1. The decision of the Acting Public Access Deputy Commissioner is affirmed.

1. I direct the principal registrar to make the confidential exhibit documents available for collection by Western Health.

1. This case is about whether names redacted from a document are exempt from disclosure under the Freedom of Information Act 1982 (the FOI Act).
2. In September 2017 the applicant, Mr Daniel Shore, made a request under the FOI Act to the respondent, Western Health, for access to "all medical records, all administrative files and all correspondence to from or about" himself, and "all memos, letters and emails to from about or regarding" himself.
3. Western Health released a large number of documents to Mr Shore, and, after a decision of the Acting Public Access Deputy Commissioner on 28 June 2018, released more documents.
4. One document remains in dispute.
5. That document is a record, from a data base maintained by Western Health, of a telephone complaint made by Mr Shore, about the way he was treated for a knee injury at the health service in mid-2015.
6. The record of the telephone complaint has been released to Mr Shore in part, with the names of all Western Health employees, including initials or other variations of names, redacted.
7. Mr Shore seeks access to an unredacted copy of this document.
8. Western Health contends that the names are exempt under s 33 of the FOI Act, on the basis that the names are personal affairs information, and disclosure would involve the unreasonable disclosure of information relation to the personal affairs of that person. Western Health says that the names are of employees of Western Health who have recorded their names in the data base in the expectation that their personal affairs information would not be disclosed.
9. Mr Shore's application is made under s 50 of the FOI Act. That section provides that an applicant may apply to the Tribunal for review of a decision of the Information Commissioner refusing to grant access to a document in accordance with a request. The Acting Public Access Deputy Commissioner is a delegate of the Information Commissioner.
10. I conducted a hearing of Mr Shore's application on 31 May 2019. I heard submissions from Mr Shore, and from counsel for Western Health, Mr White. I also heard evidence from Ms Nicola Caras, who is a legal officer employed by Western Health.
11. As is usual in FOI proceedings, I received an unredacted copy of the document. I also received copies of correspondence sent by each of the individuals to Western Health indicating that each objected to their names being released.

1. In the hearing, Mr Shore raised several concerns.
2. The background to his application is that, in or around July 2015 he suffered an injury to his knee. Mr Shore says that his GP referred him to have some x-rays taken, and the GP considered that these showed a fracture of the patella. Mr Shore says his GP recommended that he attend the Emergency Department of Western Health to have a specialist doctor review his injury.
3. Mr Shore says that when he attended the Western Health Emergency Department, with the x-rays his GP had ordered, Mr Shore was initially seen, not by a doctor, but by a physiotherapist. Mr Shore says the physiotherapist did not at first disclose to Mr Shore that they were a physiotherapist and not a doctor, and then only did so when challenged by Mr Shore. Mr Shore says he eventually saw a doctor but asserts he did not receive proper treatment. Mr Shore says he was concerned that the physiotherapist was "masquerading" as a medical practitioner, and might endanger other patients. Mr Shore made a complaint to Western Health, and eventually received further health services. The record of this complaint and the action taken is the document that Mr Shore wishes to receive without redactions.
4. In March 2017, Mr Shore made an application under the FOI Act to Western Health for "all records for 2015 and 2016 and 2017 (if any)".
5. He was not satisfied with Western Health's response to that request, because the documents provided to him did not include his radiology records, nor the record of his telephone complaint.
6. He made a further request in September 2017 for "all medical records/files and all administrative files, and all correspondence to/from/about Daniel Shore and all internal/external memos/notes/letters/emails to/from/about/regarding Daniel Shore."
7. Ms Caras gave evidence for Western Health which helped to provide some further context for the document in question, and Mr Shore's concerns.
8. Ms Caras explained that the record of Mr Shore's complaint was not released to Mr Shore in response to his FOI request, because that request had been for "medical records", and Western Health did not, at that time, consider records of complaints about the provision of health services to form part of a patient's "medical records". That was an unfortunate delineation, and it is appropriate that Western Health has amended their practices and now treats such complaints as forming part of a patient's "medical record".
9. Ms Caras also explained that although radiology reports are included in a patient's medical record, Western Health's practice has been not to release the images themselves when responding to FOI requests for a patient's medical records. She said this is partly because the images are stored in a different data base which is difficult to access, partly because many applicants are not seeking those images, and partly because the images themselves are very large and difficult to provide in email.
10. The existence of a policy or practice that the health service would not, as a matter of course, clarify this with applicants seems to me to be incompatible with an agency's obligations under the FOI Act to clarify requests with applicants. While it may be, as Ms Caras suggested, that many patients do not seek such images, it is plain that they are "medical records". Mr Shore's dismay at having to go to additional efforts to get Western Health's cooperation to release such images to him is understandable. Nevertheless, these issues are not matters for me to determine in this proceeding, as my review cannot include the sufficiency of Western Health's search.[1]
11. Mr Shore stated that he wished to make complaints to the relevant State Board(s) under the Health Practitioner Regulation National Law (Victoria) Act 2009 about the treatment he received at Western Health, and he believes he needs the names recorded in the complaints data base to do this effectively.
12. Although Mr Shore has now received his medical treatment records from Western Health, these have not been sufficient to provide him with the name of the person he saw. Western Health acknowledged that they had been unable to identify the name of the doctor who saw Mr Shore, because record keeping at that time provided only for the doctor's signature; the signature on the record is not legible, and is not recognised by current employees of the health service.
13. Mr Shore says that, as a consequence of Western Health not providing all the documents he had expected, he "lost confidence" in Western Health's ability to give appropriate responses to FOI requests, and this is one reason he seeks release of the redacted names.

