1. The decision to refuse access in full to six documents located by the Council, was notified under cover of a letter dated 30 January 2017, and was said to be based on section 31(1) of the Act. The latter provides for exemption of law enforcement documents. The Council claimed that release of the documents associated with a current investigation may prejudice investigation or enforcement/administration of the law.
2. The last mentioned decision was revisited by the Council in response to concerns raised by the applicant. Under cover of a letter dated 2 March 2017, the Council provided a "Fresh Notice of Decision" in substitution for the earlier decision. As a consequence of further searches, the Council had identified eight further documents, to six of which access was granted in full. Access in full to one document was refused, and partial access was granted to another document, in each case by reference to section 31(1)(a) of the Act.
3. The applicant next sought review by the FOI Commissioner under Part VI of the Act, which establishes a regime for review of decisions to refuse access to documents. The deemed refusal by the FOI Commissioner is reviewable by the Victorian Civil and Administrative Tribunal (VCAT) under section 50(1)(b) of the Act.
4. The initiating application for VCAT to review the decision taken to be made by the Acting FOI Commissioner is dated 14 June 2017 and was received by VCAT on 19 June 2017.
5. The applicant appeared in person. The Council was represented by Mr Batskos of counsel.

1. The applicant tendered two documents. The first, was a statement prepared by the applicant containing his written submission regarding public interest grounds, as well as written confirmation that the applicant still required disclosure of the content of the documents and the names of the Shire Officers, but not the names or addresses of the landowners.[1] The document was attached to an email dated 25 August 2017.
2. The second document comprised a folder containing the applicant's witness statement, dated 29 January 2018, together with attachments.[2]
3. The Council tendered two statements made by the Manager, Planning Compliance at the Council, Paul Andrew Lewis, dated 22 September 2017 and 19 February 2018 respectively;[3] and a three page extract from the Mornington Peninsula Shire Council Annual Report 2015-2016.[4] At hearing, Mr Lewis adopted the content of his statements, subject to correction of the date of the Reply Witness Statement from 19 February 2017 to 19 February 2018.
4. The Council also relied on the Respondent's Statement of Legal Contentions and the Respondent's Statement of Public Interest Grounds documents, both dated 22 September 2017; the Respondent's Reply Statement of Legal Contentions dated 19 February 2018; and a Summary of Evidence document, the latter handed to the Tribunal during final submissions.
5. The documents claimed to be exempt were provided for inspection by the Tribunal, as was the confidential Notice of Response to the notification given under section 53A of the Act, and list of the names and contact details of the persons to whom notification was sent.
6. As is the custom in these applications, the Council called evidence first. Mr Lewis gave evidence additional to his witness statements and was cross-examined. The applicant also gave evidence additional to his witness statement. He was not cross-examined. This did not mean, however, that the applicant's evidence was uncontested.
7. It is important to note at the outset that I upheld several objections on the grounds of relevance, where cross-examination of Mr Lewis was directed to matters other than to establishing whether each document was an exempt document under one or other of the provisions of the Act.

1. Section 3 states the object of the Act. It is to extend as far as possible the right of the community to access information in the possession of the Government and Government agencies subject to the exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies.[5]
2. Section 3(2) expresses Parliament's intention that the provisions of the Act: "be interpreted so as to further the object of extending, as far as possible, the right of the community to access to information in the possession of the government of Victoria, limited only by exemptions necessary for the protection of essential public interests and private and business affairs."[6]
3. Part III of the Act contains the provisions relating to access to documents. Notably, subject to the Act, a person has a legally enforceable right to access, in accordance with the Act, to a document of an agency.[7]
4. Section 25 facilitates access to a document with exempt or irrelevant material deleted when two conditions are fulfilled. It must be practicable for the agency to grant access to a copy of the document with such deletions as to make the copy document either not an exempt document, or a document that would not disclose information that would reasonably be regarded as irrelevant to the request. And, it must appear from the request made, or from subsequent indication, that the applicant would want to have access to such a copy.
5. Part IV of the Act contains the provisions relating to exempt documents. The Act provides exemptions for various categories of documents. At this juncture it is convenient to simply note in summary the provisions on which the Council relies to exempt documents in the present application.
6. The Council relies on: section 30(1), which exempts from disclosure internal working documents of the Council where this would disclose a matter in the nature of, for instance, opinion prepared by a Council officer; section 31(1)(a), which exempts disclosure of documents that would be reasonably likely to prejudice the investigation of a breach of or the proper enforcement or proper administration of the law; section 31(1)(d), which exempts disclosure of documents reasonably likely to prejudice the effectiveness of methods or procedures in, for instance, investigating breaches of the law; section 33(1), which exempts disclosure of documents that would involve the unreasonable disclosure of information relating to the personal affairs of any person; section 34(1)(b), which exempts disclosure of documents that would likely expose a business, commercial or financial undertaking unreasonably to disadvantage; and section 35(1)(b), which exempts disclosure of documents that would divulge matters communicated to the agency in confidence.
7. Under Part VI of the Act, section 53A makes provision for written notification of the application to review by the agency to the person to whom the information relates, where a reason for the decision to refuse access is that the document is an exempt document under section 33(1) because its disclosure would involve the unreasonable disclosure of information relating to the personal affairs of that person. The person so notified may exercise their right to intervene in the review.
8. Under section 55 of the Act the Council carries the onus of establishing the decision given in respect of the applicant's request was justified or that the Tribunal should give a decision adverse to the applicant.

