‘BV4’ and Glen Eira City Council (Freedom of Information) [2020] VICmr 205 (28 July 2020)

All references to legislation in this document are to the Freedom of Information Act 1982 (Vic) (FOI Act) unless otherwise stated.

Notice of Decision

I have conducted a review under section 49F of the Agency’s decision to refuse access to documents requested by the Applicant under the FOI Act.

My decision on the Applicant’s request differs from the Agency’s decision in that I have decided to release additional information in the documents.

I am satisfied the documents are exempt under sections 30(1), 32(1), 35(1)(b). However, I am not satisfied the documents are exempt under sections 36(2)(b) and 38.

Where I am satisfied it is practicable to delete exempt and irrelevant information from the documents in accordance with section 25, I have determined to release those documents in part. However, where the removal of such information would render a document meaningless, I have determined to refuse access to the document in full.

The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.

My reasons for decision follow.

Joanne Kummrow

Public Access Deputy Commissioner

28 July 2020

Reasons for Decision

Background to review

1. The Applicant made a request to the Agency for access to the following documents:
   1. In relation to [named individual] Workcover claim:
      1. Emails, handwritten notes and documents produced by [named individual] and [named individual];
      2. Communications between Worksafe and [named individuals] (i.e. any communications from [named individuals] to Worksafe as well as any communications from Worksafe to [named individuals); and
      3. Communications from [named individuals] to [the Agency’s] WorkCover consultant

…between [date] and [date].

2. 2. Any emails, handwritten notes and documents produced by [named individuals] between [date] and [date], which contain the phrase ‘[named individual]’…
3. The Applicant’s request states they do not seek access to communications between themselves and the Agency, or communications between the Agency and their legal representative.
4. In its decision, the Agency identified 210 documents falling within the terms of the Applicant’s request. It decided to grant access to 51 documents in full, 44 documents in part and refuse access to 76 documents in full. The remaining 39 documents were released to the Applicant in full, outside the FOI Act.
5. The Agency advised, to the extent it was practicable, communications between the Applicant and the Agency and communications between the Agency and the Applicant’s legal representative were removed from the documents as irrelevant information under section 25.
6. The Agency relied on the exemptions in sections 30(1), 31(1)(a), 31(1)(c), 32(1), 33(1), 34(4)(a)(ii), 35(1)(a), 35(1)(b), 36(2)(b) and 38 in conjunction with section 595 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) to refuse access to the documents. The Agency’s decision letter sets out the reasons for its decision.

Review

6. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
7. I have examined copies of the documents subject to review.
8. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.
9. I have considered all communications and submissions received from the parties, including:

• 1. the Agency’s decision on the FOI request;
  2. information provided with the Applicant’s review application;
  3. the Agency’s submission dated [date]; and
  4. all communications between this office and the Applicant and the Agency.

10. In undertaking my review, I have had regard to the object of the FOI Act, which is to create a general right of access to information in the possession of the Government or other public bodies, limited only by exceptions and exemptions necessary to protect essential public interests, privacy and business affairs.
11. Further, in undertaking my review under section 49F, I am required by section 49P to make a fresh or new decision. This means my review does not involve determining whether the Agency’s original decision is correct, but rather I am required to ensure my fresh decision is the ‘correct or preferable decision’.[1] This involves ensuring my decision is correctly made under the FOI Act and any other relevant applicable law in force at the time of making my fresh decision.

Review of exemptions

Section 30(1) – internal working documents

12. Section 30(1) has three requirements:

• 1. the document must disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers or an officer and a Minister;
  2. such matter must be made in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government; and
  3. disclosure of the matter would be contrary to the public interest.

