Purcell v Ombudsman [2002] VCAT 842

For the Respondent: Mr S O'Bryan of counsel instructed by Victorian

1. By letter dated 10 September 2000 to the respondent, the applicant requested "all the material in the Ombudsman's files arising from his complaint against the Goulburn Valley Health (Base Hospital) Board and Senior Management". By letter dated 17 October 2000, Dr B W Perry, as principal officer of the respondent, advised the applicant that the majority of documents requested by him could be released to him. He advised further that 14 documents could not be released or would only be partially released as they were exempt under the Freedom of Information Act 1982 (Vic) ("the FOI Act").

2. Dr Perry also advised the applicant that when processing his request, a number of documents from the Department of Human Services ("DHS") and Goulburn Valley Health were located. As the subject matter of those documents was more closely connected with the functions of those agencies, he had, in accordance with s.18(2) of the FOI Act, transferred the relevant documents directly to those agencies. The documents now in dispute were set out in a Schedule prepared by the respondent. They are as follows :

File note by Investigation Officer David McAuliffe on his assessment of the information contained on Department's files

File note following an interview with another party

File note following an interview with another party

File note following an interview with another party

File note following an interview with another party

File note following an interview with another party

Letter from the Ombudsman to the Goulburn Valley Base Hospital

Letter from Goulburn Valley Health to the Ombudsman

File note following an interview with two other parties

File note where notes made following an interview with another party

3. By application for review filed with the Tribunal on 5 December 2000, the applicant sought a review of the decision of Dr Perry refusing access to the documents.

4. The background to this application is set out in some detail in the reasons for decision of Judge Duggan, Vice President of the Tribunal, in Purcell v Department of Human Services (G102402/2000 19 December 2001 unreported). In those proceedings his Honour reviewed a decision of the DHS refusing access to certain documents the subject of the applicant's request of 10 September 2000 transferred by Dr Perry to the DHS. His Honour in that decision determined to uphold the Department's refusal to grant him access to the documents. The following background material is taken in part from the background set out in Purcell v Department of Human Services and in part from the written statement of the applicant dated 28 May 2002 tendered in evidence in these proceedings.

5. The applicant was a member of the Board ("Board") of the Goulburn Valley Base Hospital ("hospital") from 1991 until October 1998. In June 1998, in a meeting of the Board, it was suggested that a member of the hospital staff may have purported, without its authorisation, to make a legally binding commitment to purchase uniforms.

6. The applicant testified before Judge Duggan that he was concerned that the account of the circumstances provided to members of the Board concerning the staff member was based upon insufficient investigation of the facts, that suggestions as to possible misconduct by the staff member constituted potential defamatory allegations, and that the failure to consult the staff member before drawing the allegations to the attention of the Board might constitute a denial of natural justice. He said that the staff member had been involved in a previous dispute with the hospital and that the dispute had been resolved substantially in favour of the staff member. Following the previous dispute between the hospital and the staff member, the Board had incorporated into a Code of Conduct for members an obligation to maintain the confidentiality of matters dealt with by the Board.

7. The applicant also testified before Judge Duggan that he believed that his legal duties as a member of the Board required him to endeavour to more adequately inform himself about the circumstances dealt with by the papers provided to him. He was of the opinion that any obligation of confidence by which members of the Board were bound was subject to a more general duty to adequately inform themselves about matters dealt with by the Board.

8. The applicant contacted the staff member concerned to obtain her account of the relevant circumstances. Having spoken to her, he formed the view that the information which had been presented to the Board was misleading and that the legal duties of members of the Board required them to act upon a more accurate account of the circumstances.

9. A further meeting of the Board was held on 24 June 1998 to discuss the circumstances surrounding the arrangements for the purchase of uniforms. The applicant stated that he was left with the impression that the hospital's chief executive officer would speak to the staff member about the matter. He was not satisfied, however, that this had occurred within a reasonable period of time and he then wrote to the President of the Board requesting the withdrawal or rejection of the account presented to the Board of the alleged circumstances surrounding the purchase of uniforms.

10. The applicant said in his written statement that over the next month or so he received periodic telephone calls from the staff member complaining that she had not been interviewed by the chief executive officer. Eventually, the applicant contacted the acting president of the Board who agreed to take the matter up with the chief executive officer.

11. He said further that by letter dated 12 August 2001, to the President of the Board, Ms McCamish, he asked that the executive of the Board meet to consider rejecting the report and requesting senior management to withdraw it. He said that Ms McCamish asked him not to circulate the letter to the Board and she undertook to investigate the matter. Subsequently, at a meeting of the Board on 26 August 2001, the applicant was censured for breaching confidentiality with respect to the Board's discussion of the circumstances surrounding the arrangements for purchase of uniforms.

12. The applicant gave evidence that this was without warning and before an investigation had been carried out. He said he argued that he was acting within his rights as a Board member in seeking information from the staff member. It was his view that the Board's action violated his rights as a Board member appointed by the Governor in Council to be responsible to the Government, to the community and to the staff for the proper use of the financial and human resources of Goulburn Valley Health. He said that he requested that before the censure motion was put to the vote, legal advice should be sought on his rights as a member of the Board. However, he said, the Board declined to do so.

