1. The first FOI request, dated 14 February 2011, was in the following terms:

Under the Freedom of Information Act 1989 (FoI Act) I seek access to the following documents.

? List of committee members that reviewed Emily Vermeulen's treatment.

b) The results of the Mental Health Clinical Review Committee review of Emily Vermeulen's treatment and status of any recommendations/actions taken.

c) Any submissions made to the Mental Health Clinical Review Committee regarding the review of Emily Vermeulen's treatment.

d) Any notes, working papers etc from the Mental Health Clinical Review Committee consideration of Emily Vermeulen's treatment.

e) Any other document relating to Emily Vermeulen, excluding health records. [7]

1. The second FOI request, dated 18 March 2011, was as follows:

I would like to find out how the Department of Health has come to its current understanding of the meaning and operation of section 125 of the Health Act 1993.

Consequently, under the Freedom of Information Act 1989 (FoI Act) I seek access to the following documents.

1. Any document that relates to how the Department of Health came to its current understanding of the meaning and operation section 125 of the Health Act 1993.

I expect this request will include any internal discussion documents, position paper etc, along with any requests for external advice including the advice obtained.

1. Section 10 of the FOI Act provides a right to obtain access to the documents of an ACT Government agency in the following terms:
   1. Right of access

_Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to - _

(a) a document of an agency, other than an exempt document; or

(b) an official document of a Minister, other than an exempt document.

1. The Respondent relied on three exemptions in the FOI Act:
   • s 38 Documents to which secrecy provisions of enactments apply;
   • s 40 Documents concerning certain operations of agencies;
   • s 42 Documents subject to legal professional privilege.
2. The relevant sections provide:

38 Documents to which secrecy provisions of enactments apply

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.

1. Documents concerning certain operations of agencies

_(1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to - _

(a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency; or

(b) prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency; or

(c) have a substantial adverse effect on the management or assessment of personnel by the Territory or by an agency; or

(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; or

(e) have a substantial adverse effect on the conduct by or on behalf of the Territory or an agency of industrial relations.

(2) This section does not apply to a document the disclosure of matter in which under this Act would, on balance, be in the public interest.

1. Documents subject to legal professional privilege

(1) 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.

(2) A document of the kind referred to in section 8 (1) is not an exempt document under subsection (1) of this section only because of the inclusion in the document of matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in section 8 (1).

Health Act 1993 (ACT)

1. The Health Directorate administers the Health Act, and that Act establishes Quality Assurance Committees (QACs) which are the central point of the dispute between the parties. Relevant definitions are set out in Part 2 "Important concepts" of the Act:
   1. What is a health service?

For this Act, a health service is a service provided to someone (the service user) for any of the following purposes:

(a) assessing, recording, maintaining or improving the physical, mental or emotional health, comfort or wellbeing of the service user;

(b) diagnosing, treating or preventing an illness, disability, disorder or condition of the service user.

(a) means a health practitioner or other person who provides a health service; and

_(b) for a health facility, means a health service provider who - _

(i) provides a health service at the health facility; or

(ii) uses the equipment or other facilities of the health facility to provide a health service elsewhere.

Examples of people who may be health service providers

1. a chiropractor
2. a dentist
3. a dental technician
4. a dental prosthetist
5. a doctor
6. a nurse
7. an osteopath
8. an optometrist
9. a pharmacist
10. a physiotherapist

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

1. Part 8 of the Health Act provides for protection of the secrecy of certain persons and information:
   1. Who is an information holder?

For this part, a person is an information holder _if - _

(i) a member of a quality assurance committee; or

(ii) a member of a scope of clinical practice committee; or

(iii) someone else exercising a function under part 4 (Quality assurance) or part 5 (Reviewing scope of clinical practice); or

(iv) someone else engaged in the administration of part 4 (Quality assurance) or part 5 (Reviewing scope of clinical practice); or

(b) the person has been given information under this Act by a person mentioned in paragraph (a).

Note Information may be given to people under various provisions of pt 4 and pt 5, including:

• s 39 (Giving health service reports to CEO or director-general)
• s 43 (Quality assurance committees - giving information to the Coroner's Court)
• s 44 (Quality assurance committees - giving information to other quality assurance committees)
• s 45 (Quality assurance committees - giving information to health board and health services commissioner).
• s 74 (Scope of clinical practice committees - giving information to health board and health services commissioner).

(1) For this part, information is protected information about a person if it is information about the person that is disclosed to, or obtained by, an information holder because of the exercise of a function under this Act by the information holder or someone else.

(2) Without limiting subsection (1), protected information includes sensitive information.

sensitive information _means information that - _

(iii) has provided information to a quality assurance committee under section 35 (Quality assurance committees - obtaining information) or otherwise in the course of the committee carrying out the committee's functions under this Act; or

(b) would allow the identity of the person to be worked out.

1. Offence - secrecy of protected information

_(1) An information holder commits an offence if - _

(i) makes a record of protected information about someone else; and

(ii) is reckless about whether the information is protected information about someone else; or

(i) does something that divulges protected information about someone else; and

(A) the information is protected information about someone else; and

(B) doing the thing would result in the information being divulged to another person.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

_(2) This section does not apply to the making of a record or the divulging of information if the record is made or the information divulged - _

(b) in the exercise of a function, as an information holder, under this Act.

_(3) This section does not apply to the making of a record or the divulging of information if - _

(a) the protected information is not sensitive information; and

_(b) the record is made or the information divulged - _

(ii) in the exercise of a function, as an information holder, under another territory law.

(4) This section does not apply to the divulging of protected information about someone with the person's agreement.

(5) An information holder must not divulge protected information to a court, or produce a document containing protected information to a court, unless it is necessary to do so for this Act.

Note A quality assurance committee may give protected information to the Coroner's Court (see s 43).

court includes a tribunal, authority or person with power to require the production of documents or the answering of questions.

Human Rights Act 2004 (ACT)

1. The Tribunal drew the attention of the parties to the Human Rights Act which impacts on the proceedings in two ways: by s 30 which establishes an interpretative principle; and by s 40B which binds both the Tribunal and the Health Directorate to act in a way that is compatible with a human right. The obligation in s 40B is placed upon public authorities and this term is defined in s 40.
   1. Interpretation of laws and human rights

So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

(1) Each of the following is a public authority:

(e) a police officer, when exercising a function under a Territory

(g) an entity whose functions are or include functions of a public

nature, when it is exercising those functions for the Territory or

a public authority (whether under contract or otherwise).

_(2) However, public authority does not include - _

(a) the Legislative Assembly, except when acting in an administrative capacity; or

(b) a court, except when acting in an administrative capacity.

40B Public authorities must act consistently with human rights

(a) to act in a way that is incompatible with a human right; or

(b) in making a decision, to fail to give proper consideration to a relevant human right.

