Woodford v Ombudsman [2001] VCAT 721

Victorian Civil and Administrative Tribunal|2001-04-05|Before: Mr J

1. Within 28 days from this day, access is granted to the following documents :

3, 5, 8, 16 (in part), 20, 21, 22(in part) 23 and 24.

2. The respondent's decision is otherwise affirmed.

"1. File relating to the investigation by the Ombudsman of my complaint against the Department of Human Services in 1996/1997. The reference on correspondence sent to me at that time was V-37029-mkh.

i. File relating to my complaint concerning the Medical Board of Victoria which was handled by Mr Norman Geschke, Ombudsman in 1993/1994. The reference on correspondence sent to me at that time was A-31439-NW".

2. Pursuant to s.18(2) of the Freedom of Information Act 1982 ("the FOI Act"), the applicant's request was transferred to the respondent. By letter dated 6 July 2000, the respondent wrote to the applicant advising her that 312 pages of documents would be released to her and that exemption was claimed for the 23 remaining documents pursuant to the FOI Act. In addition, the respondent identified other documents from other agencies which it had transferred pursuant to s.18(2) of the FOI Act to those agencies. At the same time, the respondent advised that as the decision to refuse access had been made by his own principal officer for the purposes of the FOI Act, there was no avenue of internal review and the applicant could apply directly to the Victorian Civil and Administrative Tribunal for a review.

3. By application filed with the Tribunal on 7 August 2000, the applicant sought a review of the decision of the respondent refusing access to the documents. The documents now in dispute were set out in a schedule prepared by the respondent. They are as follows :

File note of N Geschke prepared on 13 December after conversations with Dr Standford and Dr Pennington (partial access only)

File note prepared by M Hughes following her examination of DHS files

Notes of interview prepared by M Hughes following her interview with L Zuehlsdorff

Notes of interview prepared by M Hughes, following her interview with Ms Levine

Notes of interview prepared by M Hughes following her interview with P Mercovich

Interview preparation notes of M Hughes for interview with L Zuehlsdorff

File note of 27/8/96 prepared by M Hughes. First paragraph deals with discussion about T Howell (partial deletion)

Notes of interview prepared by M Hughes following her interview with A Henderson

File note of 18.9.96 and 23.9.96 prepared by M Hughes to make arrangements for an interview with T Howell

Interview preparation notes and subsequent notes of interview prepared by M Hughes following her interview of T Howell

Section 30 (for preparatory notes) and section 35 (for interview notes)

File notes (2 pages) prepared by Mary Hughes between 6.11.96 and 11.11.96

File note of 12.11.96 prepared by Mary Hughes following her re-examination of the DHS investigation file

Interview preparation notes by M Hughes, for interview with T Howell

Notes prepared by M Hughes following her examination of transcript from AAT

Tape of interview between T Howell and M Hughes marked 2 October 1996

Tape of interview between M Hughes and A Henderson marked 3 September 1996

Tape of interview between M Hughes and L Zuehlsdorff marked 17 July 1996

Tape of interview between M Hughes and G Levine marked July 1996

4. The background to this application is set out in considerable detail in the statement of the applicant dated 22 November 2000 and in the applicant's written submissions. The following is a summary of that background, so far as is relevant to the matters for determination.

5. The applicant married Mr Lindsay Smith ("Mr Smith") in 1973. At that time he suffered from heart disease. Shortly after their son Steven was born in September 1974, Mr Smith complained of feeling unwell and the applicant arranged for his treating doctor, Dr Murphy to see him. This occurred and Mr Smith was admitted to St Vincent's hospital. He died 2 days later on 16 October 1974 at the age of 35 years.

6. Following Mr Smith's death, the applicant asked St Vincent's Hospital to provide her with information as to the reason for her husband's death. The hospital administration failed to provide the information requested by the applicant. This failure was described by Dr Michael Stanford, Director of Medical Services of St Vincent's Hospital in a letter to the Ombudsman of 8 June 1993 as being "entirely inappropriate". Following the commencement of litigation, the applicant subsequently obtained medical reports concerning Mr Smith's death, including a report from St Vincent's Hospital dated 2 January 1975 and a report of Dr Murphy dated 21 January 1975. The St Vincent's Hospital report indicated that Mr Smith had suffered a retroperitoneal haemorrhage and that this was associated with a possible overdose of a drug known as Warfarin.

