1. Twenty-eight days from this day access is granted to the following documents:

* Document 54 with the exception of the last sentence of the memorandum on page 1;

* Document 39(c) except for the dot point paragraph under the second table;

* Document 39(d) except the names of the wards in the second table;

* Document 8 page 1 except the table "Incidents by type and department";

* Document 225 (first page only except at the break down of incidents by department);

2. Document 47(b) of list of documents from Box Hill Hospital is remitted to the respondent for further consideration.

3. The respondent's determination is otherwise affirmed.

For the Applicants: Mr Dreyfus of Counsel instructed by Minter Ellison

For the Respondent: Mr McLean of Counsel instructed by Corrs Chambers Westgarth

1. An adverse medical event has been defined as being:

2. Results in disability, death or prolongation of hospital stay and is

3. Caused by health care management rather than the patient's disease"

(The definition is taken from an article "The Quality in Australian Health Care Study" by Ross McL. Wilson, William B. Runsonman, Robert W. Gibberd, Bernadette T. Harrison, Liza Newby and John D. Hamilton (1995) 163 the Medical Journal of Australia 458).

2. According to Dr Michael Coglin, a former Deputy Director of Medical Services at the Alfred Hospital, the methodology employed in the Quality in Health Care Study would suggest that some 26,770 adverse medical events would have occurred at the Alfred Hospital in the period July 1995 to January 1999. This figure must be judged against the hospital's having approximately 45,000 admissions per year. Present arrangements for recording adverse medical events at the Alfred, according to Dr Coglin, document "approximately 100 - 200 medical events ... per month by means of completion of a formal incident form". These figures, significant as they are, must also be judged against the precise ambit of the definition against which adverse medical events are measured. The definition if strictly applied would not classify events in which a hospital stay which might have been anticipated to be relatively without discomfort was transformed to one attended by significant pain or nausea - so long as no permanent disability resulted and the stay in hospital was not prolonged. Likewise an incident which led to no permanent disability or prolongation of hospital stay but protracted the period of convalescence at home, would not appear to fall within the definition.

3. This proceeding has had a tortuous history which it would be unprofitable to seek to narrate. By consent orders made 2 July this year, the applicants who are two journalists employed by The Age newspaper, focused their application to the respondent Inner and Eastern Health Care Network, upon all documents:

(a) received by the Network's Quality Improvement Committee and the Network Quality Council between 1 July 1997 and 31 January 1999 ("the period") from the Peak Quality Committees ("the Peak Quality Committees") of the Box Hill, Angliss, Maroondah, Peter MacCallum and Alfred Hospitals ("the hospitals") in relation to adverse medical events; and

(b) created by the Peak Quality Committees of the hospitals during the period in relation to adverse medical events; and

(c) created and presented by the Network Quality Improvement Committee or the Network Quality Care Council to the Board of the Network during a period in relation to adverse medical events.

The applicants have stressed that they seek access to no documents which are either patient or practitioner specific.

4. The network system is a new system of management introduced for public hospitals in Victoria which previously dealt directly with the State Department of Human Services or its predecessors. The Inner and Eastern Network as its name suggests, covers hospitals in the inner-city area and those in the eastern metropolitan area of Melbourne. The Network includes some 10 hospital campuses ranging from the Alfred Hospital, a major teaching hospital and trauma centre situated in Prahran, to smaller hospitals in the outer eastern metropolitan area such as the Angliss Hospital and the Maroondah Hospital.

5. Approximately 300 documents were found to be within the scope of the applicants' request. A large number of documents, said by the Network to be 61 percent of the total, including all those generated at the Network as distinct from the hospital level, were released. This left approximately 150 documents in dispute. At my request, the parties nominated some 44 documents for adjudication at the hearing. I stated that if adjudication upon those documents did not resolve issues relating to any of the balance of the 150 documents, I would undertake a supplementary adjudication. The 44 disputed documents were further reduced by a small number of releases undertaken in the course of the hearing.

6. The major response by hospitals and administrators to the issue of adverse medical events is the quality assurance movement. Quality assurance was established in Victorian hospitals in the 1970s and has been evolving since. The Inner and Eastern Health Care Network has a Quality Council. Each of the hospitals has a Peak Quality or Quality Council or Committee. The precise details of those councils varies from hospital to hospital as does the designation of these bodies. The Australian Council of Health Standards has been established to provide accreditation services and to set benchmarks for quality performance. The Council publishes and collects information as to a wide range of "clinical indicators" in Australian hospitals.. These indicators measure a variety of matters such as infection rates, rates of hospital acquired Bacteraemia (blood poisoning), unplanned readmissions and so forth which give an indication of the quality of care in hospitals.

7. The precise role of the various bodies was not explored at great length in the evidence. Dr Coglin gave a graphic illustration of the change in medical culture which he has perceived over his career. Early in his career he worked at a Victorian country hospital. During his term of service there he saw three patients die as a result of what was evident to him and other medical practitioners at the hospital, as being the incompetence of the treating practitioners. The medical ethos at that time was that each practitioner had sole authority with respect to the treatment of those classified as his or her patients. None of the other practitioners felt that he or she had the authority to interfere in these sad events, either before or after the death of the patients. Now, according to Dr Coglin, and the other witnesses called by the Network, all significant adverse events are the subject of rigorous review by way of peer group assessment. Professor Ryan, the Chief of Clinical Services of the Network, a former dean of medicine at the University of Melbourne Medical School and a distinguished clinician, said that this peer review process took place within each department or unit of the hospital. The various councils and committees whose documents form part of those in dispute in this proceeding are not, at least directly, the forums within which these processes take place. As I understood it, these committees co-ordinate and facilitate quality improvement projects at the unit and department level, set goals for units and departments and receive reports from them but do not themselves, at least directly, conduct the peer review processes which are at the heart of quality improvement programs. Nevertheless, since they receive reports on these matters, disclosure of documents generated at that level within hospitals has the potential to disclose information which was originally generated by discussion between clinicians at the department or unit level.

8. All of the large number of distinguished clinicians and administrators called as witnesses by the respondent said that clinicians (which expression includes not only medical practitioners but also nurses and allied professions) in hospitals in the Network proceeded upon the assumption that all disclosures made in the course of quality improvement programs were protected by a form of statutory immunity or privilege established by Section 139 of the Health Care Services Act 1998. For a variety of reasons this seems to be a substantial exaggeration of the effect of Section 139 whose true operation I will discuss later in these reasons.

9. The Network relied upon two exemptions, namely those constituted by Section 35(1)(b) and Section 30(1) of the Freedom of Information Act 1982.

10. The exemption established by Section 35(1)(b) is in the following terms:

"35. Documents containing material obtained in confidence

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

(a) the information would be exempt matter if it were generated by an agency or a Minister; or

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

In Thwaites v Department of Health and Community Services (1995) 8 VAR 361, 366-7 (a previous decision of mine to which I will make further reference later), I had occasion to deal at some length with this exemption. I take the liberty of reproducing what I there said (correcting one error in a quotation from Young CJ which appears in the original):

"In Ryder v Booth [1985] VicRp 86; [1985] VR 869 at 871, Young CJ said that the exemption created by s.35(1)(b) might be read as covering a situation where "the disclosure of the information would impair the ability of the agency to obtain similar information in the future." In Re Pepperell and Ministry of Housing & Construction (1989) 3 VAR 191 Mr Galvin considered the question in what circumstances information would be regarded for the purposes as the section as "having been communicated in confidence". He referred to an unreported decision of Judge Hassett given in the County Court in the matter of Deasey v Geskhe and said:

"It would appear to be an arguable conclusion from His Honour's words that, in his view, in determining whether information was communicated in confidence, it is sufficient to have regard either to the intention of the author or the attitude of the recipient.

An actual understanding as to confidentiality on the part of the recipient would not appear to be essential."

"Where confidentiality is apparent from the nature of the information, it would appear to be unnecessary to have regard to how the information was in fact received."

It would seem that no formal confidentiality agreement is required to establish that information was communicated in confidence nor is it necessary to establish a "meeting of the mind". Conversely the mere fact that a letter is headed "private and confidential" is not sufficient in itself to establish that that communication was made in confidence, Re Barnes and Commissioner for Corporate Affairs (1985) 1 VAR 16 at 18.

As to the meaning of the word "impair" King J, as a Member of the Full Court in Ryder v Booth (at 885) adopted a definition from the Shorter Oxford Dictionary in the following terms: "to make worse, less valuable or weaker; to lessen injuriously; to damage, injure." As Gray J (at 880) noted in the same case: "The degree of impairment which must be shown to be a likely result is, in my opinion, a degree of impairment going beyond a trifling or minimal impairment." Young CJ said (at 872) it was not sufficient to prove the relevant impairment that there were feelings of resentment among those whose information was given in confidence:

"at having the confidence arbitrarily destroyed by the operation of the legislation, but it is another thing altogether to say that they or others will not provide such information in future. It is not sufficient to show that some people may be inhibited from reporting so frankly if they know that their report may be disclosed. More is required to satisfy the onus cast upon the agency by s.55(2) of the Act."

In Re Barnes and Commissioner for Corporate Affairs the Tribunal constituted by Mr Higgins, as his Honour then was, considered amongst other things a request that a report lodged with the Commissioner under s.418 of the Companies (Victoria) Code which requires receivers to report upon any offences which they believe may have been committed by officers of the company of which they act as receiver. The Tribunal found as a fact that receivers are "less likely to carry out this obligation if the report is disclosed". He reached this conclusion after having heard evidence from a well-known insolvency practitioner, Mr J M Poulton. Inferentially, however, Mr Higgins did not regard the mere existence of the statutory duty as excluding the possibility that release of information might impair the likelihood of the Corporate Affairs Commissioner to obtain such information in the future."