_(2) Subsection (1) does not apply if the act is done or decision made under a law in force in the Territory and - _

(a) the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or

(b) the law cannot be interpreted in a way that is consistent with a human right.

Note A law in force in the Territory includes a Territory law and a Commonwealth law.

public authority includes an entity for whom a declaration is in force under section 40D.

1. The relevant human right is found in s 16 of the Human Rights Act:
   1. Freedom of expression

(1) Everyone has the right to hold opinions without interference.

(2) Everyone has the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of borders, whether orally, in writing or in print, by way of art, or in another way chosen by him or her.

1. Section 28 of the Human Rights Act provides that human rights may be subject to some limits:
   1. Human rights may be limited

(1) Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society.

(2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:

(b) the importance of the purpose of the limitation;

(d) the relationship between the limitation and its purpose;

(e) any less restrictive means reasonably available to

achieve the purpose the limitation seeks to achieve.

Legislation Act 2001 (ACT)

1. Certain provisions of the Legislation Act 2001 (ACT) (the Legislation Act) are also relevant to the application for the review. These provisions are set out hereunder:

138 Meaning of working out the meaning of an Act - pt 14.2

(a) resolving an ambiguous or obscure provision of the Act; or

(b) confirming or displacing the apparent meaning of the Act; or

(c) finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or

(d) finding the meaning of the Act in any other case.

139 Interpretation best achieving Act's purpose

(1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.

(2) This section applies whether or not the Act's purpose is expressly stated in the Act.

Note The Human Rights Act 2004, s 30 (1) (which is about interpreting legislation to be consistent with human rights) is also relevant to interpreting territory laws.

(1) In working out the meaning of an Act, material not forming part of the Act may be considered. ...

(2) In deciding whether material not forming part of an Act should be considered in working out the meaning of the Act, and the weight to be given to the material, the following matters must be taken into account:

(a) the desirability of being able to rely on the ordinary meaning of the Act, having regard to the purpose of the Act and the provisions of the Act read in the context of the Act as a whole;

(b) the undesirability of prolonging proceedings without compensating advantage;

(c) the accessibility of the material to the public.

(3) Subsection (2) does not limit the matters that may be taken into account.

(4) For subsection (2) (c), material in the register is taken to be accessible to the public.

health practitioner means a person registered under the Health Practitioner Regulation National Law (ACT) to practise a health profession (other than as a student).

1. On 2 March 2012, the Tribunal commenced the hearing of the application. The applicant was represented by Ms Linacre of Clayton Utz, and the respondent was represented by Dr Jarvis of Counsel. In the course of the day, the respondent and the applicant made introductory submissions; the respondent led evidence from two witnesses, Ms Bracher and Ms Trickett; and the applicant cross-examined the witnesses.
2. On 26 April 2012, the Tribunal resumed the hearing, taking additional evidence from Ms Bracher and then hearing from Counsel for both parties on issues of law. The Tribunal reserved its decision.

1. The Tribunal had before it the tribunal documents filed by the Respondent on 29 September 2011; facts and contentions, and submissions filed by both parties; copies of the confidential documents alleged by the respondent to be exempt pursuant to s 42 of the FOI Act; and other documents tendered into evidence during the hearing.
2. Evidence was given to the Tribunal by two senior officials of the Health Directorate: Ms Katrina Bracher, Executive Director, Mental Health, Justice Health & Alcohol & Drug Services; and Ms Elizabeth Trickett, Executive Director, Quality and Safety Unit. Ms Bracher and Ms Trickett provided Witness Statements and appeared before the Tribunal on 2 March 2012 to give oral evidence and be subject to cross-examination by the applicant.
3. In the course of the hearing on 2 March 2012, it became apparent that it would be very time consuming to hear, by way of oral evidence, all of the evidence about the professional status of each health practitioner named in each document claimed for exemption under s 38 of the FOI Act. Accordingly, Ms Bracher prepared a detailed affidavit providing the necessary evidence and appeared before the Tribunal on the second hearing day on 26 April 2012 to confirm the affidavit material. This affidavit was received into evidence during the hearing as Exhibit R9.
4. In her witness statement dated 8 December 2011 and received into evidence as Exhibit R6, Ms Bracher described her role in conducting the internal review for Mr Allatt's FOI application and briefly described the process for the subsequent release of additional documents. She stated at paragraph 12 of the Statement:

12. Following the mediation in this matter I contacted all of the members of the Mental Health Clinical Review Committee to seek their consent to the disclosure of their names. Of the 25 Committee members, 4 could not be contacted, 17 members gave their consent and 4 members did not consent. A package of documents with the names of the 17 consenting members disclosed was released to the applicant outside the FOI process in accordance with the provisions of the Health Act 1993.

1. In her witness statement dated 9 December 2011, received into evidence as Exhibit R8, Ms Trickett described the operation of Quality Assurance Committees (QACs) within the public health system in the ACT. She described them as an essential tool in identifying systemic or operational problems in the ACT Health system, and canvassing recommendations for improvement. She described the importance of the range of skills and knowledge that members bring to the QACs and noted that they have always operated on the basis that discussion between members and documents created for or by the committee are protected from disclosure. She concluded:
   1. In my view, the perception of health care practitioners that their identities may become public knowledge pursuant to a freedom of information request would be detrimental to the ongoing success of QACs. Such a perception may in the first instance lead to a reduction in incident reporting. Thereafter, it is likely that concerns about identification may inhibit the frank and robust discussions necessary to maximize the benefit of the QAC process and may ultimately make health practitioners reluctant to be appointed to QACs.

1. The applicant and the respondent agreed that the respondent bore the onus of establishing that a decision given in respect of an FOI request was justified or that the Tribunal should give a decision adverse to the applicant. This obligation is placed upon the respondent by s 71 of the FOI Act.

Documents to which Secrecy Provisions of an Enactment Apply: Section 38 FOI Act

1. The respondent submitted that the general principles of whether a secrecy provision in an enactment attracts the exemption under s 38 of the FOI Act may be summarized as follows:
   • (i) the secrecy provision must do more than prohibit the disclosure of information identified only by reference to the capacity of the person who received the information or is in possession of it;
   • (ii) the secrecy provision cannot simply refer to information obtained in pursuance of the enactment containing the secrecy provision;
     • (iii) the secrecy provision must sufficiently identify the type of information which is the subject of the prohibition on disclosure.[8]
2. The respondent contended that s 125 of the Health Act satisfied these requirements as it had the effect of prohibiting the disclosure of protected information and sensitive information by information holders.
3. The documents for which a s 38 exemption is sought identify the names of members of the Clinical Review Committee which assessed Ms Vermeulen's case. This Committee was comprised of a number of health practitioners who are "health service providers" under s 7 of the Health Act. Importantly, the respondent submitted that the definition of "health service provider" in s 7 of the Health Act should be read as either "a health practitioner" or "other person who provides a health service". Information that identifies a health service provider is "sensitive information" as per s 124 of the Health Act, and therefore falls within the secrecy provisions of s 125 of the Health Act. The respondent submitted that in establishing whether a person is a "health practitioner" the qualification of that person, as at the date of the Tribunal's decision, is the relevant fact.
4. Any document that identifies a health service provider is accordingly exempt under s 38 of the FOI Act and there is no further public interest test in relation to this exemption.
   1. The respondent noted that the prohibition in s 125 contains certain qualifications and exceptions. But, the respondent argued, s 38 of the FOI Act provides that a document is exempt "whether or not" the prohibiting enactment has such qualifications or exceptions. It follows that it is irrelevant whether such a qualification or exception may or may not have applied to the document in question: Federal Commissioner of Taxation v Swiss Aluminium Australia Ltd.[9] Therefore, the availability of exceptions to the offence in s 125 of the Health Act is irrelevant to the operation of s 38 of the FOI Act.

