(1) The whole of the part of the contract for the provision of pathology services to Western Health by Dorevitch ("the contractor") which sets out the turnaround time requirements applying to the contractor for each pathology test performed by the contractor under the pathology services contract. This request relates to such turnaround time requirements established under the pathology services contract or howsoever established.

(2) The whole of the part of the contract for the provision of pathology services to Western Health by the contractor which sets any penalty that applies under the pathology services contract that will, or may, be imposed on the failure of the contractor to meet turnaround time requirements under the contract.

1. Western Health found that all documents falling within the terms of the request were exempt. Mr Elliott then applied to the FOI Commissioner for review of that decision. On 25 February 2015, the then FOI Commissioner decided to grant access to certain parts of each of document (1) and document (2).
2. Dorevitch applied to this Tribunal pursuant to section 50(3A) of the Act which enables a business, commercial or financial undertaking to apply to the Tribunal for review of a decision to "disclose a document referred to in section 34 contrary to the undertakings view".
3. The hearing proceeded before me on 27 and 28 October 2015. Mr Pizer of Queens Counsel appeared for Dorevitch, Ms Coleman of Counsel appeared for Western Health and Mr Elliott appeared in person.
4. I took into account all of the information contained within the Tribunal files and was given a copy of the disputed documents. I heard evidence from Mr Neville Moller who is the CEO of Dorevitch. I also heard evidence from Mr Elliott. I received helpful submissions from Mr Pizer, Ms Coleman and Mr Elliott.
5. Dorevitch contends that:

1. some of the information is not relevant to Mr Elliott's FOI request as it does not fall within the terms of the original FOI request; 2. the relevant information is exempt under section 34(1)(b) of the Act; and

1. the public interest does not require that access be granted to any of the relevant information under section 50(4) of the Act.
2. Western Health largely supports Dorevitch in its contentions.
3. Mr Elliott contends that:

1. All of the information found by the FOI Commissioner to be relevant is relevant to his request; 2. The relevant information is not exempt under section 34(1)(b) of the Act; and

1. The public interest requires access be granted to the relevant information under section 50(4) of the Act.
2. I turn then to a consideration of these issues.

Do the documents in dispute fall within the terms of the original FOI request?

1. The documents are the Pathology Services Agreement (Document 1) and the related Schedule of Services (Document 2). These documents do not solely relate to "turnaround times". The Freedom of Information Commissioner appropriately noted that the documents were not therefore in their entirety within the scope of Mr Elliott's original request. She identified what she considered to be the relevant portions of each of documents 1 and 2 in appendix 1 to her Notice of Decision and found that the balance of each document was outside the scope of Mr Elliott's request and did not form part of the review before her. A dispute arose in these proceedings, however, as to whether she should have excluded further material as outside the scope of the request.
2. If I determine that (further parts of) the documents fall outside the terms of the original request, the consequence is, that that material no longer forms part of the disputed material. (There was no counter contention placed before me that relevant material had been omitted to be considered by the FOI Commissioner and I also positively satisfied myself that there was in fact no such omission).
3. I turn then to a consideration of whether Dorevitch is correct in its contention that more of the material is not relevant to Mr Elliott's request.
4. In addressing this issue, the parties spent some time in submissions on what was meant by "turnaround time" and "turnaround time requirements" in the request.
5. The parties largely agreed that the definition of "turnaround time", for the purpose of Documents (1) and (2) (as set out in clause 4.17 of the Request for Tender and attested to by Mr Moller in his statements and evidence before me) is "the time taken from the point when the specimen is date-stamped on arrival in the laboratory to the time the result is available electronically at the site where the test was taken".
6. Mr Pizer submitted that the broader expression 'turnaround time requirements applying to the contractor...' in Mr Elliott's request referred to a specification of the maximum amount of time which should ordinarily be taken to perform the test. In other words, that the request was for information pertaining to the contractual benchmarks. In Mr Pizer's submission, peripheral matters such as sample collection, or delivery times, or the way in which samples are delivered to the laboratory did not form part of the request.
7. Mr Elliott contended that the expression "turnaround time requirements" in his request was always intended to be used in a broad sense as a reference to "turnaround time" matters generally relevant to the agreement. Mr Elliott agreed that the expression "turnaround time" is well known and understood in the pathology and public health sector, but he disagreed that his request for "the turnaround time requirements applying to the contractor" was limited in the way suggested by Mr Pizer.
8. I did not accept the contentions of Mr Elliott that any references in the documents to "turnaround times", no matter how peripheral, were included in his request. I accept that the words of the request are restricted to the "turnaround time" benchmarks (including penalty benchmarks) as they apply to Dorevitch. That Mr Elliott may have had something different in mind when he framed his request is not to the point.
9. Having made this finding I therefore accepted the submissions of Dorevitch that information relating to delivery times for the sample to the laboratory were not, and could not be, construed as being relevant to the request because they do not form part of the "turnaround time", as defined. Similarly, information recording Dorevitch's actual performance as against those benchmarks was not, and could not be, construed as being relevant to the request.
10. Nevertheless, there were several clauses which were in their nature ambiguous. Given that the object of the Act is to promote access to information, I was not prepared to exclude as irrelevant, any information which did appear to me could relate to "turnaround time" benchmarks, even if there was some ambiguity.
11. I turn then to the specific clauses, submitted by Dorevitch to be irrelevant to the request.

