[2004] VCAT 1562

Mr Catlin of counsel instructed by Wilmoth Field Warne

1 On 12 August 2002, Mr Peter Vaughan, the applicant in these proceedings, made the following request :

Pursuant to the Freedom of Information Act (1982) (Victoria) ("FOI Act") I request that you provide me with access, in the form of inspection and copies, to the following documents.

All video tape recordings made by officers of the Department of Natural Resources and Environment at the following location and time.

The intersection of Goolengook Road and Ritti Road, in the Goolengook Forest Block. Specifically at the site of what was known as the Fortress Goolengook conservation camp. I request all video tape recordings made at the above site during the removal of the conservationists camp, personnel, and the Fortress Goolengook structure on the day. Beginning at 5AM on March the 5th , 2002."

2 The Department of Natural Resources and Environment which is now the Department of Sustainability and Environment (the Department), responded to the request. The request for access to two videotape recordings (the documents) was refused. That decision was affirmed on 13 November 2002 on internal review. The Department claimed that the documents were exempt from release under s31 and s33 of the Freedom of Information Act 1982 (the Act).

3 On 18 November 2002, Mr Vaughan lodged an application for review of that decision with the Tribunal.

4 The substantive hearing of this application commenced before me on 25 February 2004. The application had already been the subject of a preliminary hearing and a number of Directions Hearings. Mr Vaughan was represented by Mr Gray of counsel and the Department by Mr Pizer of counsel. On the morning of 26 February 2004, Mr Vaughan applied for an adjournment to enable him to obtain other representation. Although that application was opposed by the Department, I granted the adjournment and made an order reserving the Department's costs thrown away by reason of the adjournment. The hearing eventually resumed on 14 July 2004 and finished on 15 July 2004. At the resumed hearing, Mr Vaughan was represented by Mr Catlin of counsel. The Department was represented at all times by Mr Pizer.

5 Despite orders made by the Tribunal about the serving and filing of all material sought to be relied on by the parties, the day before the hearing resumed in July and when the matter was part heard, Mr Vaughan sought to file and serve a third statement with attachments, which could fairly be said to be voluminous. Mr Pizer submitted that that presented his client with an impossible situation and suggested that it presented the clearest possible case for an adjournment. He submitted that this was particularly so where the matter was part-heard, where there had been no suggestion Mr Vaughan wanted to file and serve further material and where Mr Vaughan had retained different representation at the earliest in late March.

6 Mr Catlin sought leave to rely on the additional material submitting it was highly relevant to issues I would need to consider and central to my considerations. He submitted that there was no prejudice to the Department as the material consisted of newspaper articles, radio transcripts, letters from environmental organisations, a copy of the Department's plan for the removal of Fortress Goolengook, and the like.

7 I did not accept that the Department would not be disadvantaged by the very late service and foreshadowed that if Mr Vaughan wanted to rely on that material, I would be granting the Department's request for an adjournment exposing Mr Vaughan to an order for costs thrown away by reason of the adjournment. In those circumstances, Mr Catlin said that he would proceed in the absence of that material.

8 Prior to the resumption of the hearing, the Department had given Mr Catlin and his instructor the opportunity to view the exempt documents on the usual undertakings.

9 On 25 February 2004, the first day of the hearing, the Department made an open offer to Mr Vaughan to disclose or provide to Mr Vaughan video footage showing images of the fort and the demolition of the fort whether by machinery or people, with the faces and identifying features being pixilated so that they could not be identified. Mr Vaughan refused that offer. He had understood there would be no audio provided and that the pixilation of faces extended to shoulders. When the hearing resumed in July, Mr Vaughan confirmed that that he was not prepared to accept a pixilated version and that he wanted access to unaltered video footage.

10 The exempt documents are two video recordings made on 5 March 2002. One runs for about 2¼ hours, the other is quite short about 15 minutes and appears to have commenced recording first. They depict the dismantling and clearance of a structure or blockade which had become known as "Fortress Goolengook" (the Fort).

11 As I understand it, the Fort was built by those opposed to the logging of the Goolengook Valley. It consisted of various structures located near the end of Goolengook Road and was designed to stop vehicular access into the valley.

