Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 1549

1. The decision of the Tribunal, with respect to the sample documents discussed in the reasons attached to this order, is that 28 days from this day access is granted to:

1. Document 1, with the name, position and contact details of the officer of Ombudsman Victoria redacted; 2. Document 24; and

1. Document 29, with the name, position and contact details of the officer of Ombudsman Victoria redacted
2. In all other respects the Tribunal affirms the Respondent's decision with respect to the sample documents.

1. This proceeding has a chequered history, which I partially set out in Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 435.
2. On 12 July 2012, I heard the substance of the proceeding and reserved my decision. Mr Smeaton represented himself. WorkCover was legally represented.
3. My current task is to consider exemptions under the Freedom of Information Act 1982 (the FOI Act), which WorkCover claims concerning the "live e-mails" of six employees, not including archived material. WorkCover has provided Mr Smeaton with approximately 800 pages of e-mails with some 'personal affairs exemptions' and advised it considers 78 documents as fully exempt. One of those exempt 'documents' is the approximately 700 e-mails where exemption is claimed for the name and contact details of non-executive WorkCover employees. WorkCover released the substance of those e-mails to Mr Smeaton.
4. WorkCover provided a sample of 14 documents, which are the subject of these reasons. Mr Smeaton is concerned that the sample is not representative. I advised him I would inspect the other documents and consider whether the sample appears representative. I have done so and regard the sample as representative.
5. I now consider each of the sample documents and the exemption claimed.

1. The object of the FOI Act is to give the community a right of access to documents in the possession of government limited only by '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 (s 3(1)(b)). Section 13 provides a 'right of access to documents'. That right is subject to exemptions, some of which are claimed by WorkCover and discussed below.

1. WorkCover claims that various of the 78 documents contain material, which is exempt under section 30(1), which concerns internal working documents.

(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

(3) This section does not apply to a document by reason only of purely factual material contained in the document.

(6) Subsection (1) shall cease to apply to a document brought into existence after the day of commencement of this section when a period of ten years has elapsed since the last day of the year in which the document came into existence.

1. Therefore, document is exempt under section 30(1) if:
   1. Disclosure would disclose matter in the nature of:
      1. opinion, advice or recommendation prepared by an officer or Minister; or
      2. consultation or deliberation that has taken place between officers, ministers, or an officer and the Minister;

in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of government; and

1. Disclosure would be contrary to the public interest.

1. Document 34 was attached to an e-mail of 7 April 2006, which was released to Mr Smeaton minus the name of the author. The attachment has not been released. It refers to recommendations made by KPMG in its report about WorkSafe handling of claims made by Mrs Smeaton. The KPMG Report was previously released to the Smeatons. Document 34 is a commentary on WorkCover's progress in implementing KPMG's recommendations. I understand all recommendations were implemented; 2. Document 40 is an e-mail (24 November 2005) attaching draft minutes of WorkSafe's Audit and Risk Management Committee meeting in 2005. The draft minutes in part discuss implementation of the KPMG recommendations; and

1. Document 44 is two emails. The earlier email (16 December 2005 5:45pm) is from senior officer at WorkCover to an officer of Ombudsman Victoria. The email is about 'nuts and bolts' issues relating to novel, relatively minor remuneration issues concerning persons related the Ombudsman's investigation of the Smeaton's complaints. In the later email (16 December 2005 5:51pm), that senior officer forwards the earlier email to another senior person at WorkCover with some short informal (in terms of the email's style) comments on the subject matter.
2. In my opinion, release of each of the documents would disclose matter in the nature of opinion, advice or recommendation prepared by an officer or consultation or deliberation that has taken place between officers which were in the course of, or for the purpose of, deliberative (or "thinking", see Brog v Department of Premier and Cabinet (1989) 3 VAR 201) processes of WorkCover and/or Government.
3. Release of Documents 34 and 40 would disclose a mix of the required opinion, advice, recommendation, consultation and deliberation.
4. Release of Document 44 would disclose WorkCover's thinking concerning the remuneration issue. In my view, that is sufficient to constitute deliberation of WorkCover. I adopt the view of Higgins J (sitting as a VCAT vice president) in Hoskin v Department of Education and Training [2003] VCAT 946 (16 May 2003),

