8A The applicant has alleged that the respondent, "ISCH", "PPHA" and "SKYS" have committed illegal and criminal acts in relation to herself and her child. Those acts include :

(i) conspiracy to commit an indictable offence under the Crimes Act 1958, for example child stealing, stalking and criminal defamation.

(ii) breach of privacy

(iii) kidnapping and false imprisonment

(iv) threat to inflict serious injury

(v) conspiracy to defraud

(vi) ignoring the rights of a child's legal guardian

(vii) breach of Youth and Family Act 2005 - housing a child alone and putting a child at risk

(viii) signing a child to a residential tenancy lease

(ix) disregarding a child and his guardian's rights pursuant to the Family Law Act 1975.

8B The applicant has also alleged that the Charter of Human Rights and Responsibility Act 2006 ("the Charter") has been engaged by reason of breaches by the respondent or the other agencies by failing to provide for the applicant and/or her son :

(iii) protection of families and children s.17 of the Charter; and

(iv) right to liberty and security of person, s 21 of Charter.

1. As a result of some or all of the alleged breaches referred to in paragraph 8A hereof, the applicant launched a prosecution. The prosecution apparently came to the attention of the Acting Director of Public Prosecutions. As a result, he took over the conduct of the prosecution and then discontinued it. The applicant then apparently made complaints in some type of proceeding in the Supreme Court about the Acting DPP's conduct, however, those proceedings appear to have been dismissed.
2. The relationship between the respondent and a number of other organisations that dealt with the applicant or her son, are referred to in the statement of Kevin Thomas. In paragraphs 7-10 of Mr Thomas' statement, he makes clear the relationship between these organisations and the respondent. He states as follows :

In August 2007 the Applicant complained to the Department in relation to the provision of crisis accommodation for her and her son, .... The complaint took the form of an article titled 'Strangers with Candy'. The complaint concerned a number of service providers that have contracts with the Department.

The contracted service providers (and their staff) complained about by the applicant were the Port Phillip Housing Association ('PPHA'), St Kilda Youth Services ('SKYS') and Inner South Community Health Services ('ISCHS').

In accordance with Department procedures, the complaint against the PPHA was the responsibility of my work area, the Complaints Management Unit ('CMU'), while the complaints against SKYS and ISCHS were the responsibility of the Southern Metropolitan Regional Office of the Department. The complexities in managing the applicant's complaint against multiple service providers meant that there was a need to co-ordinate the complaint investigation and response and ensure that all relevant persons had input into the response sent to the applicant.

The contracted service providers were asked for their responses to the matters raised by the applicant in her complaint. The Department also independently reviewed the information gathered from the contracted service providers including their internal documents and policies. Reference was also made to the Centrelink public documents, advice gathered from the Housing Legal Services Branch and the Children, Youth and Families Act 2005.

1. At a Directions Hearing in this matter on 1 August 2008, I made an order that the respondent must comply with s 53A of the Act and inform relevant persons of their right to intervene in the proceeding and file with the Tribunal a list, marked "confidential", of the names and addresses of the persons notified. Pursuant to this order, the respondent notified 38 persons whom it took the view were at risk of having their personal information released. Of those people, many replied they did not want their personal information released, relatively few others indicated that there was no objection to the release of such information and a number of others did not reply at all.

1. The hearing commenced on 12 November and proceeded all day until all the evidence was complete, except for the evidence of the applicant's son. Mr Batskos, who appeared for the respondent, indicated that he did not want to cross-examine the applicant's son who was busy with his VCE examinations at that time. As a result, I told the applicant that she could tender her son's witness statement and that could stand as his evidence. After some discussion, she agreed to take that course. However, I said that if she changed her mind and wished her son to be present, she could let me know on the following day. On the morning of 13 November, the Tribunal received a message from the applicant stating that she had a dental emergency and would not be able to attend that day. Unfortunately, by the time the message was received, it was too late to communicate with Mr Batskos the solicitor for the respondent before he left his office. Therefore, at 10:00 am, I informed Mr Batskos of the communication from the respondent. I adjourned the proceeding to 12:00 noon the following day, being 14 November 2008.
2. On the following day, at midday, the hearing resumed, and the applicant's son's witness statement was tendered in evidence. At that point the evidence was complete. I reminded the applicant that I had previously informed her of the fact that Mr Batskos would address me first; after he addressed me, she would be able to address me and Mr Batskos could then make a reply.
3. At the beginning of Mr Batskos' address, he handed to both myself and the applicant some written submissions which he said he intended to talk to and some authorities on which he intended to rely. Mr Batskos then mentioned the names of those authorities. One of the authorities was a decision of Senior Member Preuss in Morgan v Port Phillip City Council. Upon the mention of this case, the applicant complained that that case should not be allowed to be mentioned as she believed that there had been considerable wrongdoing with that proceeding. I informed the applicant that Mr Batskos was able to refer me to any authority that was relevant. The applicant then informed me that she was not going to listen to Mr Batskos' submissions and that she would leave the Tribunal. I informed the applicant that that was an undesirable course to follow and that she would be well advised to listen to Mr Batskos' submissions. She declined to listen to Mr Batskos' submissions and immediately left the hearing room. Before she left, I informed her that she would be called when it was time to make her submissions. When Mr Batskos was approximately 5 to 10 minutes into his submissions, the applicant returned and made an application that I disqualify myself from hearing the proceeding. She stated that I should not rely on the case decided by Ms Preuss and that early on in the hearing I had referred to Mr Batskos as an honourable man. From my recollection, which may on this point be faulty, the reference to Mr Batskos, to which the applicant was referring, was that if she was in any doubt as to procedural matters, she could ask Mr Batskos who I was sure would help her. Further, the applicant said that I had stated that I was not an expert in either the criminal law or residential tenancy.
4. At the conclusion of the applicant's application for disqualification, I heard Mr Batskos who submitted that I had shown no actual or perceived bias and therefore there should be no disqualification. I then gave a decision refusing to disqualify myself.
5. I then immediately urged the applicant to remain in the Tribunal and hear Mr Batskos' submissions. She again refused and left the Tribunal. Mr Batskos then proceeded with his submissions and concluded the same at approximately 1:30 pm. At that time, the clerk then went to look for the applicant outside and she was nowhere to be found. I then adjourned the hearing until 2:15 pm in the hope that the applicant would return. At 2:15 pm the applicant had not returned, so I stood the matter down further until 2:30 pm. At that time, the applicant still had not returned.
6. Therefore, I made an order that the applicant could serve and file written submissions by 4:00 pm on 25 November 2008, and the respondent could reply to those submissions within 7 days.