1. The applicant describes himself as a now "substantially retired"[8] self-employed private planning consultant, who works in rural areas primarily with broiler farms.
2. The applicant lives in Coolart Road, Tuerong. He professes a keen interest in Green Wedge Zone issues affecting the Mornington Peninsula Shire. To this end the applicant has been involved as an objector in a number of planning application cases.
3. One such case was heard and determined by VCAT in August 2011. In Lyons v Mornington Peninsula Shire Council[9] the Tribunal reversed a decision by the Council to refuse to grant a permit for the use and development of land situated at 104 Coolart Road, Tuerong (the land) for both a wholesale plant nursery and a dwelling. The land is in a Green Wedge Zone. The applicant was one of a number of objectors, who supported the Council's decision to refuse to grant a permit.
4. On review, the Council was directed to issue a permit for the land in accordance with the endorsed plans and subject to a number of conditions. The permit permitted development of the land as a dwelling and use and development of the land for a wholesale plant nursery. The conditions imposed required, among other things, submission of a Farm Management Plan and implementation program, and entry into an agreement with the Council pursuant to section 173 of the Planning and Environment Act 1987 (the Planning and Environment Act), the latter to be registered on title prior to the commencement of the use of the dwelling pursuant to section 181 of the Planning and Environment Act.
5. In short compass, the applicant is aggrieved by what he perceives to be persistent failure by the Council to meet statutory obligations to enforce permit conditions in the Green Wedge Zone, and, in the present case, a failure to enforce the permit conditions applying to the development of the land.
6. As the applicant said in his witness statement: he hopes "that disclosure to (him) of the documents sought may bring some information about who is obstructing enforcement and why these matters are not being properly addressed,"[10] and asserts: "that there is impropriety or sharp practice bound up in the way Dwelling in Green Which Zone applications are assessed. How could so many Planners, acting 'independently,' reach the same conclusion to support an Application in the face of clear & consistent guidance available from several entirely relevant and similar VCAT decided applications for nearby properties? More likely than not someone or more than one person is at least guarding or directing Planners in that singular direction - contrary to Planning Scheme provisions."[11]
7. At hearing, the applicant expanded on his purpose in seeking disclosure of the documents, indicating that access to the documents would allow him to identify those officers whom he believes are "colluding in" refusing to perform the Council's statutory obligations.[12]
8. The applicant concedes that he has pursued the request for documents, despite receiving advice that he is entitled to apply to VCAT under section 114 of the Planning and Environment Act to enforce the permit conditions.
9. The review application does not also involve investigation of the Council's compliance with any statutory obligation to enforce permit conditions either in respect to the land or any of the other properties mentioned in the materials before the Tribunal. The only task of the Tribunal is to determine the efficacy of the claim that each document for which exemption is claimed under one or other provision of the Act, is an exempt document.
10. The requirements of section 25 of the Act must also be taken into account. There was no suggestion that it would be impracticable for the Council in this case to copy documents with deletion of exempt or irrelevant material. That does not mean, however, that what remains is meaningful or capable of being read in context. The latter is a relevant consideration where redaction could result in a document being misleading or unintelligible.
11. Consistent with his stated purposes, the applicant has previously informed the Tribunal that he does not seek any material which would identify any individuals other than officers of the Council. The applicant has more recently reiterated this position both in his statement regarding public interest grounds dated 25 August 2017[13], and at hearing.[14]
12. In the former document the applicant relevantly stated as follows:[15]

For avoidance of any doubt, the Applicant does not seek access to all the documents sent by the Mornington Peninsula Shire and received from the Landowner pertaining to 104 Coolart Road, Teurong. The Applicant's statement that he sought the documents but with the names & addresses of the landowner written to or the name and the address of the landowner writing to the Shire redacted or obscured simply means that the body or full text of the letters is sought. Shire Officer names should remain. It is the content & meaning of the communications which is sought (sic). ...

1. Accordingly, one of the questions to be resolved in this case is, what is the utility, if any, of releasing under section 25 of the Act, any documents, with redaction of any exempt or irrelevant material, if the redacted document does not also contain information that identifies Council officers and/or the steps taken, if any, to investigate or enforce permit conditions in respect to the land.
2. In my view, for the reasons that follow, the decision to refuse access to each of the documents should be affirmed.

1. The Council contends that the eight documents to which access has been refused, are either fully or partially exempt. The Schedule of Exempt Documents attached to the Council's Section 49 Statement (as amended[16]) in this proceeding, describes each exempt document and the provisions under which exemption is claimed. For convenience the Schedule is copied below:

Council customer service database record of action taken

ss 31(1)(a), 33(1)

ss 31(1)(a), 31(1)(d), 33(1), 34(1)(b), 35(1)(b)

ss 31(1)(a), 31(1)(d), 33(1)

ss 31(1)(a), 31(1)(d), 33(1), 34(1)(b), 35(1)(b)

Email chain beginning with and duplicating document 4

ss 31(1)(a), 31(1)(d), 33(1), 34(1)(b), 35(1)(b)

Email chain beginning with and duplicating document 5

ss 31(1)(a), 31(1)(d), 33(1), 34(1)(b), 35(1)(b)

ss 31(1)(a), 31(1)(d), 33(1)

File notes describing internal deliberations between Council officers. Most of page 1 has nothing to do with the request and is not relevant.

Partially relevant - s25

Balance exempt ss 30(1), 31(1)(a), 31(1)(d), 33(1)

1. As the Schedule shows, exemption is claimed for each document under section 33.
2. The Council submits, and I accept that, to the extent that disclosure of any or all of the documents would involve unreasonable disclosure of information relating to the personal affairs of any person, the Tribunal is not required to consider the public interest override under section 50(4) of the Act. The document or documents would be exempt, subject to the requirements of section 25[17]. The Council further submits that there is no need to deal with the exemptions claimed under other provisions because, even after making suitable deletions, the Tribunal should uphold the claim for full exemption under section 33 of the Act.
3. Accordingly, it is convenient to commence with my discussion of section 33, and the evidence relating to the claim for exemption for each document under section 33.

Section 33

Section 33 relevantly provides:

(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.

(2B) 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 -

(a) notify the person who is the subject of that information (or if that person is deceased, that person's next of kin) that the agency or Minister has received a request for access to the document; and

(b) seek that person's view as to whether disclosure of the document should occur; and

(c) state that if the person consents to disclosure of the document, or disclosure subject to deletion of information relating to the personal affairs of the person, the person is not entitled to apply to the Tribunal for review of a decision to grant access to that document.