1. Dorevitch contended that clause 5.5 and clauses 5.7 to 5.10 in document 1 were not relevant to the request.
2. I agree that clause 5.5 is not relevant to the request. It says nothing about "turnaround time" requirements and does not fall within the terms of the request.
3. I found that clauses 5.7 and 5.9 were also not relevant to the request, dealing as they do with broader matters not related to "turnaround times".
4. I found however that clause 5.8 insofar as it relates to clause 5.10; and clause 5.10 itself, were relevant to the request, being provisions which set out a "turnaround time" requirement applying to the contractor.

1. Dorevitch contended that the following clauses in document (2) are not relevant to the request: 9.7.2 (except the third sentence), 9.11.10, 9.12.1.2, 10.1.1 (the introductory text and the second bullet point), 11.1.1 (the second sentence), 11.1.2 to 11.1.6 and appendix 5/4 key performance indicator for pathology testing (the second sentence of the second column, the second sentence of the fourth column, and the last four words of the fifth column).
2. I turn to a consideration of these clauses.
3. 9.7.2 - (except the third and last sentence) - I agree that this clause largely is not relevant to the request as it primarily relates to matters other than "turnaround time" requirements. However, I find that the last sentence is (albeit ambiguously) relevant to the request.
4. 9.11.10 - I agree that most of this clause is not relevant to the request however I find that the last sentence of this clause is relevant to the request and is included.
5. 9.12.1.2 - I agree that this clause is not relevant to the request. It does not set out "turnaround time" requirements, but deals with broader matters to do with the Western Health relationship.
6. 10.1.1 - (the introductory text and the second bullet point) - I find that this clause is not relevant to the request and does not deal with "turnaround time" requirements.
7. 11.1.1 - (the second sentence) - I find that this clause is relevant to the request.
8. 11.1.2 - I find that this clause is not relevant to the request.
9. 11.1.3 - I find that this clause is relevant to the request.
10. 11.1.4 - I find that this clause is relevant to the request.
11. 11.1.5 - I find that this clause is relevant to the request.
12. 11.1.6 - I find that this clause is relevant to the request.
13. Appendix 5 - fourth key performance indicator for pathology testing (the second sentence of the second column, the second sentence of the fourth column, and the last four words of the fifth column) - I find that this clause is not relevant to the request, it is dealing with a separate matter.

1. I find that the following clauses in document (1) are not relevant to the request and accordingly will not be considered by me as part of the material in dispute - clauses 5.5; 5.7 and 5.9.
2. I find that the following clauses in document (2) are not relevant to the request and accordingly will not be considered by me as part of the material in dispute - clauses 9.7.2 (except the third sentence and the last sentence); 9.11.10 (except the last sentence); 9.12.1.2; 10.1.1 (the introductory text and the second bullet point); 11.1.2; appendix 5 - fourth key performance indicator for pathology testing (the second sentence of the second column, the second sentence of the fourth column, and the last four words of the fifth column).

(b) Is the relevant information exempt under section 34(1)(b) of the Act?

1. Section 34(1)(b) relevantly states:

(1) a document is an exempt document if its disclosure under this Act would disclose information acquired by an agency... from a business, commercial or financial undertaking and the information relates to:

(b) other matters of a business, commercial or financial nature and the disclosure of the information would be likely to expose the undertaking unreasonably to disadvantage.

1. Section 34(2) allows me to take into account the following considerations in deciding whether disclosure of information would expose an undertaking unreasonably to disadvantage for the purposes of paragraph (b) above:

1. whether the information is generally available to competitors of the undertaking; 2. whether the information would be exempt matter if it were generated by an agency or minister;

1. whether the information could be disclosed without causing substantial harm to the competitive position of the undertaking; and

1. whether there are any considerations in the public interest in favour of disclosure which outweigh considerations of competitive disadvantage to the undertaking, for instance, the public interest in evaluating aspects of government regulation of corporate practices or environmental controls and - of any other consideration or considerations which in the opinion of the agency or minister is or are relevant.

