The decision of the Freedom of Information Commissioner dated 25 June 2014 is, 28 days from the date of this decision, affirmed.

1. In February 2014, The Herald & Weekly Times Pty Ltd (HWT) requested under the Freedom of Information Act 1982 (the FOI Act) from the then Department of Health, documents produced by the Department about the number of people removed from Victorian hospital elective surgery waiting lists because they had died.
2. In May 2014, the Department refused access to a two page document (the Document) it had created in accordance with s 19 of the FOI Act. HWT sought review of the refusal by the FOI Commissioner, who in June 2014 decided the Document should be released.
3. In August 2014, the Department sought review of the Commissioner's decision by VCAT under s 50(3D) of the FOI Act. On 2 February 2015 I heard the application. The, now renamed, Department of Health & Human Services and HWT were legally represented.
4. Under s 51(2) of the FOI Act, the FOI Commissioner was not a party. She had not sought to intervene. Ms Kathleen Fielding, Manager Acute Programs, Health Service Programs Branch of the Department provided a witness statement. The Department provided articles the HWT had published the issue of hospital waiting lists and related to this proceeding. I heard submissions and reserved my decision.

1. By the end of the hearing the Department submitted the following exemptions applied:

1. The numbers in Tables 1.3 and 1.4 under the 'internal working document exemption' - s 30(1); 2. The numbers in Tables 1.2, 1.4 and 1.5 under the 'personal affairs'- s 33; and

1. The numbers in Tables 1.1 to 1.5 and the names of the services in Table 1.5 under the 'obtained in confidence exemption' - s 35(1)(b).

1. The Document listed the number of patients removed from the Victorian elective surgery waiting list due to death in 2010-11, 2011-12 and 2012-13, by five tables:

1. Table 1.1 - by sex; 2. Table 1.2 - by age range in 10 year increments;

1. Table 1.3 - by urgency (within 30 days desirable, within 90 days desirable and at some time in the future);

1. Table 1.4 - by surgical specialty (cardiothoracic, ear nose and throat, general, gynaecology, neurosurgery, ophthalmology, orthopaedic, other, plastic, urology and vascular); and 2. Table 1.5 - by health service.

1. Under s 13 of the FOI Act, HWT has the right to obtain documents from the Department unless a document is wholly or in part an exempt document.
2. Section 3 says the object of the FOI Act is to extend as far as possible the right of the community to access information in the possession of the Government of Victoria and other bodies constituted under the law of Victoria for public purposes and any discretions conferred by the Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
3. Because this proceeding arises from the Department's application under s 50(3D) of the FOI Act, the Department does not bear the onus of establishing that the FOI Commissioner's decision given was justified or that VCAT should give a decision adverse to HWT (see s 55(2)). The question is what is the correct or preferable decision.

1. A document is exempt under section 30(1) if, relevant to this proceeding:

1. Disclosure of the document would disclose matter in the nature of: * (i) opinion, advice or recommendation prepared by an officer; or * (ii) consultation or deliberation that has taken place between officers; and 2. The opinion, advice, recommendation, consultation or deliberation was prepared or took place in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of government; and

1. Disclosure would be contrary to the public interest.
2. Ms Fielding gave evidence that disclosing the Document would disclose matter in the nature of opinion or recommendations of surgeons employed by hospitals and health services about whether admission is desirable within 30 days, 90 days or 365 days and about the classification of a proposed procedure. This is part of the information that enables hospitals to manage their waiting lists, as well as to report to the Department.
3. While I accepted disclosure of the Document would disclose the recommendations, eg to place a person on the 30 day wait list, I did not accept it would disclose opinions. Those opinions, which led to the recommendations, could not be disclosed if the Document was disclosed.
4. I also accepted Ms Fielding's evidence that the information contained in the document is used in the Department's deliberative, "thinking", processes.[1]
5. However, I decided the numbers the Department submitted were exempt, were purely factual material contained in the Document. Therefore, under s 30(3) the Document was not exempt from release. The section says:

This section does not apply to a document by reason only of purely factual material contained in the document.

