing on the Information Privacy Act 2000 and the Charter of Human Rights and Responsibilities Act 2006 both of which she said were violated by the review process. It is not necessary for me to deal with those submissions at length for, as I have noted, the Tribunal's function is limited to a review on the merits of the University's decision under the FOI Act. To the extent that Ms. McNamara submitted that the Charter should be considered in the context of the FOI Act[34], it is necessarily only to refer to remarks made by Bell J in Smeaton v Victorian WorkCover Authority[35] that were cited on behalf of the University. For similar reasons to those expressed by His Honour in that case, in my view Ms. McNamara's right to freedom of expression is not engaged in the circumstances. (The other Charter rights she referred to really relate to the review process and not the FOI Act). It was further pointed out in submissions for the University that section 6(2) of the Information Privacy Act provides that nothing in that Act affects the operation of the FOI Act or any right, privilege, obligation or liability conferred or imposed under the FOI Act or any exemption arising under FOI Act. It is sufficient for me to say that whether or not the University's review process could be said to have involved any breach of the Information Privacy Act that would not impact on the decision for the Tribunal.

1. I have inspected the documents and will turn to them next, pulling together some of the above threads, and elaborating on my reasons where necessary. This will involve taking into consideration the section 53A summary, being the summary of responses by persons whose personal affairs were said to be affected by potential disclosure. In relation to the section 53A summary, Mr. Batskos pointed out that in Mees v University of Melbourne[36] Kaye J held that the Tribunal could take a section 53A summary into account in determining the circumstances in which a person provided information, and the person's understanding with regard to confidentiality. According to the summary in this case, 17 persons gave reasons for objecting to disclosure. One response pointed to statements contained in general advice about the reviews saying, among other things, that submissions would be sought from members of the University who were interested in conveying their views to the review panel. That person said this made clear that submissions - whether verbal or in writing - were confidential to the maker and the panel and that there was an understanding that people could make submissions "free of fear of discovery by the reviewed entity, its employees, or other persons other than those on the review panel." The person added that during the interview an assurance of confidentiality was given at the time the person was asked to provide some detailed comment. Without that the person "would have refused to provide full and honest responses". A number of other responses were to like effect. One particular response said in effect that the person would feel "stressed and anxious" if their information was released and that if it was released they would have to reconsider whether or not to participate in future reviews.

1. The exemption under sections 30, 33 and 35 should be upheld. This material is clearly in the nature of opinion, advice or recommendation prepared for the purpose of the University's deliberative processes. The notation regarding confidentiality may not be conclusive but the nature of the information and the evidence generally concerning the attitude of author and recipient satisfies me that the documents were provided in confidence. There is no consideration sufficient to make disclosure not unreasonable under section 33, and no public interest sufficient to make them not exempt under sections 30 and 35 or to warrant an exercise of the Tribunal's power under section 50(4).

2. Ms. McNamara pointed to the fact that the author document 2 did not give evidence and said that that person had himself received information in the course of another review that should have alerted him to the possibility of disclosure. An examination of the document and a consideration of the evidence as a whole leads me to conclude however that the exemption under section 35 should be upheld, in addition to the exemptions under the other sections.

1. The fact that not all persons mentioned in the notes objected to disclosure does not necessitate a finding that disclosure would not be unreasonable within the meaning of section 33. The section 53A summary is important in this regard and supports my conclusion that disclosure would be unreasonable within the meaning of section 33 but also that information was communicated in confidence for the purposes of section 35. Similar to documents 1 and 2, document 3 is also clearly in the nature of opinion, advice or recommendation prepared for the purpose of the University's deliberative processes. No public interest or other consideration would justify, still less require, disclosure, in my view.

Document 4 - documents and notes taken by former Vice-Chancellor into her meeting with panel

1. Document 4 is in a different category to the other documents. Exemptions were claimed under section 30 and 35 only. Ms. McNamara submitted that there was no evidence that the Vice-Chancellor's notes disclose matter in the nature of opinion, advice or recommendation. She submitted that Ms. Cooper's "views" on the document were speculative, constituted opinion evidence and should be given no weight. For the University, reference was made to Thwaites v Department of Human Services.[37] The information considered in Thwaites included handwritten annotations. In the present case the author did not give evidence. In Thwaites the author did give evidence. The Tribunal found not only on the basis of the author's evidence but also on an examination of the material itself that the annotations reflected the author's thought processes in respect of the issues that the material falls within s30(1)(a)[38]. I make a similar finding in this case on the basis of my examination of the document. I agree with Mr. Batskos that the notes were in the nature of an aide-memoir and that, as the Tribunal said in Mond, there can be little public interest in seeing something conveying little meaning,[39] for the handwritten notes were, as it has been put in previous cases, "very cryptic" and to release them without further explanation would be "misleading" and "capable of confusion".[40] To a lesser extent, but still to some extent, these considerations support my findings in relation to document 3.

