1. Application dismissed. Decision of Respondent of 9th March 2006 affirmed.

2. Question of any ancillary orders reserved.

3. Liberty to apply.

1 This matter comes before me by way of an application pursuant to s.50 of the Freedom of Information Act 1982 ("the Act"). It is brought by the applicant, Kim Wells ("Wells"), who seeks to review a decision of the Victoria Police - FOI/Privacy Division ("the Police"). The decision of which a review is sought is a decision taken by the Police on 9th March 2006 (I note that, in the application issued out of this Tribunal, the date of the decision under review is shown as 9 March 2005, but the balance of available material indicates that the relevant decision was almost certainly taken on 9 March 2006). The decision so taken is one to refuse to Wells access to certain documents relating to speed camera roster data for April and May, 2005. The nature of these documents shall be discussed subsequently. Access was so denied on the grounds of exemptions available under the Act pursuant to s.31(1)(a) and (d). Wells challenges the right of the Police to rely upon such exemptions, and also relies upon s.50(4). The exemption contained in s.31(1)(a) relates to the reasonable likelihood of prejudicing the investigation of a breach or possible breach of the law or the prejudicing of the enforcement of proper administration of the law in a particular instance. Section 31(1)(d) relates to the methods or procedures for preventing, detecting etc. breaches or evasions of the law where the disclosure of documents would be reasonably likely to prejudice the effectiveness of those methods or procedures. It is an exemption of broader application in that it is not confined to "a particular instance". Section 50(4) contains what is referred to as the "public interest override".

2 I am conscious of the objects of the Act as set out in s.3. I am conscious of the methods of interpretation of the Act to be adopted as set out in s.3(2). I am aware of the various authorities, which could be summarised as standing for the proposition that it is proper to give the relevant provisions of the Act that construction which would further, rather than hinder, free access to information, and that the Act is to be interpreted generally in favour of access, but not so as to override specific provisions. I am also aware that the Police bear the onus of proof in attempting to establish that the documents are exempt documents. I am conscious of various statements made from time to time by those on both sides of Parliament concerning the desirability of there being openness and accountability in government and by agencies. I have borne the above matters in mind, and have applied them, in coming to a decision in the present case.

3 I am also conscious of the fact that some care has to be taken by me in formulating the wording of this judgment so that details of the information sought are not revealed. I am aware that, should the result be in favour of Wells, I should not render any appeal process effectively useless by "letting the cat out of the bag" in my reasons. Similarly, should the result fall the other way, I should not descend into such detail as to give Wells the information which he seeks, whilst at the same time finding against him.

4 Mr Josh Wilson of counsel appeared on behalf of Wells. Mr Martin Grinberg of counsel appeared on behalf of the Police. Oral evidence was received from Inspector Maurice Lynn, an Inspector of Police who has the Region 5 (South East) Traffic Inspector portfolio. He adopted a previously provided written statement, expanded upon it, and was subject to cross-examination. A written statement of Mr Max Cameron, Principal Research Fellow at the Monash University Accident Research Centre, was, by consent, also placed in evidence. Some "spider graphs" for the period October/November 2003 - being earlier versions of the disputed documents - were also placed in evidence by Wells, these having apparently previously found their way into the public domain. Counsel on behalf of each party made very helpful and succinct submissions as to the law.

FACTUAL BACKGROUND AND THE DOCUMENTS IN DISPUTE

5 In making any findings of fact, I am doing so solely in relation to this application and in order to place it in context. Any material received was so received solely for the purposes of the freedom of information process. The following findings of fact are not intended to be determinative in any way of disputes concerning the accuracy or operation of speed cameras or of associated matters of policing. In setting out these matters of fact, I am relying upon the documentary material placed before me, but particularly upon the evidence of Inspector Lynn, whom I found to be a singularly impressive, knowledgeable and informative witness. I have absolutely no reason to doubt the accuracy of his evidence.

6 As one would expect, the reduction of what could be described generally as road trauma is an important objective of any government and of the Police. As one would also expect, and without now going into the details, the link between road trauma and the speed of vehicles is well established. Apart from the logical connection, studies have confirmed this. Increases in speed, particularly above a figure of 60 kilometres per hour, result in an exponential increase in the force of impact and hence of trauma. Basically, there are two types of motorists who speed. There are those who speed without taking a deliberate decision so to do - the speed of their vehicle creeps up or they go with the flow of traffic - and there are those who make a deliberate decision to drive at an excessive speed - drag racers, "hoons" and the like. There is also the need for, in sentencing terms, general and specific deterrents. Concepts of general deterrence are unlikely to have any effect upon the behaviour of those who make a conscious decision to speed. Indeed, specific deterrents may have little effect on some of those.

