[2005] VCAT 2516

1 The decision of the respondents in relation to Documents 1, 2, 3, 4, 5, 7, 8 and 11-19 inclusive is affirmed.

2 The decision of Victoria Police not to provide the applicant with a copy of Document 10, the CD-ROM, is set aside and the Victoria Police is directed to provide the applicant at the expiration of 28 days from today with a copy of the CD-ROM.

Ms S McNicol of counsel instructed by Mallesons Stephen Jaques

1 Mr Williams' son Corey was involved in a schoolyard fight. Corey sustained some injuries, and it is said he has been left with a permanent scar on his chin as a result. He has received an award of assistance under the Victims of Crime Assistance Act 1996. The fight seems to have been part of a wider dispute between Corey and the other boy involved. As it happens, the schoolyard fight, or part of it, was captured on mobile telephone camera footage taken by another boy.

2 The school investigated the matter. The school's inquiries led to the preparation of a number of reports in the nature of Incident and Notification Reports and to the gathering of a number of handwritten statements from other students and a teacher. As it happens, the school also confiscated the mobile telephone with the camera footage and handed the 'phone to the police. Both students were suspended following the incident.

3 The police investigated the matter. It received from the school the material referred to above, including the mobile 'phone which it received some days later than the written material. The police generated a LEAP Incident Report, cautioned the other student and copied the camera footage on to a CD, before returning the 'phone to its owner.

4 Mr Williams made a request to Victoria Police for access to the documents in its possession. The Police assessed 54 pages of material comprising a LEAP report, statements, a medical report, incident reports, an ESD investigation file and a CD-ROM containing mobile telephone camera footage (referred to earlier).

5 Full access was granted to 30 pages, part to a further 10 pages and full access was denied to the remaining pages and the CD-ROM.

6 On internal review, the decision was made to permit Mr Williams to attend a supervised viewing of the CD-ROM on police premises. Mr Williams has viewed the CD-ROM. As I understand it, his wife and Corey's psychologist have viewed the CD-ROM and Corey himself has had the opportunity to do so.

7 As it happens, Mr Williams also made an application to the Department of Education and Training for documents and was granted access to them in part. Personal information about persons other than Corey had been deleted from documents such as the school's Incident Report. He was denied access to all the student statements. Mr Williams did not seek review of the Department's decision.

8 On 7 June 2005, Mr Williams applied to this Tribunal for review of the decision made by Victoria Police, stating :

I need all documents and a copy of the DVD to persue (sic) this matter further.

9 As part of the review process, when an agency has made a decision refusing access under s 33 of the Freedom of Information Act 1982 (the Act), those whose personal information is sought must be notified, if practicable, of the application for review, and informed of their right to intervene in the proceeding.[1]

10 In the circumstances, the Principal of the school was notified and the Department applied to and was joined as a party to the proceeding.

11 The hearing took place on 23 November 2005. Mr Williams represented himself. Mr Gipp of counsel represented Victoria Police and Dr McNicol of counsel, the Department. Witnesses were called, gave oral evidence or adopted their witness statements and were cross-examined. The parties made submissions.

12 The documents now in dispute are the following :

1. LEAP Incident Report. The document has been released except for the names and individual identifying details about those individuals other than Corey. This is a document generated by the Police.

2. Incident Report prepared by the school with the names of students other than Corey and summaries of their accounts of events deleted.

3. Student Injury/Incident Assessment prepared by the school. All but the name of an individual has been released.

4. Incident Notification Form prepared by the school. All but student witness names has been released.

5. Ethical Standards Department - Final Report. This is a report prepared by Victoria Police following a complaint Mr Williams made about how police had handled the investigation. The complaint was found to be unfounded. The report has been released except for the name of the other student involved.

7. A Cautioning Notice issued by Victoria Police in respect of the other student involved. No part is released.

8. An Incident Report prepared by a class teacher. Whilst Victoria Police had released no part of it, the Department had already released it with the names of students other than Corey deleted.

10. A CD-ROM containing mobile telephone camera footage of the schoolyard incident. The CD-ROM is held by Police.

11-19

These documents are handwritten accounts of events on the day concerned made by other students. These documents emanate from the school.

