The decision of the respondent is affirmed except for the respondent's concession to release those parts of Document 49 which do not identify the author of the document.

1 Mr Jason Richards, the applicant in these proceedings, was injured in a transport accident on 25 May 1996. On 12 May 1997 the Transport Accident Commission (the Commission) received a claim for compensation from Mr Richards. In accordance with its usual practice, the Commission opened a claim file. It is numbered 96/17511. On 19 September 1997, the Commission wrote to Mr Richards accepting his claim for medical and like expenses.

2 On 11 October 2001, Mr Richards filed an originating motion in the County Court seeking leave to commence proceedings to recover common law damages. In November 2002, the Court heard the application and refused leave. Mr Richards appealed to the Court of Appeal. On 21 May 2004, the Court of Appeal allowed the appeal, set aside the judgement of the County Court and remitted the matter to that Court to be re-heard by another judge. It was reheard in February 2005 and on 17 March 2005 the County Court granted a serious injury certificate with respect to injury to Mr Richard's neck, not his back. On 31 March 2005, Mr Richards again lodged an appeal to the Court of Appeal and as at the date of this hearing, that application was unresolved. In any event, there are still legal proceedings between the parties on foot. As I understand, Mr Richards issued a writ in the County Court on 14 April 2005, the day before the hearing of this proceeding.

3 On 3 November 2004, the Tribunal received from Mr Jason Richards an application to review a decision of the Transport Accident Commission (the Commission) made on 5 October 2004. That decision was made on internal review following Mr Richards' request made pursuant to the Freedom of Information Act 1982 (the FOI Act) on 10 July 2004 for access to

all materials that pertains (sic) to my file, claim No. 96/17511. Including from TAC Law case no. 07226/01.

4 As it turns out, at the commencement of this application for review, some 240 documents were identified as exempt from release.

5 On 3 December 2004, at a Directions Hearing, the Tribunal made orders that a sample of the documents in dispute be selected, so that the sample represented each exemption claimed and each class of document appearing in the schedule attached to the Commission's s49 statement. The Tribunal made orders for the filing and service of legal contentions and witness statements and ordered that the parties attend a compulsory conference and set the matter down for hearing.

6 Prior to the compulsory conference, further documents were released to Mr Richards. At the compulsory conference on 28 January 2005, orders were made for the Commission to file and serve a fresh schedule of exempt documents selected as a sample of the documents in dispute. It made further orders noting that that sample, numbering 11 documents, had been agreed upon and would constitute the documents in contention in the proceeding.

7 The hearing proceeded before me on 15 April 2005. Mr Richards appeared in person and Mr Pizer of counsel represented the Commission. Early in the proceedings, Mr Pizer indicated that as late as the day before the hearing, a further three documents were identified as coming within the request, if one took a broad view of the request. One of those documents had been released with a fax number blacked out and Mr Richards was content with its release in that form. The other two were a security incident report dated 15 April 2003 and a security file note dated 31 August 2003.

8 Mr Pizer for the Commission called Mr Rawlings, a solicitor employed by the Commission; Mr Healy, manager security with the Commission; and Mr Valiotis a senior investigator with the Commission. They had prepared statements, gave evidence and were cross-examined. Mr Richards had prepared a statement. He gave evidence and was cross-examined. Because of time constraints, the parties were invited to make written submissions. Mr Richards indicated he would be unlikely to make any submissions given he had already filed a statement of legal contentions. I made orders that the Commission file their submissions by 20 April 2005 and still gave Mr Richards the opportunity to file any submission in reply by 26 April 2005. Submissions were received from the Commission, but none from Mr Richards.

9 During the hearing, the Commission agreed to release in full Document 3, described in the Schedule as a short version Case Planning document created on 4 June 1999. Thus there remained 12 documents for which claim is made that they are exempt or partially exempt from release.

10 Those documents fall into three broad categories :

•

documents that were brought into existence in the course of the litigation between Mr Richards and the TAC

•

documents created by the TAC investigator, Mr Valiotis; and

•

security-related documents.