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. There exists a considerable body of case law on the interpretation of section 33, and the circumstances in which exemption exists. It is unnecessary to traverse it all in detail.
2. Suffice to say at the outset, that disclosure of personal affairs only arises if the document is capable, either directly or indirectly, of identifying a particular individual whose affairs are mentioned.
3. Otherwise, for present purposes I accept, and adopt the summary of the law as it relates to this application, contained in the 'Respondent's Statement of Legal Contentions' document, in particular paragraphs 5.2 to 5.17. These paragraphs (which include some related submissions), and the footnotes are extracted below:

5.2 A document is therefore exempt under s 33(1) if the following two

• if access were granted to the document, it would involve

the disclosure of information relating to the personal affairs of any person (including a deceased person); and

• such disclosure would involve the unreasonable disclosure

5.3 The first limb is satisfied if the document would involve disclosure of information relating to the personal affairs of any person, including a deceased person (other than the applicant: see s 33(2)). That phrase is defined in s 33(9) to include 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.

5.4 The words "personal affairs" have a wide interpretation and mean matters of private concern to an individual56 or it affects or concerns that person as an individual.57. It is clear that s 33(9) applies to all natural persons, including officers of agencies;58 to read down the expression "any person" to exclude agency officers is impermissible.59

"The simple removal of a names (sic), dates places etc, in effort to remove the [s 33] exemption assumes an extremely narrow definition of 'information relating to personal affairs'. The authorities are clear that material arising out of a person's work performance can relate to the personal affairs of a person. The Tribunal adopts a broad definition of personal affairs that extends beyond a name or simple personal identification."60

5.6 Names and information enabling the identity of persons to be ascertained clearly relate to a person's personal affairs as they enable a person to be directly or indirectly identified.61

5.7 Personal statements of opinion by an identifiable individual comprise information relating to the personal affairs of a person under s 33.62

5.8 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.63 Therefore, even if names were removed, other information in the context in which it appears may be sufficient to identify to the applicant based on information already known, the individuals referred to in the exempt documents.

5.9 The personal affairs information in this matter includes:

• names;
• initials;
• positions;
• telephone numbers;
• the type of leave taken by a staff member;
• opinions about various matters or persons (including the owners

5.10 The Court of Appeal considered what is required of decision-makers (including the Tribunal) when assessing whether disclosure of personal affairs information would involve the unreasonable disclosure of such information.64

5.11 The following principles may be gleaned from the Court of Appeal's decision in Marke and has been accepted as an accurate summary of those principles:65

(a) Disclosure of a document under the FOI Act is about disclosure or release to a particular applicant. 66

(b) It is wrong to assume that disclosure under the FOI Act to a particular applicant is in fact disclosure to the world at large.67 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.68

(d) Determining whether disclosure would involve "unreasonable" disclosure 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 document.69

(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 FOI Act.70

(f) The Tribunal is entitled to assume, in the vast majority of cases, that once a document is made available under the FOI 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, politicians, or members of interest groups with a particular agenda in mind. Not every case, however, will fall into this description.71 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 FOI Act. Ordinarily a decision-maker will need to 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.72

(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 persons whose affairs will be disclosed in determining whether disclosure is unreasonable.73 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 FOI 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.74

(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,75 which appear to accord with common sense. Those factors are:

(ii) the nature of the information to be disclosed;77

(iii) the circumstances in which the information was

(iv) the likelihood of the information being such that

(v) whether the information had any current relevance.80

(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.81

(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 many cases will weigh heavily against disclosure of a document under s 33(1).82

(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.83

(iv) The sensitivity (past and present) of the personal information.84

(v) The relationship between the personal information and any other information in the document.85

(vi) Whether and to what extent the personal information was already known to the applicant.86 This factor will be stronger if the information was notorious (e.g., on television).87

5.12 It is submitted that the purpose for which an applicant seeks access to documents and the lack of utility in that purpose are also relevant to a consideration of the unreasonableness of disclosure. For example, disclosure would be unreasonable where it would neither progress nor meet the applicant's aims and objectives in seeking access to the documents.

5.13 Of course, it is important to keep in mind the need to take into account s 33(2A) of the FOI Act, which was inserted in response to the need to protect personal affairs information in response to what has come to be known as the Coulston case or Frankston Hospital case.88 Section 33(2A) should be interpreted broadly and can include considerations such as a known violent history of an applicant.89 However, it can apply where the endangerment may come from any person, and not just an applicant.90

5.14 "Physical safety" is not just about actual safety; it is also about the perception that one is safe. Thus, disclosure may endanger a person's "physical safety" within the meaning of the FOI Act, if that disclosure makes that person feel less safe.91 The fear that an applicant or other person may engage in violent recriminations against a person, if that person's personal affairs information were to be disclosed, is also relevant to determining whether disclosure would be unreasonable.92 Even if an applicant is unlikely to take violent action against a person whose personal information would be revealed by disclosure of the documents, the mere fact that release of the information could create apprehension in the mind of the person concerned may be enough to render disclosure unreasonable.93

5.15 The reference to reasonable likelihood means that the chance of it occurring must be real and not fanciful or remote.94 For example, that the reasonably held fear or apprehension is sufficiently held if it has not arisen from anything fanciful.95

5.16 It is submitted that the following other factors are also relevant:

(a) The likelihood that release could lead to at least one

third party to suffer stress, anxiety or embarrassment.96

(b) Disclosure is less likely to be unreasonable where

the applicant's motives are commendable; disclosure is more likely to be unreasonable where the applicant's reason for seeking access is out of some particular personal crusade, or for the purpose of embarrassing or otherwise harming the third persons concerned.97

(c) The absence of any public interest in disclosure of

personal affairs information or where disclosure is not in the public interest.98

(d) The existence in s 13 of the Charter of the right of a

person not to have his or her privacy, family or home

(e) It is unreasonable to release the personal affairs

information of persons who have received s 53A notifications and responded saying that they did not want their names and personal information released99 or where individuals have otherwise expressed concern about disclosure of information about them to an applicant.

5.17 The likely impact disclosure would have on the ability of the Respondent to obtain similar information from similar sources and of a similarly frank and candid nature in future if disclosure occurs.

56 See for example Hutchison v Department of Human Services (1997) 12

VAR 422, 425-426; F v Health Department (1988) 2 VAR 458, 461.

57 Hanson v Department of Education and Training [2007] VCAT 123 at [9].

58 See, for example, Geelong Community Good Life Inc v Environment

Protection Authority & Anor [2009] VCAT 2429 at [48].

59 Morgan v City of Port Phillip [2008] VCAT 978 at [42].

60 Mickelburough v Victoria Police (unreported, Victorian Civil and

Administrative Tribunal, Member O'Halloran, 19 February 2009) 39;

Gunawan v Directorate of School Education (1994) 6 VAR 418, 425.