In a letter dated 9 April 1975, the applicant complained to the then Medical Board of Victoria (now Medical Practitioners Board) ("the Board") about the circumstances of Mr Smith's death. She indicated in her letter she believed that there had been negligence in the treatment and attention provided to her husband by Dr Murphy. On 27 October 1975, the Board advised the applicant that Dr Murphy had no case to answer in relation to any allegation of malpractice or unprofessional conduct and accordingly it would take no further action.

On 19 January 1976, the applicant asked the Ombudsman to investigate the conduct of the Board. The Ombudsman defined this complaint to be a complaint about the Board's alleged refusal to give her reasons for its decision. Subsequently, the Ombudsman at that time, Mr J Dillon, stated in a report accompanying his letter to the applicant of 10 January 1977 that the complaint had not been made out.

9. Further approaches to the Board and the second Ombudsman investigation

In 1981, the applicant married Dr Peter Woodford. In 1982, she learnt about the passage of the FOI Act and pursuant to that Act she sought access to documents held by the Board and St Vincent's Hospital. As a result of those requests, she obtained access to the hospital's autopsy report related to Mr Smith's death for the first time, some 18 years after his death. She also obtained access to documents from the Board concerning information provided by Dr Murphy to the Board, after she entered into a confidentiality agreement.

10. On about 4 May 1992, the applicant and Dr Woodford met Mr John Smith ("Mr J Smith"), the secretary to the Board and she requested his assistance with her inquiries as to the cause of her husband's death. In her evidence before the Tribunal, the applicant said that Mr Smith refused her request. She said that she became upset and Mr J. Smith told her that unless she "settled down, he would call security and have me thrown out of the premises".

11. By letter dated 19 November 1992, the applicant requested the Board to reopen the investigation of her complaint against Dr Murphy. By letter dated 15 December 1992, Mr J Smith advised the applicant that the Board had decided not to reopen an investigation of her complaint. Subsequently, edited minutes of the Board's meetings and a copy of the Board's letter dated 22 October 1975 to Dr Murphy were released to her as a result of a freedom of information request made through her solicitors.

12. On 19 November 1992, the applicant asked the then Ombudsman, Mr Geschke, to investigate the circumstances of Mr Smith's death. He agreed to do so.

13. On 11 February 1993, the Ombudsman wrote to the Board asking it to reopen its investigation into Mr Smith's death. The Ombudsman stated in his letter that there was "a reasonable possibility that an injustice has been done to Mrs Woodford and that the Medical Board at the time failed to properly consider her complaints. This failure was compounded by the Ombudsman not further pursuing matters she had raised". By letter dated 1 June 1993, the Board informed the Ombudsman that it would not reopen the investigation. It stated that the Board had received legal advice that should it attempt to reopen the investigation it completed 18 years ago, or should it attempt to commence an inquiry into the applicant's allegations at that point in time, it would constitute an abuse of process. By letter dated 13 January 1994, the Ombudsman informed the applicant that the Board's examination of her complaint "was far from adequate and could hardly be called an investigation".

14. On 5 August 1993, the applicant entered the offices of the Department of Human Services (as it then was), ("the Department"), with a placard that read "Why won't the Medical Board speak to me" accompanied by Dr Woodford. She said in evidence before the Tribunal that she spoke to Mr J Smith, who asked her to leave. She said she replied "Why don't you call the security guard and have me thrown out as you threatened last year". She alleged that Mr J. Smith called the security guards and she and Dr Woodford were escorted from the premises.

15. On 20 September 1993, two members of the Board, Mr J Smith, the Ombudsman, Dr Woodford and the applicant attended a meeting. It appears the purpose of the meeting was for the Board to explain certain matters regarding the applicant's complaint against the Board made in a letter to the Board of 21 June 1993. At the meeting, the Board members indicated to the applicant that they would take no further steps to inquire into Mr Smith's death. By letter dated 20 October 1993, the Board wrote a letter to the applicant reiterating that it was not prepared to reopen the complaint and suggesting that she seek professional counselling.