1. The document that is the focus of this proceeding is an extract, 5 pages long, from Western Health's electronic data base used for recording "feedback" to the health service. This data base is where complaints, commendations and thanks from patients and the public are recorded. The extract is a print out of the record of Mr Shore's complaint, and the action taken in dealing with Mr Shore's complaint.
2. The document has a number of fields. On the first two and a half pages are fields where information is recorded about the person who gave the "feedback". Those fields include the contact details of the person who called, that is, Mr Shore, details of the circumstances giving rise to the feedback, and classification of the complaint.
3. At the bottom of the third page of the print out, there is a heading "Journals" under which action taken and responses are recorded. It is in this part that the names of individuals other than the complainant or patient may appear. There are seven entries under the heading "Journals".
4. In each of the seven entries, the last line begins "Created by" followed by a name, which has been redacted, and the date and time. Western Health confirmed in the hearing that the person whose name appears here is a Patient/Consumer Representative (PR), an administrative role in the Quality and Safety Division of Western Health. That person has since retired.
5. At the very end of the printed record there is an eighth entry, under the heading "Reporter", which records the "reporter" was a Patient/Consumer Representative, and records "Reporter First Name" and "Reporter Surname". Western Health confirmed that it is the now retired PR's name that appears in this entry.
6. The entries under the heading "Journals" also include personal information of people other than the PR.
7. The first entry under "Journals" is dated 6 October 2015, at 16.52. It records that the Feedback Report had been "forwarded to [name 1] for follow up and response by the 13/10/2015".
8. The remaining entries are all dated 29 October 2015, as follows:

• 13.44: Hi [name 1], Please see below. My apologies sent to wrong email address. Patient has called can I organize a follow up appointment please. Last seen in the SH Fracture clinic. [initials].

• 14.31: Approved for appointment by [name 1]. Booked for 4/11/2015, 9am. Patient notified.

• 14.58: The entry records that the PR had contacted Mr Shore to advise him of his appointment, Mr Shore's response to this information, and the notation "Given Managers name and information to contact HSC." No personal information is included in this entry, or the next.