13. The Board subsequently sought legal advice from the Victorian Hospital Industry Association. The applicant testified before Judge Duggan that neither the advice sought nor that given addressed the issue of his rights and duties as a member of the Board. At a special meeting of the Board on 9 September 1998, a vote of no confidence in the applicant was carried. Advice to this effect was conveyed to DHS.

14. On 6, 10, 17 and 21 September 1998, the applicant wrote to the Minister for Health, outlining his versions of events and inquiring as to the avenues of appeal. In his reasons for decision, at paragraph 11, Judge Duggan said the applicant contended to the Minister that :

"* There was no contract for the purchase of uniforms by the hospital despite the Board having deliberated on the basis that there may have been

* The employee against whom the allegations had been made had possibly been defamed and denied natural justice

* The action against the applicant was based upon a misleading version of events

* The Board had refused the applicant access to a contract for the purchase of uniforms which the applicant understood the Director of Nursing claimed at a Board meeting was in his possession

* The Board had negligently failed before acting against the applicant to consider testimony of the staff member whose conduct was under question or the reliability of the account of events on which the hospital's senior management was requesting that they act

* The Board had not sufficiently considered or sought advice about the applicant's legal obligations with respect to confidentiality".

15. The Minister for Health responded to the applicant by letters dated 17 September and 9 October 1998 and 7 January 1999. He advised that the Board's procedures were largely discretionary in accordance with the Health Services Act and that he had no power or duty to intervene in the dispute between the applicant and the Board.

16. It emerged from documents subpoenaed by the applicant to the hearing of these proceedings from the DHS that the applicant's name was included in the list of names recommended for reappointment to the hospital Board. It was the evidence of Ms McCamish, that the Board's recommendation for the applicant's reappointment were made in July, prior to the issue arising in relation to the censure motion of the Board in August that year. Subsequent to the censure motion, the Board informed DHS, Hume Region, of the censure motion and of the subsequent vote of no confidence in the applicant.

17. On 31 October 1998, three positions on the Board became vacant, including that occupied by the applicant. In a letter dated 29 October 1998, the Minister for Health wrote to the applicant informing him that his nomination for continuing membership had been unsuccessful.

18. In November 1998, the applicant sought an investigation by the Ombudsman alleging unfair treatment and denial of natural justice by the Board, the Minister and DHS. The Ombudsman refused to investigate the applicant's complaint against the Minister stating that he had no jurisdiction to do so.

19. In a 10 and half page letter dated 20 June 2000 to the applicant, Dr Perry advised him of the result of the Ombudsman's inquiries into his complaint relating to the hospital. He concluded by saying :

"Having examined all of these matters, I have reached the following conclusions :

* I am unable to conclude that the majority Board view that your actions breached the confidentiality provisions of the Code of Conduct or the Board subsequent actions in censuring and moving a vote of no confidence in you, were unreasonable or a denial of natural justice.

* I am unable to conclude that the Department of Human Services provided advice to the Minister in a manner which was unfair to you or denied you natural justice.

* I have found no evidence which would indicate an inference that your actions in this matter were motivated by personal gain or were prompted other than by your concerns for the good management of the hospital.

Should you believe that any of my conclusions were based on incorrect facts, I am willing to reconsider this matter. ......"

20. Section 3(2) of the Act provides for the appointment of the Ombudsman by the Governor-in-Council. The functions and jurisdiction of the Ombudsman are specified in s.13 of the Ombudsman Act 1973. That section states that the principal function of the Ombudsman is to inquire into or investigate any administrative action taken in any government department or public statutory body to which the Act applies or by any member of staff of a municipal council.

21. Section 10 provides that the Ombudsman, the Acting Ombudsman, the Deputy Ombudsman, the Acting Deputy Ombudsman and every officer of the Ombudsman shall, before commencing the duties of his office or as such an officer, take an oath or make an affirmation that he will not, except in accordance with the Act or Pt IVA of the Police Regulation Act 1958 (Vic) divulge information received or obtained by him under the Ombudsman Act or Pt IVA of the Police Regulation Act.

22. Section 13A provides that the Ombudsman may conduct an inquiry for the purposes of determining whether an investigation under the Act should be conducted or whether the matter may be resolved informally. Section 14 deals with the conduct of investigations. Subsection (1) provides that the Ombudsman may conduct an investigation under the Act either on his own motion or as a consequence of complaint. Subsection (2) provides that a complaint may be made by a person and shall be made in writing. The applicant made his complaint pursuant to this subsection.

23. Section 17 of the Act deals with the procedure relating to investigations. Section 17(2) provides that every investigation under the Act shall be conducted in private. Section 17(3) states :

"Subject to any Rules of Parliament under this Act the Ombudsman is not required to hold any hearing for the purposes of an investigation, and he may obtain information from such persons and in such manner as he think fit and may determine whether any person may be represented by a legal practitioner or otherwise in the investigation".