13 The respondents claim that the documents are exempt from release. The Victoria Police claim they are exempt under s 33 of the Act. The Department, in respect of documents that originated in the school, claims they are exempt from release under s 33 and s 35(1)(b) of the Act.

14 Dr McNicol made submissions in the hearing about the law relating to the application of ss 33 and 35(1)(b) and Mr Gipp endorsed those submissions. Dr McNicol also handed up very comprehensive written submissions on the principles that apply to considerations of whether documents are exempt from release under those sections.

15 Turning to the documents that came from the Department. First, whilst a number of the documents may have emanated from the Department, they are still amenable to a request to Victoria Police for access under the Act. This is so because a request has been made to Victoria Police, which is an agency and which has those documents in its possession.[2]

16 The documents fall into several groups and it is convenient to consider them in those groups.

17 These documents emanate from the school and from Victoria Police. They comprise Incident Reports, a LEAP report and an ESD report. They have been released except for the names of students other than Corey. A s 33 exemption is claimed for all these documents.

18 Are they exempt from release under s 33 of the Act?

19 Section 33 relates to documents affecting personal privacy. Section 33(1) states :

(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).

20 Section 33(9), referring to s 33 states :

"information relating to the personal affairs of any person" includes information -

(a) that identifies any person or discloses their address or location; or

(b) from which any person's identity, address or location can reasonably be determined.

21 As I said, Dr McNicol provided written submissions which set out the matters required to be considered to establish that exemption. There is no need to set them out in full. They canvass the two elements that must be made out for a document to be exempt from release under s33. Those elements are whether disclosure would involve the disclosure of "information relating to the personal affairs of any person" and whether such disclosure would be "unreasonable".

22 The information withheld in documents 1, 3, 4, 5 and 8 are the names of students other than Corey and one teacher. Are names of persons information relating to the personal affairs of a person? The following part of Dr McNicol's submissions is particularly relevant:

Further, section 33(9) of the Act provides that the expression "information relating to the personal affairs of any person" includes 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. In Re Page and Metropolitan Transit Authority (1988) 2 VAR 243 at 245-6, it was held that the names and addresses of witnesses to an incident were information relating to those persons' personal affairs (although the exemption under section 33 was not ultimately upheld in those circumstances). In Re Akers and Victoria Police (No 1) [2003] VCAT 397, the names, addresses and telephone numbers of individuals that were obtained in relation to an incident were similarly considered to be "information relating to personal affairs". In the circumstances of that case, disclosure was considered to be unreasonable.

23 I agree that those submissions set out the principles to be applied in considering this part of the exemption claimed. Clearly, one's name is personal information in that it is information which identifies persons. I am satisfied that the names that have not been released in the documents, are personal information for the purposes of s 33.

24 The Department and Victoria Police then contended that the release of all the personal information in the material is unreasonable.

25 Dr McNicol's submissions on the principles to apply when considering whether release is unreasonable were as follows :

In essence, the test of "unreasonableness" involves the balancing of two competing public interests. The balance is between the public interest in protecting an individual's right to privacy on the one hand, and the public interest in disclosure of the information on the other.

When carrying out this balancing exercise, the Tribunal must have regard to all the surrounding circumstances, bearing in mind that the purpose of the section is to prevent the unreasonable invasion of the privacy of third parties, and that disclosure under the Act is disclosure not just to the applicant but to the "world at large": Re Page and Metropolitan Transit Authority (1988) 2 VAR 243 at 245-246.

The main factors to be taken into account in this balancing exercise are as follows :

(a)

whether disclosure would or would be reasonably likely to endanger the life or physical safety of any person: section 33(2A)of the Act;

(b)

the nature of the information, how it was obtained and its availability to the public;

(c)

the identity and attitude of the persons whose privacy may be affected by disclosure;

(d)

the identity and motives of the Applicant; and

(e)

whether the information has any current relevance.