Documents concerning certain operation of agencies: Section 40, FOI Act

1. In an argument that was referred to as "Plan B", the respondent contended that the disclosure of documents identifying the names of members of a Quality Assurance Committee would prejudice the effectiveness of procedures or methods for the conduct of clinical reviews and would prejudice the attainment of the objects of such clinical reviews by inhibiting the expression of views or recommendations that may lead to criticism of the Directorate, the committee or a committee member. Protection from identification of both committee members and those who provide information to the committee is essential for the type of frank and robust discussion required to obtain the full benefit of these types of review committees.
2. Further, the respondent contended that for s 40(2) of the FOI Act, the legislature has answered the question of public interest by enacting s 125 of the Health Act. The policy is clear that the legislature has intended to protect, except in limited circumstances, the disclosure of the identities of members and information-givers to QACs. The technical question of whether s 125 attracts the exemption in s 38 of the FOI Act is irrelevant to the existence of this expression of policy.
3. The fact that some members of a particular QAC have revealed their identities in a separate process does not identify any public interest served by releasing the names in the QAC documents.

1. The respondent submitted that the documents for which exemption is claimed under s 42 of the FOI Act were communications between staff of a client (the Health Directorate) and solicitors at the ACT Government Solicitor, created for the purposes of seeking and providing legal advice. Although s 42 of the FOI Act refers to documents that "would be privileged from production in legal proceedings", the respondent argued that it has been accepted in the case law that s 42 extends to documents that are privileged on the ground that they contain a confidential communication between a lawyer and a client for the dominant purpose of providing legal advice. There is nothing to suggest that legal professional privilege has been waived or otherwise lost.

Human Rights Act 2004

1. The respondent accepted that the Tribunal is a public authority for the purposes of the Human Rights Act and accordingly must act in accordance with s 40B which makes it unlawful to fail to give proper consideration to a relevant human right when making a decision. In the course of doing so, the Tribunal must interpret a law in accordance with s 30 of the Human Rights Act, which enjoins it to prefer an interpretation which is compatible with human rights so far as it is possible to do so consistently with the purpose of the law in question. The respondent also accepted for present purposes, without conceding, that the right in s 16(2) of the Human Rights Act may be engaged by a decision in relation to access under the FOI Act.
2. The respondent contended that, while a number of issues about the interpretative rule remain unexplored, one proposition has become clear. That is that the interpretive rule involves a process of statutory construction but it is not a "special rule of construction" in the sense canvassed in some overseas authorities. It might permit departure from the literal or grammatical meaning of a law, but does not permit departure from the purpose of a law or intention of a legislature.
3. The respondent submitted that s 30 of the Human Rights Act had no application in this case as it is not possible to adopt an alternative interpretation of the relevant provisions of the Health Act.
4. As an alternative, the respondent submitted that any interpretation suggested by the applicant is not a necessary product of the rule in s 30 of the Human Rights Act and any limit on rights imposed by the provisions would constitute reasonable limitations for the purposes of s 28 of the Human Rights Act. The right to freedom of expression, and accordingly the right to seek and receive information, is not absolute; it is subject to reasonable restrictions. In this case, the respondent submitted that reasonable restrictions are imposed by the FOI Act and the FOI Act cannot be interpreted in a way that is consistent with s 16 of the Human Rights Act.

Documents to which Secrecy Provisions of an Enactment Apply: Section 38 FOI Act

1. The applicant submitted that the secrecy provisions in s 125 of the Health Act do not apply to the information claimed to be exempt because:
   • (i) the release of information pursuant to the FOI application would not, in the circumstances, amount to a "reckless" release of information pursuant to s 125(1)(b)(ii) of the Health Act; and
   • (ii) the information does not identify "health service providers" as required by s 7 of the Health Act and therefore is not "sensitive information" under s 124 of the Health Act.
2. The applicant contended that s 125 contains some exceptions, but more importantly, the offence provision (which stands alone without a separate and distinct prohibition) only operates in certain circumstances. Therefore, the fact that the offence applies to the divulging of a type or genus of information is relevant only insofar as the genus or type of information to which the offence relates is limited by information divulged in a particular way, namely recklessly. According to the applicant, this not an exception to the prohibition, it goes directly to whether there is an offence. Further, the applicant argued that if there is no offence then the information is not the type to which s 125 of the Health Act applies.
3. The applicant disagreed with the respondent's submission that the definition of "health service provider" in s 7 of the Health Act should be read as either "a health practitioner" or "other person who provides a health service". The definition, in the applicant's view, should be read as "a health practitioner who provides a health service or other person who provides a health service". The applicant further argued that, if read as the respondent suggested, the provision operates differently in relation to those members of the committee who are health practitioners and those who are not. The applicant argued that there is no indication in the legislation that such differentiation was ever intended and to read in such an intention would be erroneous.
4. The applicant further contended that the respondent's submission (that in establishing whether a person is a "health practitioner" the qualification of that person, as at the date of the Tribunal's decision, is the relevant fact) is misguided. The applicant argued that the Tribunal is obliged to consider the nature of the information as at the date of the activity that the respondent submits places their information within the terms of s 125 of the FOI Act, namely the provision of the particular health service.