12 On 5 March 2002, a team of officers of the Department and officers from Victoria Police dismantled and removed the various structures.

13 The two videotapes contain images showing the removal of the structures. They contain visual images of over 20 Departmental officers, over 10 police officers, numerous protesters and other individuals who were present including observers, bulldozer and crane operators and Mr Vaughan himself in the latter part of the longer video, showing filming and recording events himself and talking with Departmental officers.

14 At the commencement of the hearing, the Department claimed the documents were exempt from release under s 33 and s 31(1) of the Act. When the hearing resumed on 14 July 2004, the Department advised it no longer sought to rely on s 31. In those circumstances, the only exemption now claimed is s 33.

15 The Department relied on the evidence of Ian Parks, a senior prosecutor with the Department; Mr Peter Rutherford currently Director of Forest and Timber Industries, a unit of the Department and Deidre Egan, manager, Secretarial Services with the Governance, Legislation and Executive Services Branch of the Department. They had prepared statements, gave evidence and were cross-examined.

16 Also filed and relied on by the Department was a summary of what are called S53A Responses. Under s 53A of the Act, where access to documents is refused and the reason for the decision is that the document is an exempt document under s 33(1) of the Act because its disclosure would involve the unreasonable disclosure of information relating to the personal affairs of a person, and there is an application for review of that decision, the agency is obliged, if practicable, to give written notice to the person to whom the information relates, giving them the opportunity to intervene in the proceedings.

17 It was not practicable for the Department to give notice to the various police officers and protesters. However, notice was given to Departmental officers identifiable in the documents. Twelve responded in writing to the Tribunal. The substance of their responses, which do not identify the individuals, are summarised in the S53A document filed and served and the thrust of the responses is that those people do not want the information released.

18 Mr Vaughan relied on his own evidence, the evidence of Gavan McFadzean, Victorian Campaigns Manager of the Wilderness Society and Jeff Riley a member of SKA TV involved in post production training and facilities development and maintenance. He also summonsed Louise Martin, who had been media liaison manager with the Department, to give evidence and had filed and served a statement of the evidence he anticipated she would give. Apart from Ms Martin, the others had prepared statements. They all gave evidence and were cross-examined. Mr Catlin also tendered other documents.

20 The Department claims that the documents are exempt from release under s 33 of the Act. The relevant parts of s 33 state :

(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 sub-section (4), the provisions of sub-section (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.

(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"

(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.

21 Under s 33(1) of the Act, a document is exempt from release if two conditions are satisfied. First, if disclosure would involve the disclosure of information relating to the personal affairs of a person; secondly, that such disclosure is unreasonable.

22 The term personal affairs in the context has been interpreted widely (see for example, Re Hutchison and Department of Human Services (1997) 12 VAR 422; Re F and Health Department (1988) 2 VAR 458). Section 33(9) now provides that the expression information relating to personal affairs of any person, includes any information that identifies any person or discloses their address or location and information from which any person's identity, address or location can reasonably be determined.

23 To satisfy the exemption, disclosure of such information must be unreasonable. The test of unreasonableness involves a balancing of competing interests. On the one hand protecting the right to personal privacy of an individual whose affairs may be unreasonably disclosed by granting access to the information against the object of the Act to extend as far as possible the right of the community to access to information in the possession of government or an agency.

24 In carrying out this balancing exercise, it is well accepted that I must have regard to all the surrounding circumstances including whether disclosure to the world at large would be unreasonable, not whether disclosure to an applicant would be unreasonable (Re Page and Metropolitan Transit Authority (1998) 2 VAR 243, at 245-246; Re Penhalluriack v DLI (unreported County Court 19/12/1983); Re Targridge Pty Ltd and TRA (1988) 2 VAR 604; Re Amusement Machine Operators Association Ltd and DSR (1988) 2 VAR 584; Re Ing and Legal Aid Commission (unrep AAT of Vic, Rizkalla DP, 25 September 1992); Re Simons and Vic Egg Marketing Board (No 1) (1985) 1 VAR 54 at 55; Re Borthwick and Health Commission of Vic (1985) 1 VAR 25 at 30).