16. In a letter to the applicant dated 12 January 1994, the Ombudsman provided his final report of his investigation. In his report he noted that there were two main issues. The first was whether Dr Murphy treated Mr Smith appropriately, the second was the manner in which he communicated with the applicant after Mr Smith's death. He also referred to her concern as to the failure of Dr Murphy and St Vincent's Hospital to properly inform her of the reason for Mr Smith's death. The Ombudsman concluded that there was nothing further he could do in relation to her complaint. He made the following observations :

(a) "If the same complaint were to go to the Board now or to me as Ombudsman, there is little doubt that it would be handled differently. This should not mean that the doctor's actions would necessarily be criticised or found wanting, but that the issues in dispute would have been better tested and evidence to corroborate the views of both parties available".

(b) _"..._there has been no indication to me that there has been any failing in the standard of treatment or management of your husband's condition. I believe that it is not now possible to reach a different view without clear evidence to the contrary and I have no reason to believe that such evidence would exist".

By letter dated 31 October 1993 addressed to Mr A Dordevic of the Department, the applicant complained about a number of matters relating to the Board and the behaviour of Mr J Smith. The applicant's concerns included her assertion that Mr J. Smith was discourteous towards her and that the letter he subsequently signed on the Board's letterhead suggesting that she needed counselling was insulting and insensitive. At that time Mr J Smith was employed by the Department in his capacity as Secretary to the Board.

18. In early February 1994, Ms Ann Henderson of the Department's Operations Review Investigation Unit was assigned by Mr Dordevic to investigate the applicant's complaint against Mr J Smith. On 9 February 1994, Ms Henderson took a statement from the applicant and Dr Woodford. Ms Henderson wrote a report addressed to her superior, Mrs Lyn Zuehlsdorff, dated 10 March 1994. That report was released to the applicant, following subsequent freedom of information proceedings in this Tribunal. In the report, Ms Henderson referred to a number of matters raised by the applicant including the impediments placed before the applicant in seeking information from the Board, and Mr J Smith's treatment of the applicant. She expressed the view that the applicant had a legitimate complaint. She recommended that Mr J Smith be provided with a Notice of Investigation that he may have breached the Code of Conduct issued by the Office of the Public Service Commissioner and/or Regulation 16.5 of the Public Service Regulations in that he failed as an employee of the Public Sector to treat the applicant with courtesy and sensitivity between March 1992 and October 1993. She also recommended that the applicant's complaint regarding the Board be referred to the Health Services Commissioner for assessment. She noted that there was no provision for the Board to be held accountable to any government or private agency and that it was a situation that needed to be addressed.

19. Shortly thereafter, Ms Henderson was replaced by Mr Peter Mercovich. In his report dated 12 April 1994, Mr Mercovich expressed the view that Mr J Smith had acted with courtesy and sensitivity in the discharge of his duties "in what could only be described as extremely difficult circumstances and he appears to have shown Mrs Woodford great patience in the handling of the matter". Mr Mercovich recommended that no further action be taken by the Discipline and Investigations Unit. By letter dated 22 April 1994, Ms Gabrielle Levine (Mr Mercovich's superior) informed the applicant that the Department did not intend to take any further action.

20. On 3 May 1994, the applicant made a request under the FOI Act for documents relating to the Board's investigation into her complaint. The Department granted access to some of the documents but refused access to others. Ultimately, the applicant filed an application for review with the Administrative Appeals Tribunal (the predecessor of this tribunal). At the end of the first day of the hearing before the Tribunal, the Department released to the applicant the documents to which it had previously denied access. The applicant was awarded part of her costs.

On 4 April 1996, the applicant complained to the Ombudsman (Dr Perry) about the conduct of two officers of the Department, Ms Levine and Ms Zuehlsdorff. She stated they deliberately sought to restrict the investigation of her complaint to the Department and that they misled her to believe a detailed and comprehensive investigation had taken place. She also suggested that the Board had brought influence to bear on the scope of the inquiry by the Department. The Ombudsman determined to investigate the complaint . He defined the complaint as being that Ms Levine and Ms Zuehlsdorff had improperly interfered with the Department's investigation. Ms Mary Hughes was appointed by the Ombudsman as the investigation officer responsible for the investigation and the Ombudsman was her "case manager". Most of the documents in dispute in these proceedings relate to this investigation by the Ombudsman (`the Ombudsman's third investigation").