Documents concerning certain operation of agencies: Section 40, FOI Act

1. The applicant submitted that there are three elements to the test in s 40 of the FOI Act:
   • (i) there must be a reasonable expectation that the effect of disclosure will occur; and
   • (ii) the effect must be to prejudice the conduct or objects of the audit, test or examination; and
   • (iii) there is no overriding public interest in disclosure.
2. The applicant said that the phrase "could reasonably be expected to" in s 40(1) of the FOI Act requires an assessment of what is reasonable as compared to what is mere speculation. The applicant contended that the respondent's evidence and contentions were based on mere speculation that releasing the identities of the committee members may inhibit frank and robust discussions and may ultimately inhibit acceptance of appointment to Quality Assurance Committees by health practitioners.
3. The applicant noted that only 4 out of 25 committee members did not consent to the release of their names. In that context, a contention that the release of names of committee members may in future prevent the involvement of committee members is unsupported by the evidence.
4. The applicant also contended that is not reasonable to assert that, if a small percentage of professionals did not wish to be involved with committees on this basis, this would prejudice the effectiveness of those processes or the attainment of the objects of such processes.
5. Further, the applicant contended that disclosure of the names of committee members would not be contrary to the public interest. It is in the public interest (and consistent with the objects and purposes of the Health Act and the role of Quality Assurance Committees) that the public know how the committees are comprised. This is likely to bring comfort and assurance to the public that the committee process is appropriate and accountable. Knowledge that the membership of a review committee is appropriate is important to maintenance of public confidence in the review process for, and the improvement of, the public health system in the ACT.

1. In the applicant's Statement of Facts and Contentions dated 30 January 2012, the applicant suggested that privilege over a document at folio T68 had been waived by virtue of a voluntary disclosure. This contention was not pressed at the hearing.
2. The applicant pointed out that it is unable to access the documents for which legal professional privilege is claimed and therefore it is in a difficult position to counter assertions of facts made by the respondent. The applicant indicated that it relied on the Tribunal to examine each of the documents claimed to be exempt and determine whether the exemption has been properly claimed, having regard to well established principles which were generally agreed between the parties.
3. The applicant submitted that the respondent must establish that:
   • (i) there is a legal adviser-client relationship;
   • (ii) the communication was for the purpose of giving or receiving legal advice or for use or in connection with actual or anticipated litigation;
   • (iii) the advice given is independent; and
   • (iv) the advice given is confidential.

Human Rights Act 2004

1. The applicant cited the decision in Gardner and ACT Planning and Land Authority[10] as authority for the identification of two bases upon which the obligation of the Tribunal to consider the Human Rights Act is founded. Firstly, both the Tribunal and the respondent are bound to act in a way that is compatible with a human right and it is unlawful for the Tribunal or the respondent to fail to give proper consideration to a relevant human right due to the operation of s 40B of the Human Rights Act. Secondly, the Tribunal is bound by s 30 of the Human Rights Act which requires that, as far as it is possible to do consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
2. The applicant identified s 16 of the Human Rights Act as a relevant human right and, citing XYZ v Victoria Police,[11] contended that the right to freedom of expression includes the freedom for an individual to seek and receive information from a public authority on a subject that engages a public interest or in which the person holds a legitimate interest, subject to necessary limitations. The Tribunal must consider the right in s 16 of the Human Rights Act in making its decision and in interpreting both the FOI Act and the Health Act.

The Approach to Interpretation of the Legislation

1. The Tribunal is a public authority under s 40 of the Human Rights Act. Pursuant to amendments to the Human Rights Act effective 1 January 2009, public authorities must act consistently with human rights.
2. The Tribunal is a public authority because it is a "territory authority" within s 40(1)(b) of the Human Rights Act and is defined as a "territory authority" in the Dictionary of the Legislation Act. Although the Tribunal falls within the definition of "court" in the Human Rights Act, in this case it is acting in an administrative capacity by "standing in the shoes" of the respondent and therefore falls within the proviso in s 40(2)(b) of the Human Rights Act. The Tribunal acts in an administrative capacity by, inter alia, exercising the scope of the respondent's functions upon an application for review being filed with the Tribunal.[12]
3. In order to fulfil its responsibility under s 40B of the Human Rights Act, the Tribunal must interpret the relevant legislation in accordance with s 30 of the Human Rights Act.
4. This raises the question as to the proper approach to interpretation. In this regard the Tribunal notes the interpretation preferred by the ACT Court of Appeal in R v Fearnside[13] (Fearnside), as amplified by Refshauge J in Hakimi v Legal Aid Commission (ACT); Australian Capital Territory (Intervener_)_[14] (Hakimi). Besanko J in Fearnside, with whom Gray P and Penfold J agreed, held that in a case such as the present, there is a three stage process that must be adopted in discerning the human rights issues.

First, it is necessary to consider whether [the legislation] "enlivens" a human right. Secondly, if, but only if, the answer to the first question is yes, it is necessary to consider whether [the legislation] contains a limitation which is reasonable within s 28. Thirdly, if, but only if, the answer to the first question is yes and the answer to the second question is no, it is necessary to consider and apply the interpretative principle in s 30.[15]

1. However, in this case, the primary focus of the human rights inquiry is upon the interpretation of both the FOI Act and the Health Act. This aspect was the major focus of the parties' submissions about the operation of the Human Rights Act. As will be demonstrated below, the Tribunal has adopted a conventional interpretation of the provisions to make its decision. This interpretation is supported by an interpretation which is compatible with the relevant human right under s 30 of the Human Rights Act. Although the Tribunal has reached its conclusion upon a conventional interpretation, this interpretation must be supplemented by a proper consideration by the Tribunal of the relevant human right pursuant to s 40B of the Human Rights Act. In this case, the conventional interpretation is bolstered by an interpretation that complies with s 30 of the Human Rights Act. Because the Tribunal is primarily relying on a conventional statutory interpretation which is bolstered by a human rights approach, the Tribunal does not consider that it is necessary to consider whether the legislation contains a limitation which is reasonable within s 28 of the Human Rights Act.
   1. As a consequence, the Tribunal will, with respect, follow the sequence adopted by Penfold J in Re Application for Bail by Islam, (Re Islam)[16] who, after having regard to the authorities and the explanatory material about the Human Rights Act, held that s 30 should be applied at an early stage in the process of interpreting legislation, rather than at the end and only after an unsuccessful justification inquiry had been undertaken under s 28 of the Human Rights Act.

1. As stated above, the respondent accepted, without conceding, that the right in s 16(2) of the Human Rights Act may be enlivened or engaged by a decision in relation to access under the FOI Act. Although s 16 of the Human Rights Act is headed "Freedom of expression", the text of s 16(2) states that the right includes "the freedom to seek, receive and impart information of all kinds". As noted by the applicant, the language used in s 16 of the Human Rights Act to "seek, receive and impart" information is modelled on Article 19(2) of the International Covenant on Civil and Political Rights. In this respect, the applicant relied upon the extensive discussion by Bell J in XYZ v Victoria Police,[17] of the background to Article 19(2) and the emphasis given by the United Nations to freedom of information as an element of freedom of expression. His Honour stated:

This account shows that freedom of information was seen to be a fundamental human right of central importance to the purposes of the United Nations, which included recognition of the dignity and worth of every individual. The United Nations recognised that freedom of information was essential to the promotion of peace and political, social and economic progress in the world. The philosophy behind freedom of information, as articulated by the General Assembly of the United Nations and its constituents, was a broad one. The philosophy encompassed but it was not confined to the values of governmental accountability and democratic participation. The 'right' to freedom of information was expressed in terms of the 'freedom' of individuals to 'seek, receive and impart' information.[18]

1. The Tribunal considers that the right to freedom of expression which includes a freedom to seek, receive and impart information in s 16(2) of the Human Rights Act is engaged by the issues in dispute in this case. In this case the respondent has claimed certain exemptions operate to exclude certain documents from the applicant's right of access to documents in s 10 of the FOI Act. This must necessarily restrain the applicant's right to seek and receive information under s 16(2) of the Human Rights Act.