11. Mr Dreyfus, who appeared on behalf of the applicants, submitted that this exception had no application to information disclosed to an agency by its own officers. In his submission, the exemption applied only to information communicated to the agency from outside its own ranks. He referred to a number of well known statements of higher authority to the effect that the Freedom of Information Act should be given a construction favourable to the release of information rather than holding it confidential. He referred to a judgment of the High Court in Victorian Public Service Board v Right [1986] HCA 16; (1986) 160 CLR 145, 153; the remarks of Young CJ in Accident Compensation Commission v Croom [1991] VicRp 72; [1991] 2 VR 322, 323 and dicta of Nathan and Ashley JJ as members of the Full Court in Sobh v Police Force of Victoria [1994] VicRp 2; [1994] 1 VR 41, 56, 60, 61. He said that the exemption needs to be construed in the context of the entire Act which establishes a series of exemptions, some dependent upon types of information such as law enforcement information - Section 31; legal professionally privileged information - Section 32; personal affairs - Section 33 and information subject to secrecy provisions and other legislation - Section 38. Other exemptions in Mr Dreyfus' submission focused upon types of information. Section 30 - internal working documents; Section 34 - commercial information. He submitted that Section 35 and its exemptions focused upon the source as well as the type of information. Information could only be communicated to an agency if it came from outside and therefore, Section 35(1)(b) should be regarded as applying only to such information. According to Mr Dreyfus if Section 35(1)(b) were regarded as applying to information generated within an agency, this would mean:

"That vast amounts of Government information, generated within particular agencies, would be exempt. Most written communications within agencies are not circulated outside the agency, are not intended to be. If this were all that was necessary to establish "in-confidence", no such communications would be covered by s.35. This construction is at odds with the plain words of s.35, and cannot have been the intention of the legislature. An employee or consultant of an agency does not communicate "to" the agency, but underlying within the agency. Communications underlined within agencies are separately dealt with, in Section 30 of the Act." [emphases in the original]

12. Mr Dreyfus also relied upon sub-paragraph (a) of Section 35(1). He said the terms of sub-paragraph (a) made clear that the exemption which it created did not extend to material generated within an agency. He referred to remarks to this effect by Members of the Full Court in Ryder v Booth [1985] VicRp 86; [1985] VR 869. Young CJ observed, speaking of the relevant paragraph:

"It will be observed that the question does not in terms speak of "exempt matter" but it does speak of the disclosure of certain matter. That matter may perhaps be appropriately enough described as "generated" by an agency or a Minister. Thus if the medical opinions here in question have been generated by an agency or a Minister the question would be whether their disclosure would disclose matter "in the nature of opinion, advice or recommendation ... for the purposes of the deliberative processes involved in the functions of an agency." [1985] VicRp 86; [1985] VR 869, 873

"It is clear that s.30(1) of the Act is concerned with information generated within an agency, rather than information obtained by an agency from outside. But I am prepared to accept that s.35(1)(a) produces the result that if the information was communicated in confidence to an agency from outside, it is exempt from disclosure if it falls within the exemption provided for in s.30(1)." [1985] VicRp 86; [1985] VR 869, 877-8

"It is clear that s.30(1) of the Act is of itself concerned with information generated within an agency rather than information obtained by an agency from outside. Section 35(1)(a) produces the result that, if the information is communicated in confidence to an agency from outside, the document is exempt from disclosure if it complies with the provisions of s.30(1) other than the requirement that it be generated within the agency."

The issue raised by Mr Dreyfus was touched on by His Honour Judge Dixon in an unreported decision O'Connor v State Superannuation Board (27 August 1984). At page 15 of the text of the unreported judgment His Honour observed:

"One possible reading of the Freedom of Information Act is that Section 35 is intended to deal with confidential communications from persons outside the agency, and not with communications from persons who are employed by the agency either within it or as consultants. Section 30 however deals with communications within the agency, including communications from or among officers."

"For this argument to be correct, one would have to take the view that Section 35 did not contemplate that anything communicated, as it were, within an agency could be said to be communicated either "in confidence" or "to an agency". This seems to me to be a possible interpretation of the relative sections that I have mentioned, but as the matter was not argued by Counsel, and as it makes no difference to the ultimate outcome of the case, I will not pursue it."

13. Mr McLean on behalf of the respondent submitted that two Tribunal decisions had considered and rejected the submission that Section 35(1)(b) could not operate to protect information generated within an agency. In Thwaites v Department of Justice (8 January 1994) Mrs Rosen (as she then was) considered applications for access to a number of documents relative to the appointment of Professor Greg Craven as Crown Counsel for the State of Victoria. One of the exemptions relied upon was Section 35(1)(b). She noted the tentative view considered by Judge Dixon to be a possible interpretation of Section 35(1)(b), namely that it did not operate to protect information generated within an agency. Mr Finkelstein QC as His Honour then was, submitted that this interpretation was incorrect. At page 32 of the unreported decision Mrs Rosen said:

"Upon giving the words of s.35(1)(b) their ordinary meaning, I am inclined to the view that the interpretation argued by Mr Finkelstein is correct, although this section would be limited in its application so far as documents generated within an agency are concerned. It is difficult to see what information in "internal" documents would fall within s.35(1)(b) which would not already be protected under such provisions of the Act as Sections 28, 29, 31, 32, 33, and 36. Matter in the nature of opinion, advice or recommendation is already protected under s.30(1)."

Ultimately Mrs Rosen's view on the operation of this section was irrelevant to her decision because she found that the evidence did not establish the necessary factual basis to make out the exemption even assuming that it applied to internally generated material. Mr McLean also relied upon a decision of Mrs Dimtscheff in the matter of Thorpe v Medical Practitioners Board (29 January 1999) where she held exempt from release, minutes of the informal hearing held by the Medical Practitioners Board by the application of the exemption created by Section 35(1)(b). Mrs Dimtscheff's description of the document in question is very brief. It is not clear from her reasons precisely which information recorded in the minutes attracted the exemption. If the minutes recorded information communicated to the Board by a witness, in circumstances of confidence, her finding would not support Mr McLean's submission. On the other hand, if the information communicated in confidence and which was held exempt from disclosure consisted of statements or information furnished by members of the Board itself, the decision would support Mr McLean's case.

14. In my view it matters not that Section 35(1)(a) operates only with respect to information generated outside the relevant agency. It is clear that sub-paragraphs (a) and (b) despite being part of the same sub-section create separate and distinct exemptions. There is no reason necessarily to suppose that a feature which obviously attends one exemption must likewise attend the other, or vice versa. There is nothing in the language of Section 35(1)(b) which would exclude its operation with respect to information communicated by an officer of an agency to the agency. True it is that for many purposes the acts of an officer or employee are the acts of his employer, principal or sovereign. Likewise, the knowledge of an employee or officer may for many purposes be treated as the knowledge of his employer, principal or sovereign. The law has never cavilled at the thought that an officer or employee can be regarded for one purpose as the alter ego of the employer or sovereign and on the other hand, as a separate person. The officer or employee is typically treated as a separate person where the focus is upon internal relations within an organisation. The act of an employee can be regarded as the act of his employer. Receipt by the employee can be regarded as receipt by the employer. Nevertheless, when an issue of employment contracts arises between them, they are regarded as separate persons and the employee can be regarded as having given a notice that provided information to his employer or vice versa. Likewise, in my view, where an officer of an agency records a matter and reports it to his superior or makes the information available through some established reporting channel within the agency, the information in question is properly to be regarded as "communicated" to the agency. Even making every allowance for the propensity to interpret the Freedom of Information Act favourably towards release of documents rather than upholding exemption, Mr Dreyfus' submission could only be sustained by the implication of words in Section 35(1)(b) which do not appear in the text of the statute. There is no incongruity in the operation of the text according to its ordinary meaning as would justify any such extreme process of construction.

15. Section 35(1)(b) is capable of operating with respect to information communicated to an agency not only by outsiders but also by its own officers.

16. The other exemption relied upon by the Network is the one constituted by Section 30(1). In Pullen v Alpine Resorts Commission (1995/21450) I had occasion to consider that exemption and I take the liberty of quoting what I there said:

"30.(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act -

(a) would 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 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

The exemption therefore requires the establishment of at least two broad matters. First, that the document bears the general character of what the heading in the statute refers to as an internal working document (those matters being set out in sub-paragraph (a)) and further that release of such a document would be contrary to the public interest. Mere proof that a document falls within sub-paragraph (a) does not in itself prove that the release of that document would be contrary to the public interest. Something additional must be proven to lead to that conclusion. Sub-section (3) provides that the exemption does not apply to purely factual material contained in a document. According to the Commonwealth Tribunal, the concept of an agency's deliberative processes is :

"..... wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency .... in short .... its thinking processes - the processes of reflection, for example, upon the wisdom and experience of a proposal, a particular decision or course of action".

Re Waterford and Department of the Treasury (No 2) [1984] AATA 67; (1984) 5 ALD 588, 606.

That statement was approved by Mr Galvin, a Deputy President of this Tribunal, in Brog v Department of the Premier and Cabinet (1989) 3 VAR 201, 208.

As Mr Carter, on behalf of the applicant, conceded the expression "officer" appearing in the section includes persons such as consultants engaged by an agency (see O'Connor v State Superannuation Board of Victoria (unreported decision of Judge Dixon dated 27 August 1984 affirmed sub nom Ryder v Booth [1985] VicRp 86; [1985] VR 869, Brog v Department of Premier and Cabinet (1989) 3 VAR 201; Kyrou Victorian Administrative Law [2091] [Release 45]."

It is fair to say that this exemption was added by the respondent as something of an afterthought. Many of its witnesses were invited to amend their witness statements by adding references to Section 30(1) to statements which in their printed form referred only to Section 35(1)(b). No other distinct consideration of public interest was developed in the evidence beyond the one relied upon in relation to the exemption created by Section 35(1)(b). In his final submissions Mr McLean referred to the well known passage from the reasons of Davies J. then President of the Commonwealth Administrative Appeals Tribunal in Re Howard and the Treasurer of the Commonwealth [1985] AATA 100; (1985) 3 AAR 169, 177-78. The passage relied upon in the written submissions is as follows:

"It is possible to postulate that in each case the whole of the circumstances must be examined including any public benefit perceived in the disclosure of the documents sought but that: ...

2. Disclosure of communications made in the course of the development and constant promulgation of policy tends not to be in the public interest

3. Disclosure which will inhibit frankness and candour in future pre-decision or communications is likely to be contrary to the public interest

4. Disclosure, which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest."

17. As noted, the evidence did not really seem to be directed to any of these issues. In his oral presentation of argument, Mr McLean made some reference to apprehensions as to frankness and candour in discussions between officers being inhibited. The passage relied upon by Mr McLean however omits the subsequent paragraph where His Honour expressed some scepticism as to the "frankness and candour" argument. In Murtagh v Federal Commissioner of Taxation [1984] AATA 249; (1984) 54 ALR 313, 326 His Honour said that this consideration of public interest should be limited to "high level decision making and policy making". In my view, His Honour's reservations were well based and the tendency of more recent Tribunal decisions is to discount the frankness and candour ground of public interest altogether. It is the duty of agency officers to give frank and candoured advice, so why should they blush to be seen to be doing so. In my view, there is no proper evidentiary basis for applying any separate and distinct "frankness and candour" argument addition to the general public interest considerations raised in support of the exemption under Section 35(1)(b).

18. For the sake of completeness I should say something about Section 139 of the Health Services Act 1988 which establishes a regime of statutory immunity for certain quality assurance bodies. The Section is in the following terms:

(1) The Minister, by notice published in the Government Gazette, may declare that a specified committee, council or other body (whether corporate or unincorporated) established by one or more registered funded agencies, health service establishments, multi purpose services, psychiatric services or professional associations is an approved quality assurance body for the purposes of this Part and, by like notice, may revoke the declaration.

(2) The Minister must not approve a committee, council or other body unless he or she is satisfied--

(a) that, in the case of a committee, council or body which is not a psychiatric service owned or managed by the Department, it is established under the by-laws or constitution of one or more registered funded agencies, health service establishments, multi purpose services, psychiatric services or professional associations; and

(b) that its functions include the assessment and evaluation of the quality of health services provided by the registered funded agencies, health service establishments, multi purpose services, psychiatric services or members of a professional association, including the review of clinical practices or clinical competence of persons providing those services; and

(c) that the carrying out of its functions and powers would be facilitated by the provision of certain immunities in respect of proceedings; and

(d) that it is in the public interest that persons be prohibited from disclosing information given to it in the course of the carrying out of its functions.

