1. G78/2004: That the Respondent have access to documents identified as 1, 2, 3 and 4.

2. G131/2004: That the Respondent have access to document 1.

1 Before the Tribunal are two applications, which have been heard together, brought by the Applicant pursuant to the provisions of the Freedom of Information Act 1982 ("the Act").

2 The first application, No. 78 of 2004, is for the review of a decision to refuse access to documents in the Respondent's ESD file C1-6/4541/2002, relating to the police handling of matters surrounding the Applicant's husband's death on 24 July 2002.

3 The second application, No. 131 of 2004, is for the review of a decision to refuse access to documents in the Respondent's ESD file C1-6-4996/2002, relating to the Respondent's handling of the Applicant's complaints concerning the entry to her home on 28 May 2003 by Stuart Pritchard and Cassandra Turner (each of whom is a step-child of the Applicant) and the removal of items from the Applicant's home.

4 The Applicant's husband, Ewen McIntyre Pritchard, died suddenly on 24 July 2002, whilst attending to cows in cattle yards on a property adjacent to the farming property owned by the Applicant and her husband. When the husband had not returned home by 7 o'clock that night, the Applicant sought him out and found his lifeless body in the cattle yards to which I have referred.

5 The next person to arrive at the cattle yards was Stuart Pritchard, who is, and was then, by occupation, a policeman. Other police and ambulance officers attended. Mr Pritchard's body was removed and taken to Wangaratta for a post mortem examination and report thereon.

6 As I understand it, the evidence of the Pathologist was that death was due to a coronary occlusion; and the Coroner accepted that this was so.

7 Following the husband's death, the Applicant raised concerns with the Respondent that police personnel had dealt inappropriately and improperly in their professional capacities in dealing with a number of matters arising out of the death. In summary, she alleged that, through a lack of consultation with her, the VP83 form for the Coroner contained deficiencies and inaccuracies. Secondly, that she had not been treated with appropriate support and compassion when attending the scene of her husband's death soon after it occurred. Thirdly, that Stuart Pritchard had attempted improperly to interfere in the handling by the police of her complaints to them.

8 I have not seen the VP83 form and cannot comment upon its accuracy. However, the applicant has seen the form and she has stated that the form contained a summary of the circumstances surrounding Mr Pritchard's death in which it was stated that he was highly stressed at the time of his death, due to his domestic and work situation, which stress may have caused his death. Further, she noted that the form did not identify her as the deceased's next of kin.

9 The Applicant and the deceased had been married for some 25 years. Each had been married previously; each marriage having ended with the death of the spouse. The deceased had three children, and the Applicant, two children, by their earlier marriages. Their union produced a further three children.

10 There is no dispute that Stuart Pritchard and Cassandra Turner, who are children of the deceased, entered the Applicant's home on 28 May 2003. The dispute relates to whether they took goods belonging to them, or whether, inter alia, they took goods illegally, as the Applicant asserts, which did not belong to them, but were the property of the Applicant and the deceased.

11 By reason of FOI requests made by the Applicant, the Respondent has released much documentation from each of the two files. A small number of documents or passages from documents have not been released by the Respondent and these are now sought by the Applicant in these applications. The applications are brought pursuant to Section 50 of the Act. In relation to G78/2004, the number of documents in dispute has been reduced to six; in G131/2004 there is one document only in dispute.

12 The Act is to be read and interpreted in the light of its objects, which are recited in Section 3 thereof. A line of authorities has recited the proposition that it is appropriate to construe the Act in a manner which would further, rather than hinder, free access to information, save where it is specifically stated otherwise. The Respondent bears the onus of satisfying the Tribunal that the documents to which access has been refused are exempt documents.

13 The Tribunal directed the Respondent to notify any individual, to whom Section 53A of the Act applied, of this hearing. In following that direction, the Respondent properly so informed both Stuart Pritchard and Cassandra Turner. Neither of these persons informed the Tribunal of his/her intention to intervene. Ms Turner did not attend the hearing. Mr Stuart Pritchard was present and I gave him leave to intervene. He cross-examined the Applicant briefly and made submissions on the merits.

14 In contending that the documents are exempt documents, Mr Dragojlovic, solicitor for the Respondent, relied upon the provisions of Sections 30(1) and 33(1) of the Act.

(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) 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).

16 The Respondent did not call evidence, nor did it tender any documentation. Mr Dragojlovic made opening and final submissions. Mr McGregor, solicitor for the Applicant, called the Applicant, who confirmed her statements in each application, which statements were put into evidence. She was cross-examined by both Mr Dragojlovic and, as I have said, by Mr Stuart Pritchard. On her behalf, there were tendered, without objection, letters to her from the Ombudsman and the Respondent.

17 I turn then to consider each of the applications. In doing so, I am conscious of the need not to disclose the details in the documents or passages of documents in dispute, lest, if I were to find partially or wholly in favour of the Applicant, an appeal would be rendered nugatory if those contents were revealed. Conversely, if I were to find against the Applicant, it is important that the information sought should not be disclosed. I should point out that no application was made by the Applicant's solicitor, pursuant to Section 56 of the Act, for leave to inspect the undisclosed documents.

18 As I have stated, there are six documents or passages therefrom in dispute. In relation to documents 1, 2 and 4, the Respondent relies for its refusal on both Sections 30(1) and 33(1) of the Act. For document 3, it relies upon Section 30(1). For documents 5 and 6, it relies upon Section 33(1).

