Please note that Ms Stark now has a medical certificate from her GP dated the 24th of January 2013[2] certifying her fit for full duties.

1. Mr McAuliffe consulted further with the Conduct and Ethics Branch. In light of what had occurred, it was determined a report should be sought from a psychiatrist to 'cover all bases' and to 'consider whether there might have been a psychiatric condition'.
2. So an appointment was arranged for 17 April 2014 with Associate Professor Yitzchak Hollander. A referral letter dated 24 March 2014 was sent to Associate Professor Hollander. It was in very similar terms to the referral letter to Dr Barnard[3]. This is the second disputed document.
3. On 22 April 2014, Associate Professor Hollander wrote to Mr McAuliffe, relevantly stating as follows:

Please be advised that although Mrs Stark attended her scheduled appointment on time on 17 April 2013 at my Glen Iris rooms at InjuryNet, she did not agree to provide valid consent to participate in the Independent Medical Examination. Specifically, while she repeatedly stated she was willing to sign the consent form, she also stated that she would not participate in the interview and would not stay for the 1 hour and 15 minutes which the interview required. Mrs Stark appeared to be under the impression that signing the consent form implied only that she was consenting to me speaking to her doctor and not necessarily consenting to a psychiatric examination by interview conducted by me. She appeared to hold this view despite multiple attempts on my part to clarify and explain the issue of consent and the process of an Independent Medical Examination.

I therefore did not proceed with the examination as Mrs Stark clearly indicated to me that she did not wish to undertake a psychiatric interview at the present time. I thus regret that I am unable to provide any conclusions regarding psychiatric assessment.

1. By August 2014, and apparently after receiving legal advice, Ms Stark consented to a medical assessment. So on 27 August 2014, Mr McAuliffe sought a third opinion, this time from Dr Dominic Yong. He is a specialist occupational physician. Dr Yong produced a detailed health assessment of Ms Stark dated 8 October 2014. He referred to a particular physical health condition which she had been suffering from, which had been successfully treated and was now being managed effectively. Dr Yong certified Ms Stark as being currently fit to work.
2. Ms Stark has now returned to work. Mr McAuliffe said that had Ms Stark participated in the earlier medical assessments, it is likely she would have been able to return to work sooner. I was told Ms Stark has been paid throughout the entire period described above.

1. Ms Stark requested the Barnard referral under the FOI Act on 7 February 2014, and the Hollander referral on 17 April 2014. Parts of the documents were released to her. Ms Stark sought review by the Freedom of Information Commissioner (FOI Commissioner) of the decision to withhold the remainder. On 22 August 2014, the FOI Commissioner determined that certain parts of the two letters were exempt under s 30 of the FOI Act. The FOI Commissioner rejected the Department's contention that they are also exempt under s 35. On 3 September 2014, Ms Stark sought review of the refusal to release those parts.

1. The starting point under the FOI Act is a presumption that any person has the right to obtain documents from government agencies subject only to exceptions and exemptions set out in the FOI Act. Section 3(2) states that it is the intention of Parliament that the provisions of the FOI Act be interpreted so as to further that object, and any discretions conferred by the Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
2. The respondent bears the onus of proof in seeking to establish that the disputed documents are exempt.[4]

(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 consultation or deliberation that has taken place between officers... in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency...; and