The General Approach to the Interpretative Task

1. It is now clear from judicial comment in a number of cases in the ACT, Victoria and more recently in the High Court which have examined s 30 of the Human Rights Act and its equivalents in other jurisdictions that, although the interpretive rule in s 30 of the Human Rights Act involves a process of statutory construction, it is not intended to create a "special" rule of interpretation. The Victorian Court of Appeal in R v Momcilovic[19] held that the words "consistently with [its] purpose", in s 32(1) of the Charter of Human Rights and Responsibilities ACT 2006 (Vic) (i.e. the Victorian equivalent of s 30 of the Human Rights Act) "stamped s 32(1) with a quite different character" to s 3(1) of the UK Human Rights Act and that "the inclusion of the purpose requirement made it unambiguously clear that nothing in s 32(1) justified, let alone required, an interpretation of a statutory provision which overrode the intention of the enacting Parliament."[20]
2. The Victorian Court of Appeal's views about the interpretive obligation in s 32(1) of the Charter of Human Rights and Responsibilities ACT 2006 (Vic) were upheld by the High Court in Momcilovic v The Queen [21] (Momcilovic), although other aspects of the Court of Appeal's decision were overturned. The majority of the High Court bench held that s 32(1) was an ordinary rule of interpretation. French CJ stated that that provision:

requires statutes to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms.[22]

1. In Re Islam, Penfold J proposed a process to follow after a court or tribunal has determined that the human right is engaged. The process uses the approach adopted by the Victorian Court of Appeal in Momcilovic but has an "ACT gloss to take account of section 139 of the Legislation Act".[23] In the respectful view of the Tribunal, this approach has not been disturbed the High Court's reasoning in Momcilovic. The approach involves the following steps:

Step 1: Identify all meanings of the provision that are available under ordinary principles of statutory interpretation and consistent with legislative purpose (the available meanings), including meanings generated by applying s 30 of the Human Rights Act but also meanings that would be available apart from s 30.

Step 2: Set aside for the time being any available meaning that is not human rights-compatible under s 30.

Step 3: Examine the remaining available meanings (that is, those that are human rights-compatible).

Step 3A: If there are one or more available meanings that are human rights-compatible, then that meaning, or the one of those meanings required by s 139 of the Legislation Act to be preferred, is adopted.

Step 3B: If there are no available meanings left (that is, there were no available meanings that were also human rights-compatible), re-instate the non-compatible available meanings set aside at Step 2.

Step 4: Undertake an inquiry under s 28 of the Human Rights Act into whether any of those re-instated available meanings can be justified.

Step 4A: If only one meaning can be justified, it is adopted.

Step 4B: If two or more available meanings can be justified, then a choice must be made between them; in the ACT that choice would seem to be directed by s 139 in favour of the available meaning that best achieves the legislative purpose. In the absence of such a provision the choice would be less constrained and might, for instance, include a consideration of which meaning had the least impact on relevant human rights.

Step 4C: If none of the available meanings can be justified, then the available meaning or one of the multiple available meanings (in the ACT chosen as required by s 139) is adopted, and a declaration of incompatibility may be considered.

1. Although the Tribunal has extracted all of the steps set out by Penfold J in Re Islam so as to fully contextualise the Tribunal's reasoning, it will only be necessary for the Tribunal to analyse Steps 1 to 3A in this application for review because, as discussed above, it has concluded that it can adopt meanings that are both required by s 139 of the Legislation Act and are human rights-compatible and therefore those meanings will be adopted in this case.

Identifying Meanings that are Available under the Ordinary Principles of Statutory Interpretation

1. In interpreting the legislation, the primary task of the Tribunal is to apply s 139 of the Legislation Act in order to discern the interpretation that best achieves the purpose of the legislation.[24] The Tribunal must find the meaning of the relevant provisions because competing but plausible interpretations have been put forward by the parties.[25]
2. The interpretive task must begin with a close attention to the text of the relevant legislation. This is articulated in s 141(2)(a) of the Legislation Act, which refers to the desirability of being able to rely upon the ordinary meaning of the Act, having regard to the purpose of the Act and the provisions of the Act read in the context of the Act as a whole. It is also is a requirement of the general law.
3. If, as will be discussed below, the Tribunal encounters an ambiguity or obscurity, it may consider material (such as an explanatory statement) in working out the meaning of an Act, in accordance with s 142 and Table 142 of the Legislation Act.

Documents to Which Secrecy Provisions of an Enactment Apply - Section 38 FOI Act

1. The Tribunal considered the written and oral submissions of the parties, s 38 of the FOI Act, the proper interpretation of the relevant provisions of the Health Act, and the effect of the Human Rights Act on the interpretation of the Health Act. The Tribunal finds that s 38 of the FOI Act does not apply in relation to these requests.
2. In interpreting s 38 of the FOI Act and the relevant provisions of the Health Act, the Tribunal must adopt a purpose that best achieves the purpose of the Acts. The objects of the FOI Act are set out in s 2(1), which states:

_(1) The object of this Act is to extend as far as possible the right of the Australian community and, in particular, the citizens of the Territory, to access to information in the possession of the Territory by - _

(a) making available to the public information about the operations of agencies and, in particular, ensuring that rules and practices affecting members of the public in their dealings with agencies are readily available to persons affected by those rules and practices; and

(b) creating a general right of access to information in documentary form in the possession of Ministers and agencies, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies.

1. Section 2(2) of the FOI Act states that the provisions of the FOI shall be interpreted so as to further the objects set out subsection (1) and:

to ensure that discretions conferred by this Act are exercised as far as possible to facilitate and promote .... the disclosure of information.

1. The long title of the Health Act is "[a]n act relating to the provision of health services". The health care principles are set out in s 10 of the Health Act. Some of the relevant principles are set out below:

In providing health services the Territory must have regard to the following objectives:

(a) to improve the efficiency, effectiveness and quality of health services; ...

(d) to support worker and community participation in the development of policies for the delivery of health services;

(e) to ensure that the community is aware of the range of health services that is available and that patients have information that is sufficient to enable them to make informed choices: ... .

