1 The decision of the Acting Public Access Deputy Commissioner dated 22 January 2019 to refuse access to the document in part is affirmed.

1 In legal terms, this case is about whether exemptions from disclosure under the Freedom of Information Act 1982 (the FOI Act) apply to a document Mr Nichols seeks from the Department of Education and Training (the Department). The Department has the onus of proving that exemptions apply.

2 The document, released in part by the Department, is a letter of referral dated 28 June 2018, from the then acting principal of the school where Mr Nichols was a teacher. The letter, to a medical practitioner, requested a medical assessment of whether Mr Nichols was fit for duties as a teacher. This process is available to principals under Ministerial Order No 1038: Teaching Service (Employment Conditions, Salaries Allowances, Selection and Conduct) Order 2017 (the Ministerial Order).

3 The medical practitioner's assessment was that Mr Nichols was fit to teach. Mr Nichols received a copy of the medical practitioner's assessment. He seeks access to the letter of referral.

4 The Department relies on the exemptions in ss 30(1) ('internal working documents'), 33(1) ('documents affecting personal privacy'), and 35(1)(b) ('documents containing material obtained in confidence') of the FOI Act to refuse access to the balance of the document.

5 On review, the Office of the Victorian Information Commissioner (OVIC) determined to refuse further access to the document (refuse access in part), deciding that the exemption in s 30(1) applied. OVIC determined that s 35(1)(b) did not apply and did not consider the application of s 33(1) because it had determined the document was exempt in any event.

6 In this case, having reviewed the document, I was satisfied that refusal of access in part was appropriate. For the reasons given in more detail below, I have affirmed the decision of the Acting Public Access Deputy Commissioner (OVIC decision) to refuse further access to the document under s 30(1) of the FOI Act. I have also determined that the exemption in s 35(1) applies, and in the circumstances have not considered s 33(1).

7 I acknowledge the strong and personal interest Mr Nichols has in the withheld parts of the document but consider that, in this case, there are broader public interest concerns which weigh against disclosure. This is not a general statement about such letters of referral. Depending on the contents and other relevant circumstances, the public interest and other considerations may lead to a different conclusion.[1]

8 In personal terms, from Mr Nichols' perspective, this case is about broader issues: the experience of being referred for such an assessment after 38 years of teaching; the impact on him of the process and the assertions apparently made about him in the referral letter, as communicated by the doctor; and the perceived injustice of not knowing exactly what had been said about him in such a process and by whom. Although the outcome of the referral was that he was cleared to teach, the experience has obviously had a deep impact on him.

9 This proceeding also, clearly, had its own impact on him. I have made some observations at the conclusion of these reasons about some aspects of the conduct of this proceeding that were less than ideal.

10 The document in issue here is a letter to a medical practitioner dated 28 June 2018 written by the acting principal of the school where Mr Nichols was teaching (the letter of referral).

11 It is a letter of referral for medical examination and assessment of Mr Nichols' fitness to teach, under the Ministerial Order.

12 Under clause 6.2.10 of the Ministerial Order, the Secretary to the Department of Education and Training (the Secretary) (and through delegation, the principal of a school) may direct an employee to take leave until medically examined, in two situations:

• An employee has had less than 13 weeks continuous absence due to illness or injury, the employee resumes or intends to resume duty, and the Secretary is of the opinion that the employee is not fit to resume duty; or
• The Secretary has reason to believe that an employee's state of health may make the employee a risk to the health, safety or welfare of themselves or other employees or persons at the workplace including students.

13 In short, the medical examiner is asked for their opinion as to whether the employee is fit for duty or unfit for duty.

14 Under clause 6.2.10, if the examination discloses that they are unfit for duty, the employee will be granted such further personal leave as the report indicates is necessary. If they are assessed as fit for duty, the personal leave they were directed to take will be debited and any lost salary or wages restored.

15 In this case, Mr Nichols was not asked to take leave.

16 Mr Nichols attended the examination on 27 July 2018. The medical examiner provided his opinion, by report dated 27 July 2018, that Mr Nichols was fit to undertake the duties of an expert teacher. He continued to teach.

17 Mr Nichols received a copy of the examiner's report (the report). Amongst other matters, the report notes that the examiner discussed with Mr Nichols 'the various concerns' regarding his work performance. The report summarises those concerns.