7 In relation to deterrence, experience has indicated that covert operations are more effective than overt operations. Even if this were not to be expected, a study undertaken in New Zealand would lead to this conclusion. If the driving public is under the apprehension that speed may be detected "anywhere, anytime" and a penalty imposed accordingly, this has a greater deterrent effect than if there is knowledge as to where, and particularly when, speed cameras will be operating. In relation to fixed cameras that are operating, for example, 24 hours per day, there is the concept of so-called "halo time". This essentially means that motorists, familiar with the fact that a camera is currently operating in a particular location, will slow down for a distance before they approach it, but then resume speeding after they have passed it. The documents the subject of the present dispute do not relate to fixed cameras, such as those on the Princes Highway between Melbourne and Geelong. They relate to the operation of portable speed cameras - those constituted by what appears to be a flash unit outside a parked vehicle, and with a device within it. These are operated by contractors, and not by members of the Police. It is important that the use of such speed cameras be organised efficiently. There is a limited number of speed camera hours available to be rostered. Whilst the sites of speed cameras within a particular locality are, or can be, public knowledge, the times of their operation are not.

8 It is an objective of the Police in their endeavours to reduce speed and hence the rate of road trauma to have the optimum use of portable speed cameras coincide with the times when most road trauma occurs in a particular locality. The periods of maximum trauma vary from area to area and, even within one designated area, may vary from time to time or seasonally. Various factors, such as local geography and sun glare or, for example, the ski season in Alpine areas, may bear upon the times at which the number of road trauma incidents increases or fluctuates.

9 In order to achieve this goal, statistics are gathered. These are converted into graphs called "spider graphs", presumably because of their resemblance to a spider's web. The basic grid upon which the data is imposed is circular, based upon a 24 hour clock. Upon this are plotted lines. One line, which is portrayed in red, relates to the number of incidents of road trauma occurring at particular hours of the day. It is based upon figures compiled over the previous five years, and is updated monthly, so that the shape of it, which could be described as a very rough circle bulging outwardly from the middle according to the number of traumas occurring at any particular time, might vary slightly from month to month and to a greater degree over a longer period of time. A five year period is considered to provide a proper statistical sample or base. Blue and grey (almost green) lines upon the graph indicate the hours of operation of speed cameras over what could be described as the current two monthly period. As I understand it, the blue line represents what is described as the submission for the current month and the grey refers to the submission of the preceding month. I should add that, in revealing these matters, I am not entering into the area of facts that should not be disclosed. As stated, spider graphs relating to October and November 2003 have been, by some means, made available to the public, and the method of recording the data has not altered. Graphs are prepared for the State of Victoria as a whole, and for a large number of local areas. For example, one can turn to the graph for Ballarat, or Baw Baw, or Macedon Ranges, for the month of May, 2005, and observe what was then the pattern of times in which road trauma occurs in that locality and the time-based pattern of deployment of speed cameras. Separate graphs are prepared for weekdays and weekends.

10 The objective is to have the blue line completely encircle the red, or trauma, line. If this is achieved, it means that the maximum deployment of speed cameras coincides with the times at which, in that particular locality and for the current month, road trauma is at its highest. This assists with general and specific deterrence. There is a direct link between trauma and speed. If motorists can be detected speeding during periods when the rate of trauma is high, and they are punished accordingly, there should be a general and specific deterrent effect upon those other than the tiny minority who make a conscious decision to speed. Putting this proposition in simple language, and as I understand it, if, for example, the statistical data reveals that, as a general rule or in a particular period, and between the hours of 4:00am and 7:00am, there is essentially no road trauma in Baw Baw, the deployment of speed cameras in that locality and between those hours can be minimal. The red line will be travelling very close to the centre, or zero point, of the circular graph and the blue line can be comfortably outside it with minimal use of cameras. If, however, the data reveals that, in the locality of Frankston, a considerable amount of trauma occurs between those very hours, a greater deployment of cameras will be required. The red line will bulge out from the centre, and greater camera use will be necessary in order for the blue line to be beyond it.

11 I accept that, in order to achieve the desired result, adjustments can be and are made on a regular basis. Indeed, whilst the spider graphs are prepared on a monthly basis, weekly intelligence is also gathered. Intelligence is also reported on a broader basis, so that, for example, large trauma figures at a particular time in one locality may be related to people driving home from another locality. This may be particularly so in situations where speed and trauma are also related to alcohol consumption.

12 Some of the above may sound complicated. However, I accept that the spider graphs, if released, would be readily decipherable by some members of the community. I accept the evidence of Inspector Lynn in this regard.

13 I also accept that the times of future deployment of the speed cameras are based, at least to some extent, upon the historical data assembled and as represented in the spider graphs. In other words, if, at a particular time of the day and in a particular locality, the red line is bulging well beyond the blue line, remedial steps may well be taken. Deployment of speed cameras may be concentrated during those hours in an attempt to bring the red line within the blue line. In other words, past events are examined, and then used as the basis for future action.