11 Mr Pizer's very comprehensive submissions addressed each category in turn, and I will follow that format.

12 Documents 17, 19, 39, 40, 43 and 48 in the Schedule come within this category.

13 Documents 39, 40, 43 and 48 are file notes prepared by a Ms Hedges. Document 17 is a file note prepared by Mr Rawlings and document 19 is a draft document.

14 The Commission claims that they are exempt from release under s 32 and s 30(1) of the FOI Act.

15 Mr Rawlings gave evidence about documents 17 and 19. It had been anticipated that Ms Hedges, the author of documents 39, 40, 43 and 48, would not be able to give evidence. In those circumstances, Mr Bolitho, solicitor and manager of the Commission's Legal Policy function, had prepared a statement about those documents and was to be called to give evidence.

16 In any event, Ms Hedges was available, but after I had viewed the relevant documents, Mr Richards indicated that he was content for her not to be called and thus it was not necessary to call the author of these documents.

17 The Commission submits first, that all these documents are exempt from release under s 32 of the FOI Act.

18 Section 32 of the FOI Act states :

(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

(2) A document of the kind referred to in section 8(1) is not an exempt document by virtue of sub-section (1) of this section by reason only of the inclusion in the document of a matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in section 8(1).

19 In his submissions for the Commission, Mr Pizer provides a useful outline of the relevant principles to be applied in considering whether the exemption applies. I agree with that summary, which is that :

•

Legal professional privilege protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. See Esso Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49; the Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49; (2002) 213 CLR 543 at [9]- [11].

•

More specifically, a document will be privileged if it contains a confidential communication that was made for the dominant purpose of obtaining or providing legal advice or is referable to pending or contemplated litigation.

•

It is well established that legal professional privilege can also apply to communications between a client's various legal advisers : Re Purcell and Department of Human Services (unreported, VCAT, Judge Duggan VP, 19 December 2001) at [21].

20 Mr Pizer submitted that in this case, it is clear from the evidence and from the face of documents themselves that they were brought into existence for the dominant purpose of providing legal advice to the Commission or for use in the litigation between Mr Richards and the Commission. Accordingly, he submitted that this is a very clear case in which it may be said, noting that the Tribunal in fact did say on 15 April 2005, that the documents in the first category (namely, documents 17, 19, 39, 40, 43 and 48) are exempt under section 32(1) of the Act.

21 Document 17 is a file note prepared by Mr Rawlings on 24 March 2004. Mr Rawlings' evidence was that on 23 March, he had a telephone conversation with Ross Middleton of counsel regarding Mr Richards' appeal to the Court of Appeal and that Document 17 is a file note he made of that conversation. Further, that the file note contains a confidential communication between Mr Middleton and himself and that the communication only took place because of, and for, the litigation and that the file note was only brought in existence because of and for the litigation.

22 I accepted Mr Rawlings' evidence about that document and with the additional advantage of having inspected the document am satisfied that it is a document brought into existence for use in the litigation between Mr Richards and the Commission, which litigation I note is still continuing, and that it records legal advice given. In those circumstances, it would be privileged from production in legal proceedings on the ground of legal professional privilege. It is therefore exempt from release under s 32(1) of the FOI Act.

23 Document 19 is a draft summary for the Court of Appeal received by Mr Rawlings from Mr Middleton of counsel, on or about 26 March 2004.

24 Mr Rawlings gave evidence that it was prepared solely for the purpose of litigation and that from his reading of the Commission's legal file in relation to the litigation, a finalised summary was served on Mr Richards on 7 April 2004.

25 I accepted Mr Rawlings' evidence about that document and again with the advantage of inspecting it, I am satisfied for the same reasons set out above, that it is exempt from release under s 32(1) of the FOI Act.

26 Documents 39, 40, 43 and 48 are all file notes prepared by Ms Hedges, in May and June 2004. It is accepted that Ms Hedges was a solicitor employed by TAC Law Pty Ltd at that time. It is apparent from an inspection of those four documents that they were prepared in the course of and for the dominant purpose of, the legal proceedings brought by Mr Richards in the Court of Appeal at that time. It is clear that they contain Ms Hedges' opinions, recommendations and/or advice and that those opinions, recommendations and/or advice were given in the course of, or for the purposes of, determining what steps the Commission should take in relation to those proceedings.

