1. By consent, the decision of the respondent, as it relates to the redaction of information relating to the personal affairs of any person under section 33(1) of the Freedom of Information Act 1982, where the person named has not consented to the release of that information and that person is not a member or officer of Victoria Police, is affirmed.
2. By consent, the decision of the respondent is varied in that:
   • (a) Document 8, Search Warrant dated 30 April 2012 is to be provided to the applicant in full; and
   • (b) Page 1 with the previously redacted name of person identified as "The Occupier" and page 5 with the previously redacted names of persons identified of Document 11 are to be provided to the applicant; and
   • (c) Page 1 of Document 11 with the previously redacted name of a family member appearing in two places is to be provided to the applicant.
3. The decision of the respondent is varied in that all but four photographs, being at pages 4, 5, 6 and 14 (which are exempt) of Document 17 are to be released to the applicant.
4. The decision of the Respondent is in all other respects affirmed.

1. On 30 April 2012, Victoria Police, under authorisation of a search warrant searched a private home in Melbourne, belonging to Mr Zeqaj's father. Victoria Police had also conducted a search at PC Accounting Services, as described in Mr Zeqaj's request set out below.
2. In July 2012, Mr Zeqaj made a request under the Freedom of Information Act 1982 (the FOI Act) to Victoria Police for a copy of all documents held by it relating to him. Following negotiations between the parties, Mr Zeqaj narrowed his request to (as highlighted by him):

The collection and use of my phone number (which is my private number) which I never provided Victoria Police. The police member Detective Andrew Gutske, 23819, phone: 98652774, from 412 St Kilda Road, Melbourne 3004, Crime Department, called me on Friday 06/07/20 12, on my private number, the second call I picked up at about 2:03pm. Victoria Police were never provided this number because I consider it private; (Part 1)

The collection of documents in relation to me by Christopher Hayes Detective Senior Constable 34600, Security & Organised Crime Intelligence 13/412 St Kilda Road Melbourne 3004, from a search conducted at PC Accounting Services 240 Hampshire Road Sunshine 3020, on or after the 14/11/2011; (Part 2) and

The collection of documents in relation to me by Matthew Rizun Detective Senior Constable 30696, Taskforce Driver, 412 St Kilda Road, Melbourne 3004, from a search conducted at 65 Riviera Road, Avondale Heights 3034, on or after 30/04/20 12 (Part 3).

1. Victoria Police made its first decision denying access to all relevant hard copy documents. Mr Zeqaj sought internal review, advising the documents should include 'video footage' of the search of the family home. The DVD images were located. On internal review, Victoria Police refused to release all relevant documents.
2. In January 2013, Mr Zeqaj applied to VCAT to have the decision reviewed.
3. On 9 and 17 July 2013, I presided at the hearing. Mr Zeqaj represented himself. Victoria Police was legally represented. I reserved my decision.
4. In dispute before VCAT were 17 documents, being 15 hard copy documents and three CDs. Two of those contained the video footage and the third contains photographs provided in Document 17 in hard copy, being a record of the search. Exemptions were claimed under sections 31(1)(a) and 31(1)(b), (law enforcement exemption), 33(1), (personal affairs exemption) and 35(1)(b), (obtained in confidence exemption).

1. The VCAT proceeding Mr Visho Zeqaj,Obo Hodo Zeqaj, Zecaria Zeqaj, Kabil Zeqaj v Victoria Police (VCAT Ref: HP23/2012) is related to this proceeding. Following the search of the Zeqaj's family home, Mr Zeqaj and other members of his family complained to the Privacy Commissioner under the Information Privacy Act 2000, that the execution of the warrant and the searching of the home breached the Information Privacy Principles. That matter has been referred to VCAT and will move to conclusion once this proceeding is decided. An issue in that proceeding is how Mr Zeqaj may access documents in question in order to argue his case. VCAT's orders in that proceeding of 23 May 2013 will permit Mr Zeqaj to view the DVD in question and see various documents during the hearing without him being able to copy them.

1. Evidence in this proceeding was given in the following order.

1. Ms Davey, Manager, Freedom of Information Division of Victoria Police gave evidence. Her evidence centred on the claimed exemptions under sections 33(1) and 35(1)(b).
2. Given I have not relied on those exemptions, it is only necessary to briefly describe the nature of her evidence, which was that each document in dispute contained personal information. Therefore, as required by section 53A of the FOI Act, where practical Victoria Police asked those concerned whether or not they object to their personal information being released. Of 59 persons whose personal information appears in the documents, three consented to release, one consented to partial release and 20 opposed release.
3. While Ms Davey gave evidence of her understanding as to the circumstances where members of the public provide information to Victoria Police, to the extent it is relevant here, I prefer to rely on the Detective Inspector's evidence as a serving member of the Force.
4. In cross-examination, Ms Davey denied being coerced by the Victorian Government Solicitor's Office, which prepared her witness statement. She said she followed orders when it was legally, ethically and morally correct to do so. Mr Zeqaj's cross-examination did not cause me to doubt her evidence.