Section 32 - Document 37 - Legal professional privilege

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

1. The respondent claims that part of page 1 and pages 2-4 inclusive of document 37 are exempt as a result of s 32(1). (The other part of page 1 of document 37 it is submitted by the respondent is exempt as a result of s 33(1) of the Act. I will deal with that in due course).
2. Document 37 was described by Louise Elisabeth Johnson in her statement which was tendered in evidence. Ms Johnson is the Director of the Legal Services Branch of the respondent. She also gave oral evidence that she is a barrister and solicitor of the Supreme Court. She described document 37 by stating that the document was produced in response to the applicant's application. She then stated :
   1. 'emails' between DHS staff and DHS Legal Services Branch (Document 37).

The document referred to in paragraph 5 of this statement contains an exchange of emails between DHS staff and me in which DHS staff requested, and I provided, legal advice in relation to the Complaint (of the applicant).

Accordingly, the document would be exempt from production in legal proceedings on the ground of legal professional privilege as it contains confidential information between me, in my capacity as legal advisor, and my clients for the dominant purpose of seeking and giving legal advice.

1. I have examined document 37 and in relation to that part of the document that the exemption in s 32(1) is claimed, it is clear to me that the description given by Ms Johnson is accurate and correct. The applicant submitted that legal professional privilege cannot apply where the documents show illegal acts. I have doubts as to this proposition as a matter of law, however, I need not consider that proposition as document 37 does not disclose illegal acts.
2. Mr Batskos submitted that :

A document will be privileged if it contains a confidential communication that was made for the dominant purpose of obtaining or providing legal advice or is referrable to pending or completed litigation.

1. It is also clear that legal professional privilege also attaches to confidential professional communication between agencies and their salaried legal advisers. See Attorney General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at 510, 521-2. In Currie v Building Commission (2008) VCAT 279 at [23], I commented on the rationale for this rule. I there stated :

It is very important that government departments and citizens are able to contact their legal advisers in the knowledge that both the information which they impart to their legal advisers and the information that the legal advisers impart to them are kept in confidence, .... Legal professional privilege has been an important part of the common law for a considerable period of time because it has been considered it is important that people have the confidence to be able to disclose matters to their legal advisers that they may not want to disclose to others. This is both a common law and fundamental human right.

1. I am satisfied that this document (37) is a request for legal advice to the respondent's salaried legal adviser and advice in relation to that request. Further, I am also satisfied that that advice has been given in contemplation of this litigation.
2. Under those circumstances, subject to s 50(4) of the Act, document 37 is exempt pursuant to the provisions of s 32(1) of the Act, except for the first half page of that document for which the respondent is claiming an exemption pursuant to s 33.

Section 30(1) - Internal working documents - Documents 4 and 77

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

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

1. For s 30(1)(a) to operate, there are a number of requirements :
   1. The document must be generated within the agency as opposed to be obtained from outside an agency. See Ryder v Booth [1985] VicRp 86; (1985) VR 869 at 877.
   2. For the purposes of this decision, a document must be generated by an officer of an agency which is defined in s 5 of the Act to mean a member of the agency, a member of staff of the agency, and any person employed by the agency.

It is noted that the document need not be in the nature of communication from one officer to another but can in fact be a personal aide memoir. See Marke v Victoria Police (2006) VCAT 1364 at [63].

1. The information must be in the nature of "opinion, advice or recommendation" or in the nature of consultation or deliberation between officers.

It was made clear by Deputy President Coghlan in Halliday v Office of Fair Trading (unreported 20 July 1995) at 22 that the expression "opinion, advice or recommendation" conveys a meaning of matters in the nature of 'a personal view', 'an opinion recommended or offered', or 'a presentation worthy of acceptance'.

1. It is necessary that the contents of the document must have originated in the course of, or for the purposes of, the deliberative processes involved in functions or agencies.
2. Disclosure of the document would be contrary to public interest.

1. Document 4 has been described by Kevin Thomas. He stated :

This document is an email dated 13 March 2008 sent between Department officers. Attached to it is the draft of a response letter to the applicant that the officers had been working on and were considering. The draft had been prepared with the input of a number of Department officers. The attachment represents the deliberations of officers and contains an incomplete description of the issues relating to the applicant's complaint and the Department's views about them.

The draft was subsequently refined and altered as a result of the officer's deliberations and input by various Department staff as it progressed through the approval process. The draft is dated 5 days before the actual response to the applicant was sent.

The draft response contains the deliberations of Department officers as they develop the response to the applicant's complaint. It contains tracked changes with proposed deletions and inclusions and is far from being finalised. The release of this document may cause unnecessary confusion and be misleading as it represents only one stage in the drafting process.

It is my view that in its present form the document is likely to mislead as it does not adequately reflect complaint response. The release of the document would also be mischievous in that it would cause the final response to be less clear. The applicant's complaint was properly dealt with and she was responded to it the manner that the Department response to other complaints of its kind. For complainants and staff who have allegations made against them it is important to have finality of the complaint. For these reasons the release of the draft would be contrary to the public interest. A copy of the final letter dated 18 March 2008 responding to the applicant's complaint is attached to this statement marked with the letters "KDT-2".

1. I have examined document 4 and I am satisfied of the accuracy of the submission made by Mr Batskos who appeared for the respondent when he states :

The evidence is that document 4 has attached to it a draft response letter to the applicant that officers of the Department had been working on and were considering. It had been prepared with the input of a number of officers. The draft comprises the deliberations of officers as they developed a response to the applicant's complaint. It contains an incomplete description of the issues relating to the applicant and the Department's view about them. The draft was superseded by a final letter sent to the applicant 5 days later.

1. Further, on examination of document 4, I am satisfied that the same took place as part of the deliberative process involving the respondent's functions.
2. It is noted that the various decided cases give the words "deliberative process" a very wide meaning to include the process of deliberation or consideration involved in the agency, ie the thinking process. See Ball v Department of Premier and Cabinet (1983) 3 VAR 201 at 208. Further, Senior Member Walker made it clear in Morgan v Bayside Health [2008] VCAT 1796 at [10] that the deliberative process is not confined to policy matters. The Senior Member stated :

... discussions between the Respondent's officers concerning an appropriate response to the Applicant's complaint and includes a draft letter .... would disclose matter in the nature of opinion, advice and recommendation prepared by an officer of the Respondent that was given in the course of this deliberative process and so it falls within s30 (1)(a).

1. It was made clear by Mr Thomas in his witness statement, which my reading of the document supports, that document 4 was prepared in the course of a deliberative process and contains deliberations of Department officers as they developed the response to the applicant's complaint which was part of the Department's thinking process leading up to the final letter which was exhibited to Mr Thomas' statement being "KDT-2" of that statement.
2. Insofar as the public interest considerations of s 30(1) are concerned, it will be convenient for me to deal with those after my consideration of document 77. That is, I will deal with the public interest provisions of this section jointly with documents 4 and 77.