In respect of the question of documents falling within the ambit of s.30(1) a number of decided cases were relied upon. For example, Brog and the Department of Premier and Cabinet, a decision of Deputy President Galvin on 3 July 1989; in turn that case cited with approval re Waterford and Department of Treasury (No. 2) [1984] AATA 67; (1984) 5 ALD 588. In the latter case an argument was put that the "deliberative process" was confined to "policy matters". However, that decision is authority for the proposition that a deliberative process should be given its literal meaning as follows:-

"wide enough to include any of the processes of deliberation or consideration involved in the function of an agency ... in short ...its thinking process - the processes of reflection, for example upon the wisdom and experience of a proposal a particular decision or a course of action."

It must of course be observed that such an interpretation has the obvious result of exempting from disclosure a wide range of documents. For example it would cover any decision made by an agency as to what it would do to deal with an individual member whatever the subject matter. See for example Re Maloney and Department of Human Services a decision of Judge Davey dated 19 April 2001 where it was held that the drafts of documents prepared in the process of enquiring into whether there should be disciplinary proceedings in respect of an employee of an agency fell within the relevant section.

For my own view I have doubts as to whether such a wide interpretation was intended. Deliberative processes are, in my view, more akin to broad policy matters.

However, the decisions I was referred to (for example, Waterford) have been in existence since 1984 and if it were Parliament's intention to confine the definition of internal working documents in the manner suggested, there has been ample opportunity for such a change to be made by the legislature.

1. The next issue is whether disclosure of each document would be contrary to the public interest.
2. I refer below to the factors identified by the Administrative Appeals Tribunal of Victoria in Hulls v Victorian Casino and Gaming Authority (1998) 12 VAR 483 as a guide. They are:

1. the right of every person to obtain access to documents as provided by s 13 of the FOI Act; 2. the degree of sensitivity of the issues involved in the consideration;

1. the stage of the policy development process at which the communication was made;

1. whether the disclosure would be likely to inhibit frankness and candour in the making of communications; 2. whether disclosure would lead to confusion or unnecessary debate having regard to possibilities discussed; 3. disclosure of documents which give merely a part explanation rather than complete explanation for the taking of a particular; 4. the likelihood that disclosure of the documents would inhibit the independence of officers or the making of proper and detailed research and submissions by them; 5. the likelihood that disclosure would create mischief in one way or another such as a risk of mischievous interpretation; and 6. the significance of the document e.g. whether it is or is not merely a draft document.

1. Document 34 is attached to an email dated 7 April 2006, which has been released to Mr Smeaton. The email relevantly says,

Attached is the KPMG Smeaton report updated with the latest management comments.

Can each of you please review, provide your update comments, and reply to me with your sign off NO LATER THAN 12 NOON ON MONDAY 10.04.06. This must go back to KPMG to allow them to prepare the report for the next ARMC meeting next Thursday.

In signing off on the comments, please bear in mind that this report, and the commitments to which you will be accountable, are likely to be widely circulated and appear in Parliament, be reviewed by the ombudsman, etc - as Len has said, you are signing in your own blood on this, so please make sure that it reflects your position and comments, and actions and commitments have been completed.