1. The Detective Inspector gave evidence in open and closed session. In open session, the Detective Inspector's evidence was in summary that in conducting criminal investigations, Victoria Police uses a range of investigative methods, some of which are known to the public and others which are not. He said in part:
   • (a) Concerning Documents 4 and 10 (affidavits for search warrants), to obtain a search warrant, Victoria Police must apply to a magistrate and support the application with an affidavit. The affidavit must outline the grounds for the search and provide information regarding the background to the investigation and search and explain why the property in question needs to be searched. Such affidavits often involve significant confidential police intelligence.

Affidavits may include information provided by sources to Victoria Police. Those sources may or may not be identified by name in the affidavit. Even where the source is not named, a person with a basic knowledge of the matters being investigated by Victoria Police could easily ascertain the identities of the sources. The protection of police sources is of significant concern to Victoria Police to protect those sources, and the integrity of the investigative process.

Some sources give information expecting they may be required to give evidence in a later prosecution. Others may provide information on the understanding that they will not give evidence. Sources may be connected with the subjects of the investigation or may be unknown to them.

(b) Before commencing a search under a warrant, the proprietor of the property will be provided with a copy of the warrant, which will usually list the items for which Victoria Police is searching. Victoria Police members will explain what will happen during the search and the offence that is being investigated.

(c) Concerning Documents 3, 9, 12 and 13 and, at the end of a search, the proprietor will have an opportunity to view the items seized and will be asked to sign the search warrant to confirm any damage caused during the search. Generally, the proprietor will view and sign, but not be provided with, a list of the items seized.

If the proprietor is provided with a list of the items seized, this list could be provided to the subject(s) of the investigation. Persons who are under investigation may analyse the list of items seized to identify lines of inquiry that the investigation may be pursuing and for example, if a subject knows that a computer hard drive has been seized, she/he may contact his/her associates and advise them to destroy or hide their hard drives. The current practice of providing the proprietor with an opportunity to view the list ensures that there is clarity and transparency regarding the items seized, while protecting the integrity of the investigation.

(d) Concerning Documents 14 and 15 (the DVDs), it is Victoria Police's practice to video record a search, including the items located during the search. Prior to this practice, it was common for persons whose property had been searched to allege theft or assault by Victoria Police members or that evidence had been planted by Victoria Police members during the search. Now if any such allegations are made, the video recording can be checked to assess their truth.

(e) The release of DVD recordings of searches would disclose methods used by Victoria Police to conduct searches. Furthermore, the DVD recording is only one step in the investigation and does not tell the full story of the investigation. Releasing DVD recordings could compromise the safety of persons connected with the investigation, as well as any future prosecution. Releasing DVD recordings would undermine the purpose of making them in the first place; namely, upholding the integrity of the investigative process. Releasing photographs (Document 17) taken during the search may have similar results.

(f) It is vital that investigations be conducted in confidence. Premature release of information obtained during an investigation can have serious consequences for the safety of individuals and the integrity of the investigation. Consequences of premature release of information include subjects of an investigation becoming aware of the investigation and circumventing or disrupting the investigation through for example destruction of evidence and intimidation of witnesses.

(g) The prospect of intimidation or harm to witnesses and persons who may be able to assist with the investigation is particularly relevant to persons who have provided information to Victoria Police in confidence. Both the identity of the source and the fact that they have provided information to Victoria Police are sensitive information. Sources may be exposed to harm in retribution for speaking to Victoria Police. Furthermore, if the source intends to be a witness in a future prosecution, any intimidation of that witness may result in the loss of that witness to the prosecution, therefore undermining the prospects of the prosecution succeeding. The threat of harm may arise from the subject of an investigation or persons known or unknown to the source and/or Victoria Police.

1. In cross-examination, the Detective Inspector also denied being coerced by the Victorian Government Solicitor's Office, which prepared his witness statement. He said he had been a police officer for 25 years and followed orders when it was legally, ethically and morally correct to do so. He agreed that his evidence about the release of information resulting in intimidation or harm to witnesses and/or persons who may be able to assist Victoria Police with an investigation, was a general statement, not one directed at Mr Zeqaj. He disagreed that his witness statement was simply a cut-and-paste job without substance. Mr Zeqaj's cross-examination did not cause me to doubt his evidence.

1. In closed session, the Detective Inspector expanded on these themes, with reference to the individual documents in question and the further substance of the claimed exemptions. He made no allegations against Mr Zeqaj. During the closed session, I questioned the Detective Inspector about aspects of his evidence. This led to the majority of Document 17 being released.

1. Mr Zeqaj said he was at home at the time of the search, which started early in the morning. At the beginning of the search he was in the lounge room. After a time he went upstairs. He watched as the DVD was taken, but was not present for all of the time it was taken. He objected to its taking but was ignored. In his view, he observed the taking of DVD footage which was outside the terms of the warrant. He has not had an opportunity to view the DVDs. He saw the warrant (Document 8) and signed the Exhibit log (Document 11).

1. Mr Zeqaj made voluminous researched submissions in this proceeding, both of a general nature and specifically regarding certain documents.
2. I first set out below his general submissions and my responses and later respond to his specific submissions, as I address each document.
3. I have made minimal reference to submissions on behalf of Victoria Police. Concerning section 31(1)(a) as they are largely in accord with my view. Therefore, I do not repeat them. Nor have I repeated its submissions concerning the other claimed exemptions, as I have not decided this proceeding on the basis of those exemptions.