"professional association" means an association, society, college or other body, membership of which consists principally of health care providers, whether or not of a particular class or classes;

"psychiatric service" has the same meaning as in section 106 of the Mental Health Act 1986.

(3) A person who is or has been a member, officer or employee of a committee, council or other body in respect of which a declaration under sub-section (1) has been made must not either directly or indirectly--

(a) make a record of or divulge or communicate to any person any information gained by or conveyed to that person by reason only of being such a member, officer or employee while the declaration was in force; or

except to the extent necessary for the performance of the functions of that committee, council or body or of the person as such a member, officer or employee.

(3A) Sub-section (3) has effect despite anything to the contrary in section 12 of the Audit Act 1994.

(4) A person who is or has been a member, officer or employee of a committee, council or other body in respect of which a declaration under sub-section (1) has been made shall not be required by reason only of being such a member, officer or employee--

(a) to produce before any court, tribunal, board, agency or person any document in his or her possession or under his or her control by reason only of being such a member, officer or employee while the declaration was in force; or

(b) to divulge or communicate to any court, tribunal, board, agency or person any matter or thing coming under his or her notice by reason only of being such a member, officer or employee while the declaration was in force.

(4A) Sub-sections (3) and (4) do not apply to information that does not identify, either expressly or by implication, a particular individual or particular individuals.

(4B) Sub-section (4) does not apply to a document that does not identify, either expressly or by implication, a particular individual or particular individuals..

(5) Evidence of any information or document concerning the proceedings or prepared for the purposes of a committee, council or other body at any time when a declaration under this section was in force in respect of it is not admissible in any action or proceedings before any court, tribunal, board, agency or person.

(6) If there is an inconsistency between this section and a provision of any other Act or law, this section prevails to the extent of the inconsistency."

It will be seen that the immunity granted to the gazetted quality assurance bodies protects even against subpoenas to produce documents before a court or tribunal or the entitlements of the Auditor-General under the Audit Act. It is interesting to note that by virtue of sub-section (4A) this protection does not extend to "information that does not identify, either expressly or by implication, a particular individual or particular individuals". The evidence before me did not disclose the degree to which any of the bodies whose documents are in dispute here have been gazetted for the purposes of the Section. The restriction of the applicants' request to exclude patient and practitioner specific material in combination with sub-section (4A) would appear to have the effect of rendering this section irrelevant to the present proceeding. Mr McLean on behalf of the Network submitted that the section is irrelevant except in so far as it formed the basis for what he conceded was an erroneous view amongst clinicians in the Network that all documents generated as a result of quality assurance activities were protected from being made public. Endorsed on some documents and attached to at least one other were statements of the effect of Section 139 which if read and understood would have given the lie to the understanding which Mr McLean submitted clinicians had. Frequently however lawyers have inadequate or inexact appreciations of the operation of a particular statute or legal doctrine and only come to grips with its true meaning when they have to deal with a matter specifically raising the issue. I will therefore accept that the evidence establishes a general albeit erroneous belief on the part of clinicians that Section 139 assures confidentiality to all quality assurance generated documents within the Network.

19. Mr McLean submitted that all the evidence as to the likely reaction of clinicians to the release of the disputed documents was one way and this established that release would lead to clinicians declining to co-operate with the Network in the collection of data relative to quality assurance programs. He referred to the evidence of Dr Coglin, who at pages 90 to 91 of the transcript, described the last meeting which he attended at the Alfred Hospital before he left to join the private sector. He was attending a meeting of a committee in the Hospital's Division of Medicine which conducted a regular audit of all deaths that occurred with patients under the care of the units comprised in the Division. At that meeting it became known that representatives of the Age newspaper were seeking access "to records such as the proceedings of the Committee". The members became aware of "the possibility at least that at the hands of the Tribunal those documents may be disclosed". Dr Coglin said:

"The instant response from the first person to speak sitting on my left, Professor of Medicine, was to say that until such time as this matter was resolved to his satisfaction, his unit would not be filling out these forms any more, and not contributing to the review process. His sentiments were subsequently echoed by others at the meeting and in general debate and dialogue around the hospital in the ensuing weeks regarding this matter. This was the widespread reaction."

Professor Michael Grigg a vascular surgeon gave evidence to similar effect. Asked whether clinicians at the Alfred Hospital had curtailed their collection of data as a result of the pendency of this proceeding, he said at page 281 of the transcript:

"I do understand that the doctors at the Alfred Hospital have taken some steps in that regard. I think that the most common reaction of doctors that I have come in contact with - and it has certainly been very widely known - has been one of bewilderment, because I think they all believe that they were functioning in this activity in an environment where confidentiality was guaranteed or assured. Nor it was said would rendering the collection of data legally compulsory solve the problem."

At pages 277 to 8 of the transcript Professor Grigg said that compulsory reporting would not work. He remarked:

"I mean, I think one of the drawbacks with some of the data that we have been collecting in fact over the last few years is that those people who most deciduously collect the data often turn out to have the worst results and this is simply because they're collecting all the adverse events deciduously. Now, if they are not that careful in collecting data it is very easy to miss an adverse event and therefore end up with a lower rate. I think more important though, the terms of reference of an adverse event in terms of compulsory reporting have to be very strictly laid down, because it is very easy to rationalise that this particular case did not end up in that particular category and therefore it need not be reported."

Another Professor of Medicine at the Alfred Hospital, Professor Napier Thomson said at page 294 of the transcript:

"There is no doubt that voluntary involvement in viewing [scil reviewing] of adverse events is the way to go and that the way that has been successfully shown in the last few years. People will not respond to material under threat in terms of releasing information. They want to feel free to be able to discuss in a free and frank manner information that they may wish to voluntarily impart which would ultimately lead to improved function and care."

20. It will be recalled that these applicants have specifically disclaimed interest in data which identifies particular patients or clinicians. The apprehended resistance of clinicians it seems goes well beyond material which identifies individuals. The objection, it is said, extends to any material which is collected by clinicians rather than by automatic computerised systems. See the evidence of Dr Cass, the Director of Anaesthesia at the Royal Victorian Eye and Ear Hospital at page 402 of the transcript; Professor Napier Thomson's evidence at pages 321-2.

21. Mr McLean said that it would be reckless for me to do other than accept that evidence according to its terms standing uncontradicted as it did. Whether this attitude on the part of clinicians seemed a reasonable attitude to accountability was, he said, beside the point. This was the reality that the network had to face and acceptance of the evidence would lead to the necessary finding of fact to establish the exemption under Section 35(1)(b) of the Freedom of Information Act.

22. In Thwaites v Department of Health and Community Services (1995) 8 VAR 361 Mr Thwaites, the Shadow Minister for Health, sought access to data collected by the Department as to unplanned re-admissions to hospital. What led Mr Thwaites to be interested in this data was an apprehension that a combination of cuts to hospital funding and the introduction of "case mix" funding in lieu of the previous block funding arrangement might have led hospital managements to skimp on the necessary days of care for patients in hospitals seeking to complete procedures and discharge patients as rapidly as possible to obtain the maximum benefit under the case mix system. When the hearing commenced the Department opposed release of any data including aggregated system-wide data and hospital by hospital data. Mr Thwaites was the last witness to give evidence. He described how on the afternoon of the first day of the hearing, he was approached by the Minister for Health in the precincts of Parliament House, who informed him that the aggregate data would be released but data identifying particular individual hospitals and regions would not. See (1995) 8 VAR 361, 364. I upheld the exemptions claimed for the material identifying particular regions and hospitals upon the footing that it seemed credible to believe that clinicians might be reluctant to participate in the collection of data which would show their hospitals up in a bad light and further that the public interest material placed before me indicated a concern as to the effects of health cuts and the introduction of case mix across the entire Victorian hospital system. There was no public disquiet demonstrated indicating a concern as to an inconsistent effect of these changes in funding, hospital by hospital. The evidence in Thwaites' case made frequent references to a release by the Department of Health as it then was of comparative mortality rates for various hospitals which the hospitals felt showed a most unfair and misleading situation failing to make adequate allowance for differences in patient profile for the various hospitals. This same incident was referred to by a number of the witnesses in the present proceeding as indicative of the problems which can result from release of what hospitals and clinicians regard as misleading data.

23. The case made by the Department in Thwaites' case was initially the same as the case made by the Network in this proceeding, namely that no data which requires clinician assistance in collection can be released. In the course of the hearing the Department stepped back from that proposition and sought to defend only clinician collected data which identified particular hospitals. It transpires that the data for individual hospital's unplanned re-admissions have been released by the Network as aggregated Network wide data which may properly be released without threat to the public interest. Mr McLean conceded that the unplanned re-admissions data now collected is like the material which I considered in Thwaites' case "crude". That is, not risk adjusted. This was the very vice which was said in Thwaites' case to render this sort of data unfit for public release. Towards the end of his evidence, I took up the distinction between practitioner generated data and system generated data with Professor Napier Thomson. It will be recalled that his evidence was to the effect that release of the former would impair the network's ability to obtain similar information in the future. The document in question, No. 99 on the respondent's list is described as "clinical performance indicators by quarter Alfred". At the outset of his closing submissions, Mr McLean stated that his client had reconsidered its position with respect to that document and that it was now released. As I look at the document again, it appears that I have proceeded to begin my questions as to the second page rather than the first but the Professor's answers demonstrate to my mind that he was looking at the same page as I was. I noted that the first two tables were described as "not available". I then asked him about practitioner involvement in the third. The third of those indicators is described as "prescription of drugs which there is a known previous adverse reaction". The Professor said:

"That's an excellent example where there would need to be a practitioner input, a voluntary input of information to collect that data. Some of that data would be collected by other ways but there would be an important clinical input into that data."

I then asked about the first indicator on the second row which is described as patients not monitored after receiving Gentamicin for more than 48 hours. The Professor answered:

"Again, that would be practitioner collected but again there would be an element of information that would come through from other than practitioner sources."

Despite the practitioner involvement, the Network has seen fit to release the document.

24. I conclude that accepting that the eminent witnesses who gave evidence before me in Thwaites' case and the present proceeding, were being absolutely candid in their answers, it seems that members of the medical establishment are given to excessively pessimistic predictions on these sorts of matters. Not only are there grounds for me to treat the evidence in its totality with some scepticism but the actions of the Network demonstrate that its executives bring the same scepticism to bear in making their own judgments.

25. There seems to be every good reason to accept that clinicians whether they be medical practitioners, nurses or allied professionals, would not be forthcoming with information which would show them as individuals in a bad light. I cannot accept however that release of aggregated data, no matter how far divorced from disclosure by individual clinicians of individual incidents relative to individual patients, will have the alleged adverse effect. Evidence was given by a number of witnesses that material identifying particular small units indirectly has the capacity to identify individual practitioners or patients because of the relatively small number of individuals to whom any anonymous references might apply. One may accept that clinician resistance and apprehension would be significant in those circumstances and sufficient to create the necessary prejudice to further information gathering which would justify the exemption under Section 35(1)(b). A number of witnesses, Professor Grigg and Dr Cass for instance, were apprehensive in a general sense that data would be misunderstood or misused. I am sceptical that this apprehension would go beyond mere annoyance as described in the judgment of Young CJ in Ryder v Booth to the extent of leading to an actual withdrawal of co-operation in data collection.