1. Understandably, Mr Smeaton concludes after reading this, in the context of having been provided with a copy of the first report by KPMG, that there is to be a second report by KPMG. However, WorkCover has given evidence and Mr Hurley is instructed that there was never a second KPMG report. That issue is the focus of my decision in Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 1551.
2. In fact, the attachment collects KPMG recommendations (which have been released) with commentary in a multi-page table about implementation by various officers. It is self evidently a document of its moment describing implementation at that time which no doubt soon became outdated. Understanding the attachment is not helped by the hyperbole in the e-mail about, "signing in your own blood".
3. In my view release is contrary to the public interest because:

1. The communication was made in the middle of development of policy and implementation following the KPMG report; 2. Disclosure would lead to confusion and unnecessary debate concerning the possibilities discussed, given that the KPMG recommendations were implemented;

1. Disclosure would give merely a part explanation rather than a complete explanation concerning implementation; and

1. The document is relatively insignificant given its currency was no doubt soon overtaken by the progress of implementation.
2. In reaching my view, I place no weight on the possibility that disclosure would inhibit frankness and candour of officers in the future creating such progress reports. For one thing, the nature of the comments canvass the usual issues encountered in implementing recommendations. There would be nothing in the comments which if released would be likely to deter an officer from providing similar future commentary.
3. I do not regard it as practicable, under section 25 of the FOI Act, to grant access to a copy of the document with such deletions as to make the copy not an exempt document. The redactions would leave the copy meaningless.

1. In my view, Document 40 should not be released. Release of the minutes would be contrary to the public interest. I have previously written on the importance of protecting the confidentiality of the work of confidential audit committees, including of the Audit Risk Management Committee of WorkCover. See Smeaton v Victorian WorkCover Authority (General) [2011] VCAT 1234 (4 July 2011) at [7] and Tregale v Department of Human Services (General) [2012] VCAT 722 (1 June 2012) at [35].
2. Given the risk of redaction leading to inadvertent disclosure of confidential information, I do not regard it as practicable, under section 25 of the FOI Act, to grant access to a copy of the document with such deletions as to make the copy not an exempt document.

1. Concerning Document 44, in my view, disclosure of the earlier e-mail would be contrary to the public interest because Parliament intends that the Ombudsman conduct investigations in confidence, being able to choose what information is released. It expresses that intention through:

1. Section 17(2) of the Ombudsman Act 1973, which requires that all investigation shall be conducted in private; 2. Section 20(1) which says a person (other than the complainant) who obtains or receives information in the course or as a result of the exercise of the functions of the Ombudsman under this Act unless exceptions (see below) apply; and

1. Section 29A which broadly exempts classes of documents in the possession of the Ombudsman (two classes being documents disclosing information that relates to a complaint or to an investigation) from the operation of the FOI Act (see Zeqaj v Ombudsman Victoria (General) [2010] VCAT 1204 (25 June 2010).
2. The later e-mail forwards the earlier e-mail together with an informal off-the-cuff comment giving a snap update on the relatively insignificant issue. The disclosure of such informal communications by e-mail would inhibit frankness and candour in sending such communications. As Mr Hurley for WorkCover submitted, such disclosure would "gum up the works" of the public service. Further, I agree with Mr Hurley's submission that there is nothing sinister or momentous in the e-mail, to cause me to take the opposite view.
3. Given the confidentiality issue, I do not regard it as practicable to, under section 25 of the FOI Act, grant access to a copy of the document with such deletions as to make the copy not an exempt document.

(1) Subject to this section, a document is an exempt document if its disclosure under this Act would, or would be reasonably likely to -

(a) prejudice the investigation of a breach or possible breach of the law or prejudice the enforcement or proper administration of the law in a particular instance;

(c) disclose, or enable a person to ascertain, the identity of a confidential source of information in relation to the enforcement or administration of the law;

(2) This section does not apply to any document that is -

(a) a document revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law;

(b) a document revealing the use of illegal methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law;

(c) a document containing any general outline of the structure of any programme adopted by an agency for investigating breaches of, or enforcing or administering, the law;

(d) a report on the degree of success achieved in any programme adopted by an agency for investigating breaches of, or enforcing or administering, the law;

(e) a report prepared in the course of routine law enforcement inspections or investigations by an agency which has the function of enforcing and regulating compliance with a particular law other than the criminal law;

(f) a report on a law enforcement investigation, where the substance of the report has been disclosed to the person who, or the body which, was the subject of the investigation -

if it is in the public interest that access to the document should be granted under this Act.