1. Section 30(1)(a) contains two limbs. In this case, there are two relevant ways in which the first limb might be satisfied: the material withheld could be 'opinion' prepared by an officer. Or it could comprise consultation or deliberation that was taking place between officers.
2. Here, Mr McAuliffe is clearly an 'officer' of the Department. The statements made by him in the withheld parts of the two referral letters comprise his 'opinions'. The letters contain factual material as well but the purely factual material has already been released. That which remains is interwoven with Mr McAuliffe's preliminary opinion, in effect, that Ms Stark might be suffering a medical condition which affects her fitness to work as a bursar. As stated in the respondent's submissions, the letters relevantly contain opinions on:
   1. The nature of the Applicant's attendance at College;
   2. The Applicant's response to College concerns about her attendance;
   3. The impact of the Applicant's behaviour on the College, staff and students; and
   4. The Applicant's performance as a bursar.
3. The Department also contended that the letters constituted consultation between officers, that is, between Mr McAuliffe and the doctors. It is clear that the letters do comprise 'consultation'. Also, I am inclined to the view that the doctors are 'officers' for this purpose, however it is not necessary to decide this question.
4. The second limb of s 30(1)(a) requires that release would disclose such opinions or consultation 'in the course of or for the purpose of the deliberative process' involved in the functions of the Department.
5. This requirement is clearly satisfied here. Again, as stated in the Department's submissions, the referral letters contain:
   1. The context in which the applicant works and the nature of her employment responsibilities;
   2. Background information relevant to the question put to the doctors;
   3. The reasons for the referral;
   4. Questions which may be relevant to the doctors' assessment of the applicant's business for work.
6. I do not accept the argument put on behalf of Ms Stark that s 30(1)(a) is not satisfied. The argument was that the Principal had no discretion. The only person who had discretion was the doctor. Under Ministerial Order 199 the Principal he had no choice but to refer Ms Stark for a medical assessment, given that he is not a doctor, and she had been absent for more than 13 continuous weeks.
7. In my view this is too narrow an interpretation. The reality is that a school principal, faced with a situation like this, needs to deliberate on sensitive matters throughout the conduct of the process, balancing the interests of the individual staff member, her colleagues and teachers, students and parents. The principal needs to determine which doctor to refer to, and how to phrase the letter of referral. Once a response is received, the principal needs to determine what course of action to take. An employee could be fit, unfit or partially fit. The principal would need to consider how the school adapts to that, for example, whether to change the employee's working hours, and/or reshuffle other staff, in order to enable the school to continue to function whilst still managing the particular employee's situation. Alternatively, where no report is forthcoming, as happened here, the principal needs to decide what to do next.
8. Nor do I accept Ms Stark's related argument that matters in the referral letters concerning her behaviour, and performance as bursar, are not opinions about her fitness to work, but rather, relate to her alleged conduct. In my view, there may be a crossover, and to the extent included in the referral letters, such matters were potentially relevant to the fitness assessment. The applicant pointed to the following question asked of Dr Fong, and response given by him:

Question - Whether it is appropriate to manage any instances of inappropriate conduct by Ms Stark, if any, via a disciplinary/ misconduct process.

Response - You have asked me about an opinion regarding the management of Ms Stark outside the medical sphere.

This is not within my area of expertise and therefore cannot comment.

Had there been a mental health issue, however, a different answer might have been given.

1. The parties referred to the list of factors in Hulls v Victorian Casino and Gaming Authority[5] relevant to determining whether the released documents would be contrary to the public interest. These include: the nature of the information including its sensitivity; the likelihood that disclosure would lead to confusion or ill-informed debate; the stage of the decision making process of which the document was created; the likelihood that disclosure would inhibit the independence of officers; the notion that decision-makers should be judged on the final decision and their reasons for it, rather than the content of preliminary documents; and whether disclosure of the documents would adversely affect the integrity or effectiveness of decision making, investigative or other processes.[6]
2. This case does not concern documents produced in the policy formation process. Rather, it relates to the process undertaken by a school to determine the fitness for work of a particular employee.
3. More directly applicable here are the cases I was referred to dealing with investigations relating to the conduct of employees of agencies.[7] These cases point to the importance of protecting confidential sources of information. Obviously, it would be contrary to the public interest for persons who provide information to an investigator in confidence to have that confidence breached by the release of documents which disclose what they told the investigator. This would tend to inhibit the ability of agencies properly to investigate allegations of misconduct, because persons with relevant information would be less willing to disclose it.
4. In its submissions, the Department referred to the decision in Hoskin.[8] In that case, a number of documents relating to the process of dealing with a teacher who was accused of rude, loud, aggressive, unco-operative, disruptive behaviour and making false allegations against another teacher, were held to be exempt under s 30. In relation to Hoskin, the Department's submissions stated:

...a school principal spoke with an assistant principal at the applicant teacher's previous school to determine how best to deal with the applicant's conduct. The assistant principal gave a personal and critical assessment of the applicant. The Tribunal held it would be contrary to the public interest to release the documents that recorded that assessment. In particular, Vice President Judge Higgins stated at [34] that while an applicant will have an interest in ascertaining whether a fitness for work assessment was made in a fair and balanced manner, there is a 'clear public interest in the free flow of information between people investigating possible misbehaviour alleged by the Applicant against another teacher' to determine the applicant teacher's fitness to continue teaching. The welfare of the students, together with the integrity of the teaching staff, were also significant factors to be considered. In VP Higgins J's view, the 'frankness and candour' argument remains a relevant consideration[9] and where there are personal and critical assessments made by individuals on an applicant, it would be contrary to the public interest to release them, having regard to the nature of the document, the purpose for which it was generated and the need to ensure frankness and candour in the investigation.