25 In deciding under s 33 whether disclosure is unreasonable, I must, among other things, consider the interest of the applicant and purpose for which the applicant requires release (Re Penhalluriack; Re Page; Re Lapidos and Office of Corrections (No 3) (1990) 4 VAR 156; Re Knight and CORE (No 1) [2002] VCAT 1769; Re AMR and Victoria Police (unrep AAT of Vic, Levine, PM, 17 August 1994).

26 Mr Pizer submitted that it was common ground as he understood it, that the two videos identified over 20 Departmental officers, over 10 police officers, numerous protestors and other individuals present when the fort was removed. He submitted that they also contained other information about certain individuals, including car registration details, names, addresses and other identifying information. He submitted that by virtue of s 33(9) all this was clearly information relating to the personal affairs of those individuals and that the first condition of s 33(1) had plainly been satisfied.

27 Counsel submitted that it was the second condition, that of unreasonableness, that lies at the heart of this case and that the test of unreasonableness involved the balancing of competing interests. He referred to the well established authorities that set out what the Tribunal should have regard to in engaging in this balancing exercise.

28 Mr Pizer submitted that there were a number of matters that were relevant in considering whether disclosure was unreasonable.

29 First, he submitted that as required by s 33(2A), it was necessary to consider whether disclosure would or would be reasonably likely to endanger the life or physical safety of any person. He submitted that this should be interpreted broadly and that the expression would be reasonably likely to should be interpreted in the same way that it had been interpreted where the phrase appeared in s 31 of the Act. He drew attention to the decision of the Full Court of the Supreme Court of Victoria in the Department of Agriculture and Rural Affairs v Binnie [1989] VicRp 73; [1989] VR 836. In particular to the following passage in the judgment of Marks J at p 842 :

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 s31(1) of the Act.

30 He submitted that it was clear there only had to be a danger to physical safety and that it is not necessary to establish that it is reasonably likely that physical harm would actually occur, nor that it had to be shown the risk was from an applicant, as demonstrated by the following passage in the same judgment on p 844 :

It is not necessary to show that the risk to which s 31(1)(e) refers is from the respondent himself but rather from anyone should the information become generally known.

It must also be acknowledged that exemption applies where it 'would be reasonably likely' that there be a danger to physical safety, not that physical harm will occur.

31 Mr Pizer submitted that the evidence plainly established that if the two videos were disclosed, there was a real chance not a fanciful or remote chance, that the physical safety of Departmental officers involved in the removal of the fort would be endangered. He referred to and relied on the evidence of Mr Rutherford, the video attached to his statement, his evidence in cross-examination and particularly his evidence given in re-examination in support of that submission. He submitted therefore that there was strong support for the claim that disclosure would be unreasonable.

32 Secondly, Mr Pizer submitted that the nature of the information, how it was obtained and its availability to the public were relevant considerations. The two recordings he submitted record part of what took place in the course of law enforcement activities, jointly undertaken by the police and officers of the Department. The videos contain identification information of Department officers, police officers, protesters and bystanders. Counsel submitted this information was not generally available to the public and apart from a small segment broadcast on TV on the day which did not identify all, or even many of the individuals in the 2½ hours of footage, had not been released.

33 Counsel submitted that even though Mr Vaughan himself had some knowledge of the videos' contents because he was present for some of the time and had seen a TV news snippet, that in no way affected the unreasonableness of the disclosure because disclosure involved release to the world at large.

34 Thirdly, Mr Pizer submitted that the attitude of persons on the video was relevant. He relied on the evidence of Mr Rutherford, Ms Martin and the departmental officers who are identified on the videos and who have expressed their view about any disclosure in the s53A responses. He submitted their views lent powerful support to the claim that disclosure would be unreasonable.

