1. The decision under review is varied in that, with WorkSafe's consent, the pages of the documents the subject of this proceeding which disclose the following names as denoted by numbers 2, 3, 4, 5, 7 , 12, 25 and 34 in the "WorkSafe's list of redacted names", provided in the course of the hearing of this proceeding, are to be provided by the WorkSafe to the Smeatons.
2. The Smeaton's application that the Tribunal order WorkSafe to conduct further searches for documents within the scope of their FOI request which gave rise to this proceeding is refused.

1. This case arises in the context of Mrs Sue Smeaton being injured at work in 1992 and 2003 and WorkSafe's conduct concerning her and her husband, Mr Anthony Smeaton, and the Smeaton's crusade since then.
2. In Victorian Civil and Administrative Tribunal v Smeaton (Review and Regulation) (Corrected) [2017] VCAT 659 (the Litigation Restraint Decision) from [11], Harbison J provided a summary of the background to the Smeatons' FOI requests. While I do not here quote the history, as she described it from paragraph 11, Harbison J turned her attention to the Smeatons' 'crusade', from [34]:

Mr Smeaton has made various approaches through both political and administrative processes in respect of his complaints. As I have outlined, there have been occasions on which he has been able to show that the responses of the Victorian Work Cover Authority to his requests for information have been deficient. So much so, that by the year 2005 the VWA was under public and political pressure to justify various aspects of the way in which the Smeatons had been treated.

In response, the Victorian WorkCover Authority commissioned KPMG to undertake a review of Mr Smeaton's allegations. The review was commissioned in June 2005 and the report received shortly afterwards.

The report focused on the Smeatons' allegations that the Authority had fraudulently misrepresented the medical opinions of specialists engaged by the Authority, that the Authority had engaged in abuse of process in its dealings with Mr Smeaton and Mrs Smeaton, and that the Authority had attempted to improperly influence treating practitioners. It also made recommendations as to how core policies regarding the use of family and friends as paid carers should be formulated and promoted.

That report found no material to support the allegations made by Mr Smeaton.

Mr Smeaton was not satisfied with that review and took his complaints to the Ombudsman. The Ombudsman produced a report dated 30 November 2006.

Although the Ombudsman trenchantly criticised some aspects of the VWA claims handling procedures, Mr Smeaton was not happy with the conclusions in that report so far as they affected himself and his wife. He took the view that both the KPMG report and the Ombudsman's report were deficient because those bodies had not been provided with all the relevant documents.

His criticisms were of sufficient significance that he was able to persuade some opposition members of Parliament to take up his cause. The way in which the VWA treated (or mistreated) injured workers was squarely placed in the political arena. Indeed his complaints against the Authority were raised in Parliament by the Shadow Minister for WorkCover.

They were taken sufficiently seriously by the government of the day that the relevant Minister met with the Smeatons in 2013 to discuss how the matter could be resolved. As a result of that meeting, a comprehensive investigation was ultimately commissioned by government. The task was given to PPB Advisory, which produced a report to government on 13 October 2015.

PPB investigated 88 allegations made by Mr Smeaton against the VWA and its claims agents Allianz and CGU. Strikingly, of those 88 allegations PPB found only three substantiated.

The first found substantiated was that Dr Strauss did not tell Allianz that he thought Anthony Smeaton to be unsuitable to be a night-time carer for his wife.

The second was that, in respect of that same issue, Allianz contravened the VWA Claims Manual by using a verbal report ( falsely or mistakenly attributing that opinion to Dr Strauss) when it was not "urgently required".

Lastly, PPB also found that the allegation that some senior employee names were redacted from documents provided under freedom of information legislation was substantiated.

Mr Smeaton was not happy with the terms of reference or breadth of the PPR report, or its conclusions. He thought PPB had been led into error because it had not been provided with all relevant documents by VWA, or by its claims agent, Allianz.

The provision of each of those three reports has given him further grounds for making applications in order to establish what documents were before those bodies which led them to draw conclusions which they drew. He takes the view that the VWA has deliberately withheld damaging material from each of those reviews.

The history which I have set out above was confirmed both by the witness statement of Jon Kenfield, introduced into evidence without objection, and by the sworn evidence of Don Coulson.

