1. Under the Charter, in considering this application I must consider any relevant human right. Mr Styles did not raise the Charter. In my opinion, in this proceeding, the Charter does not apply, as no right appears engaged.

1. I consider each document in turn with reference to the exemptions WorkCover claims for it.

1. WorkCover contended under Section 30(1) (internal working documents), that release of the Garside Report would clearly disclose matter in the nature of opinion, advice and recommendation prepared by an officer (Garside Consultants) in the course of and for the purpose of, the deliberative processes involved in the functions of an agency and would be contrary to the public interest. It said it is in the public interest that that an agency be able to maintain confidentiality of a confidential process to address workplace dispute and employees have given evidence on a confidential basis. Mr Hurley referred to the decision Davis SM of VCAT in Mees v University of Melbourne (General)[2009] the VCAT 782 (6 May 2009).
2. As discussed above, Mr Styles contended it should be released.
3. I view the Garside Report (except for the covering letter dated 6 September 2006 from Garside Consulting to WorkCover, which is part of Document 1) as exempt under section 30(1) because:
   1. its release would disclose matter in the nature of opinion, advice and recommendation, which is inextricably intertwined with factual information provided in the report;
   2. it was prepared by an "officer". The term , "officer" is relevantly defined in section 3 of the FOI Act to include in relation to WorkCover,

a member of the agency, a member of the staff of the agency, and any person employed by or for the agency, whether that person is one to whom the provisions of the Public Administration Act 2004 apply or not.

In this situation, Garside Consulting is an "officer". VCAT has repeatedly ruled that consultants such as Garside Consulting when engaged by an agency is an officer (see Davis SM in Mees v University of Melbourne at 31).

1. it was prepared in the course of and for the purpose of, the deliberative processes involved in the functions of an agency, being WorkCover. To paraphrase Davis SM in Mees (at 32), the reports concerns the course of an internal investigation whereby a bullying complaint was investigated. It forms part of the deliberative process of the agency involved in the function of the agency and matters relating to staff issues.

1. its release and would be contrary to the public interest. Again paraphrasing Davis SM in Mees (35 to 40), I accept the evidence of Mr Jameson that WorkCover employees gave information to the authors of the Garside Report in confidence.

A number of staff are most concerned at the prospect that the information may be released to Mr Styles. If these matters are not kept confidential, it would inhibit WorkCover staff giving similar information in future situations. The free flow of information between WorkCover and its staff should not be impeded.

Therefore, to disclose the Report in my view would be contrary to the public interest. While the matter does not concern the high workings of government, it is nonetheless important that in an institution such as WorkCover there be efficient and economical conduct and protection of the deliberative process.

In my view taking these matters into account, to release documents would put the deliberative process of WorkCover and possibly similar institutions in the state at risk of not being able to obtain similar information in the future. I accept Mr Jameson's evidence that a number of the people who gave Garside Consulting information would be distressed if the description of that information was released. When dealing with deliberative documents as part of the investigation of internal staff issues, any advantage gained by the public knowing the workings of the agency would be far outweighed by the disadvantage that would be suffered in trying to persuade volunteers to provide information of a similar client to that provided here in the future.

1. In my view, the fact that WorkCover, it appears by mistake, allowed My Styles to read the Report, does not alter the exempt status under section 30. Section 23 of the FOI contemplates release of a document in different forms including "a reasonable opportunity to inspect the document" and "provision ... of a copy of the document". A short opportunity to read the report in 2006 is not the equivalent of providing a copy. It also does not detract from the public interest in the report remaining confidential.
2. WorkCover contended the Garside Report is exempt under Section 35 (material obtained in confidence).
3. While I have found the whole report to be exempt under section 30, I note that if I had not, I would have exempted a significant part of the report under section 35 where in my view,
   1. its disclosure would divulge information communicated in confidence by or on behalf of a person (WorkCover staff) to an agency (WorkCover via Garside Consulting).

Again paraphrasing Davis SM in Mees (at 49), I find there was a shared understanding by both the giver (the staff members and the receiver WorkCover via Garside), at the time the information was given that the receiver would keep the information secret. On the basis of Mr Jameson's evidence I am satisfied that understanding continues.

1. the disclosure would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency to obtain similar information in the future. Given the circumstances of the work environment in which information was given and accepting Mr Jameson's evidence, I am satisfied disclosure of this information would have a serious effect on other people giving information in the future. Mr Styles' opportunity to read the Report in 2006, does not, in my view, alter the position.

