Under section 50 of the Freedom of Information Act 1982 (Vic) and section 51(2)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Tribunal orders that:

1. The respondent must in 28 days release to the applicant:
   1. Document 1 with no redactions to page 2; and
   2. Document 5 with the redactions of personal affairs information set out in Attachment A to these reasons for decision.
2. The application is otherwise dismissed.

1. On 29 December 2016, Mrs Nola Martin applied to Melbourne Health for access to the documents described below. That application was made under the Freedom of Information Act 1982 (Vic) (FOI Act):

. . . copies of the reports . . . which were provided by Paxton Partners and Ferrier Hodgson in relation to the following admission of 'Financial Accountability' which was reported by Melbourne Health in its Annual Report 2004-06 . . .

I am also seeking information as to the period of time involved prior to Melbourne Health identifying the 'accounting transactions supported by false and misleading documentation that led to the overstatement of accrued in the accounts of North Western Mental Health' in May 2005 - if this information has not been included in the reports by Paxton Partners and Ferrier Hodgson.

I am further seeking copies of the 'detailed independent investigations' which were undertaken by accounting firms Paxton Partners and Ferrier Hodgson which enable them to find that there had been no misappropriation of cash and exactly which mental health services were beneficiaries of NWMH's bounty during the period involved.

1. As is indicated from the terms of the request, Mrs Martin was aware that, in around May 2005, Melbourne Health became aware of accounting anomalies in the accrued income accounts of its North Western Mental Health service (NWMH). Melbourne Health commenced an investigation. I was informed the relevant Annual Report said that Melbourne Health had found 'there had been no misappropriation of cash and that the overstated income had been spent on the provision of mental health services.'
2. Part of the reason for Mrs Martin's application is that, she and her husband were in contact with that service in around May 2005 and, contrary to Melbourne Health's statement that funds were spent on mental health services, she says they did not receive necessary and appropriate mental health services. Mrs Martin does not accept the proposition that there was no misappropriation of cash as she contends the funds provided to NWMH that were not used on mental health services must have been used for another purpose.
3. Ms Martin has a range of complaints about the way Melbourne Health (through NWMH) dealt with her and her husband in around and after 2004. Mrs Martin has made complaints to a range of bodies over the years and remains dissatisfied with the responses received. She believes there has been collusion and cover ups by a number of persons and entities and is very frustrated she has not been able to get what she regards as proper answers to her questions.
4. Mrs Martin ties what she considers to have been poor and inadequate treatment to the irregularities mentioned above. She says in effect that, because of the conduct of NWMH staff, she and her husband did not receive the psychiatric treatment they ought to have. She questioned how many others experiencing mental ill health also missed out on proper treatment. Mrs Martin contended that the source of her complaints over time and the many problems she has encountered getting to the bottom of what happened to her and her husband, started with the accounting anomalies discovered in 2005.
5. As summarised later, Mrs Martin is greatly concerned that other members of the community received poor or inadequate psychiatric treatment by Melbourne Health because of the accounting anomalies.
6. While recognising Mrs Martin's frustration at not having obtained the information and resolutions she has sought over the years, the purpose of this proceeding has not been to review the above matters. As explained at the hearing, although those and other matters relating to Mrs Martin's (and her husband's) own personal and health history form the backdrop to this proceeding, largely, they have not been directly relevant to the issues before me. Accordingly, it is neither necessary nor appropriate to say more about those background matters.
7. Mrs Martin has also complained about the inadequacy of Melbourne Health's response to her requests for documents relating to her and her husband's treatment. This proceeding does not concern documents specific to either of them and so I have put that complaint to one side.

1. In response to Mrs Martin's application for access, on 2 March 2017, Melbourne Health made a decision granting access to one document in full, four documents in part and denying access to seven documents in full.
2. On 21 June 2018, the Acting Public Access Deputy Commissioner made a decision about Mrs Martin's application for the Office of the Victorian Information Commissioner (OVIC). The decision was for additional information to be disclosed to Mrs Martin but OVIC also decided that Melbourne Health was entitled to rely on specified exemptions.
3. Mrs Martin was dissatisfied with OVIC's decision and so on 8 August 2018, she applied to the Tribunal for review.
4. By an order made on 21 January 2019, on Melbourne Health's application, the application was amended to be an application seeking review of a decision taken to be made by OVIC refusing access under section 49J of the FOI Act - in other words, although OVIC made a decision on 21 June 2018, it was taken that it had refused access to the documents in issue and that was the decision before the Tribunal for review. Despite that, Melbourne Health has abided by OVIC's decision and released further material to Mrs Martin.
5. Under section 50 of the FOI Act the Tribunal's role is to make a fresh decision on the access request taking into account all information and evidence available as at the date of the hearing.