19 This document is a report by Sergeant Davis of the Respondent to his superior officer. It is a three-page document, of which all but twelve lines (on page 3) have been released. Of those twelve lines, it is contended by the Respondent, that six of these express opinions and the other six relate to information provided by a third party. The comment in the first two lines of page 3, for which exemption is claimed, contain a mixture of fact and opinion. When looking at the document overall, it seems to me that there is an unnecessary degree of sensitivity involved in seeking to exclude these lines, and taking the balance of the document and the nature of the Applicant's requests and complaints at that time into account, it seems to me to be very much in the public interest to direct the release of those lines.

20 The six lines sub-joined to the clause numbered viii on page 3 seem to be no more than an expression of the author's knowledge and belief. They do not constitute advice or opinion. The information relates to the personal affairs of the Applicant and her late husband. She wants the information to be disclosed and such disclosure is not, in my view, unreasonable, insofar as it relates to the deceased. The last four lines in the penultimate paragraph of page 3 contain neither advice nor opinion; it is no more than a statement of the author's subjective feelings. These comments are not protected by Section 30(1) of the Act. Accordingly, I direct that the balance of documents be released to the Applicant.

21 The document, of two pages, being a report from Senior Sergeant Clarke of the Respondent to a superior, has been released to the Applicant after the deletion of a sentence at the top of page 2. The Respondent contends that the passage is dispute is exempt both as expressing opinions and as it refers to a conversation with a third party. As to the latter, such a conversation is not protected by the Act, unless the effect of its reproduction attracts the protection of Section 33(1) of the Act. The short passage is not protected by Section 33(1) of the Act; nor does it express advice or opinion. I direct that this document be released in full to the Applicant.

22 Four lines of a two-page report by Inspector New of the Respondent to his superior, have been deleted from the document which was otherwise released. The lines are to be found in two single sentences. It is contended that these sentences express the opinions of the author. The first sentence contains no more than a statement of the author's belief. It is not protected. Concerning the second sentence, it does contain advice, but that advice was given in November, 2002. By July 2004, that advice is of historical interest now, and, in my judgment its continuing exemption is contrary to the public interest. I direct that the document be released to the Applicant.

23 This document is a report of 23 June 2003, prepared by Inspector Cosgriff for his superior. It is a six-page document, which has been released save for four lines on page 4; twelve lines on page 5; and two lines on page 6. In relation to the four lines on page 4, the objection taken is that those lines contain comments by a third party and opinions of the author. The lines on pages 5 and 6 are claimed to express opinions of the author. As to the four lines on page 4, the first three relate to statements concerning the relationship between the Applicant and the deceased shortly before the latter's death. That they contain comments made by a third party does not give that third party protection under Section 33(1) of the Act.

24 The comments do not relate to the personal affairs of that third party. They relate to the personal affairs of the Applicant and the deceased and, as I have stated earlier, I do not consider that such disclosure is unreasonable. The final sentence is an expression of opinion. I am not satisfied that is disclosure would be contrary to the public interest. The passages for which exemption is sought on pages 5 and 6 do not contain expressions of opinion or advice, but rather contain statements of fact or belief. In any event, having regard to the overall content of the document, I consider its release to be in the public interest. I direct that the remaining parts of document four be released to the Applicant.

25 Of two pages of diary notes made by Inspector Cosgriff on 3 June 2003, all but twelve lines have been released. Objection is taken to the disclosure of those twelve lines on the basis that they contain notes of conversations with third parties. Having read those twelve lines, it seems to me that they are protected by Section 33 of the Act. They contain notes which relate to the personal affairs of several people; concerning which I am satisfied that disclosure would be unreasonable. I uphold the claim to exemption for this document.

26 I have read the document with care. Exemption is sought for the whole document. I shall make no attempt to enter into a description of its authorship or its contents for reasons I have expressed earlier.

27 The document's release would involve the disclosure of personal information concerning a number of people. Having considered the contents of the document, I am satisfied that such disclosure would be unreasonable. Accordingly, I uphold the Respondent's objection to its disclosure.

28 Exemption has been sought for several paragraphs of one document only. The stated reason for the claim to exemption is that "The information relates to a third party". The document in question is of five pages.

29 It is a report of Inspector Lehman to his superior. It is dated 16 August 2003, and it is a report upon his investigation into the Applicant's complaint. Having regard to the nature of the investigation and the complaint which produced the need for it, I have considerable doubt whether the paragraphs for which exemption is sought relate to the personal affairs of any person. However, if I am wrong in that view, I am not satisfied that the disclosure of the information would be unreasonable in the circumstances. I direct that these materials be disclosed to the Applicant.

30 The result is that in relation to G78/2004, I refuse the claim for exemption in relation to documents 1, 2, 3 and 4.

31 I uphold the claim to exemption in relation to documents 5 and 6.

32 As stated, I refuse the claim for exemption in relation to document 1.

33 Accordingly, in G78/2004, the Applicant succeeds to the extent recited above. The decisions of the Respondent made on 24 September 2003, and 11 December 2003, are set aside insofar as they relate to documents 1, 2, 3 and 4; they are confirmed in relation to documents 5 and 6.

34 In application G131/2004, the Applicant succeeds. The decisions of the Respondent of 20 November 2003 and 22 December 2003, are set aside and, in lieu thereof, it is directed that the Applicant be granted access to the balance of the document identified by the Number 1.

35 As Ms Cassandra Turner has not intervened, I direct that she and Stuart Pritchard be given notice of the orders I have made (see Section 53A(3) of the Act). By reason Section 53A(4) the order will not take effect for 28 days from this date.

36 Formally I order that in G78/2004, the Respondent grant access to the Applicant of documents 1, 2, 3 and 4; in G131/2004 I order that the Respondent grant access to the Applicant of document 1.

37 Such access shall be granted after the expiration of 28 days from this date; or earlier by agreement between the parties (including the third parties).

38 That there be no order for costs in either proceeding.