1. However, given my decision under section 30, it is not practical to describe which parts I would release.
2. Turning to section 33, if this was the only potential exemption, I would not have agreed the exemption was made out. My opinion would have been similar to that of Megay SM in Baker v Department of Education and Training (General) [2005] VCAT 2263 (28 October 2005) (at 7). She said about a report of investigation of a parents' complaint at a primary school,

I will deal first with the exemption pursuant to section 33(1). The only information relating to the personal affairs of any person (apart from the applicants and their son) found in the entire exempt document is that which identifies two people, in this case the principal and the assistant principal. Their participation in the investigation is known to all so obviously the disclosure of their identity would not be unreasonable in the circumstances. The balance of the material cannot be said to be relating to personal affairs. It relates to the evidence they gave about the events ... and the interpretation each placed on those events. Just because evidence is given by a person involved in an incident does not make that evidence information relating to personal affairs. That is simply not the intention of the legislation. As a result the exemption under section 33(1) is not made out. Mr Fraser expressed the view that because the document contained the teachers' version of personal experiences and particular events and their reactions to those events, that constituted exempt personal information but I do not accept that. The events and their recounting of them in no way constitute information relating to their personal affairs.

1. Concerning the identity of those who gave information to Garside Consulting, it appears Mr Styles is aware of their identity, it being reasonably obvious in a small work environment and given he has read the Garside Report.
2. Turning to Section 25, the issue is whether it is practicable to grant access to a copy of Document 1 with such deletions as to make it not an exempt document. In my view it is not. I cannot see a way that required deletions could be made which would leave an intelligible document, without the risk of inadvertent disclosure of the opinion, advice and recommendations and the risk that partial release is also likely to create the disadvantage that would be suffered in trying to persuade volunteers to provide information of a similar client to that provided here in the future. My view does not apply to the report findings which have been released to Mr Styles.
3. I reach this view after considering previous decisions and commentary about section 25. Pizer in Victorian Administrative Law (para FOI.25.40) leads off his discussion of "practicable", saying',

The primary meaning of "practicable" given by the Shorter Oxford English Dictionary is "capable of being carried out in action; feasible. The primary meaning of "feasible" given is capable of being done, carried out, or dealt with successfully in any way; possible; practicable.

1. Turning to the public interest override, the High Court of Australia recently confirmed that 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. It referred to the release of documents under section 50(4) in Director of Public Prosecutions v Smith[1991] VicRp 6; [1991] 1 VR 63 where there public concern that the administration of the criminal justice system had been perverted
2. Given my above views, I do not accept that the public interest requires the release of the Garside Report. While Mr Styles may say that the processes relevant to the Report were "perverted" (drawing a parallel to DPP v Smith), I am not persuaded the operation of the processes, as I have heard of them in evidence, requires public interest disclosure.

Document 2 - Brief to Mr Hallowes of Counsel to advise - dated 12 August 2008

1. WorkCover focused on claiming exemption under section 32(1) of the FOI Act, usually referred to as "legal professional privilege" exemption.
2. 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 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. Mr Hurley referred me to Williams on Civil Procedure in Victoria, Butterworths, 1987, which says at [I 29.01.610],

Instructions and briefs to counsel and cases for counsel's opinions thereon, and counsels drafts and notes, are protected by legal professional privilege;

Material for brief. Legal professional privilege protects documents which, although not communications, were brought into existence or collected for the dominant purpose of being included in what may compendiously be called a lawyer's brief.

1. I describe Mr Styles' submissions above.
2. I decide, Document 2 is exempt under section 32, because it would be privileged from production in legal proceedings on the ground of legal professional privilege, because:
   1. it contains confidential communication between the client's agent (the Director, Legal Services and Investigations, WorkCover) and the client's professional legal adviser (Mr Hallowes);
   2. that it was made for the dominant purpose of obtaining legal advice, which is referrable to possible pending litigation (the prosecution of WorkCover).
3. Williams' description of briefs to counsel being protected by legal professional privilege reinforces the point.

Document 3 - Recommendation not to prosecute - dated 31 August 2009 and Advice of Counsel - dated 27 August 2009

1. WorkCover focused on claiming exemption under section 32(1) of the FOI Act.

1. I decide, the recommendation not to prosecute is exempt under section 32, because it would be privileged from production in legal proceedings on the ground of legal professional privilege, because:
   1. the Director, Legal Services' recommendation to WorkCover not to prosecute contains confidential communication between the client's professional legal adviser (the Director, Legal Services and Investigations, WorkCover) and the client (WorkCover);
   2. being advice given for the dominant purpose of providing legal advice which is referrable to possible pending litigation (the prosecution of WorkCover).
2. For completeness, I note I have no reason to doubt the Director, Legal Services, as an 'in-house lawyer', in providing advice, has the requisite measure of independence that is required to attract legal professional privilege. This was discussed by Justice Graham of the Federal Court in Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts [No 2] [2007] FCA 1445.