35 Fourthly, counsel referred to the attitude and motives of Mr Vaughan which he submitted were a relevant consideration. He referred to decisions of the Tribunal in Re Gunawan and Department of Education (unreported AAT, Davis M, 1 February 1999) and a recent decision in McNamara v Department of Humans Services. In Gunawan at p 18, Davis M said :

However, the motives of the applicant are relevant. Disclosure is less likely to be unreasonable where the applicant's motives are commendable, and disclosure is more likely to be unreasonable if the applicant's reason for seeking access is out of some particularly personal crusade or for the purpose of embarrassing or otherwise harming third persons concerned.

36 Mr Pizer submitted that Mr Vaughan claims to be making a documentary film. He submitted that he does not need the identities of the individuals concerned to do this and pointed out that on more than one occasion, the Department had made an open offer, that Mr Vaughan had flatly rejected. Counsel submitted that if there were any interest in the removal of the fort, the videos showing just that could have been provided to him, but he has refused that material and wants all the identifying material. In light of that position, Mr Pizer submitted that it was open to the Tribunal to infer that Mr Vaughan's motives for seeking access were less than commendable, and that he is seeking access out of sheer bloody mindedness or out of some sort of personal crusade against the Department.

37 The fifth matter Mr Pizer submitted was relevant was whether disclosure could lead to a third party suffering stress and anxiety. He submitted that the evidence plainly established that disclosure would be likely to lead to a number of officers suffering stress. He referred to the S53A responses and other evidence before the Tribunal in support of that contention.

38 Counsel referred to two decisions of the Tribunal and in particular as a direct parallel to Re Billinghurst and Attorney-General's Department (unreported, AAT Judge Smith, 3 February 1992) in support of the submission. In particular, he drew attention to the following passage in Billinghurst :

In any event I have before me the sworn evidence of Mr Duncan who is the Sheriff himself, a position he has held for some five years. Mr Duncan testified that, if this type of information revealing the identify of his officers were to be revealed under the Act, there would be a loss of morale amongst all the officers and, moreover, in the case of some of them there would be reason to believe that they would fear harassment based on past experience of harassment by telephone and by letters and, in one instance, harassment took the form of the slashing of tyres of a motor vehicle belonging to the officer concerned. This is not to suggest in the slightest that Mr Billinghurst himself would indulge in any of this harassing conduct. That is nothing to the point. The reason for the refusal, as a matter of policy, to reveal the identify of the officers unless the officer himself or herself chooses to do so is a policy matter based on considerations of a fear of harassment and loss of morale and I can well understand, knowing something of the nature of the process of enforcement of orders of the court, that such fears may be well justified.

39 The final factor in the balancing exercise that Mr Pizer referred to was a consideration of whether the disclosure would advance or promote a public or other important interest. He submitted disclosure would not. First because disclosure would not shed any light whatsoever on why the decision to remove the fort was made nor whether the decision to remove it was justified. Nor, he submitted, would disclosure show the Department had been guilty of misconduct or other wrongdoing and there has been no allegation of illegality, impropriety, sharp practice, wrongdoing or inappropriate behaviour in connection with the implementation of the decision to remove the fort. Nor do the documents contain any suggestion the Department manipulated the media, a suggestion made by Mr Vaughan and flatly denied, nor does it contain any material that tends to show that the Department attempted to stifle or control public debate.

40 Mr Catlin had no difficulty with Mr Pizer's submissions on the law and his submissions concentrated on the evidence.

41 He submitted that Mr Rutherford's evidence about all protesters or protesters generally being prone to anger or holding a grudge, was contradictory and sloppy especially as the event the subject of the videos occurred in March 2002. He submitted that in effect I am being asked to believe that this is all a matter of ongoing burning significance.

42 Mr Catlin further submitted that the release of faces was hardly the release of personal information contemplated by the Act . In effect he submitted the Department was asking me to accept that if the faces on a film were released, everything else followed, ie that they will be tracked down, pursued and the protesters will find out where they live.

43 Counsel submitted that the identities were constantly on show. Officers were being recorded year in and year out and there are cameras everywhere. Protesters themselves use them. The Department's videos are sometimes used in prosecutions but there are no guidelines about their release.

44 Mr Catlin further submitted that there was no evidence to support any contention that the protesters will have stored up their anger and once the footage is out, they would seek out the identities of the officers and take some action. He submitted that the public interest in release was self-evident.