13. The exemption does not apply to purely factual material in a document.^[2]
14. I must also be satisfied releasing this information would not be contrary to the public interest. This requires a ‘process of the weighing against each other conflicting merits and demerits’.^[3]
15. In deciding if release would be contrary to the public interest, I must consider all relevant facts and circumstances remaining mindful the object of the FOI Act is to facilitate and promote the disclosure of information.
16. In deciding whether disclosure of information exempted by the Agency would be contrary to the public interest, I have given weight to the following factors:^[4]

• 1. the right of every person to gain access to documents under the FOI Act;
  2. the degree of sensitivity of the issues discussed in the documents and the broader context giving rise to the creation of the documents;
  3. the stage of a decision or status of policy development or a process being undertaken at the time the communications were made;
  4. whether disclosure of the documents would be likely to inhibit communications between agency officers, essential for the Agency to make an informed and well-considered decision or participate fully and properly in a process in accordance with the Agency’s functions and other statutory obligations;
  5. whether disclosure of the documents would give merely a part explanation, rather than a complete explanation for the taking of a particular decision or the outcome of a process, which the Agency would not otherwise be able to explain upon disclosure of the documents;
  6. the impact of disclosing documents in draft form, including disclosure not clearly or accurately representing a final position or decision reached by the Agency at the conclusion of a decision or process; and
  7. the public interest in the community being better informed about the way in which the agency carries out its functions, including its deliberative, consultative and decision making processes and whether the underlying issues require greater public scrutiny.

17. The fact a document is a draft or earlier version may be relevant but is not determinative as to whether disclosure of a document would be contrary to the public interest. Each document must be examined within its own context, irrespective of whether it is a draft or incomplete version.[5]
18. The Agency submits the following with respect to its application of section 30(1) to draft documents:

…documents were created in the course of consultation and deliberation in relation to your matter, and contain the opinions, advice or recommendations of [Agency] officers. The maters disclosures in these documents are of a sensitive and important nature. Release of the documents would be contrary to the public interest for a number of reasons.

First, it would inhibit the frank and open discussions between [Agency] officers, to the detriment of the investigation and decision-making process.

Second, the documents necessarily [provide the Agency’s]  thought processes at a particular point in time, not further events and issues which affected [the Agency’s] decision-making. As such, release of the documents would provider merely a part explanation rather than a complete explanation for [the Agency’s] decisions, and cause confusion.

Third, to the extent that they are draft versions of communications to you, they are drafts which are preliminary in nature, and which are substantially different from the final version provided to you. I consider that disclosure in these circumstances would give these documents spurious standing and be misleading.

19. The Agency submits the following with respect to its application of section 30(1) to documents provided by witnesses or complainants:

…

1. 1. in some instances, the documents contain opinions by [Agency] staff, which were not further considered or acted on. I consider that disclosure of this information may result in these opinions being given unnecessary credence and cause confusion;

20. The Agency submits the following with respect to its application of section 30(1) to notes, work lists and handover documents:

…

In some instances, the documents contain the staff members’ opinions about due dates, priorities, and issues for consideration in the course of conducting your matter. I consider that disclosure of this information would be contrary to the public interest because this information preliminary in nature and could be misinterpreted if disclosed without context.

21. My decision in relation to each of the documents under review and the application of section 30(1) is set out in the Schedule of Documents in Annexure 1.

Section 32(1) – legal professional privilege

22. Section 32(1) provides a document is an exempt document ‘if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege or client legal privilege’.
23. A document will be subject to legal professional privilege and exempt under section 32(1) where it contains a confidential communication:^[6]

• 1. between the client (or the client’s agent) and the client’s professional legal advisers, that was made for the dominant purpose of obtaining or providing legal advice or is referrable to pending or contemplated litigation;
  2. between the client’s professional legal advisers and third parties, that was made for the dominant purpose of pending or contemplated litigation; or
  3. between the client (or the client’s agent) and third parties that was made for the purpose of obtaining information to be submitted to the client’s professional legal advisers for the dominant purpose of obtaining advice on pending or contemplated litigation.

24. A document will be subject to client legal privilege where it contains a ‘confidential communication’^[7] between:

• 1. the client (or the client’s agent) and the client’s professional legal advisers, that was made for the dominant purpose of obtaining or providing legal advice;^[8] or
  2. the client and another person, which was made for the dominant purpose of the client being provided with professional legal services relating to a proceeding in which the client is or was a party.^[9]

25. The High Court of Australia has held the purpose of legal professional privilege, or client privilege ensures a client can openly and candidly discuss legal matters with their legal representative and seek legal advice:

The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor.[10]

26. Legal professional privilege exists to protect the confidentiality of communications between a client and their lawyer. Privilege will be lost where the client acts in a way that is inconsistent with the maintenance of that confidentiality. For instance, where the substance of the legal advice is disclosed by the client or with their express or implied consent.^[11]
27. In relation to the application of section 32(1), the Agency submits the following:

To the extent that the documents were created in the course of seeking and receiving legal advice, or contact discussions of legal advice, the documents are subject to legal professional privilege and exempt under section 32(1).