The decision in Re Akers and Victoria Police (No 1) [2003] VCAT 397 considered many of the above main factors. In the circumstances of that case, the Tribunal accepted evidence that information ordinarily provided to the police is with the expectation that identities would not be disclosed and information would only be released to the extent necessary to conduct the investigation and to the extent required by the Courts which deal with criminal charges that result from the investigation. In those circumstances, and with no useful purpose of release, disclosure was considered unreasonable.

A further factor is whether there is a risk that the applicant would inappropriately pursue third parties and cause them needless stress: Re White and Pyrenees Shire Council [2001] VCAT 2043 at [28]; Re O'Sullivan at [32]. For instance, disclosure is more likely to be unreasonable if the applicant's reason for seeking access is out of some particular personal crusade or for the purpose of embarrassing or otherwise harming third persons concerned: Re Gunawan and Department of Education (unreported, VCAT, Davis SM, 15 December 1998).

Given that disclosure under the Act is disclosure to the "world at large", it may be unreasonable to disclose information that is already known to the applicant: Re Thomas and Department of Natural Resources & Environment [2002] VCAT 533 at [18]; Re Knight and CORE (unreported, VCAT, Steele SM, 20 December 2002) at [29]-[30].

The reasonableness of disclosure must also be considered in light of the applicant's purpose, whether that purpose is legitimate and, if so, whether that purpose would be achieved: Re Akers and Victoria Police (No 1) [2003] VCAT 397.

26 The Respondents submitted that in considering whether release of deleted names would be unreasonable, the following matters were relevant :

•

students had been assured their names would not be mentioned

•

there would be real problems in the future for the school in any such inquiry if the identities became known (free flow of information)

•

Mr Williams' motives for seeking the information

•

Mr Williams' behaviour

•

the attitude of persons whose privacy may be affected by disclosure

•

disclosure would be disclosure to the world

27 In support of these contentions, the respondents relied on the evidence of Mr Rowley-Bates, the teacher who conducted the inquiry into the incidents, the evidence of Mr Blaikie the Assistant Principal who was also involved, the evidence of Mr Williams himself and information from the school Principal. Both Mr Blaikie and Mr Rowley-Bates had prepared witness statements which they adopted as their evidence in the hearing. Mr Williams cross-examined them and gave oral evidence himself.

28 Any challenge to the evidence of Mr Blaikie or Mr Rowley-Bates by Mr Williams was addressed to matters that had no impact on whether the documents were exempt or not, or the status of the documents. Mr Williams' questioning of those witnesses was concerned with matters such as the time taken to locate the mobile 'phone or when the school contacted the police. The witnesses' evidence about matters pertinent to the circumstances the information was gathered and how it was treated was unchallenged and I accepted their evidence.

29 Mr Blaikie's evidence was that it is normal practice in circumstances such as this incident, students are promised confidentiality. This confidentiality comprehends not just their names, but what they have to say or write in a statement. Mr Blaikie gave evidence that the school's co-operation with police is based on the understanding that police would use information provided by the school discreetly and not disclose the students' identities or release their statements. He gave the following evidence about why he thought the information should not be disclosed -

--- I strongly believe that the identities of students and the information provided by them should not be disclosed. I believe this because :

(a) Mr Rowley-Bates expressly promised each student at the beginning of each interview that the information he or she provided would be held in confidence and used only for the College's purpose of deciding what happened and how the incident should be handled. The College's processes further support the anonymity of students by interviewing students separately and ensuring that there are a range of students spoken to; and

(b) if the students' information is disclosed, the College's information network to manage and keep the College safe would be severely compromised. This would have a devastating effect on the College's information network because :

(i) disclosure would compromise the relationship of trust between students and teachers at the College; and

(ii) without confidence that any information they provide will not be disclosed and their anonymity will be protected, students will no longer feel comfortable willingly providing information about incidents. I believe students would not provide information about incidents because they would be fearful of being shut out by their fellow students and bullied as someone who is seen to support authority. The students would also be fearful of consequences of being involved in processes external to the College that might follow an incident.

(c) without information from students, the College would find it very difficult to determine what happened in any particular incident involving students and therefore would be unable to determine the most appropriate measures to deal with these incidents; and

(d) without effective handling of incidents such as these, the ongoing learning environment of the students and the safety of students would be further compromised.