Kenfield is a chartered accountant and was engaged to undertake a mediation between the Smeatons and the Victorian WorkCover Authority in 2004.

His understanding was that the matter was successfully mediated at that time but then the Authority refused to honour the mediation agreement. He indicated that he continued to support the Smeatons after that time until about 2005, after which he was no longer involved.

In summary, the facts underlying the litigation issued in this Tribunal by Mr and Mrs Smeaton are fairly simple. Mrs Smeaton suffered an injury. A large component of her injury was psychological. Mr Smeaton wished to be paid by the Authority as her night-time carer, in order to alleviate her phobia about external carers. The Authority refused. In refusing, the Authority wrongly relied upon a medical opinion of Dr Strauss. The Smeatons were suspicious thereafter of the Authority and the other organisations which they dealt with, particularly when they uncovered mistakes made by these authorities in the processing of the original claim and their subsequent FOI applications.

1. The Smeaton's experience has received media coverage over the years. In August 2005, Virginia Trioli on ABC Radio 774 summed up her view:

On Thursday last week if you were listening to the program you would have heard me speaking to Tony Smeaton. He was a man who, with his wife Sue, has been engaged in a long-running and genuinely traumatizing dispute with the Workcover authority. And the battle was over Tony's request to be paid as Sue's carer so that he could give her the round-the-clock care that she needed after a work accident left her with severe physical and psychological injuries.

Now, the Smeatons were originally told that family carers were not permitted under Workcover legislation. That's ultimately been shown not to be the case, as Tony is now being paid through Workcover to care for his wife. But many disturbing questions remained about the case, and about Workcover's treatment of a family in crisis. Last week we heard also from John Kenfield, an investigator hired by Workcover to analyse the Smeaton's claim. Now, Mr Kenfield's ultimate report to the authority contained some terrible allegations, some claims, namely, that medical evidence used to reject the Smeaton's claim had been fabricated. And John Kenfield as the independent assessor was very serious in making these allegations.

Workcover has since commissioned an audit of this case, which is going to be conducted by KPMG, and we're yet to have the results of that investigation.[1]

1. In 2018, the Smeatons continue to view the outcomes of the 2005 KPMG Review and of PPB Advisory Report as unacceptable, at least in part the result of inadequate investigations.
2. They intend to, based on documents they now hold, and other documents they believe they may discover, persuade the Minister of the Victorian Government responsible for WorkSafe to hold another inquiry.
3. Returning to the investigation by PPB Advisory, in its October 2015 report, PPB Advisory referred to the 2005 review by KPMG and mentioned KPMG work papers and 46 files held by KPMG.

1. In June 2016, the Smeatons requested from WorkSafe access to:

The KPMG work papers and the 46 files held by KPMG be it less, or more than identified by PPB advisory [in its independent investigation report (October 2015) to the Victorian WorkCover authority at page 21],

"held within KPMG" being "documents provided to and created by KPMG in relation to the Smeaton review, and information passed between KPMG internally, and externally between themselves and work safe and others, regarding this (Smeaton review) ..." Over the time frame starting "around March 2005 ... till sometime in 2006".[2]