1. For the purpose of this proceeding, document 77 has been divided into three categories. That is, partial release, exemption taken pursuant to s 30(1) and exemption taken pursuant to s 35(1)(b). At this particular point, I will deal only with the exemption referred to in s 30(1).
2. In paragraph 32 Mr Thomas deals with the contents of documents 77 by stating :

Document 77 is a file note of contact between Department officers and between Department officers and agency staff. This document contains the file notes of conversations between Department officers and the Department and staff from contracted service providers. The information includes legal advice and information in the nature of frank open exchange from the contracted service providers to the Department.

1. It is clear on reading document 77 that it relates to discussions between the departmental officers with another agency or agencies, concerning an appropriate response to the applicant's complaint. Such discussions are clearly, in my view, in the nature of opinion, advice or recommendation. This is consistent to what was found by Senior Member Walker in Morgan v Bayside Health [2008 VCAT 1796] at [10] extracted in paragraph 31 hereof.
2. After reading document 77, it is clear it relates to a discussion between officers concerning the steps to be taken before an appropriate response is given to the applicant's complaint. Therefore it is of the deliberative or thinking process of the Department.
3. It is also clear from the document that the discussions between Department officers and officers with at least one other agency have emanated in what is a writing in the nature of opinion, advice or recommendation.
4. Thus, in my opinion, the relevant part of document 77 forms part of the deliberative process and is in the nature of opinion and advice. Therefore, the first two considerations in s 30(1) have been fulfilled.

Section 30(1)(b) - Public interest - Documents 4 and 77

1. It is important to remember that s 30(1)(b) of the Act requires, as Mr Batskos stated :

the Tribunal to be satisfied only that the disclosure would be contrary to the public interest, not that the public interest requires non-disclosure.

1. The Court of Appeal in Secretary Department of Justice v Osland [2007] VSCA 96 at [77] referred to the public interest considerations which underline the exemption in s 30 of the Act. Their Honours in that case referred to the public interest considerations underlying the exemption for internal working documents by stating :

These include 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.

1. The nature of both documents 4 and 77 being working documents or preliminary advice and opinions will not generally be appropriate for release. See Oostermeyer v Alfred Hospital (1998) 13 VAR 449 at 455.
2. In general terms, there is a danger in releasing draft documents that do not necessarily represent the agent's final views or opinions. This was accepted in Maloney v Department of Human Services (2001) 19 VAR 238 at [54]. Senior Member Walker in the Morgan case referred to above, after making the quotation which is referred to above (see paragraph 31 hereof), stated in paragraphs 10-12 the following :

Further, I think that its disclosure would not be in the public interest. It is important that officers responding to complaints made by members of the public should give careful consideration to the matters raised by that person and prepare an accurate and considered response. To do that, a degree of consultation will often be required.

It is not in the public interest that the nature of these discussions be disclosed. If an agency's officers thought that documents recording their discussions could be released that might dissuade them from communicating as fully as they should and inhibit frankness and candour in the making of communication between them. As a consequence their ability to deal appropriately with complaints they receive might be adversely affected which would obviously be undesirable. In this instance there were a number of persons who needed to be consulted in order to provide a proper response to the allegations made by the Applicant. The very serious and sensitive nature of those allegations warranted careful investigation and full consultation.

Similarly, the draft document should not be disclosed. All that will do is lead to unnecessary and quite sterile debate concerning the appropriateness of a draft that was never adopted and sent. The claim for exemption of this document, including the draft, is therefore upheld.

1. Precisely the same considerations apply in this particular case to what Senior Member Walker considered in the case of Morgan. In fact, it seems clear to me that the documents being document 4 and 77 are of a very similar nature to that which the Senior Member considered in Morgan.
2. Therefore, I find that the disclosure of documents 4 and 77 would be contrary to public interest.
3. The applicant has submitted in her statement of public interest grounds :

It is not in the public interest to permit servants of the State (who are not employees of security agencies) to engage in covert operations especially in opposition to the public interests, the best interests of citizens, society and a democratic system of government.

1. The applicant has suggested that there have been illegal acts, such as trying to remove her guardianship of her child by various agencies that she has referred to in this proceeding. She also vaguely refers to common law rights and breaches of the Children Youth and Families Act 2005. However, she has failed to substantiate any of these allegations. By way of example, she stated :

Employees of DHS and associated agencies are committing Crimes against Humanity. They are using disadvantaged human beings - including children - as a natural resource to be exploited; and breaching numerous laws to achieve that end. The practice of separating children (minors) from their families is to facilitate making the children 'client commodities' to be exploited. Agencies pretend to provide services to the children (eg basic necessities of living at the flat that in theory were brand new but in reality were fit for the tip) and charge the taxpayers (allocate funding expenditure to the children) for 'needs' provided on paper ....

1. The applicant then goes on to say how such conduct promotes paedophilia.
2. While I do not doubt that the applicant is making these allegations through genuine concern, in my view, they are completely unfounded and made using generalisations, with a lack of understanding for the law in this particular situation. In any event, the contents of documents 4 and 77 would neither prove nor disprove the applicant's allegations.
3. In particular, in relation to document 4, I agree with what has been stated by Mr Thomas, which I have referred to above, and the summary of the same made by Mr Batskos where it is stated :

(a) Release of the draft letter showing tracked changes may cause unnecessary confusion and be misleading as it represents only one stage in the drafting process.

(b) In its current form the draft letter is likely to mislead as it does not adequately reflect the complaint response (sent 5 days later). The complaint was properly dealt with and responded to in an appropriate manner.

(c) The release of the document would be mischievous and would cause the final response to be less clear.

(d) It is important for both complainants, and staff of the Department who have allegations made against them, to have finality of the complaint process.

1. As noted, in paragraph 8B hereof, the applicant has alleged several breaches of the Charter. Section 32 of the Charter mandates the way other statutes are to be interpreted in relation to the Charter. Section 32 of the Charter reads as follows :

(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

(a) an Act or provision of an Act that is incompatible with a human right; or

(b) a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.

Therefore, in interpreting the public interest provisions of the Freedom of Information Act, I must have regard to s 32 in particular and the Charter in general.

1. As I understand, the applicant's submission on this point, she contends that the respondent, ICHS, SKYS and PPHA have engaged in breaches of the Charter. Whilst I accept that documents which disclose extensive breaches of the Charter by government authorities or their contracted agencies, may properly be released under the public interest provisions of the Act, despite being exempt under the Act, none of the present documents prove or disprove any such breaches. Hence, the Charter issue does not require the release of any of the exempt documents in the public interest.
2. Therefore, in my opinion, the exemption claimed pursuant to s 30(1), relating to document 4 and the relevant part of document 77 has been made out. Therefore document 4 and the relevant part of document 77 will not be released.
3. Thus, subject to s 50(4), the exemption pursuant to s 30(1)(b) is made out to the relevant parts of documents 4 and 77 to which that exemption has been claimed.

