1. The Department identified 66 relevant documents. In due course the Department granted access in full to some documents, partial access to others and refused access in full to still others. PJE then made an application to the Office of the Freedom of Information Commissioner for review of the Department's decision. As a result of that process, further documents were provided to PJE.
2. 13 documents however remained in contention, such that PJE made application to this Tribunal on 3 August 2015 for a review of the (Assistant) Freedom of Information Commissioner's decision.
3. The disputed documents relate to a complaint made by PJE in 2011 about his child's school. The complaint was subsequently investigated by the Department.
4. By letter dated 24 January 2012, PJE was advised by the Regional Director of the outcome of the complaint which was that no further action would be taken. In due course PJE asked the Regional Director, the Minister for Education and his local Member of Parliament to review the Regional Director's decision to take no further action with respect to the complaint. The Regional Director responded to PJE in February 2013 (the February 2013 letter), declining to revisit the complaint.
5. The matter proceeded before me on 30 March 2016. PJE spoke on his own behalf and made reference to the substantial folder of materials he filed with the Tribunal. PJE believes that the welfare of his child has been compromised through the education system and that his complaint was not satisfactorily investigated. He believes weight was given to his former partner's false accusations about him and that his child's welfare was compromised as a result of staff at the school. In seeking release of the documents, PJE aims to discredit what took place at his child's school and in the investigation following his complaint. Much of the material provided by him was referrable to these issues.
6. It is not of course the role of this Tribunal to determine whether the investigation was in fact thorough or effective or whether PJE or his child have been treated appropriately by the Department or others. The materials provided by PJE nevertheless provided important context to understanding his request.
7. The Department also relied on filed materials and called one witness Mr Tony Bugden who is the Executive Director, Human Resources for the Department of Education and Training. Mr Budgen's evidence focused on the Department's policy, procedures and guidelines for managing complaints, referable to this matter.
8. He gave evidence that the Department's investigation was conducted in accordance with the Guidelines for Managing Complaints, Unsatisfactory Performance and Misconduct-Teaching Service (2011 Guidelines). The 2011 Guidelines set out the procedures to be adopted when managing complaints relating to teachers.

1. The respondent claims (part of) the documents are exempt (variously) under ss30(1), 33(1) and 35(1) of the Freedom of Information Act 1982 (the Act).
2. Section 30(1) exempts internal working documents from disclosure where the document(s) would disclose matter in the nature of opinion, advice or recommendation prepared by an officer... or consultation or deliberation that has taken place between officers... in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency... or the government and disclosure would be contrary to the public interest.
3. The exemption does not apply to purely factual material contained within the document.
4. Section 33(1) exempts a document if its disclosure under the Act would involve the unreasonable disclosure of information relating to the personal affairs of any person. Relevantly for these proceedings, information relating to the personal affairs includes information that identifies any person. Where the release of information concerns private affairs, section 53A of the Act allows concerned individuals to intervene in review proceedings before the Tribunal.
5. Section 35(1)(b) exempts a document if its disclosure under the Act would disclose material obtained in confidence by or on behalf of a person or a government agency ...and the disclosure would be contrary to the public interest by reason that it would be reasonably likely to impair the ability of an agency ... to obtain similar information in the future.
6. Section 50(4) of the Act, allows the Tribunal, in some instances to grant access to an otherwise exempt document where the Tribunal is of the opinion that the public interest requires that access should be given (the public interest override).
7. I now turn to the documents.