45 The videos contain quite clear images of those filmed, including the Departmental officers. In some parts, names are used and even full names and addresses are given. I am satisfied that the videos contain information which identifies persons, discloses some addresses or information from which any person's identity can reasonably be determined such that for the purposes of s 33(1), I am satisfied it is information relating to the personal affairs of any person.

46 More difficult to decide is whether disclosure of such information is unreasonable.

47 At first blush, it is hard to see why it would not be unreasonable to release information showing Departmental officers carrying out part of their duties. Particularly so as the videos depict events that occurred more than two years ago now and where there is no evidence that the protesters have stored up any anger and where there is evidence that others, including protesters, have videoed similar activities where Departmental officers have been involved.

48 On the other hand, there are a number of considerations which would tend to support non-disclosure, including the fact that release of the videos involves release not just to Mr Vaughan or even just to those on the videos, but to the world at large.

49 The videos were taken according to the evidence of Mr Rutherford, which I accepted, as part of the Department's evidence gathering process should charges be laid, as happened in this case, so that the Department could address any allegations about the conduct of its officers or police officers during operations of a nature similar to the removal of the Fort. I also accept his evidence that as a general rule, video recordings of this nature are made for the Department's own use and are not made available to the public given the sensitivity of the nature of the personal information contained in them.

50 I do not accept Mr Vaughan's assertions that the videos were taken as part of any media plan or to be used to manipulate the media as claimed by Mr McFadzean. The basis for Mr Vaughan's claim seems to rest on the fact that the Department released the videos to WIN TV who broadcast a snippet from those videos on the day in question. Their assertions were at odds with Mr Rutherford's evidence set out above and at odds with Ms Martin's evidence given in cross-examination which was that it was never part of any overall plan for the removal of the Fort that she would give the video tapes to WIN TV, but that she had done that on the day in order to inform the public that the Fort had been removed because it presented a fire risk. Further, Ms Martin rejected any suggestion that the Department had attempted to manipulate the public's perception of the Fort incident by providing WIN TV with the material. She explained that, given her 20 years of experience as a journalist, it would be very difficult for anybody to manipulate the media. Given the evidence of Mr Rutherford and Ms Martin which I accepted, I am not satisfied there is any basis for Mr Vaughan and Mr McFadzean's assertions.

51 Section 33(2A) requires that I consider whether the release would or would be reasonably likely to endanger the life or physical safety of any person. I accept Mr Pizer's submission that reasonably likely to should be interpreted in the same way that the phrase has been interpreted where it appears in s 31 of the Act. Is there a fair chance that there will be a danger to physical safety?

52 Mr Rutherford gave evidence about his own and his colleagues' experiences at the hands of protesters. He referred to the sorts of activities protesters at the Fort had engaged in including a threat to an officer to destroy his house and loosened wheel nuts on a Department vehicle. He referred to other aggressive behaviour of protesters elsewhere where they intimidated officers and blatantly ransacked offices, which behaviour had been captured on the videotape exhibited to his statement. He referred to his own experiences. His image has been published on websites created by environmental activists. Those websites encouraged protesters to take direct action against him. His statement sets out graphically what those websites encourage others to do, not only with respect to him but to other Departmental staff and there is no need to repeat them here. He gave evidence of a more recent experience where someone had sought details about him such that the police became involved and his home security had to be revised.

53 I accepted his evidence that he has real and ongoing concerns about his own safety, other officers' safety and his family's safety and I accept that these concerns are not fanciful and I am concerned about the danger to the physical safety officers might face should their identities be released, given his and others past experiences. I did not think Mr Rutherford's evidence was biased and evasive as Mr Catlin suggested. Nor did I think his emotional presentation late in re-examination was, as Mr Catlin suggested, because of the amount of money protesters have cost the Department.

54 Whilst Mr McFadzean gave evidence that protesters, whom he knows through the Wilderness Society, would not engage in any violent behaviour, the evidence captured on the video exhibited to Mr Rutherford's statement and shown in the hearing clearly shows what could only be described as feral behaviour by some young people apparently concerned about the environment. In those circumstances, I found Mr McFadzean's evidence about the behaviour of protesters of little assistance.