61 O'Sullivan v Department of Health and Community Services (No.2) (1995)

9 VAR 1, 14; Beachamp v Department of Education [2006] VCAT 1653 at [42].

62 See for example, Zacek v Medical Practitioners Board of Victoria [2005]

VCAT 114; Richardson v Business Licensing Authority [2003] VCAT 1053; Conyers v Monash University [2005] VCAT 2509.

63 Victoria Police v Marke [2008] VSCA 218 at [7], [9], [94].

64 Victoria Police v Marke [2008] VSCA 218 ("Marke"). ·

65 Morgan v Department of Human Services [2008] VCAT 2420. See also

XYZ v Victoria Police [2010] VCAT 255; Levy v Department of Sustainability and Environment [2011] VCAT 417 at [16]; Simpson v VicRoads [2011] VCAT 321 at [18].

69 Ibid [76], [93], [96], [103], [106]. See also Mickelburough v Victoria

Police (unreported, Victorian Civil and Administrative Tribunal, Member O'Halloran, 19 February 2009) 42- 43; Geelong Community Good Life Inc v Environment Protection Authority & Anor [2009] VCAT 2429 at [49] and Mann v Medical Board of Australia [2010] VCAT 1525 at [10].

70 Ibid [30]-[31], [69]-[70], [105]-[106].

74 Ibid [104]; Re Shewcroft and ABC (1985) 7 ALN 307; Re Lapidos and

Office of Corrections (No 3) (1990) 4 VAR 150, 154; Page v Metropolitan Transit Authority (1988) 2 VAR 243.

75 (1988) 2 VAR 243, 245-6. See also XYZ v Victoria Police [2010] VCAT

79 Any view about disclosure expressed by any person to whom the

81 Ibid [67], [71], [72], [86], [88], [99], [105], [108].

88 Coulston v Mornington Peninsula & District Health (unreported, VCAT, 25

89 Knight v CORE [2002] VCAT 1769 at [18]- [19]; Musso v Department of

Justice [2004] VCAT 1268 at [32].

90 Spencer v Department of Justice [2008] VCAT 977 at [16].

91 O'Sullivan v Victoria Police [2005] VCAT 532 at [19]; Morse v Building

Appeals Board (No.2) [2007] VCAT 2344 at [15].

92 Musso v Department of Justice [2004] VCAT 1268; Geelong Community Good Life Inc v Environment Protection Authority & Anor [2009] VCAT 2429 at [53] - [60].

93 Akers v Victoria Police (No 1) [2003] VCAT 397 at [43]; Koch v Swinburne

University [2004] VCAT 1513 at [28]; Mann v Medical Board of Australia

[2010] VCAT 1525 at [15].

94 Vaughan v Department of Sustainability and Environment [2004] VCAT 1562; (2004) 21 VAR 307.

95 Koch v Swinburne University [2004] VCAT 1513 at [28].

96 Reilly v Kilmore and District Hospital (1993) 6 VAR 16, 23.

97 Gunawan v Department of Education (unreported, Victorian Civil and Administrative

98 Mildenhall v Department of Planning and Development (unreported, Administrative

Appeals Tribunal, Member Preuss, 16 August 1995) 6.

99 Morgan v Department of Human Services (unreported, Victorian Civil and

Administrative Tribunal, Mr Davis, 5 December 2008) 70.

1. Mr Lewis's witness statement and evidence-in-chief was to the following effect.
2. In his current position, Mr Lewis is responsible for:

1. overseeing reported non-compliance against the planning scheme; 2. overseeing planning permits;

1. managing a team of five officers of the Council who are responsible for conducting investigations, mostly under the Planning and Environment Act.
2. The applicant's complaint related to the conditions imposed on the planning permit to which I have already referred.
3. The allegation that there was non-compliance with permit conditions, was investigated. The investigation and the enforcement process was undertaken by different Council officers at different times.
4. Council officers exchanged correspondence with the landowners in relation to the applicant's allegations, either by letter or email. The exempt documents partly comprise such communications.
5. The exempt documents also partly comprise "internal written communications within the Council, or records of internal communications between Council officers, including between officers and more senior officers, deliberating about and consulting each other as to how to handle the complaint, the subject matter of the complaint, and the enforcement -related steps which may or may not be taken by the Council and why."[18]
6. Those documents did not fully set out all of the reasons why the Council did, or did not, take particular steps as part of the investigation and the enforcement process, which is ongoing. At hearing, Mr Lewis confirmed that there are outstanding issues regarding compliance by the landowners with the permit requirements.
7. According to Mr Lewis, in the course of communicating with them, the landowners provided information of a very personal or sensitive business nature, which is apparent on the face of the documents, including:

1. private email address; 2. personal, financial and residential circumstances;

1. personal circumstances about other family members;

1. business plans and options, finances, and steps taken or to be taken; 2. the subject matter and nature of legal advice and the type of legal assistance sought by them.
2. File notes or similar documents also recorded which of the Council officers, of mostly more junior levels, had been involved in handling the complaint and investigation on behalf of the Council, as well as information about the landowners.
3. The exempt documents further contain or disclose other identifying or other information about Council officers and staff including:

1. telephone numbers; 2. the type of leave taken by a staff member; 3. opinions about various matters or persons (including the landowners and the applicant).
2. The applicant tendered a lengthy witness statement,[19] supported by some 17 attachments. The latter comprises, among other things, emails and correspondence passing between the applicant and Council officers. The statement sets out in some detail the applicant's concern that the Council has failed to enforce compliance with permit conditions applying to the land and several other properties in the Green Wedge Zone.
3. Much of the statement and the supporting material is devoted to providing examples of conduct said to represent an ongoing failure of the Council to enforce permit conditions.
4. The applicant, however, submits that, by its conduct, the Council has 'waived' any claim for exemption of any personal affairs information in the documents. To this end, the statement contains the applicant's account of a telephone conversation with Mr Lewis on 8 September 2017, and attaches copy emails (one with an attachment) exchanged by the applicant with the Council on 23 September 2017.[20]
5. The applicant states that on 8 September 2017 he was advised by Mr Lewis that the documents requested were not confidential.
6. In the first of the emails dated 23 September 2017, the applicant wrote to Mr Lewis regarding a meeting held with Council officers on 22 September 2017, during the course of which there had been discussion of planning enforcement matters for several properties including the land. The email response received the same day from Council's CEO, attaches a document containing the Council's responses to various questions posed by the applicant in respect to these properties. The responses include information ostensibly supplied to the Council by the landowners relating to their personal affairs.