Document 1 - not exempt under section 31, except names redacted (33(1))

1. WorkCover describes Document 1 (a chain of two emails) as an aspect of the investigation by the Ombudsman of Mr Smeaton's complaint to the Ombudsman that the Accident Compensation Act 1985 was not being properly administered, with respect to his wife.
2. An officer of the Ombudsman's office emailed a senior person at WorkCover to obtain a document. The Senior WorkCover officer replied:

1. Saying WorkCover was about to provide the document to the Ombudsman; 2. Mentioning a document WorkCover was providing to Mr Smeaton (at his request); and

1. Mentioning the role of another person (not an officer of either agency) who had been involved in earlier events relevant to the Smeaton's complaints.
2. WorkCover claims exemption under section 31(1)(a) in that its disclosure under the FOI Act would, or would be reasonably likely to prejudice the investigation of a breach or possible breach of the law or prejudice the enforcement or proper administration of the law in a particular instance.
3. It submits that the operation of sections 13A, 13B, 14 and section 24 of the Ombudsman Act 1973, give the Ombudsman complete discretion as to what information relevant to the investigation he or she will disclose to a complainant, being "any information that the Ombudsman thinks proper".
4. It submits disclosure of information other than what the Ombudsman has already disclosed in terms of section 31(1)(a) is likely to:
   1. Prejudice investigation of a breach or possible breach of the law, being the Ombudsman's investigation into the complaint concerning the administration of the Accident Compensation Act; or
   2. Prejudice enforcement or proper administration of law in a particular instance, the particular instance, being the Smeaton's complaints that were investigated by the Ombudsman.
5. I am not persuaded release of the e-mail is reasonably likely to cause the required prejudice.
6. In Department of Agriculture and Rural Affairs v Binnie [1989] VicRp 73; (1989) VR 836 at 842 Marks J sitting in the Full Court of the Supreme Court of Victoria stated (with agreement of Young CJ and Teague J) as follows :

The expression 'reasonably likely' is substantially idiomatic, its meaning not necessarily unlocked by close dissection. In its ordinary use, it speaks of a chance of an event occurring or not occurring which is real - not fanciful or remote. It does not refer to a chance which is more likely than not to occur, that is, one which is 'odds on', or where between nil and certainty it should be placed. A chance which in common parlance is described as 'reasonable' is one that is 'fair', 'sufficient' or 'worth noting'. It is not inapt to attribute such meaning to the expression in s 31(1) of the Act.

1. In Sobh v Police Force of Victoria [1994] VicRp 2; [1994] 1 VR 41 at 55, Nathan J who was sitting as a Member of the Appeal Division of the Supreme Court of Victoria stated,

Prejudice is not a term of legal art. It means to impede or derogate from. Its content is governed by the matters which may be impeded or derogated from, which in this case is the administration of the law.

Prejudice investigation of a breach or possible breach of the law?

1. I do not accept submissions that the issues discussed in the e-mails appear to in substance reveal how the Ombudsman was investigating the Smeaton's complaint, apart from revealing that in the course of an investigation the Ombudsman seeks documents from the agency in question.
2. Therefore, I do not accept that releasing Document 1 is reasonably likely to prejudice the investigation of a breach or possible breach of the law, relating to the Smeatons (which I understand was completed in late 2006) or any other complaint the Ombudsman investigates.
3. It follows that I have not accepted WorkCover submission that in this case the operation of the sections of the Ombudsman Act I discuss above is sufficient in this case to justify an exemption under section 31(a). Those sections operate to enable the Ombudsman to operate without having to disclose information unless he chooses to do so. In my view, they do not extend the reach of section 31(a).
4. I add that it has been submitted to me in various cases between the parties, that the Ombudsman is not now investigating any complaint concerning the Smeatons and WorkCover. I understand he does not intend to.

Prejudice enforcement or proper administration of law in a particular instance?

