Recordings of phone conversations between Mr Zeqaj and OPI Staff

1. Determined by Mr Carroll to be exempt pursuant to Section 51 of the PI Act.

Copy of OPI procedures in relation to complaints made by Mr Zeqaj about OPI staff

1. Released in full, except for removal of the name of an OPI staff member.
2. No objection made in the request for internal review to the decision in relation to the document (but subsequently released in full).

Neil Mac Donald's notes of conversations with Mr Zeqaj

1. Determined by Mr Carroll to be exempt pursuant to Section 51 of the PI Act.

1. Determined by Mr Carroll to be exempt pursuant to Section 51 of the PI Act.

2. In further summary, the only matters subject to this review are:
   • The names of OPI officers responsible for drafting of the relevant policies and guidelines in review officers, which had been removed (Section 33 FOI Act)
   • Recordings of the phone conversations between Mr Zeqaj and OPI staff (Section 51(1) PI Act)
   • Neil McDonald's notes of conversations with Mr Zeqaj (Section 51 PI Act)
   • Jessie's notes of conversations with Mr Zeqaj (Section 51 PI Act)
3. Other matters raised in the application for review are outside of the Tribunal's jurisdiction as they do not form part of the internal review decision.

The names of OPI officers responsible for drafting of the relevant policies and guidelines for review officers, which had been removed from the document provided pursuant to Section 33 of the FOI Act.

1. The relevant provisions of Section 33 of the FOI Act are contained in subsections (1) to (3) as follows:

(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 subsection (4), the provisions of subsection (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.

(3) Where a request by a person other than a person referred to in subsection (2) is made to an agency or Minister for access to a document containing information relating to the personal affairs of any person (including a deceased person) and the agency or Minister decides to grant access to the document, the agency or Minister (as the case may be) shall if practicable notify the person who is the subject of that information (or in the case of a deceased person, that person's next-of-kin) of the decision and of the right of appeal against the decision provided by section 50(2)(e) to the person or, in the case of a deceased person, to the person's next-of-kin

(9) In this section - information relating to the personal affairs of any person includes information -

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

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

1. Notice of this application for review was given to the person whose name appears on the document. That person chose not to intervene but gave notice to the Tribunal advising of that person's wish the personal affairs of that person not be unreasonably disclosed. One reason given was that the person's name is not publicly associated with being a member of the OPI staff and that it should not be disclosed for that person's personal safety: A copy of the notice suitably anonymised was given to Mr Zeqaj at the commencement of the hearing.
2. The decision of the Court of Appeal in Victoria Police v Marke [2008] VSCA 218 addressed the question of whether release would entail unreasonable disclosure as requiring a balancing exercise.
3. See [96]-[98] per Pagone AJA where His Honour said it was necessary in this context to consider:

Any matter that is relevant to the statutory condition, which hears logically upon a consideration of it and which my have a probative effect upon the decision-maker.

1. I am unable to identify any particular benefit to Mr Zeqaj in the release of the name of the officer responsible for the drafting of a procedural document. The officer has objected and has cited concerns relating to personal safety. Having carried out the balancing process referred to in Marke's case, I am satisfied that disclosure would be unreasonable and I uphold the exemption claimed with respect to this name.

Recordings of phone conversations between Mr Zeqaj and OPI staff.

Neil McDonald's notes of conversations with Mr Zeqaj.

1. Access to these documents was denied on the ground that Section 51 of the PI Act exempts them from release.
2. Section 51 of the PI Act reads as follows:

51 Exemption from Freedom of Information Act 1982

(1) The Freedom of Information Act 1982 does not apply to a document that is in the possession of a relevant person or body to the extent to which the document discloses information that relates to -

(a) a complaint investigated by the Director under this Part; or

(b) an investigation under this Part (whether in relation to a complaint or otherwise); or

(c) a report on that investigation, including a report on the progress of the investigation.

(2) In this section - document has the same meaning as in the Freedom of Information Act 1982; relevant person or body means -

(b) an employee in the office of the Special Investigations Monitor;

(e) a member of staff of the Office of Police Integrity;

(f) a person engaged under section 17(1)(b), or an officer or employee of such a person;

(g) a body engaged under section 17(1)(b), or a member, officer or employee of such a body.

1. The basis of the claimed exemption is that the documents relate to an investigation under Part 3 of the PI Act.
2. Mr Zeqaj contends that the investigation was not carried out by the OPI but by the Victoria Police Ethical Standards Department.
3. Section 40 of the PI Act is contained in Part 3 of that Act. Section 40(2) states that subject to subsection (4) the Director [of Police Integrity] must refer a complaint warranting investigation to the Chief Commissioner [of the Victorian Police Force]. None of the qualifications contained in Section 40(4) apply to the complaint made by Mr Zeqaj. 'The Chief Commissioner' effectively means the Victorian Police Ethical Standards Department which carries out the investigation on behalf of the Chief Commissioner.
4. Section 51 applies not only to a complaint investigated by the Director but also to an investigation under Part 3 of the PI Act and to a report of that investigation, including a report on the progress of that investigation. Clearly, the exemption from the FOI Act in relation to a document that is in the possession of a relevant person or body (see Section 52(2) for definition of 'relevant person or body' - includes the Director and a member of staff of the OPI) which relates to an investigation carried out by the Victoria Police Ethical Standards Department on behalf of the Chief Commissioner pursuant to a referral by the Director is covered by Section 51 of the PI Act.
5. The documents in relation to which the exemption is claimed may also be seen as part of an investigation under Part 3 of the PI Act whether the investigation was carried out by the Director or the Victoria Police Ethical Standards Department on behalf of the Chief Commissioner. They are clearly part of an investigation.
6. The decision to deny access to these documents on the ground that Section 51 of the PI Act exempts them from release is affirmed.
7. In short, the internal review decision made on 6 November 2009 is affirmed in its entirety.
8. Mr Zeqaj appeared to be under the impression that this review was concerned with the request made via Robinson Gill on 22 July 2009 for a full copy of his file. This is not the case. Mr Zeqaj application for review named the decision in relation to the internal review made on 6 November 2009 as the subject of the Tribunal's review.