2. In his statement of evidence, the applicant states Mr Redgrave's failure to use proper and accepted methods, as follows :

.... Mr Redgrave pulled the stone into the urethra where it got stuck and he went after it with a stone grasping forceps. The urethral lining being only 30 microns thin that procedure could not fail, and indeed did not fail, to severely injure the urethra leading to the development of a permanent urethral stricture.

1. In 2007, the applicant made a complaint to the respondent. That complaint was investigated and after the investigation, the respondent determined to take no further action against Mr Redgrave.
2. As a result, the applicant made the freedom of information request that I have referred to above. A number of documents were released to the applicant in whole or in part. However, five documents remain in dispute. They are documents 2, 5, 7 and 8. In relation to all those documents, the exemption that is claimed is pursuant to s 30(1) of the Act. It should be noted that documents 5 and 8 are identical.
3. In relation to document 6, the whole of the document has been released to the applicant save and except for the author's name of that document and his/her title. During the hearing, Mr Murray, solicitor for the respondent, conceded that the name of the Department to which the author of the document belonged could be released and that was "Professional Standards Department".

1. It is convenient to deal with document 6 first as that falls into a different category to the other documents. Document 6 was described by Mr Murray at the commencement of the hearing as :

A file note all of which has been released other than the name of the author and the position or title of the author.

1. Section 33(1) and (9) of the Act read as follows :

(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).

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.

1. It is clear that the name of the author of that document is personal information as defined in s 33(9). Further, it is clear that the author's title in that document also comes within s 33 as the title would, in all probability, allow the applicant to identify the author of the document. The more difficult question is whether the release of the information that I have described would "involve the unreasonable disclosure of information" in relation to the personal affairs of the author of the document. The applicant stated that it is important that the name and qualifications of the author is disclosed. I note that the qualifications of the author are not mentioned in the document at all. However, the applicant stated, by looking at various registers, he believed that he would be able to obtain the qualifications of that person. He said in order to make sense of the document, it is necessary that the person's qualifications be ascertained. It is clear that whether or not it would be unreasonable to disclose the name and title of the author of the document is a question of competing interests in the disclosure or non-disclosure of that information. (see Page v Metropolitan Transit Authority (1988) 2 VAR 243 at 246 and Victoria Police v Marke (2008) VSCA 218.
2. I have formed the view that disclosing the information which the applicant seeks in document 6, in all probability, would not enable him to find the qualifications of that person but, in any event, if it did, it would seem to me to be of little importance in determining whether the respondent has or has not performed its duty correctly.
3. It is clear that the person concerned does not wish to have his/her identity revealed and this has been made clear by the s 53A material that has been filed.
4. Further, Mr Murray has submitted that there is a public interest in protecting a person's right to privacy and the applicant does not have any reason which in the public interest would make it desirable to have the name and details to be disclosed. It is noted that public interest is not referred to in s 33 of the Act.
5. In my view, it would not assist the applicant in his quest to make the respondent more accountable by the disclosure of this personal information.
6. Further, I infer from the material filed that such disclosure would cause anxiety to that person. However, I do hasten to say that I do not find any reason to believe that the applicant would, in any way, be a danger to the person concerned but that does not of itself mean that the person concerned would not develop some anxiety as a result of such disclosure.
7. Further, I find that disclosure of the name would not help the applicant in his quest to expose what he believes to be improper investigations of the respondent. I do not accept the fact that knowing the qualifications of the author would aid the applicant in his quest. Further, I do not believe that any public interest would be promoted by the disclosure of the name which the applicant seeks. Having come to the view which I have stated above, in my view, it would be an unreasonable disclosure of the personal affairs of the person who signed the document.

1. Mr Murray described these documents correctly when he stated as follows :

Document 2 is an email from one Board employee to another Board employee regarding material given to the Board by Mr Mann.

1. During the hearing, Mr Murray correctly conceded that the first and third sentences of the document will be released to the applicant. It is the balance of that document that remains in dispute.
2. Documents 5 and 8 are identical documents. They were described by Mr Murray as :

Memorandum from one officer of the Board containing four paragraphs that are in dispute regarding disclosure. The documents relate to a request by Mr Mann for a review of the Board's investigation into his complaint.

A file note regarding information provided by Mr Mann considering whether the Board should reopen investigations into his complaint.