1. Similarly, I do not accept that release is reasonably likely to prejudice the proper administration of the law in a particular instance (the past or any future investigation concerning the Smeatons), given the subject matter of the e-mails appears inconsequential.
2. However, in my view the name of the officer at the Ombudsman's Office should be redacted under section 33(1) (see below). This is in accord with section 17(2) of the Ombudsman Act, which says every investigation under that Act shall be conducted in private. For the same reason, the names of the two people who are not officers of either WorkCover or the Ombudsman should be redacted.

Document 46 - not exempt under section 31, but exempt under section 30(1)

1. Document 46 (a chain of emails between a senior officer of WorkCover to an officer at the Ombudsman's Office) concerning the issue discussed in Document 44. Given the shared subject matter, I regard Document 46 as exempt under section 30(1) for my reasons discussed above.
2. For the purposes of the sample, I consider WorkCover's claimed exemption under section 31(1)(a) in that its disclosure under the FOI Act would, or would be reasonably likely to prejudice the investigation of a breach or possible breach of the law or prejudice the enforcement or proper administration of the law in a particular instance.
3. I do not agree the section 31(1)(a) or 31(1)(c) exemptions apply, as I discuss above.
4. As above, I redact the names of all people apart from the author of the email dated 16 December 2005 11:50, including where those names appear in e-mail addresses and all telephone numbers (under section 33(1)).
5. WorkCover also submits Document 46 is exempt under section 31(1)(c) because they contain information received from a "confidential source". WorkCover submits the confidential source is the Ombudsman and the source of the confidentiality springs from section 17(2), 20(1) and 29A of the Ombudsman Act 1973 (described above).
6. In my view, the exemption does not apply. In XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010), Bell J, sitting as VCAT's President said,

The purpose of the exemption in s 31(1)(c) is to preserve the anonymity of people who are confidential sources of information in relation to the enforcement or administration of the law. One aspect of this general purpose is the protection of the anonymity of persons who provide confidential information to those responsible for investigating alleged police corruption and misconduct.

This exemption protects the identity of confidential sources of information, not the identity of reluctant witnesses in legal proceedings, or the identity of such witnesses pending hearing. Whether a person was a confidential source of information about the enforcement or administration of the law is a question of fact to be determined by reference to all of the circumstances. The obligation to maintain confidentiality can be express or implied, and may be inferred from the nature and contents of the document, as revealed by reading it.

1. There is no confidential source as contemplated by section 31(1)(c) whose identity would be disclosed by the release of Document 46

1. Section 32 relevantly says,

(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.

1. Pizer (at para 2345), after referring to the High Court case of Esso Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49 and Daniels Corp v ACCC [2002] HCA 49; (2002) 213 CLR 543 says,

... a document will be privileged [and thus exempt under s 32(1) of the FOI Act] if :

1. it contains a confidential communication between the client (or the client's agent) and the client's professional legal advisers that was made for the dominant purpose of obtaining or providing legal advice or is referrable to pending or completed litigation;
2. it contains a confidential communication between the client's professional legal advisers and third parties that was made for the dominant purpose of pending or contemplated litigation; or

1. it contains confidential communication between the client (or the client's agent) and third parties that was made for the purpose of obtaining information to be submitted to the client's professional legal advisers for the dominant purpose of obtaining advice on pending or completed litigation.

1. WorkCover claims exemption under section 33. Documents 45 (three e-mails placing a matter before a solicitor to obtain legal advice) 51 (an email recording a confirmation by a WorkCover in-house lawyer that work is undertaken in giving advice on the matter) and 70 (an e-mail recording a communication from an in-house lawyer at Allianz and claims agent for WorkCover).
2. In my view, each of the documents is exempt under section 32 as each of them was created in the course of WorkCover seeking legal advice.
3. As in Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 1908, I note section 32 exemption extends to in-house lawyers. I have no reason to doubt those lawyers possess the requisite measure of independence for legal professional privilege to attach (see Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 62, 70, 80).
4. I do not regard it as practicable, under section 25 of the FOI Act, to grant access to a copy of the document with such deletions as to make the copy not an exempt document.