1. The hearing proceeded before me on 2 July 2019. As is usual, I had available to me copies of the documents in issue and I reviewed them to assist in making my decision.[2] That did not constitute a waiver of Melbourne Health's right to rely on its claim of legal professional privilege under section 32(1) of the FOI Act.
2. Mr Nicholas Thomas, the General Counsel of Melbourne Health, gave evidence. As Mr Thomas has only held that role since 2007, he was not involved in the investigations Melbourne Health undertook in 2005. Mr Nicholas made a witness statement on 29 March 2019 and the content of that was based on his role as the decision maker on Mrs Martin's FOI Act request, on his review of the documents in issue and knowledge of the functions of the then Legal Counsel.
3. Mr Thomas' witness statement attached confidential documents which were available to me and not Mrs Martin. Under an order I made under the Open Courts Act 2013 (Vic), the hearing was closed for a period so I could hear evidence about those confidential attachments and related matters in Mrs Martin's absence.
4. I have discussed Mr Thomas' evidence further below in the context of the various documents but it is useful to summarise some background matters first.
5. It is appropriate to note at the outset that, due to the time that has passed since the events in issue, the records available to Mr Thomas have been limited and so, as is discussed below, he has at times made assumptions relying on his knowledge of current practices and his expectations about past practices.
6. It is apparent from Mr Thomas' witness statement that Melbourne Health became aware of the accounting anomalies in around early May 2005. It commissioned Paxton Partners Pty Ltd (Paxton Partners) to undertake a preliminary investigation and provide a report. That led to Paxton Partner's report dated 13 May 2005 which was referred to Melbourne Health's board on 14 May 2005.
7. By 25 May 2005, Melbourne Health had engaged Blake Dawson Waldron (BDW) as its legal representative. BDW then engaged Paxton Partners, Ferrier Hodgson and William Buck to produce expert reports to allow BDW to advise Melbourne Health. Those three entities are all financial and/or accounting firms.
8. Each of those entities produced reports to BDW two of which were forwarded in draft form to Melbourne Health. Comments were made on parts of the reports which were referred back to the authors and the final reports were then provided to BDW. BDW then provided detailed legal advice to Melbourne Health on 30 June 2005.
9. In the period between early May and 30 June 2005, there were four meetings of Melbourne Health's Board. At those meetings, the accounting anomalies in general and the related advice and reports from BDW and others were discussed. Summaries of that material were contained in the Board minutes and have been removed on the basis the entries are said to be exempt.

Documents in issue and overview of the exemptions relied upon

1. By the time of the hearing, there were 12 documents in issue and Melbourne Health relied on only two FOI Act exemptions to contend parts or the whole of those ought not to be released to Mrs Martin. Melbourne Health informed me that it had released additional material to Mrs Martin consistent with OVIC's 21 June 2018 decision.
2. Melbourne Health relied on two FOI Act exemptions - section 32(1) which protects legally privileged communications and section 33(1) which protects against the unreasonable disclosure of personal affairs information.
3. Under section 55 of the FOI Act, Melbourne Health has the onus of establishing that the decision given in respect of the request was justified or that the Tribunal should give a decision adverse to Mrs Martin.
4. Set out below is a table of the documents in dispute and the exemption/s relied on for each.

1. I note that the documents released to Mrs Martin to date contain background information about investigations, updates on steps taken, decisions made and resolutions passed by the Melbourne Health Board. As a result, while the step by step detail has not been disclosed, the ultimate outcomes are known to her.
2. I will now turn to the law on the two exemptions relied on by Melbourne Health and other relevant parts of the FOI Act.

A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege or client legal privilege.