18 Because of that discussion, and from the list of concerns in the report, Mr Nichols believes that the letter of referral contained false and biased information about him.

19 In response to his FOI request, the Department provided a redacted copy of the letter of referral.

20 Information released to Mr Nichols in the redacted referral letter includes uncontentious employment history, some leave history and a schedule of questions for the examiner. Information withheld, as described in the Department's response to Mr Nichols dated 8 October 2018, included opinions, personal information of other individuals and information provided in confidence.

21 Mr Nichols says he wants to know what he did that raised any doubt about his ability to discharge his duty. He says he has no idea and was never told. He says that he is entitled to know what was said about him and to have the opportunity to respond.

22 I note here that, from the assessor's report given to him, Mr Nichols has in fact received reasonably detailed information about the 'various concerns' regarding his work performance, although not who may have said what. I accept that he does not agree that any of the concerns were legitimate, and that he wants to know more about what may have been said.

23 The respondent called one witness, Mr Anthony Bugden, who was the Executive Director, People Division of the Department at the time of making his affidavits. Unfortunately, much of his evidence was in general terms and not directed to the particular issues or circumstances in this case. This reduced the assistance able to be provided by his evidence. In cross-examination Mr Bugden acknowledged that he was not familiar with the facts. He had read the letter of referral, although he was not aware that Mr Nichols had received the assessment report and had not read that document.

24 Mr Bugden was able, however, to provide information to Mr Nichols in the course of cross-examination that Mr Nichols said no-one had mentioned to him - that his grievance about the process could have been raised with the Merit Protection Board. Mr Nichols said he was told that his only recourse was under the FOI Act.

25 I turn now to consider the claimed exemption under s 30(1) of the FOI Act.

(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

27 The exemption does not apply to a document by reason of purely factual material: s 30(3); or to the record of a final decision, order or ruling given in the exercise of an adjudicative function: s 30(4). And s 30(1) ceases to apply to a document after a specified period: s 30(6).[2]

28 As OVIC was, I am satisfied that s 30(1)(a) applies here:

• The Acting Principal is an 'officer' of the Department.
• Disclosure of the balance of the document would disclose matters in the nature of opinion prepared by an officer (the acting principal) in the course, and for the purpose, of the deliberative processes involved in the functions of the Department, namely, an assessment of whether Mr Nichols, as an employee of the Department, was fit to teach.
• Disclosure would also disclose matters in the nature of consultation between officers (other staff) in the course, or for the purpose, of the deliberative processes involved in the functions of the Department.

29 I agree with the Tribunal's analysis of a similar letter of referral (in the sense that it was for an assessment of fitness to teach) in Stark v DET at [31]:

The reality is that a school principal, faced with a situation like this, needs to deliberate on sensitive matters throughout the conduct of the process, balancing the interests of the individual staff member, her colleagues and teachers, students and parents. The principal needs to determine which doctor to refer to, and how to phrase the letter of referral. Once a response is received, the principal needs to determine what course of action to take. An employee could be fit, unfit or partially fit. The principal would need to consider how the school adapts to that, for example, whether to change the employee's working hours, and/or reshuffle other staff, in order to enable the school to continue to function whilst still managing the particular employee's situation.

30 Deciding whether disclosure would be contrary to the public interest requires consideration, on a case-by-case basis, of all the relevant facts and circumstances, keeping in mind that the object of the FOI Act is to facilitate and promote disclosure of information in the possession of an agency or Minister.

31 The (non-exclusive) list of factors in Hulls v Victorian Casino and Gaming Authority (1998) 12 VAR 483 is consistently referred to in the cases.

32 In a case such as this, which does not concern a document produced in a policy development process, the factors include:[3]

• The right of access under s 13 of the FOI Act;
• The nature of the information, including its sensitivity;
• Whether the disclosure would be likely to inhibit frankness and candour in the making of communications;
• The likelihood that disclosure would lead to confusion or ill-informed debate;
• The stage of the decision-making process at which the document was created;
• The likelihood that disclosure would inhibit the independence of officers;
• The notion that decision-makers should be judged on the final decision and their reasons for it, rather than the content of preliminary documents; and
• Whether disclosure of the documents would adversely affect the integrity or effectiveness of decision-making, investigative or other processes.

