Note: These written reasons consist of an edited transcription of reasons given orally at the conclusion of the hearing.

1. This is an application to review a decision of the respondent to refuse some 37 documents to the applicant. It should be noted that pursuant to a request made by the applicant to the respondent (which I will refer to shortly), there were 23 pages provided. There were 30 pages given partial release and 21 pages were denied altogether. The request that the applicant made to the respondent was for full release of all documents, tapes and electronic records, including telephone records, memos and documents made by Board members and the Registrar on the matter of the applicant's appeal on the matters relating to 51-53 Hawksburn Road, South Yarra.

1. By way of background, the applicant occupies No 55 Hawksburn Road, South Yarra, which is an adjoining property to 51-53 Hawksburn Road, South Yarra. I understand that at the relevant time there was some development taking place at 51-53 Hawksburn Road, South Yarra. It is relevant to note that the applicant has occupied No 55 Hawksburn Road for many years and paid rates and other expenses relating to the property. However, the property is registered in his mother's name and she has not lived in the property for a number of years. It would appear that there is some type of strained relationship between the applicant and his mother and also his brothers. It is noted that the applicant appealed to the Building Appeals Board in relation to construction that was going on in the adjoining property. The matter was heard but the Board who eventually found that because the applicant neither owned No 55 Hawksburn Road nor had written authority from the owner that it could not continue with the matter.
2. The applicant says that at the time of his application to the Building Appeals Board, he applied for a waiver of the provisions of s 248 of the Building Act 1993 and he cannot understand how after a hearing and a decision of some sort was released, it was possible for the Board to realise at that time that he was neither the owner nor the agent of the owner. He shows some surprise at the fact that that was not realised from the outset, particularly in light of what he refers as to his application for waiver. In my view, that makes little difference to this application before me because what I have to decide is whether the relevant documents are exempt or not exempt pursuant to the Freedom of Information Act 1982 (the Act).
3. What the applicant says is that the fact that the respondent did not realise the waiver earlier shows that something peculiar was going on. It noted that of the 37 documents that are in dispute, pursuant to an order made by myself, there was sampling of those documents and there were four categories to which those documents were put into.
4. Category A related to the claimed exemption pursuant to s 33 of the Act which is the personal information exemption. I should note here that there are 28 documents in relation to Category A, 2 documents in relation to Category D which also relates to the personal affairs exemption (s 33(1)), and further relates to material obtained in confidence pursuant to s 35(1)(b) of the Act .
5. Category B relates to two documents for which exemption is claimed, being legal professional privilege pursuant to s 32(1) of the Act and Category C relates to internal working documents of which there are seven documents for which an exemption is claimed pursuant to s 30 of the Act.
6. As I have mentioned, these documents have been sampled and so I will only deal with the samples of the documents that were provided.

1. The documents in Category A have usefully been described by Peter Beckford in a witness statement that was tendered in evidence by the respondent and unchallenged by the applicant. Mr Beckford said that the Category A document, which was document 28, is a letter dated 17 October 2006 from an individual to the Board in relation to proceedings before the Board. He stated that -

The information contained in the two pages include name, address, contact telephone details and other personal information in the particular context is information relating to the personal affairs of the author.

1. Mr Beckford also refers to the confidentiality provisions of the Building Act contained in s 234A and the privacy provisions contained in the Information Privacy Act 2000. Because s 33 of the Act is the exemption claimed both in relation to Category A and the documents in relation to Category D, in my view, it is convenient for me to deal with both categories of documents together.
2. In relation to Document 6 which is the sample document in Category D, Mr Beckford states :

... is a letter dated 12 August 2006 from a building practitioner to the Board. The information it contains is not relevant to the substance of the matter before the Board.

Mr Beckford stated that it was provided confidentially to assist the Board with the conduct of its business. He further said :

In the context of a protracted neighbour dispute, this document contains quite sensitive personal affairs information relating to an individual. It reveals details about a person's location and length of absence.

He also said that it is necessary to maintain the confidentiality of this information in order to protect the Board's functioning.

1. After having read the sampled documents for Categories A and D, I agree with the comments made by Mr Beckford in relation to both those documents. I also note that it is not possible to release part of those documents that have been sampled to me, as it would be likely that the writer could be identified and the information is intertwined.
2. Section 33 (1) of the Act states as follows :

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).