26. Independently of considering such public interest issues as arise in relation to the establishment of the exemptions relied upon by the respondent, Section 50(4) of the Freedom of Information Act 1982 authorises the Tribunal to override most exemptions where the public interest requires. At the forefront of his submissions on this aspect of the public interest, Mr Dreyfus placed the recent line of decisions of the High Court of Australia dealing with the asserted public right of freedom of information as an essential pillar of representative government. He referred to Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106, 138-40 per Mason CJ. Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1, 74-5 per Deane and Toohey JJ; Theophanous v Herald and Weekly Times Limited (1994) 182 CLR 105, 137 per Mason CJ, Toohey and Guadron JJ, 173 per Deane J; Stephens v West Australian Newspapers Limited (1994) 102 CLR 211, 264 per McHugh J; Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 570-1; Esso Australia Resources Limited v Plowman (1995) 183 CLR 10, 32-3. Plowman's case was concerned with an attempt to hold confidential the proceedings and evidence of an arbitrator. These authorities according to Mr Dreyfus, demonstrated the public interest in the free flow of information and particularly in Plowman's case the need for openness where vital information affecting public issues such as utility prices were concerned.

"The High Court decisions also expose the fallacy of the approach in some Tribunal decisions in which in effect the Tribunal, adopting the role of protector of the public interest, purports to determine whether or not the disputed documents reveal any wrongdoing or indeed anything warranting further investigation or criticism. Having in its opinion found nothing untoward, the Tribunal rules against access. It is submitted with respect that this is an improper assumption of responsibility, it is not the Tribunal's function, and assumes, wrongly, that the Tribunal is either qualified, or able on the necessarily limited evidence presented to it to judge such matters."

I reject the last submission. Moreover with all respect to Mr Dreyfus, I doubt that the High Court line of authority, which taken in its totality, does not indicate a single and consistent line of reasoning adds much to the jurisprudence of Section 50(4). Lange v Australian Broadcasting Corporation (1997) 198 CLR 520 represents a step back from much of what was said in the earlier free speech cases. Mr Dreyfus' second submission seemed to come down to this: "the public has the right to know, the public has the right to judge, it is always in the public interest to reveal everything". The whole of the rest of the Freedom of Information Act including all the exemptions except those specifically excluded from the operation of Section 50(4), namely the Cabinet exemptions and the personal affairs exemptions would become irrelevant. The Freedom of Information Act as a whole represents an attempt to balance competing policies. A primary commitment to disclosure of information generated by public agencies tempered by a right to retain certain (exempt) material controversial with the ultimate gloss of an ability vested in this Tribunal to override most of the exemptions in the public interest. It is noteworthy that the Commonwealth Freedom of Information Act 1982 which for the most part serves as the model for the Victorian legislation, includes no public interest override and no equivalent of Section 50(4). Mr Dreyfus' submission represents the negation of the careful and evident balance between the several policies apparent in the Victorian statute. Whether or not Mr Dreyfus is correct in his submission that this Tribunal is neither qualified nor able to discharge the function of custodian of the public interest, that function is clearly bestowed upon it by the statute.

28. The freedom of communication cases in the High Court were concerned with ensuring that individual citizens or media organisations or political parties who wanted to speak out were not inhibited from so doing. The question whether a public agency which does not desire to speak out should be compelled to do so is not the same question as their Honours were considering. It may be said that the right to free political speech can be meaningful only if information is freely available to those who want to speak and scrutinise contentious issues in public affairs. To that extent the freedom of speech cases support a public interest in the release of information to citizens to enable them to debate issues of major political controversy within society. That public interest was recognised by this Tribunal's predecessor, the Administrative Appeals Tribunal of Victoria long before the freedom of speech cases. See for instance Chadwick v Department of Property and Services (1987) 1 VAR 444 (Judge Rowlands) (the Nunawading By-elections case) and Easedown v Director of Public Prosecutions and Others (1987) 2 VAR 102 (Judge Rowlands, Mrs Rosen and Mr Galvin) (the Continental Airline's case); DPP v Smith [1991] VR 53. In Just v Department of Justice (1996) 10 VAR 126, 129 I said of the public interest override:

_"The imperative force of the word "requires" in the sub-section should not be ignored. The public interest will not require the release of otherwise exempt documents if the public benefit in view can be achieved by other means than by overriding exemptions otherwise available under the Freedom of Information Act. Likewise, the public interest will not require release, unless the release is clearly adapted to achieve the relevant benefit. As Mr Galvin, Deputy President, remarked (_Re Thomas and Royal Women's Hospital) (1988) 2 VAR 618 at 641):

In my opinion it is not sufficient for the Tribunal merely to be satisfied that some outweighing public interest suggests that access should be desirable or militates in favour of it. It must require it - that is, demand it."

That passage was quoted without evident disapproval by the learned President, Kellam J and Mr Galvin in Coburg Brunswick Community Legal and Financial Counselling Centre v Department of Justice (20 May 1999) (the prison contracts case).

29. It is axiomatic that the public interest referred to in the sub-section is concerned with benefit to the public not public curiosity DPP v Smith [1991] 1 VR 53, 73-4.

30. As Mr Dreyfus correctly observed "the categories of public interest are not closed". A wide range of public interests have been identified over the years as justifying the application of the Section 50(4) override. I accept Mr Dreyfus' submission that there is a public interest in public hospitals being open to public scrutiny of their management and further that enhanced accountability of such hospitals is in the public interest. It is also in the public interest to promote consumer rights amongst users of health care services and there is an interest in permitting the public to be informed as to the occurrence of adverse medical events and programs such as quality improvement programs in the institutions which their taxes pay for public confidence is likely to be enhanced in hospitals and medical practitioners for whom they are seen to be candid and forthcoming rather than secretive.

31. All of these factors which are in substance the public interest grounds filed and relied upon by these applicants militate in favour of overriding exemptions where the release of exempt material will be calculated to promote those public interests; but they do not without further analysis lead to the conclusion that any exemptions upheld should be overridden. These public interests must be judged and balanced against competing considerations, in particular, the public interests which would necessarily be found to support the existence of either of the exemptions relied upon by the respondent. Ultimately, the decision in this proceeding entails a balancing exercise. See DPP v Smith [1991] VicRp 6; [1991] 1 VR 63, 72.

32. Mr McLean on behalf of the respondent submits that the information here in dispute does not represent comprehensive, aggregated risk adjusted data whose release is advocated by Professor Duckett and co-authors in their work Health Services Policy Review Discussion Paper (Chapter 11) prepared as part of the Victorian Government's implementation of national competition policy. Mr McLean observes that the "raw" material whether in narrative or statistical form would not achieve the public benefits asserted either in permitting informed public debate or allowing members of the public as health care consumers to make informed comparisons between health care providers. It may be necessary to say more as to the detail of these arguments when I turn to the documents themselves. For the moment it is appropriate to consider these arguments at a general level. Dr Coglin said that experience in the United States showed that where material was published in the State of Pennsylvania to enable consumers to make critical judgments between health care providers, only 2 percent of a sample of consumers surveyed said that they had consulted and been influenced by this published material. Mr McLean submitted and I did not understand Mr Dreyfus to deny, that the raw nature of the data and information in these documents, devoid of risk adjustment, did not render them fit for easy or reliable interpretation even by informed and discriminating lay people.

33. These submissions have a superficial attraction but they are based upon an underlying fallacy. According to this analysis the importance in constitutional government and participatory democracy of the Office of the Auditor-General could be judged by the percentage of the population who bought or read his reports. With the infinite complexity of society, its institutions and the scientific and technological expertise involved in their operation, ordinary citizens cannot by their own direct and unaided perusal of available public information keep abreast of all important public issues or subject the workings of Government to adequate scrutiny. No individual citizen has the technical expertise to have a full understanding of all major public issues. This is as true for highly qualified expert professionals as for unskilled workers. A lawyer may have a good grasp of the legal issues arising in Government but be unable to come to terms with biological or engineering issues. A qualified doctor may understand medical issues but not economic issues. Even if an individual citizen were possessed of all necessary technical expertise, the necessity for him to lead his own life would leave him without the necessary time to analyse all available Government information on a range of public issues.

34. In practice, democratic society operates upon the assumption that there are specialist and generalist institutions in society which devote themselves to scrutinising and analysing available data and making their analysies more widely available whether amongst academic communities or the wider public. These institutions include most notably universities and media organisations and we now have the more recent and American inspired phenomenon of the "think tank". Therefore the release of information may enable those with special expertise to analyse and study it and provide commentaries couched in ordinary language which can be the subject of discussion and debate throughout society. When budget papers are published at either the State or Commonwealth level, the wider citizenry never reads them but financial journalists, academic economists and politicians do and ordinary members of society may have some confidence that any egregious issues arising in the budget papers will be raised for debate by one of these groups.

35. In a general sense I accept that the public interest issues raised by Mr Dreyfus, viewed alone, do require this class of material to be released.

36. But these public interest considerations do not stand alone and must be balanced against the public interest issues which arise out of the exemptions relied upon. No-one has suggested that the promotion of the quality assurance movement in public hospitals is other than an unalloyed good. All the public interests relied upon by Mr Dreyfus are directed ultimately to obtaining the optimum quality of health care for the public in its public hospitals. If it is demonstrated that the information necessary to promote quality assurance programs or in a more general sense, manage quality issues within a public hospital will not be forthcoming, the public interest in avoiding that consequence in my view, overrides any of the public interest issues relied upon by Mr Dreyfus. To look at it another way, the applicants' public interest issues assume that information as to adverse medical events will be available. If the release of that information significantly diminishes that flow of information, not only will the quality assurance bodies within the hospitals be deprived of the fullness of the information but so will the public and the entire exercise in the long run will be self defeating. Accordingly, with respect to any document where the public interest referred to in Section 35(1)(b) is made out, in my opinion the necessary balancing of wider public interest issues must lead to the exemption being upheld and not overridden.

[Since dictating the above I have had the advantage of reaching the judgment of Phillips JA (with whom the other members of the Court of Appeal, Tadgell and Batt JJA concurred) in Department of Treasury and Finance v Hulls [1999] VSCA 117. In my respectful view nothing in my analysis is inconsistent with His Honour's judgment. In particular His Honour held that the word "requires" in Section 50(4) of the Freedom of Information Act has an imperative tone meaning "demands" or "necessitates" [1999] VSCA 117 at paragraphs 33 and 35. His Honour stressed that the establishment by an agency of an exemption created a presumption against release (1999) VSCA 117 at paragraph 55. Finally His Honour said that the Tribunal had not only the right but the duty to make findings of fact and provide detailed analysis as to where it saw the public interest as lying in encouraging its discretion under Section 50(4) [1999] VSCA 117 at paragraphs 48, 51 and 61.]