27 In those circumstances, I am satisfied that those documents, again for the reasons set out earlier, are exempt from release under s 32(1) of the FOI Act. Thus all the documents in this category are exempt from release under s 32(1) of the FOI Act.

28 Given these findings, it is not necessary to consider the exemption claimed under s 30(1) of the FOI Act in respect to all those documents.

29 There are two documents in this category. Document 4 is a record made by Mr Valiotis of a telephone call from a member of the public received on 29 November 2002. Document 5 is an internal memorandum created by Mr Valiotis, dated 5 February 2003 sent to TAC Law, the Commission's lawyers at the time.

30 Mr Valiotis gave evidence about these two documents. He is a Senior Investigator with the Commission. As such, he performs two principal functions, obtaining information for the purposes of civil litigation and conducting investigations into potential breaches under Part 8 of the Transport Accident Act 1986 which are criminal investigations into matters generally involving fraud or the provision of false information to the Commission.

31 The Commission claims these documents are exempt from release under ss 30(1), 33(1), 35(1)(b) and 38. So far as the memorandum is concerned, the Commission also claims it is exempt from release under s 32 of the FOI Act.

32 First the Commission claims that the documents are exempt from release under s 33(1) of the Act. It states :

(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).

33 Mr Pizer made comprehensive submissions regarding the two conditions that need to be fulfilled to satisfy that exemption claimed. I agree generally with those submissions which were -

38. The expression 'information relating to the personal affairs of any person' has been interpreted widely. In Re Hutchison and Department of Human Services (1997) 12 VAR 422, for example, the AAT observed (at 425-426) that in many cases the expression has been interpreted to mean matters of private concern to an individual.

39. In Re Hutchison the AAT held that written statements of various staff members of the respondent prepared during an internal investigation into the applicant's conduct (and the handwritten notes of an investigating officer from which those statements were prepared) contained matters of private concern to those staff members. That is because the documents related to their personal experiences with the applicant and their various reactions to those experiences, and to their versions of events and their reactions to those events. See also Re Hoskin and Department of Education & Training [2003] VCAT 946 at [36]- [37].

40. Further, section 33(9) of the Act provides that the expression 'information relating to the personal affairs of any person' includes information that identifies any person or discloses their address or location, and information from which any person's identity, address or location can reasonably be determined.

In essence, the test of 'unreasonableness' involves the balancing of two competing public interests. The balance is between the public interest in protecting an individual's right to privacy on the one hand, and the public interest in disclosure of the information on the other.

The main factors to be taken into account in this balancing exercise are as follows :

(a)

whether disclosure would or would be reasonably likely to endanger the life or physical safety of any person: section 33 (2A);

(b)

the nature of the information, how it was obtained and its availability to the public;

(c)

the identity and attitude of the person(s) whose privacy may be affected by disclosure; and

(d)

the identity and motives of the applicant.

A further factor is whether there is a risk that the Applicant would inappropriately pursue third parties and cause them needless stress : Re Reilly and Kilmore and District Hospital (1993) 6 VAR 16; Re White and Pyrenees Shire Council [2001] VCAT 2043 at [28]; Re O'Sullivan and Department of Education, Employment and Training (unreported, VCAT Megay SM, 1 November 2002) at [32].

34 I accept Mr Valiotis' evidence that the identity of the caller is recorded in Document 5 or that it can reasonably he determined from an inspection of Document 4. This is confirmed by an inspection of the documents. I am also satisfied that information which identifies any person or discloses their address or location or information from which any person's identity, address or location can reasonably be determined is "information relating to the personal affairs of any person".

