Doyle v DHS [2002] VCAT 176

Applicant Mr S. O'Bryan instructed by Dr Robert Dean

Respondent Mr M. Dreyfus QC with Mr Duncan instructed by Victorian Government Solicitor

1. The applicant, Mr Robert Doyle, is the Shadow Minister for Health. On 7 March 2001 he made a request to the respondent department for access to "All Hospital Highlights Reports from 20.10.99 until 7.03.01"

2. On 22 May 2001 Mr Doyle applied to this Tribunal for review of the respondent's deemed refusal to grant access.

3. At the commencement of the hearing, counsel informed the Tribunal that the request had been narrowed to seek access to only three of those reports - those for June, September and December 2000.

4. The respondent claims exemption pursuant to sections 30(1) and 35(1)(b) of the Freedom of Information Act 1982.

5. Viva voce evidence was given by Mr Doyle and by three witnesses for the respondent.

* Mr David Anderson, Manager, Financial Analysis and Funding, Acute Health Division, Department of Human Services ("DHS");

* Mr Peter McDonald, Director of Finance, Austin and Repatriation Medical Centre: and

* Mr Richard John Linke, Director of Financial Services, Barwon Health.

7. Several documents were tendered to the Tribunal. They included:

* Hospital Services Reports - June, September and December 2000;

* Hospital Highlights Report for year ended 30 June 2001 released publicly 7 November 2001; and

8. Mr Anderson gave uncontradicted evidence relating to the monthly compilation of the documents sought by the applicant. Salient points were:

* each metropolitan public hospital provides DHS (on a monthly basis) with estimates of its financial information together with cash flow information;

* each hospital provides this information in a standard form document known as "F1";

* elective and emergency department information is also regularly supplied;

* all of that is collated and analysed then followed by a short period of consultation between the hospital concerned and DHS;

* the result of the reports and the various consultations are then compiled and collated to form the Hospital Highlights Report;

* that document is scheduled for completion at the end of that month;

* all hospitals are required to provide this information as a condition of funding;

* much of the information contained in the monthly Hospital Highlights Report (but expressly excluding financial matters) is to be found in the quarterly Hospital Services Report;

* the Hospital Services report is published in hard copy and is available on the departmental website;

* an annual version of the Hospital Highlights Report (with narrative) is prepared based on the audited accounts of the various metropolitan hospitals. The report for the year ended 30 June 2001 was available publicly on 7 November 2001; and

* annual financial statements are, as with all government departments, published in audited form after they have laid before Parliament.

9. Mr Peter McDonald has been Director of Finance at the Austin Hospital for the last three years. He told the Tribunal that the monthly F1 reports (excluding cash balances) were estimates for internal management purposes, based on a number of assumptions that might change from time to time. Categories relating to estimates were set out in his written statement.

10. Mr Linke was Director of Financial Services at the Geelong Hospital from 1985-1991 and has been Chief Financial Officer at Barwon Health from 1998 to date. He told the Tribunal that all hospitals were required to submit information relating to activity, finances etc to the department and that these requirements were part of the general conditions of funding. He stated that the financial information required in the F1 document largely consisted of:

* a monthly statement of actual cash flows and projected flows to the end of the financial year; and

* a projected end of year surplus/deficit and cash position.

11. He stated that there were some differences between the systems operating at his hospital and others but said that his hospital provided fairly reliable estimates of expenditure. However he told the Tribunal that in relation to items of revenue, due to differing reporting practices, estimates of profitability could be distorted. He gave some specific examples.

12. The Tribunal heard evidence from the applicant. He told the Tribunal that the information he sought was most important when he was in government; he said the information was crucial to many decisions of some gravity. The rationale behind his application was that the data provided in the Highlights Report was the only unvarnished form of reporting; by that I take him to mean that the government did not put its own "spin" on the material and as such it was an invaluable and untampered source of data about the State hospital system.

13. Section 30 of the Freedom of Information Act 1982 relevantly provides:

(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

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

(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.

(a) acquired by an agency or a Minister from a business, commercial or financial undertaking; and

(b) that relates to trade secrets or other matters of a business, commercial or financial nature.

15. The first point requiring consideration is whether or not the Hospital Highlights Reports can be said to disclose matter in the nature of opinion, advice or recommendation. If that is satisfied, then it is necessary to consider whether that opinion, advice or recommendation can be said to be part of the deliberative process.

16. The applicant submitted that the Hospital Highlights Report was simply a synthesis of hospital reports on mostly factually based material. The respondent submits that because some of the information provided in the F1 forms is based on accounting assumptions and estimates, it therefore fits within the broad description of internal working documents.