1. Melbourne Health relied on the legal professional privilege limb of section 32(1) in this case.
2. The lawyers for Melbourne Health relied on a very large number of authorities for its submissions on both section 32 and section 33. At the end of the hearing, it produced folders containing 147 authorities. The submissions and authorities resulted in part from what might be described as a very comprehensive discussion between the parties about the scope of legal professional privilege, many aspects of which are not relevant to the decision I have made. Some of those submissions arose because, like most FOI Act applicants, Mrs Martin had not seen the documents and was trying to understand and make submissions about how the general law of legal professional privilege as discussed in Melbourne Health's submissions might apply to the documents she sought.
3. I have not read all of the authorities supplied, largely because the principles regarding both sections, and particularly in relation to the relevant law on legal professional privilege, are well settled as summarised below.
4. Legal professional privilege has been recognised as an important common law right held by the recipient of legal advice. It arises from a person's right to seek legal advice knowing that what is disclosed in the course of receiving advice will remain confidential as between the client and legal adviser. The privilege arises in respect of legal advice where there are pending or current legal proceedings and in respect of communications for the purpose of providing legal advice (referred to as advice privilege). Melbourne Health relies only on the latter basis for its claim and so there has been no need for me to consider the submissions and authorities on litigation privilege.
5. Advice privilege attaches to confidential communications between a client and his or her lawyer for the dominant purpose of obtaining or giving legal advice. The mere fact a client speaks with their lawyer does not make the communication privileged - the dominant purpose of the communication must be for legal advice. Similarly, the mere fact a document says it is privileged will not make it so - the requisite dominant purpose must be proven.
6. The test to be applied is an objective one and it looks to the primary or substantial reason for the communication. Where there are mixed purposes, the task is to identify the paramount purpose.
7. Advice privilege will apply to in-house lawyers provided the other requirements are met.
8. While it is clear that advice privilege does not attach to pure commercial advice, it may apply to advice where it is not possible to separate the lawyer's legal opinions from the commercial matters under consideration and where that advice might extend to what actions ought to be taken within the applicable legal context. The answer to whether advice privilege applies will lie in identifying the relevant parties and then considering the evidence about the purposes of the communications.
9. The privilege applies to expert reports produced on the instructions of lawyers to be used by the lawyers when providing legal advice. The privilege will apply even if the report is delivered direct to the client provided the dominant purpose test is met. It will also apply to communications between the expert and the client provided that they fall within or are a part of the dominant purpose of the provision of legal advice by the lawyer to the client.
10. Advice privilege applies to draft letters and other documents where they were produced for the dominant purpose of providing legal advice. Otherwise, if they were released, the content of the final legal advice is likely to be revealed thereby undoing the value of the privilege applying to the final document.
11. The parties' submissions made mention of common interest privilege. That privilege may arise where litigation is on foot or anticipated and legal advice is sought and several persons have a common interest in that litigation. The privilege may attach to documents which are exchanged in respect of that claim and any of those persons with a common interest may rely upon the privilege. As discussed below, that form of privilege is not relevant here, not only because there was no actual or anticipated litigation but also because there was no evidence that the documents in issue (or their content) were exchanged with any third party with an interest in the matter.

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).

1. For section 33(1) to apply, disclosure of the document under the FOI Act must involve the disclosure of information relating to the 'personal affairs' of a person. The term 'personal affairs' includes information that identifies any person or discloses their address or location or by which this can be reasonably determined.
2. The second requirement for section 33(1) is that the disclosure of the relevant personal affairs information would be 'unreasonable'.
3. Section 33(1) requires a balance to be struck between the interest in personal privacy of an individual whose affairs may be unreasonably disclosed and the object of the Act, which is to give the community access to information held by the Government and its agencies.
4. A number of factors are usually considered in deciding whether disclosure would be unreasonable and they provide a useful framework for the evaluation required. The following is a summary of non-exhaustive factors:[3]

1. The nature of the information in the document; 2. The circumstances in which the information was obtained;

1. The extent to which the information is available to the public;

1. Why the applicant seeks the information, sometimes described as their interest in the information, or their purpose or motives for seeking access; 2. Whether the applicant's purpose for seeking access to the information is likely to be achieved by granting him or her access to that information; 3. Whether any public or important interest would be promoted by release of the information; 4. Whether disclosure would be contrary to a public interest other than the public interest in protecting the privacy of the individuals referred to in the document; 5. Whether the person to whom the information relates objects to the information being disclosed; 6. Whether the release of information could lead to the person to whom it relates suffering stress and anxiety - even if that is not the applicant's intention; and 7. The consequences of the fact that no conditions can be placed on any further disclosure by the applicant to others.
2. Section 33(2A) of the FOI Act requires that consideration be given to whether disclosure would or would be reasonably likely to endanger the life or physical safety of any person. It is convenient to state immediately that there is nothing before me which indicates section 33(2A) arises.
3. Section 53A of the FOI Act requires that, where a review before the Tribunal concerns the application of section 33(1), the agency is required to, if practicable, give notice to persons whose personal affairs information is contained in the documents in issue. The notices are sent to ascertain whether the persons wish to intervene in the proceedings.
4. In this case, 11 section 53A notices were issued. Due to the lapse in time, Melbourne Health was unable to contact all person named in the documents. Three responses were received by the Tribunal. Those three people all said they did not want their personal information released. Their reasons included:
   • The fact their name, title and address would be disclosed;
   • The fact they had no idea what the proceeding was about and a preference for the details not to be released unless there was reason to do so; and
   • The view that the release of identifying information was unreasonable.
5. I will now turn to the documents in dispute.