1. This is not a case where release of the Document "would have the consequence of disclosing what is not factual" (Brog v Department of Premier and Cabinet (1989) 3 VAR 201 at 212). It would simply disclose a range of factual information related to recommendations made by surgeons. Release would not disclose the Department's deliberations. Neither is it a case where information which might be thought to be purely statistical, such as a graph, was not purely factual material because it represents opinion (eg Pullen v Alpine Resorts Commission (unreported, AAT of Vic, 23 August 1996) and Tilley v VicRoads (General) [2010] VCAT 483[2]).
2. The AAT's observations in Thwaites v Department of Health and Community Services (1995) 8 VAR 361 apply here;

It does not seem to me that a document ceases to be "factual" for the purposes of [s 30(3)] by reason only of the debate as to the correctness of factual assertions contained in the document, or that there may be a question as to the appropriate expression of the "facts". To put it another way, it is difficult to see that various tabular or graphical representations of data could represent opinion or advice or the thought processes of [an agency].

1. For completeness, I discuss the other limb of the s 30(1) test.

Would disclosure be contrary to the public interest?- No

1. On the issue of whether disclosure would be contrary to the public interest, as Judge Macnamara did in Pallas v Roads Corporation (Review and Regulation) [2013] VCAT 1967, I refer to the following decisions.
2. In Secretary Department of Justice v Osland [2007] VSCA 96; (2007) 26 VAR 425, Maxwell P said the public interest consideration relevant to the public interest element of the exemption under s 30(1):

... include the efficient and economical conduct of Government, protection of the deliberative processes of Government, particularly at high levels of Government and in relation to sensitive issues, in the preservation of confidentiality so as to promote the giving of full and frank advice.[3]

1. In Friends of Mallacoota Inc v Department of Planning and Community Development [2011] VCAT 1889, Judge Hampel summarised the considerations which, according to previous decisions of VCAT, its predecessor and the Commonwealth Administrative Appeals Tribunal, might arise under s 30(1)(b) of the Act:[4]

1. The nature of the information and the nature of the document. The more sensitive or contentious the issues involved in the communication, the more likely it is that the communication should not be disclosed; 2. Draft internal working documents or preliminary advices and opinions are more generally than not inappropriate for release; particularly when the final version of the document has been made public;

1. It is contrary to the public interest to disclose documents reflecting possibilities considered but not eventually adopted, as such disclosure would be likely to lead to confusion and ill informed debate, to give a spurious standing to such documents or promote pointless and captious debate about what might have happened rather than what did;

1. Decision-makers should be judged on the final decision and their reasons for it, not on what might have been considered or recommended by others in preliminary or draft internal working documents; 2. It is contrary to the public interest to disclose documents that would have an adverse effect on the integrity or effectiveness of a decision-making, investigative or other process; 3. Disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making process; and 4. Public interest concerns the interest of the public as distinct from the interest of individuals.
2. The above must be interpreted in the context of the object of the FOI Act, to extend as far as possible the right of the community to access information.
3. Related to Maxwell P's observation in Osland, the disclosure of the Document does not threaten the giving of full and frank advice. At a departmental level, disclosure cannot impact the quality of advice, on issues such as resource allocation, based on the statistical information. As I discuss below, I do not accept its disclosure would impact on the work of those classifying patients for the waiting list.
4. In my view, the issues related to the Document itself are not of a sensitive or contentious nature. That the Department opposes its release does not make it so. It is a set of statistics. Not surprisingly in the context of many people on Victorian waiting lists over time, people die while on the waiting list. Their death may, perhaps probably, have nothing to do with the reason they are on the waiting list. While the issue of waiting lists as a whole may be politically sensitive, that alone does not make the Document sensitive.
5. The Document is not a draft of a published version of the same information.
6. I accepted Ms Fielding's evidence that the Department publishes a wide range of information about elective surgery, based on audited information (see below). She said this is consistent with a high level of transparency to improve public confidence in the fact that performance is being appropriately monitored. She spoke of the public interest in some degree of transparency and accountability of wait list information being publicly available once it is tested and amended for accuracy.
7. Some information is also provided to the Commonwealth Government about Victorian health service elective surgery wait lists, which leads to published information in aggregate form. This includes a figure for each State or Territory for removals from the wait lists of health services for various reasons including patients who died while waiting whether or not the cause of death was related to the condition requiring treatment. That figure is a combined figure because of variation in practices in the reporting of information between jurisdictions.
8. However, Ms Fielding also noted the more detailed information in the Document is not published.[5]
9. On a related issue, according to Ms Fielding, the information in the Document is not audited. Therefore the Document may be inaccurate. People may have been listed on multiple hospital or health service wait lists or listed more than once at the same hospital or health service, potentially overstating the correct figures. Therefore, while it is appropriately used in resource allocation and as a general performance measure, it is not appropriate to be released more widely and to be treated as factual data.
10. Ms Fielding gave evidence of the potential for inaccuracy and/or to mislead the reader because:

1. No reasons for or causes of death are reported in the Document. It would be wrong to assume the deaths reported are connected to the condition they were waiting to be treated for; 2. Some hospitals have patients of a higher risk profile or a different constellation of patients when coupled with information about numbers of deaths (especially in the absence of information about the cause of deaths). The Document could mislead about conclusions reasonably drawn about that hospital or health service;

1. The figures do not reflect when the patient died, only when the death was reported to the hospital or health service. This is sometimes well after the death. Therefore, the reader could be misled to understand the Document accurately states how many persons died whilst on a waiting list in a particular year;

1. The waiting list provides important information about a health service activity and performance over time but there are important differences across and between health services. The differences include the size, resources, specialities catered for, complexity of patients treated, support services available at the hospital (for example, critical care services) and other factors differentiating between hospitals. Whether larger number of patients or larger percentages of patients were removed from the wait list of the particular hospitals could be expected to differ accordingly. That does not make for any meaningful comparison between those hospitals; and 2. There can be some subjective differences in approach taken between hospitals and between surgeons as to how surgery related matters are categorised, leading to some inaccuracy.
2. While I accept Ms Fielding's evidence, I do not accept that potential imperfection of the data is a significant reason not to release it. If it was materially inaccurate, presumably it would not be used in the Department's deliberative processes.
3. The Department submitted release of the Document would give rise to the potential for misinformation and misleading statements or inferences being drawn. It referred to media articles HWT had published related to waiting lists as examples of misinformation:
   • Surgery queue costs lives, 29 October 2010;
   • Deadly wait for patients, 26 January 2014;
   • Hundreds died while waiting for elective surgery in Melbourne hospitals in 2013, FOI reveals, 14 February 2014;
   • Secrets of bad health, 8 September 2014; and
   • Government hires lawyer to Block Death Lists, 7 September 2014.
4. I rejected this submission. Generally the articles make claims, quote the opposition of the day agreeing with the claims and quote the government of the day disagreeing. While one might question the accuracy of some of the coverage, given the evidence in this proceeding that the fact a person is on the waiting list and the person dies does not mean the persons death was related to being on the waiting list, there is no evidence before me of negative consequences arising from any misleading information or misinformation.

Is the disputed text in Tables 1.2, 1.4 and 1.5 exempt under s 33(1)? - No

1. A document is exempt under s 33(1) if two tests are met:
   • (a) The document in question must contain information relating to the personal affairs of a person (including a deceased person); and
   • (b) Disclosure of that information must be unreasonable.
2. Under s 33(9), information relating to the personal affairs of any person includes information:
   • (a) That identifies any person or discloses their address or location; or
   • (b) From which any person's identity, address or location can reasonably be determined.

Does the Document contain information relating to the personal affairs of a person? - Yes; in part

1. My immediate reaction to reading the Document was the scant information it contains, in terms of what one normally considered as personal affairs, led to the conclusion that it does not contain information relating to the personal affairs of the person.
2. However, the Department provided evidence that with statistical information in tables, small frequency numbers such as 3, 5 and even 10 give rise to real risks of identification of individuals. This has been accepted by the National Statistical Service of Australia and was explained in greater detail in its series of Confidentiality Information Sheets provided in this proceeding.
3. I am required to make decisions on the evidence before me. An authoritative source tells me that if the numbers I have read total 10 or less, a person's identity, by way of cross-referencing other information or knowledge, may reasonably be determined. Therefore, I am satisfied that is the case where in the tables the number 10 or a number of lesser value appears. I do not accept the numbers 11 and above, which are the majority, are information relating to the personal affairs of a person.

Would disclosure of that information be unreasonable?- No

1. In the decision of the Supreme Court of Victoria Court of Appeal in Victoria Police v Marke [2008] VSCA 218, Weinberg JA and Pagone AJA approached the question as to whether release would entail unreasonable disclosure as requiring a balancing exercise. See [96] - [98] per Pagone AJA where His Honour said it was necessary in this context to consider:

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

1. In my view release of the information is not unreasonable. The Department submitted release of the Document, followed by a publication or publications based on it in the media, and for the purpose of this decision I assume replicating parts of the table or quoting it in detail, presents the real prospect that a person close to the deceased will realise the information in part relates to that person and would cause unacceptable intrusion on the grief of that person or persons.
2. When someone close to you dies, for years you are reminded of that person in the course of daily life. A letter addressed to the person may arrive. The date of birth or marriage may come around again. In that context, I do not accept the person who discovers or is reminded that the deceased died while he or she was on a waiting list would be subjected to an unacceptable intrusion. This is particularly the case when being on the waiting list may have nothing to do with the person's death.