• 15.24:"Forwarded to NUM OPD at SH to ensure patient is reviewed by a senior orthopaedic doctor on the 4/11/2015."

• 15.53: "Patient response forwarded to [name 1] by email."

• 16.17: "Advised by email from [name 1] that [name 2] to review patient in clinic on the 4/11/2015. [initials]"

1. The persons identified as name 1 and name 2 are both medical practitioners. It appears from the entries that name 1's role was to authorise the making of an appointment with name 2. There is no indication in the record that name 1 had any other involvement in Mr Shore's medical treatment.
2. As I have stated earlier, Western Health asserts that none of the names in the document should be released. Mr Shore argues that each name should be released.

1. The Tribunal's role in determining applications for review of FOI decisions is to look at the documents in dispute, take account of the evidence, and determine whether, on the face of the documents, they fall within any of the exemptions claimed by the agency.

1. The question for the Tribunal is whether disclosure of the names recorded in the document would involve the unreasonable disclosure of the personal affairs of those individuals named in the document.
2. Section 33(1) of the FOI Act provides that a document is an exempt document if its disclosure under the FOI Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).
3. Section 33(9) provides that "information relating to the personal affairs of any person" includes information that identifies any person or discloses their address or location, and any information from which any person's identity, address or location can be reasonably determined. It is well established that the name of an individual is information relating to the personal affairs of those individuals.
4. The effect of these provisions is that, although the purpose of the FOI Act, is to facilitate public access to public documents, it is not intended that this occur at the expense of the privacy of individuals.
5. The Tribunal's task is a balancing exercise, between the right to personal privacy of an individual whose personal affairs may be disclosed by granting access to the information, and the object of the FOI Act to extend as far as possible the right of the community to access to information in the possession of the Government or agencies.[2]
6. I note that it has long been accepted that agencies of government should not simply assume unreasonableness as a matter of course. Rather, the FOI Act requires disclosure unless the agency is affirmatively satisfied, for some tangible reasons, that disclosure would be unreasonable in the particular circumstances of the case (assuming there are no other relevant exemptions). [3]
7. In Victoria Police v Marke[4], Maxwell P summarised the considerations relevant to whether disclosure of personal information would be unreasonable, as follows.

The sensitivity (past and present) of the personal information

Any view about disclosure expressed by any person to whom the personal information relates

The relationship between the personal information and any other information in the document

How the personal information was obtained by the agency (whether voluntarily or involuntarily, and whether or not in confidence)

Whether and to what extent the personal information was already known to the applicant or is otherwise available to the public

The nature of any interest which the applicant can demonstrate in the information (disclosure is less likely to be unreasonable when the applicant's motives are commendable).

• whether any public or important interest would be promoted by release of the information;[5]

• 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 is also a relevant consideration.[6]; and

• whether the person to whom the information relates objects to the information being disclosed.[7]