(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).

(2) Subject to subsection (4), the provisions of subsection (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.

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. WorkCover opposes the release of the names of non-executive WorkCover staff. The sample documents are Documents 12 (email regarding ARMC minutes), 52 (email regarding consent from Mrs Smeaton) and 73A (email chain regarding TV issue).
2. Mr Smeaton submits it is reasonable that the names be released as it enables him and his wife to piece together the pieces of the jigsaw (as they see it) as they try to discover the detail of how Mrs Smeaton's claim was handled by WorkCover and its agents. He also notes that over the course of the many FOI applications and the bulk of release documents, he knows or can work out the names of many of the people involved. Further, the time has long since passed when anyone at WorkCover would have reason to fear that he would unreasonably contact them. He does not seek mobile telephone numbers, private telephone numbers or private e-mail addresses.
3. In the decision of the Court of Appeal in Victoria Police v Marke [2008] VSCA 218 both Weinberg JA and Pagone AJA approached the question as to whether release would entail unreasonable disclosure as requiring a balancing exercise. See [96] - [98] per Pagone AJA where his honour said it was necessary in this context to consider:

Any matter that is relevant to the statutory condition, which bears logically upon a consideration of it, and which may have a probative effect upon the decision-maker.

1. In my view, the names of non-executive staff should not be released. I repeat the substance of what I said in Smeaton v Victorian WorkCover Authority (General) [2010] VCAT 1908 (30 November 2010). In my view, disclosure of the names would involve the unreasonable disclosure of information relating to the personal affairs of non-executive staff. It would be unreasonable because the intrusion on the personal affairs of non-executive staff. They should not to consider the possibility that Mr Smeaton may contact them to ask about events which happened years ago.
2. To that, I add that in my reasons in proceedings Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 1236 and Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 1550, I discuss aspects Mr Smeaton submissions about the public interest in documents he seeks being released. I have taken those issues into account in reaching my decision about the release of names and contact details in this proceeding. In each of those proceedings, I was not persuaded that the public interest issue (in its various guises under the FOI Act) should be invoked to release the documents sought. I take the same view here.
3. Therefore, I affirm WorkCover's decision to redact a private e-mail address (Document 12), the name of non-executive staff members and telephone numbers (Document 52) and the names and contact details appearing in document 73A, as WorkCover has redacted them in the copy provided to Mr Smeaton.
4. I assume WorkCover will rely on this decision to support its previous redaction of the names and contact details in the approximately 700 e-mails at Document 73, to the extent that identifying information of non-executive staff are redacted.

Information obtained in confidence - section 35(1)(b)

1. Section 35(1)(b) concerns material obtained in confidence.

35 Documents containing material obtained in confidence

(1) A document is an exempt document if its disclosure under this Act would divulge any information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister, and -

(b) the disclosure of the information under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.

1. A document is exempt on this basis if two limbs are satisfied:
   1. disclosure would divulge any information or matter communicated in confidence by or on behalf of a person or a government to an agency; and
   2. The disclosure of the information under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.
2. WorkCover claims exemption for:
   1. Documents 24 and 25, describing both as e-mails containing an exchange with a confidential source. The nature of the content establishes the source of information and views on a confidential basis. It submits that the confidentiality aspect can be seen on the face of the documents. Further, it is submitted the disclosure of these documents would inhibit WorkCover obtaining information from individuals in similar positions in order that WorkCover may perform its functions; and
   2. Document 29, describing it as e-mails between WorkCover and the Ombudsman.