Section 33 - Unreasonable disclosure of personal affairs - Parts of documents 4, 22, 69 and 76, in total documents 36, 37 and 116

1. The personal affairs of the documents or parts of the documents referred to in this heading are sufficiently described in Attachment A hereof.
2. Section 33 of the Act relates to personal privacy. The relevant parts of that section read as follows :

(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).

(2A) An agency or Minister, in deciding whether the disclosure of a document under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person, must take into account, in addition to any other matters, whether the disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person.

(3) Where a request by a person other than a person referred to in subsection (2) is made to an agency or Minister for access to a document containing information relating to the personal affairs of any person (including a deceased person) and the agency or Minister decides to grant access to the document, the agency or Minister (as the case may be) shall if practicable notify the person who is the subject of that information (or in the case of a deceased person, that person's next-of-kin) of the decision and of the right of appeal against the decision provided by section 50(2)(e) to the person or, in the case of a deceased person, to the person's next-of-kin.

information relating to the personal affairs of any person includes information -

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

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

1. Mr Thomas in his witness statement refers to the fact that documents 29 and 69 contain information that was given in confidence which I presume also relates to the personal details of that information, I will be dealing with those documents in more detail below in relation to the exemption claimed pursuant to s 35(1)(b) of the Act.
2. Ellen Jane Browne who is the Manager of Corporate Integrity, Information and Resolutions Unit of the respondent gave evidence before me and prepared a witness statement which was tendered and which statement related to the personal affairs exemption in s 33. The salient points made by Ms Browne in her witness statement were conveniently and correctly summarised by Mr Batskos in his submissions :

(a) It is generally not unreasonable for decision makers (eg VPS 6 and above) to be identified as such within the public sphere. They have the skills and authority to act on behalf of the Department. They are of an appropriate level to be accountable for decision making of the Department.

(b) It would be unusual for an officer below VPS6 to be publicly identified and they would not expect their names to be released to the world at large. Many do not have skills necessary to deal with difficult issues or difficult members of the public. They have an expectation that they would not normally have to deal with the public in a way which identifies them individually.

(c) It would be inherently stressful and cause anxiety for such junior levels of staff to have their identifies and direct contact details (eg direct telephone numbers or mobile telephone numbers) released to the public - it would be unreasonable to do so.

(d) Names of those more junior officers are not available on publicly available staff lists or on the internet. Senior staff details are available reflecting public accountability of their roles. Even where names might be known, direct telephone lines or other means of direct contact may now be publicly available - a central number is nominated as any contact point.

(e) Direct contact with particular individuals is not appropriate given the many inherently sensitive areas handled within the Department. Where there are instances of not being able to always meet requirements, clients try to contact staff directly but there are program specific contact points to facilitate contact, not direct contact with individual officers.

1. As I have previously noted, the relevant persons whose information the applicant seeks were notified of this proceeding pursuant to s 53A of the Act. Those persons fall into three categories :
   1. those that do not want their information released;
   2. those that have stated that they have no objection to their information being released; and
   3. those that did not reply.
2. It is clear that the personal information contained in all the documents for which s 33 exemption is claimed comprises names; email addresses, work locations, direct telephone numbers, mobile telephone numbers and signatures.
3. The combined effect of s 33(1) and (9), in my view, clearly make that information personal affairs of a person within the meaning of s 33(1).
4. The more difficult question is whether the disclosure of this information would be unreasonable. Recently, the Court of Appeal has dealt with the question of in what circumstances disclosure of that information would involve unreasonable disclosure of personal affairs. See Victoria Police v Marke [2008] VSCA 218.
5. In Mr Batskos' submissions, in my view, he has correctly summarised the propositions that can be gleaned from the decision in Marke's case. He stated :

The following principles may be gleaned from the Court of Appeal's decision :

(a) Disclosure of a document under the Act is about disclosure or release to a particular applicant (see paragraphs [5], [86] and [99]).

(b) It is wrong to assume that disclosure under the Act to a particular applicant is in fact disclosure to the world at large (see paragraphs [27], [99] and [103]). But potential disclosure to the world at large is a clearly relevant consideration (see further below).

(c) In considering whether disclosure would 'involve' disclosure of personal information, it is possible that a document may involve unreasonable disclosure of personal information about an individual not because of what is in the document taken alone, but because of what that information may reveal when it is considered in light of other information that may be known to the person seeking the document (see paragraphs [7], [9] and [94]).

(d) In determining whether disclosure would involve the 'unreasonable' disclosure, it requires a balancing of competing interests. On the one hand the interests of a person seeking access to information and, on the other hand, the legitimate right of a person whose privacy may be invaded by the disclosure of a document (see paragraphs [76], [93], [96], [103] and [106]).

(e) There is no power under the Act for an agency (or the Tribunal) to grant access on a conditional basis. The very notion of access being granted on the basis of an applicant's assurance of non-disclosure is repugnant to the scheme of the Act (see paragraphs [30]-[31], [69]-[70], [105]-[1-106]).

(f) The Tribunal is entitled to assume, in the vast majority of cases, that once a document is made available under the Act, it has the potential to be disseminated widely and that indeed may happen. It is entitled to approach the balancing exercise required under s 33(1) with that assumption firmly in place. The assumption will hold true in the vast majority of cases. Most applications under the FOI Act are made by those who do seek to disseminate any information obtained as widely as possible. They may be journalists, they may be politicians, or they may be members of interest groups with a particular agenda in mind. Not every case, however, will fall into this description (see paragraphs [68] and [80]). The loss of control of information in a document, Potentially to the world at large, is an important consideration for any decision-maker asked to balance interests in application of s 33(1) of the Act. Ordinarily a decision-maker will need t o bear in mind that disclosure to a person will mean that the decision-maker will have no further control in limiting disclosure of the information to any other person and, therefore, that it would be potentially available to the world at large. But that may not always be the case (see paragraph [103]).

(g) In determining whether disclosure is unreasonable, the Tribunal must identify all facts and matters relevant to the question to be determined and to make an evaluative judgment based upon them. What amounts to unreasonable disclosure will necessarily vary from case to case. It includes having regard to a range of factors beyond the privacy of the person whose affairs will be disclosed in determining whether disclosure is unreasonable (see paragraphs [74], [76] and [97]). That statutory condition requires the exercise of judgment and analysis to all of the facts which bear relevantly, logically and probatively to the question. In other words, any matter which as a matter of relevance, logic and proof informs the decision of whether the statutory condition is satisfied must be taken into account. The facts which may be relevant to the balancing process may be as diverse as the facts which arise for consideration. The cases to date indicate the diversity of the facts which may be necessary to consider, such as the identity of the applicant. In the end, the proper application of s 33(1) of the Act will require a decision-maker to consider all matters relevant, logical and probative to the existence of conditions upon which the section is made to depend (see paragraph [104]; Re Shewcroft and ABC (1985) 7 CAN N307; Re Lapidos and Office of Corrections (No 3) (1990) 4 VAR 150, 154; Page v Metropolitan Transit Authority (1988) 2 VAR 243).