17. Mr O'Bryan for the applicant submitted that in relation to the deliberative process, the Hospital Highlights Report was the start of that process. That contention was contradicted by the evidence of Mr Anderson and Mr McDonald. The evidence of Mr McDonald was that at the F1 reporting level, several assumptions were built into the data; this was the substance of similar evidence given by Mr Linke. Mr Anderson told the Tribunal that when he received the F1 material there was a period of consultation and amendment before the Hospital Highlights Report was finalised and went into print form.

18. I have studied the documents in question. It is abundantly clear from the evidence of Mr Linke and Mr McDonald (both of whom are responsible for preparation of the source documents) that apart from the monthly statement of actual cash flows, the balance of the financial data is based on estimates. Both witnesses gave evidence in relation to estimates of assets, liabilities, income and expenditure and the basis for certain assumptions. In addition the data contains cash flow projections which by their very nature are estimates only. On the basis of their evidence I am unable to conclude that the bulk of the material is mostly factually based. But some of it is.

19. For an understanding of the mix of fact and estimate the Tribunal took the opportunity to compare one of the monthly Hospital Highlights Reports with a marked up copy supplied by the respondent. The marked up copy purported to exclude all the material other than factual matters. Roughly speaking, each monthly Hospital Highlights Report contained information under the following headings:

20. The marked up copy supplied to the Tribunal omits all those items dealing with matters financial and generally with estimates. But it seems also to omit matters that are either factual on their face or alternatively not the subject of evidence that would allow me definitively to conclude otherwise. For instance, omitted from the graphics dealing with the amount of time taken to treat particular classes of patients is the data for the previous three months. According to Mr Anderson data such as "ambulance bypass" was said to "be a mixture of fact and estimate." It was not explained to the Tribunal how it was that ambulance bypass figures were the subject of estimate and I concluded that it was unlikely they were. Certainly neither Mr Linke nor Mr McDonald gave any evidence that would lead me to conclude this data was other than fact albeit requiring correction from time to time as each month went by and normal verification occurred. Mr Anderson told the Tribunal that the throughput figures could not be understood in isolation without reference to the executive summary. But to my mind that does not detract from the factual nature of the throughput data. All it does is cast doubt on the veracity of it or, more importantly, on the utility of it to any observer.

21. Given the timetable for preparation and delivery of the "F1" throughput information one might infer that the information might eventually required some amendment or correction, at least for the preceding month. But that does not in any way detract from the factual nature of the information. See Re Thwaites v Department of Health and Community Services (1995) 8 VAR 361, 373 where Deputy President Macnamara of this Tribunal stated that:

It does not seem to me that a document ceases to be factual for the purposes of this provision by reason only of a 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.

22. The quarterly Hospital Services Report (which is published in hard copy form and is available online) does include much of the non-financial data contained in the monthly Highlights Report in a summarized and structured fashion. Mr Anderson indicated "the public can obtain ......key information about hospital performance ......with the exception of provisional monthly throughput figures and comparison with WEIS target."

23. Based on my perusal of the Hospital Highlights Reports, it appears that the bulk of the reports disclose financial data much of which is based on estimates and assumptions. The less voluminous part of the report deals with what I will call the factual matters - WIES v Target Variance, Triage Emergency, Ambulance By-pass and reports of % Emergency Admissions within 12 hours. But some of the data under each of those four headings is contained in an uncorrelated (but no less comprehensive) form in the quarterly Hospital Services Reports available to the public. And doubtless those quarterly reports are ultimately a more reliable repository of the information. It is curious that the annual version of the Hospital Highlights Report (which in the case of the 2001 year was released publicly on 7.11.2001) contains no summary of the factual matters referred to above. It contains a generalised summary of financial results.

24. Based on the evidence of Messrs Linke and McDonald I accept that the information forwarded by them in the form of the "F1" reports represents their advice to the department. I accept the evidence that sometimes there is some "massaging" of those figures by the department following their receipt and that there is ongoing consultation between the individual hospitals and the department in order to correct anomalies or to provide explanations for unusual and extraordinary events. I accept that averaging practices are adopted to account for seasonal anomalies and to sort out peaks and troughs in revenue and expenditure. I accept Mr Anderson's evidence that the eventual data prepared and contained in the monthly Hospital Highlights Report is destined for limited circulation among the Minister, the various chief executive officers and the departmental secretary and is used by them as a guide to strategic planning and to funding decisions. Excluding the factual information it follows from what I have said that I accept that the reports contain matters in the nature of opinion or advice prepared by officers.

25. But are they prepared in the course of or for the purpose of the deliberative functions of the agency?

26. According to the Commonwealth Administrative Appeals 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....The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of any agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.

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

27. This statement was approved by Deputy President Galvin of this Tribunal in Brog v Department of Premier and Cabinet (1989) 3 VAR 201, 208 and by Deputy President Macnamara in Re Pullen and Alpine Resorts Commission (unreported, AAT Vic, 23 August 1996).