I also strongly believe that statements of students should not be released, even if their names are removed, as there is a real concern that a student's identity may be known from the content of the document (eg, the individual's hand-writing or manner of expression). Therefore, there is again the concern that students may face adverse consequences for participating in an investigation. This would further jeopardise the willingness of students to participate in future investigations which would have the consequences I discuss in paragraph 30.

I also strongly believe that the identity of the student witnesses should be protected as James Williams has behaved in an aggressive and threatening manner to me and my staff. I am concerned that he may approach any student identified who did not agree with his interpretation of the incident and behave in a similarly aggressive and threatening manner. I am concerned that he would be verbally and physically threatening.

30 Mr Rowley-Bates' evidence supported Mr Blaikie's evidence. Further, he gave the following evidence:

I spoke to each student separately about the incident. Students are generally reluctant to discuss incidents with me and so I assured each student individually that his or her name would not be mentioned. Once I had spoken briefly to each student, I asked him or her to write down everything that he or she saw. ...

As I mentioned above, at the beginning of every interview I assured each student that their name would not be mentioned in the investigation. It was this assurance that made the students willing to write down what they had seen. If the students' statements are disclosed and their identities become known, I (or any other teacher) would not be able to provide a similar assurance and students would not give information. I would face a real problem of getting any information at all from any students because of their fears of pay back for talking to teachers.

This would make it very difficult to take action following any incident. That is, in managing the incident, Hugh Blaikie and I relied heavily upon the statements of students in this situation (as we often have to) to obtain a picture of what happened. Without the cooperation of students in writing the statements of what they saw happen, Hugh Blaikie and I would not have been able to identify what happened. It is from the various statements provided by students that we piece together a complete picture of the incident. Such a situation is to be expected; it is not practical that teachers will be present for all incidents that require management in the College (a school with 1050 students and approximately 75 teachers). It is important therefore that many students are willing to discuss what they saw.

If the College is unable to take informed action following an incident, the well-being of students would be compromised and parents would be very dissatisfied with the College.

I am also concerned for the well-being of the specific students that would be identified if the documents and video footage are released. I think it possible that James Williams would contact particular students about their statements or presence at the incident. I am concerned that the students would be frightened and intimidated if James Williams were to approach the students.

31 The Principal provided information that she had made inquiries of parents, staff and the students affected who are still members of the school community. As a result of her inquiries, she believes they do not wish their personal affairs revealed and wish all their details to remain confidential. She is concerned release will inflame the situation again. She says Mr Williams has behaved in an aggressive manner in the past and has actively tried to involve students in the matter on previous occasions.

32 Returning to Mr Williams and his evidence. His motives and behaviour are relevant considerations when considering whether disclosure is unreasonable. Concerns have been expressed about his behaviour by the Principal, Mr Blaikie and Mr Rowley-Bates. Mr Williams did not challenge that evidence in cross-examination. However, the issue arose squarely later in the proceeding. Mr Williams protested that he was no threat. When letters he had written and his behaviour as reported by the school nurse on the day were put to him, he did not deny those matters but sought to excuse his behaviour by explaining he was upset about his son. His behaviour on the day was clearly threatening. His correspondence is sarcastic in the extreme and the manner in which he conducted himself in the hearing was confrontational and belligerent. I accept the evidence of the witnesses that because of Mr Williams' behaviour they would be concerned if the information was released.

33 What are Mr Williams' reasons for seeking the material? He claims he needs this material because of his desire to pursue matters elsewhere. He claims there is a cover-up by police and by the school. He asserted he was entitled to the information because his son had been assaulted. He wants to take civil action and asserts he is entitled to the information for court action.

34 Weighing Mr Williams' interests with the interest and concerns of others, I am satisfied that the balance clearly falls in favour of the non-disclosure of the student names deleted, for the following reasons.

35 Mr Williams' claims of a cover-up by police were not supported by the outcome of his complaint to ESD which found his complaints about the investigation were unfounded. So far as his claims of a cover-up by the school were concerned, they were not supported by any evidence, but seemed to be based upon Mr Williams' own views about how he perceived the school handled the inquiry.

