Clause 7 - business and professional affairs
172Clause 7 of Schedule 1 of the FOI Act provides:-
(1) A document is an exempt document:
...
(c) if it contains matter the disclosure of which:
(i) would disclose information (other than trade secrets, commercial-in-confidence provisions or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and
(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.
173In Alexander v University of Sydney [2008] NSWADT 214 the Tribunal adopted the following approach to the meaning of professional affairs, at [20]:-
... The use of the words professional affairs' was... intended to cover the work activities of persons who are admitted to a recognised profession, and who ordinarily offer their professional services to the community at large for a fee, that is, to the running of a professional practice for the purposes of generating income.
174In Re Coulthart and Princess Alexandra Hospital & Health Service District [2001] QICmr 6, it was held that the term "professional affairs" in the equivalent Queensland provision does not apply to salaried professionals performing duties in the service of the public, even where those professionals also had a concurrent private practice. The Information Commissioner quoted his earlier decision in Re Pope [1994] QICmr 16; (1994) 1 QAR 616, where he wrote:-
28. The basic object of s.45(1) of the FOI Act is to provide a means by which the general right of access to documents in the possession or control of government agencies can be prevented from causing unwarranted commercial disadvantage to persons and business entities engaged in private sector commercial activities (who supply information to government or about whom government collects information) and to government agencies which carry on commercial activities. In my opinion, the object of s.45(1)(c) and the objects of the FOI Act as a whole, are best served by giving the word "professional" a meaning which takes its colour from the words "business", "commercial" and "financial" which surround it in the context of s.45(1)(c). At paragraph 81 of my reasons for decision in Re Cannon, I observed that the common link among those three words is to activities carried on for the purpose of generating income or profits.
29. The four adjectives in the phrase "business, professional, commercial or financial affairs" were clearly not intended, because of the substantial overlap between them, to establish distinct and exclusive categories, but rather the phrase was intended to cover, in a compendious way, all forms of private sector commercial activity, and thereby to also cover commercial activities carried on by government agencies. The use of the words "professional affairs" was, in my opinion, intended to cover the work activities of persons who are admitted to a recognised profession, and who ordinarily offer their professional services to the community at large for a fee, i.e. to the running of a professional practice for the purpose of generating income.
175The Information Commissioner agreed that this could lead to an apparent anomaly in which records relating to a public patient would be exempt, while those relating to a public patient would not be. He continued at [22]:-
I do not accept that it is illogical in terms of the objects of the FOI Act. One of the primary objects of the FOI Act is to enhance the accountability of government, which includes accountability of individual government employees for the performance of their employment duties in the service of the public. This extends to the performance by salaried employee medical professionals of the services they are paid (from public funding) to perform for public patients. There is no similar accountability regime, through access to information, that applies to information held by private medical practitioners and private hospitals concerning services performed for their patients (though the desirability of a scheme for access by individual patients to their own medical records has been canvassed by the Commonwealth Privacy Commissioner). I do not consider it at all illogical, in terms of the objects of the FOI Act, that information about the performance by medical practitioners and private hospitals of services for which citizens are directly charged, might be eligible for exemption under s.45(1)(c) of the FOI Act (provided other elements of the test for exemption are satisfied), while information
176In NSW professional affairs has been held to include information concerning the professional conduct of a psychiatrist in relation to a patient for whom the psychiatrist provided services for a fee: see Schlebaum (No 2) v Director General, Department of Community Services [2001] NSWADT 214. In Alexander v University of Sydney the professional affairs exemption did not apply to the Dean of the Sydney Conservatorium of Music, because she was found not to have been operating a professional practice at the relevant time.
177In YZ v Sydney South West Area Health Service [2006] NSWADT 316 the question was whether two letters discussing a dispute over professional health care practice and a publication in an on-line professional journal, with specific reference to the professional conduct of YZ, contained information concerning YZ's professional affairs. One letter concerned differences of opinion and recognition of contribution to the development of a medical practice and the other contained defamatory imputations arising out of the dispute. Handley JM held that this was clearly information concerning YZ's a professional dispute. In finding that the documents were exempt under clause 7 Handley JM concluded that, "if the documents were released this could adversely affect the ability of the Health Service to attract suitable staff." The exemption found was not that relating to the professional affairs of the doctors concerned, but relating to the business affairs of the agency and the impact on it of release of the documents."
178In the present case Dr Nair claims that all of the documents relate to his professional affairs. I do not accept this. Dr Nair was employed as a Senior Staff Specialist at the Hospital. He was a salaried professional with limited rights of private practice. The documents, insofar as they relate to his private practice, relate to his past professional affairs.
179The documents which relate to his employment by the agency, its assessment, monitoring and supervision of him in his role as a Senior Staff Specialist do not relate to his professional affairs. They include discussions among his supervisors and peers, within the MDAAC and the Credentials Committee. Those documents do, however, relate to the business affairs of the agency in the assessment, monitoring and supervision of its professional staff.