24. Pursuant to s.17(4), if at any time during the course of an investigation it appears to the Ombudsman that there may be grounds for making a report adverse to an authority to which the Act applies, he shall before making the report, give the principal officer the opportunity to comment on the subject matter of the investigation.

25. Section 18 provides that the provisions of ss 17, 18, 19, 20 and 20A of the Evidence Act 1958 (Vic) apply to and in relation to any investigation which the Ombudsman is authorised to conduct under this Act. By virtue of s.18 of the Evidence Act, the Ombudsman has power to examine on oath. Section 17 of the Evidence Act empowers the Ombudsman to require the attendance of witnesses and the production of documents. Section 18(3) provides as follows:

"(3) No obligation to maintain secrecy or other restriction upon the disclosure of information obtained by or furnished to persons in the service of the Crown or authority, where imposed by any enactment or any rule of law, shall apply to the disclosure of information for the purposes of an investigation under this Act".

26. At the time the Ombudsman made the decision under review in these proceedings, the Office of Ombudsman was an agency within the meaning of s.5(1) of the FOI Act because it was a "department", being an office specified in s.16(1) of the Public Sector Management and Employment Act 1998 (Vic): see s.5(1) of the FOI Act. This was the case after the enactment of the Freedom of Information (Amendment) Act 1993 (Vic) and the former s.17 of the Public Sector Management Act 1992 (Vic). The Whistleblowers Protection Act 2001 now exempts the Ombudsman from the FOI Act. That Act came into force on 19 June 2001, after the applicant's application for review had been filed with the Tribunal.

27. After the conclusion of the proceedings, the Registrar of the Tribunal, at my direction, caused a letter dated 1 July 2002 to be sent to the parties, in the following terms :

"Ms Preuss has requested that I write to you to invite you to make written submissions as to the impact of the Whistleblowers Protection Act 2001 on the respondent's claim for exemption under s.35(1)(b) of the Freedom of Information Act 1982. Any submissions you make should address in particular how disclosure of the material for which exemption is claimed under s.35(1)(b) would be reasonably likely to impair the ability of the Ombudsman to obtain similar information in the future having regard to the fact that the Ombudsman is no longer subject to the Freedom of Information Act.

Any written submissions that you make should be filed and served within 14 days of this date. A similar letter has been sent to the other party to the proceedings."

28. The applicant, in written submissions filed with the Tribunal on 15 July 2002, made wide ranging submissions unrelated to the issue sought to be addressed in the Registrar's letter, reiterated some of his submissions previously made during the course of the hearing, made allegations regarding the failure of the Ombudsman to have proper regard to the procedures of the Tribunal, and made recommendations concerning the Ombudsman's office. The applicant also made submissions which dealt with the issue raised in the Registrar's letter. I now summarize those submissions so far as they are relevant to s.35(1)(b).

29. The applicant submitted that at the hearing, the Ombudsman provided no concrete evidence from past experience to demonstrate that disclosure would impair his ability to obtain similar information in the future. He submitted further that the Ombudsman made no distinction between communication with people who were directly involved as subjects of his allegations, communication with whistleblowers, communication with other complainants, communication with voluntary witnesses and communication with non-voluntary witnesses. He submitted that the question of whether the release of the names of witnesses would impair the Ombudsman's ability to obtain similar information in the future would depend on the category to which they belonged. The applicant argued that the effect of the Whistleblowers Protection Act 2001 in exempting the Ombudsman from the FOI Act made it impossible now "to gain any kind of direct judicial review of his FOI decision or indirect review of the quality of his investigation through invoking s.50(4) of the FOI Act. He argued that the Ombudsman no longer should have any fear of disclosure of any kind inhibiting the communication of information by his interviewees.

30. Written submissions dated 23 July 2002 from counsel for the respondent, Mr O'Bryan, were filed with the Tribunal on or about 5 August 2002. Mr O'Bryan's major submission was that the Tribunal should apply the law as it was at the time the agency made its decision. Mr O'Bryan referred to a number of decisions of the Tribunal favouring application of the law as at the time of the original decision, including Re Dempsey v State Superannuation Board (1995) 8 VAR 160 at 165-6 per Macnamara DP and Re Citi Consulting Pty Ltd v Department of Treasury and Finance (No 1) (1999) 15 VAR 321 at 325-7, a decision of Davis PM.

31. Mr O'Bryan also referred to the principles stated by Dixon J as he then was in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267 :

"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise effect rights or liabilities which the law has defined by reference to past events".

32. I have formed the view that the principles stated by Dixon J and followed in Re Dempsey v State Superannuation Board, should be applied so that the law to be applied is that in force at the time of the decision. The effect of this is that I will not have regard to the fact that the Whistleblowers Protection Act is now in force in considering the application of s.35(1)(b).