1. There was some discussion in this case as to whether a concluded contract could ever be said to contain information acquired by an agency from an undertaking. The main dispute between the parties was however on whether in the circumstances of this case, the information had in actual fact been acquired.
2. In Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] VCAT 45; [2003] 19 VAR 363 at [19]- [20] Judge Bowman Vice President, said:

The real argument is whether the words 'information acquired' are applicable when the documents under consideration are concluded contracts. The applicant argues that such words are not, and therefore any attempted exemption pursuant to section 34 (1) falls at the first hurdle. The respondent argues, in essence, that there is no reason why a concluded contract cannot have within it information acquired within the meaning of the section.

There have been a number of decisions in relation to this point. Certainly it could not be said that there has been unanimity concerning it. However, I prefer the approach taken in Holbrook v Department of Natural Resources and Environment (1997) 13 VA 1 at [8]. I agree that the fact that a document is a concluded contract is not disqualified from exemption under s. 34(1). I agree that a term in a concluded contract may indeed be information of a business nature and that to rule that a concluded contract cannot fall within section 34(1) would be to read down the subsection considerably...

1. I agree with the conclusion reached by Judge Bowman, which I consider to be consistent with the wording of the section and the overall intent of the legislation and exemptions contained therein. This approach sensibly requires each case to be examined on its own merits to determine whether in fact an agency acquired information.
2. I turn then to a consideration of whether Western Health acquired information from Dorevitch.
3. Mr Elliott submitted that the "turnaround time" requirements were negotiated between the parties, rather than acquired by Western Health from Dorevitch. He submitted that there was no positive handing over of information from Dorevitch to Western Health. He led no evidence but tested the evidence called by Dorevitch.
4. Mr Moller gave important evidence on behalf of Dorevitch in this regard. He stated that the Request for Tender included a draft agreement and draft table of requested "turnaround times" for each pathology service to be incorporated into the Schedule of Services. I was shown a copy of each of these documents.
5. When Dorevitch lodged its response to the Request for Tender, Mr Moller said Dorevitch provided Western Health with confidential information pertaining to its business generally but significantly, relating to "turnaround times" and indicating that there would need to be discussion regarding the proposed "turnaround times". He said that Dorevitch subsequently, as a shortlisted tenderer, gave a presentation to Western Health which also made it clear that the "turnaround times" as set out in the draft documents were not acceptable.
6. Mr Moller gave evidence that when named as preferred tenderer, Dorevich accordingly met with Western Health and gave very specific information to Western Health about "turnaround times" based on the nature of each test, the equipment needed to deliver the service and the location of the testing laboratory. He said that the discussion took place over three days in late June 2011. Mr Moller attended the meetings with Dorevitch's finance manager and internal legal counsel.
7. As the parties went through each line of the "turnaround times", Mr Moller gave Western Health information based on his assessment of a range of different considerations including the nature of the test, the equipment needed to deliver the service and the location of the testing laboratory. In a number of instances, Mr Moller said he told Western Health that the proposed time was not feasible and explained why. He proposed alternative times based on the information provided. Usually, he said Western Health accepted the alternative. Although conceding that in some instances there was discussion, Mr Moller gave evidence that ultimately Dorevitch only accepted times feasible to Dorevitch. He gave evidence that the "turnaround time" requirements were thereby provided by Dorevitch to Western Health.
8. Having heard the evidence of Mr Moller, I accepted that the information in relation to the "turnaround times" and their feasibility was acquired by Western Health from Dorevitch.
9. The "turnaround times" in the final contract differ markedly from the proposed requirements in the draft agreement that formed part of the Request for Tender, lending substance to Mr Moller's evidence.
10. Western Health agreed that the evidence of Mr Moller was accurate.
11. No evidence was led by Mr Elliott to contradict Mr Moller's evidence.
12. During the meetings, Mr Moller said the parties also discussed the regime that would apply for any breach of the "turnaround times". The penalty regime was ultimately recorded in clause 5.6 of document (1). Once again Mr Moller said that the form of this clause changed from the original draft on the basis of information Dorevitch provided to Western Health as to what was a reasonable workable regime. It was submitted that in this context the information was acquired by Western Health from Dorevitch.
13. Having compared clause 5.6 of document (1) with clause 3 of the Request for Tender, I ultimately accepted Mr Moller's evidence, without which I would have concluded that the differences were the simple product of a negotiated settlement between the parties, rather than Dorevitch providing information to Western Health. I accept having heard the evidence that there are some inherent differences, which supported Mr Moller's evidence.
14. Once again I note that no contradictory evidence was led. Although Western Health filed no contentions and did not play an active role in the proceedings, it supported the contentions of Dorevitch and agreed that it acquired the commercial information from Dorevitch in relation to "turnaround time" requirements and the regime for breaches of those requirements.
15. The process of negotiation always involves a dynamic form of communication. This does not of itself preclude a finding that there has been an acquisition of information during the course of that process. Whilst there may have been other factors during the negotiations as to what the "turnaround times" under the contract would be, I accepted Mr Moller's evidence that the provision of and information given by Dorevitch was determinative.
16. I am satisfied that the information that was acquired by Western Health from Dorevitch is contained in:
17. Document (1) - clause 5.6.
18. Document (2) - lines 3 and 4 of clause 9.7.2, clause 9.15.2.1, line 1 of clause 11.1.1; appendix 4 and the relevant parts of appendix 5.
19. I was not satisfied however that all of the information pertaining to "turnaround times" in documents (1) and (2) was acquired by Western Health from Dorevitch.
20. No evidence was led to show that Clauses 5.8 and 5.10 of document (1) were anything other than standard clauses. I find that they were not acquired by Western Health from Dorevitch and are not exempt from release under the Act.
21. In document (2), no evidence was led to show that any of the following were other than standard clauses. I find that they were not acquired by Western Health from Dorevitch and are not exempt from release under the Act:

1. the last line of clause 9.11.10 2. the last line of clause 11.1.1

1. clauses 11.1.3 to 11.1.6
2. I turn then to the question of whether the disclosure of the acquired information would be likely to expose Dorevitch unreasonably to disadvantage.

Was the information of a business, commercial or financial nature, the disclosure of which would be likely to expose the undertaking unreasonably to disadvantage?

1. There was no dispute between the parties about whether the information related to matters of a business, commercial or financial nature. Dorevitch is in the business of providing pathology services. It was accepted that the market in which it competes is intensely competitive. I accepted that the information in dispute is directly related to the way in which Dorevitch is required to provide services to Western Health.
2. What was in contention was whether disclosure of the information would be likely to expose Dorevitch unreasonably to disadvantage.
3. Although Mr Elliott said he did not know the precise use he would make of the information if it were to be disclosed, he did not shy away from the proposition that there was a likelihood the information would be disclosed publicly. I find that it is highly likely that it would. Mr Elliott and the Association have been actively engaged in campaigning against private service delivery in this arena. Whilst Mr Elliott gave evidence that the Association did not specifically target Dorevitch, I was shown significant material to demonstrate that the Association had nevertheless lobbied against the award of tenders to Dorevitch and published a range of articles critical of Dorevitch.
4. The test of whether disclosure would expose Dorevitch unreasonably to disadvantage is one of likelihood rather than certainty.
5. Mr Moller gave evidence that disclosure of the information would give Dorevitch's competitors a competitive financial advantage in the market for the provision of pathology services. He gave evidence as to the highly competitive nature of tenders for public hospitals and emphasised that because the contracts are of lengthy duration, the opportunity to compete again is lost for some years. He said that the concluded contractual arrangements are usually confidential. Consistently the information contained in both documents (1) and (2) have been treated confidentially by Dorevitch and Western Health.
6. Mr Moller gave evidence that Dorevitch does not know its competitors' "turnaround times" nor the applicable penalty regimes in any of its competitors' contracts. Dorevitch jealously guards its own. Accordingly, Mr Moller said Dorevitch would be placed at a competitive disadvantage.
7. Mr Moller gave evidence that he also believed Dorevitch's competitors would be able to infer critical information, from the "turnaround times", about the way in which Dorevitch performs its role and conducts its business. He said that if the "turnaround time" requirements were released, any person or entity experienced in the provision of pathology services, could use the information to design their own more competitive service undermining the specifications and cost through a process of reverse engineering.
8. I accepted Mr Moller's evidence. I accepted that Mr Moller has extensive experience in participating in tender processes for the provision of pathology services to public hospitals. I accepted his evidence that tenderer "turnaround times" are an important factor in the tender process in a field where there is a relatively limited number of variables. I accepted that the "turnaround times" offered by one pathology provider compared to another can be a distinguishing competitive factor. I also accepted that the "turnaround time" figure given in combination with the type of test listed and the classification of urgency could provide insight into the operational processes needed to meet that "turnaround time". This could include the likely location of the test site, the size of the laboratory and the number of staff required. From there I accepted that the price structures could be inferred.
9. Mr Elliott disagreed but apart from doing so, provided no evidence of substance to the contrary.
10. In light of my above findings, I accepted that disclosure of the information would give Dorevitch's competitors an unfair advantage in any future public hospital tender processes. I accepted that if Dorevitch's competitors were aware of the information, acquired by Western Health from Dorevitch, as contained in documents (1) and (2) that they could formulate their tender bids strategically to make their bids more attractive.
11. I accepted where the competitors' own information pertaining to "turnaround times" and penalties is not known to the market, that Dorevitch would thereby be left at an unreasonable competitive disadvantage in future tenders.
12. I accepted there was a real likelihood that Dorevitch's competitors may secure work at Dorevitch's expense. This would harm Dorevitch's financial commercial interests and adversely affect its competitive position in the market.
13. Mr Moller also gave evidence that the penalty regime was unique to the requirements of Western Health's hospitals. He said that the disclosure of the information could lead Dorevitch's other clients to draw unwarranted comparisons based on incomplete information and place Dorevitch in a position where it needed to explain those differences. I accepted that this could potentially also harm Dorevitch's commercial or financial interests and damage Dorevitch's ability to favourably negotiate contracts with other hospitals in the future.
14. Mr Moller gave evidence that negative publicity or perceptions of Dorevitch's performance could impact on Dorevitch's ability to receive referrals and secure work from private patients or their doctors. I was less persuaded that this would affect Dorevitch's commercial financial interests. The potential for negative publicity and misunderstandings of the nature of work performed is a modern reality for many businesses and is dealt with without commercial interests being affected.
15. On balance however I was, for the reasons outlined above, satisfied that Dorevitch's commercial interests would be adversely affected if information acquired by Western Health from Dorevitch was disclosed.
16. I was satisfied that the disadvantage would be unreasonable in all the circumstances having regard to the fact that the information is not available to Dorevitch's competitors. I accepted that it could not be disclosed without causing substantial harm to Dorevitch and there were no considerations in the public interest in favour of the disclosure which outweighed considerations of competitive disadvantage. (I will discuss this last area further under the next heading).
17. I am satisfied that the acquired information is exempt pursuant to section 3491)(b) of the Act.