37. A schedule of the disputed documents, the subject of this determination is attached.

38. Document 35(b) is described as a "QI Audit Summary Report". It consists of some 16 pages. Evidence as to this document was given by Dr Peter Sloan, the Director of Clinical Services - Medical at the Box Hill Hospital. According to Dr Sloan this document was produced by the Quality Facilitator staff or Quality Co-ordinator staff at the Hospital and was circulated to the members of the then Continuous Quality Improvement Committee. The document was not circulated outside the hospital. Dr Sloan said that it records information furnished by staff of the hospital on the assumption that its contents would not be made public. The document contains reports on a number of quality improvement projects conducted in various departments and units of the hospital. The description of the work undertaken and the results obtained entails the disclosure of information which consistent with the overall trend of the evidence in this proceeding emanated from clinicians who rendered their assistance upon the assumption of confidentiality. Based upon the evidence which I have heard, I am satisfied that disclosure would impair the ability of the Network and the Hospital to obtain similar information in the future. I uphold the exemption under Section 35(1)(b) with respect to the document. It is unnecessary for me to say anything as to the operation of the exemption claimed under Section 30(1).

39. Document 36(b) seems to be a document of the same character and accordingly I likewise uphold the exemption claimed under Section 35(1)(b) with respect to it and say nothing as to the exemption claimed under Section 30(1).

40. Document 37(c) is described as "Acute Trauma Review Committee Action Sheet" dated 20 August 1997. According to Dr Sloan (transcript page 149) this document "records a meeting of clinical staff of the hospital, predominantly surgeons, emergency department staff, anaesthetists and intensivists, reviewing the care of certain types of patients in the hospital". The doctor said that the document was not circulated outside the hospital. This document consists of a little less than a page and a quarter of text. Almost the whole of the first half of the first page consists of the heading details of time and place of meeting and the list of those attending. It includes comments upon items such as performance of equipment which one doubts would give rise to any apprehensions of breach of confidentiality. The document also however includes reference to peer reviews conducted and to be conducted of certain instances of patient death. Having regard to these matters and the inclusion of the names of a large number of clinicians, I uphold the exemption claimed under Section 35(1)(b). Since the document seems to be largely a record of fact rather than a statement or recording of opinion, recommendation or advice, I would not uphold any exemption claimed under Section 30(1).

41. Document 38(m) is described as "Adverse Events - Patient Falls" dated 20 September (sc 1997). The document entails comparison by way of bar graph of falls per thousand bed days for 1996 and 1997. It is not clear whether this data is calculated according to precisely the same definitions as those employed by the ASHC or used by the Network in the data which it collects. Nevertheless, the document appears to contain aggregated data as to the occurrence of an adverse medical event which as Professor Duckett observed, hospitals are required to collect for insurance purposes in any event (this is confirmed by Dr Coglin's written statement). Given that the data relates to a relatively large hospital and does not identify any particular department, much less any patient or practitioner, there is no ground for apprehension that its release will impair the ability of the Hospital or the Network to obtain similar data in future. I grant access to Document 38(m).

42. Document 39(c) is described as an "Infection Control Report" for October 1997. According to Dr Sloan it was created by the Infection Control Nurse as a member of the Infection Control Committee. According to the doctor it was circulated to members of that Committee and the Continuous Quality Improvement Committee but not circulated outside the Hospital. The doctor said that it included information relating to adverse events and relied on collection by clinical staff who provided the information on a confidential basis. This document consists of factual material rather than opinion, recommendation or advice. Accordingly the exemption claimed under Section 30(1) can be put to one side. It contains data which identify particular units and potentially albeit indirectly patients and staff. According to Dr Sloan this report, unlike others which have been released, includes a discussion about clinical incidents that is beyond basic information. That information was to be found immediately below the second table. Given that a like document has been released and that the potential difficulties are identified as to a particular paragraph, it seems proper to conclude that in the absence of that paragraph the exemption under Section 35(1)(b) would not be made out. Accordingly I grant access to Document 39(c) subject to the deletion of the dot point paragraph immediately below the second table appearing thereon.

43. Document 39(d) is described as "Provisional Report on Wound Infections October 1997". According to Professor Sloan this was created in co-operation between the Infection Control Nurse and the surgical staff of the hospital and was not circulated outside the Hospital. Its circulation was to the Infection Control Committee and the Continuous Quality Improvement Committee. Dr Sloan conceded that this information was circulated outside the hospital to the ACHS. He also referred to certain narrative information under the first of the two tables which appears on the document which might enable patients to be identified. This data seems to be hospital wide data not identifying any individual clinician. Dr Sloan concedes that it is supplied to the ACHS. Certainly there is narrative material which identifies patients by age and sex. Nevertheless the only manner by which the name of the patient could be identified is for a reader already to be aware of the injuries or illness from which the patient was suffering and the patient's name. To consider a hypothetical example, if a reader knew that John Smith, a 70 year old patient in the North Ward of Central Hospital was detained there for an extra seven days because of hospital acquired Bacteraemia, he might by reading a document such as this, identify Mr Smith as the patient referred to. On the other hand, by definition he already had all the information to hand already, including Mr Smith's name. In the circumstances, I am not persuaded that release of any of the narrative items would impair either the Network or the Hospital's ability to acquire similar information in future. The document is a record of fact rather than opinion, recommendation or advice and so the exemption under Section 30(1) can have no application. The only concern that I have as to the operation of the exemption under Section 35(1)(b) is that the second table identify particular wards as the location of particular infection incidents. That might be thought to reflect directly or indirectly upon particular clinicians who might be less willing or unwilling in the future to co-operate in the collection of this material. The apprehension is however, in my view, met by deleting the names of the wards appearing in the second table. I grant access to Document 39(d) subject to deletion of the names of the wards appearing in the second table.

44. Document 41(g) is described as "Risk Management Program and Key Performance Indicator Results 1996 and 1997 and Clinical Indicators". According to Dr Sloan the document is created by one of the Quality Improvement Co-ordinators in the Hospital. It was circulated to the "CQR Committee". Some of the information being supplied to ACHS. According to the doctor the information was collected by clinicians in confidence. The first three pages are described as part of the risk management program and entail the application of a number of quality indicators. The first six of those indicators on page 1 relate to waiting times which in accordance with the evidence of Dr Coglin there is no reason why this sort of information should not be released. The last two indicators on the first page relate to main theatre cancellation. Again, even in the absence of specific evidence, this seems to be system generated rather than clinician generated information. The same seems to go for the first four indicators on page 2; the seventh indicator and perhaps the balance of the indicators on page 2. On the third page the first indicator is once again a waiting time indicator. The last indicator is a catering satisfaction survey. With all respect to Dr Sloan it is difficult to see that his description of this document is accurate even at a fairly high level of generality. If we then move to the second half of the document being clinical indicators, they include a statement of data sought. For each indicator where a significant recording has been made the source is described as "hospital EQUIP data base". In the circumstances I cannot accept that this is clinician collected material. The final three pages refer to data sources as a variety of hospital data bases. In some cases the source of the indicator collected is described as "hospital's patient case notes" or "hospital theatre system". In the absence of specific evidence as to the nature of that collection, I am prepared to accept that this material is clinician collected. Nevertheless since it is hospital wide information for a fairly large hospital and does not identify individual units or departments, much less individual practitioners, or patients, there is no basis to suggest that release of this information would impair the ability of the Hospital or the Network to obtain similar information in future. These same observations apply to the first half of the document described as "risk management program". The document is a record of fact rather than opinion, recommendation or advice. I grant access to Document 41(g).

45. According to Dr Sloan, Document 43(b) is a document of the same type as Document 41(g). I accept his evidence and therefore grant access to that document likewise.

46. Document 43(c) is described as "Minutes of Infection Control Committee Meeting" dated 17 March 1999. Once again according to Dr Sloan, this document is created by the Infection Control Sister as part of the Infection Control Committee and circulated to the Infection Control Committee and the CQR Committee but not outside the Hospital. The doctor said the information was given in confidence and that it recorded discussions by members of the clinical staff "in terms of practices within the hospital that were discussed in confidence" (transcript page 154). The heading to the document refers to "17 March 1997" though this may be a typographical error. Minutes by their nature are records of fact rather than constituting opinion, recommendation or advice. Obviously however they may record the terms, opinion, recommendation or advice which is given. These minutes do not appear to be of that sort and the exemption under Section 30(1) seems not to be applicable. It is difficult to see how anything in this material reveals even indirectly anything about the free and frank exchange of information and opinion in peer review procedures. The names of particular individuals are mentioned but the overall tone of the document is humdrum. I am not satisfied that release of this document would impair the Network or the Hospital's ability to obtain the information recorded in the minutes in the future. I grant access to Document 43(c).

47. Document 43(d) is an infection control report for March 1998. According to Dr Sloan it was created by the Infection Control Sister for the Infection Control Committee and was not circulated outside the Hospital. According to Dr Sloan on the second page of the document which bears the number "16" there are references which identify particular patients. The patients are not referred to by name and for the same reasons as I gave with respect to a similar previous document, I reject the view that there is a serious risk or a risk at all that any patient would be identified. Even if there were, that in itself would not in accordance with any evidence that I have heard, suggest that the Hospital or the Network would not be able to obtain similar information in the future. If a document of this character, without references to anonymous patients is not to be regarded as exempt under Section 35(1)(b) there is no reason to uphold such an exemption for this document. The document is a record of fact, not opinion, recommendation or advice and so there is no ground for finding an exemption under Section 30(1). I grant access to Document 43(d).

48. Document 46(l) is described as "Inner and Eastern Healthcare Network Box Hill Hospital Quality Indicators Adverse Events Patient Falls by Mrs Jan Worth Nursing Quality Improvement Co-ordinator dated 8 July 1998". This consists of a number of pages of tabular information relative to quality indicators. All indicators on the first page relate to lengths of stay and delays. The source of the information is said to be the Hospital EQUIP data base. Once again, this document seems to be of the same character as Document 41(g) and 43(b). Without going into the same level of detail, I reject any exemptions for this document and grant access to it.

49. Document 47(b) was described as "ACHS Clinical Indicators Results January to June 1998". According to Dr Sloan the document "contains information relating to adverse events that were reported by the clinical staff involved and were provided to the Quality Improvement Co-ordinator in a confidential manner" (transcript page 157). Once again, the first two sheets and all but the last indicator on the third sheet appear to relate to organisation matters such as delays and the like which it seems unlikely were clinician collected. A number of the other indicators appear to be the same ones as have already been released by the respondent at the Network level and at the Hospital level in circumstances such as the release of Document 99 from the Alfred Hospital. Other indicators referred to are not amongst those that we have seen or heard about. The sketchy and inadequate evidence which has been presented puts me in a most difficult position. I am reluctant simply to grant access to the document on the basis that the respondent has failed to discharge its onus. On the other hand a large number of the indicators seem to be of a character which might be regarded as heavily dependent upon clinician co-operation. In the circumstances I think the proper course to follow is to remit the issue of the release of this document to the respondent for further consideration with a direction that the reconsideration be carried out in light of the findings and determinations that I have made with respect to other documents in this proceeding.