Board minutes 14 May 2005 and Paxton Partners report dated 13 May 2005 - documents 1 and 5

1. Melbourne Health noted in its written submissions dated 17 May 2019 that the time for ascertaining the purpose for which a written communication was created or made was when the document in issue came into existence. I accept that is correct and so the subsequent events cannot retrospectively cast document 5 (or parts of document 1) as privileged.
2. Melbourne Health referred me to the decision in Alphington Developments Pty Ltd v Amcor Limited (No 3).[4] In that case, an expert was engaged by the respondent to provide advice on remediation works. The scope of the terms of engagement evolved over time and the expert's representative became 'part of the inner circle of Amcor commercial and legal personnel' dealing with the dispute. The applicant sought discovery of documents held by the expert. The respondent claimed legal professional privilege.
3. Quoting from the Full Federal Court's decision in Pratt Holdings Pty Ltd v Commissioner of Taxation,[5] her Honour Justice Emerton found that legal advice privilege was capable of extending to non-agent, third party authored documentary communications. Where a third party authors a document, that party's relationship (eg, agency) with the party that engages it is not relevant to the issue of legal professional privilege. Rather, the important consideration was the nature of the function which the third party performs. If that function was to enable the engaging party to make the communication necessary to obtain legal advice which it requires, then privilege should attach to the documentary communication authored by the third party. The availability of the privilege should not depend on whether the document is authored by an agent or another third party, nor on whether the document is delivered to the lawyer directly by the author or through the client. Provided that the dominant purpose requirement was met, the privilege should extend to communication by the author to the client.
4. Her Honour commented that the common law relating to legal professional privilege, did not require a relationship such as agency to be proven - rather, the critical issue was still the dominant purpose of the communication. She said all that was required was to establish that the communication was confidential, and that it was made for the dominant purpose of obtaining legal advice.[6]
5. When her Honour turned to the evidence on the question of the dominant purpose, she found it lacking. She agreed the relevant retainer carried with it an implied obligation of confidence. However, she further found that the expert's multiple roles and functions were reflected in the fact that the majority of the documents produced in response to a subpoena were not the subject of a claim for privilege by the respondent. Of those which were and which she considered, the privilege claims were not made out. The reasoning process emphasised how the evidence as to the dominant purpose of the individual communications which are subject to a claim of privilege is crucial.
6. I now turn to the evidence before me as to documents 1 and 5.
7. The Board minutes of a meeting held on 14 May 2005 (document 1) included a summary of Paxton Partners' initial report and recommendations. The parts of the minutes released to Mrs Martin refer to the Chief Executive having instigated Paxton Partners' review of 'Mental Health Income' and to 15 recommendations having been made and accepted.
8. Melbourne Health did not produce a letter setting out the terms of engagement of Paxton Partners or any other evidence as to how this came about ahead of the production of their 13 May 2005 report. I understood that was likely due to the passing of time. What it did produce was a confidential exhibit being a letter written by Melbourne Health's then Corporate Secretary and Legal Counsel. The letter was dated 18 May 2002 but I accept, given its contents, that was a typographical error and that the correct date was 18 May 2005. The letter referred to the scope of the work to be undertaken by reference to earlier correspondence. The letter confirmed the appointment of Paxton Partners.
9. Document 5 is the report Paxton Partners produced on 13 May 2005 which was discussed by the Board on 14 May 2005. It is described as being 'legally privileged and confidential and/or subject to common interest privilege'.
10. While the Paxton Partners' report mentions Melbourne Health's in-house legal counsel, there is nothing that says, in effect, that the report was produced on his instructions, for him or for the purpose of assisting him to provide legal advice.
11. As noted, the Board minutes state that the Paxton Partners investigation was instigated by the Chief Executive. That is not consistent with Paxton Partners having been engaged for the dominant purpose of providing legal advice - in fact the minutes suggest that Paxton Partners was brought in to quickly identify the broad extent of the accounting anomalies and to assist the Board to decide what steps to take next. The report itself recommends that Melbourne Health consider its legal position and there was reference to contact being made with lawyers.
12. On the evidence before me there is nothing specific which demonstrates that the dominant purpose for which the report was written was to allow an in-house or external lawyer to provide legal advice.
13. Melbourne Health asked me to draw that inference taking account of the time that has passed and also, because it was likely that the in-house legal counsel was involved at an early stage and would have been involved in the decision to engage Paxton Partners. I am not satisfied the materials themselves disclose a sufficient basis to rely on to draw the inference. In fact, the documents indicate that Paxton Partners' first involvement was initiated by the Chief Executive only.
14. As stated earlier, the mere fact the document asserts it is subject to privilege does not make it so. For the reasons given above, I give no weight to the assertion that privilege applies.
15. As to the reference in the Paxton Partners' report to common interest privilege (and Melbourne Health's written submissions on the issue), there was no evidence before me that, as at 13 May 2005, litigation was on foot or anticipated. While Melbourne Health may have had a general concern about possible litigation and may have had reporting obligations to the relevant regulator, there was no evidence of anything more specific than that. There was also no evidence that Melbourne Health anticipated litigation being brought against it such that it shared any interest in legally privileged material with Paxton Partners or any other entity. There was no specific evidence there was any disclosure of the documents in issue or their content to a regulator at the relevant time. Mr Thomas anticipated a telephone call would have been placed to the Department to provide an overview but did not believe any detail would have been provided. That assumption was based on his current experience but not on any knowledge he actually held about what happened at the time. I place no weight on common interest privilege in this case.
16. While mindful of the time since the Paxton Partners' report was produced, on the evidence before me I am unable to infer it was covered by advice privilege.
17. The relevant part of the minutes from the 14 May 2005 meeting was said to be exempt because it referred to the content of the Paxton Partners' report which itself was said to be exempt. Where I have found that report is not privileged, the minutes cannot rely on that same basis.
18. The relevant part of the minutes do not contain legal advice or otherwise reveal a basis for the exemption applying.
19. As I am not satisfied advice privilege attaches to documents 1 and 5, they are not exempt under section 32(1) of the FOI Act and so must be released to Mrs Martin.
20. I have decided, though, that some of the names of individuals mentioned in the Paxton Partners' report ought to be redacted. I give the reasons for that view and elaborate on the scope of the redactions below in the context of the section 33(1) personal affairs exemption.