1. In September 2016, VCAT received an application from the Smeatons, made on the basis that their June 2016 request under the FOI Act was deemed refused[3] as WorkSafe had failed to decide the request within 45 days.
2. This case was stayed (suspended) while VCAT dealt with the VCAT case that led to the Litigation Restraint Decision.
3. The Litigation Restraint Decision,[4] resulted in the Smeatons, while being subject to an extended litigation restraint order, being permitted to continue this case and other some cases then already before VCAT, mostly with WorkSafe as the respondent.
4. With this case continuing, in June 2017, WorkSafe brought an application under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 that this proceeding be dismissed on the basis that the documents requested were in the possession of KPMG and as the property of KPMG not subject to a request under the FOI Act. WorkSafe cited VCAT's decision in Smeaton v Victorian WorkCover Authority (General) [2010] VCAT 1544, where the Tribunal set aside a witness summons against a KPMG employee, apparently on the basis that the potential witness should not be required to give evidence about documents owned by KPMG.
5. WorkSafe abandoned that position when confronted with a November 2015 letter from KPMG to Mr Smeaton. KPMG advised the documents in question are the property of WorkSafe and any request for documents should be directed to WorkSafe. In September 2017, WorkSafe advised KPMG had returned 11 folders of documents to WorkSafe.
6. The obvious question was how had the work papers and 46 files mentioned by PPB Advisory transformed into 11 folders of documents?
7. By a November 2017 letter, PPB Advisory advised it was unaware of why in its Report referred to the 46 files. This was in the context that KPMG had refused to give PPB Advisory access to those files. That matter has rested at that point.
8. On 30 November 2017, WorkSafe decided the Smeatons' FOI request with reference to the 11 folders of documents from KPMG. That decision became the one of the subjects of this proceeding.
9. By late 2017, the issues before VCAT were:
   1. Review of WorkSafe's 30 November 2017 decision; and
   2. An application by Smeatons that VCAT order a search for further documents within the scope of their FOI request.
10. Personal issues related to the Smeaton's family caused the hearing to be adjourned to early June.
11. On 31 May 2018, WorkSafe made a further decision releasing further documents and redacted text.
12. By this stage, WorkSafe had released to the Smeaton's 3,456 pages, being all the documents in the 11 folders within the scope of the FOI request, with the redaction of a range of names of employees of various organisations under the FOI Act's personal affairs exemption.
13. The folders appear to have been collated as a history of the dealings between the Smeaton's and WorkSafe. It is a daunting collection of documents related to Mr Smeaton's claim against WorkSafe including:

1. A variety of WorkSafe forms, such as claim forms produced over the years; 2. A great number of medical reports;

1. Correspondence between employees of WorkSafe, Allianz (a WorkSafe agent), lawyers acting for Mr Smeaton, Mr Smeaton and medical practitioners;

1. The County Court decision finding Mrs Smeaton had suffered a serious injury in the workplace; and 2. Many other types of documents
2. At the 5 & 6 June hearing before me the issues were:
   1. Whether to release the names of people appearing in the documents, which WorkSafe had decided are exempt under s 33(1) of the FOI Act, the personal affairs exemption;[5] and
   2. Whether to order further searches for documents.

1. The hearing proceeded based on documentary evidence and submissions. At the end of the hearing, I reserved my decision. This decision is long delayed, in part by me having to take extended leave and in part by the need to clarify matters with WorkSafe as discussed below.
2. I now turn to the two issues that remain in dispute.

1. WorkSafe's decisions concerning the names of people appearing in the Documents has an unfortunate history.
2. The redactions resulting from WorkSafe's 30 November 2017 decision were said to be on the basis that:

The information we have primarily redacted is the names of individuals who do not hold senior roles within the relevant organisations or the seniority was unable to be identified on the face of the documents, and whose names have been redacted in response to previous FOI requests made by [the Smeatons]. The disclosure of such information would amount to the unreasonable invasion of privacy.

1. The Smeatons objected to the extent of the redactions. In their view the broad redactions went further than the basis described above. At the Tribunal's direction, the Smeatons provided to WorkSafe a three-page list of approximately 120 names, indicating where the Smeatons understood names appeared in the Documents. Their understanding came from the comprehensive knowledge of the related documents, including names released to them in various documents over the years.
2. Embarrassingly for WorkSafe, many errors were discovered in its 30 November 2017 decision. It is enough to record that the November decision redacted the name of Mr Greg Tweedly, who was at the relevant times, WorkSafe's CEO.
3. WorkSafe explained the errors resulted from a complete turnover in its staff dealing with FOI. To make a timely decision concerning the documents, it engaged outside solicitors to assist in deciding redactions.
4. WorkSafe submitted the 31 May decision was made based on the three pages of names provided by the Smeaton's and further analysis of whether the people named were in management or senior positions (the names are now released) or not management positions (the names remaining redacted).
5. WorkSafe provided to the Tribunal, a list of 39 names said to be now redacted. It then advised it no longer claims redactions concerning eight of the names listed. Order 1 gives effect to that concession.