1. In this case, each of the three individuals concerned has been asked, via the process set out in s 53A of the FOI Act, to indicate whether they object to their names being released. Each has indicated that they object to their names being released.[8]
2. Western Health acknowledged, in written submissions dated 21 May 2019 that "at least one of the redacted names has been provided to the Applicant as part of his unredacted medical record". Western Health's written submission went on to say "no inference as to the genuineness of Western Health's privacy concerns should be drawn from the fact that the redacted names may have also appeared in the medical record. Practical considerations, including especially the large administrative burden involved in redacting the names of all staff appearing in all medical records, relevantly informs Western Health's approach to releasing staff names in medical records.".
3. In making this submission, Western Health is, in effect, saying that its practice is that the names of employees may be released, as a matter of course, when medical records are released, but a different approach is taken to the same names when they are recorded in a different kind of document.
4. I note, in passing, that, in determining whether to release personal information, agencies, such as Western Health, must, in each case, consider whether that release would be unreasonable under s 33(1) and they must also consider whether the release would be contrary to ss 33(2A), (2AB) and (2AC). Even though s 33(2C) relieves an agency of the requirement to notify the individuals where it would not be practical to do so, the agency must always consider the risk to life, personal safety and family violence. An agency is never relieved of the obligation to make a case by case assessment of whether it is unreasonable to release personal information.
5. I put to one side Western Health's submissions on possible differences of approach between release of medical records and other documents. Such practices are not relevant to my decision. I must make an assessment of whether release would be unreasonable in each case.
6. In its outline of submissions, and in the hearing, Western Health put some emphasis on its contention that it would be unreasonable to release the names of the employees because they are all employed in non-executive roles in Western Health. This submission relied on recent observations of the Tribunal where the presiding members have agreed with the proposition that "an approach regarding disclosure of the names of staff holding non-executive positions as unreasonable disclosure is the correct and preferable approach." [9] The cases in which this proposition has been endorsed have all related to the personal information of employees in departments in the Victorian Public Service.
7. I do not find the distinction between executive officer and non-executive officer to be helpful in the context of a health service. Unlike departments, and other agencies in the Victorian Public Service, where the majority of management positions are held by executive officers, there are few such positions in Health Services. Indeed, Ms Caras gave evidence that, although there are over 7000 health service employees, only the Chief Executive Officer of the Health Service and the four direct reports to the Chief Executive Officer, who manage IT, Finance, Operations and Quality, could be considered "executive officers".
8. To my mind, the organisational structure of a Health Service such as Western Health is not at all directly comparable to that of departments in the Victorian Public Service. I do not think the question of unreasonableness should, in the context of this case, be determined by reference to job title. I must consider whether the disclosure would be unreasonable in the particular circumstances of this case,[10] and having regard to the factors set out in Marke.
9. Western Health also asserted that, because the feedback data base is for internal use within the health service, all staff making entries in the feedback data base expect that their personal information will be exempt from release. No evidence was placed before me to support this. It appears that the expectation is to be inferred from the custom and practice of Western Health in dealing with requests under the FOI Act. Given that Western Health says medical records are routinely released without redacting names of staff, and it says it has now changed its practice to include records of complaints when an FOI request is made for medical records, I do not give much weight to this.
10. For completeness, I confirm that, on the evidence before me, there is no basis to make a finding relevant to s 33(2A) of the FOI Act that disclosure of the personal information would, or would be reasonably likely to, endanger the life or physical safety of any person. I say this because s 33(2A) requires that in deciding whether the disclosure of a document under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person, I must take into account, in addition to any other matters, whether the disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person.

1. In this case the following matters weigh strongly in favour of the exemption applying to the name of the PR who made the entries in the data base.

1. The PR's role was an administrative support role within Western Health. 2. The PR has since retired from this role and is no longer employed by Western Health.

1. The PR does not consent to their name being released.

1. The PR was not involved in the provision of medical care to Mr Shore. 2. Mr Shore's reasons for seeking disclosure of the names in the document relate to his intention to make a complaint about his medical treatment, but the PR was not involved in Mr Shore's treatment.
2. I do not consider Mr Shore's reasons for wanting to know the person's name outweigh the strong factors in favour of applying the exemption, particularly when the person does not wish their name to be disclosed.
3. For these reasons I conclude that disclosure to Mr Shore of the name of the person I have referred to as the PR would be an unreasonable disclosure of personal information and the exemption in s 33 of the FOI Act applies.