35 I am also satisfied that it would be unreasonable to disclose the documents, for the following reasons. I accepted Mr Valiotis' evidence that he believed it was information obtained in confidence. By its very nature it has that connotation and carries an inference that the identity of the person who provided the information would not be disclosed. Further, I note that it is Mr Valiotis' usual practice to treat such calls on a confidential basis. Were it disclosed, I am satisfied, having accepted Mr Valiotis' evidence and noting his experience of some years in the area, that the ability of the Commission to obtain similar information in the future would be impaired were the documents disclosed. I also note that the caller has not consented to the disclosure and am mindful that it would be possible for Mr Richards, if he knew the person's identity, to confront that person which would be undesirable.

36 I am therefore satisfied that the documents are exempt pursuant to s 33(1) and in those circumstances it is not necessary to consider the other exemptions claimed.

37 There are four documents in this category, numbered 9, 13, 49 and 50.

38 Document 9 is a security file note made on 29 August 2003 by one, Steve Sylaidos. Document 13 is a file note made on 8 January 2004 by Daniel Clair. Document 49 is a Security Incident Report made on 15 April 2003 and Document 50 is a Security File Note made on 31 August 2003.

39 The Commission claims that Documents 9 and 13 are exempt from release under ss 30(1) and 33(1); Document 49 is exempt under s 33(1) and 35(1)(b) and Document 50 exempt under ss 30(1), 33(1) and 35(1)(b).

40 Mr Pearse Healy, Manager Security at the Commission gave evidence about these documents.

41 Turning to Document 9, the Commission claims first that it is exempt from release under s 30(1).

42 Section 30(1) states :

(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

43 A document is exempt under that section if, as Mr Pizer set out in his submissions, with which I agree, the following three conditions are satisfied :

(a) first, disclosure of the document would disclose matter in the nature of :

(i) opinion, advice or recommendation prepared by an officer or Minister; or

(ii) consultation or deliberation that has taken place between officers, Ministers, or an officer and a Minister;

(b) secondly, the opinion, advice or recommendation was prepared - or the consultation or deliberation took place - 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

(c) thirdly, disclosure of the document would be contrary to the public interest.

44 Having perused Document 9 and having considered Mr Healy's evidence which was uncontradicted, I am satisfied that the document records opinions, advice and recommendations of an officer and that it is apparent from the document itself that it was prepared in the course of or for the purpose of, the deliberative processes involved in the functions of the Commission. Thus, I am satisfied it fulfils the first two criteria referred to above.

45 Would disclosure be contrary to the public interest? In considering this, it is appropriate to carry out a balancing exercise, having regard to all the circumstances and balancing the factors in favour of disclosure against the factors against disclosure.

46 Mr Healy gave evidence that disclosure would be contrary to the public interest because it could compromise the safety of TAC staff. His evidence was that given the nature of the document, and his knowledge of Mr Richards' behaviour towards staff in the past, it was reasonably likely that Mr Richards would seek to confront those officers and could place them in a position where their physical safety may be compromised.

47 Mr Richards cross-examined Mr Healy with particular emphasis on whether Mr Richards was really a threat. All in all, whatever beliefs Mr Richards may have had about whether his approaches to staff were threatening or not, I accepted Mr Healy's evidence that in reality what is pertinent is how the recipient of the call or approach perceives it.

48 Whilst Mr Richards claimed there was no history of him being violent, I note Mr Healy's evidence, which I accepted, that he had taken into account Mr Richards' criminal record history which included a conviction for failing to keep ammunition secure. On its face, the information about the possession of that material would be a concern for any security manager, whatever Mr Richards' own explanation for the circumstances of that failure might have been.

49 Balancing the interests, I am satisfied that it would be contrary to the public interest to release the document.

50 I am therefore satisfied Document 9 is exempt from release under s 30(1).

51 Document 13, according to Mr Healy and from my own observations, identifies the security risk management process in place for persons identified as possibly posing a risk to staff and management. I accept Mr Healy's evidence that it records an officer's opinion as well as deliberation or consultation between officers and that it is apparent that the opinion was expressed as part of the deliberative process. For the same reasons as for Document 9, I am also satisfied that release would be contrary to the public interest and further that release could potentially inflame the relation of Mr Richards with TAC staff and is therefore exempt from release under s 30(1).