(h) The types of factors which can be taken into account in determining whether disclosure would be unreasonable include the factors in the case of Page v Metropolitan Transit Authority ((1988) 2 VAR 243, 245-6 (Judge Jones)), which appear to accord with commonsense. Those factors are :

(i) the interest that the applicant had in the information in question (see also Victoria Police v Marke [2008] VSCA 218 at [19]);

(ii) the nature of the information to be disclosed (or its past or present sensitivity: Ibid);

(iii) the circumstances in which the information was obtained (Ibid);

(iv) the likelihood of the information being such that the person concerned would not wish to have disclosed (any view about disclosure expressed by any person to whom the personal information relates: Ibid);

(v) whether the information had any current relevance (Victoria Police v Marke [2008] VSCA 218 at [77], [100], [104])

(i) consideration of the extent of dissemination or publication is something that can be a relevant consideration in any particular given circumstances. The extent of possible dissemination of the material containing the information is capable, in an appropriate case, of being an important consideration bearing upon the resolution of the issue (see paragraphs Id [67], [71], [72], [86], [88], [99], [105], [108])

(ii) the statutory consequences of disclosure will be a powerful consideration in the balancing of interests required. One of those consequences is that disclosure to an applicant will ordinarily, if not always, entitle the applicant to use the information without restriction. That possibility is plainly a factor relevant to be taken into account by a decision-maker and in may cases will weigh heavily against disclosure of a document under s 33(1) (see paragraph [99]).

(iii) A consequence of disclosure under FOI is ordinarily that any restriction on use that might otherwise have existed will be lost. This loss of privilege or confidentiality is a factor which will weigh heavily against disclosure, but it is not of itself determinative (see paragraph [101]).

(iv) The sensitivity (past and present) of the personal information (see paragraph [19]).

(v) The relationship between the personal information and any other information in the document (Ibid);

(vi) whether and to what extent the personal information was already known to the applicant (see paragraphs [19], [90]). This factor will be stronger if the information was notorious (eg on television) (see paragraphs [83]-[84]).

1. I agree with the point made by Ms Browne in her evidence referred to in paragraph 58 hereof which, for convenience, I will repeat in summary form:

(a) many public servants below VPS6 do not have the necessary skills to deal with difficult issues or members of the public and they do not have the expectation that they will have to deal with members of the public in a particular way;

(b) it is inherently stressful for junior staff to have their identities and contact details released to the public;

(c) junior officers' names and contact details are not generally available staff lists or internet;

(d) it is noted that the respondent in many cases like this needs to deal with matters that are inherently sensitive within the department.

1. Further, I have already made comment that the applicant has made unsubstantiated allegations of criminal conduct. I also note that she has launched prosecutions against various individuals, which prosecutions were taken over by the Acting DPP and discontinued. Also, in any event, the release of the information for which s 33 is claimed would not assist the applicant in proving or disproving her allegations.
2. I have already noted that s 53A notices were sent to those whose personal privacy could be affected by the release of the documents in question. The responses received fell into three categories. Those that objected to having their names released, some alleging that dealing with the applicant have lead to threats and abusive behaviour, that persons do not want to be subject to, others saying they have no real input into policy and procedure. It is also said by some of those people that no useful purpose would be achieved by releasing those names.
3. The second category is that those who have answered and said that they have no objection to release.
4. Finally, there were a number that did not answer the s 53A notice at all.
5. In deciding this issue, I have taken into account and accept the evidence of Ms Browne. I have balanced her evidence against the applicant's objective of preventing wrongful acts. Having come to the conclusion that the information of a personal nature would not assist the applicant in her quest, it necessarily follows that the personal information should not be released.
6. In performing the balancing exercise which I am required to do, I have formed the view that those that have answered the s 53A notices indicating that they do not want their names and personal details released, to release the same would be unreasonable disclosure.
7. However, those that have consented to having their names released, I find it difficult to see how it would be unreasonable to release such names. While Mr Batskos said in some circumstances the release of names of people that have consented might be unreasonable, I was unable to glean that any of those circumstances, would apply in this proceeding. Therefore, those parts of the documents to which the respondent has taken objection to releasing pursuant to s 33, which contains the names and details of those who have no objection to release, will be released to the applicant.
8. The final category of persons is those that did not answer the s 53A notice at all. I take a similar view to these people that I did to those that consented to the release of the information. However, a notice pursuant to s 53A(3) is required to be sent to those people prior to the release of any of their personal information. Thus, I will require the Registrar of the Tribunal to notify those people that it is intended to release their personal details 28 days from the date of the orders herein.
9. To sum up at this stage, the exemption in relation to those persons that have objected to the release of the part of the documents to which s 33 applies, the exemption will be upheld in relation to part of page 1 of document 4, page 4 of document 22, pages 1 and 2 of document 36, part of page 1 of document 37, part of pages 1 and 3 of document 69 and part of pages 1 and 2 of document 76. However, there will be release of those documents insofar as the same refer to the names of those persons who have consented to release. As far as those persons' names who have neither agreed or objected to release of their names, those persons should be notified pursuant to s 53A(3) of the orders made herein.

Section 35(1)(b) - Matters communicated in confidence - Documents 22, part of page 2 and part of page 3, Document 69 page 1 and part of page 3, Document 76 part pages 1 and 2, Document 77 part of pages 1 and 2 and Document 116 part of pages 1, 2 and 3

1. The objection taken in relation to all those documents or parts of documents, referred to in the heading immediately above this paragraph, is that they contain confidential information provided by agency staff for consideration of Department officers and disclosure would be contrary to the public interest, as it would be reasonably likely to impair the ability of the Department to obtain similar information in the future.
2. Section 35(1)(b) reads as follows :

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. Mr Thomas describes the relevant parts of document 22 as follows :

The document has been partially released. The remainder of the document contains confidential information relating to communications of a sensitive nature from contacted service providers to the Department to assist the Department with its response to the complaint. For example, one of the contacted service providers has communicated legal advice it has obtained. There is other information relating to the confirmation of the circumstances of the complaint to assist the reader to understand the context of the complaint. This is not information the contracted service provider intends the Department to include in its response to the complaint. It is communicated in confidence.

