1. At the compulsory conference on 3 October 2008 Deputy President Coghlan viewed three sample complaints. When the proceeding did not resolve, the Deputy President ordered; "No later than seven days prior to the date fixed for hearing, the respondent must lodge with the Tribunal in a sealed envelope marked "Confidential" and for the attention of the member hearing the appeal the documents for which exemption is claimed." (Order 5).
2. By letter, 17 November 2008, the respondent requested clarification of Order 5 and suggested that the aforementioned three sample complaints be lodged at the Tribunal in order to satisfy Order 5.
3. The applicant in a letter dated 25 November 2008 insisted that it was consistent with the nature of the review that all of the documents in dispute be lodged with the Tribunal.
4. Ultimately, the parties signed consent orders to the effect that the aforementioned three sample complaints to be produced to the Tribunal be disclosed to counsel for the applicant, subject to the usual undertakings by counsel as to confidentiality.
5. By letter dated 29 January 2009 the respondent filed the aforementioned three sample complaints at the Tribunal, in what the respondent said, was compliance with Order 5. At no time did the applicant agree that Order 5 had been satisfied. Indeed, it was the applicant's submission that every one of the requested documents needed to be viewed by the Tribunal for a proper determination to be made.

1. The respondent maintains that the requested complaints are of such a nature that it is apparent that all of the requested documents are exempt documents and in this regard the respondent relies upon section 25A(5) to refuse disclosure under the Act. Section 75A(5) states relevantly:

(5) An agency or Minister may refuse to grant access to the documents in accordance with the request without having identified any or all of the documents to which the request relates and without specifying, in respect of each document, the provision or provisions of this Act under which that document is claimed to be an exempt document if-

(a) it is apparent from the nature of the documents as described in the request that all of the documents to which the request is expressed to relate are exempt documents; and

(i) it is apparent from the nature of the documents as so described that no obligation would arise under section 25 in relation to any of those documents to grant access to an edited copy of the document; or

1. When making its submission that the requested documents are 'exempt' documents, the respondent relies upon section 33(1) and section 35(1)(b) of the Act;

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

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-

(a) the information would be exempt matter if it were generated by an agency or a Minister; or

(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. The respondent submits that the 'exempt' documents cannot be amended by deletion of material to make them no longer exempt. In this regard the respondent relies upon section 25 of the Act;

25. Deletion of exempt matter or irrelevant material

(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 that to grant the request would disclose information that would reasonably be regarded as irrelevant to the request;

(b) it is practicable for the agency or Minister 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 agency or Minister shall grant access to such a copy of the document.