1. Section 33 relevantly says:
   • (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.

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. In Victoria Police v Marke [2008] VSCA 218; [2008] 23 VR 223, the Supreme Court of Victoria Court of Appeal considered how to apply s 33(1). Pagone AJA said (at [98]):

... That requires the decision-maker to identify all of the facts and matters relevant to the question to be determined and to make an evaluative judgment based upon them. The use in the section of the word 'would' indicates that the decision-maker must have a high degree of confidence about the conclusion: it is not enough for the decision-maker to conclude that disclosure of a document might or could result in the unreasonable disclosure of the personal information in question. The need for that degree of confidence reflects the primary objective of the Act to provide public access 'as far as possible'.

1. The exercise of identifying all the facts and matters relevant to the question to be determined in making evaluative judgement is often distilled to addressing a number of factors: see Nekvapil's Victorian Administrative Law [FOI.33.100]. WorkSafe and Mr Smeaton have addressed relevant factors.
2. WorkSafe submits principles based on VCAT's decision in Morgan v Department of Human Services (General) [2008] VCAT 2420 at [58 and 63] apply here, noting that WorkSafe does not classify employees under VPS categories as discussed in Morgan:
   1. It is generally not unreasonable for decision makers WorkSafe staff in managerial/ senior positions and people in decision-making roles in agencies, public or private, whose names appear, to be identified as such within the public sphere. They have the skills and authority to act on behalf of the Department. They are of an appropriate level to be accountable for decision making of the Department.
   2. It would be unusual for other officers or employees of other agencies or organisations or to be publicly identified and they would not expect their names to be released to the world at large. Many do not have skills necessary to deal with difficult issues or difficult members of the public. They have an expectation that they would not normally have to deal with the public in a way which identifies them individually.
3. The Smeatons' primary submission is as demonstrated by their conduct over the years, in the context that they only intend to use information in the documents to make further submissions to the relevant minister and that understanding the names of non-management staff assists them in 'joining the dots' concerning decision makers and permits them to make more focused FOI requests, it is not unreasonable that all names redacted to be provided to them.
4. They support their position with long and complex submissions regarding whether what they were promised in the KPMG audit, in their view a full audit in technical terms, was not actually promised with the eventual product being a lesser form of report. In a folder titled "Docs regarding downgrading of Investigation to AUS 810 & AUS 902", they provided a substantial variety of documentary evidence. It is not necessary to respond to the detail of those submissions. This proceeding is not some form of Royal Commission into what the Minister of the day promised and what actually occurred.
5. In the alternative, the Smeaton's submit if VCAT adopts the 'managerial senior position v other people appearing in the documents' distinction, the Tribunal should carefully review the redacted text to satisfy itself that the test has been properly applied, given WorkSafe's failures in this arena to date.
6. As Butcher SM said in Coulson v Department of Premier and Cabinet [2018] VCAT 229, with the increasing prominence of privacy rights over the years, the correct and preferable approach under s 33(1) is to redact the names of staff holding non-executive positions as unreasonable.
7. I add two qualifiers.
8. First, in the public sector, there are many decision-makers who while holding non-executive positions, make and communicate decisions to citizens on a range of issues concerning those citizens. Those decision-makers routinely identify themselves to those they are making decisions about, usually in letters communicating decisions, by their name and position. Therefore, the issue of redaction of their names from documents does not arise in disputes under the FOI Act. That said, should scenarios arise where say the position of the person but not the person's name is disclosed in a decision letter, it may or may not be appropriate that such a person's name be disclosed if other documents otherwise identify the person.
9. Second, it may be appropriate to release personal affairs information of non-executive staff if there was evidence in documents of inappropriate conduct.