1. Mr Zeqaj submitted the member presiding at the hearing of this proceeding should complete and sign a declaration. I assume it was drafted by him. It said the member would be neutral, impartial, independent and fair in determining the proceeding.
2. I declined to sign, explaining all VCAT members on appointment or reappointment make an oath of office to the same effect as the document he wished me to sign.

1. He also submitted I faced a conflict of interest in determining this proceeding given my previous employment by the Department of Justice before appointment as a VCAT member. He was aggrieved that on more than one occasion I had declined to sign his declaration. In my view, my past employment with the Department of Justice, including as VCAT's principal registrar prior to being appointed a VCAT member raises no such conflict.

1. Mr Zeqaj objected to the VCAT member presiding in this hearing deciding the case after reading the documents in dispute, which he was unable to read) and hearing evidence in closed session, from which he was excluded. He submitted given this he would not be able to properly argue his case and VCAT will be unable to properly explain its reasons for the decision, "opening the door to corruption and conspiracy and allowing unfair justice to thrive". He also cited section 24 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), concerning the right of a party to a civil proceeding to have the proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
2. On the issue of VCAT seeing the documents in dispute, which a self represented applicant[1] is not permitted to see, as it is the information in those documents which the respondent refuses to release, this is a reality of this type of proceeding. The Tribunal cannot decide in FOI proceedings where documents have been identified, without reading the documents. It cannot permit a self represented applicant to see the documents, as that would to an extent, be tantamount to releasing the documents, the very issue in dispute.
3. An extension of this is that from time to time VCAT hears evidence in confidence, as happened in this proceeding[2]. See Davis v Victoria Police [2008] VCAT 1343 at [17] as an example.
4. In this proceeding it was not possible to fairly decide the case without hearing the relevant evidence. Where exemptions are claimed under section 31(a) and 31(b), the very nature of some of the relevant evidence is likely to be confidential. While VCAT tries to minimise the use of closed sessions where evidence is heard, where a self represented applicant is not able to hear evidence in a proceeding, adopting that procedure is at times the only practical way to afford procedural fairness to respondent and avoid prejudice to the administration of justice in a proceeding under the FOI Act. This is particularly so where an exemption under section 31 is claimed.
5. Also, while it was not necessary in this proceeding, at times during final submissions, VCAT will close the hearing to the applicant for as short a time as possible to be able to candidly discuss the merit of the claimed exemptions with the respondent, specifically identifying the content of the documents in question.

1. In my opinion, VCAT draws it power to use this procedure from section 98 of the Victorian Civil and Administrative Tribunal Act 1998. While VCAT is bound by the rules of natural justice, section 98 also allows VCAT to inform itself on any matter as it sees fit and says it must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit. Section 97 requires VCAT to act fairly and according to the substantial merits of the case in all proceedings.
2. Alternately, VCAT draws its power from section 101 of the VCAT Act. Kellam J, a past VCAT president, discussed the issue in Zhi Jian Fan v Business Licensing Authority [2002] VCAT 271. While he was not required to decide whether VCAT had this power, he said if it did, such power must be exercised sparingly and with great caution (from para 33):

A further matter which was raised in the course of the submissions relating to the Attorney-General's certificate was the question of whether the Tribunal could proceed to hear evidence relevant to this application in the absence of Mr Fan. I expressed some doubt as to whether or not this procedure was permissible under the Act in the course of the hearing of the submissions. The BLA placed reliance upon a decision of Brennan J (as he then was), the then President of the Administrative Appeals Tribunal (C'wealth) in Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482. It should be noted that s.35(2) of the Administrative Appeals Tribunal Act (Cth) conferred power upon the AAT to "direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present."

Section 101 of the VCAT Act empowers this Tribunal to direct that a hearing "be held in private." Brennan J concluded at p.507 that s.35(2) of the Administrative Appeals Tribunal Act (Cth) conferred power upon the Tribunal to exclude the public and an applicant from a hearing in which evidence is to be given against him. He said further at p.508:

"Serious though the exclusion of the public is, the exclusion of a party from a hearing which affects his interests is a much graver step. To exclude a party from such a hearing, even if his legal advisers are permitted to remain, is to deny him a full opportunity to cross-examine upon, to comment on or to controvert the case against him - a denial which in the absence of statutory authority, would constitute an indefensible denial of fair treatment by the Tribunal."

I note that s.102 of the VCAT Act states that the Tribunal must allow a party a reasonable opportunity to examine, cross-examine or re-examine witnesses. In the end result I have not considered it necessary in the present circumstances to decide whether VCAT has the statutory power to exclude a party from a hearing. However, if s.101 of the Act does grant such power it is clear in my view that such power must be exercised sparingly and with great caution. I am far from satisfied as presently advised, and on the material which is presently before me, that such a course, if open, would be justified in the circumstances of the present case.