"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. Applying the definition in s 33(9) to the material contained in the documents before me, I have no doubt that the documents do contain personal information of people that are referred to therein, including the makers of those documents. It identifies their address and location as well as names. I also note that in Hutchison v Department of Human Services (1997) 12 VAR 422, the words "personal affairs" were given a very wide interpretation to mean private concerns of an individual.
2. Having found that documents in Category A and D are in fact personal affairs, the next question that I must ask is - would their disclosure be unreasonable? It is clear from O'Sullivan v Victoria Police [2005] VCAT 532 that disclosure of information that would or would be reasonably likely to endanger life or the physical safety of any person is disclosure that would not be reasonable. Also it is noted from that case that physical safety is not just about actual safety; it is about the perception of the person as to whether he or she would be safe. I am not suggesting that Mr Morse would do any physical harm to those persons. What appears to me is that the maker of the documents may have a perception of fear which is something to which the section applies. I also note that the nature of the information is such that it would be undesirable that that information be passed on. It is clear from Mr Beckford's statement that the information that was given to the agency was given on the basis of confidentiality. Also I note that there has been s 53A notices sent to the people concerned and there has been an indication by a number of those people that they do not want their personal information disclosed. I note that the applicant's motives are such that he desires that justice be done and he says that there was peculiarity in the fact that he applied for a waiver, a hearing took place and even a decision and yet if was after that, that s 248 of the Building Act was used by the Board to withdraw from the matter. The release of these documents would not assist Mr Morse in attempting to get to what he says is the bottom of the situation.
3. In my view, looking at the nature of the documents, it is quite possible that these documents would lead to anxiety on the part of those that have made them if they were released and I take into account what has been said by this Tribunal in Paige v Metropolitan Transit Authority (1988) 2 VAR 243 at 245-246. In doing the balancing exercise that is referred to in that decision, in my view, the balance comes out very clearly in favour of not releasing those documents and, under those circumstances, the documents will not be released. In coming to this conclusion, I have also taken into account that the applicant says that the developer of the next door block, ie No 51-53, is a corporation and these documents would in fact be protecting the identity of the corporation. I do not agree with that submission. In fact, what s 33 requires is protection of the personal identity of persons who may be officers of the Building Appeals Board or private persons. It does not matter that an individual may be mentioned because he or she is an officer of a corporation. It is the personal affairs to which these documents are referring. Therefore, I find exemption of the documents in Category A and Category D has been made out. As that exemption is not subject to what is known as the public interest override, pursuant to s 50(4) of the Act those documents will not be released. I also note that in relation to Category D, I do not need to consider the exemption claimed pursuant to s 35(1)(b) because, as I have found in relation to these documents that s 33 applies. I do not need to consider the matter of communication in confidence pursuant to s 35(1)(b).

1. The next category of documents that I will consider are documents for which exemption pursuant to s 32(1) of the Act is claimed, ie legal professional privilege. Section 32(1) of the Act says as follows :

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. Mr Beckford describes the sampled document in his witness statement as follows:

This document is a copy of an email forwarded on 6 November 2006 from Counsel via the Victorian Government Solicitor's Office to a Board staff member, providing legal advice in relation to the matter brought by the applicant to the Board. It is clear from the email that the legal advice was provided in response to a request for advice made by the Board's staff member. It was received as part of a solicitor/client relationship.

1. Legal professional privilege protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services including legal proceedings. I refer to Esso Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR p 49. As Mr Batskos stated in his submissions -

More specifically 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 contemplated legal litigation,

1. I have read this document and, in my view, it is clear from the face of the document that the dominant purpose of making the document was to give legal advice. This situation is similar to the situation to which the Tribunal found itself in the matter of Perton v Attorney General (1992) 5 VAR 302. There, a memoranda from a solicitor employed by the Victorian Government Solicitor to the Secretary - Attorney General's Department was held to be exempt. A similar decision was made in the matter of Lawless v Secretary Law Department (1985) 1 VAR 42 at 47. Thus, applying the requirements of the exemption in s 32 of the Act to the document which is before me as representing Category B, I have come to the decision that it is clearly a document that is covered by legal professional privilege within the meaning of s 32(1) of the Act. However, that is not the end of the matter because s 32 of the Act is subject to a public interest override referred to in s 50(4) of the Act. However, it is desirable that I deal with this override in conjunction with Category C documents.

1. The document referred to in Category C is an internal working document for which a s 30 of the Act exemption is claimed. Section 30(1) reads as follows :

(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. The Category C document is described by Mr Beckford in the following terms in his witness statement :

This document is a copy of a draft determination (reserving its decision and making orders) made by the Board with handwritten annotations or amendments. Final versions of these documents are provided to the parties to a proceeding following a hearing. Otherwise copies of determinations are available on request, for payment of a fee. From the Board's file, I am able to say that a copy of the confirmed determination was sent to the applicant on 4 September 2006.

This document is a good example of the draft versions prepared routinely for the Board.

... the Board comprised of a panel of members completes a green sheet with the handwritten details of the proceedings and any orders in draft form.