36 On the other hand, where in these circumstances the school has assured students their names will not be mentioned that is an important factor to consider and which favours non-disclosure. Also I accept the evidence that release of their names would compromise the relationship of trust between the students and the school, which is an important relationship to maintain in any school. Without it, situations such as this, might be less likely to be dealt with effectively.

37 Further, where Mr Williams' past behaviour has been a concern, release of student names is, in my view, even less appropriate, especially when we are concerned with the personal information of children. Balancing all of those matters I am satisfied that release of their names would be unreasonable and I am satisfied that the exemption claimed under s33 is made out in relation to these documents.

38 Document 2 is a document created by Mr Rowley-Bates. It is a document that summarises various accounts of the incident as he understood the students had given. Only those parts which summarise the information Corey gave have been released.

39 Documents 11-19 are "statements" provided to Mr Rowley-Bates by a number of students. After he had spoken briefly to each student, he had asked him or her to write down everything that he or she saw.

40 The respondents claim these documents are exempt from release under s 35 and s 33 of the Act.

41 I have already referred to the principles applicable to s 33 and am satisfied here that so far as any personal information in the documents is concerned, for the same reasons referred to earlier, that information is exempt from release.

42 Mr Rowley-Bates gave evidence about the summary and the statements. Particularly about the statements he said the following :

I also believe that releasing the information provided by students' without their names and hand-writing could still reveal particular students' identities. For instance, some students have particularly weak English and are known for the limited vocabulary with which they write. Other students' accounts that appear generic may include information or expression that other students would recognise and link to a particular student. For this reason, I think release of the documents even in that form, would lead to the consequences to students and parents alike that I have already discussed above.

43 That evidence was unchallenged and I accept it. Having viewed the statements, it is obvious, as Mr Rowley-Bates says that their release might identify individuals even if their content were transcribed. In that circumstance, I am satisfied that it is information relating to the personal affairs of a person, as the identity of a person could reasonably be determined from it, and would be exempt under s 33 of the Act.

44 Even though I am satisfied s 33 is made out, the respondents still rely on s 35 of the Act.

45 Section 35(1)(b) states :

35. Documents containing material obtained in confidence

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

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

46 Dr McNicol referred to her written submissions about the principles applicable to claiming documents are exempt under s 35(1)(b). There is no need to reproduce them in full here. It is well accepted that :

A document is exempt under section 35(1)(b) of the Act if the following two conditions are satisfied :

(a) first, disclosure of the document would divulge information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister; and

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

47 The evidence of Mr Rowley-Bates, which was unchallenged and which I accepted, is quite clear that the statements and the information were communicated by the students in confidence. I accept that they were all expressly assured their name would not be mentioned and it was that assurance that made the students willing to write down what they saw.

48 To fulfil the requirement under s 35(1)(b) that the information be communicated in confidence, it is not necessary that the document expressly state it was given in confidence; it is enough that it can be inferred from the context. The context here is, information given as part of a school's inquiry into an incident, in circumstances where assurances about how the information would be treated were given to those providing the information[3].

49 Such information does not lose that confidentiality when it is passed on to others involved in an investigation, such as here where the documents were passed to Victoria Police.[4]

50 I am satisfied the information in the summary and the statements has been given in confidence. The first limb of the exemption claimed under s 35(1)(b) has been made out with respect to these documents.

51 Not only does s 35(1) require the information to be communicated in confidence, I also have to be satisfied its disclosure would be contrary to the public interest by reason that disclosure would be reasonably likely to impair the ability of an agency to obtain similar information in the future.

52 Mr Blaikie and Mr Rowley-Bates gave evidence which I accepted about the effect release would have on the school's ability to obtain such information in the future and the importance of a school being able to obtain it in the future. That evidence is set out in paragraphs 29 and 30.

53 I am satisfied that release would be unreasonable in that it would impair the ability of an agency to obtain such information in the future and that it is important for the proper functioning of a school that they conduct such inquiries in an appropriate and confidential manner and so, the second limb of s 35(1)(b) is satisfied.