1. The Tribunal has had the luxury of viewing the three sample complaints referred to above. The Tribunal has viewed no other documents, the subject of the request.
2. The applicant filed a witness statement and gave evidence at the hearing. The evidence given at the hearing confirmed that the applicant made the request and application to the Tribunal in the course of his employment with the Herald and Weekly Times Pty Ltd. Further, the applicant confirmed any information disclosed would be used, at least in part, in the course of that employment. While not stated, the Tribunal is of the view that it is a reasonable presumption that the use would include newspaper publication.
3. Professor Jude McCulloch provided the Tribunal with a detailed statement and gave evidence on behalf of the applicant at the hearing. The Professor agreed that confidentiality was an important aspect of the investigation process concerning complaints and that it was best practice for the Police to provide confidentiality when dealing with a complaint. The Professor also agreed that a failure to provide confidentiality might deter other people from making complaints. However, the Professor gave evidence that the removal of material identifying parties would be enough to overcome any difficulties that would otherwise arise.
4. On the other hand, during the course of cross-examination the Professor did say that she would want "details of peoples complaints" removed, in addition to personal identifying material. The Tribunal was left with the distinct impression that the Professor was of the view that in order to maintain the strength of complaints taken in confidence a lot more than simple personal identifying material would need to be edited out prior to disclosure. This would of course give rise to the issue of whether a meaningful result is achieved, more of which will be discussed later.
5. Importantly, the Professor agreed that it was essential for the proper investigation of a complaint that the officer complained of should not become aware of the complaint. The Professor agreed that disclosure of the complaint to the relevant officer would hamper the investigation. The Professor did not say how the simple removal of personal identifying material would achieve a satisfactory result. The respondent's concern is that the details of the circumstances of the complaint could lead the relevant officer becoming aware of the complaint.
6. The thrust of the respondent's submission is that the information contained within the complaint and the fact of the complaint itself is all so intertwined that the only editing that could take place to remove material that was exempt, would lead to a result that had no meaning in terms of the applicant's request.
7. The respondent filed two detailed witness statements from Inspector Philip Green (Green) and Senior Sergeant Sean Carroll (Carroll), both members of the Victoria Police. Importantly, Green was attached to the Equity and Conflict Resolution Unit of the Human Resources Department of Victoria Police and Carroll is working in the Disciplinary Advisory Unit of the Ethical Standards Unit of Victoria Police. The Tribunal views these roles importantly as it places them in an excellent position to assist the Tribunal. Both officers were called to give evidence at the hearing.
8. The primary theme of both officers evidence was that their significant experience and positions held within Victoria Police allowed them to say that the documents requested by the applicant contained both sensitive and personal information. Further, that the complaints and the information within was communicated in confidence. Finally, that the policies and structures of the Victoria Police, and in particular, the Ethical Standards Department, the Victoria Police Academy and the office of the Chief Commissioner, meant that the complaints would be handled in the strictest confidence.
9. The officers gave evidence that there are several reasons why it was important that complaints and the information contained in them be obtained in confidence. First, it was important for the integrity of all the investigation processes within the Victoria Police that information be collected and kept, in confidence. Second, in confidence protects complainants, promotes personnel working effectively together and affords natural justice to persons the subject of the complaint. Third, "disclosure absolutely dries up future complaints."[1] Both Green and Carroll were of the view that the risk of complaints drying up if there was disclosure is "real" and as stated, the Professor agreed that disclosure, 'might' deter people from making complaints.
10. The respondent submitted that the nature of the requested documents, the complaints, invoked the provisions of section 25A(5). The submission of the respondent is that the nature of the documents, complaints, is such that first, they contain information relating to the personal affairs of a person. The respondent submits that a broad definition of 'personal affairs, must be adopted when considering this issue. Second, the documents, complaints, contain information obtained in confidence. Finally, it is the submission of the respondent that this information is so intertwined with the document that it would not possible to edit the document and obtain a meaningful result in accordance with the applicants' request.
11. Counsel for the applicant attacked this submission arguing that the respondent is advocating a class of documents that can be considered exempt without considering their content. The applicant submits that the onus is upon the respondent to demonstrate that the documents are exempt or contain exempt material[2]. Further, that this onus cannot be satisfied without a proper consideration of all of the information contained within the documents.
12. The applicant accepts that the requested documents probably or at least possibly contain information relating to the personal affairs of a person. But the applicant submits, one, that this can not possibly be known without a close examination of each and every one of the requested documents, and two, information capable of identifying a person can be edited out, so that the document no longer contains exempt material. Again, the applicant submits that the editing process cannot be assessed without examining the content of each and every requested document.