28. In Mr Anderson's comprehensive written statement he had this to say:

The reports are prepared for a number of purposes. Firstly they are a central tool used by the hospitals and DHS in the continual discussion of the functioning and funding situation for each hospital and for all as a system. This enables the Department to monitor the performance of hospitals on a monthly basis, to identify issues as they arise and to consider policies and options for current and future funding to be developed by the Department. Another central purpose of the report is the provision of opinion and advice in a form that will assist the deliberative processes of Government. Thus it is used to inform various Ministers and to advocate to Treasury and Cabinet when the need arises to revise the current and future budget, or when attention must be given to a particular problem.

The front pages of the Reports state that they are prepared for circulation to the Minister, Metropolitan Health Service/Network CEOs and the Secretary of the Department. However, they are also created in the knowledge that they will be used by the Department of Treasury and Finance and the Department of Premier and Cabinet as well as the Expenditure Review Committee of Cabinet.(ERC) This is a regular occurrence and forms part of the reporting to the ERC about public hospital finances and performance and assists in budget development and approval.

29. This evidence was not contradicted and to my mind supports a finding that the Highlights Reports form part of the agency's deliberative processes. They do not just contain reporting of statistics but contain comment and projections which form part of the agency's thinking process and form part of the creative process not just of the agency but of other selected parts of government.

30. I have formed the view based on the evidence before me that the graphs and tables under the headings listed below do not fall within the ambit of section 30 because they relate to issues of fact. That those graphs may need to be corrected from month to month and that their publication may be confusing if read in isolation does not detract from the nature of the information contained in them. Similarly the fact that much of this information is collated, summarized and published on a quarterly basis does not take away from the factual basis of the monthly data. It might mean that anyone relying on the monthly information would do so at his or her peril and with the express knowledge that more accurate information is available on the public record on a quarterly basis, but so be it. The headings are:

* % of Triage Category 2 Patients Treated within 10 minutes "Group A1" hospitals

* % of Triage Category 2 Patients Treated within 10 minutes "Group A2 and Metro B" Hospitals

* % of Triage Category 3 Patients Treated within 10 minutes "A2 and Metro B" Hospitals

* Emergency Admission % within 12 hours "Group A" Hospitals

* Emergency Admission % within 12 hours "A2 and Metro B" Hospitals

31. The balance of data (excluding that mentioned in the foregoing paragraph) contained in the reports falls within section 30.

32. Section 30 provides that an internal working document is exempt if its disclosure would be contrary to public interest.

33. Mr Dreyfus referred me to the well known excursus on the subject of public interest to be found in Ryder v Booth [1985] VicRp 86; [1985] VR 869 where Gray J said:

It follows that, to obtain exemption, the appellants must prove that the disclosure of the reports could be "contrary to public interest" within the meaning of s30 (1)(b).

As was pointed out in argument there is always difficulty in identifying what is public interest in a particular situation. In the present context I consider that there are two aspects of public interest which fall to be considered. One is the public interest in persons having access to documents, including confidential documents which concern them but which are in the hands of an agency. The second is the public interest in the efficient and economical conduct of a government agency. In relation to the issue raised under s30 (1)(b) I consider the appellants must prove disclosure would be contrary to public interest after balancing the two considerations I have mentioned

34. In the same year the Commonwealth Administrative Appeals Tribunal considered the matter in Re Howard and Treasurer of the Commonwealth [1985] AATA 100; (1985) 3 AAR 169,178 the then President, Davies J considered a range of cases and said that from those cases it was:

.. 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:

1. The higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed.

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

3. Disclosure which will inhibit frankness and candour in future pre-decisional 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.

5. 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.

35. Whilst His Honour's views are by no means prescriptive and whilst there has been a significant change in how arguments about "frankness and candour" are viewed, His Honour gives some framework to how matters relating to public interest might be viewed. In the case before me, the balance to be considered is between the public interest in persons having full and complete access to information about the State's health system on the one hand, and the public interest in the efficient and economical conduct of the respondent agency on the other.

36. Mr O'Bryan urged the Tribunal to draw some analogies between public and private sector reporting and submitted that interim financial reporting would be in the public interest, particular in the circumstances where, as his client put it, the Highlights Reports are the only unvarnished and most contemporaneous reports available. The public sector has its own complex code of statutory accounting and disclosure requirements and I do not consider drawing a parallel with the private sector is a useful analogy.

37. Whilst I do not consider the respondent's arguments about frankness and candour and the possible inhibition of officers in preparing their reports can bear too much scrutiny I do consider that the arguments about disclosure giving rise to unnecessary and unproductive debate have some merit in the circumstances of this case.