In the context of the complaint handling, the contracted service providers understand the relationship with the Department to be one where they can receive on a confidential basis assistance and support from the Department about their complaint handling. In particular, the management of difficult and complex complaints which the contracted service providers have been unable to resolve. One of the reasons for the CMU (Complaints Management Unit) is to provide advice and assistance to these contracted service providers. In addition, contracted service providers remain accountable for the services they deliver under contract and they understand they will need to answer to complaints about them made to the Department.

The document shows enquiries made by the Department to confirm information about the complaint. It also contains information provided by the contracted service providers regarding circumstances leading up to the complaints and the decision-making by the contracted service providers.

In order to get the best outcomes in complaint handling, the Department encourages the free flow of information from its contracted service providers. I would not want to see that flow of information compromised by divulging the 'raw' information provided by contracted service providers or other participants in the complaint handling investigation process of the Department. To impede complaint handling by reducing the quality of information provided to the Department would not be in the interests of individuals who make complaints nor the community at large, as optimal complaint handling often leads to service improvements.

Complaints can sometimes expose ongoing areas of deficiency in an organisation. They can have significance beyond the specific complaint as they are seen as having the potential to be the 'canaries in the coal mine' in relation to the operation and quality of services provided. Although there was no broader significance in relation to the applicant's complaint, that would not be understood by persons hearing about disclosure if the document was released to the applicant. Disclosure would compromise complaint management and would compromise monitoring of contracted service providers as the present openness of communication would be adversely affected.

Release of the confidential information would in my experience lead to many contracted service providers becoming suspicious about the manner in which the Department's complaint handling works. This in turn would undermine the work that has been undertaken in the Department to foster constructive communication between the Department and its contracted service providers in relation to complaint handling. The disclosure of this frankly provided information would adversely impact on the level of co-operation.

Release of the remainder of the document is also likely to work against the Department's purpose for complaint handling. The Department attempts to manage complaints to achieve resolution of issues complained about by individuals. Appropriate resolution of complaints cannot be achieved where nature and quality of the information provided to the Department about a complaint is limited in quality. Based upon my experience, I do not believe the release of the exempt information that has been claimed exempt in this draft document would assist in the resolution of the complaint for the applicant. In my view, it would be contrary to the public interest to disclose information that would work against resolving complaints, as resolving complaints is the purpose of managing, investigating and responding to complaints.

1. At paragraph 30 of his statement, Mr Thomas makes the point that the information in document 69 "is of a similar nature to that which is contained in document 22, although in this instance it is a direct communication provided by the contracted service provider".

1. In relation to document 76, Mr Thomas states as follows :

Document 76 is the response to the complaint from SKYS. The information contained within the document is of the same nature as that contained within document 69. The expectation of confidentiality in respect of this communication is the same as that for the communications from other contracted service providers.

The information (in document 77) includes legal advice and information in the nature of frank open exchange from the contracted service providers to the Department. The nature of the information is the same as that in document 69, although it has been recorded by Department officers and is not in a form provided directly by staff of the contracted service provider.

Document 116 is an email exchange between PPHA and the Department regarding a response to the applicant's complaint. The document contains confidential information including legal advice, frank assessment of the circumstances arising from the complaint and the contracted service provider's response to the complaint made to the Department.

1. After having examined the documents, I agree with the description given to them by Mr Thomas
2. While it is clear on the face of some documents, for example document 69, that they have been provided in confidence, the others, by an examination of the express statements that were in fact made in the documents, the circumstances surrounding the making of such documents, and the terms of such documents, it is clear that all of the documents for which the s 35(1)(b) exemption has been claimed are, and were intended to be by their maker, confidential.
3. For considerations of what amounts to matters communicated in confidence, see Ryder v Booth [1985] VicRp 86; (1985) VR 869 at 883. Further, it is clear that the nature of the information contained in such documents is that they were intended to be in confidence. The documents were made for the information of the Department which Mr Thomas has described as frank and candid responses from contracted service providers containing inherently sensitive allegations.
4. In my view, it is very important that the respondent maintain integrity in its relations with the service providers. If the confidential information was disclosed, that integrity is likely to disappear in relation to future handling of such complaints as made by the applicant. Put another way, it is important to have a free flow of information between the Department and its contracted providers in order to obtain the best outcome of a complaint, such as the applicant made in this instance.
5. Therefore, I come to the decision that the information contained in the documents for which this exemption is sought was all information given in confidence.

Whether release of the documents in question would be likely to impair the ability of an agency to obtain similar information in the future

1. The next matter that I must consider is whether the release of this information would be reasonably likely to impair the ability of the agency to obtain similar information in the future.
2. In determining this issue, the question that I must ask is whether there is a real chance of an impairment occurring in the ability of the agency to obtain such information from similar sources in the future (and not which is fanciful or remote) - see Department of Agriculture v Binnie (1989) VR 86, 842, Marks J.
3. In Williams v Victoria Police [2007] VCAT 1194 at [73] Judge Bowman in deciding whether the section applied to law investigators generally stated :

Common sense dictates that persons would be less likely to make statements to the police if they were of the view that the making of such statements was not confidential. If it became known that the making of such a statement could be disclosed to the world at large, I have little doubt but that persons would be reluctant to make such statements.

1. Even more relevantly, Senior Member Walker stated in the Morgan case to which I have already referred ,at paragraphs [10]-[11] :

It is important that officers responding to complaints made by members of the public should give careful consideration to the matters raised by that person and prepare an accurate and considered response. To do that, a degree of consultation will often be required.

It is not in the public interest that the nature of these discussions be disclosed. If an agency's officers thought that documents recording their discussions could be released that might dissuade them from communicating as fully as they should and inhibit frankness and candour in the making of communication between them As a consequence their ability to deal appropriately with complaints they receive might be adversely effected which would obviously be undesirable. In this instance there were a number of persons who needed to be consulted in order to provide a proper response to the allegations made by the Applicant. The very serious and sensitive nature of those allegations warranted careful investigation and full consultation.

1. Based on the evidence of Mr Thomas, I have come to the conclusion that if the information in the documents for which exemption is claimed pursuant to s 35(1)(b) were to be released, there is likely to be serious consequences. In that :

1. The free flow of information in relation to complaints would inhibit the best outcome being achieved. 2. The free flow of information from contracted service providers on a confidential basis would be seriously compromised and the quality of such information would in future deteriorate.

1. Complaint management and the monitoring of contracted service providers would be adversely affected if the present openness in communication were questioned and, as a consequence, would undermine the work done to foster constructive communication between the Department and the contracted service providers in the future.
2. In relation to the documents for which an exemption is claimed pursuant to s 35, the comments that I made in paragraphs 51 and 52 hereof, relating to the Charter are equally applicable to the documents for which exemption is claimed pursuant to s 35. That is, release of the documents would not prove or disprove a breach of the Charter.
3. Having made the findings which I have above, I have come to the conclusion that subject to s 50(4) the exemption claimed in relation to the documents referred to pursuant to s 35(1)(b) of the Act has been made out. That is, disclosure would be contrary to public interest in that disclosure would be reasonably likely to impair the ability of an agency to obtain similar information in the future.