The draft determinations are necessarily part of the decision-making process of the Board have no formal status as a determination until they are signed by the Chair

The Board's functioning would be adversely affected by the release of the draft determinations and it could force the Board to make decisions immediately upon conclusion of the hearing in each case.

1. In my view, there is no doubt after reading this document that it is a draft decision of the Board and it was never meant by the Board to be published to the public.
2. A document will not be an exempt document under s 30(1) by reason only of a pure factual matter contained in the document but as Mr Batskos has stated:

However, material is not 'purely factual' if its release 'would have the consequence of disclosing what is not factual and what the legislation aims to protect' viz the deliberative processes of an agency : Brog v Department of Premier and Cabinet (1989) 3 VAR 201.

1. In my view, there is no question that a draft decision of the Board and this draft decision in particular fulfils the right criteria of opinion, advice and recommendation in the nature of consultation. At the point of a draft, the decision is no more than a personal view. The second condition required is that the document be made in the deliberative process. Clearly, a draft document of a final decision is a deliberative process, it cannot be anything else. It is in the process of deliberation. The third condition which must be complied with is that it would be contrary to the public interest. In my view, it is highly desirable that a member of the Board is able to write a draft decision which he later either completes or alters. A draft decision has no force or effect and I agree with what Walker SM said in Marshall v Country Fire Authority (unreported 9 June 2000) :

It is not necessary for the public interest to be overriding or compelling. It is sufficient to suggest that the disclosure would be contrary to public interest. In my view, the disclosure of this document would be contrary to public interest. What is required to be done in this matter is to balance the determination of whether it would be in the public interest that disclosure should not be given as opposed to the public's right to know.

1. In this circumstance, inspite of the submission by Mr Morse that the public have an interest in knowing the workings of places, such as the respondent, this particular document would not give any insight or help. It would come as no surprise to anybody that has appeared before a board, a tribunal or a court to know that the members or judges would often draft a decision before releasing the same and that is an important part of the deliberative process which should be kept secret. Thus, in balancing the public interest in this matter, I have come to the clear view that it would not be in the public interest within the meaning of s 30(1)(b) for this document to be released.

1. That brings me to the public interest override in s 50(4) in relation to Category B and C. Mr Batskos in his written submissions has referred to the case of the Secretary of the Department of Justice v Osland [2007] VSC 96 at para 71, where it is stated :

In determining whether the public interest override applies it is necessary for the Tribunal to engage in a balancing process. On the one hand, there is a public interest against access inherent in the reason for the documents being exempt in the first place. Hence a balancing process will be necessary and, for the override to operate, the factors favouring access will need to outweigh, or be given greater value than the factors against access.

1. Further it was noted by Mr Batskos referring to the Court of Appeal in Secretary v Department of Premier and Cabinet v Hulls [1999] VSCA 117; (1999) 3 VR 331 and in particular at p 340 -

In relation to the public interest override the Court of Appeal described the public interest override as requiring

(a) in each case the Tribunal must determine whether considerations of the public interest are so strong to outweigh or override those factors by which the documents are exempt; and

(b) the override cannot be invoked simply because the Tribunal holds the opinion that it is in the public interest that the exempt document be released; rather, the question is whether the public interest requires the release of the document, that is demands or necessitates disclosure. It is a question of fact in each case.

1. In this particular instance, I have looked at the two documents to which I have referred which are sampled in categories B and C and, in my view, those documents fall well short of the public interest demanding, necessitating or requiring their disclosure. It is highly desirable that documents such as legal advice to which professional privilege applies and draft decisions by a Board remain secret. Legal professional privilege in particular has been a feature of the law for a very considerable time. It is important that this privilege be upheld and it was only where the public interest requires, demands or necessitates the disclosure that it should be disclosed. In this particular instance, the public interest does not require, demand or necessitate such disclosure.
2. Further, in relation to the draft decision, as I have already stated, it is very important that members of boards, tribunals or courts, be given every opportunity to draft out decisions and then reflect on the same. The drafting of a decision is not the decision itself. It is only the final orders that are made and sent out with the actual decision that is the decision. To release draft decisions would, in my view, create such confusion in the minds of the public that the public interest would be counter-served by allowing such a document to be released.
3. Under those circumstances, the public interest override pursuant to s 50(4) has not been made out. The applicant has said, that in his view as there was no insurance or proper surveys in relation to the development that was taking place next door to his residence and the release of these documents would help show that, which he stated are matters in the public interest. In my view, that does not take this case any further and I do not believe that he would be assisted by the documents to which I have referred, in any event. That is, inspite of what the applicant claimed to be public interest, in my view, it would be contrary to the public interest for such documents to be released.
4. Under those circumstances, I will affirm the decision of the respondent.