38. Government departments (and this case the hospitals as well) are bound by statute to prepare and lay before Parliament their annual financial results with some considerable degree of particularity. First, they are bound by the Financial Management Act 1994 the express purpose of which is (inter alia) to provide accountability in the public sector and to provide annual reporting to the Parliament by departments and public sector bodies. Second they are bound by the Directions of the Minister for Finance given pursuant to powers contained in section 8 of that Act. Third, they are subject to the scrutiny of the Auditor-General.

39. The departmental accounts are required to be tabled in Parliament no later that 31 October in each particular year. They are in audited form and they allow members of the public to compare actual results with budget estimates for the particular financial year and generally inform the public on each department's activities for the relevant accounting period.

40. Were it not for the complex layer of accountability provided by Parliament one might view public interest imperatives differently.

41. Mr Dreyfus also made much of the need to protect confidentiality but I think the more salient point is the one that points to the inadvisability of putting into the public domain unaudited financial data which is necessarily based on estimates and assumptions and which requires ongoing adjustment each quarter until the end of the financial year when all adjustments are finally made.

42. Mr Dreyfus also submitted that great weight should be given to any consideration of disclosure which might give rise to confusion and unnecessary debate. He submitted that it would be contrary to the public interest to release reports when the government had not necessarily adopted the conclusions therein because such release might contribute to unnecessary public alarm and certainly create unnecessary debate. I accept his submission in relation to the financial data contained in the Highlights reports.

43. Issues of health care and health funding are constantly ventilated in the media and are the subject of considerable interest in the community. In my view it would be counter-productive to proper debate to release unaudited financial information based on assumption and estimate (which according to Mr Linke "only gives an indicator of financial progress rather than a definitive measure of profitability") when properly prepared and properly audited accounts are available and placed in the public arena on an annual basis.

44. I find that it would be contrary to the public interest to release the financial information contained in the Hospital Highlight Reports.

45. Section 25 of the Act provides:

(a) a decision is made not to grant a request for access to a document on the ground that it is an exempt document;

(b) it is practicable for the agency or Minister to grant access to a copy of the document with such deletions as to make the copy not an exempt document; and

(c) it appears from the request, or the applicant subsequently indicates, that the applicant would wish to have access to such a copy-

the agency or Minister shall grant access to such a copy of the document.

46. I have formed the view that it is practicable for the agency to excise from the quarterly reports all matters except those I have found to be factual and which are listed in paragraph 30 hereof. By way of example, in the report for the period ended December 2000 the following pages should be excised and access be granted to what remains.

47. Whether the applicant wishes to avail of himself of the limited information is not known but given the evidence that much of the information is not readily understood without the benefit of the executive comment which I have held to be exempt he may not require it. But the applicant has an entitlement to that portion of the document should he wish to avail himself of it.

Documents containing material obtained in confidence

48. The respondent also claims exemption pursuant to section 35(1)(b) of the Act. In Berryman v Department of Education (unreported 4 February 1999) Deputy President Macnamara considered this exemption as follows:

In Thwaites v Department of Health and Community Services (1995) 8 VAR 361, 366 I considered the effect of the exemption created by Section 35(1)(b) at some length. I take the liberty of reproducing what I there said:

"In Ryder v Booth [1985] VicRp 86; [1985] V.R. 869, 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 Pepperell v Ministry of Housing (1989) 3 V.A.R. 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 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 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, Barnes v Commissioner for Corporate Affairs (1985) 1 V.A.R. 16, 18.

As to the meaning of the word "impair" King J, as a Member of the Full Court in Ryder v Booth 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."

[1985] VicRp 86; [1985] V.R. 869, 885.

49. Both Mr McDonald and Mr Linke told the Tribunal that it was their understanding that the material forwarded to the department in the F1 forms was confidential. Mr Anderson told the Tribunal that the documents were prepared with the expectation of a limited distribution and of course the front page of the document indicated its confidential nature.

50. More importantly the Tribunal was told that the reporting requirements were a condition of hospital funding. In the circumstances I have formed the view that the ability of the agency to obtain similar information in the future would not likely be impaired. Put simply, the various hospitals are required as a condition of their funding, to provide the information in question. They do so and doubtless will continue to do so because that is the responsible course for them to take. If the department were to excuse any participating hospital from providing information as a mandatory requirement of its continued funding, then the matter might be viewed differently. But that is not the present position.

51. The result of that is that even though I might conclude that the information was communicated in confidence (and that would follow from the broad interpretation contemplated in Berryman's case), the disclosure of it (and I am speaking of those factual matters not covered by the section 30 exemption) would in no way impair the agency's ability to obtain similar information in the future. In my view the exemption under section 35(1)(b) is not made out.

52. The applicant did not press the issue of the public interest over-ride pursuant to section 50(4) of the Act.

53. The decision of the respondent not to grant access as requested by the applicant is set aside and the matter is remitted to the respondent for reconsideration in accordance with these reasons and in particular in accordance with paragraphs 46 and 47 hereof.