1. The circumstances of this proceeding show the clear necessity to at times hear evidence in confidence. In terms of Parliaments intention when creating section 101 (and 98) it must have intended to grant such power, particularly when jurisdiction to decide the issue of exemptions such as section 31(1)(a) was to be conferred on VCAT as it had been on the Victorian Administrative Appeals Tribunal, which formerly carried out that role.
2. Further on this point, I turn to an illustration in the area of national security in a case decided by the Federal Court of Australia. In Leghaei v Director General of Security [2005] FCA 1576, the Director General had furnished an adverse security assessment where the person the subject of the security assessment did not have access to confidential material. After surveying the relevant legal principles, Madjwick J held that the Director General owed the person a duty of procedural fairness, but that did not mean the circumstances of the case the Director General was required to disclose confidential information or even the gist of the confidential information. Madgwick J said (at para 88):

In the circumstances of the present case, I am persuaded, having read and had debated the confidential material before me, that genuine consideration has been given, by the Director General, to the possibility of disclosure, but that the potential prejudice to the interests of national security involved in such disclosure appears to be such that the content of procedural fairness is reduced, in practical terms, to nothingness. In my view, expanded upon in my confidential reasons, the applicant was accorded procedural fairness to the extent that the interests of national security permitted. For the reasons given by the then Director General in confidential material before the court, it appears that it was not possible to put it in a summary of the case against the applicant to him without compromising the interests of national security.

1. On appeal, in part on this point, in Leghaei v Director-General of Security [2007] FCAFC 37; (2007) 97 ALD 516 at [54]; [2007] FCAFC 37, the full court of the Federal Court of Australia agreed with Madjwick J.
2. While the proceeding before me does not involve national security issues, in my view in this proceeding the potential prejudice to the interests of law enforcement involved in disclosure of the confidential evidence in this proceeding to Mr Zeqaj reduces the scope of procedural fairness which can be accorded to him. Here, it is certainly not reduced to nothing, given the Detective Inspector set out the gist of his evidence in open evidence and expanded on it in confidential evidence. During the course of the confidential evidence, I considered and decided it was not evidence that should be given in open session. Mr Zeqaj was given the opportunity to and has addressed the issues relevant to this proceeding.

1. Turning to the Charter, Section 24 relevantly says:

(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

(2) Despite subsection (1), a court or tribunal may exclude members of media organisations or other persons or the general public from all or part of a hearing if permitted to do so by a law other than this Charter.

For example, section 19 of the Supreme Court Act 1986 sets out the circumstances in which the Supreme Court may close all or part of a proceeding to the public. See also section 80AA of the County Court Act 1958 and section 126 of the Magistrates' Court Act 1989.

1. Section 24(2) of the Charter says a tribunal may exclude persons from all or part of a hearing if permitted to do so by a law other than the Charter. Section 101 is in broadly similar terms to the examples given in the note.
2. Given my view that the VCAT Act permits such exclusions, excluding Mr Zeqaj from access to Detective Inspector Frewen's confidential evidence does not breach the Charter.

1. In the course of Mr Zeqaj's submissions, he repeatedly referred to corruption on the part of Victoria Police, Ms Davey and VCAT, including me. For example, early in one of his written submissions he refers to Victoria Police and says, "who are proven to be known liars, devious and deceptive". He made similar comments concerning the Victorian Government Solicitor's Office and the instructing solicitor in this proceeding, asserting that she has coerced the witnesses for Victoria Police to give the evidence recorded in witness statements.
2. I reject his submissions. Concerning his specific accusations concerning the witnesses, the instructing solicitor the VGSO and against me, he did not present a shred of evidence.
3. Mr Zeqaj also accuses Victoria Police and VCAT of racism, for which he provides no evidence. I reject the accusation.

1. I also reject Mr Zeqaj's general submissions that if granted, the release of the documents he seeks has the potential to expose conspiracy and corruption within Victoria Police, the Office of Police Integrity (OPI), VCAT, the Government and the Victorian Ombudsman.

1. Here Mr Zeqaj says he has evidence in support. He provided a variety of material including:
   • (a) An article published in The Australian dated 17 December 2011. It reports Mr Zeqaj had complained to the OPI alleging assault by police and provided documents which the OPI assured him would not be shown to Victoria Police. However, under the FOI Act he obtained copies of the very same documents. The article also reported that after he complained to Victoria Police about the conduct of officers during the search of the family home he was charged with assault, resist arrest and hindering police, with the charges later being dropped. On 20 March 2012, The Australian reported the OPI admitted it had in error provided the documents to Victoria Police. Mr Zeqaj also attached correspondence between him and the OPI and correspondence between himself and the Victorian Privacy Commissioner, correspondence between the OPI and the Privacy Commissioner;
   • (b) A Fact Sheet from the OPI prepared for Victorian Police members to illustrate the consequences of corruption. It contained a personal account of an ex-member of Victoria Police who was convicted of corruption and imprisoned. The ex-member is quoted saying that within a group of police, criminal conduct was accepted practice, "everyone was doing it". The ex-member warned against taking the same path;
   • (c) Conviction data which appeared to have been released by the OPI as at December 2008. According to it, 47 Victoria Police members then employed by Victoria Police had criminal convictions, 39 of whom were convicted before joining and eight who were convicted after joining the police. Twelve employees (not members) of Victoria Police had criminal convictions, nine of who were convicted before joining and three of who were convicted after joining;
   • (d) The Victorian Ombudsman Annual Report 2011, page 22, where the Ombudsman states his view that the objects and purposes of the FOI Act are not being followed consistently by departments and agencies and this is undermining the effectiveness of the Act. He describes emerging trends in agencies, particularly departments not meeting statutory timelines and appearing intent on restricting access to information on misguided grounds. The Ombudsman also provides case examples of departments failing to locate documents relevant to FOI requests. Mr Zeqaj alleges Victoria Police was acting deceptively when it first failed to identify the DVDs relevant to his request; and
   • (e) Letters from Mr Zeqaj to the Victorian Ombudsman and to the previous Victorian Premier making accusations of corruption.
2. The material Mr Zeqaj provided supports the conclusion that serious mistakes can be made (such as the OPI providing the documents to Victoria Police), there are differing views as to the performance of departments and agencies in administering the FOI Act and that corruption exists within Victoria Police.
3. In my view, I am entitled to take judicial notice that Victoria Police in the general media does not deny corruption within the ranks but observes it affects only a very small proportion of the thousands of trustworthy people who work for it. It has pledged to rout corruption out.
4. However, there is no evidence before me to support his submission that the release of documents in this proceeding will in some sense reduce what corruption may exist within Victoria Police or in any other place.