1. The next matter that I must consider is in relation to the documents that I have found to be exempt (except for s 33 documents) is whether what is known as the public interest override pursuant to s 50(4) applies to those documents.
2. Section 50(4) reads as follows :

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. Mr Batskos has correctly stated that s 50(4) does not apply to any other exempt document unless three conditions are met :

(a) any interests asserted by the applicant in favour of disclosure are 'public' interests;

(b) the Tribunal finds that disclosure of the documents would advance or promote that asserted public interest;

(c) the Tribunal finds that the public interest is so overwhelming as to require disclosure.

1. It is clear that when considering s 50(4), I must look at the public interest as to the benefit of the community in general not the benefit or interest to any particular individual. See Just v Department of Justice (1996) 10 VAR 126, 129. At first sight, it may appear that the public do have an interest in these documents being disclosed. That is, as I have already stated, the applicant has alleged criminality, breach of human rights, attempting to subvert Family Court orders, removing a child from its legal guardian and breaches of human rights (see paragraph 8 hereof for more detail). However, I have already found, these allegations are unsubstantiated and appear to be made in circumstances where the applicant has an inadequate view of the relevant law and am of the view that none of the documents would assist in proving or disproving criminal actions. Having come to this view, it therefore follows that the only interest the applicant has in the disclosure of this material is a personal interest, not a public interest. Any interest that the applicant may have in abstract policy considerations, such as the desirability for greater transparency in decision making is irrelevant. See Secretary, Department of Justice v Osland [2007] VSCA 96 at [94].
2. The High Court also made this view clear in Osland v Secretary Department of Justice [2008] HCA 37 at [147] where Hayne J stated :

References to clearing the air, or more general references of the kind made in oral argument in this Court to a need for 'transparency' in government are, at best, statements of the values that are to be understood as informing the structure and operation of the FOI Act. Neither reference to clearing the air, nor reference to a need for transparency in government, reveals the reasoning that supports a conclusion that the public interest requires disclosure of what otherwise is privileged from compulsory disclosure.

1. Mr Batskos has, in my view, correctly stated the rationale for this proposition :

This is because, at the level of general policy, the Act itself has already struck the balance between the public interest in the exemption, on the one hand, and the public interest in access to documents relevant to executive decision-making, on the other. At the level of general principle, so Parliament has determined, the public interest in the confidentiality of exempt documents prevails over the public interest in access. That is the effect of the exemptions. It is not for the Tribunal to revisit that policy decision. It is not for the Tribunal to decide whether, having regard to the type of decision in issue, the public interest in transparency should be means of s 50(4) be elevated to the status of an overriding public interest (see Osland (Court of Appeal), at [94]-[95]).

1. Mr Batskos in his submission has attempted to perform what I regard as a very difficult task of ascertaining why the applicant says that release of these documents is in the public interest. He states :

(a) a public interest in disclosure of the authors of documents containing allegedly false, inaccurate and misleading and deliberately defamatory material (where access has been provided to the balance apart from personal affairs information)) (see applicant's public interest at p 16). But the public interest override cannot apply if s 33 applies;

(b) the public interest in the right of the applicant to amend false, inaccurate and defamatory assertions;

(c) the public interest in the right of the applicant to take legal action against persons who have abused the applicant's personal information;

(d) a 'primary' public interest in exposing paedophilia; (Id at p. 18)

(e) an overriding public interest in exposing the concealing of a crime and that the Department and associated employees are allegedly committing offences; (see applicant rebuttal to Johnson as [1] and [2]).

1. As far as the material contained in (a) and (b) are concerned, the same is not relevant here. Paragraph (a) above largely deals with personal information of which the public interest override does not apply and (b) is not relevant here as there has been no application to amend documents.
2. As far as taking legal action is concerned, I have already found that the applicant's view of criminality and other matters does not appear to be well based. It is insufficient for an applicant to make serious allegations against other persons without proper substantiation and then claim that it is because she desires to take legal proceedings that she should have the documents. I note, as I have stated previously, that prosecutions launched by the applicant against individuals were taken over and discontinued by the Acting DPP. In any event, the documents do not prove or disprove the applicant's allegation.
3. Also, the applicant refers to paedophilia. However, these documents do not address the question of paedophilia at all.
4. As I have already concluded, the release of these documents as exposing the concealing of a crime would not assist in that purpose. They do not show "any cover up". For the reasons stated in paragraphs 51 and 52 hereof, the release of any of the documents relevantly claimed herein would not prove or disprove any breaches of the Charter. Therefore, the Charter issue does not require the release of any of the exempt documents in the public interest. I agree with Mr Batskos therefore that the only reason they can be sought is for the applicant's personal information.
5. In my view, there is an overwhelming public interest in departments and government agencies being able to investigate complaints with the knowledge of a confidentiality attaching to the information supplied by persons. It is very important that when complaints are investigated, they be effective investigations with the cooperation and assistance of contracted service providers. This is only likely to occur if the confidentiality that the providers of information believed existed will continue to exist. To do otherwise would be likely to cause a lack of cooperation in those circumstances.

Assertion of public interest being advanced by disclosure

1. In Just's case, it was made clear that the override could not be invoked unless disclosure of the document actually advanced or promoted the applicant's assertion of public interest. In this particular instance, even if the assertions of criminality etc were substantiated, the documents in question do not, in any way, advance those interests. Therefore, it cannot be said that the public interest would be advanced by disclosure of these documents.

Whether public interest requires the release of the documents

1. The Court of Appeal in Osland's case made it very clear that the public interest override in s 50(4) is "a very high bar to cross". It should be noted that the statements in relation to this matter were neither contradicted nor criticised by the High Court. In that case, at paragraph 92 and forward, Maxwell P made his view clear. In referring to the public interest override, he stated :

This is a stringent test. As this Court said in _Hulls, '_requires' in this context is synonymous with 'demands' or 'necessitates'. There is 'a sense of the imperative'. The public interest consideration(s) said to require the granting of access must be so strong as to override the public interest considerations underpinning the applicable exemption(s). The case for access must, in effect, be irresistible.

In my opinion, abstract policy considerations, such as the desirability of greater transparency in decision-making by the executive, have no place in the s 50(4) analysis - in this or any other case. This is so because, at the level of general policy, the Act itself has already struck the balance between the public interest and the [exemption] on the one hand, and the public interest in access to documents relevant to executive decision-making, on the other.