33. Mr O'Bryan also made submissions that went beyond the scope of the issue raised in the Registrar's letter in that he sought to rely on s.35(1)(a) of the FOI Act in the alternative to s.35(1)(b). He submitted that if the Tribunal accepted that the information was communicated in confidence in the terms already contended for by the respondent, most or all of it would be exempt matter if it had been generated by an agency pursuant to s.30(1) of the FOI Act.

34. To entertain new submissions going beyond that requested by the Registrar would be a denial of natural justice to the other party, except in circumstances where the other party has had the opportunity to be heard (see Rumpf v Mornington Peninsula Shire Council (2002) VR 69 at 92-94). It would appear that the respondent received Mr Purcell's submissions of 12 July 2002 some two weeks before Mr O'Bryan's submissions were filed and it is reasonable to assume that Mr O'Bryan could have objected to the Tribunal entertaining those submissions, if he so wished.

35. Further, Mr Purcell provided a response to Mr O'Bryan's submissions, notwithstanding that the respondent sought to claim an additional exemption, namely s.35(1)(a). In those circumstances, and having regard to my findings later in these reasons in relation to s.35(1), I do not consider it would be a denial of natural justice to entertain the additional submissions of both parties.

36. It was the applicant's evidence that the respondent's investigation into his complaint contained errors of law, errors of fact, failures to investigate relevant issues and indications of bias. In his statement of evidence he listed the allegations that he had put to the respondent accusing the hospital, DHS and the Minister of denying him procedural fairness. He also summarized the respondent's responses to each allegation, analysed those responses and set out what he considered to be serious flaws in the investigation. The applicant submitted that the respondent had made an error of law in finding that he did not have the power to investigate the Minister's decision. He alleged that the respondent had used flawed criteria to assess the procedural fairness of the hospital's censure of him and the passing of a vote of no confidence. He said that the respondent's finding that there was nothing unreasonable in the way the hospital acted was only possible by ignoring relevant evidence and his common law rights. He alleged that the respondent ignored his common law right to be given notice and details of the charges against him and adequate time to prepare a defence, and his right to be given an adequate time to get legal advice to call witnesses and present evidence which may have rendered the allegations against him untenable. He disagreed with the respondent's findings that the hospital had not acted unreasonably because he had been given an opportunity to present all his objections, because this ignored his allegations that he had been denied an opportunity to present evidence which would discredit the allegations against him.

37. The applicant alleged that the respondent's finding that the Board's decision relating to censure and no confidence was taken following the Board obtaining legal advice on the issue of breach of confidentiality was based on a factual error. He alleged the respondent was negligent in his investigation of the claims made by the hospital and used factual errors to allow the Ombudsman to claim the matter was irrelevant. Consequently, he made an error in fact and failed to investigate the applicant's allegations. He alleged that the Board was misled by the President of the Board and that acted to his disadvantaged in the respondent's final decision.

38. The applicant said that the respondent's refusal to investigate or consider the evidence he put before him to the effect that the Board refused to allow him access to a document which the Director of Nursing claimed was a contract with a uniform supplier prevented him from obtaining evidence which would establish that senior management had given a misleading and false report. In doing so, the respondent failed to consider evidence relevant to his claim that he had been denied procedural fairness. He alleged that the respondent neglected the public interest by ignoring his duty to ensure the rights and integrity of Board members with public responsibilities.

39. The applicant also alleged that the respondent made an error of law in ruling that legal advice to the Minister to the effect that the hospital had authority under the Health Services Act to act in its own discretion was not wrong. He said that the hospital was not free to dispense itself from the requirements of procedural fairness in handling the accusations against him. Further, the Health Services Act gave the Minister power to intervene if he considered a hospital was being run incompetently or inefficiently. He submitted that the Minister would have been unaware that he was acting on possibly false and unfair advice. His decision not to re-appoint the applicant to the Board was based on a judgment of his conduct made without testing the allegations about him. This seriously damaged the applicant's reputation and destroyed the nursing career of the accused staff member.

40. He said the respondent also ignored the existence of nominations from the hospital to the Minister. The respondent implied that the applicant was no longer a nominee when in fact the hospital did nominate him for re-appointment and the Hume Region of DHS supported his re-appointment. The applicant alleged that this was negligence on the part of the Ombudsman. He said that the silence of the respondent on the missing documents in relation to his reappointment together with his failure to select nomination documents and briefings on nominations to the Board was further evidence of his reluctance to investigate the actions of a Minister. He submitted that the respondent lacked impartiality in his flawed interpretation of his jurisdiction over Ministers of the Crown. He also ignored false information in the Hume Region's brief to the Minister.

41. The applicant alleged that the respondent's judgment that the DHS gave a balanced summary of the dispute to the Minister lacked rationality. He said that because of the failure of the Department to check on the facts, the Minister was given false information Further, the briefing of the Minister made no mention of the applicant's claim that the Board had been misled by the report presented by senior management. He said that the respondent's errors of law, errors of fact and lack of rationality denied him his common law right to natural justice and procedural fairness. He also alleged that the respondent's rejection of his claim that he was denied a fair hearing by an independent third party lacked rationality and was an error of law.