54 I agree with the observations of Megay SM in Baker's case, and the importance of maintaining the free flow of information in the context of children's welfare. It would be of concern were the school's investigative processes undermined by release of the information.

55 The information in Documents 2 and 9 to 17 (inclusive) is exempt from release under s 35(1)(b) of the Act. Whilst I am satisfied that they are exempt under that section of the Act, that is not the end of the matter. An exemption under that section, unlike an exemption under s33, is subject to what is referred to as "the public interest override" in S50(4) of the Act. However, for that section to apply, it is clear that the public interest must demand or necessitate release and that it is not sufficient that release will satisfy personal grievances or curiosity as appears to be the case here. I am not satisfied that there is anything before me to indicate that release would benefit the wider community or be of "wider social significance". The mere fact that there has been an article in a newspaper is not sufficient to demonstrate a public interest.[5]

56 This is the caution notice issued by the Police to the other student involved.

57 Mr Gipp submitted that any part of the information would identify the other student and it was personal information and exempt from release under s 33 of the Act. Further, he submitted that it was not practicable to release it in part. That would make it meaningless and the only release would then be the release of a blank form.

58 Senior Constable Williams gave evidence about the caution notice. I accepted his unchallenged evidence about the notice itself. It is clear that it contains personal information about the other boy. I am also satisfied that by its very nature its disclosure would be unreasonable. It is a police caution issued to a young individual and is not in the public arena. Whilst Mr Williams did not give any particular reason why he wanted this document, even though I understand he might not believe a caution is appropriate, in finding its release is unreasonable, I also take account of the concerns mentioned earlier about his behaviour. I am therefore satisfied it is exempt from release under s 33 of the Act.

59 The schoolyard fight, or part of it, was captured on mobile video phone. According to Mr Blaikie and Mr Rowley-Bates that 'phone had been confiscated from a student. Apparently, the student who captured the fight on the 'phone was not the owner of the 'phone. The school handed the 'phone to police who downloaded the images.

60 Senior Constable Williams gave evidence that the police downloaded the images on to a CD-ROM. He then returned the 'phone to its owner and instructed the owner to remove the images. He understood the images were deleted but was not sure if they actually were. Corey gave evidence that he has been told they are "still going around" and he does not see why he should not have a copy in those circumstances.

61 The Victoria Police claim the CD-ROM is exempt from release under s 33 of the Act.

62 As part of the review process, Superintendent Fisk determined to allow for a supervised viewing of the CD-ROM. In his statement he sets out his reasons -

In my reasons for my determination to allow for a supervised viewing of the CD-ROM I informed the applicant that I took into consideration that :

(a) an unfettered release of a document under FOI is regarded as released to the world at large;

(b) such an unfettered release would, in my view, constitute a disclosure of the personal affairs of young persons, in this case, junior students at a secondary college.

I further informed the applicant that I was allowing him to view the CD-ROM in a controlled setting so that he could consider his legal options without compromising the privacy of any person contained on the CD-ROM. I also informed him that should the CD-ROM be required in any court proceeding, it could be subpoenaed in the normal course, and that the subpoena of the document did not constitute its disclosure or release to the world at large.

It is my view that the decision that I made under review in respect to the CD-ROM was appropriate and practical in terms of accommodating the applicant's request and resolving the matter from the respondent's perspective (and endeavouring to avoid litigation and the costs associated with it) while at the same time preserving the personal affairs of young persons. I do not consider that the viewing of the CD-ROM in a controlled setting on the respondent's premises amounts to a disclosure of the CR-ROM to the world at large, which in the current internet age, must be a significant consideration.

63 Mr Williams, as I have already said, has viewed the CD-ROM. He seeks release of the CD-ROM itself.

64 Under s 13 of the Act, subject to the Act, every person has a legal enforceable right to obtain access in accordance with the Act.

65 Mr Williams has already been granted access to the CD-ROM in that he has had a reasonable opportunity to inspect the document in accordance with s23 of the Act. In my view, in these circumstances, it is no longer relevant that it might have been an exempt document under s 33 of the Act.