1. WorkCover focused on claiming exemption under section 32(1) of the FOI Act.
2. I decide, the Advice of Counsel is exempt under section 32, because it would be privileged from production in legal proceedings on the ground of legal professional privilege, because:
   1. it contains confidential communication from the client's professional legal adviser (Mr Hallowes) to the client (WorkCover):
   2. that was made for the dominant purpose of giving legal advice which is referrable to possible pending litigation (the prosecution of WorkCover).

Document 4 - letter referring matter to the Office of Public Prosecutions - dated 24 September 2009

1. WorkCover focused on claiming exemption under section 32(1) of the FOI Act.
2. The letter from the Director, Legal Services and Investigations, WorkCover to the Office of Public Prosecutions is described in the letter as a referral as required under section 133(3) of the OH&S Act (see above). Mr Styles requested the referral, under that section. It is in the nature of a covering letter to a brief to counsel.
3. I understand The Director of Public Prosecutions considered the matter and advised WorkCover that the Director did not consider a prosecution should be brought. I assume WorkCover, under section 131(5), provided a copy of the Director's advice to Mr Styles.
4. I decide, Document 4 is exempt under section 32, because it would be privileged from production in legal proceedings on the ground of legal professional privilege, because:
   1. it contains confidential communication between the client's agent (the Director, Legal Services and Investigations, WorkCover) and the client's professional legal adviser (the Director of Public Prosecutions);
   2. that was made for the dominant purpose of obtaining legal advice which is referrable to possible pending litigation (the prosecution of WorkCover).
5. In reaching this decision I considered:
   1. Is the Director of Public Prosecutions, in this situation, the client's professional legal adviser? I decided he was. As the then Administrative Appeals Tribunal of Victoria observed in Re Easdon and Director of Public Prosecutions; Minister for Police and Emergency Services and Victoria Police (No 1) 2 VAR (1987) 102 at 115,

The Director is a lawyer, subject to the discipline of the Supreme Court, and he provided legal advice in his capacity as a lawyer, as a lawyer would. It is clearly established that the doctrine [of legal professional privilege] operates in respect of lawyers in public service so long as they are carrying out a lawyer's function.

1. In providing a copy of the Director's advice to Mr Styles as was required under section 131(5) of the OH&S Act, did WorkCover waive its legal profession privilege? I decided it did not. The issue of when privilege is waived was discussed by the High Court of Australia in Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1, the Court said (at 15),

At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that "waiver" is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received.

Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege.

I see nothing in WorkCover providing the Director's advice, because it is required to by section 131(5), which is inconsistent with WorkCover retaining legal professional privilege with respect its letter to the Director requesting the advice.

Document 5 - eight volumes of attachments to the advice of counsel being the documents he requested in order to provide the advice

1. WorkCover focused on claiming exemption under section 32(1) of the FOI Act. It contended, if I decided the brief to Mr Hallowes (Document 2) was exempt, it follows Document 5 is also exempt. If not, a further hearing would be required to consider the eight volumes.
2. I have decided Document 2 is exempt. The eight volumes are part of the brief to counsel, whether provided to counsel with or after the brief was sent and are in my view are also exempt. I note that Williams says, material for a brief to counsel is also exempt.

1. Given I have affirmed WorkCover's view that Documents 2 to 5 are exempt under section 32, I have not considered the other claimed grounds of exemption. That said, it is evident from my analysis of some the claimed exemptions with respect to Document 1, that it is likely I would have found significant parts of Documents 2 to 4 exempt with reference to sections 30(1), and 35 of the FOI Act.
2. As discussed above I would not have agreed the exemption under section 33 was made out.
3. Also, I would not have agreed that an exemption was made out under section 31(1)(a). Mr Hurley did not focus on this ground at the hearing. To be exempt it is necessary that disclosure 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. WorkCover did not demonstrate any, 'particular instance'.

1. Turning to Section 25, the issue is whether it is practicable to grant access to a copy of Documents 2 to 4 with such deletions as to make it not an exempt document. In my view it is not. As Pizer notes at [FOI 25.40],

In Osland v Department of Justice [2005] VCAT 1648; (2005) 23 VAR 378 Justice Morris P observed (at [38]) that it was difficult to see how s 25 could operate in respect of a document protected by legal professional privilege (and hence exempt under section 32).

1. While Pizer raises some possible exceptions (such as where privilege is partially waived) they are not relevant here.

1. Similar to my reasoning on this issue with respect to the Garside Report, I do not accept that the public interest requires the release of Documents 2 to 5.