28. My decision in relation to each of the documents under review and the application of section 32(1) is set out in the Schedule of Documents in Annexure 1.

Section 35(1)(b) – information provided to an agency in confidence

29. Section 35(1)(b) requires:
    1. the document, if disclosed, 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
    2. the disclosure of the information would be contrary to the public interest by reason the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.
30. Whether information communicated by an individual was communicated in confidence is a question of fact.[12]
31. When determining whether information was communicated in confidence, it is necessary to consider the position from the perspective of the communicator.^[13] Confidentiality can be express or implied from the circumstances of a matter.[14]
32. Generally, section 35(1)(b) only applies to information communicated to an agency from an outside source, rather than from an officer within an agency. However, in certain circumstances, section 35(1)(b) may apply to confidential information communicated to an agency by an agency officer. For example, in the context of internal complaints and investigations, or confidential communications between different parts of an agency.^[15]
33. With respect to information provided by witnesses and complainants, the Agency submit this information would be exempt under section 35(1)(b) as:

…

1. 3. disclosure in this instance would also inhibit individuals’ ability to provide information to [the Agency] in a similarly frank and candid way in the future. This would, in turn, undermine [the Agency’s] ability to receive, investigate and respond effectively to employment-related issues.

34. My decision in relation to each of the documents under review and the application of section 35(1)(b) is set out in the Schedule of Documents in Annexure 1.

Section 38 – secrecy provision

35. Section 38 provides a document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications.
36. The Agency relies on section 38 of the FOI Act in conjunction with section 595 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act) to refuse access to information in the documents.
37. Section 595 of the WIRC Act provides:

(1)     This section applies to a person who is, or has at any time been—

(a)     a member of the Board; or

(b)     appointed for the purposes of this Act, other than Part 8; or

(c)     engaged as a member of staff of the Authority; or

(d)     authorised to perform or exercise any function or power of the Authority or any function or power on behalf of the Authority, other than a function or power under Part 8.

(2)     A person to whom this section applies may—

(a)     produce a document to a court in the course of a criminal proceeding or in the course of any proceeding under this Act, the Accident Compensation Act 1985 or the Workers Compensation Act 195 8; and

(b)     produce a document or divulge information to a Conciliation Officer, a Medical Panel, the Magistrates’ Court, VCAT or the County Court with respect to a matter arising under this Act, the Accident Compensation Act 1985or the Workers Compensation Act 1958 ; and

(c)     divulge or communicate to a court in the course of a criminal proceeding referred to in paragraph (a) any matter or thing coming under the notice of the person in the performance of official duties or in the performance of a function or the exercise of a power referred to in that paragraph; and

(d)     produce a document or divulge or communicate information to an entity specified in Schedule 8; and

(e)     produce a document or divulge or communicate information as provided in section 92(1)(c), (e) and (vf) of the Taxation Administration Act 1997 ; and

(f)     produce a document or disclose information which is required or permitted to be produced or disclosed by or under this Act or any other Act.

(3)     A person to whom this section applies must not, either directly or indirectly, make a record of, or divulge or communicate to any person, any information that is or was acquired by the person by reason of being or having been appointed, engaged or authorised as specified in subsection (1), or make use of any such information, for any purpose except—

(a)     to the extent necessary to perform official duties or to perform or exercise a function or power specified under subsection (1); or

(b)     for a purpose specified in subsection (2)

38. In determining whether a document is exempt under section 38, the following three requirements must be met:

• 1. there is an enactment in force;
  2. the enactment applies specifically to the information of a kind contained in the document; and
  3. the enactment prohibits persons referred to in the enactment from disclosing such information.