Does the public interest require that access be granted to any of the relevant information under section 50(4) of the act?

1. Section 50(4) of the Act gives the Tribunal power to grant access to certain exempt documents where the Tribunal is of the opinion that the public interest requires access to the document should be granted. The Act does not define the expression "the public interest". It is nevertheless well established that something more than the mere curiosity of the public is required. The Tribunal must identify a high-threshold public interest before the power can be exercised.
2. Mr Elliott made broad-brush statements to the tune that the information contained in the documents is a matter of public interest. He contended that the information is relevant to standards of pathology services and health care delivered by Western Health in hospitals and that it is a matter of professional interest to medical scientists employed by Dorevitch in laboratories. It remained, however, unclear to me what particular public interest would be advanced or promoted by the release of the documents.
3. I understand that Mr Elliott is keen for the public to know whether the quality expectations are being met. These are admirable considerations. However the release of the information would not reveal to the public whether Dorevitch was complying with the "turnaround time" requirements. Similarly the "turnaround time" requirements themselves without any information about Dorevitch's performance against them would say little (or nothing) about whether Dorevitch is complying with its service level contract with Western Health.
4. I agree with the submissions of Dorevitch that release of the information would potentially have the reverse effect of providing an incomplete and potentially misleading picture. I also agree with the submissions of Dorevitch that employees of Dorevitch would already be aware of any relevant obligations in relation to "turnaround times" relating to Dorevitch's agreement with Western Health. Whilst this was disputed by Mr Elliott on the basis that un-named persons who did not wish to be identified said that they did not know, this was not evidence upon which I could base any conclusions that there were any public interest considerations which should override the exemption.

1. The decision of the Freedom of Information Commissioner dated 25 February 2015 is set aside and substituted with a direction that the respondent provide the Interested Party with:
   1. the following parts of the Pathology Services Agreement ("document 1") - Clauses 5.8 and 5.10; and
   2. the following parts of the Schedule of Services (document 2")
      1. the last line of clause 9.11.10
      2. the last line of clause 11.1.1
      3. clauses 11.1.3 to 11.1.6