42. The applicant alleged further that the respondent was negligent in gathering documentation and testing statements. He referred to several documents which he said was crucial to a fair investigation of his case but which were not selected from the materials forwarded to the respondent by the Department or not sought.

43. The applicant alleged that the respondent failed to consider relevant legal questions on the Minister's powers under the Health Services Act, on Board member's rights and on the limits of confidentiality. Further, the respondent's decision in response to his complaint was not made for some 15 months. The applicant sought that the exempt documents be released to him, that the respondent be ordered to reinvestigate his complaint properly and that the Minister for Health be sent a copy of the recommendations.

44. Mr John Flemming, retired public servant, gave evidence and his statement dated 25 June 2002 was tendered in evidence on behalf of the respondent. He was formerly an Assistant Ombudsman (general complaints) employed at the respondent's office. His role at the office was to manage the handling of complaints made to the respondent in accordance with the provisions of the Ombudsman Act. He was formerly an investigation officer in the office of the respondent for approximately 12 years.

45. He said that people in government departments who the respondent regularly contacted expected that the information provided would be given in confidence to the respondent. His practice in dealing with third parties in terms of discussing confidentiality was that with departments he did not have to explain the need for confidentiality. With witnesses or complainants, normally before he started an interview, he would explain the role of the respondent and the fact that the material they gave would be confidential.

46. When asked as to the likely ramifications for people who the respondent regularly dealt with if the respondent fully disclosed information he said that "you'd get far fewer complaints". He said from a witness's point of view, he could not say it would be impossible to do investigations because of the powers of the respondent but it would make the respondent's job more difficult and evidence would be very much more difficult to obtain.

47. He said that the protocol for revealing information in the respondent's reports was that the evidence needed to demonstrate that an outcome of the complaint was put in the report but you did not put anything more in it and you always looked at the ramifications of what you did write.

48. Ms Anne McCamish and Mr Mark Dobber, Manager of the Parliamentary and Executive Services Unit, gave evidence before the Tribunal. I do not propose to set out their evidence as it did not assist me to any great degree in determining the issue of whether the documents in question were exempt. In particular, the substance of the evidence of Ms McCamish concerning the events surrounding the Board's censure of the applicant is referred to earlier in these reasons for decision.

49. Section 30(1) of the FOI Act provides 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 process involved in the functions of an agency or Minister or of the government; and

"(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)."

"(1) A document is an exempt document if its disclosure under this Act would divulge any information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister, and -

(a) The information would be exempt matter if it were generated by an agency or a Minister; or

(b) the disclosure of the information under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future".

DOCUMENTS 1, 2, 3, 4, 5, 12 AND 14 - FILE NOTES

52. Documents 1-7, 12 and 14 comprise file notes of different types. Exemption is claimed for each of the documents under s.35(1)(b). Document 1 was prepared by an investigation officer Mr David McAuliffe. A perusal of the document indicates it is a summary by Mr McAuliffe of various DHS files. It was Mr Flemming's evidence that Mr McAuliffe had obtained those files from DHS and reviewed them for the purposes of the investigation. He said that no one else could have obtained the information and that the DHS would expect that confidentiality was maintained.

53. It was submitted by Mr O'Bryan that the material consisted of information communicated in confidence by DHS in that DHS implicitly had an understanding and expectation of confidence and in the sense that the respondent was lawfully bound to receive and treat that information in confidence. He referred to the provisions in relation to confidentiality in the Ombudsman's Act and he relied on a number of decisions including Deasey v Geschke (unreported, AAT, Vic, Judge Hassett, 11 November 1984), Horesch v Ombudsman (1986) 1 VAR 149, Ryder v Booth [1985] VicRp 86; [1985] VR 869 and Re Woodford and Ombudsman [2001] VCAT 721; 18 VAR 64.

54. The applicant referred to the fact that under s.20(1)(a)(i) of the Ombudsman's Act, the respondent is empowered to release information in his report or recommendations.

55. I am satisfied that the document, in recording the contents of DHS's file meets the description "information or matter communicated in confidence" for the purposes of s.35(1)(b). I take the liberty of referring to the following observation which I made in Re Woodford (p.89) :

"In my view, the combined effect and consequences of the provisions of the Act indicate a confidential process. Those provisions include s.10 (requiring the Ombudsman and his officers to take an oath of confidentiality), s.17(2) (requiring that investigations be conducted in private), s.20 (prohibiting the disclosure of information received in the course of investigation), s.29(4) (rendering the Ombudsman and his officers not compellable 'in any court or in any proceedings' in respect of any matter coming to his knowledge in the exercise of his functions) and s.18(3) and (4) (enabling the Ombudsman to obtain documents which would be protected in litigation).