The first limb of section 33(1) - whether disclosure would involve disclosure of information relating to the personal affairs of a person

1. Information relates to a person's personal affairs if it concerns or affects that person as an individual. I did not understand the applicant to resist the proposition that the information the Council said was contained in the documents included information relating to the personal affairs of the landowners.
2. Section 33(9) now ensures that the meaning of 'information relating to the personal affairs of any person' includes information that identifies any person or discloses their address or location, and includes information from which these matters can reasonably be determined.
3. It is important to bear in mind that the identity, address and location of the landowners is likely reasonably ascertainable, where, as in this case, the Tribunal previously reversed a decision of the Council to refuse to grant a permit for the use and development of the land, which included the construction of a dwelling.
4. If, for example, a document contains information identifying the address and/or location of the land, or other information identifying the landowners, either directly or indirectly, and contains further information relating to their personal affairs, then disclosure of that document would likely involve disclosure of information relating to the landowners' personal affairs under the first limb of section 33(1) of the Act.
5. The introduction of section 33(9) of the Act was meant to ensure that agency officers were not excluded from the protection afforded 'any person' under this provision. Accordingly, determination of whether a document is an exempt document must also take into account information relating to the personal affairs of Council officers or staff.
6. The applicant's statement with attachments shows that, from time to time, he has had contact with Council officers and staff, some of whom have been involved in investigation and enforcement processes relating to the land. However, the identity of these or other Council officers or staff, or the stage or stages at which Council officers or staff were involved in these processes, is either not known or not well-known.
7. As mentioned, the applicant has indicated that he seeks information that identifies Council officers and staff involved in the investigation and enforcement of the permit conditions. It follows that, disclosure, either in a document or sequence of documents, of the names or other information that identifies, either directly or indirectly, Council officers or staff, such as the date or dates of their involvement, would likely also involve disclosure of information relating to their personal affairs.

The extent to which any personal affairs information in the documents is confidential

1. Ordinarily, disclosure of a document or documents to a person means that there is a loss of control of information in a document. The loss of privilege or confidentiality this entails is one factor that may weigh against disclosure of a document under section 33 of the Act.
2. As I understood the applicant's position at hearing, he challenged the claim that the personal affairs information of the landowners remained confidential but not the proposition that any personal affairs information communicated by the landowners to the Council in its regulatory role was likely communicated in confidence, and that the information so communicated was not information that the landowners would have wished to have disclosed. The latter can be inferred from the objections notified under section 53A of the Act to disclosure of information relating to the personal affairs information of the landowners.

1. As Mr Lewis's Reply Witness Statement dated 19 February 2018[21] confirms, when, on 8 September 2017, he rang the applicant, they engaged in a lengthy discussion that included discussion of the applicant's request for documents under the Act.
2. It is not necessary to repeat in full the content of the applicant's written account of the discussion, he says was based on the contemporaneous notes he took. For present purposes it is enough to summarise the assertions made, that bear upon the exemption claimed under section 33(1) of the Act. In summary, the applicant understood from the conversation with Mr Lewis on 8 September 2017 that:
   1. Preparation of a statement would be time-consuming, and Mr Lewis was looking for a way to avoid this.
   2. The documents requested were not confidential or very sensitive. In fact Mr Lewis described them as "benign", yet mentioned "privacy".
   3. Mr Lewis was prepared to allow him to read but not take copies of the documents.
   4. He was being encouraged to lodge an enforcement application under section 114 of the Planning and Environment Act, for which he informed Mr Lewis that he, the applicant, would require a copy of the documents.
   5. Mr Lewis was prepared to write to confirm that inspection had revealed ongoing non-compliance with permit conditions.
3. In his Reply Witness Statement dated 19 February 2018, among other things, Mr Lewis relevantly recalled that:[22]
   1. He expressed his belief that the documents were "benign", and of no use to the applicant.
   2. The applicant refused an offer to inspect ("I said to the applicant words to the effect that "if I thought it would help, I would be happy for you to view the documents with me at Councils offices... (sic)"").
   3. He never stated or suggested that the documents were not confidential. On the contrary, Mr Lewis said that the Council considered all enforcement documents to be confidential, and he reminded the applicant that, if he were a landowner under investigation, he too would expect the Council to protect his right to privacy vis-a-vis documents containing "sensitive or non-sensitive information (sic)".
   4. Should the applicant, as he was entitled to, commence third-party enforcement proceedings under the Planning and Environment Act, the Council would be required to attend and inform the Tribunal of the facts available to the Council, and further inform the Tribunal that the land owner was non-compliant.
4. Under cross-examination, Mr Lewis conceded that he had not kept contemporaneous notes of the conversation on 8 September 2017. Mr Lewis's statement represented, he said, his "best recollection" of what had transpired.[23]
5. There followed further cross-examination during which Mr Lewis effectively rejected any suggestion that he had indicated:
   1. that the documents were not confidential;
   2. that at a minimum the nursery for the land needed to be commenced;
   3. that the landowners were not compliant with a section 173 Agreement. As Mr Lewis explained, there was no section 173 Agreement on foot at that time.
6. The applicant had some difficulty reading his handwritten notes of the meeting on 8 September 2017. The applicant submitted that these notes represented a contemporaneous and reliable record, and he was adamant that Mr Lewis had represented to him that the documents were not confidential.