1. Documents 1 to 6 are records of telephone conversations. Records 1 and 2 are identical records, as are documents 3 and 4 and records 5 and 6 respectively.
2. Documents 7 to 10 are written responses to the complaint given to the investigator by members of staff of the School.
3. Document 11 is the investigation report.
4. Document 12 is a draft of the February 2013 letter.
5. Document 13 is a further draft of the February 2013 letter with a covering email.
6. Documents 1 to 6 - PJE has been provided with redacted copies of the telephone records. He is therefore aware of the substantive content of each of the telephone records.
7. The Department claims exemption under section 30(1) of the Act for the final paragraph of documents 1 and 2, four words in paragraph 2 of documents 3 and 4 and several sentences in the action box in documents 5 and 6.
8. Each redacted sentence or paragraph clearly contains an expressed opinion. The notes are couched variously in terms of sentiments, views, or impressions. None are objective statements of fact. Each has the tone of being a confidential communication of opinion.
9. Each redacted sentence or paragraph is clearly part of the deliberative processes of the school in question - that is managing issues of concern that arise.
10. PJE made the very valid point that individuals should not be able to say whatever they like and expect to be protected by a veil of confidentiality. He stressed that the integrity of the records held are only as good as the contents and if those contents are unable to be challenged, the integrity of the record cannot be assured. It may be in some cases that considerations of this type would in fact sway the balance in favour of release.
11. I am satisfied nevertheless that the disclosure of the material would be contrary to the public interest.
12. Each case must be determined on its own merits. It is a balancing act taking into account all of the individual circumstances in any given case to determine when the release of an internal working document will be contrary to the public interest.
13. I accept the evidence of Mr Bugden that it is unlikely the opinions would have been so recorded if their confidentiality could not be assured. It is important that staff within a school have confidence that they can have certain conversations confidentially and that the types of opinions seen in this material are fully documented by members of school staff.
14. I accept that the release of the documents would inhibit the independence of staff to openly express themselves in the important area of child welfare and that disclosure would be contrary to the public interest.
15. The Department further contends that the name of the person who took each call, (a junior administrative person) and the name of the person who actioned each call (a senior advisor) and (where applicable) the relevant phone number(s) are exempt under section 33(1) of the Act.
16. PJE contends that he is entitled to all information relevant in any way to his child. Although he is unable to articulate specifically why or for what purpose he requires these particular names and numbers, he contends that there should be full disclosure of all information where children are concerned.
17. In the context of these telephone attendances and for the reasons identified above, the individuals would not have expected or anticipated that their names would be disclosed to PJE. They would certainly not anticipate that their names would be released at this late stage. I note that the complaint occurred in 2011 and that PJE's child has not attended the school since that time. One of the concerned individuals has specifically requested that their identity not be released to PJE. The other was unable to be contacted, due to the passage of time.
18. There is no discernible benefit to PJE to be derived by the release of the names or contact telephone numbers. It is unlikely that PJE would be assisted in any of his identified endeavours by ascertaining the names.
19. I am satisfied in the circumstances of this case that the interest in protecting the privacy of the individuals outweighs the interests in disclosure. Release of the personal affairs of the individuals would therefore be unreasonable.
20. The names and telephone numbers contained in each of the six telephone records are exempt from disclosure.
21. Documents 7 to 10 comprise the written responses by members of staff of the school, participating in the investigation relating to PJE's complaint. The documents were prepared for the external investigator, who then prepared a final report.
22. The Department submits that the whole of each document is exempt under sections 30(1), 33(1) and 35(1)(b) of the Act. I turn first to a discussion of section 35(1)(b).
23. Mr Budgen gave extensive evidence about the processes involved in the investigation of complaints generally within the Department. He stated the compilation of the statements and preparation of the report were carried out in accordance with the 2011 Guidelines which emphasise the importance, when managing complaints about teachers, of such investigations being conducted confidentially. He said that employees of the Department are told, when participating in investigations, that their communications to the investigator will be confidential. Further he said that employees are told that the person who made an allegation or complaint will not be told directly what an individual has said.
24. Having perused the 2011 Guidelines, I accept that they do stress the importance of confidentiality during the investigation process. Justification for confidentiality is said to be that it assists the investigative process by encouraging witnesses to be forthcoming and reducing the likelihood that evidence will become compromised or unsubstantiated allegations to be circulated outside of the complaint process. I accept that this has been a critical aspect of the Guidelines (in its various incarnations) over many years.
25. Whilst the 2011 Guidelines make it clear that full confidentiality is not completely guaranteed, Mr Bugden gave evidence that confidentiality plays a significant role in ensuring the successful resolution of complaints in many instances.
26. I accepted the evidence of Mr Budgen that the statements were prepared in the usual way for managing complaints about teachers which are elevated to an investigation stage.
27. I am satisfied that each document was prepared under an expectation that the contents would be communicated in confidence. The documents contain information which appears to have been given candidly and freely in the context of being a response to specific complaints and allegations made against the author of each document in their professional capacities by PJE.
28. The exemption is not however satisfied by this finding alone. I must also consider whether disclosure would be contrary to the public interest by reason that it would be reasonably likely to impair the ability of the agency to obtain similar information the future.
29. PJE submitted that it would not. He did not address me at length on the likelihood or otherwise of the ability of an agency to obtain similar information in the future, but was keen to emphasise the public interest in transparency surrounding complaints processes, particularly where children are involved.
30. I accepted the evidence of Mr Bugden, that if it became known that the contents of such statements were released by the Department, that there would be a reluctance by individuals to participate fully in the investigative process. I also accepted his evidence that there is not an obligation requiring officers to participate in the process. This could have a significant impact on the ability of the Department to collect evidence and obtain similar information in the future. I accepted his evidence that if individuals providing statements to an investigator were aware that the complainant would be given a copy of their statements they may be likely to be more circumspect in information provided in those statements.