As Judge Hassett observed in Deasey v Geschke (at 32): 'In my view, the hallmark of documents relating to investigations conducted by the Ombudsman is confidentiality'. In that case, his Honour found that similar material was exempt under s.35(1)(b). Galvin DP adopted Judge Hassett's remarks in Re Lapidos and Ombudsman (No 2) (at 152) where he found that a file note setting out information furnished to an officer of the Ombudsman by the Director of Prisons was exempt under s.35(1)(b)".

56. At page 93 of that decision, in dealing with a file note prepared by an officer of the respondent after inspecting files held by DHS, I said as follows :

"In my view, it makes no difference to the confidentiality of the investigative process of the Ombudsman whether information is obtained by the Ombudsman through the process of an interview or from a file obtained from a department".

57. I am not satisfied however, that disclosure of the information would be contrary to the public interest by reason that disclosure would be reasonably likely to impair the ability of either DHS or the respondent to obtain similar information in the future. No departmental officer was called for the purpose of giving this evidence to this effect and the material appears to be unremarkable. I note further that s.21 of the Ombudsman's Act empowers the Ombudsman to inspect departmental files. Accordingly, the document is not exempt.

58. Document 2 is a file note of a conversation between Mr McAuliffe and Mr John Joyce, Acting Regional Manager, Hume Region, DHS, dated 31 May 2000. An examination of the document indicates that it records information obtained by Mr McAuliffe during the discussion. For reasons similar to those given in relation to document 1, the information was communicated in confidence for the purposes of s.35(1)(b).

59. I am satisfied that the disclosure of the material would be contrary to the public interest by reason that it would be "reasonably likely to impair the ability of the respondent to obtain similar information in the future". The Ombudsman could resort to his coercive powers bestowed by s.18(1) of the Act. However, as Galvin DP observed in Re Lapidos and Ombudsman No 2 (1987) 2 VAR 148 at 154, information voluntarily given may come from an unexpected source and resort to the coercive powers may not result in as a full a flow of information as might have been provided without coercion. Accordingly, the material is exempt under s.35(1)(b).

60. I have considered the applicant's submission that a distinction should be drawn between communication with people the subject of his allegations and other informants. I accept that in some circumstances, the respondent's ability to obtain similar information might not be impaired if the material was released. I do not accept that this is the case here.

61. Document 3 is a note of a telephone discussion between Mr McAuliffe and Mr Djoneff dated 31 May 2000. Document 4 is a note of a telephone conversation between Mr McAuliffe and Mr Pullen, Chief Executive Officer of the hospital. Document 5 is a note of a telephone conversation between Mr McAuliffe and Mr John Webb dated 30 May 2000. Each of these document is exempt under s.35(1)(b) for the same reasons as Document 2.

62. Mr Flemming gave evidence that document 6 is a list of potential questions prepared by Mr McAuliffe. As the list of questions was attached to a facsimile, it would appear that the questions were sent to a witness. Exemption was claimed for the document under s.30. I am satisfied that the document falls within s.30. Disclosure of the material would disclose matter in the nature of advice prepared by Mr McAuliffe to himself to assist him in carrying out his investigation. It is not in my view necessary that the document in question be, for the purposes of s.30, a communication from one officer to another officer or to a Minister. As Deputy President Macnamara found in Re Mildenhall and Department of Education (1998) 14 VAR 87 at 90, a personal aide memoir whose release would disclose matter in the nature of advice and recommendation would be exempt under s.30(1)(a). I am also satisfied that release would disclose advice for the purposes of the deliberative processes of the Ombudsman's office in that the investigative process conducted by the Ombudsman is a deliberative process: see Re Lapidos and Ombudsman (No 2) at 150 and Deasey v Geschke (at 38).

63. In relation to s.35(1)(b), I am satisfied that disclosure of Document 6 would be contrary to the public interest in that it would be likely to lead to confusion and unnecessary debate. Whilst the questions appear to have been asked of a potential witness, it is not clear whether all the questions asked and whether the answers were followed up further by Mr McAuliffe. The applicant said in evidence that he wished to assess the quality of the questions posed. In my view, in the circumstances which I have outlined, a fair assessment of the quality of questions could not be made by the applicant. Accordingly, the material is exempt under s.30.

64. Document 7 is a file note dated 25 May 2000 made by Mr McAuliffe. Exemption for it is claimed under s.35(1)(b). In part, the note records Mr McAuliffe's thought processes in relation to the provision of files by DHS. It also contains factual material and in small part, some information provided by Ms Robyn Tumelty of DHS. The information provided by Ms Tumelty meets the description "information or matter communicated in confidence". For the reasons similar to those given in relation to document 1, however, I am not satisfied that 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 respondent to obtain similar information in the future. The information provided by Ms Tumelty was of a routine nature concerning a procedural matter and I am not convinced that an officer of an agency would not provide this information freely. The remainder of the document, being the factual material and that recording Mr McAuliffe's thought processes do not fall within s.35(1)(b) as it is not information or matter communicated in confidence.