50. Document 47(g) is an Infection Control Report consisting of one page which is circulated to the members of the Infection Control Committee and the Quality Improvement Committee. The document is not, according to Dr Sloan, circulated outside. According to Dr Sloan the document "contains information that refers to specific patients and specific wards and was supplied in confidence to the Infection Control Committee". For this reason Dr Sloan distinguished it from Document 36(d) which was released. Having read the document myself I am unable to perceive the distinction drawn by Dr Sloan. Accordingly I grant access to Document 47(g).

51. The last document on the sample list with respect to Box Hill Hospital is Document No. 48(h). Dr Sloan did not seem to give any specific evidence about this document. I am not sure whether this was as a result of an oversight or because this document was to be deleted from the sample. I am unaware that this document has been released and accordingly I will proceed to deal with it as best I may. It is described in the schedule of exempt documents as "Audit of IV cannulae". The document is described as being part of a quality improvement project. The precise manner of collection of the information contained therein does not appear. I infer however from the nature of the document that it discloses information as to a project with substantial clinician involvement and not mere extrapolation of data base material. Albeit with some reluctance I conclude that release of this document would impair the ability of the Network and the Hospital to obtain similar information in the future. I uphold the exemption claimed under Section 35(1)(b).

52. In the circumstances it is unnecessary to say anything as to the exemption claimed under Section 30(1).

53. The first disputed document relative to the Alfred Hospital is numbered 54, it is described as follows:

"Internal memoranda of the Alfred Health Care Group from Dr L.W. Osborne Deputy Director of Medical Serves to Professor N.A. Keks Professor Director Hospital Community Psychiatry re coronial inquest into the death of Mr Brian Gordon Phillips and Mr Michael Marshall".

Professor Napier Thomson, aside from being Professor and Head of the Department of Medicine at Monash University, is the Director of the Department of Renal Medicine at the Alfred Hospital and Chairman of the Division of Medicine at the Alfred. He gave evidence that Document 54 was an internal memorandum which was not circulated outside the Hospital. He said that the information was given in confidence and had the potential to identify individuals and events. The memorandum consists of some three pages, the first of which concerns the late Mr Phillips and the second two of which concern the late Mr Marshall. In answer to a question from me, Professor Thomson stated "a large amount of it includes material that is obtained from outside the hospital ... the paragraph [sc the one that would have come from confidential discussions between medical practitioners is] on the second page under 1, 2, 3". There are on page 2, two series of paragraphs numbered 1, 2, 3. The second of those series is at the foot of the page so I take the paragraph that Professor Thomson refers to as being the one under the first of the series. This paragraph makes reference to events which are matters of public record and comments upon them. Having regard to the content of that comment, I am not satisfied that its disclosure would be likely to impair the ability of the Network of the Hospital to obtain similar material in the future. Accordingly the exemption under Section 35(1)(b) is not made out with respect to that paragraph. The paragraph is properly to be characterised as a piece of opinion, recommendation or advice but no issue of public interest has been demonstrated which would militate against its release. Since the balance of the document appears to be a report deriving from information outside the hospital, there is no ground for considering that the release of this document would impair the ability of the Hospital or the Network to obtain similar information in the future. Even if the balance of the document is considered to be opinion, recommendation or advice (which it does not seem to be) no public interest consideration militates against its release. The final sentence of the memorandum on page 1 refers to two individuals albeit in a positive light. Nevertheless, since the applicants have disclaimed any interest in practitioner specific material it is appropriate that this sentence be deleted. With the deletion of the final sentence of the memorandum on page 1 I grant access to Document 54.

54. The next disputed document is Document 55, described as:

"Internal memorandum of the emergency department from Dr M. Kennedy Emergency Physician to trauma management quality improvement committee. Copies to Associate Professor N. Boyse, Ms J. McLean and M.R. Jones."

According to Professor Thomson this document is once again an internal document albeit one that contains a small percentage of information already in the public domain. The Professor said the document was nevertheless interspersed with confidential information which constituted the majority of it. The first two pages of the document are constituted by a memorandum from Dr Kennedy, the next two pages contain information in tabular form. The balance of the document is constituted by a series of graphical representations of data by way of graphs, bar charts and pie charts. It is significant in light of Mr McLean's submissions as to the application of Section 139 of the Health Services Act 1988 that the first page of the tabular material is endorsed "CONFIDENTIAL s.139 Health Services Act, 1988" at the right hand foot. In so far as the material constitutes tabular or graphical representations of past events as distinct from projections of the future, it must be regarded as factual material or at the very least not opinion, recommendation or advice, so that no question of the Section 30(1) exemption could arise in relation to it. There was no evidence as to the number of clinicians involved in the Emergency Department at the Alfred. Evidence emerged en passant elsewhere that the Alfred Hospital is a State Trauma Centre and it is known as one of the major teaching hospitals in metropolitan Melbourne. This would seem to suggest that the number of clinicians involved is relatively large and that the risk of any individual clinician feeling that release of this aggregated data for the Department would focus attention upon him or her would seem limited. Nevertheless, the covering memoranda makes clear that the data was derived from "a collaborative review". This is the very sort of information and process for which all the medical witnesses said complete confidentiality was necessary to ensure proper candour in the peer review process.

55. I uphold the exemption claimed under Section 35(1)(b) with respect to Document 55.

56. The next disputed document is Document 57. This is described as:

"Minutes of the Alfred Patient Services and Care Committee held 22 July 1997."

The only portion of that document which is said to be within the request and for which exemption is claimed is paragraph 4.1. According to Professor Thomson, this document was created on a confidential basis for circulation within the Hospital only. In general terms it might be regarded as a report to the Committee of processes of peer review and quality improvement studies within a clinical department. Its release would not in my view entail the release of an opinion, recommendation or advice and so the exemption under Section 30(1) would have no application. Nevertheless in so far as the release of this paragraph would reveal discussions and activities involved in peer review and quality improvement activities within a clinical unit, even although no individual apart from the reporting department head is identified, I accept based upon the generality of the clinician evidence, that release of this paragraph would impair the ability of the Hospital and the Network to obtain a frank exchange of information within clinical units and departments as part of their peer review and quality improvement processes.

57. The next document is Document 62 which is described as:

"An emergency department internal memorandum from Dr M. Kennedy Emergency Physician, Dr L. Duziukas re mortality review attaching mortality review indicated data for the period July '97 to June '97."

According to Professor Thomson the document was created within a department of the Hospital and was not intended to be circulated outside that department. He added that it contained confidential information, in particular the information appearing on pages 2 and 3 which could only have been obtained as a result of confidential discussions within the relevant unit of the Alfred Hospital. This document consists of an internal memorandum and some graphical material involved in a mortality review. According to Professor Thomson this document is "actually between individuals within a department, so it wouldn't have gone outside the department in terms of its initial distribution and again it contains confidential information." He said that the information at pages 2 and 3 "would only have been obtained from confidential discussions within that unit at the Alfred Hospital and therefore it would have been assumed that it is confidential information by those that imparted that information." (Transcript page 305) I should note that each of the graphical attachments is marked "Confidential" at the right hand foot. Given that this document entails a manipulation of data on mortality, there can be no question that the adverse incidents involved would not have been reported. For someone outside the Hospital, the precise purport of the document and its implications may not be absolutely plain. With some hesitation I conclude that this document reports not only upon the fact of individual deaths and their apparent cause but also upon review procedures which by their very nature must be fully candid to be effective. In those circumstances, I accept that the Hospital and the Network would be impaired in obtaining similar information in the future if this document were released. I uphold the exemption under Section 35(1)(b). It is unnecessary to say anything as to the exemption under Section 30(1).

58. The next document is No. 67 which is described as:

"Minutes of the Alfred Patient Services and Care Committee meeting held 23 September 1997."

It is only paragraph 1.1 which is covered by the request and in dispute. This constitutes a report of a review within a clinical department of certain matters which could properly be described as adverse medical event in so far as the report conveys some conclusions. It might be regarded as constituting opinion, recommendation or advice. I accept that revelation, albeit indirectly, of the proceedings of intra-departmental quality assurance studies and peer reviews would be likely to impair the ability of the Hospital and the Network to obtain information through those sources in the future.

59. I uphold the exemption claimed for paragraph 1.1 of Document 67 under Section 35(1)(b). It is unnecessary for me to consider the alternative exemption claimed under Section 30(1).

60. The next document is No. 83 which was described as:

"Internal memorandum from Jenny McLean, Quality Manager to Zoltan Kokai, Information Services Officer, Inner and Eastern Health Care Network re the clinical indicator report with attachment of indicator report for second quarter."

The document consists of a face sheet, a memorandum of one page. The next three pages include information in tabular form relative to clinical indicators. There are references to "ACHS No" indicating presumably that the clinical indicators involved are one promulgated by the Australian Council for Health Standards. According to Professor Thomson, this document includes information as to clinical indicators which identifies particular departments and in the earlier pages could identify particular patients. At the outset I should deal with the final page of the document. It is described as "Alfred out-patient waiting times - weeks". Whilst I did not have any specific evidence on this point, this data seems to be of the type which would be system rather than clinician collected. At page 111 of the transcript Dr Coglin described this sort of information as the very type of information which can be released without any threat to the public interest. He said:

"In fact there are probably some data in here which would encourage the clinicians to redouble their efforts to report accurately, for example waiting times in the Emergency Department. Now, I think any conscientious clinician would be concerned were those times to be inordinate. It is not a statistic that is prone to some of the shortcomings we talked about before. I mean, if the average wait in Emergency Department at Box Hill Hospital is x then it is x and I don't see a lot of point in playing with risk adjustment methodology to add sophistication of that observation. So the clinicians would like that to be documented, would like it to be known. They would like the hospital management to be aware of that and would like the public who use the department, you know, to be familiar with it. So a thing like that is to be touched on, if you like, individually identifiable clinical performance we talked about, you know, the adequacy of service, if you like, where the waiting time issue, I think that's a very reasonable thing to report." (transcript page 111)

As to this final page, I do not uphold any exemption. The three initial pages of tabular material appear to be records broken down unit by unit of various ACHS clinical indicators. The evidence of the various witnesses was not entirely unanimous as to clinician involvement in the collection of data for the indicators. It appears that the precise mode of collection varies from hospital to hospital. The evidence was sufficient to allow me to conclude that many or most of the ACHS indicators require some data that is at least partially clinician collected. Further I accept the evidence of a number of witnesses that data which identifies particular units or departments is recorded relative to a relatively small number of individuals and its release would be calculated to create far greater apprehension than Hospital wide data or Network wide data. Exemption under Section 35(1)(b) is therefore made out with respect to the three pages of tabular information. The second last page of the document includes tabular information whose purport can be judged only with knowledge of the meaning of a number of acronyms and code numbers which the evidence did not elucidate for me. In the circumstances I accept the generality of Professor Thomson's evidence and uphold the exemption with respect to that page. This leaves the covering memorandum. This memorandum seems to be largely, if not exclusively a statement of fact rather than opinion, recommendation or advice. Accordingly the exemption under Section 30(1) appears to have no application. It appears to be in a number of respects a summary of data for which I have upheld an exemption when they were produced in tabular form. The same logic suggests that the exemption under Section 35(1)(b) should be upheld with respect to this covering memorandum.