1. As will be elaborated below, the Tribunal has encountered a genuine ambiguity in the relevant legislation and therefore, in accordance with s 142 and Table 142 of the Legislation Act, has consulted the Explanatory Statement to the Health Legislation Amendment Bill 2006 which inserted Part 8 into the Health Act. The purpose of the new Part 8 of the Health Act was said to be as follows:

The new part 8 relates to Secrecy. It governs how protected, sensitive and other information relating to this Amended Act should be divulged or communicated. The purpose is to clarify and streamline the legislation governing such information. It aims to balance principles of confidentiality and open disclosure.[26]

1. It is noteworthy that the purpose of Part 8 includes an aim to balance the principles of confidentiality and open disclosure and in this respect it differs somewhat from the secrecy provisions applying to QACs in other jurisdictions where the QAC information is expressly carved out from the operation of the relevant FOI Act.[27]
2. Turing to the text of the relevant provisions, both parties agreed that the respondent is an "information holder" for the purposes of s 122 of the Health Act.
3. Section 125 of the Health Act is enlivened only in relation to "protected information", which is defined in s 123 to include "sensitive information". "Sensitive information" is defined in s 124 of the Health Act, relevantly, to include information that identifies a person who:

(iii) has provided information to a quality assurance committee under s 35 (Quality assurance committees - obtaining information) or otherwise in the course of the committee carrying out the committee's functions under this Act; or ...

1. The respondent submitted that a member of a QAC is a "health service provider" as defined in s 7(a) of the Health Act i.e. "a health practitioner or other person who provides a health service ...". Whether this is the case raises an issue of interpretation, namely, whether the paragraph should be construed as:
   1. disjunctive i.e. a "health practitioner" and an "other person who provides a health service"; or
   2. conjunctive i.e. a "health practitioner who provides a health service" and an "other person who provides a health service".
2. The respondent urged the first, disjunctive, interpretation citing the legislative history and legislative intent which suggested a difference in treatment between a person who is registered under the Health Practitioner Regulation National Law (a "health practitioner") and persons who are not registered but may nevertheless provide a "health service" as defined in s 5 of the Health Act. The respondent submitted that a differentiation was intended in the operation of the Act between those members of a QAC who were health practitioners and those who were not. The respondent also argued that if the conjunctive interpretation is adopted, the words "health practitioner" are superfluous and this therefore could not be what the legislature intended.
3. Conversely, the applicant pointed to the definition of "health service" in s 5 of the Health Act which requires that a "health service" is provided to someone for assessing, recording, maintaining or improving the physical, mental or emotional health, comfort or wellbeing of the service user or diagnosing, treating or preventing an illness, disability, disorder or condition of the service user. The applicant argued that the consequence of the respondent's suggested interpretation is that information that identifies a "health practitioner" at large is sensitive information and that health practitioners cannot be providing health services in every aspect of their lives in everything that they do. Ms Linacre on behalf of the applicant said that the construction put forward by the applicant requires an examination by the Tribunal of whether the health practitioners are, in fact, providing health services to service users - not to the community at large or to the general public as a body - but to particular service users.[28]
4. The Tribunal concludes that there is a genuine ambiguity in the definition of "health service provider" in s 7(a) of the Health Act and therefore the provision must be interpreted to resolve the ambiguity.[29] The meaning of the provisions that best achieves the purpose of the legislation - both the Health Act and the FOI Act - must be preferred pursuant to s 139 of the Legislation Act. In this respect, the Tribunal takes into account the following in working out the meaning the definition of "health service provider":

a) the applicant's legally enforceable right under s 10 of the FOI Act to obtain a document of an agency;

b) the need to facilitate and promote the disclosure of information in s 2 of the FOI Act;

c) the health care principles set out in s 10 of the Health Act;

d) the reference in the Explanatory Statement to the Health Legislation Amendment Bill 2006[30] to the need to balance confidentiality and open disclosure when interpreting Part 8 of the Health Act.

e) the description of "sensitive information" in the Explanatory Statement to the Health Legislation Amendment Bill 2006[31] which says that the term means "any information that identifies a person who has received or provided a health service". This description supports the applicant's conjunctive analysis of the term "health service provider", when applied in this case, by linking the health practitioner to the provision of a health service.

1. Further, an interpretation of the definition of "health service provider" in s 7(a) of the Health Act which promotes compatibility with a human right should be preferred.[32] In this case, the conjunctive construction urged by the applicant should be adopted as it will enhance the freedom to receive information.[33]
2. The effect of this interpretation is that, because a person is not providing a "health service" (as defined in s 5) when performing the duties of a QAC member, identification of a member of a QAC is not "sensitive information" pursuant to s 124(a)(ii) of the Health Act above.
3. In relation to s 124(a)(iii) of the Health Act, the respondent submitted that a QAC member "has provided information to a quality assurance committee ... otherwise in the course of the committee carrying out the committee's functions ..." by their attendance at and participation in the committee meeting. The member must necessarily have provided information to the committee unless they remained entirely mute throughout the meeting. Again, the Tribunal must prefer an interpretation that best achieves the purpose of the legislation and because it needs to work out the meaning of the words of in s 124(a)(iii) of the Health Act, it may resort to extrinsic materials, due to the combined effect of ss 138 and 142 of the Legislation Act.
4. The Tribunal agrees that the respondent's interpretation is arguable, however it considers an alternative interpretation, namely that s 124(a)(iii) is directed towards persons external to the committee who provide information to it, is more compatible with the purposes enunciated in ss 2 and 10 of the FOI Act and the provisions of the Explanatory Statement to the Health Legislation Amendment Bill 2006, which explain the need to balance confidentiality and open disclosure when interpreting Part 8 of the Health Act and state that Part 8 "is designed to reinforce the confidentiality of information about third parties."[34] This interpretation is also compatible with the human right to receive information in s 16 of the Human Rights Act.
5. The Tribunal holds that information that identifies a QAC member is not "sensitive information", as defined in s 124 of the Health Act. The respondent urged that the overall statutory intention was to protect the anonymity of QAC members, however the Tribunal considers that this is not the primary focus of the secrecy provisions. Rather, the focus is on protecting from disclosure the identity of health service receivers and treating health practitioners and information provided in confidence to QACs. If protecting the identity of QAC members from disclosure was an important consideration, s 124(a) could easily have included a specific subparagraph to that effect.
6. The Tribunal also accepts the contentions of the applicant that s 125 is not a provision which enlivens s 38 of the FOI Act. Part 8 of the Health Act does not include a general provision which prohibits unauthorised disclosure of information in broad terms. Rather, s 125(1)(b) creates an offence where an information holder divulges protected information and is reckless in making that disclosure. In this respect, the respondent argued that s 38 of the FOI Act applied whether or not there are qualifications or exceptions in s 125 of the Health Act. In this case, the respondent said that due to the wide drafting of s 38 of the FOI Act, the secrecy provision in s 125 of the Health Act will operate to exempt documents whether or not the prohibition in s 125 of the Health Act is absolute or contains qualifications or exceptions. Here, recklessness in s 125 is a qualification but it is immaterial whether or not the offence in s 125 can be established in order to claim the exemption in s 38 of the FOI Act.
7. The Tribunal examined closely the authorities relied upon by the respondent for this proposition, particularly News Corporation Ltd v National Companies and Securities Commission,[35] Federal Commissioner of Taxation v Swiss Aluminum Australian Ltd[36] and Harrigan v Department of Health[37] but found that these cases are distinguishable because none of secrecy provisions are comparable to s 125 of the Health Act. In fact, the Tribunal has been unable to locate a comparable secrecy provision in the case law generally but notes the comments made by the New South Wales Administrative Decisions Tribunal Appeal Panel in Law Society of New South Wales v General Manager, WorkCover Authority of New South Wales (No 2) [38] when considering the effect of the "qualifications or exceptions" phrase in similar NSW provisions. After discussing the early decision of DP Hall in Re Lianos and Secretary to the Department Of Social Security,[39] the members of the ADTAP said that the phrase is:

...not intended to create a blanket prohibition on disclosure under the FOI Act in cases where the qualifications and exceptions in a secrecy provision would permit disclosure.[40]

1. The Tribunal concludes that recklessness is an integral element of the offence in s 125 of the Health Act, and is not, as the respondent contended, a matter of "exceptions or qualifications" within the meaning of s 38 of the FOI Act. In making a release of information authorised by the FOI Act, an information holder would not be acting in a reckless manner and therefore no offence is committed under s 125(1) of the Health Act. Section 38 of the FOI Act is inapplicable as the information disclosed is not of a kind to which s 125 applies.

Documents Concerning Certain Operations of Agencies - Section 40 FOI Act

1. As stated above, the respondent agreed that the claim for exemption under s 40 of the FOI Act was in the nature of a "back up" to the principal exemption claimed under s 38 of the FOI Act. Nevertheless, the claim for exemption under s 40 has substantial merit. Ms Trickett and Ms Bracher both emphasized in strong terms how non-identification of participants in the clinical review process is a critical element in the effectiveness of that process. The respondent's Reply dated 14 February 2012 also addressed this issue in depth.
2. The respondent relied on s 40(1)(a) and (b) of the FOI Act where "prejudice" must be identified and not s 40(1)(d) where a "substantial adverse effect" is required. The Tribunal accepts the respondent's oral submission that paragraphs (a) and (b) require only "prejudice" to be established; the prejudice does not have to be substantial. However the level of prejudice is very relevant to the public interest test in s 40(2) of the FOI Act, where the likely prejudicial effect is balanced against any public interest in disclosure.
3. Reference was made by the respondent to an article entitled "A robust clinical review process: the catalyst for clinical governance in an Australian tertiary hospital" by Mitchell, Antoniou, Gosper, Mollett, Hurwitz and Bessell, published in the Medical Journal of Australia in 2008.[41] The respondent contended that this study of a Clinical Review Committee (CRC) at Canberra Hospital between 2002 and 2006 supported their view of the importance of non-identification of CRC members.
4. Mitchell et al state the following:

Introduction of the systematic clinical review process has not been without difficulties. Its set-up and maintenance has been time-consuming and dependent on a small number of enthusiastic people. Some craft groups did not initially embrace the clinical review process, but the resistance to take part has declined over time. This change in behaviour occurred through active participation (eg, CRC membership) and also through an understanding, gained from face-to-face meetings, that adverse events are investigated consistently and independently in accord with transparent processes.

The qualified privilege conferred on the CRC appears to have helped with acceptance of the clinical review process. Previously, clinicians were reluctant to discuss adverse events for fear of reprisal (defamation, litigation). However, with the knowledge that documents relating to CRC investigations were not admissible in a court of law, only rarely did clinicians refuse to take part. With the clinical review process now embedded in the hospital culture, clinicians have welcomed a consumer representative onto the CRC and the introduction of open disclosure. [42]

1. The Tribunal takes a different view of this article from that taken by the respondent. The Tribunal considers that the main focus of the article is on the importance of protection from legal action (which was introduced into the Health Act by the Health Legislation Amendment Act 2006 and is now set out in s 35(3) of the Health Act) rather than the importance of non-identification of CRC participants. This distinction is also given some support by the Explanatory Statement to the Health Legislation Amendment Bill 2006, which introduced the current definitions of health service and health service provider and new Part 8 Secrecy. It states in the introduction to Part 8:

The new Part 8 relates to Secrecy. It governs how protected, sensitive and other information relating to this Amended Act should be divulged or communicated. The purpose is to clarify and streamline the legislation governing such information. It aims to balance principles of confidentiality and open disclosure.

The part is designed to reinforce the confidentiality of information about third parties, and therefore to reinforce the integrity of quality assurance and clinical privileges committees. Members of Committees should be encouraged to facilitate the gathering of information regarding health topics, and may not do so if they fear that the information could be revealed in open court by another person.[43]

1. The information sought by the applicant constituted the names of the members of the Mental Health Clincial Review Committee that reviewed the treatment of Ms Vermeulen in 2009, not to every member of the wider Mental Health Clincial Review Committee. [44] The Tribunal accepts that some inconvenience to the QAC process may occur if the names of those persons participating in a particular meeting of the Mental Health Clinical Review Committee are publicly disclosed, namely, that some members may be reluctant to participate in particular reviews other than on an anonymous basis. However, the respondent did not adduce any tangible evidence that prejudice would occur to the procedures of or to the attainment of the objects of the agency. Although it was assumed by both witnesses for the respondent that things might not go as smoothly if the information was revealed, there was no evidence of actual prejudice or of any circumstance which had changed for the better since secrecy provisions have been put in place. In her evidence during the hearing, Ms Trickett denied that there would be a decline in the reporting of adverse incidents.
2. Tribunal finds it difficult to accept that this assumed reluctance to participate would apply to identification of those ACT Health staff members who are appointed to a CRC. This is a part of their overall responsibility as employees of ACT Health and it is difficult to see how their inclusion in a group of staff members appointed to a CRC at a particular time could cause personal problems for them.
3. Even if it is assumed that some prejudice will be suffered by the respondent sufficient for the purposes of s 40(1)(a) and s 40(1)(b) of the FOI Act, the Tribunal considers that there is a high public interest in transparency and accountability of the CRC process. While it is extremely important to the process that individual views and opinions are not attributed to the author of those opinions, identification of the members' collective views and identities, in the opinion of the Tribunal, carries fewer risks. On balance, the Tribunal considers that the public interest is in favour of disclosure. Therefore, s 40(2) of the FOI Act operates so that the relevant documents are not exempt under s 40(1) of the FOI Act.