22. On or about 28 August 1996, the applicant and Dr Woodford, at their request, met with Ms Hughes and another person from the Ombudsman's office to provide Ms Hughes with some background information to the investigation. Between July and October 1996, Ms Hughes also interviewed Ms Levine, Ms Zuehlsdorff, Ms Henderson, Mr Mercovich and Mr Terry Howell. She also inspected Departmental files and transcripts of proceedings in the Administrative Appeals Tribunal.

23. On or about 15 November 1996, the Ombudsman sent his tentative report to the Secretary to the Department pursuant to s.17(4) of the Ombudsman Act 1973 ("the Act") and invited the Department to comment on it. By letter dated 20 January 1997, the Department replied to the Ombudsman's tentative report attaching a memorandum dated 9 December 1996 from Mr Trevor Sutherland, Manager Personnel Planning and Services, to Ms Bernadette Steele, Assistant Director, Legislation and Legal Services. Mr Sutherland noted that the Ombudsman had identified a number of concerns regarding the conduct of the investigation by the Department and recommended that the conclusions set out in the report be accepted. He stated that "a number of actions have been initiated to improve the skills of discipline investigators and the management of investigations. Detailed guidelines on investigation processes have been developed in consultation with all staff of the Unit and draft service specifications identifying decision points and benchmark time lines will shortly be provided to senior line managers of the Department for endorsement".

24. On 24 January 1997, the Ombudsman sent his final report to the applicant. The report ("the final report"), containing some 15 pages, set out in detail the material obtained by Ms Hughes from Ms Levine, Ms Zuehlsdorff, Ms Henderson, Mr Mercovich and Mr Howell, particulars of the applicant's complaints and enquiries made of Mr Dordevic and Dr Breen who was at that time Vice President of the Board. The Ombudsman stated that there was no evidence to support the applicant's suspicion that there was influence brought to bear on the Departmental investigation by the Board. He discussed the actions of both Ms Henderson and Mr Mercovich in investigating the applicant's complaints and he referred to the evidentiary conflict between the statements of Dr and Mrs Woodford denying that they acted on 5 August 1993 with any rudeness or abusiveness (on the one hand) and the statement of Mr J Smith and three unverified statements from the Board's staff and an incident report from a security guard on the other hand. The Ombudsman made the following conclusions :

"1. There is evidence that the investigation was not handled as well as it ought to have been in that there was a delay in commencement, a changeover of investigators and the investigation undertaken against a considerably tense background of apparent conflict between the DIU manager and some staff. The fact that the Woodfords were particularly tenacious and at times, difficult complainants, did not promote efficiency and objectivity in handling the investigation.

However, there is no evidence `that the management involvement was improper or directed towards anything other than ensuring that the investigation be undertaken in an efficient manner focussed on what was within the powers of the DIU to investigate'.

2. The investigation could have been managed better and conducted in a more professional manner by both of the investigators involved.

3. It appears to me that the DIU's handling of the complaint brought to the surface, if it was not already present, an attitude of mistrust between the DIU manager and some investigative staff. Some disciplinary matters remain unresolved.

4. Given the passage of time since the incident at the Board [between the applicant and Mr J Smith], the changes to the personnel in the DIU and the obvious impact which the investigation and its consequences had on the unit, I can see no likelihood that any reinvestigation would redress the problems which I have identified. While the Woodfords have stated to my staff that what they had sought in their complaint to the Ombudsman is that Ms Henderson investigate the complaint as she originally intended, the evidence available would indicate that this would be far from a constructive and objective outcome for me to recommend".

25. In a letter of the same date accompanying the final report, the Ombudsman informed the applicant that he was satisfied with the Department's response to his recommendations which he said was appropriate in the circumstances. He went on to say :

"I am aware that this may not be the outcome that you have sought. Given the Department's acceptance of my report and indication that some corrective action has been taken I do not see that further action by me is warranted. You are welcome to comment".

The applicant did not respond to the Ombudsman's letter and report at that time.