1. Section 25A(5) may be invoked if two conditions are satisfied. First, if it is apparent from the nature of all of the documents described in the request that they are exempt documents, and second, it is apparent from the nature of the documents described in the request that there would be no obligation, under section 25, to provide access to an edited version of the documents.
2. Section 25 provides essentially that where it is practicable to edit a document so that it no longer contains exempt information, then the relevant agency should provide access to the edited document.
3. The issue of practicability, as raised by section 25, has two essential elements. First, the editing has to be practicable from a resources point of view and second, the editing must result in a document that is meaningful in terms of the request made by the applicant[3].
4. Section 25A(5) is peculiar in that it contemplates a right to refuse to disclose documentation without having to identify any or all of the documents and without specifying the precise basis on which the document is said to be exempt. The refusal is founded upon it being apparent from the 'nature' of the documents requested that they are exempt, as distinct from identification of the precise 'content' of the documents being exempt.
5. That is not to say that the documents contemplated by section 25A(5) do not contain exempt content. Rather that the nature of the document makes it clear that the content is exempt and that it cannot be made to be no longer exempt by editing.
6. Despite the submissions of the applicant to the contrary, the Tribunal is satisfied that parliament intended by the enactment of 25A(5) that there be the right to refuse access to a particular class of documents that are apparent from their nature to be exempt documents. The Tribunal is satisfied that the wording of section 25A(5) is clear, unambiguous and provides for the ability to refuse access "without having identified any or all of the documents to which the request relates and without specifying, in respect of each document, the provision or provisions of (the) Act under which that document is claimed to be an exempt document."
7. The respondent argues that the relevant class or nature of document, to which section 25A(5) applies, is invoked by sections 33 and 35 of the Act.
8. Two conditions need to be satisfied for section 33 to be invoked. First, the information contained within the document must relate to the personal affairs of a person and second, the disclosure must be unreasonable.
9. The applicant's request states that the names of persons or material that identifies individuals and other 'exempt material' (not defined), may need to be deleted.
10. The first issue is whether the removal of information is likely to lead to a meaningful result contemplated by the request (as described above). The second and more critical issue is whether the disclosure of any remaining material either directly or indirectly identifies a particular person whose affairs are mentioned[4].
11. The simple removal of a names, dates places etc, in an effort to remove the exemption assumes an extremely narrow definition of 'information relating to personal affairs'. The authorities are clear that material arising out of a person's work performance can relate to the personal affairs of a person[5]. The Tribunal adopts a broad definition of personal affairs that extends beyond a name or simple personal identification.
12. On the basis of the evidence given by the two police officers the Tribunal is satisfied that even in the absence of the person's name, the material concerning work performance will aid in the identification of the person[6].
13. The Tribunal is satisfied that the nature of the requested documents, (complaints made against staff and recruits at the Victoria Police Academy), leads one to a conclusion that they are exempt as they contain information relating to the personal affairs of a person. Further, the Tribunal is satisfied that the information contained within the requested documents does not lend itself to editing to achieve a meaningful result for the party requesting the documents.
14. The second component of section 33, as to whether the disclosure is unreasonable, involves an evaluation of the competing interests in disclosure and non-disclosure of the information sought. On the one hand, there is the object of the Act to extend as far as possible the right of the community to have access to information and on the other hand the right to personal privacy of an individual[7]. The authorities have identified numerous relevant considerations and it is necessary for the Tribunal to balance the competing interests.
15. Consideration needs to be given to the purpose for which the information is sought, the nature of the information and the circumstances in which the information is obtained[8]; the identity and motive of the applicant and the extent of dissemination of the requested material is also relevant [9]. The extent to which the information is already available to the public is relevant [10]. Whether any public or important interest would be promoted by release of the information is also relevant[11].
16. In any event, the applicant maintains that without examining the content of all the requested documents it is not possible to conduct a proper evaluation of the competing interests. The Tribunal does not agree. Given the evidence provided by the witnesses, the Tribunal is aware of the nature of the requested information and is in a position to determine whether or not disclosure is unreasonable.
17. The information has been requested, a least in part, with the clear intention of disseminating the details to the public at large by way of newspaper articles. Disclosure in these circumstances would be to the public, not just to the applicant. The Tribunal is satisfied that there is likely to be widespread dissemination of the requested material if disclosed.
18. The applicant submits that its motivation is not simply to satisfy idle curiosity. The applicants' submission that disclosure is in the public interest is founded on a desire to insure governmental authorities are held accountable for their actions and to promote a corruption free police force. Further, that disclosure of the documents will advance or promote fully informed public debate on the environment of recruits at the Academy; whether there is an atmosphere of bullying, cronyism or misogyny at the Academy; the nature of any misconduct at the Academy and whether police are held accountable for that alleged misconduct.
19. The respondent submitted that the privacy of the individuals personal affairs outweighs any public interest[12] and in this case, the Tribunal should also consider that the material was obtained in the context of clear procedures assuring all parties of confidentiality and that the material is unlikely to have been provided if the complainants were aware that the material was likely to be disclosed at a later stage.
20. In balancing the various considerations, the Tribunal is critically aware of the nature of the information sought, the circumstances in which the information is obtained and the likely dissemination of any disclosed information. The Tribunal accepts the importance of obtaining this information 'in confidence' as detailed within the evidence of Green and Carroll. The officers' evidence on this point was given passionately and with grave conviction. On the basis of their evidence, the Tribunal is satisfied that it is absolutely critical to the collection of information concerning complaints that all information, including the complaint itself, is collected in confidence. It is critical because the disclosure of such complaints or the information contained within would present "a real risk (to the) general sources of information 'drying up'"[13].
21. The Tribunal is satisfied that the disclosure of the complaints would not, on balance, serve a greater interest than the interest of protecting personal privacy. As such the Tribunal is satisfied that the documents requested are exempt documents pursuant to section 33 of the Act and any editing via section 25 of the Act would render the documents meaningless.
22. The Tribunal now turns to the additional submission of the respondent regarding section 35 of the Act.
23. There are also two conditions that need to be satisfied for section 35 to be invoked. First, disclosure of the document would divulge information or matter communicated in confidence, and second, the disclosure of the information would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of the agency to obtain similar information in the future.
24. Whether information has been communicated in confidence is a question of fact[14]. The applicant submits that in order to make the factual assessment of whether all the information has being communicated in confidence, each and every document forming part of the request must be examined. The respondent submits that it is clear from the evidence presented by Green and Carroll that the Victoria Police have in place detailed and thorough polices concerning in-confidence, which are applied almost without exception. Professor McCulloch agreed with the importance of these polices. It is, the respondent submits, a matter of fact, based upon this evidence that the complaints and information contained within, are communicated and maintained in confidence. The Tribunal accepts the respondent's submission that the complaints and information contained within is information or the matter communicated in confidence as contemplated by section 35 of the Act.
25. Based on the evidence of Green and Carroll, referred to above, the Tribunal is also satisfied that the disclosure of the complaints is reasonable likely to impair the ability of the police to obtain similar information in the future. The Tribunal is satisfied that this risk is real.
26. The Tribunal is satisfied that the complaints cannot be edited in such a way as to satisfy section 25. First, the evidence of Green and Senior Carroll was to the effect that it was the strict policy and the strict procedure followed by the force that all aspects of all complaints were to be treated in confidence. Professor McCulloch agreed that in confidence was an important aspect of the investigation process concerning complaints and the adoption of the in-confidence approach was best practice. If that is the case, which the Tribunal, based on the evidence, accepts that it is, all aspects of the complaint have been obtained in confidence and the editing out of information obtained in confidence would result in a blank document. This is not a meaningful result in terms of the request. Second, it is information of the complaint itself that police witnesses also wanted kept in confidence, as knowledge of a complaint being made may give the officer complained of a chance to escape detection. Any release of any information concerning the complaint would result in this undesired result.
27. A such, the Tribunal is satisfied that the exemption provided for in section 35 of the Act cannot be overcome by deletion of exempt material as provided for under section 25.