14 I have gone into the factual background at some length, because, whilst the overall concepts of the link between speed and road trauma may be simple, the actual documents which are the subject of this application, and which are related to the overall policy adopted by the Police, are not easy to describe and their role is more complicated than may be at first apparent.

15 Having dealt with the factual background and the documents in dispute, I now turn to a summary of the submissions advanced on behalf of the parties. Because of the onus which is borne by the Police, I shall turn firstly to the case put by Mr Grinberg.

16 The submissions advanced by Mr Grinberg on behalf of the Police could be summarised as follows. At the outset, he made it clear that no reliance would be placed upon any exemption pursuant to s.31(1)(a) of the Act. That is understandable. The Police would have been facing a difficult task in that regard. Before turning to the actual summary, it should also be said that counsel agreed that this was not a situation where s.25 of the Act has any application. There is no scope for deletions. It is an "all or nothing" situation, and the documents shall either be released in their entirety or they shall not. Furthermore, no point is taken as to the possible public awareness of the 2003 spider graphs as in some way weakening the position of the Police or suggesting that the exemption had been totally or partially waived.

17 Returning to Mr Grinberg's submissions, reliance is placed upon exemption pursuant to s.31(1)(d). Disclosure of the documents would in turn disclose methods or procedures for preventing, detecting, investigating, and otherwise dealing with breaches of the law and would be reasonably likely to prejudice the effectiveness of those methods or procedures. The best use of the cameras is achieved when their usage is linked to the times at which most traumas occur. The whole program is at its most effective when it is covert. If the spider graphs are released, it essentially means that the probable times of operation of the speed cameras are released. The program becomes overt and its effect is lessened, and thus prejudiced.

18 The "public interest override" contained in s.50(4) of the Act should not be invoked. Reference is made to the principles set out in Osland v Department of Justice [2005] VCAT 1648, being a decision of the President, Morris J. Reference is also made to another decision of the President, namely Mulder v Victoria Police [2006] VCAT 622, being a decision which also related to the operation of speed cameras. Morris J concluded in that case that the public interest did not require that access be granted to documents relating to the operation of speed cameras. Similarly, in the present situation, the public interest does not require or demand that access be given to the documents. In summary, the application should be dismissed.

19 The submissions advanced by Mr Wilson on behalf of Wells could be summarised as follows.

20 The documents to which access is sought are based upon data collected over a number of years in relation to driver speed. They relate to matters past and not matters future. Whilst Wells or those instructing him have not seen the documents, there is no reason to suspect that they provide information concerning any specific driver or any specific investigation (a presumption which, without revealing any otherwise confidential information, I can confirm as being correct).

21 The spider graphs contain information of an historical nature. They are but one of a number of tools employed as part of the program of the Police. The Police also rely upon weekly intelligence reports, and the selection of appropriate geographical locations for the cameras. The spider graphs simply enable the police to view historical patterns. They do not reveal what steps will be taken in the future or when cameras will be used. Such prospective information could be obtained from the rosters or from the weekly sheets, but not from the spider graphs. The spider graphs are scientific pieces of work containing basically no words, or prose as we know it. They do not disclose methods or procedures. Clearly if what was being sought was the disclosure of the actual rosters showing camera times for the next six months, the situation would be different. However, these documents are already almost a year old, and relate to statistics gathered over a five year period prior to that.

22 There is no reasonable likelihood that the documents will reveal methods or procedures for the preventing, detecting and the like of breaches of the law, or that their disclosure would be reasonably likely to prejudice the effectiveness of those methods or procedures. In the present case, the requested documents do neither of these things. They represent, in effect, the result of a survey. They do not address methods or procedures. They do not contain instructions or protocols. They contain no more than results previously obtained. The exemption contained in s.31(1)(d) does not apply.

23 In relation to the public interest override, the Tribunal must perform a juggling act. The public interest is in fact served by the release of documents which relate to the proper and efficient use of speed detection devices. The public has a very real interest in knowing that speed detection cameras are being used in the most effective and efficient way, so that speed is brought down and road trauma reduced. Disclosure will give the public a better understanding of this, and of the methods which the Police are adopting to combat the issue of speed.

24 Firstly, whilst in the circumstances it is little more than a formality, I find that the decision of the Police of 9th March 2005, insofar as it relies upon s.31(1)(a) of the Act, is erroneous. The burden has not been discharged. That particular ground of exemption has not been established.