The practicability or impracticability of editing

1. The practicability or otherwise of editing is an issue in this case if only because Ms. McNamara pursued the release of documents to the extent at least that any person referred to in them did not object. Section 25 of the FOI, which deals with editing, involves considering the question in the context of all the exemptions that there are in this case, not just that under section 30. On behalf of the University reference was made to decisions to the effect that it will not be practicable to provide documents with deletions if, for instance, the edited document would be meaningless, would be devoid of major features so that what remained was misleading, would lead to unnecessary speculation as to what was missing, or would be devoid of context: see, for instance, Honeywood v DHS[41]; Flemington Kensington CLC v. Victoria Police[42]; Kotsiras v Department of Premier and Cabinet[43] and Noonan v Victoria Police[44].

2. Having regard to this and having the benefit of examining the documents, I have formed the view that it would not be practicable to provide access to documents 1-4 with deletions.

1. The University bears the onus of establishing that its decision was justified or that the Tribunal should give a decision adverse to the applicant.[45]. Ms. McNamara has attacked the review process and sought substantially to use that attack to found her submissions in favour of the release of documents to her. What I have to consider is not the review process as such but rather the decision by the University to refuse her access to the four documents. For the reasons that I have given I consider that the University has discharged its onus.

The application for review is dismissed and the decision of the respondent is affirmed.

[1] The amendment meant that an exemption claimed under section 33 (documents affecting personal privacy) could be considered. In submissions Ms. McNamara said that the University had shown "extreme reluctance" for that to be considered by the Tribunal and that that was to be considered in deciding whether disclosure would be unreasonable. The University submitted in effect that how the matter was dealt with procedurally did not bear on that question.

[2] www.deakin.edu.au/vice-chancellor/cqi/index.php A copy of this webpage was tendered as an exhibit on behalf of the University. It referred to policies and practices "to ensure and improve the quality of [the University's] academic and other activities"

[3] One example is Thompson v Department of Infrastructure [2003] VCAT 44. Ms. McNamara said that this showed that the public interest could be considered when deciding whether disclosure under section 33 would be unreasonable. Mr. Batskos pointed out that in that case the Tribunal actually decided that the information did not relate to the personal affairs of any person (at paragraph 20)

[4] See generally Pizer's Victorian Administrative Law, Thomson Lawbook Company, at paragraph [FOI.33.100]

[5] [2008] VSCA 218

[6] Mr. Batskos referred to Marke where, at paragraph 98, Pagone AJA expressed the view that "there is no secure foundation to exclude from consideration any matter that may relevantly, logically and probatively bear upon whether disclosure of a document 'would involve the unreasonable disclosure of information relating to the personal affairs of any person'"

[7] The written submission dated 13 April 2010 (2011) indicates at paragraphs 49ff that Ms. McNamara has already undertaken an analysis of when the Review Panel met and what is known about what was discussed

[8] Reilly v Kilmore District Hospital (1993) 6 VAR 16 at 23

[9] Submission dated 13 April 2010 at paragraph 12

[10] [2005] VCAT 96

[13] (1989) 3 VAR 201

[14] (1998) 14 VAR 87 at 90

[15] [2005] VCAT 2817

[16] (1998) 12 VAR 483

[18] Applicant's submission dated 13 April 2010. (The date seems meant to be 2011)

[19] Respondent's submission dated 9 September 2010 pp. 10 ff

[20] [2010 VCAT] 282 at paragraphs 27 and 28

[21] (1995) 8 VAR 361 at 366

[22] [1985] VicRp 86; [1985] VR 869 at 871

[23] (1989) 3 VAR 191

[24] Unreported, County Court of Victoria, 1 November 1984, Judge Hassett

[25] (1985) 1 VAR 16 at 18

[26] [2000] VSC 33; (2000) 16 VAR 347

[28] [2010] HCA 24 at paragraph 12 (per French CJ, Gummow and Bell JJ)

[30] Secretary, Department of Justice v Osland (No 2) [2009] VSCA 69

[32] Secretary, Department of Justice v Osland [2007] VSCA 96 at paragraph 123

[33] Applicant's submissions dated 13 April 2010 (2011)

[34] Applicant's submissions dated 11 October 2010 paragraph 30

[35] [2009] VCAT 1195 at paragraphs

[36] [2009] VSC 493 at paragraph 30

[37] [1999] VICCAT 51

[38] See decision under sub-heading "Category A"

[39] [2005] VCAT 2817 at paragraph 22

[40] Tilley v VicRoads [2010] VCAT 483, at paragraph 88, referring to Pizer (cited above) referring to Roy Morgan Research Centre Pty. Ltd. v State Revenue Office (unreported, VCAT, 17 June 1999, Coghlan DP)

[41] [2006] VCAT 2048

[42] [2007] VCAT 1237

[43] [2003] VCAT 472

[44] [2006] VCAT 1918