31. It is in the public interest for there to be full co-operation in the gathering of information relating to complaints about teachers and schools generally. It would be contrary to the public interest if that co-operation ceased. I accepted the evidence of Mr Bugden that there is a real likelihood of this occurring.
32. The quality of the final report may thus be compromised.
33. I accept disclosure of the information would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of the agency to obtain similar information in the future.
34. I would also have been satisfied (a large proportion) of each of the documents was exempt under section 30(1) of the Act.
35. Each document discloses employees' opinions, prepared in furtherance of the investigation of the complaint received by the Department from PJE. The investigation of complaints received in relation to schools under its remit is squarely part of the deliberative processes involved in the functions of the Department.
36. Disclosure of the documents would be contrary to the public interest for the same reasons as those outlined above.
37. Section 33(1) exempts a document if its disclosure under the Act would involve the unreasonable disclosure of information relating to the personal affairs of any person. The conduct and reputation of the Departments employees, although relating to work performance, is also a matter of private concern to them. The disclosure would be unreasonable in circumstances where the information was obtained under an expectation and assurance of confidentiality.
38. It is evident from the section 53A a responses that the authors of the statements do not wish to have the information disclosed that disclosure will cause a degree of stress and anxiety. I note that PJE has indicated in his application for review that he wants information to discredit those employees.
39. Documents 7 - 10 are exempt from disclosure.
40. Document 11 is the investigation report. The Respondent claims the report is exempt (in part) under sections 30(1), 33(1) and 35(1)(b) of the Act. All the purely factual material has already been released to PJE. I will address the remaining material in the order in which it appears in the report.
41. I am satisfied that the section 33(1) exemption is correctly claimed in relation to the redaction on page 2 of the report, but not the redaction on page 1, which is the investigators contact details. The name of the investigator is known to PJE. The rest of his business contact details would therefore be readily obtained. Release is therefore not unreasonable.
42. The individual whose name and identifying features is redacted on page 2 would not however have expected or anticipated their name to be disclosed to PJE for the reasons set out in relation to documents 7 - 10.
43. There is no discernible benefit to PJE to be derived by the release of the name or identifying details. It is unlikely that PJE would be assisted in any of his identified endeavours by ascertaining the name.
44. I am satisfied in the circumstances of this case that the interest in protecting the privacy of the individual outweighs the interests in disclosure. Release of the personal affairs of the individual would therefore be unreasonable.
45. I am satisfied that the other redacted sentence on page 2 of the report is exempt under section 30(1) of the Act, falling squarely within the section's descriptors. Its disclosure would be contrary to the public interest because, based as it is, on opinion, it could readily be misconstrued and taken out of context.
46. Page 3 of the report has already been released to PJE in its entirety.
47. Page 4 contains two separate redactions.
48. The first redaction is one sentence which intertwines information communicated to the investigator in confidence with the opinion of the investigator.[1] I am satisfied that the section 35(1)(b) exemption is properly claimed in relation to the information communicated in confidence to the investigator for the reasons set out in relation to documents 7 - 10. The section 30(1) exemption is properly claimed in relation to the clear expression of opinion (expressed for the purposes of the deliberative (thinking) functions of the Department). The sentence reveals the thought processes and reasoning of the independent investigator. It is a "one-liner" which could readily be taken out of context, if its contents were to be released. Its disclosure would be contrary to the public interest.
49. I will group the final redaction on page 4 (which continues into page 5) of the report and the second and final redaction on page 5 together. These comprise the investigator's conclusion and the final finding which was not acted on.
50. The outcome of the investigation of the complaint and most of the key findings have been communicated to PJE.
51. The respondent claims exemption for these parts of the report under section 30(1) of the Act.
52. The Department emphasised that that the general conclusions reached by the investigator are in the nature of opinion given to the ultimate decision-maker (the Department). It was emphasised that the role of the Department was to consider the findings and recommendations, when determining the appropriate action to take.
53. I accept that it is critical to the proper management of schools that decisions about complaints are based on accurate information
54. I am satisfied that the conclusions and final finding are in the nature of opinion provided to the Department as part of its deliberative (thinking) processes in this matter.
55. The final finding was not acted upon. It is contrary to the public interest to disclose material reflecting possibilities considered but not eventually adopted. The release of such material may lead to confusion.
56. I am also satisfied that disclosure of the conclusions would be contrary to the public interest as the opinions expressed may not have reflected the basis upon which the Department based its decision.
57. The parts of document which have not already been released to PJE are exempt from disclosure.
58. Documents 12 and 13 - Document 12 contains a draft letter that was not sent and was superseded by the document 13 draft letter with covering email that was also not sent. A final version of the letter was provided to PJE.
59. I am satisfied that document 12 is exempt under section 30(1) of the Act.
60. I am satisfied that the document is in the nature of opinion/advice and deliberations created in the course of responding to PJE's concerns. It is clearly for the purpose of, the deliberative processes involved in the functions of an agency. It was superseded by, document 13.
61. I am satisfied that its disclosure would be contrary to the public interest. It is appropriate for decision-makers to be judged on final decisions and the reasons for that final decision rather than considerations which may or may not have been recommended by others in preliminary documents. It would be contrary to the public interest if such preliminary consultations ceased because of concerns that the thought processes would be made public.
62. I make the same comments in relation to document 13 and the covering email.
63. The name of the author of the email is also exempt under section 33(1). Its release would involve the unreasonable disclosure of information relating to the personal affairs of an individual in circumstances where it would not have been anticipated that the correspondence would be made public. I note that the author has objected to the release.