55 The summary s 53A responses also highlight the anxiety and concern of officers should the material be released. The responses were sent to the Tribunal and as ordered by the Tribunal, the respondent prepared a summary of those responses so that all identifying details were removed. This was necessary because the authors of those responses did not want their identity revealed. I have read the original responses and the summaries and am satisfied that the summaries accurately reflect the concerns expressed in the responses. Below, I set out examples of the responses, the passages in italics are direct quotes from the responses, otherwise the passages set out the substance of the officer's concerns :

(a) 'During the course of the Goolengook protest, I received constant threats to my own personnel (sic) safety as well as my family. A number of comments were made by an activist with respect to burning down my house and clearing it like the Department clears the bush. The extent of these threats caused me to take the drastic measure of obtaining a silent telephone number to stop unwanted and threatening calls.

The environmentalist (sic) have posted offensive and abuse (sic) material on the Internet and at one stage called for a fund to be set up to assonate (sic) key members of the Department, other material posted has been insightful (sic) and defamatory, They have posted Forest Officers photos on the Internet and invited comment on these, for these reasons, I also request that this material not be released.

Due to the ongoing nature and tactics of the forest protest groups, I wish to request that no information that personally identifies myself or contains information relating to my personal affairs be released to any person or for public viewing'.

(b) Departmental Officer requests all personal information relating to the officer to remain confidential. The reason for seeking confidentiality is to help ensure personal safety and that of officer's family. Officer has been the subject of verbal harassment including on the telephone and has received abusive letters from the applicant. The officer has had abusive language used against the officer, has had personal space invaded by the applicant and feels very uncomfortable and afraid for security and well being of the officer and the officer's family. Strongly objects to release of any personal information about the officer.

(c) Departmental Officer seeks confidentiality for all personal information about the officer. The reason is to ensue the safety of the officer and the officer's family. Personal threats were made against the officer at forest protests during 2002 which resulted in Police Security Intelligence Group contacting the officer and recommending a range of actions to ensure personal and family's safety. Have experienced verbal threats, harassment and intimidation from the applicant. Strongly object to release of personal information about officer.

(d) I am particularly concerned about the safety of my family and myself. Other NRE staff involved in the management of forest protests, to which the videos relate, have been verbally threatened and abused in the field as well as on public websites such as Indymedia.

(e) Departmental Enforcement Officer concerned not to be identified. Has concerns for privacy if video tapes released. Involvement may be taken out of context and used in such a way as to make officer look less than professional or undermines officer's integrity in some way. Concerned that release might impede legal cases.

(f) Has been identified on several forest activist web sites with accompanying defamatory remarks and threats. Email address has been listed resulting in harassing and threatening emails. Greatest concern is that more images may appear on further web sites adding to level of harassment of officer and family. Officer's involvement may be taken out of context and used in such a way as to make officer look less than professional or undermines officer's integrity in some way. Also concerned that release may adversely affect criminal proceeding pending.

(g) Department officer writing to ensure personal safety of self and family. Has been working in protests and been subject to numerous threats of physical harm and has been assaulted on two occasions by forest protesters. Release will attract further attention by protesters against officer personally and on websites. Officer and other Departmental offices have been singled out for attack on websites already. 'I cannot object strongly enough to the release of any of my personal information in this situation'.

Even though, as Mr Catlin rightly pointed out, their evidence could not be tested in cross-examination, to my mind they highlight a number of officers' concerns about threats to their physical safety and safety of their families.

56 The summaries suggest some have already been threatened, assaulted, harassed, abused and intimidated and are concerned for themselves and their families. They accord with Mr Rutherford's evidence about past experiences and fears of the future. I accept their concerns are not without foundation and that they genuinely have an ongoing apprehension. Even though the likelihood of the protesters involved in the Fort incident taking action so long after the event might be remote, I cannot be satisfied there is no danger or likely danger from others to their physical safety should the videos be released. I do not agree with Mr Catlin's submission that the proposition that protesters would take action was simply a proposition without foundation, given the video exhibited by Mr Rutherford and his own evidence of his experiences, his knowledge of others' experiences and the experiences described in some of the s53A responses.