Is there a relevant enactment in force?

39. I am satisfied section 595 of the WIRC Act is an enactment in force. Therefore, I am satisfied the first requirement is met.

Does the enactment apply specifically to the information contained in the documents?

40. To satisfy the second requirement, the enactment must be formulated with such precision that it refers with particularity to the information’.[16] It is not sufficient for the enactment to be formulated in general terms that such it would encompass the information without expressly describing the information.
41. An enactment that prohibits the disclosure of information by reference to the capacity of the person who has received or is in possession of the information only, is insufficient to meet the second requirement. Section 38 must point to specific information in a document, ‘rather than [identify information] on the more random basis of whether or not the document is or has fallen into the hands of an individual who may or may not be a person to whom such a provision applies’.[17]
42. In considering the application of section 38 in Al-Hakim v Ombudsman,[18] the Victorian Civil and Administrative Tribunal held:

… the effect of s.20 of the Ombudsman Act is to prohibit all persons (other than the complainant) from disclosing information that it obtained or received pursuant to the Act. The section makes blanket reference to “information” in such a manner as to suggest that it applies to any and all information obtained or received in connection with the functions exercised under the Ombudsman Act. To my mind, the language of s.20 contains no reference to the “kind” of information obtained and is materially different in this regard to the phrases which have been held to attract the exemption under s.38 of the Act…[19]

43. For similar reasons, I am not satisfied section 595 of the WIRC Act is sufficiently specific to attract the operation of section 38 in the FOI Act as it does not refer with adequate precision to the kind, or quality of information prohibited from disclosure. Rather, section 595 of the WIRC Act applies generally to prohibit the disclosure of information obtained pursuant to the WIRC Act, in conjunction with imposing confidentiality requirements on Agency officers in relation to the performance of their functions under the WIRC Act. Consequently, I am not satisfied section 595 of the WIRC Act is formulated with sufficient precision to identify information in the documents.
44. Accordingly, I am not satisfied the documents are exempt under section 38.
45. My decision in relation to each of the documents under review and the application of section 38 is set out in the Schedule of Documents in Annexure 1.

Section 36(2)(b) – Disclosure contrary to the public interest

46. Section 36(2)(b) provides a document is exempt if:

(b)     in the case of a documents of a council, its disclosure under the Act would be contrary to the public interest by reason that it would disclose instructions issued to, or provided for the use of guidance of, officers of a council on the procedures to be followed or the criteria to be applied in negotiation, including financial, commercial and labour negotiations, in the execution of contracts, in the defence, prosecution and settlement of cases, and in similar activities relating to the financial property or personnel management and assessment interests of the council.

47. The Agency’s submissions refer to the matter of United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (United Firefighters Union),[20] in which it was held documents need not evidence general practices and procedures, and section 36(1)(b) may apply to documents containing instructions with respect to a particular transaction.
48. The Agency states:

…sections 36(1)(b) and 362(b) are substantially similar and have been held to be equivalent provisions [16], such that authority concerning once can be used in interpreting the other.

49. My decision in relation to each of the documents under review and the application of section 36(2)(b) is set out in the Schedule of Documents in Annexure 1.

Section 33(1) – personal affairs information

50. A document is exempt under section 33(1) if two conditions are satisfied:

• 1. disclosure of the document under the FOI Act would ‘involve’ the disclosure of information relating to the ‘personal affairs’ of a person other than the Applicant;[21] and
  2. such disclosure would be ‘unreasonable’.