65. Initially, exemption was also claimed for the document under s.30 but as I understand it, during the course of the hearing, the respondent withdrew its claim under that section. If s.30 had been claimed, I would not have found that the exemption was made out. Only part of the document would fall within s.30(1)(a) being the material that reveals Mr McAuliffe's thought processes. I am not satisfied that it would be contrary to the public interest to release it pursuant to s.30(1)(b), however. On its face it appears to be unremarkable and of a routine nature. In my view, the public interest in the applicant having access to the document, relating as it does to his concerns, outweighs the public interest in protecting the deliberative processes of government. Accordingly, Document 7 is not exempt.

66. Document 10, being a letter from the Senior Assistant Ombudsman, Mr Seamer, to Mr Pullen of 19 January 1999, has been released save for a small portion of the first paragraph. One of the exemptions claimed for the withheld material was under s.33. I am satisfied that the withheld material concerns another person's personal affairs. In considering whether disclosure of the material would involve the unreasonable disclosure of information relating to that person's personal affairs, it is necessary to balance the public interest in protecting the other person's right to privacy on the one hand and the public interest in disclosure of the information on the other.

67. In the present case, the material does not appear to be of a sensitive nature, and it is not apparent from reading the document or from any of the other material before me that the person concerned would have any objection to the material being released. Further, there was no material before me to suggest that disclosure of the information would or would be reasonably likely to endanger the life or physical safety of any person for the purposes of s.33(2A).

68. Section 35(1)(b) was also claimed for the material. The material, in my view, would not divulge information or matter communicated in confidence but rather the opinion and comments of Mr Seamer.

69. If I am wrong and the material does divulge information of this nature, I am not satisfied that disclosure would be contrary to the public interest for the purposes of s.35(1)(b). The material refers to a person, without providing any information in relation to that person and the highest the respondent's case could be put is that disclosure of the material would divulge that Mr Pullen wrote a letter to Mr Seamer regarding that person. This would hardly be surprising in the circumstances of this case. Accordingly, the document is not exempt.

70. It is not clear from the material before me whether the respondent gave notice to the other person of their right to intervene in the proceedings in accordance with s.53A of the FOI Act. In the circumstances, I will direct that the Registrar of the Tribunal give notice to the other person that access has been granted to the material in dispute. Further, I note in accordance with s.53A(4) that access does not take effect until 28 days after the date upon which the order is made.

71. Document 11 is a letter from Mr Pullen to Mr McAuliffe dated 15 January 1999 marked "Private and Confidential". It comprises information provided by Mr Pullen to Mr McAuliffe and falls within s.35(1)(b) for reasons similar to the other documents found to be exempt under the section.

72. Document 12 is a file note of a conversation between Mr McAuliffe and Mr Terry Garwood dated 14 January 1999 and also with Mr Pullen, apparently on the same date. Document 14 is a file note dated 13 November 1998. In part it records a conversation between Mr McAuliffe and Mr Garwood. For reasons similar to those given in relation to the other documents of this nature, the material falls within s.35(1)(b) and it is exempt.

THE ADDITIONAL CLAIM FOR EXEMPTION UNDER S.35(1)(a)

73. Insofar as the claim for exemption is made by the respondent, in the alternative, under s.35(1)(a), that claim is only relevant to documents 1, 7 and 10. In my view, Document 1 would not, if released, disclose matter in the nature of opinion, advice or recommendation for the purposes of s.30(1)(a). Even if it met the description, the evidence does not establish that it would be contrary to the public interest to release the material. In relation to Document 7, as I indicated earlier in these reasons, it does not fall within s.30 of the FOI Act. Document 10, as I indicated earlier, does not meet the description information or matter communicated in confidence. If I am wrong and it does meet that description, I am not satisfied it falls within s.30(1)(b). The comments and opinion expressed by Mr Seamer are unremarkable and I am not satisfied that release of the material would, in any way, detrimentally affect the deliberative processes of government. In particular, the evidence does not establish that release would have the effect of making it less likely that Mr Seamer would express less candid opinions in the future.

74. Pursuant to s.50(4) of the FOI Act, the Tribunal has the power to decide that access should be granted to an exempt document where it is of the opinion that the public interest requires that access to the documents should be granted under the Act.

75. The applicant submitted the following public interest grounds :

"The Parliament and People of Victoria have established the Office of Ombudsman. The Ombudsman, (The Commissioner for Administrative Investigations) has been given the authority to review the administrative acts of Ministers acting on recommendations from their Departments, as well as administrative decisions of Departments themselves and other bodies accountable to Parliament.

The Ombudsman has been given the power to investigate complaints about administrative decisions to ensure

* that administrative decisions are carried out in accordance with the due process of law and of natural justice;

* that any discretionary powers delegated by Parliament are exercised in a just and reasonable manner;

* that if there is evidence of impropriety in the administrative processes, the Ombudsman will make his findings known to the Minister and make recommendations to redress the failure of an agency.

It is in the Public Interest that the Ombudsman in his investigations also meet the same criteria of acting in a just and reasonable manner, in accordance with the rule of law and according to due process of law.