The extent to which the public are - or are believed to be - interested in a particular matter is not, by itself, relevant to the determination of whether disclosure of a document relating to that matter is in the public interest, within the meaning of s 50(4). Were it otherwise, the formation of the opinion which s 50(4) requires would depend upon the ascertainment of the extent to which the public had been shown to be interested in the topic. I pointed out in the course of argument that the practical difficulties which this would create. But this is, in my view, an error of principle, not merely a question of practicability. Accordingly, in my respectful opinion, the Tribunal fell into error by taking into account an irrelevant consideration, being the Tribunal's perception of the extent to which the 'public' wished to know why the petition had been denied.

1. Mr Batskos in his submissions has correctly summarised the observations of the Court of Appeal in Osland's case with respect to the public interest override - namely, that the public interest requires disclosure - will only be satisfied in exceptional cases :

From those observations by the Court of Appeal in the Osland case, it is clear that this aspect of the public interest override - namely that the public interest 'requires' disclosure - will only be satisfied in exceptional cases :

(a) it is a 'stringent' test and the case for release 'must, in effect, be irresistible';

(b) the word 'required' in the context of s 50(4) of the FOI Act connotes 'obligation', 'necessity' or 'compulsion';

(c) there is a notion of the imperative involved. Having regard to the fact that consideration of s 50(4) only arises after a determination has been made that a document is exempt, it is not surprising that the legislature should set the criterion for the operation of the section by reference to a concept of necessity;

(d) to apply s 50(4) properly the Tribunal has to be able to express itself in terms which conveyed that 'it had no practical alternative but to allow access';

(e) the Tribunal must be of the opinion that unless access was granted the public interest would suffer or be diminished in some way. Short of such a state of satisfaction the public interest would not require that there be access to the document.

1. Taking all the matters which I have referred to above into account, I have formed the view that the documents in question in this proceeding are not of the kind where there is any public interest in favour of disclosure that is so strong as to override the factors that confer exempt status on the documents in the first place. This is not a case where refusing disclosure would cause the public interest to suffer or be diminished in one way or another. Put a different way, this is not an exceptional case.

1. In his reply submission, Mr Batskos included a section referring to "other matters". For completeness, I set out Mr Batskos' reference :

There are a number of matters that the applicant alleges or wrongly states which cannot go uncontradicted.

From time to time the Tribunal asked questions of the parties and the witnesses and accepted comments and statements made as part of the Tribunal's role to better understand the factual matrix in which this proceeding arose. At no time did the Tribunal make any comments condoning the conduct of any party or agency.

The Tribunal indicated, correctly, during the course of the hearing that as a matter of law, there are some instances where a child can enter into contracts for necessaries. The applicant appears to have misinterpreted that statement.

The Department relies on the cases of Morgan v City of Port Phillip [2008] VCAT 978 and Morgan v Bayside Health [2008] VCAT 1796 for the relevant principles and application of the law in relation to the exemptions dealt with in those cases. They are particularly relevant as they stem from the factual matrix which forms the basis of the matters the subject of the applicant's complaint and investigation of that complaint. Documents in relation to such investigation are those in dispute.

There is no evidence that the document the subject of legal professional privilege relates to the commission of any criminal offence. The uncontradicted oral evidence of Ms Johnson obtained by the applicant during cross-examination is that advice was being provided in relation to the process of investigation of the applicant's complaint - not in relation to the furthering of criminal conduct.

In considering whether the subject documents are exempt or not, and whether public interest requires disclosure, no ruling was made by the Tribunal (nor is one required to be made) as to the lawfulness or otherwise of conduct of which the applicant complained. The Tribunal has not ruled (and need not rule) that it is 'appropriate and legal'.

Similarly, during the course of the hearing the Tribunal did not give any indication of pre-judgment and has, to the contrary, given the applicant ample opportunity to make submissions and adduce evidence - often in very trying and difficult circumstances and in the face of conduct bordering on contempt of Tribunal.

To the extent that the applicant may have sent a letter to the President requesting that the matter be referred to the Supreme Court under section 33 of the Victorian Charter of Human Rights and Responsibilities 2006 ('Charter') it is submitted that such a reference would be wholly inappropriate. The 'matter' she is concerned about is not the freedom of information proceeding before the Tribunal and which is within the Tribunal's jurisdiction. That is, there is no question of law which has arisen or been raised in this FOI Act proceeding that relates to the application of the Charter. It is the applicant's concerns and complaints about certain conduct which gives rise to her allegations that an issue arises under the Charter.

1. The decision of the respondent will be affirmed save and except in relation to those parts of documents where an exemption is claimed pursuant to s 33 of the Act, in which case :

1. To the extent that such documents refer to persons pursuant to the s 53A notice who have objected to release, the decision will be affirmed and those documents or parts of those documents will not be released. 2. In relation to those parts of the documents which refer to personal information where the persons concerned pursuant to s 53A have indicated that they do not object to the release, those documents or parts of those documents containing that personal information is to be released. This part of this order is stayed for 28 days.

1. Insofar as the personal information relates to persons that have not intervened to the notice pursuant to s 53A :

(i) the documents or parts of the documents disclosing those person's personal information shall be released 28 days after the date of this order;

(ii) those persons shall be notified by the Registrar of the Tribunal pursuant to s 53A(3) that their personal information will be released.

Part in respect of which exemptions are claimed

email and attachment 7 pages wholly exempt, pages unreleased

References to departmental staff by name and contact details

Internal working document reflecting the course of deliberative processes AND would be contrary to the public interest as it would represent an incomplete description of the deliberations around Ms Morgan's complaint which would be likely to mislead

Confidential information provided by agency staff for consideration of department officers AND disclosure would be contrary to the public interest as it would be reasonably likely to impair the ability of the department to obtain similar information in the future

References to departmental staff by name and contact details

References to departmental staff by name and contact details

Contains advice sought from and provided by legal advisor that would be privileged from production in legal proceedings on the ground of legal professional privilege

References to departmental staff by name and contact details

Confidential information provided by agency staff for consideration of department officers AND disclosure would be contrary to the public interest as it would be reasonably likely to impair the ability of the department to obtain similar information in the future.

References to agency workers and department staff by name and contact details

Confidential information provided by agency staff for consideration of

department officers AND disclosure would be contrary to the public interest as it would be reasonably likely to impair the ability of the department to obtain similar information in the future

Internal working document reflecting the course of deliberative processes AND would be contrary to public interest as it would represent an incomplete description of the deliberations around Ms Morgan's complaint which would be likely to mislead

Confidential information provided by agency staff for consideration of

department officers AND disclosure would be contrary to the public interest as it would be reasonably likely to impair the ability of the department to obtain similar information in the future

References to agency workers and department staff by name and position and contact details

Confidential information provided by agency staff for consideration of

department officers AND disclosure would be contrary to the public interest as it would be reasonably likely to impair the ability of the department to obtain similar information in the future