33 Of most relevance here were the cases in the respondent's 'shortlist'[4] relating to deliberations or investigations to do with the fitness or conduct of employees of educational institutions.[5] The circumstances varied but some relevant considerations emerge:

• An applicant will have an interest in ascertaining whether an assessment of their fitness to work or an investigation of their conduct was made in a fair and balanced manner, but this may be outweighed (for the purposes of the FOI Act) by stronger public interest considerations.
• Where an assessment is being made of a teacher's fitness to work, the information is likely to be sensitive, although not always.
• Not inhibiting frankness and candour in the making of communications will be a relevant consideration, particularly in referrals for medical assessment or the gathering of information in the course of an investigation, where the welfare of students may also be a relevant consideration.
• Consultation between a principal and others about potential unfitness of a teacher will usually be under an assurance or a reasonable expectation of confidentiality.
• As observed in Stark v DET, at [39], there is a strong public interest in protecting the integrity of staff management processes, including enquiries into medical fitness and conduct, and this may depend on information provided confidentially not subsequently being disclosed.
• Whether the information disclosed would be materially different from information already provided to the applicant will be a relevant consideration.[6]
• In the case of an assessment of fitness to work, it will be relevant, although not determinative, whether the assessment is complete, and the applicant has returned to work.[7]

34 Having considered the facts and circumstances here and reviewed the referral letter, I am persuaded, on balance, that releasing the balance of the referral letter would be contrary to the public interest for the following reasons.

35 The information in the letter is highly sensitive. The acting principal has expressed her concerns and her opinion about the reasons why a medical assessment is advisable, incorporating opinions and information provided to her in confidence.

36 Although the assessment letter provided to Mr Nichols included a summary of the concerns raised about his work performance in 2018, it does not provide the detail of those concerns; the communications made to the acting principal (and by whom); her opinions formed in the process of evaluating the communications made to her; and her reasons for seeking the medical investigation.

37 On balance, I consider that disclosure of the opinions, consultation and deliberation in the balance of the referral letter would inhibit similarly frank and candid communications, with a detrimental effect on timely and thorough fitness to work assessments in the future. Those officers who communicated in confidence with the acting principal, in a frank and candid manner, would also likely 'think twice' before doing so again were their identity and their communications disclosed here.

38 The relevance of these considerations will vary from case to case, depending on the circumstances and the content of the document. Here, they weigh against disclosure. This is so, even though the assessment has concluded.

39 Importantly, while undoubtedly painful and distressing for Mr Nichols, as it would likely be for any teaching professional, at the heart of a fitness to teach assessment lies the welfare of students, which is an important and relevant public interest consideration. Here the process undertaken by the acting principal has established that Mr Nichols was fit to continue teaching, rather than the opposite. This is an important outcome.

(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 ... to an agency ... and -

(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 ... to obtain similar information in the future.

41 As OVIC was, I am satisfied that information concerning Mr Nichols in the letter of referral was communicated in confidence, both from the perspective of the author of the referral letter and those who communicated with her beforehand. I have reached this view based on the subject matter, the nature of the information, the circumstances in which it was created, the purpose for which it was created, and statements about confidentiality in the letter (although this last one is not determinative).

42 This is not to express a view about whether what was communicated was truthful or accurate. For the purposes of s 35(1), the Tribunal does not conduct an inquiry into the truth of the information concerned.[8]

43 I reached a different view to OVIC on the application of the second limb of s 35(1) - whether the disclosure of the information would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of the Department to obtain similar information in the future. In my view, it would do so.

44 The public interest test in s 35(1)(b) is a narrow one, with relatively narrow application - the reference to 'similar information' requires a focus on the information in the particular case.

45 Once again, the cases relating to educational institutions were the most relevant.[9]

46 Having considered the contents of the referral letter, the evidence given by Mr Bugden relevant to the issue, and what was said in the s 53A responses,[10] I am satisfied that disclosure of the confidential information in this case would impair the ability of the Department to obtain similar information in the future, both in respect of the willingness of a principal to write a referral letter in similar circumstances, and also in respect of the willingness of those who communicate with a principal in confidence to be forthcoming with similar information in the future.