1. At one point Mr Zeqaj submitted Victoria Police has attempted to hide documents and asked VCAT to order it or an independent body to make further searches. This was not in substance pursued and no evidence to support such an allegation was presented. The fact that Victoria Police failed to identify the video footage and photographs as relevant to Mr Zeqaj's request, until he advised them it was relevant, does not lead to a conclusion that Victoria Police attempted to conceal the material.

1. I accept providing the documents to Mr Zeqaj will allow him, on the behalf of his family to use them in the other proceeding currently before VCAT, as described above.
2. Mr Zeqaj is well aware that section 3 of the FOI Act creates a right to have access to documents subject to the Act, subject only to exemptions set out in the Act and the overriding principle under section 50(4) that VCAT may release documents if in its judgement, the public interest requires it.
3. In that context he submits the documents should be released because they relate to him or concern matters that affect him. Each of the documents does in some sense relate to him, otherwise Victoria Police would not have identified them as relevant to this proceeding. While that is a factor to consider it alone does not overcome exemptions under the FOI Act.
4. His submissions that the documents should be released as "there can be no fairness without transparency" adds little as decisions have to be made within the requirements of the FOI Act.

1. He submits denying access to the documents will falsely imply guilt on his part, which he denies. At no point in this proceeding has any allegation of guilt being made against Mr Zeqaj. Neither, as he submitted, does denial of access to the documents under section 31 of the FOI Act amount to judgement that he had committed a crime.
2. I reject his submission that it is inappropriate for Victoria Police to "handle their own FOI issues". He bases this on the Public Administration Act 2004 and codes of conduct for public sector employees and other public officials requiring the avoidance of any real or apparent conflict of interest. The very structure of the FOI Act empowers and requires the agency that holds the document in question to decide whether or not to release it. It goes to the extent of requiring the agency to do so within 45 days. Of course the FOI Act provides for challenge of that decision, or deemed refusal if the time limit is not met, as has happened here.
3. I reject Mr Zeqaj's submission that denying access to the Documents in dispute contravenes sections 13(b), 21(1) and 22(1) of the Charter.
4. Concerning 13(b), there is no basis to conclude the circumstances surrounding this proceeding are an attack on his reputation. As counsel for Victoria Police commented in closing submissions, the documents are not so much about Mr Zeqaj as he seems to believe.
5. Concerning 21(1) and 22(1) if Mr Zeqaj is saying while the warrant was being executed he was deprived of his liberty (of which I am unaware although there is no evidence before me to indicate he was not free to leave the home during the search), there was no evidence before me to indicate any such detention was unlawful other than that during the execution of the warrant, he was, as the sections require, treated with humanity and with respect for the inherent dignity of the human person.
6. Finally on the issue of general submissions, with respect to all documents sought, Mr Zeqaj made it clear he did not seek the names of persons appearing in the documents where that person is not a member or officer of Victoria Police and does not consent to release of the information.

Document 1 - Hand written notes by a sworn member of Victoria Police

Victoria Police claims exemptions under sections 31(1)(a), 31(1)(b) (Law enforcement exemption) and section 33 (personal affairs exemption).

(1) Subject to this section, a document is an exempt document if its disclosure under this Act would, or would be reasonably likely to -

(a) prejudice the investigation of a breach or possible breach of the law or prejudice the enforcement or proper administration of the law in a particular instance;

1. The following analysis of section 31(1)(a) is drawn from VCAT's decision in JCL v Victoria Police (General) [2012] VCAT 1060.
2. For a document to be exempt pursuant to s 31(1)(a), its disclosure must be at least reasonably likely to;
   • (a) Prejudice:
     1. the investigation of a breach or possible breach of the law; or
     2. the enforcement or proper administration of the law.

1. In Department of Agriculture and Rural Affairs v Binnie [1989] VicRp 73; (1989) VR 836 at 842 Marks J sitting in the Full Court of the Supreme Court of Victoria stated (with agreement of Young CJ and Teague J):

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 s 31(1) of the Act.