1. Mr Shore argues that any health practitioner should not be protected from having their name disclosed, particularly in the context of health service delivery, because health practitioners are regulated under the Health Practitioner Regulation National Law (Victoria) Act 2009, and are by virtue of that regulation, already in the public arena. I do not agree that a universal principle of this kind should be applied. My task is to consider whether disclosure would be unreasonable in the circumstances of this case.
2. Mr Shore sought to argue that the information is not particularly sensitive, and that it has an important relationship to the other information in the document, namely, that it would identify who authorised the appointment, and with whom the appointment was arranged. For the reasons I set out below, I do not agree.
3. Mr Shore says that he wants to be able to check on the website of the Australian Health Professions Registration Authority whether the doctors he saw were appropriately registered.
4. But, the name of the person who authorised the appointment is not relevant to the question of whether the doctors Mr Shore saw were appropriately registered.
5. The name of the person with whom the appointment was arranged for 4 November 2015 reflects only the arrangements that were made on 29 October 2015, when the entry was made. It does not mean that this was the person Mr Shore actually saw on the day.
6. Further, Mr Shore said that his concerns arose because in July 2015 he was seen by a person who was not a doctor but a physiotherapist. The document at issue in this proceeding is a document generated several weeks after that event, in response to Mr Shore's complaint about his earlier treatment. The record of the complaint, and the action taken of arranging a fresh appointment for 4 November 2015, for the purpose of ensuring that he had appropriate follow up for his injury, has no relationship to the record of the medical practitioners he saw in July 2015.
7. Mr Shore, understandably, expressed frustration that Western Health has not been able to assist him to identify the name of the doctor he saw in July 2015. However, Mr Shore's frustration with Western Health is not, of itself, a reason to disclose the names of other individuals.
8. Mr Shore agreed that he had the name of his treating doctor, as this was on the label of his medical record. Mr Shore conceded that he could make a complaint to the Medical Practitioners Board about his medical treatment at Western Health on the basis of the medical records already supplied to him, even though these do not include the name of the individual whose initials cannot be deciphered.
9. Importantly, Mr Shore gave no evidence in the hearing that he was dissatisfied with the medical treatment he received on 4 November 2015. It appears that after this appointment, he was referred to, and attended, several appointments with the physiotherapy department.
10. Even if Mr Shore's objective were to make a complaint about the treatment he received on 4 November 2015, that complaint would, necessarily, be about the treatment given by the individuals who saw him. Their details are in the medical records already released to Mr Shore. The details of the person who authorised that an appointment be made for 4 November 2015 would not be relevant to a complaint about the medical treatment received. The details of the person with whom Mr Shore was to have an appointment would only be relevant if that person was in fact the person Mr Shore saw. I do not know whether that was the case, but this does not matter, because Mr Shore's medical record already tells him the names of the medical practitioners who treated him.
11. I am not satisfied that Mr Shore's purpose will be advanced by release of any of the names in the document. Mr Shore already has been provided with the name of his treating doctor. Both individuals have objected to disclosure of their names.
12. I find that disclosure to Mr Shore of the names of the two medical practitioners would be an unreasonable disclosure of personal information.

1. Accordingly, the exemption in s 33 of the FOI Act applies to all the names of Western Health staff in the document. I have affirmed the decision of the Acting Public Access Deputy Commissioner.

[1] Only the Information Commissioner has this power, under section 49KA of the FOI Act.

[2] Re Page and Metropolitan Transit Authority (1988) 2 VAR 243 at 245-246.

[3] AB v Department of Human Services [2001] VCAT 2020 at [38] per Judge Strong VP.

[4] [2008] VSCA 218 at [19].

[5] Vaughan v Department of Sustainability and Environment [2004] VCAT 1562 at [66] p 2-3314.

[6] Hanson v Department of Education and Training [2007] VCAT 123 at [16].

[7] Page v Metropolitan Transit Authority (1988) 2 VAR 243 at 246_._

[8] I note that the fact that the person does not want the information disclosed is a relevant consideration to be taken in to account but is not determinative -see Marke v Victoria Police [2007] VSC 522 at [45]. Mr Shore asserted that Marke should not apply here, but did not elaborate his reasons for this assertion.

[9] In decisions such as Smeaton v Victorian WorkCover Authority [2018] VCAT 914 and Coulson v Department of Premier and Cabinet [2018] VCAT 229.

[10] AB v Department of Human Services supra.