1. In relation to documents 2, 5, 6, 7 and 8, the respondent claims the exemption pursuant to s 30(1) of the Act. That section reads as follows :

(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

1. Carol Geyer, a solicitor employed as "Legal Advisor by the Australian Health Practitioners Regulation Agency", gave evidence at paragraph 14 of her statement (which she adopted in the witness box) as follows :

The MPBV (Medical Practice Board of Victoria) determined that documents 2, 5 (in part), 6 (in part), 7 and 8 (in part) are exempt from disclosure in accordance with section 30(1) as they are internal working documents the disclosure of which would disclose matter in the nature of opinion, advice or recommendation prepared in the course of the MPBV's deliberative processes and such disclosure would not be in the public interest in that such disclosure would :

(a) be likely to inhibit frankness and candour in the making of future pre-decisional communications within the MPBV;

(b) reveal material concerning issues that are highly sensitive;

(c) be likely to inhibit the integrity and viability of decision-making by the MPBV which, in the public interest, should carry out its functions as effectively and efficiently as possible;

(d) provide merely a part explanation rather than a complete explanation for the MPBV's decisions in taking, or not taking, particular action and it is likely that disclosure would create mischief such as the risk of mischievous interpretation; and

(e) inhibit the independence of officers making proper detailed research and recommendations.

1. Having looked at the relevant documents, I have formed the opinion that the release of the documents would in fact 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 ... in the course of, or for the purpose of, the deliberative process involving the functions of an agency ...".
2. While not all the material in those documents would fall into the description given by s 30(1)(a) of the Act, the other material is so intertwined with the opinion and deliberation to release that part of the document that does not involve opinion or deliberation would be misleading, confusing and would not make proper sense. Therefore, subject to s 30(1)(b), in my view, that part of the exemption is made out.
3. The next question is whether releasing these documents would be contrary to public interest. In this regard, the applicant submitted -

I can offer no specific view since I have no detail as to what was not released. I can only speculate about such documents. Thus, the Board could be hiding the following errors :

1. incorrect allocation of duties to persons without the necessary expertise or qualifications; Ms Kelsey has no relevant expertise and yet is the only person from Professional Conduct Department, of which she is the manager who attended the Professional Conduct Committee on 29 May 2008.
2. the complete absence of the necessary expertise at Board level. None of the medical practitioners on the Committee is a surgeon (I made enquiry of Mr Murray whether I was correct - no response);

1. failure to research the expert literature to determine what accepted practice for the treatment of bladder stones was as at December 2004;

1. relying on the opinion of a close colleague of Mr Redgrave (see Annexure 'B' to my statement dated 28 July 2010) for the deciding opinion instead of seeking truly independent opinions;
2. failure to access opinions from surgeons in the United Kingdom, who are free from any need to support close colleagues (as occurred in the case of Ms Julie Ann Cooper - see annexure 'A' to my report dated 28 July 2010). It is obvious now that most specialists still in active clinical practice in Australia are afraid to offer frank and fearless opinions because of anxiety about retribution. Dr Gerard Maclaren of Canberra was driven to attempt suicide when he reported Dr Newcombe.

I can see no reason for not disclosing the opinions expressed by this person who may have been the author of Document 6. If this officer offered any opinions about surgery they might constitute medical practice by a person not licensed to practise medicine.

1. It is clear that when I am considering whether the release of the documents would be contrary to public interest pursuant to s 30(1)(b), I must take into account all relevant considerations and determine the matter in the context of the objects of the Act as set out in s 3. (see McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423). I note that in s 3(1)(b) of the Act is to "extend as far as possible the right of the community access to information ...". Further I note pursuant to s 3(b) that the access is limited "only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs ...".
2. I also accept that the documents in question would only to a very limited extent assist the applicant in his quest to show that the investigative process of the Board was less than thorough and not proper.
3. I accept what Ms Geyer has said in paragraph 14 of her witness statement which I have referred to above.
4. That being the case, in weighing up whether the public interest would be served or otherwise by the release of these documents, in my view, as I have previously stated, the applicant's quest in showing that the Board improperly carries out its function, on the one hand, as opposed to the inhibiting factors that are referred to in paragraph 14 of Ms Geyer's statement, the balance is clearly weighed in favour of the factors referred to by Ms Geyer in paragraph 14 of her statement. In particular, it is clear from her evidence, which I accept, that the frankness and candour in making future decisions would be seriously affected. This would inhibit organisations, like the respondent, in obtaining a free flow of information that is necessary when complaints such as the applicant's have been made to such organisations. Further, I agree with Ms Geyer that release of these documents would inhibit the independence of officers in making proper detailed research and recommendation in the future.
5. It is important that officers of a Department can make frank and candid type recommendations and deliberations without having to concern themselves whether such documents may be made public.
6. For the reason stated in the last paragraph, I agree with Ms Geyer that to release these documents would in fact have a serious detrimental effect on the decision-making process.
7. Further, I have formed the view that the release of these documents would lead to confusion or unnecessary debate in relation to the possibilities that are discussed in these documents. The release of these documents would, in my view, create mischief which would include a mischievous interpretation of the documents.
8. Thus, I have come to the conclusion that the release of these documents would be contrary to public interest. Having now found that matter, the exemption pursuant to s 30(1) is made out subject to the public interest override in s 50(4) of the Act.