1. In Sobh v Police Force of Victoria [1994] VicRp 2; (1994) 1 VR 41 at 55, Nathan J who was sitting as a Member of the Appeal Division of the Supreme Court of Victoria stated :

Prejudice is not a term of legal art. It means to impede or derogate from. Its content is governed by the matters which may be impeded or derogated from, which in this case is the administration of the law.

Investigation of a breach or possible breach of the law

1. An investigation into a breach or possible breach of the law which may give rise to an indictable offence is at the core of what is referred to in this part of section 31(a). Section 31 identifies a specific countervailing public interest, sufficient to provide an exception to the general public interest in disclosure. It is very important in criminal law cases that release of documents should not prejudice such investigation.

1. A criminal prosecution for an indictable offence is at the core of what is meant by 'enforcement or proper administration of the law in a particular instance'. It is also very important in criminal law cases that release of documents should not prejudice the proper administration and enforcement of the law or the right to a fair trial.
2. Judge Fricke (Deputy President) sitting in the Administrative Appeals Tribunal in Re O'Sullivan and Police Force of Victoria 1 VAR 171 at 175 considered the meaning of enforcement in s 31(1)(a) of the Act. After considering the authorities, his Honour stated :

The concept of 'enforcement ... of the law in a particular instance' may be similar to that of an investigation: ... It seems to contemplate that an offence has already been committed, following which investigations are conducted and proceedings brought.

1. Concerning the meaning of the words "proper administration of the law" in Sobh's case (supra) at p 63 Ashley J said:

In resolving the problem before the court it should be accepted that the phrase 'the ... administration of the law' includes relevant matters of practice and procedure. ... It does not follow, however, that the phrase is concerned only with such matters.

... I accept, that the 'administration of the law' required to be considered is the administration of the law unaffected by any right to access of documents given by the Act.

To say that 'the proper administration of the law' is inclusive of its practices and procedures does not, in my opinion, exhaust the content of that imprecise phrase. It should be considered to extend to the conduct of litigation generally, the object of which is to achieve justice between the parties; not abstract 'justice', but justice achieved within the framework of the law - a framework encompassing both substantive law and practices and procedures both pre-trial and during trial. In Croom's Case ([1991] 2 VR 332) at p 324, Young CJ referring to s 31(1)(a) said this '... the administration of the law indicates, something concerned with the process of the enforcement of legal rights or duties. I agree, with respect, in O'Bryan J's observation that to fall within s 31 a document should have a connection with the criminal law or with the process of upholding or enforcing civil law'.

1. The distinction between 'enforcement of the law' and 'proper administration of the law' is enforcement of the law deals with the actual enforcement of the law whereas 'proper administration of the law' deals with the manner in which the law is administered.
2. Drawing on the above analysis and the evidence before me, I have no hesitation in deciding Document 1 is exempt from release under section 31(1)(a). In my opinion, disclosure would be reasonably likely to prejudice the investigation of a breach or possible breach of the law and/or prejudice the enforcement and/or proper administration of the law in a particular instance. Put another way in the terms of the authorities cited above, there is a real chance that the release of the hand written notes by a sworn member of Victoria Police would impede or derogate from the investigation and/or enforcement of the law and/or the proper administration of the law in a particular instance. The particular instance to which I refer was addressed by the Detective Inspector in closed session.
3. I reject Mr Zeqaj's description of Detective Inspector Frewen's evidence as "based on no facts or logic, commonsense or law, providing no evidence, being, devious and deceptive and providing misinformation that is frivolous, vexatious, misconceived and lacking in substance, a deliberate abuse of process" and "outrageous". Mr Zeqaj was referring to the Detective Inspector's evidence in open session, on which the Detective Inspector expanded in closed session. On the contrary, I found the Detective Inspector's evidence to be substantive and relevant.
4. Concerning the Detective Inspector's evidence that revealing documents would reveal unknown police strategies, Mr Zeqaj says he is aware of all police strategies such as that described in the Discipline Investigation Manual published on a Community Legal Centre website. He also has a full copy of the Victoria Police Handbook which is available for sale to the public. Apart from the sheer improbability that Mr Zeqaj knows every police investigation strategy, all those strategies are unlikely to be published in those two documents.
5. It follows that given the evidence available to me I reject Mr Zeqaj's submissions that there can be no particular instance, given charges against his father were withdrawn and no charges are pending and if a police officer has something to say about him he has a right to know what is said, especially when he's committed no crime and there is no reason to suspect he has done so. In saying that, there is no evidence before me, either in closed or open session, that Mr Zeqaj has committed any crime.
6. Given my conclusion, I do not address the other claimed exemptions, an approach I have taken with each other document.

1. Victoria Police claims exemptions under sections 31(1)(a) and 31(1)(b).
2. Drawing on the above analysis and evidence relevant to this document, Document 2 is exempt from release under section 31(1)(a).

1. Victoria Police claims exemptions under sections 31(1)(a), 31(1)(b) and 33.
2. Drawing on the above analysis and evidence relevant to this document, Document 34 is exempt from release under section 31(1)(a).