1. In his evidence, Mr McAuliffe referred to three concerns about the release of the two disputed documents:
   1. Staff, parents and students would not come forward if confidential information was not protected.
   2. He, and he believed other principals, would lose confidence in the system for obtaining medical assessments of staff members' fitness to work. He would be less candid in his referral letters to doctors. This would mean that doctors would not be properly informed, and so their assessments would not be of much weight. So the principal's task of determining what to do with such an employee would be made more difficult and the overall management of staff would suffer, to the detriment of teachers and students.
   3. In Mr McAuliffe's words:

If the letters or other such documents were released, I would be concerned that the Applicant, other subjects or persons who might be offended by their contents or not understand the context or purpose for the communication may make threats to, intimidate or harass me or College staff or may question the College and the integrity of its decisions.

In the Department's submission, release of the letters would be contrary to the public interest. It would undermine the integrity of the Respondent's assessment process, and lead to speculation or ill-informed debate. The public interest is furthered by protecting the confidentiality of communications between school principals and members of the health profession about staff for the purposes of seeking informed opinions on fitness for work. Being able to have full disclosure and candour during these communications is essential.

1. There is a strong public interest in protecting the integrity of staff management processes, including enquiries into medical fitness and conduct, and this depends on information provided confidentially not subsequently being disclosed.
2. Having reviewed the two disputed documents in this case, however, I do not believe release will have that effect. The letters do not contain anything which is materially different to the matters already revealed to the applicant. They do not contain the names of any informants, or any detail of Ms Stark's conduct which goes beyond what is referred to in the documents provided to her already as part of the process of managing her employment and her leave, or the other documents provided in the course of this FOI proceeding.
3. It is apparent that none of the specific questions asked of Dr Barnard and Associate Professor Hollander were not also asked of Dr Yong.[10]
4. The information in these documents is not of the same sensitive nature as I understand to have been the case in relation to the Hoskin documents, for example.
5. I also note that since the FOI Commissioner's determination that these two letters were exempt under s 30 (on 22 August 2014) circumstances have changed, in that a decision on Ms Stark's fitness to work has been made, and she has returned to work.
6. The FOI Commissioner accepted the respondent's submission that it was premature to release the documents because the process of assessing Ms Stark's fitness to work was incomplete. The concern was that the assessment process could be undermined: providing an employee with the referral letters to the doctors might enable them to tailor their responses given to the doctor.
7. This factor was also referred to in the evidence of Mr Tony Bugden, Executive Director, Human Resources of the Department. He said that prior to a health assessment being completed, it might be important that an employee not know the information in the referral letter so the doctor can be confident that the employee's conduct and/or behaviour during the assessment has not been influenced by that prior knowledge.
8. The FOI Commissioner stated that once an assessment has been conducted, applicants are usually granted access to both the referral letter and the medical report by the assessing doctor. Here, I was told both the referral letter to Dr Yong and Dr Yong's report had been released to Ms Stark.
9. The Department was keen to emphasise that whether a referral is released to an employee is determined in each case having regard to issues such as the need to protect privacy of staff members, sources of information and staff relationships and morale.
10. The Department's position was notwithstanding the release of the referral to Dr Yong it was nevertheless contrary to the public interest to release to Ms Stark the referrals addressed to Dr Barnard and Associate Professor Hollander.
11. What is clear, however, is that by the time of the VCAT hearing, the assessment had been made, the referral to Dr Yong and his report had been released to Ms Stark, and she had returned to work. Accordingly, the concern about the release of the content of the referral influencing how the employee responds during the consultation with the doctor, is no longer a live issue.
12. A related factor relied upon by the FOI Commissioner was that Mr McAuliffe's preliminary views on certain matters and the release of preliminary information may not reflect the agency's final decision, and may cause confusion or ill-informed debate.
13. Now, a decision has been made. In the circumstances of this case, there is now very little scope for confusion. Both Ms Stark and the Department are fully aware of the history of this matter, and the fact that no medical assessments were carried out in response to the two referrals.
14. The two disputed documents relate to parts of the process of assessing Ms Stark's fitness to work which were not followed through. In the light of the fact that the health assessment has now been made, and that the referrals do not descend into precise detail on the most sensitive issues identified by the Department, I find that it has not discharged its onus of showing that release would be contrary to the public interest.
15. I do not accept that release of these documents to the applicant will impact on the Department's future ability to obtain reports about employees' conduct which is of concern. Nor that it would cause principals to 'tone down' the content of referral letters beyond the extent to which these two letters are already 'toned down'.
16. Finally, I do not believe that Ms Stark becoming aware of the content of the two referrals could of itself be a cause of threats, intimidation or harassment of Department personnel. As stated, I do not believe the letters disclose anything of significance which she is not already aware of. The Department is conducting a disciplinary process to investigate her conduct, quite separate from the issue of her medical fitness to work. To the extent that she is proved to have engaged in inappropriate behaviour, that would go against her in the disciplinary process.