180The Agency also submitted that release of a number of documents would disclose the professional affairs of a number of doctors, including Dr's Fernside, Seex, Casikar, Dexter and Cregan, Pain and Summers. On the material before me each of those practitioners was a clinician in the employ of the Agency. While it is unclear whether any of them also had a right of private practice, it is clear that their participation in matters concerning Dr Nair, was in their capacity as clinicians in the Agency's employment. As such, for the reasons outlined above, the professional affairs exemption does not apply to them.
181There are, however, a number of documents which relate to the professional affairs of Dr Phillips who was retained by the Agency to prepare a report on Dr Nair. These are documents 14, 15, 16, 51, 52, 53, 58, 59 and 60. They include his report and subsequent communications concerning its content. The material indicates that this work was undertaken privately by Dr Phillips in his professional capacity for a fee. They therefore contain information concerning his professional affairs.
182The documents which the Agency claims exemption for under clause 7 fall within a number of categories. They are documents 8, 12, 15, 16, 17, 22, 23, 25, 26 (the same as 50), 28, 34, 35, 38 to 47, and 59 - 62. They relate to internal discussions and communication involving clinical and administrative staff of the Agency, members of the Credentials Committee and of MDAAC and the Agency's senior management, Dr Nair and his legal representatives regarding:
- The imposition of conditions on Dr Nair's registration by the Medical Board
- Considerations by the MDAAC and the Credentials Committee of whether Dr Nair should retain his clinical privileges or be suspended, and, when suspended, when and on what terms he should be allowed to resume work.
- A fitness evaluation of Dr Nair made for the purposes of informing the Agency's decision making regarding his clinical privileges and supervision.
- The implementation of a supervision plan for Dr Nair.
- Monitoring and supervision of Dr Nair under a supervision plan.
They also include document 8 which relates to the Review of Nepean Neurological Services.
183I accept that these documents relate to the Agency's business affairs.
184The issue that then arises is whether disclosure of any or all of that information that concerns Dr Nair's and Dr Phillips professional affairs, and the agency's business affairs, could reasonably be expected to have an unreasonable adverse impact on those affairs, or to prejudice the future supply of such information to the Government or to an agency.
185In this regard Dr Nair submitted that the documents:-
... contain material of an evaluative nature, including allegations, which is capable of being reproduced out of context, or reported in a distorted and misleading manner. Such use of the material is likely. The very repetition of the allegations made against Dr Nair, possibly without adequate explanation or reference to the outcome of the Review of Nepean Neurological Services, of itself distorts the true course of events, since the allegations that are likely to be repeated are not new.
186In this case a considerable body of information which relates to Dr Nair's professional affairs is already in the public domain. Dr Nair's objection to its release is founded on concerns about how it may be reported if released. There is a concern expressed that, taken out of context, the information could be defamatory.
187With respect to those matters which relate to his private practice, I have grave difficulty in accepting that Dr Nair now has any "professional affairs" that it could be expected will be unreasonably adversely affected by release of the documents. Dr Nair is no longer registered and cannot practice medicine. He no longer has a private practice, the operation of which could be adversely affected by release. He is in gaol and will remain there for a number of years yet. His fall from grace is a matter of wide public notoriety.
188Additionally, the release of information concerning Dr Nair's professional affairs (if they continued to exist) that is already in the public domain could not be reasonably expected to have an unreasonable adverse impact on them. Dr Nair's cocaine addiction, the practice and health conditions placed on his registration, the fact that the agency withdrew his privileges and that he worked under supervision, the very sad circumstances surrounding the death of the two sex workers, and Dr Nair's arrest, trial and imprisonment are all matters of public knowledge. Any damage they could do to his professional affairs has already been done. As a result the release of such information could not be reasonably expected to have an unreasonable effect on his professional affairs.
189I do not accept that release of any of the information for which exemption is claimed on Dr Nair's behalf could be reasonably expected to have an unreasonable adverse impact on his professional affairs.
190The material relied on by the Agency to claim exemption with respect to Dr Phillip's professional affairs and its own business affairs centres on the evidence of Mr Hedge, supported by that of Dr Hely and Ms Turnbull. This goes to the highly confidential nature of information concerning the reporting, management, supervision and management of impaired practitioners, and the fundamental importance of that confidentiality to the successful operation of the Medical Council's and the Agency' systems for detecting and overseeing impaired practitioners so as to ensure patient safety.
191I accept, subject to the exception discussed below, that release of all the documents for which the business affairs exemption is claimed would disclose information relating to the business affairs of the Agency. Such disclosure could reasonably be expected to have an unreasonable adverse effect on those affairs and to prejudice the future supply of such information to the Agency.
192With respect to documents 14, 15, 16, 51, 52, 53, 58, 59 and 60 I also accept that their release could reasonably be expected to have an unreasonable adverse effect on Dr Phillip's professional affairs, and to have an adverse effect on those affairs in respect of his obligations of confidentiality.
193The exception is document 8, the review briefing. For the same reasons I have given with respect to the review briefing not being exempt under clause 13, I am not satisfied that release of this document (subject to the deletion already indicated) could reasonably be expected to have an unreasonable adverse the business affairs of the Agency.