57 Given the concerns expressed by the Department officers in the summaries, it is self-evident that release would cause them ongoing stress and anxiety (see Reilley v Kilmore and District Hospital (1993) 6 VAR16).

58 Mr Vaughan's motives for seeking access are relevant in considering whether the videos should be released.

59 For the past five years, Mr Vaughan has been producing a film detailing the decline in the timber industry in the area in which the Fort was located. The film will apparently focus on a number of issues including the role played by the Department. He states he is interested in the way the media was managed by senior Departmental officers during and after the demolition and interested in the political objectives of the Department in relation to the operation.

60 In his statement (Exhibit C) Mr Vaughan sets out his perceptions of the role of the Department in the demolition of the Fort and his view of the Department's management of the forest resource as a whole. He speculates about the Department's management of the media such that it had given conservationists a bad name and suggests that the Department stood to gain politically from the conflict the demolition of the Fort generated. Mr Vaughan believes the Department has been obstructive and has conducted a vendetta against him in his research.

61 Whilst I note that Mr Rutherford has denied these claims, even accepting that they were true, it is difficult to see how the release of the videos would shed any light on how the media was managed as he claims or would reveal any political objectives the Department is claimed to have had or contribute in any way to revealing how the Department managed the forest resource.

62 Mr Vaughan's ongoing refusal to accept copies of the video with identifying features removed but which would still have provided him with footage of the site and the demolition leads me to be cautious about his reasons for saying he wants the videos. If he is making a documentary about the decline in the timber industry, it is hard to see why he needs footage which includes the identity of the Departmental officers, particularly when he had been offered footage of the Fort and the demolition. I do not accept his evidence that the Department has been obstructive and is conducting a vendetta against him. It flies in the face of Mr Rutherford's evidence and Ms Martin's evidence in cross-examination that Mr Vaughan was treated no differently from any other person making a documentary and who asks the Department for something. According to Ms Martin, who gave her evidence in a direct and forthright manner, and whose evidence I accepted, in that situation a person is required to give an outline of the whole project and what they actually want. Her evidence was that in response to an email from Mr Vaughan on 12 March 2002, she had once again responded to him asking if he could come and meet with her to try and progress the matter further, and that he had never responded to her request.

63 Would release advance or promote a public interest or other important interest so that not to disclose the videos is unreasonable? Mr Pizer's submissions on this consideration are set out earlier in paragraph 39.

64 Mr Vaughan in his statement of public interest grounds claimed that any documents that suggest manipulation should be disclosed, and that there is a public interest in the disclosure of any material which would tend to show that the Department has attempted to stifle or control public debate on important matters of public interest. He claims there is a public interest in disclosure of any material which would tend to show inequity on the Department's part, political partisanship or activism by the Department or that the Department may have been actively supporting sectional commercial interests at the expense of competing sectors. He says that the public has a right to know whether the agency was justified in removing the Fort and it is in the public interest for society to be informed by a broad-based well informed media.

65 I am not satisfied that the documents reveal any manipulation or any attempts to stifle or control public debate, or any of the matters he relies on. They do not reveal any illegality, impropriety, sharp practice, wrongdoing or inappropriate behaviour in connection with the conduct of the operation to remove the Fort. There is nothing to persuade me they should be released to clear the air for example or that release would promote a public or other important interest, such that it would outweigh the interests of the individuals who are concerned to preserve their privacy.

66 In summary, given my findings as to the reasons the video recordings were made, the chances of a danger to physical safety if the videos were released, the anxiety and concern of those on the videos if they were released, Mr Vaughan's motives for seeking their release and whether release would promote a public or other important interest, I am satisfied that release of the videos would involve the unreasonable disclosure of information relating to the personal affairs of persons.

67 I am therefore satisfied that the exemption claimed under s 33(1) of the Act has been made out.

SECTION 25 CONSIDERATIONS

68 Section 25 of the Act states as follows :

(a) a decision is made not to grant a request for access to a document on the ground that it is an exempt document;

(b) it is practicable for the agency or Minister to grant access to a copy of the document with such deletions as to make the copy not an exempt document; and

(c) it appears from the request, or the applicant subsequently indicates, that the applicant would wish to have access to such a copy--

the agency or Minister shall grant access to such a copy of the document.

