1 This is an application to review a decision of the respondent in relation to a request made by the applicant to the respondent on 15 March 2006. By the application, the applicant requested that the respondent give her access to all information relating to the applicant's complaint of discrimination lodged with the respondent, relating to an incident at the Cushion Lounge nightclub (Cushion Lounge) on 12 December 2005. Access to some of the relevant documents has been denied by the respondent.

2 On 12 December 2005, the applicant attended the Cushion Lounge and was ejected therefrom. She claimed in a complaint to the respondent dated 9 January 2006 that her ejection from the Cushion Lounge was discriminatory on the basis of her age, her religious beliefs and her sex. At the present time, the applicant has a claim against the Cushion Lounge, arising out of this situation, in the Anti Discrimination List of this Tribunal. It should also be noted there is some dispute as to the identity of the owners of the Cushion Lounge, but such dispute is not relevant to this proceeding.

3 As a result of the applicant's complaint, the respondent conducted an investigation and a number of documents were compiled. The applicant's requests relate to those documents that were so compiled. The respondent has made available to the applicant a number of those documents. However, there are now eight documents for which the respondent claims exemption pursuant to the Freedom of Information Act 1982 (the FOI Act). It should be noted that even though a number of documents were made available to the applicant by the respondent, the applicant refused to accept those documents because they were not numbered and scheduled. However, neither the FOI Act, nor the Regulations or the Tribunal's Practice Directions require that documents that are not in dispute need be numbered or scheduled. It is only documents that are in dispute that are required to be numbered and scheduled pursuant to the Tribunal's practice direction.

4 Document 3 is described in the schedule as a file note dated 20 December 2005 prepared by D Cambray, Complaints Officer, following his discussion with the applicant. By a witness statement of Benjamin Anthony Rice, which statement was sworn as being true and correct in evidence before me (Rice's statement), Mr Rice confirms the schedule description of Document 3 and states further :

It contains personal details information about the applicant and about the nature of her complaint against the Cushion Lounge and its employees.

5 The exemption claimed in relation to that document is pursuant to s 38 of the FOI Act which, in this case, relies on s 192 of the Equal Opportunity Act 1995 (EO Act).

... an internal electronic case status record within the Commission dated 20 December 2005 setting out the nature of the applicant's complaint against the Cushion Lounge. It contains information about the applicant. It contains information about the Cushion Lounge and its employees. It also identifies the name of a Complaints Officer at the Commission.

7 The exemption claimed in relation to Document 4 is the same as Document 3.

8 Document 5 is described by Mr Rice as follows :

...a more recent version of document 4 dated 9 January 2006 and includes a record of some of the action steps taken by the Commission. The comments I have made about document 4 apply equally here.

9 Again, the same exemption is claimed here as in relation to Document 3.

10 Document 6 is also described by Mr Rice as follows :

... a file note dated 19 January 2006 of a conversation between an officer of the Commission and an officer of the Cushion Lounge in relation to the complaint made by the applicant. It contains information about the applicant as well as the Cushion Lounge. It also identifies an investigator of the Commission.

11 The same exemption is taken in relation to this document as Document 3 but in addition to that exemption, exemption is also claimed pursuant to s 31(1)(c), 31(1)(d) and 35(1)(b) of the FOI Act_._

12 Mr Rice also states in relation to Document 6 that "it identifies a confidential source of information" and states that "information provided to the Commission during the course of an investigation is treated as confidential".

A file note dated 22 February 2006 of a conversation between the applicant and an investigator of the Commission. It relates to details of the complaint made by the applicant against the Cushion Lounge. It contains information about the applicant and about the Cushion Lounge and its employees. It contains information about the applicant's son.

14 The exemption claimed to Document 7 is the same as Document 6.

A file note dated 22 February 2006 of a conversation between an officer of the Cushion Lounge and an investigator of the Commission. It contains information about the Cushion Lounge and its operations including entrance and security details and responses in relation to the complaint of the applicant. There is information about employees of the Cushion Lounge. There is also some information about the applicant.

16 The exemption claimed in relation to Document 8 is the same as the exemption claimed for Document 3.

17 Mr Rice also makes it clear that the document "identifies an officer of the Cushion Lounge" and "a confidential source of information". He further makes it clear that the information contained in this document was information provided on the basis that it would be treated as confidential.

