Roberts v Southern Rural Water [2002] VCAT 1423

2. Otherwise the decision of the respondent is affirmed.

For the Respondent: Mr J Watt, Freedom of Information Officer

1. The applicant having made certain allegations against members of staff of the respondent, the respondent instituted an investigation into the matter. Being of the view that the investigation was flawed, under the Freedom of Information Act 1982 (the Act), the applicant sought certain information relating to it including the relevant terms of reference.

2. A number of documents were furnished to the applicant in answer to his request but 29 remain in dispute. They are referred to in an inventory of documents in dispute filed by the respondent.

3. In declining to release the documents in dispute, the respondent relies upon the exemption established by s.32(1) of the Act, viz :

"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".

4. The applicant maintains that even if the documents are otherwise exempt under that measure the Tribunal should, in any event, exercise the power conferred upon it by s.50(4) of the Act and release the documents in dispute on the grounds that the public interest requires that access should be granted.

5. There has been a long running and acrimonious dispute between the applicant and the respondent over a number of issues including allegations of theft, harassment, malicious prosecution, damage to property, fraud and corruption.

6. There have been other legal proceedings relating to some or some aspects of these matters including other applications to this Tribunal.

7. The applicant is of the view that an officer of the respondent has conducted a campaign of malicious prosecution against him, that the respondent's staff are involved in corruption, that the Chief Executive Officer has made false answers to questions, that the respondent either withheld information or gave false information to its solicitors in connection with the investigation of allegations, that another officer has been involved in tampering with witnesses, that the respondent has failed to conduct any investigation in regard to the alleged tampering and that there has been tampering with tape recordings. These matters have been the subject of an extensive exchange of correspondence between the parties over a long period of time.

8. The applicant did not contest the nature of the documents in dispute but ran his case on the basis of there being a public interest which requires the release of the information contained in the documents notwithstanding that they may be exempt pursuant to s.32 of the Act.

9. Taken together, a perusal of the documents and the evidence of the respondent's Freedom of Information officer, Mr Watt. confirm that most of the documents were confidential communications brought into existence for the dominant purpose of the provision of legal advice or in anticipation of legal proceedings in connection with the respondent's response to the allegations made by the applicant. It is evident enough that that is so in the case of documents 407, 408 (which has been in part released), 415, 419 (save for six pages purporting to be a summary of the applicant's outstanding concerns, 420 (but only to the extent of the annotations), 421, 422, 423, 424 (save for that part already released), 427, 431, 435, 436, 437, 438, 439, 440, 441 (save for the attached draft letter but including the annotations thereon), 443, 444, 445, 447, 448, 449, 450, 451, 452, 453 and 454.

10. The six pages in Document 419 (being the third to the eighth pages both inclusive) purporting to be a summary of the applicant's outstanding concerns refer to a number of matters which are already within the knowledge of the applicant and appear to be mutually acknowledged as matters in dispute. They ought to be released to the applicant. Document 420 is a further copy of the six pages last referred to but with annotations. The document should be released save for the annotations. The draft attachment in Document 441 purports to be a draft of a letter to the Minister for Natural Resources and Environment from the applicant's solicitors and is not exempt save for the annotations thereon.

SECTION 50(4)

11. In asking the Tribunal to override the exempt status of the documents in dispute pursuant to the power conferred upon it by s.50(4) of the Act, the applicant identified relevant public interest as being firstly, that in the alleged inadequacy of the investigation process pursued by the respondent and secondly, that in such process being allegedly flawed by fraud and corruption.

12. It has been consistently held by this Tribunal and by the former Victorian Administrative Appeals Tribunal that it requires a public interest of a high order to require the release of documents found to be exempt from disclosure on the grounds of legal professional privilege. This has been no doubt in recognition of the high public interest there is in the maintenance of legal professional privilege. Upon weighing the public interest in release against that in preserving legal professional privilege, for the Tribunal to invoke the power conferred upon it by s.50(4), it must reach the conclusion that release of the information is required by the public interest. In Secretary to Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, the Court of Appeal held that "requires" means "demands" or "necessitates" (at pp. 341 and 342).

13. As to what is meant by "the public interest", the Full Court of the Supreme Court said in DPP v Smith [1991] VicRp 6; [1991] VR 63 at 75 :

"The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals .... There are .... several and different features and facets of interest which form the public interest. On the one hand, in the daily affairs of the community events occur which attract public attention. Such events of interest to the public may or may not be ones which are for the benefit of the public; it follows that such form of interest per se is not a facet of the public interest".

14. This application for review is but one further step in an ongoing dispute between the applicant and particular officers of the respondent. From what has been put to the Tribunal, it appears to be an intensely personal dispute. Whilst there is an element of public interest in knowing that the officers of a public authority conduct themselves in the pursuit of their duties in a proper and just manner, the circumstances of this case do not give rise to an issue of public interest of such magnitude that it requires the overriding of the public interest in preserving legal professional privilege.

15. In this case, an examination of the documents in dispute does not disclose matter which demands or necessitates disclosure. Indeed, the contents do not appear to have the potential to further the concerns of the applicant to any significant degree. If they evidenced the kind of circumstances alleged by him to have existed viz those confirming or reflecting fraud, corruption or misinformation, it may have been appropriate to release them if it could have been shown that to do so was required in the public interest and not merely in the particular interest of the applicant but that is not the case.

16. Had the applicant been legally represented and had his legal representative sought access to the documents in dispute pursuant to s.56(3) of the Act, upon furnishing the usual undertakings, I would have been inclined to order that access be given to counsel so that counsel would then have been in a position to reassure the applicant as to the likelihood of the contents being of any assistance to him.

17. Some time after the conclusion of the hearing, the applicant sought to re-open his case on the basis of materials apparently received from the Victoria Police. To hear his submissions and those of the respondent in regard to his request, a Directions Hearing by telephone was conducted. However, the applicant was unable to identify anything in the materials he had received from the police which had the likelihood of impacting upon the character of the documents in dispute, their status under the Act or which appeared to militate in favour of resort to s.50(4). The applicant's submission that he be permitted to reopen his case appeared to be based upon mere speculation. In the circumstances, it was determined to refuse leave to him to do so and to proceed to determine the application on the basis of the case presented.

18. In the result, I vary the decision of the respondent in the following particulars :

(a) the six pages from the third page to the eighth page (both inclusive) of Document 419 are released to the applicant;

(b) the six pages identical to the last save for annotations in Document 420 are released to the applicant;

(c) the draft document forming part of Document 441 purporting to be a draft of a letter is released to the applicant except for the annotations thereon.

In all other respects, the decision of the respondent is affirmed. I reserve the issue of costs.