1. Mr Thomas provided copies of letters written by BDW to Melbourne Health regarding the engagement of Paxton Partners, Ferrier Hodgson and William Buck - those were confidential attachments to his witness statement. The letters were in draft form, apparently because the final versions were no longer held. Each draft letter made it plain that the experts were being instructed and engaged by BDW in order to assist it to provide legal advice to Melbourne Health. Mr Thomas gave evidence the letters were provided to Melbourne Health for comment before they were finalised.
2. Having reviewed the draft letters and heard the above evidence, I am satisfied it is more probable than not that each of the above firms were in fact instructed and engaged on the terms contained in the draft letters. I am fortified in that view by considering the reports themselves all of which state that the reports were solely produced for BDW as legal advisers for Melbourne Health or that they were produced on instructions from BDW.
3. The reports cover matters which might be seen as relevant to financial or commercial concerns. However, I am satisfied the dominant purpose of the preparation of those reports was to allow BDW to provide comprehensive legal advice to Melbourne Health about its legal responsibilities throughout its structure, as to its governance and as to its other legal responsibilities. The fact the matters considered by the experts related to funding and accounting records does not tip it into purely commercial advice. I am satisfied the fact finding and analysis undertaken by the experts, which focussed on what might be broadly described as the nature of the financial issues and how they arose, was sought to provide an accurate picture of relevant factual matters so that the necessary legal advice could then be provided.
4. I find the dominant purpose for creation of the expert reports was to provide legal advice. Accordingly, I am satisfied advice privilege and so section 32(1) of the FOI Act applies to the whole of documents 6, 7 and 10.

Comments on draft expert reports - documents 8 and 9

1. Mr Thomas gave evidence that draft versions of the final reports were provided by Ferrier Hodgson and William Buck. Melbourne Health made some comments on them and comments were also made by Ferrier Hodgson and William Buck. Mr Thomas gave evidence he understood the drafts and comments were provided to BDW to facilitate it giving legal advice to Melbourne Health.
2. I am satisfied that the exchange of comments was part of the process Ferrier Hodgson and William Buck undertook to finalise their reports which were produced for the dominant purpose of allowing BDW to give Melbourne Health legal advice. As noted earlier, advice privilege can apply when an expert communicates about a report such as these direct with the client.
3. I am satisfied the dominant purpose of the communications in documents 8 and 9 was for the provision of legal advice by BDW to Melbourne Health. I find advice privilege and so section 32(1) of the FOI Act applies to the whole of documents 8 and 9.

1. It is apparent from the chronology of events described above that BDW was engaged by Melbourne Health to provide legal advice into the accounting anomalies and the consequences flowing from them. The letters which comprise documents 11 and 12 contain legal advice.
2. There is no question advice privilege applies to them and so they are exempt under section 32(1) of the FOI Act.

1. Melbourne Health claims advice privilege in relation to sections of the Minutes of Board meetings held on 30 May 2005 and 27 June 2005. As explained in Mr Thomas' witness statement, leaving aside the irrelevant content and personal affairs information, the redacted sections contain summaries of the content of the expert reports or presentations given to the Board by BDW, Paxton Partners, Ferrier Hodgson and William Buck.
2. Given I have found the reports, the comments on draft reports and BDW's letters of advice are subject to advice privilege, it follows that the minutes which record or refer to discussions of each of those is also privileged.
3. I am satisfied advice privilege applies to the redacted sections of documents 2 and 3.