1. Victoria Police claims exemptions under sections 31(1)(a), 31(1)(b), 31(1)(d), 31(1)(e), 33 and 35(1)(b).
2. Drawing on the above analysis and evidence relevant to this document, Document, Document 4 is exempt from release under section 31(1)(a).
3. I reject Mr Zeqaj's submission that he needs to see this document to enable him to potentially correct inaccuracies in it, under the Privacy Act (an option open under the FOI Act where a person has access to the document in question). He may pursue his rights under the Privacy Act in Proceeding HP23/2013.

1. Victoria Police claims exemptions under sections 31(1)(a), 31(1)(b) and 33.
2. As Macnamara DP said in Corry v Victoria Police - FOI Privacy Division (General) [2010] VCAT 282:

The nature of the 'LEAP' system was not explored in evidence before me. It is sufficiently notorious that I believe I am entitled to notice that it is a computer system used to log the activities of Victoria Police and actual or alleged offences.

1. Drawing on the above analysis and relevant evidence, Document 5 is exempt from release under section 31(1)(a).

Document 6 - Electronic notes made by a sworn member of Victoria Police relating to the search warrant

1. Victoria Police claims exemptions under sections 31(1)(a), 31(1)(b) and 33.
2. Drawing on the above analysis and evidence relevant to this document, Document 6 is exempt from release under section 31(1)(a).

Document 7 - Hand written notes by a sworn member of Victoria Police

1. Victoria Police claims exemptions under sections 31(1)(a), 31(1)(b) and 33.
2. Drawing on the above analysis and evidence relevant to this document, Document 7 is exempt from release under section 31(1)(a).

Document 8 - Search Warrant relating to the family home

1. During the proceeding, it became apparent Mr Zeqaj previously obtained a copy of the search warrant which was shown on the day of the search of his family home. Therefore, with consent of Victoria Police, is to be ordered released.

Document 9 - Result of search conducted on 3 May 2012

1. Victoria Police claims exemptions under sections 31(1)(a), 31(1)(b), 31(1)(d), 31(1)(e) and 33.
2. Drawing on the above analysis and evidence relevant to this document, Document 9 is exempt from release under section 31(1)(a).

1. Victoria Police describes Document 10 and claims exemptions under sections 31(1)(a), 31(1)(b), 31(1)(d), 31(1)(e), 33 and 35(1)(b).
2. Drawing on the above analysis and evidence relevant to this document, Document 10 is exempt from release under section 31(1)(a).

1. Victoria Police claimed exemptions for names redacted under section 33 as identified in the Schedule of Disputed Documents. In the course of the Detective Inspector's evidence in closed session, it became evident that the evidence as he saw it, related to a potential exemption under section 33(1)(a).
2. In June 2013, Victoria Police released the "Exhibit log" relating to the search of Mr Zeqaj's family home with the names of all persons redacted under section 33. This document records the names of all present the premises during the search and includes the names of the family members at pages 1 and 5. During the course of the proceeding it became apparent that Victoria Police did not oppose the release of those names. The family members have consented to their release. Therefore, those names are ordered to be released.
3. Mr Zeqaj submits there is no reason the names of the police officers should be redacted. He points out that had he wished to do during the search, he could have required each officer to provide his or her name and number. He has also compiled a list of the names of the officers he believes were present.
4. Drawing on the above analysis and evidence relevant to this document, Document 11 as redacted is exempt from release under section 31(1)(a).
5. While Mr Zeqaj could perhaps have obtained the name and serial number of each officer present at the search, the fact that he did not, does not alter the potential harm in terms of law enforcement of releasing the information.
6. While Mr Zeqaj believes the list he has compiled is accurate, releasing the document would either confirm or deny his belief, either of which is a basis for exemption under section 31(1)(a).

1. At the same time, Victoria Police released a copy of the "Property Seizure Record" again redacting the names of all police officers involved, the name of a family member and some other information.
2. Victoria Police claimed exemptions for names redacted under section 33 as identified in the Schedule of Disputed Documents. In the course of the Detective Inspector's evidence in closed session, it became evident that the evidence as he saw it, related to a potential exemption under section 33(1)(a).
3. Drawing on the above analysis and evidence relevant to this document, Document 12 is exempt from release under section 31(1)(a).

1. Also at the same time, Victoria Police released an "Appendix to Result of Search " of the family home redacting various information.
2. Victoria Police claimed exemptions for names redacted under section 33 as identified in the Schedule of Disputed Documents. In the course of the Detective Inspector's evidence in closed session, it became evident that the evidence as he saw it, related to a potential exemption under section 33(1)(a).
3. Drawing on the above analysis and evidence relevant to this document, Document 13 is exempt from release under section 31(1)(a).