An investigation report dated 10 March 2006. It contains details about the applicant and sets out in detail her complaint as it relates to the Cushion Lounge and its employees. There is information about how the Cushion Lounge responded to the complaints made against it and its employees including further information about the applicant. There are conclusions and recommendations made about the applicant on each ground of the complaint as well as a record of the decision made by the Commission in relation to the complaint. There is also internal opinion and deliberation recorded in relation to the investigation report. The document identifies the investigator and Commissioner considering this matter.

19 The exemptions claimed are s 30, s 35(1)(b) and s 38 of the FOI Act_._

20 In relation to Document 10 Mr Rice states that -

.... is a later version of documents 4 and 5 dated 9 March 2006.

21 The exemption claimed in relation to that document is the same as the exemption claimed in relation to Document 9.

22 Having read all the documents that I have referred to above, I am of the view that the descriptions of those documents given by Mr Rice is a true, correct and fair description.

23 Mr Rice makes it clear that the information contained in the disputed documents was obtained by members of the respondent's staff in the course of performing functions or duties and exercising powers under the EO Act. He also made it clear that information provided to the respondent under that Act was clearly made in confidence. In support of this view, he referred to a number of extracts from the respondent's website which made it clear that information given to the respondent is given in confidence. He also referred to the normal complaint cover letter given by the respondent to people desiring to make complaints which included the statement :

The EOCV (the respondent) complies with Victoria privacy laws and the confidentiality provisions of the Equal Opportunity Act 1995.

24 As a consequence of the evidence given by Mr Rice, I am satisfied that the documents in dispute in this proceeding all contain information which was given to the respondent in confidence, and it would not be practicable to give extracts of those documents by excluding the confidential information obtained by the applicant.

38. Documents to which secrecy provisions of enactments apply

A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications.

26 The enactment in force specifically applying to the information of the kind referred to in s 38 is s 192 of the EO Act.

27 Section 192 of the EO Act reads as follows :

(1) This section applies to every person who is or has been -

(b) an appointed member or acting member of the Commission;

(f) any other person acting under the authority of the Commission;

(g) a person to whom section 15 of the old Act applied immediately before its repeal.

(2) This section applies to information concerning the affairs of any person that is or has been obtained by a person to whom this section applies -

(a) in the course of performing functions or duties or exercising powers under this Act or the old Act; or

(b) as a result of another person performing functions or duties or exercising powers under this Act or the old Act.

(3) A person to whom this section applies must not, either directly or indirectly, make a record of, disclose or communicate to any person any information to which this section applies unless it is necessary to do so for the purposes of, or in connection with, the performance of a function or duty or the exercise of a power under this Act or the old Act.

(4) A person to whom this section applies must not be required -

(a) to produce in a court any document containing information to which this section applies; or

(b) to disclose or communicate to any court any information to which this section applies -

unless it is necessary to do so for the purposes of, or for a prosecution under or arising out of, this Act or the old Act.

"court" includes a tribunal, authority or person having power to require the production of documents or the answering of questions;

"old Act" means the Equal Opportunity Act 1984 as in force immediately before its repeal;

WHETHER S 192 OF THE EO ACT APPLIES TO THE DOCUMENTS IN QUESTION

28 An analogous situation to this was considered by Member Howie, as he then was, in the Administrative Appeals Tribunal of Victoria which is the forerunner to this Tribunal. The matter in which Member Howie considered these matters was Re Downey and Commissioner for Equal Opportunity (1991) 5 VAR 248. In that proceeding, the learned member was dealing with documents that emanated as a result of a complaint made to the Equal Opportunity Commissioner by Downey in relation to his former employer. The employee Downey made a request under freedom of information for those documents. The context of those documents are set out at p 251 of the Member's decision and, to a large extent, are not substantially different from the Documents 3 to 10 inclusive in this proceeding.

29 In addition, it should be noted that s 15(2) of the old Equal Opportunity Act, for the purposes of this proceeding, covered much the same situation as s 192 of the present EO Act. For the sake of completeness I set out hereunder s 15(2) of the old Equal Opportunity Act :

Subject to this section, a person to whom this section applies shall not, either directly or indirectly, except in the performance of a duty on or in connection with this Act, make a record of, or divulge or communicate to any person, any information concerning the affairs of any person acquired by the first-mentioned person by reason of that person's office or employment under or for the purpose of this Act.