1. The applicant submits that the Tribunal should exercise its general public interest override, as provided by section 50(4), to determine that public interest requires that access to the document should be granted. The respondent opposes this submission on the basis that the Tribunal should confine itself to the question of whether the respondents' decision to refuse to process the request as a preliminary matter should be affirmed.

Section 50(4)

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

1. There is nothing within section 50(4) that prevents the Tribunal from considering that section in terms of the exemption determined in accordance with section 35. Given that the Tribunal has already determined that the documents requested are exempt pursuant to section 33 of the Act, this is somewhat of an academic discussion. However, in the event that the Tribunal is mistaken with regard to the application of section 33, the Tribunal proposes to consider section 50(4) in so far as the public interest may be argued to overcome the exemption provided for by section 35 of the Act.
2. The applicant's submission with regard to the section 50(4) public interest override is based upon the history of inquiries relevant to the Police Academy.
3. In 2004, an inquiry uncovered alleged systemic bullying within the Academy and the report is said to have led to the removal of a Chief Inspector and two officers. The formal report has not been made available to the public.
4. In 2007 following complaints, a further inquiry allegedly uncovered examples of cronyism, bullying and misogyny at the Academy. The formal report has not been made available to the public.
5. The applicant's submissions in regard to the public interest have been detailed in paragraph 45 above. The applicant argues that the submissions concerning the need for a fully informed public debate regarding the Police Academy are so strong that they should override the exemption conferred by section 35 of the Act.
6. The Tribunal is satisfied that there is a public interest in promoting a full and frank discussion concerning allegations and complaints involving the Police Academy. However, this does not automatically lead to the conclusion that the public interest requires release[15].
7. The Tribunal is satisfied that there is a greater public interest in the information not being disclosed. The Tribunal is satisfied that it is vital for the conduct of internal investigations within the Victoria Police that the information and complaints be obtained and held in confidence. If complaints were to, in effect, dry up, this would be a significant attack on the public interest which on the evidence which I accepted would be an attack that far outweighs any gain that might occur by disclosure of the complaints and information obtain in confidence.
8. The Tribunal is satisfied that the application of section 50(4) in this case does not override the exemption provided for under section 35.

1. For these reasons I affirm the decision of the respondent.

[1] Oral evidence of Inspector Green at hearing.

[2] Section 55 Freedom of Information Act 1982.

[3] Honeywood v Department of Human Services [2006] VCAT 2048.

[4] Beauchamp v Department of Education and Training [2006] VCAT 1653 at para. 42.

[5] Gunawan v Directorate of School Education (1994) 6 VAR 418.

[6] Beauchamp v Department of Education and Training [2006] VCAT 1653 at para 42.

[7] Victoria Police v Marke [2008] VSCA 218 at para. 100.

[8] Re Page and Metropolitan Transit Authority (1988) 2 VAR 243.

[9] Victoria Police v Marke [2008] VSCA 218.

[10] Scholes v Australian Federal Police (1996) 44 ALD 299.

[11] Vaughan v Department of Sustainability and Environment [2004] VCAT 1562; (2004) 21 VAR 307.

[12] Penhalluriak v Department of Labour and Industry (unreported, County Court of Victoria, Judge Lazarus, 19 December 1983).

[13] Witness Statement of Senior Sergeant Sean Carroll, paragraph 39, signed 9 December 2008.

[14] Ryder v Booth [1985] VicRp 86; [1985] VR 869 at 883.

[15] Secretary to the Department of Justice v Osland [2007] VCSA 96 at para. 91.