Documents Subject to Legal Professional Privilege - Section 42 FOI Act

1. The parties were generally in agreement about the principles to be applied in determining whether documents are subject to legal professional privilege and the Tribunal applied those principles to the documents subject to the claim for exemption under s 42 of the FOI Act. These principles have been expressed in earlier decisions of the Tribunal such as Thornton v DPP[45] and Sernack & ACT Treasury.[46]
2. The Tribunal reviewed detailed evidence from the respondent about the author, recipient and subject matter of each document and was satisfied that each document properly attracted legal professional privilege. There was no evidence to support the allegation of waiver made by the applicant in the facts and contentions filed in the proceedings. The Tribunal does not accept that a waiver has occurred.

1. As stated above, the applicant asked the Tribunal to consider whether Documents 60-62 of the Amended Schedule should be released.
2. The Tribunal was provided with unredacted versions of Documents 60 and 61 and determining whether or not the complete copies of these documents should be released requires an assessment of whether they fell within the scope of the applicant's FOI requests. The Tribunal examined the unredacted copies of the documents and considers that the information that has not been released is outside the scope of both requests. It is outside the first FOI request (dated 14 February 2011) because neither document addresses the Mental Health Clinical Review Committee process relating to Ms Vermeulen and it is beyond the scope of the second FOI request (dated 18 March 2011) because the information does not address how the Health Directorate came to its current understanding of the meaning and operation of s 125 of the Health Act. The scope of the second request is fairly narrow and the Tribunal is satisfied that the redacted versions of Documents 60 and 61 capture the information that falls within the scope of the second request.
3. Document 62 of the Amended Schedule is of the same genus as the documents that were claimed by the respondent to be exempt under s 38 of the FOI Act and s 125 of the Health Act as well as exempt under s 40 of the FOI Act. The Tribunal's reasoning regarding these exemptions is set out above. This reasoning applies to Document 62, therefore it will be subject to the same orders as the other documents affected by these alleged exemptions.

1. The Tribunal finds that the names of the Quality Assurance Committee members that reviewed the treatment of Ms Vermeulen in 2009 is not "sensitive information", as defined in s 124 of the Health Act, and is not "protected information", as defined in s 123 of that Act. If an information holder divulges information about names under the FOI Act, that action would not enliven the operation of s 125 of the Health Act because the information is not "protected information" and the disclosure would not be "reckless" for the purposes of s 125(1)(b)(ii). Documents relating to the identity of members of a Quality Review Committee are therefore not exempt from release to the applicant under s 38 of the FOI Act.
2. The Tribunal finds that the public release of the names of members of a Clinical Review Committee involved in the assessment of a particular case may cause some detriment to the effectiveness of, and the attainment of the objects of, the quality review process in the ACT public health system. However, even assuming that this detriment amounts to prejudice for the purposes of ss 40(1)(a) and 40(1)(b) of the FOI Act, it is outweighed by the substantial public interest in ensuring transparency, accountability and public confidence in the review processes of that system. Documents relating to the identity of members of a Quality Review Committee are therefore not exempt from release to the applicant under s 40 of the FOI Act.
   1. The Tribunal therefore orders the release to the applicant under the FOI Act of documents nos. 11 - 22, 24 - 47, 49 - 51, 53 59 and 62 in an unredacted form in accordance with the orders set out above.
3. The Tribunal finds that documents nos. 1 - 10, 23, 48, 52 and 54 - 58 are properly the subject of a claim for legal professional privilege and are therefore exempt from release to the applicant under s 42 of the FOI Act. It also finds that the material redacted from documents 60 and 61 is outside the scope of the applicant's FOI requests. Therefore, in relation to documents 1 - 10, 23, 48, 52, 54 - 58, 60 and 61 the respondent's decision is confirmed.

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

[1] The Notice of Decision and accompanying schedules are at T15 at page T91 ff

[4] T7 at pages T43 (reference to folios 101-110) and T67

[5] T7 at pages T43 (reference to folios 112-118) and page T70

[8] Harrigan v Department of Health (1986) 72 ALR 293

[9] (1986) 10 FCR 321 at 161-162 per Bowen CJ, 168-9 per Jackson J

[10] [2010] ACAT 64

[11] [2010] VCAT 255

[12] Thomson v ACT Planning and Land Authority [2009] ACAT 38 at [35]

[13] [2009] ACTCA 3; (2009) 165 ACTR 22

[14] [2009] ACTSC 48; (2009) 227 FLR 462

[15] [2009] ACTCA 3; (2009) 165 ACTR 22 at [93]

[16] [2010] ACTSC 147; (2010) 244 FLR 158 at [232]

[17] [2010] VCAT 255

[18] XYZ v Victoria Police (General) [2010] VCAT 255 at [423]

[19] (2010) 25 VR 436; (2010) 265 ALR 751; [2010] VSCA 50,

[20] (2010) 25 VR 436; (2010) 265 ALR 751; [2010] VSCA 50 at [74]

[21] (2011) 85 ALJR 957 ; 280 ALR 221; [2011] HCA 34

[22] (2011) 85 ALJR 957; 280 ALR 221; [2011] HCA 34 at [51],

[23] Re Application for Bail by Islam [2010] ACTSC 147; (2010) 244 FLR 158 at 236

[24] Kingsley's Chicken Pty Ltd and Queensland Investment Corporation and Canberra Investments Pty Ltd [2006] ACTCA 9 at [40]

[25] Section 138 Legislation Act 2001

[26] Explanatory Statement, Health Legislation Amendment Bill 2006, 11 May 2006, page 13.

[27] See for example s 124Y Health Insurance Act 1973 (Cth), s 20G Health Administration Act 1982 (NSW) and s 139(3) Health Services Act 1988 (Vic). See generally the Open Disclosure Document filed by the respondent on 27 April 2012, page 12.

[28] Transcript, 2 March 2012, p32 at 15 - 27

[29] Section 138 Legislation Act 2001

[30] Explanatory Statement, Health Legislation Amendment Bill 2006, 11 May 2006, page 13.

[31] Explanatory Statement, Health Legislation Amendment Bill 2006, 11 May 2006, at clause 124

[32] Section 30 Human Rights Act 2004

[33] Section 16 Human Rights Act 2004

[34] Explanatory Statement, Health Legislation Amendment Bill 2006, 11 May 2006, page 13.

[36] (1986) 10 FCR 321

[37] (1986) 72 ALR 293

[38] [2005] NSWADTAP 33

[39] (1985) 7 ALD 475

[40] [2005] NSWADTAP 33 at [153]

[41] Med J Aust 2008; 189 (8): 451-455

[42] I Mitchell, B Antoniou, J Gosper, J Mollett, M Hurwitz and T Bessell, "A robust clinical review process: the catalyst for clinical governance in an Australian tertiary hospital", Med J Aust 2008; 189(8): 451-455 at 455, filed by the respondent on 15 February 2012

[43] Explanatory Statement, Health Legislation Amendment Bill 2006, 11 May 2006, page 13.

[44] Transcript, 26 April 2012, page 101 lines 19-21

[45] [2009] ACAT 40

[46] [2010] ACAT 40