On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.

1. On its own terms, section 50(4) does not apply to section 33.
2. If the public interest requires access to those parts or entire documents to which section 32 applies, I may order the release of the documents irrespective of the exemption.
3. To release the material based on section 50(4), the Tribunal must first decide that, as a matter of law, the material is capable of supporting the formation of an opinion that the public interest requires that access be given. Next, the Tribunal must actually form the opinion that the public interest requires that access be given. That is an evaluative and essentially factual judgment. Relevant to that task is the understanding that the word 'requires' in section 50(4) directs the Tribunal to identify a high-threshold public interest before the power can be exercised. It is not enough that access to the documents could be justified in the public interest or that the public might be interested in access. [7] The word 'requires' means demands, not as a matter of preference, but necessity.[8]
4. Section 50(4) can call for the resolution of conflicting public interests - there might be a public interest against access inherent in the reason for the document being exempt but on the other hand a public interest which favoured access being granted.[9] In Director of Public Prosecutions v Smith, the Court of Appeal discussed how one must distinguish between what is in the public interest and what is of interest to know. It also stated a feature of the public interest is that justice should always be done and be seen to be done and that is inherent to the proper administration of justice.[10]
5. The High Court's 2010 decision in Osland v Secretary to the Department of Justice,[11] resulted in legal advices about Ms Osland's plea for mercy being released. The basis for that application of section 50(4) was the potential for public confusion or disquiet about conflicting legal advices on the petition.
6. In Smith, the balancing exercise related to whether, in the circumstances of that case, the factor of the appearance of justice having been done impartially outweighed the competing public interest factor of legal professional privilege. In Smith there was evidence of a petition signed by 500 people and a speech given by the respondent, Mr Smith, in the course of a Parliamentary Grievance Debate. The Court found it was open to the Tribunal to have formed the opinion in the 'very exceptional and regrettable circumstances' of the case that the public interest required disclosure.[12]
7. His Honour Bell J considered the application of section 50(4) in the context of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) in XYZ v Victoria Police.[13] That case concerned an FOI Act application a former police officer, XYZ, made for documents associated with an Ethical Standards Department investigation into his conduct. Victoria Police relied on the section 32 legal professional privilege exemption for some of the documents in issue. Bell J identified some breaches of the law and other irregularities occurred in the early part of the investigation into XYZ, but his Honour found those were not intentional and nor did they suggest there were reasonable grounds for bringing the investigation into overall question. On the other hand, his Honour found the public interest grounds against disclosure were very strong, in particular the public interest in maintaining the integrity of the processes for investigating alleged police misconduct and corruption. His Honour determined that XYZ's personal interest in obtaining access to the documents in the exercise of his right to freedom of expression had to yield to the interest of the public in upholding the exemptions (including section 32) which served to protect the integrity of the investigative processes of the police. Bell J found that section 50(4) did not apply.[14]

1. Mrs Martin contended that section 50(4) applies such that, even if an exemption applies, the documents should be released.
2. As summarised earlier, Mrs Martin believes there was significant wrong doing by NWMH and Melbourne Health officers and staff and she further believes that the details of what occurred and what was known by those entities should be made known to her and the public. The alleged wrong doing was said to include misappropriation and misallocation of government funds for services not provided.
3. Mrs Martin made her submissions taking account of her personal interest in examining the wrongs she believes were done to her and her husband but also in order to expose Melbourne Health to proper scrutiny by other patients affected and the community more generally. Mrs Martin repeated her concerns that there were others who had not received the treatment they required or had been inappropriately diagnosed or discharged because of funding related matters.
4. Mrs Martin said that she has not got justice over the last 13 to 14 years and has been called a liar - she asks why the individuals she believes have been dishonest or corrupt should be protected. Mrs Martin referred to her plan to send all the documents she currently has overseas, possibly to seek consideration of her complaints and certainly to bring attention to what she referred to as the manner in which the Victorian Government treats its mentally ill patients and the cover-up relating to the accounting anomalies. Mrs Martin contended that it was time for questions to be answered about why the Victorian Government has colluded with Melbourne Health and others to refuse to address her concerns and how the accounting anomalies and other failures have led to patients not being treated.
5. In essence, Melbourne Health contended Mrs Martin's interest in disclosure was only of a private nature, that no public benefit could be identified and so section 50(4) of the FOI Act ought not to be applied.
6. At the hearing, Melbourne Health's solicitor, Ms Hesling, referred to Mrs Martin's concerns about what the documents might contain and her concerns they reveal wrongdoing, in particular concerning Mrs Martin and her husband. Ms Hesling then stated that the documents did not contain information of that kind. As I understood it, for that reason Melbourne Health contended Mrs Martin's interests would not be advanced by disclosure because they would not reveal the kind of content Mrs Martin was seeking.