61. Document 84 is an undated report on the ACHS clinical indicators for July to December 1997 by Jenny McLean. The document is composed differently from Document 83 containing narrative and bar charts rather than numerical tables. According to Professor Thomson it "reports information which once again could have been obtained from pre and frank discussions by clinicians" (transcript page 312). The same logic which dictated upholding the exemption under Section 35(1)(b) with respect to Document 83 leads to that exemption being upheld for Document 84. It is unnecessary to consider the application of any exemption under Section 30(1).

62. Document 168 from the Angliss Hospital was described as "Angliss Hospital Incidents Report August 1997". According to Ms Breckon, the Director of Nursing Services and Deputy Chief Executive Officer of the Service, the information on this document was gathered by

"An adverse event report which is a form developed by the organisation and clinicians fill in that form when it is required and they forward it to myself or the Executive Office we then review that form, and ensure that it is complete and that there has been some resolution to what has been identified in the form. The details are then entered into a data base which I manage and at the end of each month we print off reports and they go to our Improving Clinical Performance Committee for Review." (transcript page 189)

Ms Breckon said the reports are given by clinician "willingly ... knowing that it will be in confidence". The report includes short narratives of the incidents involved and identify patients by way of their unique patient number. The ward where each event occurs is disclosed. I did not receive precise evidence as to the size of each of the hospitals in the Network. The Angliss Hospital however is one of the smaller ones. In the circumstance, given that individual wards in one of the smaller hospitals are specifically identified together with narrative from particular incidents, the identity of individual clinicians, principally nursing staff might very well be revealed by the release of information of this sort. In the circumstances I accept that release of this sort of information might impair the ability of the Network and the Hospital to obtain such information in the future. I uphold the exemption under Section 35(1)(b) with respect to this document. The document is a record of fact rather than opinion, recommendation or advice, though there is a column headed "comment". I would not uphold an exemption under Section 30(1).

63. Document 190 is described as "Falls report July to December 1997". This document is of similar general character to Document 168. There is perhaps slightly less in the way of narrative content. Nevertheless for the same reasons I would uphold an exemption under Section 35(1)(b) but not under Section 30(1).

64. Document 192 is described as "Medication incident report for March 1998". This document is of the same character as the previous two. For similar reasons I uphold an exemption under Section 35(1)(b) but not under Section 30(1).

65. Document 193 is described as "General incident report for March 1998". Once again, similar considerations apply to this document as to the preceding three and I uphold an exemption under Section 35(10(b) in relation to it but not under Section 30(1).

66. Document 204 is described as "Patient falls report 1/3 to 31/3/1998". This document is once again a list of individual incidents with limited narrative identifying particular ward areas. For the same reasons as for the previous documents with respect to the Angliss Hospital I uphold an exemption under Section 35(1)(b) but not under Section 30(1).

67. Document 208 - Project No. 8 is described as "Summary of 1998 to 1999 quality activities". This is a list of quality improvement projects the eighth of which is entitled "Episodes of acute pulmonary oedema". No individual clinicians or patients are identified. The narrative is minimal and in substance there is little more than a statistical figure for a 12 month period. According to Ms Breckon the information in the description of this project could identify patients because this is a very small unit (transcript page 194). As explained previously I am not persuaded that identification of individual patients represents any reason why clinicians would not collect data in the future. Moreover, only a person fully acquainted with all the information in the ward could identify the patients, that is someone who knew the story already. I grant access to Document 208 paragraph 8.

68. Document 3 is described as "16th Quality Council meeting minutes of 28 October 1998". The paragraphs for which exemption is claimed are 4.2, 4.3 and 4.4. According to Dr Grogan this document was circulated solely within the Hospital. The minutes disclose dealings with another organisation in an attempt to obtain benchmarking information and according to Dr Grogan "there is also some fairly frank discussion by particular members of staff in other items and I would think that they would be much less forthcoming if they were to be aware that their comments were likely to be in the public domain". If the evidence goes no further than the people involved would be somewhat less candid than they otherwise might be, that would not make out the requirements for the exemption under Section 35(1)(b). As Sir John Young CJ noted in Ryder v Booth the evidence must go further and show that there would be an actual impairment to the ability of the agency to obtain like information in the future. I am reluctantly prepared to accept that when Dr Grogan speaks of clinicians being "much less forthcoming", he means that they might decline to speak at all on particular subject matters. Even although these minutes are minutes of a committee which operates above the unit or department level where as previously noted the spade work in quality improvement goes on, it records reports from that activity. I therefore accept that if material such as this which contains reports of that intra-department or intra-unit quality improvement activity were released, the ability of the Hospital or Network to obtain similar information in the future, would be impaired in that the exchange of information at the intra-department level would be impaired, hence impairing the information flow upwards. I uphold the exemption under Section 35(1)(b) with respect to this document. It is unnecessary to say anything as to the exemption claimed under Section 30(1).

69. The next document is described as "PEG Audit Report January 1999". Document No. 4. PEG stands for Percutaneous Endoscopic Gastronomy. According to Dr Grogan this document was generated within the Hospital and not circulated outside. Dr Grogan said:

"It is, I think, both an internal working document - and because the numbers of patients and their particular diagnoses, the numbers in each cell, so to speak, are quite small, and it also lists the location where particular procedures were performed, I took the view that there was information which could lead to the identification of particular patients."

Dr Grogan added that particular doctors could for similar reasons be identified (transcript page 354). The document itself indicates that the study was generated through theatre records and through registration with the home enteral nutrition program. Dr Grogran did not say that this document included any information exchanged confidentially in the course of peer review work within a department or unit. The document appears to suggest that the study is based upon hospital records rather than a particular clinician report. For reasons already given with respect to a number of documents, it does not appear that the ability to identify patients (if indeed that could be done by anybody other than someone already fully familiar with the circumstances and therefore possessed of the relevant knowledge) in itself would not appear to impair the ability of the Network or the Hospital to obtain similar information in the future. The exemption under Section 35(1)(b) has not been made out.

70. This document is primarily a record of fact rather than opinion. It does however contain some opinion and recommendation. Since the opinion and recommendations derive as conclusions from a scientific study it is not demonstrated that it is contrary to the public interest to release it. Accordingly I would not uphold any exemption under Section 30(1). I grant access to Document No. 4.

71. Document 7 is described as "Infection Control Report for the Quality Review Council January 1998 to December 1998". Once again, according to Dr Grogan it was generated within the Hospital and was not circulated outside. Asked by Mr McLean "and why do you say that it contains information communicated in confidence?" [the doctor had not in fact made that assertion]. He replied:

"Again, the numbers are very small and ... numbers in each particular graph that had been generated are small and there are - given that there are other criteria listed, I would think overall it would be possible for the - there is the possibility that individual patients could be identified. But more importantly, if this information were not to be kept in confidence, then our ability to gain particular similar information in the future would be markedly lessened."

Mr McLean then asked "Would the document enable identification of particular doctors?" and Dr Grogan replied "This one, less so.". (Transcript 354-5) It is notable that there is no particular evidence as to how the data upon which this document is based was generated. There is nothing in the text of the document or in Dr Grogan's evidence to suggest that it came as a result of the free flow of discussion between clinicians in the course of a peer review session. A number of the clinical indicators which appear to be taken Hospital wide seem to be the same indicators or at the very least related indicators to those which have been released by the Network albeit on a hospital by hospital basis. For reasons previously given I am not persuaded even if it be the fact that this document permits the identification of particular patients (and I am fairly sceptical) that this in itself would impair the ability of the Hospital or the Network to obtain similar information in the future. I do not uphold any exemption under Section 35(1)(b).

72. The document is a record of fact, not opinion, recommendation or advice. Accordingly there is no question of an exemption under Section 30(1).

73. Document 8 is described as "Incident Review from June - Oct 1998 documenting falls, medication errors and untoward events". The document consists of two parts, the first is a graphical representation of the data consisting of one page of bar graphs and a pie chart followed by a series of pages with narrative descriptions of particular incidents. According to Dr Grogan:

"The information relates to a number of untoward events that have occurred in the Institute over a particular time period and we are very reliant I think on the confidentiality provisions so people would be very forthcoming in providing this information. I think if we didn't have confidentiality, the quantity of reporting would fall significantly." (Transcript page 555)

Dr Grogan noted that one of the bar graphs on page 1 identified particular wards and since a fairly small number of doctors work in those wards, it might be thought possible to relate the information on the graph back to particular doctors.

74. I accept that in so far as the document contains narrative descriptions of particular events, it has the capacity to lead back to individual clinicians and that release of this sort of information would tend to deter fully accurate reporting. I uphold the exemption under Section 35(1)(b) with respect to all pages save for the first page. The first page represents aggregated Hospital wide data with the exception of one bar graph, namely the one described "incidents by type and department June - Oct 1998". In those circumstances I accept Dr Grogan's evidence that this bar graph could lead back to particular individuals or small groups of individuals and that its release might deter full and accurate reporting of adverse incidents. I uphold the exemption under Section 35(1)(b) with respect to that bar graph. This cannot be said for the balance of the graph and chart information on the first page of the document. These are records of fact and not of opinion, recommendation or advice. Accordingly I do not uphold any exemption under Section 35(1)(b). I grant access to page 1 of Document 8 with the exception of the bar graph styled "Incidents by type and department".

75. Document 9 is described as "Clinical Indicators March 1997 - December 1998 with attachment". The document consists of a number of parts. The first three pages are bar graph representations of clinical indicators. The next is a memorandum constituting a comparison of clinical indicators with the ACHS Care Evaluation Program. The next page is a memorandum re Interim Skin Discharge Summaries. The following page is a bar graph relative to the completion of discharge summaries. The final three pages consists of information from the Health Care Network as to definitions and mode of completion and reporting of clinical risk management indicators. According to Dr Grogan the information in the graphs came to some extent from information given by clinicians and to some extent from other sources. Dr Grogan said that the numbers involved were small and that the clinicians to the extent that they furnished information, did so on a confidential basis. The indicators are fairly well known indicators, either identical with or similar to those released by the Network on a hospital by hospital basis. These indicators appear to be taken across the entire Peter MacCallum Institute. In those circumstances I am not persuaded that release of this information would impair the ability of the Hospital and the Network to obtain similar information in the future. The same goes for the memorandum comparing the Peter MacCallum's results with the ACHS benchmarks. There was no particular evidence about the memorandum re internal skin discharge summaries and accordingly I do not uphold any exemption with respect to it and the memorandum as to the methodology of preparation of risk indicators from the Network certainly does not appear to be the result of any confidential clinician input. I grant access to Document 9.