1. A statement by the author of an e-mail to WorkCover in document 24 clearly indicates the author intended to provide the e-mails in confidence. Therefore, I find the e-mails were communicated in confidence.
2. The author of the e-mail, following a notification under section 53A of the FOI Act, gave VCAT notice that he regards the communications as confidential and sensitive and does not want his identity and the contents of his correspondence released.
3. In order to maintain the status of the e-mail as one that has not been released under the FOI Act, given that my decision is subject to appeal on question of law to the Supreme Court of Victoria, these reasons must in no way identify the author and so must be opaque.
4. I do not find disclosure of Document 24 would be reasonably likely to impair the ability of WorkCover to obtain similar information in the future.
5. I agree with the approach of DP Macnamara in Birnbauer v Inner and Eastern Health Care Network (1999) 16 VAR 9, as described by Pizer in Victorian Administrative Law at [FOI.35.180],

... where the VCAT observed that the requirements of s 35(1)(b) will not be satisfied if the evidence goes no further than "the people involved would be somewhat less candid than they otherwise might be" if the document were disclosed.

1. Also, in Corry v Victoria Police - FOI Privacy Division (General) [2010] VCAT 282 (15 March 2010), Macnamara DP referred to leading authorities concerning section 35(1), saying at para 52,

In Ryder v Booth[1] access was sought to medical reports furnished to the State Superannuation Board. Based on the Court's view that it was insufficient to make out the exemption that examining doctors would report less candidly the exemption was held not to be made out. In Medical Practitioners Board of Victoria v Sifredi [2000] VSC 33; (2000) 16 VAR 347 Hedigan J held on appeal that this Tribunal was entitled to conclude that a response given by a practitioner to the Board in the course of its enquiry into a complaint against the practitioner was not exempt under Section 35(1)(b) because the evidence did not establish that a practitioner in these circumstances would not respond at all, merely that he or she might respond with greater circumspection or less candour.

1. In my opinion, if one considers the nature of the role of the author, the reason for my view is self-evident. His views on the issue do not enable me to take a contrary view. To say more could effectively be partial release of the information in the email.

1. The author of the e-mail is an officer with the Ombudsman's office. That person clearly intended to provide the e-mail in confidence, given that the Ombudsman conducts investigations in confidence under the Ombudsman's Act as discussed above. Therefore, I find the e-mail was communicated in confidence.
2. However, the e-mail concerns the Ombudsman's office attempting to obtain a document from WorkCover in the course of the Smeaton investigation, with WorkCover advising the final version of document is not yet created. There is no sense that WorkCover is attempting to avoid providing the document. Rather it is not finished.
3. I do not find disclosure of Document 13 would be reasonably likely to impair the ability of WorkCover to obtain similar information in the future. The substance of the e-mails has no bearing on the substance of the Smeaton investigation by the Ombudsman. It is a mundane communication. If Document 13 is released, that type of communication will continue to occur between the Ombudsman's office and WorkCover should WorkCover be the subject of future investigations (I assume not related to the Smeatons, as the Ombudsman does not intend to revisit their issues).
4. Again (see discussion re Document 1), I redact the name, position and contact details of the officer of Ombudsman Victoria, under section 33(1).

1. Turning to the public interest override, the High Court of Australia has ruled decision-makers must be satisfied to a high threshold that the public interest necessitates release of the document. In Osland v Secretary to the Department of Justice [2010] HCA 24, French CJ, Gummow and Bell JJ. said at paragraph 14,

It must be accepted that the word "requires" which appears in section 50(4) directs the decision-maker to identify a high-threshold public interest before the power can be exercised. It is not enough that access to the documents could be justified in the public interest.

1. The Court said the high threshold existed (at para 48) where,

The nature of the differences between the advices, throwing up opinions about the fairness and authority of the criminal justice system, the circumstances of Mrs Osland 's situation, and asserted inadequacies in the law in relation to chronic domestic violence, was such as to be capable of supporting the formation of an opinion that the public interest required the disclosure of the documents. It was, at the very least, arguable, in the circumstances of the case, that the high-threshold public interest standard was met and that the public interest required disclosure of the contending, essentially normative propositions which the Attorney-General had before him when he recommended that Mrs Osland 's petition be denied.

1. On the evidence before me, I do not accept the public interest requires the release of the sample documents.

[1] [1985] VicRp 86; [1985] VR 869