1. A document is exempt under s35(1)(b) if:
   1. Disclosure would divulge any information or matter communicated in confidence by or on behalf of a person or a government to an agency; and
   2. The disclosure of the information 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.

Was the information communicated in confidence? - Yes

1. In Casey CC v Environment Protection Authority (General) [2010] VCAT 453 Judge Macnamara[6] discussed the relevant test:

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 of 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 Geschke 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 confidentially 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 therefore 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 minds". 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.[7]

1. I accept Ms Fielding's evidence that disclosure of any of the claimed exempt text would divulge information communicated in confidence by hospitals and health services to the Department.[8]

Would disclosure be reasonably likely to impair the ability of the Department to obtain similar information in the future? - No

As to the meaning of the word "impair" King J**,** as a Member of the Full Court in Ryder v Booth [1985] VicRp 86; [1985] VR 869 (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 case upon the agency by s.55(2) of the Act.

1. I am not satisfied disclosure of the text in dispute will to a sufficient degree impair the Department's ability to obtain the data which enabled it to create the Document.
2. Ms Fielding's evidence was:

The Department of Health, health services and clinicians (especially surgeons) have worked over many years to develop a robust, fair and transparent approach to waiting list management. The basis of that approach is trust and accountability. Accurately and consistently categorising and managing patients is central to the best practice waiting list management. The process of releasing and reporting of data publically is generally a negotiated and agreed process between the Department of Health, health services and clinicians to ensure the data to be released is reliable and fairly represents the system performance (has face validity). I believe that although health services may not cease providing the information the ability of the Department to obtain information of the same nature and quality could be compromised.[9]

1. Ms Fielding's evidence does not go beyond the type of evidence which did not persuade the Court in Ryder of sufficient impairment.

... Sir John Frew, said that he would not provide a report to an agency unless it was treated as confidential. Another, Dr. Heath, expressed a marked lack of enthusiasm for the Act and spoke of various problems that he envisaged. But the learned trial Judge expressly found that Dr. Heath would not be deterred from giving frank reports to the Board in the future. Other doctors merely supported the continuation of a policy of non-disclosure of reports. ...

Accordingly, it can be seen that, quite apart from the Act, the report to the Board of any doctor may end up in the hands of the contributor, despite its confidentiality. Presumably, doctors furnish their reports to the Board with these considerations in mind. It seems very unlikely that the additional access to reports provided by the Act will have any significant effect upon the supply of information to the Board. The learned Judge felt unable to accept the evidence of those witnesses who said otherwise and, in my opinion, he was perfectly justified in doing so.

I think that it emerges from the evidence that if these appeals are dismissed doctors will have some concern at their reports being subject to disclosure, but that when their concern is tested it becomes very doubtful that they would withdraw their services. In my opinion there is no credible evidence that the quality of such services would be impaired. I think therefore that the appellants' appeals against the learned County Court Judge's findings under s. 35(1)(b) should be refused. I find also that the appeals should be dismissed in so far as based on s. 35(l)(a).

1. In my view, that is so where in Ryder, the agency bore the onus to establish the exemption, and where, in this proceeding, the onus does not apply.
2. In Ryder v Booth, the issue was access to medical reports concerning Mr Booth by Mr Booth. The disclosure of the substance of opinions was in issue. Here, only remote indications of recommendations, arising from opinions is in issue. In that context, given as part of their duties, medical practitioners are required to place people on waiting lists and in doing so make the decisions which lead to the creation of the data which is captured in the Document, it appears unlikely they will cease doing so because the Document is disclosed.

1. Having found none of the claimed exemptions apply, I affirmed the FOI Commissioner's decision, directing the Department to provide HWT access to the Document in full.
2. Given I have accepted disclosure of the Document will in part disclose information relating to personal affairs, I have considered whether VCAT has an obligation to notify any person, who is the subject of information in the Document referred to in s 33(1) (or in the case of a deceased person, that person's next of kin), who has a right to apply to be heard under s 50(3) of the FOI Act, prior to disclosure.
3. In my view, in this proceeding, VCAT has no such obligation. It is not practicable to identify any such person (see s49P(5)).
4. As is standard practice, I allowed a 28 day delay, in which the Department may consider its appeal rights.

[1] Her witness statement including paragraphs 10 to 13, 36 and 37.

[8] Witness Statement, paragraphs 43 to 45.