69 On review I am required to consider whether to grant access to the videos with exempt material deleted. There are two conditions which must be satisfied. First, whether it is practicable to grant access to a copy of the videos with deletions such as to make that copy not an exempt document. Secondly, that it appears from Mr Vaughan's request or from a subsequent indication from him, that he would wish to have access to such a copy.

70 Mr Pizer submitted that there was a simple reason why s 25 did not apply in this case. He referred to Mr Vaughan's evidence in cross-examination that he did not want a copy of the videos with the identities of the individuals pixilated. As a consequence, he submitted that the second condition of s 25 was not satisfied. Even if that were not the case, he submitted the first condition had not been satisfied either and he referred to a decision of the Tribunal in Re Schubert and Department of Premier and Cabinet (2001) 19 VAR 35.

71 Mr Pizer referred to the evidence of Ms Egan about how expensive it would be to provide a pixilated copy of the two videos, such that all visual and audible identifying material was obscured. He referred to the quotation of $19800.00 that was provided to the Department by Big Time Media; a quotation provided with the benefit of having being able to view the tapes on a confidential basis.

72 In contrast I heard from Mr Riley of SKA TV, for Mr Vaughan, who estimated the job would cost $4752.00. Mr Catlin submitted that I should accept Mr Riley's evidence about the cost and that it was not up to the government to choose the highest quote and on that basis say it is impractical to provide the pixilated footage because of the expense. So far as Mr Vaughan's wishes were concerned, he simply submitted it might be a matter that would be the subject of orders I made.

73 I am somewhat at a loss to understand what Mr Catlin was referring to when he referred to Mr Vaughan's wishes and how that might be a matter the subject of my orders, when Mr Vaughan had made it quite clear at the commencement of the hearing, when the hearing resumed and in cross-examination that he was not prepared to accept a pixilated version and wanted access to unaltered video footage.

74 Given Mr Vaughan's expressed wishes about wanting access to unaltered video footage, it seems to me that the second condition in s25 is not met.

75 However, even if my understanding of Mr Vaughan's wishes is not correct, I am not satisfied that the first condition is met either.

76 In Re Schubert Senior Member Megay considered what was meant by the phrase where it is practicable as it appears in s 25(b) concluding that it did not mean that because the task of deletion could be done, that it followed it must be done. With respect I agree with that approach, expressed at p 45 :

The use of the word 'practicable' in the legislation to my mind connotes a legislative intention to apply common sense principles. 'Practicable' is not a term of art or a term of precise meaning. The definition to be found in the Oxford English Dictionary is 'capable of being put into practice, carried out in action, effected, accomplished or done; feasible'. The Macquarie Dictionary defines it as 'capable of being put into practice, done or effected, esp with the available means or with reason or prudence; feasible'.

One view might be that if the Premier's diary is capable of being reconstructed irrespective of resources involved or inconvenience experienced, then that should happen. That is, that the process should be mandatory provided the task of reconstruction can be undertaken and completed. But in my view if Parliament had intended that interpretation it would not have used the word 'practicable' - rather it would have used language more precise in meaning and definition. The use of the word indicates there should be imported into the process the exercise of judgment by the agency concerned. It does not allow for the conclusion that because a task is possible it must, ergo, be undertaken. The best I can do in the circumstances is to insert my own judgement of practicability to the process...

77 Turning my own judgement of practicability to the process, I am mindful that Mr Riley has provided his quotation without seeing the videos, and on that basis I would be reluctant to find that his quotation was nearer the mark. Even if it were, and even though it is possible to pixilate the videos to make the pixilated copies exempt documents, I find that in all the circumstances it is not practicable to do that given the cost burden on the taxpayer.

78 As I am not satisfied that either of the two conditions in s 25 that need to be met have been met before access with deletions is to be granted, I do not grant access to copies with deletions.

79 I therefore affirm the decision of the respondent.