If there is evidence of procedural impropriety in the investigative processes followed by the Ombudsman in this case, claims of exemption for documents related to this case should be over-ruled in the public interest".

76. In his written submissions filed on 5 July 2002, the applicant submitted that because the application for review was one of the last in which it would be possible to test a number of serious concerns about the Ombudsman's fairness and procedural propriety, it became a matter of significant public interest.

77. The respondent's statement of Heads of Public Interest included the following :

"1. There is a public interest in ensuring that any investigations undertaken by the Ombudsman and his staff in respect of a complaint are conducted with the complete cooperation and candour of officers of the State or its agencies or any other persons with relevant information.

2. There is a public interest in persons providing all relevant information to the Ombudsman or his staff and where necessary in confidence to ensure that the investigation is able to determine the merits of any complaint and where appropriate, make recommendations.

4. There is public interest in not disclosing information provided to the Ombudsman in confidence so that persons in the future are willing to cooperate and provide confidential information relevant to a complaint.

5. There is a public interest that in the course of an investigation members of the Ombudsman's office can, while maintaining confidentiality, record all relevant information and make personal assessments and record opinions and give advice and make recommendations to the Ombudsman in response to the complaint.

7. There is a public interest in not disclosing the internal working documents of the Ombudsman and his office which record the conduct of investigations and assessments of persons and complaints to ensure that officers can reach independent decisions without concern about possible access to this material by the complainant, agencies or third persons. To release such documents may inhibit the effective and efficient operation and functions of the Ombudsman and his office.

8. There is a public interest in preserving confidentiality of draft documents which may mislead the complainant or other persons if released.

9. There is a public interest in not disclosing confidential personal information which relates to third parties and is received in the course of an investigation by the Ombudsman".

78. I have considered carefully the detailed submissions and evidence of the applicant outlining his criticisms of the Ombudsman's investigation into his complaint. Whilst I make no findings as to the merits of his dispute with the hospital, DHS, the Minister and the Ombudsman, I accept the sincerity of his concerns and that he believes he has suffered a grave injustice. However, an examination of the material before me including the exempt documents does not reveal that the Ombudsman's investigation has been carried out in an unfair manner or that there is evidence of procedural or impropriety in the investigative processes of the Ombudsman. Further, and importantly, there does not appear to be anything in the exempt material which would advance the applicant's understanding of the basis upon which the Ombudsman reached his decision, or which would reveal or address evidence of any alleged impropriety or procedural unfairness.

79. The applicant alleged that the Ombudsman was wrong in law in relation to several matters and, as such, his investigation was flawed. Release of the withheld material would not assist in testing the applicant's assertions in this regard.

80. In the Court of Appeal decision of Secretary, Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, their Honours Tadgell, Phillips and Batt JJA considered the operation of the public interest override constituted by s.50(4). Phillips JA concluded that the public interest override was invoked only in a case of imperative necessity. The word "requires" in the sub-section means "demands" or "necessitates" (see 342; 372-373). Further, the establishment of an exemption with respect to a document created a presumption against release under the public interest override (see 350; 381). I am not satisfied that the public interest in favour of disclosure in the present case is so strong as to demand that access be granted.

81. I accept that without access to all of the material to which the Ombudsman had access, the applicant may not be able to fully assess the basis of his findings. There are a range of mechanisms to procure public accountability of the organs of government. The conduct of those agencies over which the Ombudsman is given supervisory jurisdiction is subject to the FOI Act and is also generally subject to ministerial control, the Minister is responsible to Parliament, and in most cases subject to audit by the Auditor-General. It is far from clear that the entire range of public accountability should be applied a second time to the Ombudsman's inquiry and indeed, the fact that there is no effective statutory means of reviewing the Ombudsman's inquiry is an indication of a policy that there must be a means of ending disputation.

82. The applicant made several recommendations concerning the Ombudsman, including that "Parliament be asked to reconsider the role of FOI as a means of ensuring a modest level of judicial review and accountability over the Ombudsman's office". Those recommendations are not relevant to the matter under review and it is not appropriate that I comment on them.

83. The applicant also submitted that the respondent failed to comply with the filing of statements of public interest grounds, statements of evidence and statements of legal contentions within the time ordered by the Tribunal at a Directions Hearing on 27 July 2001. He said that the respondent did not serve those documents on him until 13 June 2002, giving him only six days to prepare his final submissions. He submitted that the delay gave him little time to "think through my response to two facts which emerged from the statements I received". These matters are not, in my view, relevant to the public interest considerations under s.50(4). Suffice to say however, that the applicant did not seek an adjournment of the hearing to enable him to prepare better for the hearing and it is not clear on the material before me that he suffered prejudice because of the late filing of the material or that the outcome of this case would have been different if the material had been filed earlier.

84. In view of my findings, the decision of the respondent is set aside in relation to Documents 1, 7 and 10. The decision under review is affirmed in relation to Documents 2, 3, 4, 5, 6, 11, 12 and 14. I reserve the question of costs.