76. Document 15 is described as "Infection Control Report January 1998 to September 1998". Dr Grogan did not seem to have given any specific evidence with respect to this document. The material seems to be almost entirely graphical, though there is some additional tabular material relative to one of the clinical indicators. This appears to be a collection of aggregated Hospital wide clinical indicators. It does not seem calculated to identify particular clinicians. In the circumstances I am not persuaded that its release would impair the ability of the Network or the Hospital to obtain similar information in the future. Accordingly I do not uphold the exemption claimed under Section 35(1)(b). The document is a record of fact rather than opinion, recommendation and advice, therefore there is no exemption available under Section 30(1).

77. Document 23 is once again an Infection Control Report. For the same reasons as given with respect to the previous document, I grant access to Document 23.

78. Document 223 is described as "Series of clinical indicator data from July 1997 to June 1998". The data appears to be Hospital wide and similar to hospital by hospital indicator material that has been released, albeit at the Network level. Its release would not identify particular clinicians or reveal any confidential discussions at the intra-unit level. Accordingly I grant access to Document 223. Since it has not been shown that the release of the document would impair the Network or Hospital's ability to obtain similar information in the future and the document is a record of fact rather than opinion, recommendation or advice, accordingly neither the exemption under Section 35(1)(b) nor under Section 30(1) has been made out.

79. Document 225 was described as "Medication errors from 1 June 1997 to 31 May 1998". The document consists of a number of separate parts. Initially there is a numerical breakdown by type and percentage of forms of error, secondly, a breakdown by department and thirdly there is a section in which each medication error is described by reference to date, department, shift and type of error. Dr Grogan said, correctly upon my observation of the document, that it identifies wards and would permit the identification of patients and/or doctors. For reasons already given I am sceptical as to the identification of patients being possible save by someone already possessed of the relevant facts. In any event it seems beside the point so far as the Section 35(1)(b) exemption is concerned. In so far as the document identifies particular incidents and dates and wards or department, it has the capacity to identify particular incidents with particular clinicians. I accept therefore that release of this sort of information would deter reporting by clinicians and therefore impair the ability of the Network or the Hospital to obtain similar information in the future. I uphold the exemption for all parts of the document except for page 1. Page 1 provides a "breakdown" of incidents by department and likewise this has the capacity to lead back and identify relatively small numbers of clinicians. The document is a record of fact rather than opinion, recommendation or advice. Accordingly the Section 30(1) exemption has no application. I grant access to page 1 of Document 225 with the exception of the breakdown of incidents by department and uphold the exemption under Section 35(1)(b) for the balance.

80. Document 140 (the relevant part is paragraph 38) is described as "Quality Council summary". According to Dr Ling who is the Director of Medical Services at the Hospital, the information in that section was collected using audit forms

"and they were incidents that were reported by the doctors. They were reported in confidence, and the information was then collected. It is presented to the Quality Council, which they believed to be confidential to, and returned to them merely to them alone, so that they could look at work practices and make improvements as they saw fit." (Transcript 219)

Dr Ling said the document was not circulated outside the Hospital except to the Quality Council of the Network. The relevant passage in the document seems to be a report in summary form to the Hospital's Quality Council of the very sort of intra-unit quality improvement discussion and peer review which the overwhelming weight of evidence says can only occur and thrive if confidentiality is granted. Accordingly I uphold the exemption under Section 35(1)(b) with respect to this document. The document is a record of fact rather than opinion, recommendation or advice and accordingly the exemption under Section 30(1) cannot apply.

81. Document 153 is described as "Clinical Indicator Report" for the period January to June 1998. This document compares the Hospital's indicators with benchmarks. According to Dr Ling, most of the document "is compiled by doctors reporting whatever they need to report. There's a number of them which are reported through the IT system. But most of them are reported by the doctors in incidents." (Transcript page 220). This document according to Dr Ling is circulated to the Network as well as the Hospital. She said it was possible to identify clinicians, not individually, but by way of groups. She said that the data was raw and was not checked for statistical validity. Dr Ling added "I think that the doctors would be most unhappy to think that any of this information would be subject to public domain and criticism." A number of the indicators relate to delays in attendance of patients which was said by Dr Coglin to be the very sort of data that should be released (transcript page 111). Moreover, the data is Hospital wide. Of course some of the indicators by their nature are such as apply only to particular departments. Many of the indicators involved have already been released at the Network level, even although being hospital specific. Some, such as those appearing in Alfred Document 99 have been released at the hospital level. Given that this is aggregated data, even if a lot of it derives from clinician reports, I am not persuaded that the release of information at this level of generality would impair the ability of the Hospital or the Network to obtain similar information in the future. I do not uphold any exemption under Section 35(1)(b). Since this document is a record of fact rather than opinion, recommendation or advice, no exemption under Section 30(1) has been made out.

82. Document 157 is a Quality Council summary. The relevant parts of the document are paragraphs 179 and 197-9. For the same reasons given with respect to paragraph 8 of Document 140 for the Maroondah Hospital, I uphold the exemption under Section 35(1)(b) with respect to this document.

83. Document 239 is described as "Attachment to meeting of 11 May 1998 Maroondah Quality Council Minutes of the Medical Audit Committee" dated 25 September 1997. According to Dr Ling, these minutes were not circulated outside the Hospital and the information recorded was given in confidence. She said "this was discussing mainly deaths and I mean, if you knew the Hospital you could actually identify the patients, the doctors and any other health professionals associated with it, and it talked about complications, causes of death." For reasons previously given, the ability to identify particular patients is neither here nor there. I accept however that individual clinicians might be identified from this document and release of material of this kind might deter clinicians from making candid reports to medical audits. Accordingly I uphold the exemption claimed under Section 35(1)(b) with respect to this document. Documents 240 and 241 seem to be in like case. All three of these documents might be regarded as containing opinion, recommendation and advice in addition to factual material. Having upheld the exemption under Section 35(1)(b) it is however unnecessary for me to consider the exemption claimed under Section 30(1).

I certify that this and the preceding 49 pages are a true and correct copy of the decision of Mr Michael Francis Macnamara, Deputy President.

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Report from 1 March 1998 to 31 December 1998 detailing patient falls, general incidents, hazard near miss reports, medication incidents report

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Internal memoranda of the Alfred Health Care Group from Dr L.W. Osborne Deputy Director of Medical Services to Professor N.A. Keks Professor Director Hospital Community Psychiatry re coronial inquest into the death of Mr Brian Gordon Phillips and mr Michael Marshall

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Internal memorandum of the emergency department from Dr M. Kennedy Emergency Physician to trauma management quality improvement committee. Copies to Associate Professor N. Boyce, Ms J. McLean and M.R. Jones

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Minutes of the Alfred Patient Services and Care Committee held 22 July 1997

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Emergency Department internal memorandum from Dr M. Kennedy Emergency Physician, Dr L. Duziukas re mortality review attaching mortality review indicated data for the period July '97 to June '97.

(a) Minutes of the Emergency Department Quality Improvement Group with its own attachments of

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Minutes of the Alfred Patient Services and Care Committee meeting held 23 September 1997

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Private and confidential internal memorandum from Mr Bruce Levy, Chief Operating Officer to Mr Max Esser copies to Mr John Hart, Mr Barry Elliott, Associate Professor Dennis Spelman, Mr Peter Nottle, Dr Taffy Jones, Dr Arlene Wake, Dr Michael Walsh and Patient Services and Care Committee re infection control initiatives with attachment report on action taken on possible administrative surgical risk factors.

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Internal memorandum from Jenny McLean, Quality Manager to Zoltan Kokai, Information Services Officer, Inner and Eastern Health Care Network re the clinical indicator report with attachment of indicator report for second quarter.

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Report on the ACHS clinical indicators for July to December 1997 by Jenny McLean.

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(b) Risk Management Program and Key Performance Indicator Results 1996 and 1997

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(d) Provisional Report on Wound Infections and MRSA Rates

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(g) Risk Management Program and Key Performance Indicator Results 1996 and 1997 and Clinical Indicators

(i) Inner and Eastern Healthcare Network Quality Indicators on Adverse Events Patient Falls by Mrs Jan Worth Nursing Quality Improvement Co-ordinator

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(b) Risk Management Program and Key Performance Indicator Results 1997 and 1998

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(g) Box Hill Hospital Emergency Department Quality Improvement Peer Review Meeting Recommendations by Dr Debbie Leech Medical Quality Improvement Co-ordinator Emergency Department

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(c) Network Clinical Indicator Report January 1997 to December 1998

(h) Presentation on Endocrine Unit Audit on Steroid Induced Osteoporosis by Drs and Allan Landale and Harvey Noonan

(k) Nursing Division Pressure Ulcer Prevalence Survey Results

(l) Inner and Eastern Healthcare Network Box Hill Hospital Quality Indicators Adverse Events Patient Falls by Mrs Jan Worth Nursing Quality Improvement Co-ordinator

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(b) ACHS Clinical Indicators Results January to June 1998

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(g) Infection Control Report and MRSA Isolates Report and Surgical Wound Infections Report

(j) Departmental Audit in Cyto Pathology by Glen Hocking Department of Pathology

(k) Quality Assurance Program Report by Pharmacy Department on Missed Doses.

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(c) Quality Indicators Report dated 1998 to 1999 and extract of the Performance Review

(i) Infection Control Report, Surgical Wound Infections, MRSA Isolates Report

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(c) Infection Control Report Surgical Wound Infections Report

(g) A Pharmacist's Impact on Appropriate use of Enoxaparin

(i) Nursing Division Care of Patient Presenting with Renal Colic and Pressure Ulcer Prevalence

(j) Quality Activities Project Summary Sheet on Pap Smear Results Testing

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16th Quality Council meeting minutes of 28 October 1998

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Infection Control Report for the Quality Review Council January 1998 to December 1998

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Incident Review from June - Oct 1998 documenting falls, medications errors and untoward events

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Minutes of the 15th Meeting of the Quality Council held on 29 July 1998

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Letter from Catherine McMutrie Quality Co-ordinator to Mr Mike Petty Manager Cancer Services re Hospital acquired Bacteraemia

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Memorandum from Professor Lester Peters to Professor Richard Bennett re PEG Audit

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Infection Control Report January 1998 to September 1998

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Minutes of the 12th Meeting of the Quality Council held on 3 September 1997

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Infection Control Report January 1997 to October 1997 for the Quality Council

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General Comparison Hospital Wide Medical Indicators

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Memorandum from Maree Cuddihy to Members of the Quality Council re Addendum to Clinical Indicator Report

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Memorandum from Patient Liaison to Co-Ordinator to Secretary Quality Committee Peter MacCallum Institute re Complaints Data Report March 1997 to August 1997

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Infection Control Report January 1997 to July 1997 for the Quality Control

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Attachment to meeting of 11 May 1998 Maroondah Quality Council Minutes of the Medical Audit Committee

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Attachment to meeting of 11 May 1998 Maroondah Quality Council Minutes of the Medical Audit Committee

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Attachment to meeting of 11 May 1998 Maroondah Quality Council Minutes of Medical Audit Committee

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