1. On the one hand, the events giving rise to the documents all happened a long time ago and, I expect, any consequential actions would have been taken by now. One might wonder what the harm could be in disclosing documents which are now more than 14 years old in those circumstances.
2. On the other hand, judicial comment supports the view that advice privilege (and its relatives) ought not to be overridden lightly. It is also clear that disclosure under section 50(4) must be designed to serve an identified public interest rather than an individual's private interest.
3. Taking into account the various judicial discussions of the application of section 50(4) to documents which carry legal professional privilege, I must decide whether the considerations of public interest are so strong as to override those factors which confer exempt status in the first place.
4. I acknowledge Mrs Martin has ongoing concerns about the activities of Melbourne Health and the accounting anomalies, but there was no evidence before me to indicate that those matters are current in public discourse or that there is any public controversy comparable to those in Osland.
5. There is no evidence before me to show the documents in issue would reveal corruption or other wrongdoing which directly impacted on Mrs Martin and her husband or more broadly. Relevant to those concerns, the material disclosed to Mrs Martin (some of which is in the public arena, including in Melbourne Health's own Annual Reports), describes the accounting anomalies and the decisions the Melbourne Health Board made about them.
6. While Mrs Martin anticipates the documents will reveal that Melbourne Health deceived its patients and treating practitioners, they do not.
7. Having reviewed the documents and had regard to Mrs Martin's concerns as summarised above, I find nothing in the documents which render them capable of supporting the formation of the required opinion. There is nothing in those documents which requires release in order to facilitate a public debate about the conduct of Melbourne Health or the administration of justice generally or in this case. There is nothing in the documents which reveal impropriety or misconduct.
8. In those circumstances, I cannot find that the public interest described under section 50(4) ought to override the exempt status provided by section 32(1) of the FOI Act.

1. As I have found all of the content of documents 6 to 12 are covered by advice privilege, it is not necessary for me to consider how the personal affairs exemption might apply to those documents.
2. That leaves documents 1 to 5.
3. I record that, subject to one exception, Melbourne Health has already disclosed to Mrs Martin the names of a number of its Board members, executives and senior officers. The exception concerns page 3 of document 4 (under the heading '6. NWMH Investigation - Final Report') where a name was redacted despite that name having been disclosed elsewhere. At the hearing, Melbourne Health agreed it would correct that apparent error.
4. There is no question that the various individual's names amount to personal affairs information under section 33(1). Document 5 contains other information about a number of persons such as their then current job titles which might be capable of identifying them. The document also contains information about another person including their education, experience, previous roles and some health related information. I find additional information of these kinds may lead to the person being identified when combined with other information.
5. The key question for decision is whether granting access to the documents containing the personal affairs information would involve unreasonable disclosure.

1. Melbourne Health contended that the names of staff members in non-executive positions, who Mr Thomas described as being 'peripherally involved in the subject matter of the documents', should continue to be withheld. Melbourne Health also contended that the names of persons external to Melbourne Health who were engaged to provide advice ought not to be released because that would also be an unreasonable disclosure of personal affairs information. Particular reference was made to documents 1, 2, 3 and 4.
2. As noted above, Mrs Martin seeks the names of persons involved in this matter in order to identify who undertook the alleged wrongdoing. In her written submissions and at the hearing, Mrs Martin made submissions that indicated she believed she knew the names of some of those persons whose names had been redacted. She specifically mentioned some treating practitioners and, it appeared, persons she came into contact with in a treatment setting. Melbourne Health's solicitor said at the hearing that the relevant documents did not contain information of that kind. Mrs Martin raised concerns about one practitioner and suggested he had been present at Board meetings. I confirm he was not.
3. As noted earlier, Mrs Martin referred to her plan to send all the documents she has overseas to bring attention to what she referred to as the manner in which the Victorian Government treats its mentally ill patients and the cover-up relating to the accounting anomalies. Mrs Martin referred to potential stress, anxiety or embarrassment to third parties by stating that they deserved to experience those reactions given the stress, anxiety or embarrassment she has suffered over the last 13 years. She also stated that she had no intention of embarrassing individuals - rather she wanted to do that to Melbourne Health so it finally resolved her complaints.
4. Mrs Martin was somewhat offended at references to her being an applicant who was pursuing her interests 'to the hilt' and like comments. I draw no adverse inferences as to Mrs Martin's motives in seeking access to the documents.