66 Section 23 of the Act concerns Forms of Access. The relevant sub-sections are the following :

(1) Access to a document may be given to a person in one or more of the following forms -

(a) a reasonable opportunity to inspect the document;

(b) provision by the agency or Minister of a copy of the document;

(c) in the case of a document that is an article or thing from which sounds or visual images are capable of being reproduced, the making of arrangements for the person to hear or view those sounds or visual images; or

(d) in the case of a document by which words are recorded in a manner in which they are capable of being reproduced in the form of sound or in which words are contained in the form of shorthand writing or in codified form, provision by the agency or Minister of a written transcript of the words recorded or contained in the document; or

(e) in the case of a document containing health information relating to the person, by a way referred to in section 28(1), (2) or (3) of the Health Records Act 2001 in the manner provided in section 29(1) of that Act.

(2) Subject to this section and to sections 19 and 25, where the applicant has requested access in a particular form, access shall be given in that form.

(3) If the form of access requested by the applicant -

(a) would interfere unreasonably with the operations of the agency, or the performance by the Minister of his functions, as the case may be;

(b) would be detrimental to the preservation of the document or having regard to the physical nature of the document, would not be appropriate; or

(c) would involve an infringement of copyright subsisting in a person other than the State, or, in the case of an application to a council, other than the council -

access in that form may be refused and access given in another form.

67 Where access has already been given in a particular form, s 23(2) of the Act provides that where it has been requested in a particular form, access shall be given in that form. It is clear from his request that Mr Williams since becoming aware of the CD-ROM has sought a copy of it.

68 Section 23(3) sets out the circumstances where access in the form requested by an applicant may be refused. The respondents relied on s 23(3)(a) and there was no suggestion that either s19 or s25 were relevant, such that s23(2) applied.

69 Dr McNicol, proceeding on the basis that the 'phone on which the images were taken had originated from the school, sought to contend that s 23(3)(a) applied and that release would interfere unreasonably with the operations of the school and its co-operation with the police. She relied on the evidence given by Mr Blaikie and Mr Rowley-Bates about the school investigative processes being undermined.

70 Even were I to accept that the document was ever a document of the Department, the evidence of those witnesses was that the school confiscated the 'phone. In those circumstances, it is difficult to see how release would undermine the school's investigative processes. The circumstances the school obtained the 'phone are quite different from receiving confidential information and statements from students. In the latter case, one might consider that the students have provided the information voluntarily. A confiscation by its nature is involuntary.

71 Mr Gipp submitted that the supervised access provided did not constitute an unfettered disclosure to the world at large. Whilst that may be the case, where access has been granted, access in the particular form requested can only be refused under s 23(3)(a) where the form requested would interfere unreasonably with the operations of the agency. There was no evidence before me to show that it would.

72 In those circumstances, the CD-ROM should be released to the applicant in the form requested.

[1] Section 53A Freedom of Information Act 1982 (the Act). Notification of reviews regarding documents affecting personal privacy.

[2] See s 13 of the Act Right of Access and s 5 which defines "document of an agency" or "document of the agency" to mean a document in the possession of an agency or in the possession of the agency concerned as the case requires, whether created in the agency or received in the agency.

[3] Ryder v Booth [1985] VicRp 86; [1985] VR 869; Re Thwaites v Department of Health and Community Services (1995) 8 VAR 361; Re Hoskin v Department of Education and Training [2003] VCAT 946; Re Baker v Department of Education and Training [2005] VCAT 2263[]

4 Hoskin's case and Re Gunawan and Department of Education (unreported) VCAT, Davis SM, 15 December 1998

[5] See Re Just and Department of Justice (1996) 10 VAR 126; Re O'Sullivan and Health and Community Services (1995) 8 VAR 449; Re Roy Morgan Research Centre Pty Ltd and State Revenue Office (unreported), VCAT, Coghlan DP, 17 June 1999; Ambikapathy and Victoria Legal Aid (unreported), VCAT, Macnamara DP, 27 August 1999; Re Moloney and Department of Human Services (2001) 18 VAR 238; Re O'Sullivan and the Department of Employment Education & Training (unreported), VCAT, Megay SM, 1 November 2002.