51. Information relating to the ‘personal affairs’ of a person includes information that identifies any person or discloses their address or location. It also includes any information from which such information may be reasonably determined.[22]
52. A third party’s opinion or observations about another person’s conduct can constitute information related to a third party’s personal affairs.[23]
53. Considering whether disclosure would be unreasonable in the circumstances involves balancing the public interest in the disclosure of official documents with the protection of a person’s right to personal privacy. This involves having regard to any matter that may ‘relevantly, logically, and probatively’ bear upon whether disclosure of personal affairs information of any person would be unreasonable in its own context.[24]
54. Whether the disclosure of a third party’s personal affairs information in a document would be unreasonable may not be apparent from the document itself, but needs to be considered in the context of other information already be known to an applicant[25] or publicly available, and when considered in totality, would involve the unreasonable disclosure of personal affairs information.
55. The Agency applied section 33(1) to names, email addresses, telephone numbers, initials and position titles. The Agency also applied section 33(1) to information supplied to the Agency by third parties, as well as statements and observations made by Agency staff.
56. By email dated [date], the Applicant advised they do not seek access to certain personal affairs information, being names and contact information of third parties. They also do not seek access to health related information of a third party in the documents. Therefore, I am satisfied such information is not relevant to the review, and can be deleted in accordance with section 25.
57. With regard to the remaining personal affairs information, I consider certain personal affairs information in the documents is sensitive as it relates to information provided, and observations made, by third parties during a workplace investigation.
58. My decision in relation to each of the documents under review and the application of section 33(1) is set out in the Schedule of Documents in Annexure 1.

Section 25 – Deletion of exempt or irrelevant information

59. In summary section 25 provides, if it is practicable to do so and the applicant is agreeable, to release an edited copy of a document with any exempt or irrelevant information, which falls outside the scope of the applicant’s request, be deleted from the document. If it is not practicable to provide an edited copy of the document, or the applicant is not agreeable to receiving an edited copy, access to the document may be refused in full.
60. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’^[26] and the effectiveness of the deletions. Where deletions would render a document meaningless, they are not ‘practicable’, and release of the document is not required under section 25.^[27]
61. Section 49F provides my role is to ‘review the decision that is the subject of the application for review’, while section 49P provides I must make a ‘fresh decision on the original application’.
62. I have considered the information the Agency determined as irrelevant and deleted from the documents. I agree it falls outside the scope of the Applicant’s request because it is information that details a communication between the Applicant and the Agency, or communications between the Agency and the Applicant’s legal representative.
63. However, having examined each document and carefully considered the terms of the Applicant’s request, I am satisfied that certain information exempted by the Agency is better characterised as information that is irrelevant to the scope of the Applicant’s request, because it does not relate to the Applicant, or their Workcover claim. Instead, the information concerns third parties and their matters, which are unrelated to the Applicant and the Applicant’s Workcover matter.
64. Therefore, in certain instances I have decided the information is irrelevant to the Applicant’s request and should be deleted in accordance with section 25.
65. I have considered the effect of deleting irrelevant and exempt information from the documents. In my view, it is practicable for the Agency to delete the irrelevant and exempt information, as to do so would not require substantial time and effort, and the edited documents would retain meaning.
66. The Schedule of Documents in Annexure 1 set out my decision in relation to each document and section 25.

Conclusion

67. On the information before me:

• 1. I am satisfied certain documents are exempt under sections 30(1), 32(1), 33(1) and 35(1)(b);
  2. I am satisfied certain information is excluded from the review and is irrelevant under
     section 25; and
  3. I am not satisfied the documents are exempt under sections 36(2)(b) or 38.

68. Where I am satisfied it is practicable to provide the Applicant with an edited copy of a document with exempt or irrelevant information deleted in accordance with section 25, I have granted access to the document in part. Where I am satisfied provision of an edited copy of a document is not practicable, I have refused access to the document in full.
69. Having determined the documents are exempt under section 30(1), 32(1), 33(1) and 35(1)(b), or is irrelevant information in accordance with section 25, it is not necessary for me to consider the Agency’s application of sections 31(1)(a), 31(1)(c), 34(4)(a)(ii) and 35(1)(a) to the documents.
70. The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.