1. The applicant's email to Mr Lewis and the CEO on 23 September 2017 references what the applicant describes as an "informative and constructive" meeting held the day before with, among others, Mr Lewis and the CEO, during which there was discussion of enforcement matters relating to several properties in the Green Wedge Zone. The applicant asks that a copy of the permit and plan for one property be forwarded, and that the Council provide answers ("I do not need a detailed spreadsheet response...(a)n interim response could be appropriate") to 4 pages of questions regarding several properties, forwarded by the applicant prior to the meeting.
2. The attachment to the CEO's email comprises one and half pages of answers relating to several properties, one short paragraph of which discloses in a general way some information about the landowners. The latter very briefly states what is properly characterised as personal affairs information, such as information relating to: the completion of the dwelling and the timing of the landowners' occupation; approval and commencement of the Farm Management Plan; preparation and lodgement of a section 173 Agreement; the landowners' personal financial circumstances; and the personal circumstances of a relative of the landowners.
3. The covering email from the CEO explains that the attachment contains "the 'bare bones' answers/update on the specific sites" about which the applicant had raised concern. The email continues by indicating: that the Council is "looking more closely" at its "strategy in dealing with these matters," which "will be made more clear" at their next meeting; and that the Council is also "looking into the approvals/plans for the road and hope to get this" to the applicant when it is located.
4. During re-examination Mr Lewis sought to make the point, that the applicant was not informed, either at the meeting with Council officers on 22 September 2017, or in the email dated 23 September 2017, that he, the applicant, was at liberty to disclose any or all of the information communicated[24].

The Council's response to the claim that the information was no longer confidential

1. The Council relies on a range of matters in response to the claimed loss of confidentiality.
2. The Council relies on Mr Lewis's denial that he indicated that the documents were not confidential.
3. Notably, the applicant acknowledges that Mr Lewis did raise the issue of privacy during their discussion. Based on this and the evidence as a whole, I formed the impression that, by the conclusion of their discussion, the applicant likely understood that, as such, the information in the documents remained in the Council's control. And, further, that the Council continued to deny access to the documents requested on the basis that, among other grounds, the documents contained information that was private because it related to the personal affairs information of Council officers and staff, and it was private in the sense that, it was the type of information the Act exempted from disclosure in order to protect the private and business affairs of the landowners from whom information had been collected and held by the Council while regulating the planning scheme.
4. The offer to inspect the documents was declined in any event, so that by the conclusion of the discussion on 8 September 2017, the request for access to the documents remained unsatisfied.
5. In the circumstances described, even had I been satisfied that Mr Lewis had expressly stated that the documents were not confidential, I could not be satisfied that any confidentiality attaching to any personal affairs information of Council officers and staff, or of the landowners, was lost (waived if you like) as a result of the matters discussed on 8 September 2017.
6. As to the effect of the CEO's email dated 23 September 2017, and its attachment, the Council made several submissions.
7. Firstly, the Council submits that the email and its attachment were subject to the confidentiality statement contained in the email. The latter warns any unintended recipient that the information in the email remains privileged and confidential.
8. In my view, whilst limiting the publication of the content of the email and the attachment to the recipient, the confidentiality statement contained in the email and its attachment does not, of itself, indicate that information conveyed to the intended recipient was also intended to remain confidential in that individual's hands.
9. Secondly, the Council submits that the information disclosed in the attachment to the email was communicated in confidence because it was provided to the applicant for a limited purpose. That purpose appears to have been to respond to the applicant's enforcement concerns relating to several properties in the Green Wedge Zone, one of which was the land.
10. In my view, neither the purpose for communicating the information nor the circumstances in which answers containing this information were given to the applicant's questions, provide a sound basis for inferring that any of the information relating to the landowners' personal affairs, likely originally communicated in confidence by them to the Council, and later communicated to the applicant under cover of the email dated 23 September 2017, remained confidential.
11. Rather, I concluded that the information disclosed by the Council in the attachment to the email was no longer confidential primarily because, in this instance, communication of the information to an applicant, who is actively pursuing enforcement of permit conditions attaching to the land, probably represented potential disclosure to the world at large.
12. It cannot be assumed, however, that where some information relating to the personal affairs of the landowners is no longer confidential, disclosure of this along with other information originally obtained in confidence would not involve the unreasonable disclosure of information relating to the personal affairs of the landowners under section 33 of the Act.
13. Moreover, disclosure of information relating to the personal affairs of Council officers and staff, and whether this would involve unreasonable disclosure under section 33, requires separate consideration.

The second limb of section 33(1) - whether disclosure of information relating to personal affairs information is unreasonable?

1. The applicant's submissions, both orally and in writing did not directly address the issue of 'unreasonableness' under section 33 of the Act. His submissions were focussed on what the applicant considered the most significant issue, namely the public interest requirement as it applied, as for example, to section 35(1)(b) of the Act; or to the overriding public interest requirement under section 50(4) of the Act.
2. In the context of the Act, a decision about whether disclosure would involve unreasonable disclosure, requires a weighing up of all the circumstances of this case.
3. Having regard to the range of facts and matters raised in evidence and in submissions, and relevant to whether disclosure would be unreasonable, I concluded that, notwithstanding any loss of confidentiality for some information relating to the personal affairs of the landowners, disclosure of other personal affairs information of either Council officers and staff, or of the landowners contained in each of the documents for which exemption is claimed, would involve unreasonable disclosure.
4. The Council made several specific submissions (orally and in writing) in this regard.

1. It is clear from the evidence before the Tribunal that, for some time now, the applicant has been involved in a personal crusade to make Council officers and staff personally accountable for what the applicant perceives to be their persistent failure to enforce permit conditions.
2. The Council submits, and I accept that, disclosure of personal affairs information is more likely unreasonable where, as in this case, the applicant seeks access to documents in order to identify and embarrass Council officers he believes have colluded to act contrary to the planning scheme in relation to the assessment of Green Wedge Zone applications, and in relation to the enforcement of permit conditions. This is a factor that weighs against the case for disclosure of personal affairs information.
3. Furthermore, it is apparent from the material before the Tribunal, which includes the objections notified under section 53A of the Act to disclosure of information relating to the personal affairs information of Council officers and staff, that, in the present case, the personal affairs information relating to the Council officers and staff, who have responded was not information that they wished to have disclosed.
4. Moreover, where, as in this case, the applicant intends to use information identifying Council officers, as a means of embarrassing these individuals and the Council, I infer that the Council officers and staff identified in the documents, who did not respond to the notification given under section 53A, likewise, would not wish to have their personal affairs information disclosed.
5. In further evidence-in-chief Mr Lewis confirmed, firstly, that the organisational structure depicted in the extract from the Mornington Peninsula Shire Council Annual Report 2015-2016 document,[25] identified the members of the executive group during this period; and, secondly that the Council officers named or identified in the exempt documents were not members of this group[26]. Inspection of Documents 1 to 8 confirms this to be the case.
6. The significance of this evidence lies in the contention that the Tribunal should not release information identifying Council officers/staff unless they are at or above executive level.
7. From time to time the Tribunal has found that disclosure of the names and personal information of non-executive staff would involve unreasonable disclosure of the personal affairs of those staff. This view has been affirmed more recently in Coulson v Department of Premier & Cabinet,[27] where the Senior Member relevantly wrote:[28]

With the passage of years since those decisions and the increasing prominence of rights of privacy, in my view an approach regarding disclosure of the names of staff holding non-executive positions as unreasonable disclosure is the correct and preferable approach.