30 It will also be noted that s 15(2) of the old Act, like s 192 of the current EO Act, provides a penalty for disclosure of information.

31 At p 252 of the Downey decision, the learned member draws conclusions about the documents in that case which, in my view, are equally appropriate in this proceeding. He states :

I am satisfied on the evidence that each of the documents the subject of the application, relates to the complaint made by Mr Downey .... I am satisfied that the documents comprise :

(a) information concerning the affairs of persons in particular Browning Ferris Industries (Australia) Pty Ltd or its associated companies, the employees of BFI or Mr Downey himself; and

(b) that information that was acquired by the Equal Opportunity Commissioner or her staff by reason, and only by reason, of her office as Commissioner or their office as employees of the Commissioner, and that they did so acquire the information for the purpose of fulfilling their duties under the Equal Opportunity Act 1984. (emphasis supplied)

32 The same can be said about Documents 3 to 10 inclusive in this proceeding. They are information concerning the affairs of persons of both the Cushion Lounge and the applicant herself. Further, they were acquired by the respondent or staff of the respondent by reason only of their office or employment with the respondent and they were acquired to fulfil those persons' duties under the EO Act.

33 Further, I accept as Member Howie did that the documents which were created were created with the belief that they were confidential and that confidentiality is necessary for the process that the EO Act requires the respondent to carry out.

34 In coming to this conclusion, I have noted what Mr Rice stated in paragraphs 34 and 35 of his statement :

I .... believe that respondents to complaints of discrimination are sometimes reluctant to provide information to the Commission. I am further informed and believe that in some cases respondents but also complainants to complaints of discrimination would be more reluctant to provide information to the Commission if that information was subject to strict confidentiality.

I ... believe that the frankness and overall quality of those deliberations and reports would be adversely affected if information discussed or contained in those reports were not subject to strict standards of confidentiality.

35 The applicant stated that the confidentiality referred to in the Act and by Mr Rice should not apply to the information that she herself had given to the respondent. She stated that if she did not object to the information being made public then that should be an implied exception to what is stated in s 192 of the EO Act_._

36 In my view, if Parliament had intended to create an exception to s 192 of the EO Act as referred to by the applicant, it would have stated so with the utmost clarity. There are numerous enactments that have exceptions created to them and Parliament has had no difficulty in making such an exception. I also note that Downey's decision was decided and published prior to the time of the current EO Act and that if Parliament had intended there to be an exception for information provided by the applicant to a freedom of information request, it would have stated so, noting that the member in that case was of the view that the confidentiality provisions related to Mr Downey himself who, at that time, was a freedom of information applicant.

37 In this situation, information that was provided to the respondent in relation to a complaint whether provided by the person who is making the complaint or any other person is clearly made under the understanding that the same shall be confidential. In fact confidentiality is the cornerstone of the way that the respondent is required to operate. It is important that people should not be inhibited in giving information to the respondent for fear that that information may be later disclosed. It is not to the point that the applicant in this case has no objection to the information being made public. If it is given in a confidential manner it should remain in a confidential manner because that is the way it was received and the way s 192 of the EO Act says it should be treated.

38 Member Howie summed up this view in his reasons for decision in the Downey case at p 252. He there stated :

I accept that secrecy about, or confidentiality of, information provided to the Commissioner, is a fundamental and essential part of the process that is envisaged by the Equal Opportunity Act. I accept that it is important for citizens that they should not be inhibited from making a complaint by fear of disclosure of that complaint. I accept that it is important for respondents that they should not be inhibited from providing information, or answering questions, or making admissions or concessions or apologies or any other response, by fear of such a response being disclosed and used against them. I accept what Mr Bryson said in evidence this afternoon that often the task of the Commissioner or her staff in dealing with respondents is the most difficult part of the task and, as he said somewhat colourfully, that often they come kicking and struggling into the area. I accept that an integral part of the Commissioner's task is to win respect from respondents. I accept also that both the assurance of that response being confidential, and being able to fulfil that assurance, is an essential and fundamental part of the responsibilities that the Act imposes upon the Commissioner_._

39 What is stated by Member Howie above is equally applicable to this case, and, in my view, the same should be followed.