1. I have affirmed WorkSafe's decision concerning disclosure of the personal affairs information in dispute.
2. I have scanned every page of the 11 folders, noting each name redacted and as best I could understood the role of the person, in part being familiar with many names from the many proceedings between the parties which I have decided.
3. Embarrassingly for WorkSafe, while it submitted 31 names remain appropriately redacted from the documents as exempt under s 33(1) exemption, I counted another 38 redacted names, in addition to the 31 names, a total of 69 names redacted under s 33(1) in contest.
4. By orders of 26 October 2018, I advised WorkSafe I had found more redacted names and provided a few examples. I asked WorkSafe if it had provided me with its most recent version of the 11 folders in soft copy on a USB stick it had provided. The soft copy showed the documents with the redactions. My reasoning was if WorkSafe had not provided the most recent version, that could have explained the wide discrepancy. In the interests of impartiality, I did not advise WorkSafe of the large number of names I had found. WorkSafe will learn of that number in these reasons.
5. WorkSafe promptly replied it had provided the most recent version and attributed the errors to outsourcing the task of identifying and redacting names to a legal firm, in the context where there is no longer anyone at WorkSafe who has a good knowledge of the documents in question and the relevant history. It was able to respond to a specific question I put concerning whether or not one person had changed name, presumably by marriage, over the history of the files, such that I may by mistake assume one person was in fact two people. WorkSafe was able to advise that the two people with the same first name were different people.
6. I now apply the above principles to the 69 names I have counted as remaining redacted under s 33(1).
7. I am confident based on my knowledge of names from earlier proceedings and the context in the array of documents in the folders where names, often appearing more than once, that none of the names redacted hold executive positions. The people hold low to middle ranking positions in a variety of organisations as a great number of people dealt with issues related to the Smeatons over the years.
8. Based on the principles discussed above, I have decided each of the names is exempt from release under s 33(1)
9. I record here that concerning the documents in dispute between the parties in this proceeding, there is no indication of any form of questionable conduct on the part of any person whose name is redacted from the documents.
10. I am not persuaded by Mr Smeaton's submission that as neither Mr Smeaton nor his wife would in any way act inappropriately using information obtained in this proceeding that information should be provided to them, really by way of an exception to the general principle, to allow them to "join the dots" in pursuing their objective of a further review.
11. The general principle of protecting privacy through redaction of personal affairs information is important. Exceptions should be made only with good reason. It appears to me that the Smeaton's have a wealth of information gained from many FOI requests (including these 11 volumes) with which to pursue their objective. I do not accept that it is appropriate here to provide the personal affairs information of the person in question in that context.
12. To be clear, I do not make this decision because of concern that the Smeaton's will act inappropriately with any information received. I have no concern about the safety of others. That said, the tenacity with which Mr Smeaton has pursued this proceeding, raises concern as to the public-sector resources that may be required if the Smeatons were provided with personal affairs information, "joined the dots", and once again embarked on FOI requests.
13. This is in the context that in a variety of previous VCAT proceedings between the Smeaton's and government agencies, I have said that I am not persuaded that there is public interest which would operate in favour of various decisions concerning the Smeatons under the FOI Act. There is also the context of the limitation on the Smeatons' rights to commence further proceedings at VCAT following the Litigation Restraint Decision.
14. I affirm WorkSafe's decision to redact the name of the WorkCover staff member in question.

1. Finally, given references in Mr Smeaton's written submissions invoking public interest, for completeness I comment that nothing in the documents in dispute, nor the surrounding evidence, comes close to approaching the high threshold required before VCAT would exercise discretion to release otherwise exempt material on the basis that the public interest requires release.

1. As discussed in Smeaton v Transport Accident Commission [2014] VCAT 341 and Smeaton v Victorian WorkCover Authority No. 2 [2015] VCAT 453, since December 2012 with significant amendment to the FOI Act, VCAT only has jurisdiction concerning sufficiency of search where the application to this Tribunal is on the basis that the department or agency in question is taken to have refused the FOI request given time that elapsed since the request was made. That is the situation here. A person making a complaint to VCAT of insufficient search is required to provide substantive evidence to that effect.
2. The Smeatons submit VCAT should order a search for the following documents:

1. KPMG internal emails, file notes, memos (whether electronic or hard copy) between Sally Freeman, Mark Jones - KPMG partners, Lee Ward - Senior Manager, Karen Wiggins - Manager, Ashley Thon and Michael Noordhoom - Senior Analysts, as they undertook their responsibility and roles in the KPMG report; 2. Folio of medical reports, documents and correspondence pertaining to the Smeaton case as mentioned by Dr John Cooper, psychiatrist in his letter to Ms Freeman of KPMG dated 8 August 2005 (Doc No. 1-980):