Section 50(4)

1. I read the Statement of Public Interest Grounds of each of the parties.
2. In determining whether to release otherwise exempt documents (under sections 30(1) and 35 of the Act), I must consider whether the public interest requires disclosure of the documents. This is an extremely high threshold question. The public interest in this context is concerned with the benefit of the community as a whole, not the benefit of an individual, even where documents relate to a matter of personal significance to an individual. In this respect I acknowledge the private interests of PJE.
3. However I accept the submission of the respondent that the public interest in protecting the integrity and effectiveness of the Departments investigative and complaints handling process, significantly outweighs PJE's interest in examining the documents.

1. I will direct that the following document to be released to PJE: page 1 of document 11.
2. In all other respects I will affirm the decision of the respondent.
3. I will direct the principal registrar to give notice of this order to the person named in page 1 of document 11 in accordance with section 53A(3) of the Act. I will also make the notation that the order does not take effect until 28 days after the day on which it was made in accordance with section 53A(4) of the Act.

1. Much of the evidence pertained to PJE's child. I considered that it was in the interests of justice for the child's identity to be suppressed and that the only way to achieve that was to suppress the name of PJE. I accordingly made orders under the Open Courts Act 2013.

[1] "Officer" is defined in section 5 of the Act to include a member of the agency, a member of staff of the agency and any person employed by or for the agency. The word "officer" has been frequently found by this Tribunal to include independent consultants and I agree with those earlier findings.