1. The Council submits, and I accept, that the Senior Member's observation reflects the correct approach. In keeping with Mr Lewis's evidence, I am satisfied that none of the Council officers or staff identified in the documents were employed at executive level or above. This is a further factor that weighs against disclosure.
2. The Council also relies on (appropriately in my view) the requirements of section 33(2A), which was inserted to help protect personal affairs information, where the disclosure of the information would, or would be reasonably likely to endanger the life or physical safety of any person. The endangerment can come from any person who accesses the information. Physical safety includes any apprehension by a person that their safety would be compromised by disclosure. In the present case, in view of the purposes for which the documents were requested by the applicant, I concluded that potential disclosure of information relating to the personal affairs of Council officers or staff to other disaffected individuals would be reasonably likely to endanger the physical safety of Council officers or staff. This is not to suggest, however, that the applicant himself poses such a threat.
3. In this case, I was satisfied that disclosure of the names, personal information or information that would identify Council officers and staff would involve unreasonable disclosure of information relating to the personal affairs of those Council officers. It follows that this is a matter I have taken into account in determining whether, for the purposes of sections 25 and 33(1) of the Act, any of the documents may be released, with suitable deletions.

1. As mentioned, the landowners have notified their objection to the release of their identity and personal information under section 53A. The tenor of the objection is that disclosure would be detrimental to their business operations and to the relationship established with the Council.
2. The Council submits, and I accept, that the likely impact of disclosure on the ability of the Council to obtain similar information from similar sources, and of a similarly frank and candid nature in future if disclosure occurred, is also a relevant consideration, as it is probative of the question of unreasonableness. In short, it is important to the proper operation of investigation and enforcement processes employed by the Council under the planning scheme that individuals, such as the landowners, not be discouraged from providing personal information.
3. In this case, I was satisfied that disclosure of the names, personal information or information that would identify the landowners would involve unreasonable disclosure of information relating to the personal affairs of the landowners. It follows that this is a matter I have taken into account in determining whether, for the purposes of sections 25 and 33(1) of the Act, any of the documents may be released, with suitable deletions.

Section 25 - redaction

1. As was noted earlier, I must also consider the utility, if any, of ordering the release of documents under section 25 of the Act, with redaction of any exempt personal affairs material or irrelevant material, if redaction would result in a document not being meaningful and capable of being read in context; or, for that matter, result in a document that does not contain information specifically sought by the applicant.
2. With suitable redaction, which would necessarily involve removal of exempt personal affairs information, irrelevant material such as material relating to other properties; and some information relating to enforcement, I could not be satisfied that any of the documents would remain meaningful and capable of being read in context. On the contrary, I formed the view that the redacted documents could be misleading or unintelligible in regard to the extent of the investigation and enforcement process which the Council confirmed was ongoing, and in regard to the extent to which, if any, there had been compliance with permit conditions applying to the land.
3. Lastly, I could not be satisfied that the redacted documents would provide the information the applicant said he required; that is to say, the names of the Council officers and the "content and meaning of" the document.[29] Essentially, the release of the redacted documents would not assist the applicant with identifying Council officers or their role in the compliance and enforcement process; or advance the applicant's understanding of compliance or enforcement issues beyond the substantial information communicated by the Council so far.
4. My discussion of whether disclosure of each document would involve unreasonable disclosure, and, if so, the efficacy of each document after suitable deletion of personal affairs information is set out below.

Document 1 - 4 September 2015 to 7 November 2016 - Database record [30]

1. Mr Lewis described this document as containing an extract from the Council's database used by the planning area to record complaints. In a summary form, the document records action taken by an officer or officers in relation to the complaint, including a record of the allocation of a matter to a particular officer, and the assignment of and the recording of tasks undertaken.
2. According to Mr Lewis, the document identified the land; Council officers or staff who have had some involvement in the matter; steps taken and when; the types of action taken; and a summary of the nature of the matter, among other information.
3. The document is also described in the Schedule of Exempt Documents set out earlier. I have read the document. I accept that, as described by Mr Lewis, the document contains information relating to the land and the personal affairs of Council officers or staff, who had some involvement in the matter.
4. For the purpose of section 33(1) of the Act, I note that the information that identifies, or from which the identity of Council officers or staff can reasonably be determined, consists of the location of the land, and the names and/or initials, or telephone contact numbers, of several Council officers or staff. Suitable redaction of the document would not be practicable because it would be substantial and result in a document which lacks any intelligible information.

Documents 2 and 8 - File notes from 4 September 2015 to 19 December 2016[31]

1. Mr Lewis described these as file notes covering the period 4 September 2015 to 19 December 2016, which set out in chronological order some internal deliberations between Council officers, and various steps taken in relation to the handling of the complaint made by the applicant.
2. According to Mr Lewis, these documents relevantly disclose information, which identifies and is about the landowners (including information of the kind contained in paragraph 52(a) to (e) above), Council officers or staff, the address of the land, opinions by staff or officers of the Council, private information about leave of staff, and personal views about the future conduct of the matter.
3. These documents are also described in the Schedule of Exempt Documents set out earlier. I have read these documents. I accept that, as described by Mr Lewis, the documents contain information which identifies the landowners and their address, and information that relates to the personal affairs of the landowners, and/or Council officers or staff who have had some involvement in the matter.
4. Document 2 comprises a one-page document. For the purpose of section 33(1) of the Act, the landowners' identity is reasonably ascertainable from the information in Document 2. The document records information relating to the landowners' personal affairs, such as business plans and options, and the steps taken or to be taken in this regard as well as details of a consultation with a legal advisor.
5. Document 8 comprises a two-page document. Most of the first page and part of the second page contains material irrelevant to the request for documents. The latter is exempt under section 25 of the Act. For the purpose of section 33(1) of the Act, the remainder of the file notes contain or disclose information from which the identity of Council officers and staff can be reasonably determined. It also contains a mixture of personal statements of opinion of Council officers or staff and instruction about the ongoing conduct of the investigation.
6. I formed the view that suitable redaction of the file notes comprising Documents 2 and 8 would not be practicable because the deletions (and the removal of irrelevant material) would be substantial, and would result in documents that were misleading or unintelligible.