1. Documents related to the following statements in a KPMG "minutes of meeting - Mr Smeaton allegations" from a telephone conference on 16 December 2005; 1. Attendant Care Policy written by Ms Renshaw (2.1); 2. Documents related to the development of Personal and Household Services Guideline (not current at the time) where Ms Jane Renshaw may have at the time had some of those documents at her home (2.6); 3. "Home help was getting out of control from cost basis ... Serious injury did not necessarily require the home help services." (2.7); 4. Terms of reference regarding home help/attendant care being provided by family members written by Mr Greg Tweedly and attendant care guidelines agreed by a committee (2.8); 5. Guidelines (2.11);

1. A readable copy of document 4-0001 to 4-013; 2. The "claim files by CGU, Allianz, VWA and TAC in relation to Mrs Smeaton's to WorkCover claims" referred to at Document 3-002. That KPMG document anticipates obtaining the above documents in the course of the KPMG investigation. 3. The following documents that the Victorian Ombudsman (letter dated 17 November 2005) requested from WorkSafe, that request forwarded to KPMG: 1. All of KPMG's working papers, file notes (including notes of interviews) and their complete copy of Mrs Smeaton's records in relation to this matter; and 2. A copy of KPMG's interview with Dr Giramondo; 4. Apparently missing attachments to a facsimile from Ms Freeman at KPMG to TAC dated 9 June 2005 which indicates a total of three pages, the only page available being a fax cover sheet, document 1-940/18; 5. Tape recordings and original notes of key individuals interviewed in the KPMG investigation, those individuals identified in KPMG Workpaper - Document 1-290; and 6. Terms of reference created under Australian Auditing Standards AUS 902 "Review of Financial Report", one of these standards that according to the report itself, page 2, the KPMG was conducted in accordance with.
2. In a bulky arch lever folder titled, "Case Law + Ref: Doc to 2nd submission 19th May 2018" the Smeatons set out the searches they submit VCAT should order. My translation appears in the above paragraph. The folder also included submissions, documentary evidence, VCAT hearing transcript, VCAT decisions and Court decisions.
3. On the evidence before me, KPMG has provided to WorkSafe all material which KPMG regards as WorkSafe's property. While I am not able to understand how the position was taken into 2010 in Smeaton v Victorian WorkCover Authority (General) [2010] VCAT 1544, that the documents belonged to KPMG, in more recent years KPMG made it clear that it regarded a set of documents as belonging to WorkSafe, advised Mr Smeaton of that fact and returned the documents to WorkSafe.
4. I understand from submissions made by Mr Smeaton in this proceeding that in proceedings between the Smeatons and KPMG in VCAT's Human Rights List H145/2016 and H130/2017, in answer to witness summonses KPMG's witness under oath assured the Tribunal that "all internal generated and created KPMG information was provided to WorkCover". An affidavit by KPMG legal counsel in H145/2016 (in the "Case Law + Ref: Doc folder) said the same, as did transcript of the 19 December 2017 hearing in the same proceeding, contained in the same folder.
5. The Smeatons submit that I should infer from the evidence a basis for ordering further searches. Having considered the documents and the Smeaton's submissions, it is unclear how the Tribunal could craft sensible intelligible orders as to a search such that WorkSafe could practically respond. VCAT does not have power to make orders that KPMG search for documents among the documents that are its property, if such exists, related to the Smeatons.
6. In support of this application, Mr Smeaton also points out that as far as he can understand the page numbering of the 11 volumes of documents shows gaps in the document numbering, giving rise to the question are there documents missing. He complains of some poor copies of documents.
7. Concerning this, I observe that with the passage of time, it is unsurprising that collection of documents is not perfect in its form.
8. The speculation that would form the basis of orders than for further searches, is not sufficient basis that such orders should be made.

[1] Media Monitors Transcript contained in the KPMG files, Volume 4, page 211.

[2] Quoted from letter from WorkSafe to Mr Smeaton dated 12 September 2016.

[3] Under the then current version of s 53 of the FOI Act.

[4] Under the Vexatious Proceedings Act 2014

[5] The Smeatons did not seek phone numbers, addresses and email addresses.