1. I set out earlier the usual considerations in matters such as these and canvassed matters going to the public interest. I have also noted the three responses which were received after the required section 53A notices were issued.
2. In broad terms, I am satisfied that Mrs Martin's wish to have the names of the persons with responsibility for the provision of services by Melbourne Health has been met because she has the names of those with legal responsibility for that and related matters by virtue of having the names of the Board members and key executive staff already. I am not persuaded that knowing the names of staff who hold middle management roles will assist Mrs Martin in understanding what occurred given responsibility for the accounting anomalies arising and the response to them lies with the corporate entity not such individuals. I see no public interest in more staff names being released given the time that has passed. It is likely many of those staff members have moved on from their roles by now.
3. Given those matters, I find the disclosure of the names of persons who carried the role of Business Manager or government liaison advisor (page 2 of document 2) would be unreasonable.
4. I am satisfied that it would also be unreasonable to release the names of those persons who were employed by BDW, Paxton Partners, Ferrier Hodgson and William Buck. That is in part for the reasons relating to governance and the passing of time set out above. In addition, those persons were undertaking professional advice roles to assist Melbourne Health to determine how to proceed. Their identities are not relevant to the advice provided or the decisions Melbourne Health made on receipt of the advice.
5. While Mrs Martin would be entitled to make whatever use she wished of the documents if released to her, I am satisfied that, given she intends to use them to pursue her concerns further and the time that has passed, it would be unreasonable to place the internal staff and external advisers into the public spotlight now.
6. I am satisfied it is appropriate that all redactions of names in documents 1, 2, 3 and 4 be maintained with the exception of the erroneous redaction in document 4 mentioned above.
7. Document 5 which is to be released to Mrs Martin contains a number of names of officers and staff of Melbourne Health. Where those names are the same as those already released to Mrs Martin via the Board minutes, I am satisfied it is appropriate for them to be released. The relevant entries refer to those persons in the context of them undertaking the roles which are apparent from the Board minutes.
8. Document 5 contains the names of other persons who hold Executive Director roles and Business Managers.
9. I noted that the names of other Executive Directors (and an Acting Executive Director) have already been disclosed to Mrs Martin. Arguably for consistency, the names of those persons holding a position with that title in document 5 ought to also be disclosed.
10. Having reviewed the document carefully, I have concluded that the names of the Executive Directors ought not to be disclosed merely because of the position they hold. The information about those persons in document 5 goes beyond their names only and their formal roles. There is some discussion about their knowledge or otherwise of the accounting anomalies. I am satisfied it would be unreasonable to now release their names. That is because the information in the document was collected at an early point in time and given the age of the events now. I make the same findings about the unreasonableness of those persons being put into the public arena so long after the events in issue.
11. The names and titles of Business Managers or Managers in document 5 are to remain redacted along with other instances of information which might identify such a person. The latter includes the entire contents of page 13 and a sentence on page 2 as they contain personal affairs information about a Manager. I am satisfied it would not be sufficient to only redact that individual's name given there is other information from which the person's identity could reasonably be determined. For the same reasons as given above and noting the persons did not have decision making responsibility, it would be unreasonable to release that personal affairs information.
12. The redactions to be made to document 5 are set out in Attachment A to these reasons.

1. For these reasons, I have decided to order release of documents 1 and 5, subject to the redactions discussed, and otherwise dismiss the application.

1. Content Page - individual's name in item 10
2. Page 2 - position and name referred to in dot point 5 plus the second sentence of that dot point
3. Page 5 - position referred to
4. Page 3 - all individual's names and positions
5. Page 6 - all individual's names
6. Page 8 - all individual's names
7. Page 9 - all individual's names in dot points 1, 2, 4 and 8, the fourth individual's name appearing in dot point 6 and all position titles
8. Page 10 - all individual's names and positions
9. Page 11 - all individual's names
10. Page 12 - all individual's names and positions
11. Page 13 - entire page including heading
12. Page 15 - all individual's names
13. Pages 19 and 20 - all individual's names

[1] These orders were amended to correct an accidental omission in Attachment A.

[3] See Page v Metropolitan Transit Authority (1988) 2 VAR 243 and the discussion in Nekvapil, Victorian Administrative Law, Vol 2, Freedom of Information Act commentary on the case law at [FOI 33.100].

[4] [2018] VSC 544 .

[5] [2004] FCAFC 122.

[6] Pratt Holdings, at paragraphs 15 to 18.

[7] Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24 per French CJ, Gummow and Bell JJ at paragraphs 12 to 14.

[8] Department of Premier & Cabinet v Hulls [1999] VSCA 117; (1999) 3 VR 331 at 342 to 343.

[9] Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63.

[10] [1991] VicRp 6; [1991] 1 VR 63, at page 73 to 74.

[11] [2010] HCA 24.

[13] (General) [2010] VCAT 255.