52 Document 49 is a security incident report made on 15 April 2003. It was a document only identified as coming within the request just before the hearing and Mr Healy gave oral evidence about the document. He said such a report is provided where an incident has occurred and in line with the Commission's occupational health and safety practices, it is recorded. He explained that such reports are treated by the Commission with absolute confidentiality and that such reports are always under the control of the security office and kept secure and are not accessible to all staff. He said that if it were disclosed it could affect staff confidence, such that staff might in the future leave threats unreported which was undesirable. He said that if it were disclosed, given his knowledge of Mr Richards' prior history, it was possible Mr Richards could confront the staff member which could cause stress and possibly lead to physical harm. The document records the name of the person who made the report. The Commission claims the document is exempt from release under s 33(1) and s 35(1)(b).

53 During the hearing, it became apparent that apart from any material that might identify the person who made the report, the document could and would be released to Mr Richards. I am satisfied that any information in the document that might identify the person who made the report is exempt from release under s 33(1). It is clearly personal information and that it would be unreasonable to disclose it because I accept Mr Healy's evidence that it is his belief the release could lead to staff stress, in light of Mr Richards's history.

54 Document 50 is a security file note made by an officer with another officer on 31 August 2003. Mr Healy gave oral evidence that it records the names of two officers and that given the nature of the information in the document, he believed it was apparent that it was given in confidence. If it were disclosed he believed that Mr Richards may attempt to approach the people and cause them stress with risks to their safety. He thought release would have a very real and serious impact on the Commission's ability to obtain such information in the future, which it relies on and where release could lower confidence in the area. He did not think its release was reasonable.

55 The Commission claims the document is exempt under ss 30(1), 33(1) and 35(1)(b).

56 I have perused the document and accept Mr Healy's evidence that it contains the name and other information relating to the personal affairs of the officer who gave the information to TAC security in confidence.

57 I agree with the Commission's submissions that in all the circumstances, particularly given the sensitive and confidential nature of the information and the Commission's knowledge of Mr Richards' history that it would be unreasonable to disclose the document. I am therefore satisfied that Document 50 is exempt from release under s 33(1) of the Act.

APPLICATION OF S 50(4) - PUBLIC INTEREST "OVERRIDE"

58 Section 50(4) of the Act gives the Tribunal the power to grant access where it is of the opinion that the public interest requires that access be granted. However it is not always applicable and does not apply, for example, to documents found to be exempt under s 33(1) which I have found with respect to a number of the documents before me.

59 Section 50(4) states:

50(4) On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 31(3) or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act".

60 The task of the Tribunal is to decide whether the public interest has been demonstrated to the extent that it outweighs the competing interest of documents protected from disclosure by specific provisions of the Act and requires that access should be granted.

61 "Public interest" is a term not defined in the legislation. However, the case law is clear in that we need to distinguish between what is in the public interest and what is of interest for the public to know.

62 I agree with the thrust of the Commission's submissions that

The override cannot be invoked simply because the Tribunal holds the opinion that it is in the public interest that the exempt document be released; rather, the question is whether the public interest requires - that is 'demands" or "necessitates" - the release of that document: Secretary to Department of Premier & Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 341-343, 353.

The override may not be invoked unless the following three conditions are satisfied:

(a) first, the applicant's asserted interest in disclosure is a 'public' interest in disclosure;

(b) secondly, the Tribunal finds that disclosure of the documents advances or promotes the asserted public interest; and

(c) thirdly, the Tribunal finds that the public interest requires - that is demands or necessitates - the disclosure of the documents.

63 As I understand Mr Richards' submissions on "the public interest" they were that he required, or demanded or reasonably required the disclosure of all documents so that he could be satisfied that justice and the law had been duly administered.

64 I am not satisfied Mr Richards has demonstrated any interest other than his own personal interest in the release of the documents. Nor am I satisfied that the documents reveal any wrongdoing on behalf of the Commission or suggest that the Commission has not acted properly, such that I might be persuaded that the public interest requires their release.

65 The decision of the respondent is affirmed except for the respondent's concession to release those parts of Document 49 which do not identify the author of the document.