1. These are two DVDs on which are recorded moving images of the search of the family home. Victoria Police claims exemptions under sections 31(1)(a), 31(1)(b) and 33.
2. In closed session, Detective Inspector expanded on his evidence given in open session at the release of DVD recordings of searches would disclose methods used by Victoria Police to conduct searches.
3. Drawing on the above analysis and evidence relevant to this document, Document 13 is exempt from release under section 31(1)(a).
4. I reject Mr Zeqaj's evidence and submissions that the DVD should be released to him given he was present throughout the time it was taken and is aware of the images captured.
5. First, as he conceded during cross-examination he was not present with the person operating the recorders (apparently one broke down midway) at all times.
6. Second, it is quite a different thing to be present at the scene of taking such images and having the opportunity to in detail examine the images captured on the DVD.
7. Third, I reject Mr Zeqaj's submission that it should be released so that he can have access to it in order to advance his application in Proceeding HP23/2012, referred to above. That factor does not negate the justification for exemption under section 31(1)(a). Also, orders in that proceeding will enable him to view the DVD during the proceeding hearing, allowing him some access. His submissions as to his rights under the Privacy Act are not relevant here. He may make them in Proceeding HP23/2012.
8. Fourth, there is no basis for his submission that because during the search of the family home and his property, moving images taken of him, he has a right to a copy of the DVDs.
9. Fifth he provides no basis for his rejection of the concept that recording images in the course of a search under warrant is a "complaint reduction strategy and that in fact Victoria Police uses such records for its own purposes".
10. Lastly, he submits when his father's lawyers were provided with copies of the DVDs and other exhibits the Court imposed no restrictions or conditions on who may or may not have a copy of the material. He refers to a court hearing where the evidence in question was not heard in closed session nor restricted in any way. If true, that factor does not outweigh the factors which led me to considering the DVD's exempt. Element in reaching this conclusion, as Victoria Police submits, is that documents produced in the criminal proceeding are likely to be subject to a "Harman undertaking", that they will be used only for the purposes of that proceeding.

Document 16 - Re decision made under s 27(2)(b)

1. Victoria Police claims exemptions under section 31.
2. Section 27 of the FOI Act requires the decision-maker if refusing access to a document to give reasons for that refusal. However, section 27(2)(b):

if the decision relates to a request for access to a document that is an exempt document under section 28, 29A or 31 or that, if it existed, would be an exempt document under section 28, 29A or 31, [the decision maker] may state the decision in terms which neither confirm nor deny the existence of any document.

1. In this proceeding, Victoria Police has neither confirmed nor denied the existence of any document under the heading Document 16.
2. Mr Zeqaj knows Victoria Police holds his private telephone number because at one point a representative of Victoria Police used it to telephone him. With exemptions claimed under section 31 of the FOI Act, Victoria Police have under section 27(2)(b) of the Act neither confirmed nor denied the existence of documents relating to the collection or use of the mobile phone number. He demands, invoking his rights under the FOI Act to obtain the documents to enable him to understand why they had obtained and kept it.
3. In my view, given evidence heard in closed session, any document that may or may not exist under that heading is exempt under section 31(1)(d), which says

(1) Subject to this section, a document is an exempt document if its disclosure under this Act would, or would be reasonably likely to -

(d) disclose methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or

1. Victoria Police claims exemptions under sections 31(1)(a), 31(1)(b) and 33. The photographs were taken during the search of the family home. I was provided with a CD containing photographs as well is a hard copy.
2. In closed session, on my questioning, the Detective Inspector agreed that he did not strongly put, in contrast to his evidence on other issues, that disclosure of most of the photographs could be regarded as exempt under section 31(1)(a). He did maintain the disclosure of all photographs were exempt.
3. I have ordered the release of all but those four photographs (identified in my orders, which I regard as exempt under section 31(1)(a). Therefore, 13 photographs will be released and four will not be released. Given the photographs are not numbered within Document 17, I will write separately to Victoria Police, making it clear which photographs are to be released.

1. Mr Zeqaj seeks to invoke the public interest override under Section 50(4) of the FOI Act. The section says:

On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.

1. The High Court of Australia has said decision-makers must be satisfied to a high threshold that the public interest requires release of the document. In Osland v Secretary to the Department of Justice [2010] HCA 24, French CJ, Gummow and Bell JJ said at paragraph 14,

It must be accepted that the word "requires" which appears in section 50(4) directs the decision-maker to identify a high-threshold public interest before the power can be exercised. It is not enough that access to the documents could be justified in the public interest.

1. On the issue of whether release of the documents in question was required by the public interest under section 50(4) of the FOI Act, I take Mr Zeqaj's general submissions to be submissions relevant to the public interest override.
2. In addition, Mr Zeqaj submitted:
   • (a) He had previously applied to VCAT under the FOI Act seeking a copy of Victoria Police's disciplinary investigation manual. He says Victoria Police first claimed the manual was exempt from release under section 31(1)(d). In the course of the proceeding, but before the final hearing at VCAT, Victoria Police released the manual in full and Mr Zeqaj withdrew his application. The manual is published on a community legal centre website. From this Mr Zeqaj submits Victoria Police's claimed exemptions under section 31 is weakened and release of the material in question, as has proved to be the case concerning release of the manual, will be in the public interest; and
   • (b) The Victoria Police's public interest statement is "the usual cut-and-paste";
3. After considering Mr Zeqaj's submissions and those of Victoria Police, which I do not regard is some form of cut-and-paste, in my view the high threshold is not reached. I have rejected Mr Zeqaj's general submissions. The publication of a police manual is nowhere near enough to justify a conclusion that the public interest requires the release of Documents 1 to 17.

[1] Where a party is legally represented, this problem does not arise if the lawyer/s acting for the applicant have given an undertaking not to disclose the contents of the documents.

[2] Again where lawyers act for an applicant, on the basis of an undertaking they may be present with the applicant excluded.