1. At paragraph 27 of the respondent's submissions, Mr Murray has correctly summarised the matters in the applicant's submissions relating to the public interest override -

In brief summary, the Applicant has proffered that it is in the public interest to disclose the documents so as to :

(a) 'know why the respondent does not inhibit and prevent treatment which has a strong tendency to injure patients when safer alternatives are available';

(b) 'know why the respondent does not inhibit practitioners from injuring patients or to refuse to proper give reasons why it did' [sic];

(c) 'know why the Board does not reprimand practitioners who practise surgery that is not accepted proper treatment unless the patient has given fully informed proper and detailed, specific consent for an experimental procedure including any risks this entails, and to disclose the reasoning that led it not to do so in this instance';

(d) 'know how it has come about that the respondent gave its imprimatur to inevitably injurious surgical procedures;

(e) 'see the reasoning as to how and why the respondent prefers the opinions of experts and specialists offering to defend close colleagues to the published opinions of the world's leading authorities';

(f) 'know how and why the respondent regards its first duty to protect malpractitioners';

(g) 'discover how it has come about that the respondent needs to hide the reasoning behind failing fully to disclose its reasoning';

(h) 'know whether in refusing to disclose fully the documents sought, the respondent instead of protecting patients, is seeking to protect itself'; and

(i) 'determine whether a Board ... should be dismissed by the Minister for Health'.

1. In Osland v Secretary, Department of Justice [2008] 234 CLR 275, Hayne J (who dissented in the result) stated at 327 :

Unless particular considerations are identified as supporting the conclusion that the public interest requires disclosure of particular documents in respect of which legal professional privilege is maintained, the public interest in the maintenance of the client's privilege is not to be set aside. It is to be expected (at least in all but the most exceptional case) that any such countervailing consideration could be described with particularity and that it would be an interest of weight and substance. So much follows from the considerations of public interest that underpin the privilege, and from the fact that s 50(4) is not engaged unless the Tribunal is of the opinion that the public interest requires disclosure of the documents in question. But no countervailing interest was identified in the present case beyond the invocation of a general proposition about the desirability of clearing the air and a general assertion that there is a public interest in information being fully available. (underlining supplied).

1. In my view, in this particular instance, the public interest does not require the disclosure of the documents in question. Whilst the public has an interest in making sure that the medical profession conducts itself in a proper and expert way, and that the public must have confidence in the investigating procedures of the respondent, in my view, releasing these documents will not help convince the public one way or another that the respondent investigates matters properly. Nor will releasing the documents engender any sort of confidence other than that what is there already in relation to the public's confidence in the workings of the medical profession.
2. In my view, the interest in releasing these documents is not so strong as to override factors that confer exempt status upon the documents or part of the documents in the first place. This is a very stringent test and creates a very high barrier. In this particular instance, the applicant has not shown that the public interest requires the disclosure of these documents.
3. Therefore, the decision of the respondent will be affirmed save and except for those parts of the documents which Mr Murray has conceded should be released.

1. Mr Mann made it clear in his presentation of this case that he brought a proceeding before the County Court against Mr Redgrave. It is also clear that those proceedings were settled with the applicant receiving a sizeable amount of compensation.
2. The applicant also attempted to graft onto these proceedings a contempt proceeding against a person who is employed by the Board. I disallowed that engraftment on the basis that the application that was brought was in relation to freedom of information only. If the applicant desires to commence contempt proceedings, those proceedings must be brought separately and heard before a judicial member of the Tribunal.
3. At the commencement of this hearing, leave was given to the respondent to amend its name to "Medical Board of Australia". There was no objection to such leave being given.