40 The applicant stated that unless she or people in her position were able to examine documents that recorded conversations that she or others had had with members of the Commission or its employees, they would never be able to know whether that information was correctly recorded. Without knowing that the information was correctly recorded, they would not be able to make application to have the documents corrected. She thus concluded that without being able to have the documents which may be wrong corrected, she and others would be deprived of a fundamental right and indeed a right that was given pursuant to the FOI Act.

41 While the applicant's argument referred to in the preceding paragraph hereof initially has some appeal, it does not withstand the test of practicality. If this test were to be applied as an exception to the exemptions referred to in the FOI Act, a number of documents that Parliament would have intended to be exempt from the operation of the Act and thus not required to be released, would be made public. That is, documents that were clearly not to be released pursuant to the FOI Act would, in some cases, be released. This would be clearly defeating what Parliament intended, that some documents would not be released.

42 Thus, after having read the documents sought by the applicant in this application, I have come to the conclusion that they fall within s 192 of the EO Act and, as Member Howie stated at p 253 :

That is an enactment that prohibits the divulging of any information concerning the affairs of any person acquired by reason of the office of the person who acquires it, and for the purposes of the Act. ..... As such the documents appear to be exempt documents of the kind described in s 38 of the FOI Act.

43 In my view, what Member Howie said there applies equally here to Documents 3 to 10 inclusive, that is, the documents that are in dispute. Thus the exemption pursuant to s 38 of the FOI Act has been made out with respect to all the documents in dispute in this proceeding.

44 I now must consider whether the provision of s 50(4) of the FOI Act apply to the documents in question.

45 Section 50(4) of the FOI Act reads as follows :

(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.

46 In my view, it is important that the Commission be able to operate and those that give it information are able to give such information, with confidence that such information is given with confidentiality and that such confidentiality will be respected. I agree with what Mr Rice has stated which I have quoted in paragraph 34 hereof.

47 The applicant must show in order to activate s 50(4) that the "public interest requires access to the documents". In this particular case, I am not satisfied that public interest does require access to the documents. In fact, in my view, granting access to these documents would weaken the respondent in the duties which it is bound to perform pursuant to the EO Act. It may inhibit people making complaints and it would also be likely to inhibit people giving information. It is important that the public have confidence that when information is given to a body such as the respondent that that information if given in confidence will be kept in that manner and not released pursuant to the FOI Act_._ Thus, in my view, the interest of the public does not require that these documents be released and, as a consequence, s 50(4) of the FOI Act does not assist the applicant in gaining access to these documents.

48 The applicant suggested that access to documents such as she is requiring and, in particular, to the documents which relate to information which she has given the respondent, is the cornerstone of democracy and our society. To some extent that may be true. However, it is important that both society and this Tribunal respect both the laws which Parliament has enacted and the confidentiality that surrounds information that has been given by one person to another. The law that is enacted gives access to documents unless there is an exemption made out by the respondent pursuant to the Act. In this case that exemption has been made out. Further, I have found that pursuant to s 50(4) the public interest does not require that access be given to these documents. Under those circumstances, I do not believe that an impassioned argument about democracy can override the specific provisions in an Act of Parliament.

49 Having found that s 38 of the FOI Act applies to all the documents in question and that the s 50(4) override is not applicable in this situation, in my view, there is little point in considering the other exemptions claimed by the respondent.

50 Section 25 of the Act enables me to order that parts of documents be deleted where I have found that those parts fall within the exemption of the Act. However, I do not believe that editing these documents would be practicable in this case. As Mr Batskos stated :

To edit in the present case would result in a nonsensical or meaningless document and would therefore not be practicable taking the commonsense approach suggested by the Tribunal in Re Schubert and Department of Premier and Cabinet (2001) 19 VAR 35, 45.

51 I have taken this view because the information contained in the documents is not readily severable so as to render them non exempt. If I attempted to edit such documents, they would result in something that was meaningless, misleading and unintelligible.

52 As a result of findings that I have made in this proceeding, the documents that the applicant seeks to be released which are described in the schedule of the respondent's statement pursuant to s 49 of the Victorian Civil and Administrative Tribunal Act 1998 and numbered 3 to 10 inclusive, should not be released. As a consequence, the decision of the respondent will be affirmed.

Robert Davis

Senior Member