47 For completeness, I have reached the same view as OVIC on the question of whether, under s 25 of the FOI Act, the document could be edited to delete exempt or irrelevant information. In my view, doing so would render the document meaningless and raise more questions for Mr Nichols than it could answer.

48 For the reasons given, I am satisfied that the exemptions in ss 30(1) and 35(1) of the FOI Act apply in this case, despite what I acknowledge to be the strong personal interest Mr Nichols has in seeing the balance of the document. In both instances, that personal interest is outweighed by the public interest considerations identified.

49 It is important to restate that the outcome of the assessment was a finding that Mr Nichols was fit to teach. The contrary should not be assumed or taken from anything in these reasons.

50 As a separate matter, in his submissions, Mr Nichols raised questions about the way in which this litigation was conducted. One issue raised by him was also of concern to the Tribunal.

51 In simple terms, in a case which concerned one document, the respondent filed a voluminous Tribunal Book containing 1,600 pages of cases, most of which were not directly related to the issues in this case.

52 Not surprisingly, the applicant found the volume of material in the Tribunal Book overwhelming. In April this year, the Tribunal noted the volume of cases included in the Tribunal Book and directed that, in order for the Tribunal and the applicant to prepare for the one-day hearing, the respondent file a list of those cases that would be the subject of oral submissions. In response, the respondent filed a list of seven cases.

53 I appreciate that the applicant brought this case to the Tribunal. The respondent bears the onus of proof in seeking to establish that the disputed document is exempt and is of course entitled to a reasonable opportunity to put its case. It is also evident that attempts were made by the respondent to resolve the case over the course of the proceeding. Nevertheless, it is in no one's interests that a legally represented respondent overwhelm a self-represented litigant with such a deluge of case law, leaving to one side the unnecessary imposition on the Tribunal's time and resources.

54 I note here an additional concern from the Tribunal's perspective. It became apparent at the hearing that Mr Nichols had received a copy of the report by the medical assessor. That fact was not disclosed to the Tribunal in the respondent's evidence or contentions. Nor was the report included in the Tribunal Book. The matter became evident in response to a question I asked at the start of the hearing and I called for a copy of it.

55 The fact that Mr Nichols had received the report, and the contents of the report, were clearly relevant to whether and to what extent a claim of confidentiality (amongst other contentions) could apply to the referral letter, as indicating what information from the referral letter had already been disclosed to Mr Nichols.

56 The fact that Mr Nichols had received the report, and its contents, also brought the facts of this case closer to the facts in the highly relevant case of Stark v DET, than was evident from the respondent's statement of contentions.[11] I have assumed it was a failure of preparation or instructions and not a deliberate omission. Nevertheless, I record my concern.

[1] As it did in Stark v Department of Education and Training [2015] VCAT 625 (Stark v DET).

[2] 'Subsection (1) shall cease to apply to a document brought into existence after the day of commencement of this section when a period of ten years has elapsed since the last day of the year in which the document came into existence.'

[5] Cochrane v Melbourne Polytechnic [2017] VCAT 1816; Hoskin v Department of Education and Training [2003] VCAT 946 (Hoskin); O'Sullivan v Department of Employment, Education and Training (unreported, VCAT, Senior Member Megay, 1 November 2002), PJE v Department of Education and Training [2016] VCAT 751; and Stark v DET.

[6] This was the principal reason for the Tribunal's decision to release the referral letter in Stark v DET, together with the fact that the information was not considered to be of the same sensitive nature as in Hoskin: Stark v DET at [40]-42] and [54].

[7] Stark v DET at [43]-[49]. One of the concerns expressed by Mr Bugden was that if the referral letter is released to the teacher before the assessment, it may influence their conduct or behaviour in the assessment interview.

[8] Marke v Victoria Police [2006] VCAT 1364 at [56].

[9] For example, Benson v La Trobe University (No 3) [2012] VCAT 717; Mees v University of Melbourne [2009] VCAT 782; Cochrane v Melbourne Polytechnic (previously referred to); and O'Sullivan v Department of Employment, Education and Training (previously referred to).

[10] Although they were obtained in the context of s 33 (unreasonable disclosure of personal affairs information), the responses from those who are named in the referral letter support the conclusion reached.

[11] [2.34 (a) and (b)] at Tribunal Book pages 143-144.