Review rights

71. If either party to this review is not satisfied with my decision, they are entitled to apply to the Victorian Civil and Administrative Tribunal (VCAT) for it to be reviewed.^[28]
72. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[29]
73. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[30]
74. Information about how to apply to VCAT is available online at www.vcat.vic.gov.au. Alternatively, VCAT may be contacted by email at admin@vcat.vic.gov.au or by telephone on 1300 018 228.
75. The Agency is required to notify the Information Commissioner in writing as soon as practicable if either party applies to VCAT for a review of my decision.^[31]

Third party review rights

76. As I have determined to disclose a document the Agency claimed to be exempt under section 35(1), if practicable, I must notify any person, who has a right to make an application to VCAT for review of my decision under section 50(3AB), of the existence of that right.[32]
77. Any application for review by a third party must be made to VCAT within 60 days from the day on which notice in writing of my decision to disclose the document is given to that person.[33]
78. I have considered the practicability of notifying the third parties about my decision to information provided in confidence to the Agency.
79. In the circumstances, I do not consider it is practicable to notify the third parties as, in some instances, it is not clear whose information it is, and in other instances the exempted information is information provided by the Applicant. Therefore, I am not satisfied it is practicable to notify third parties of their review rights in the circumstances.

When this decision takes effect

80. My decision does not take effect until the Agency’s 14 day review period expires.
81. If a review application is made to VCAT, my decision will be subject to any VCAT determination.

Annexure 1 – Schedule of Documents

Endnotes

[1] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at [591].

[2] Section 30(3).

[3] Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473 at [485], adopted in Department of Premier and Cabinet v Hulls [1999] VSCA 117 at [30].

[4] Hulls v Victorian Casino and Gambling Authority (1998) 12 VAR 483.

[5] Penhalluriack v Glen Eira City Council [2012] VCAT 370 at [25].

[6] Graze v Commissioner of State Revenue [2013] VCAT 869 at [29]; Elder v Worksafe Victoria [2011] VCAT 1029 at [22]. See also section 119 of the Evidence Act 2008 (Vic).

[7] Defined in section 117 of the Evidence Act 2008 (Vic) to mean communications made in circumstances where the Agency and its professional legal advisors were under an obligation not to disclose their contents.

[8] Section 118 of the Evidence Act 2008 (Vic).

[9] Section 119 of the Evidence Act 2008 (Vic).

[10] Grant v Downs (1976) 135 CLR 674 at [19].

[11] Mann v Carnell (1999) 201 CLR 1 at [28].

[12] Ryder v Booth [1985] VR 869 at 883; XYZ v Victoria Police [2010] VCAT 255 at [264].

[13] XYZ v Victoria Police [2010] VCAT 255 at [265].

[14] Ibid.

[15] See Sportsbet v Department of Justice [2010] VCAT 8 at [71]-[78]; XYZ v Victoria Police [2010] VCAT 255 at [287]-[288]; Birnbauer v Inner and Eastern Health Care Network (1999) 16 VAR 9 at [17].

[16] News Corp Ltd v National Competition & Securities Commission (1984) 52 ALR 277 at 281.

[17] Department of Justice v Western Suburbs Legal Service Inc [2009] VSC 68 at [21].

[18] (No 1) (2001) 18 VAR 102; [2001] VCAT 1972.

[19] Al-Hakim v Ombudsman [2001] VCAT 1972 at [37]. See also Woodford v Ombudsman (2001) 18 VAR 64; [2001] VCAT 721 and Lapidos v Ombudsman (No 1) (1987) 2 VAR 82.

[20] [2018] VCAT 631.

[21] Sections 33(1) and (2).

[22] Section 33(9).

[23] Richardson v Business Licensing Authority [2003] VCAT 1053, cited in Davis v Victoria Police (General) [2008] VCAT 1343 at [43], Pritchard v Victoria Police (General) [2008] VCAT 913 at [24], Mrs R v Ballarat Health Services (General) [2007] VCAT 2397 at [13].

[24] Ibid at [98].

[25] Victoria Police v Marke [2008] VSCA 218 at [94].

[26] Mickelburough v Victoria Police (General) [2009] VCAT 2786 at [31]; The Herald and Weekly Times Pty Limited v The Office of the Premier (General) [2012] VCAT 967 at [82].

[27] Honeywood v Department of Human Services [2006] VCAT 2048 at [26]; RFJ v Victoria Police FOI Division (Review and Regulation) [2013] VCAT 1267 at [140] and [155].

[28] The Applicant in section 50(1)(b) and the Agency in section 50(3D).

[29] Section 52(5).

[30] Section 52(9).

[31] Sections 50(3F) and (3FA).

[32] Section 49P(5).

[33] Section 52(3).