25 In relation to the exemption claimed pursuant to s.31(1)(d), I find that this ground has been made out. I have already expressed my opinion of Inspector Lynn as a witness, and I accept his evidence. There is no denying the submission of Mr Wilson that the spider graphs are a representation based upon historical data in the sense of events of the last five years. However, it is upon the basis of this data that the Police, at least in part, determine the future deployment of speed cameras. I accept the evidence of Inspector Lynn that there are at least some in the community who, if the documents were released, could interpret them. This would give to such persons the capacity to make reasonably informed predictions as to the times at which speed cameras would be operating in a particular locality. I accept, and it was not challenged, that the actual location of the possible sites of the cameras is not kept confidential. A sufficiently interested party can obtain a list of such sites. However, what is not accessible information is the times at which the portable cameras will in fact be operating at any particular site. Release of information enabling persons to make informed predictions as to the times at which cameras may be operating at the particular sites in a given locality has the potential to undermine the covert nature of the speed camera program.

26 On the basis of the evidence and material placed before me, I accept that there is a well established link between speed and road trauma. I accept that, probably as one would expect, aspects of general and specific deterrence apply, and that in this regard a covert operation is more effective than an overt one. I accept that the impression created that speed cameras may be operating at any time, and that motorists can never be confident as to when that time is, has a beneficial effect in reducing speed and hence in reducing road trauma. The linking of the optimum use of cameras to the times when trauma is otherwise at its highest seems logical, and, in any event, it is the method which the Police have adopted in attempting to curtail speed.

27 If the above is correct, and the release of the documents will lead to at least some motorists being able to predict more confidently when cameras will be operating, it seems to me to be almost inevitable that the requirements of s.31(1)(d) have been satisfied. The use of the spider graphs is a method or procedure. It is used for preventing, detecting, investigating, or dealing with matters arising out of breaches or evasions of the law. Indeed, depending upon how one viewed the use and purpose of the data, it could be said to fall within each of the terms - preventing, etc. - used. Further, on the basis of the evidence which I accept, the disclosure of such method or procedure would be reasonably likely to prejudice its effectiveness. The evidence concerning the desirability of carrying out a covert operation is particularly relevant in this regard. It is an approach which has been adopted by the Police in a considered fashion. There is nothing before me to suggest that, in the battle to reduce road trauma, a covert program in relation to the use, and the timing of the use, of speed cameras has been adopted for the sake of being "sneaky" or in order to raise revenue. Indeed, I was and am impressed by the material supporting the covert use of cameras, and by Inspector Lynn's obvious sincerity and enthusiasm, both in relation to this and in relation to the operation generally. I accept that it is an operation which has been determined by the Police, upon the basis of a legitimate belief, to be likely to be more effective if carried out in a covert fashion. I accept that the disclosure of the spider graphs would be reasonably likely to prejudice such effectiveness for the reasons set out above.

28 The fact that other tools, such as weekly or overall intelligence reports, may also be used as part of the decision-making process in relation to the timing of camera use does not seem to me to be to the point. Variables may occur as a result of using these. However, the spider graphs are also used. Indeed, on the basis of the evidence placed before me, I am of the view that the spider graphs, representing as they do the results of the accumulation of a large amount of data, are a tool of some significance in the decision-making process. Records of past experience are used to help to determine future action.

29 Accordingly, I am of the view that the documents are exempt pursuant to s.31(1)(d). I now turn to a consideration of s.50(4).

30 In relation to s.50(4) of the Act, I am not of the opinion that the public interest requires that access to the documents should be granted. Doubtless there are many members of the public interested in finding out when speed cameras will be operating in particular localities. That, however, is not the test. As was said by the Full Court of the Supreme Court of Victoria in DPP v Smith [1991] VicRp 6; [1991] 1 VR 63:-

"... it is necessary to distinguish between "what is in the public interest and what is of interest to know" ... [There is a] distinction between the public interest and a matter of public interest. The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the wellbeing of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals ..."

31 As was stated by the Court of Appeal in Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, in each case, the Tribunal must determine whether considerations of the public interest are so strong as to outweigh, or override, those factors by which the documents are exempt documents. The override cannot be invoked simply because the Tribunal holds the opinion that it is in the public interest that the exempt document be released. Rather, the question is whether the public interest requires the release of the document - that is, demands or necessitates disclosure. As was put in submissions, these propositions were more recently expounded by Morris J in O_sland_.

32 It seems to me that, in the present case, rather than the public interest requiring or necessitating access to the documents, in fact the public interest is better served by the documents remaining exempt. The reduction of the road trauma rate is in the public interest. The interest or curiosity of individuals as to when speed cameras may be operating is more likely to be detrimental to the public interest in the true sense. It seems to me that, to employ the terminology used in DPP v Smith, the good order of society and the wellbeing of its members are better served if access is not granted. The factors favouring the proposition that the documents remain exempt outweigh those favouring disclosure.

33 In summary, the documents are exempt documents, and I am far from persuaded that the public interest requires that access be granted to them. Indeed, I am of the contrary view.

34 The application is dismissed. The decision of 9th March 2006 is affirmed. The question of any ancillary orders that may be required is reserved, as is liberty to apply.