1. Whilst this one-page letter was not specifically referenced in the witness statement, exemption was claimed under several provisions including section 33. As the Schedule of Exempt Documents shows, the document comprises a letter dated 4 September 2015 from a Council officer to the landowners.
2. Having inspected the document I was satisfied that the letter contained information relating to the personal affairs of the landowners and/or Council officers or staff, with some involvement in this matter. More particularly, the letter contains information from which the identity and address of the landowners and the location of the land can be reasonably determined. It also contains identifying information such as the name, email address and telephone contact for a Council officer, and a written expression of opinion about non-compliance with the permit by the landowners. The latter opinion would tell the applicant no more than he already knows about compliance and enforcement processes as a result of information already communicated to the applicant by the Council.
3. Suitable redaction of the document would not be practicable because it would result in a document, the substance of which could not be read in context, and one that was misleading.

Documents 4, 5 and 6[32] - email correspondence 11 September 2015 - 23 November 2015

1. Mr Lewis described these documents as comprising a chain of emails, which, as the Schedule of Exempt Documents shows, passed between the landowner and a Council officer in the period between 11 September 2015 and 23 November 2015. The first of these on 11 September 2015 responds to Document 3, the letter dated 4 September 2015 from a Council officer to the landowners.
2. According to Mr Lewis, this chain of email correspondence comprises part of the correspondence between the Council and the landowners. Disclosure would, he said, include disclosure of information of the kind referred to in paragraphs 52(a) to (e) and 54(a) to (f) above.
3. I have read this chain of email correspondence. I accept that, as described by Mr Lewis, the documents contain information relating to the personal affairs of the landowners, and/or Council officers or staff who have had some involvement in the matter.
4. Document 4, is a two-page document comprising the one-page letter in Document 3 along with a one-page email response. For the purposes of section 33(1) of the Act, the email response also contains personal affairs information, which, as claimed, includes information of the kind referred to in paragraph 52(a) to (e) inclusive above. The email response also includes information, such as the name of the Council officer to whom the reply is addressed.
5. Document 5, is a two-page document consisting of three emails in a chain of emails. The first email is the email contained in Document 4. The second email consists of a response from a Council Officer, and the last email consists of the landowner's response. For the purposes of section 33(1) of the Act, the additional email correspondence contains personal affairs information for the landowners, such as information of the kind referred to in paragraph 52(a) to (e) inclusive above. The emails also include identifying information, such as the name, email address and telephone contact details of a Council officer in their capacity either as the author or the recipient of the emails.
6. Document 6, is a four-page document, comprising five emails in a chain of emails. The first three of these emails consist of the emails found in Documents 4 and 5 above. For the purposes of section 33(1) of the Act, the additional emails contain personal affairs information for the landowners such as a private email address and information relating to legal advice and the type of legal assistance sought.
7. The emails also include the name, email address and telephone contact details of a Council officer, either in their capacity as the author or the recipient of the additional emails.
8. Suitable redaction of each of the documents comprising documents 4, 5 and 6 would not be practicable because the deletions from the chain of email correspondence would be substantial, and result in redacted documents that lacked context and were misleading or unintelligible.

Document 7[33] - email chain 27 November 2015

1. Mr Lewis described this as comprising an email chain between the Council and landowners of the land, which email chain contains and would disclose information about the personal affairs of the landowners, such as the information described in paragraph 52(a) to (e) above, and information about various officers or employees of the Council of the kind described in paragraph 54(a) to (f) above.
2. I have read this chain of email correspondence. I accept that, as described by Mr Lewis, the emails contain information relating to the personal affairs of the landowners, and/or Council officers or staff who have had some involvement in the matter.
3. Document 7, is a two-page document, comprising email exchanges between a Council officer and the landowners. For the purposes of section 33(1) of the Act, the emails contain personal affairs information for the landowners, such as a private email address, and information relating to obtaining legal advice. The emails also include the name, email address and telephone contact details of a Council officer, either in their capacity as the author or the recipient of the emails.
4. Suitable redaction of the chain of emails would not be practicable because editing would be substantial and result in documents that were misleading or unintelligible.

1. In my view, in this case, the interest in protecting privacy outweighs the interest in disclosure. Disclosure of each of the documents would likely involve unreasonable disclosure of information relating to the personal affairs information of either or both the landowners' and Council officers or staff. Moreover, I formed the view that with suitable redaction of the documents, which also allowed for deletion of the information to which the applicant indicated he did not wish access, access was not practicable.

1. I propose to confirm the decision of the Council to refuse access to Documents 1 to 8 inclusive.

[5] Section 3(1) of the Act.

[6] Re Ryan v Department of Infrastructure [2004] VCAT 2346; (2004) 22 VAR 226 at 234 [32]; VCAT 2346 [32]

[7] Section 13 of the Act.

[9] [2011] VCAT 1761.

[14] See Exhibit DP1 and record of Orders made at Directions Hearing held before Deputy President H. Lambrick on 31 July 2017.

[16] The exemption for Document 8 was amended at hearing to also refer to section 33(1)(a) - TN 70 and 73.

[20] Exhibit DP2, pages 3 to 6 inclusive with supporting documents, 2 and 2A.

[27] (Review and Regulation) [2018] VCAT 229 [124] to [127].

[30] Exhibit MPS1, paragraphs 20 to 22 inclusive.

[31] Ibid, paragraphs 23 to 32 inclusive.

[32] Ibid, paragraphs 33 to 35 inclusive.

[33] Ibid, paragraphs 36 to 38 inclusive.