SECTION 35 - INFORMATION OBTAINED IN CONFIDENCE

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

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

1. I accept that the first limb of s 35 is satisfied: the referral letters were communicated in confidence to Dr Barnard and Associate Professor Hollander. This was confirmed by the evidence of Mr McAuliffe, and the notation at the top of the letters to that effect, as described above.
2. The key question is whether such disclosure now to the applicant would be contrary to the public interest.
3. The Department contended that if these letters were disclosed, officers such as Mr McAuliffe may provide less information, and be less candid in their referrals in the future, because they have an understandable concern that their views might be released more widely. The Department referred to the strong line authority to the effect that confidential sources of information must be protected, or else those sources are likely to dry up, and so investigations into officers' fitness to work, or alleged improper conduct, for example, would not be able to be carried out so effectively. There have been many cases where a strong public interest against releasing information obtained in the course of investigations has been found to exist.
4. In this case, however, I am not satisfied that release of the two referral letters would be reasonably likely to impair the ability of the Department to 'obtain' such information in the future, namely, the concerns articulated by the Principal about the applicant's conduct and possible medical problems.
5. Even accepting for the purpose of the analysis that the information which might be less forthcoming in the future is that provided by other persons, as well as by the Principal, I do not accept that such impairment is reasonably likely. Alternatively, it would not go beyond trifling or minimal impairment.[11]
6. This is for reasons similar to those expressed in relation to s 30 above. In practical terms, the release of the letters would provide Ms Stark with little in the way of additional information. Therefore, the providers of such information would not feel that their confidences have been betrayed by the release of the remaining parts of those referral letters. The letters do not go into such specific detail as to have this effect.
7. In terms of the understanding of the Principal, once again, it was not the case that he had a certain expectation that the letters would be withheld for ever. There were reasons for Mr McAuliffe to withhold them initially. However, these documents relate specifically to Ms Stark's personal affairs. And it has always been the case that the reasons for withholding them could diminish with the passage of time, and the occurrence of associated events, such as the determination of the question of her fitness to work. Additionally, the equivalent letter of referral to Dr Yong was in due course released.
8. The respondent's decision is set aside.

[1] On behalf of Ms Stark, it was submitted that she had been absent for six weeks when this inspection took place, and she had not been given an opportunity to respond to these allegations. In response, the Department said that there was a process being carried out to deal with allegations of misconduct [and so presumably she will be given a future opportunity to respond to any allegations put against her].

[2] The certificate was actually dated 23 January 2013.

[3] One document in addition to those provided to Dr Barnard was included, namely, Ms Stark's Performance Review.

[5] (1998) 12 VAR 483.

[6] See also Friends of Mallacoota Inc v Department of Planning and Community Development [2011] VCAT 1889 at [51] and [67].

[7] Koch v Swrinburne University [2004] VCAT 1513; Dalla-Riva v Department of Treasury and Finance [2007] VCAT 1301; (2007) 27 VAR 115; Friends of Mallacoota Inc v Department of Planning and Community Development [2011] VCAT 1889.

[8] Hoskin v Department of Education and Training [2003] VCAT 946.

[10] Although the Tribunal was not provided with a copy of the referral to Dr Yong, a copy of Dr Yong's report, indicating Ms Stark's fitness to work, was provided. It listed the questions he was asked, and his answers to them.

[11] Ryder v Booth [1985] VicRp 86; [1985] VR 869 per Gray J.