26. On 1 and 2 October 1998, in proceedings before this Tribunal by virtue of s.39 of the FOI Act, the applicant sought to review a decision of the Board refusing to amend a document dated 29 April 1994 prepared by Mr Dordevic of the Department. The document was a file note by him which stated that the applicant had telephoned him on two occasions in April 1994 using foul and abusive language. The applicant denied she used the language recorded by Mr Dordevic in the file note and she sought to have the file note amended to delete the foul language. In his reasons for decision dated 24 November 1998 (No 1998/23696 unreported) Mr Davis, presiding member, found that the file note was a true and correct representation of the telephone conversations which took place between Mr Dordevic and the applicant. As a result, the application was dismissed.

27. In letters to the Ombudsman dated 9 November and 9 December 1999, the applicant expressed dissatisfaction with the outcome of the Ombudsman's third investigation. On 14 January 2000, the Ombudsman advised the applicant that she could forward a submission in support of an application to reopen the third investigation, based on any new evidence. He stated however, that he would not consider any evidence that was available to her at the time he concluded his report in January 1997. In a lengthy letter dated 24 January 2000 to the Ombudsman, the applicant set out further information and concerns for the purpose of seeking to have the Ombudsman reopen his third investigation. The matters which she raised in the letter included concerns as to the findings of this Tribunal in the proceedings No 1998/23696 referred to in paragraph 26 of these reasons, complaints against members of the Board and further allegations against Mr J Smith.

28. In a lengthy letter to the applicant dated 4 April 2000, the Ombudsman responded to the matters raised in the applicant's letter. The Ombudsman noted that the delay by Mr J Smith in advising the applicant of the date and time of a meeting which had been arranged with the Board was not a matter that would provide a basis for him to recommend or undertake an investigation. He stated that he did not consider that the applicant's allegation of improper conduct by Dr Breen could be implied in the circumstances pertaining to the matter. He concluded that the evidence before him did not support the applicant's allegation that Ms Henderson had been removed from the departmental inquiry for an improper reason. The Ombudsman also dealt at length with other allegations made by the applicant although he stated that he did not consider they were relevant to the question of whether he should reconsider his previous decision regarding the third investigation. Those matters included allegations by her that Mr Dordevic had made false notes that she had used foul language, allegations against a Dr Clareborough and a Dr Court and allegations that Mr J. Smith told Mr Dordevic that the applicant was psychiatrically disturbed. Dr Perry concluded by saying that the matters which the applicant had raised in a letter to Mr John Thwaites, Minister for Health, did not provide him with any new evidence that would cause him to review his previous decision. Those matters related to the letter dated 20th October 1993 from the Board advising the applicant to seek professional counselling.

29. In a further lengthy letter dated 15 May 2000 to the Ombudsman, the applicant reiterated a number of matters earlier raised by her with him. In a response to the applicant dated 20 June 2000, the Ombudsman stated as follows :

"After giving the matters you raised thorough consideration, I am of the view that even if I investigated the matters raised in your letter and found your allegations concerning the credibility of Mr Smith and Dr Breen to be substantiated, that conclusion would not give me cause to reconsider my decision set out in my letter dated 24 January 1997".

30. As indicated in paragraph 1 of these reasons, by letter dated 9 May 2000, the applicant wrote to the Department of Premier and Cabinet, requesting access to the Ombudsman's file relating to the investigation by the Ombudsman of her complaint against the Department and the Ombudsman's file relating to her complaint concerning the Board handled by the Ombudsman in 1993/1994. A number of documents were released to the applicant by the Ombudsman. The applicant sought a review by this Tribunal of the decision of the Ombudsman refusing access to the remainder of the documents.

31. There are 26 documents in dispute. The respondent relies on exemptions established by s.30(1), s.35(1)(b), s.33 and s.38 of the Act. On the second day of the hearing, the respondent released document 19 in full and the applicant indicated that she no longer pursued access to document 9 (which had already been released in part). In addition, counsel for the respondent informed the Tribunal that the respondent had located 5 tapes of interviews that fell within the terms of the request. One of those tapes was blank. The respondent claimed that the remaining four tapes were exempt documents under the Act. Transcripts of the tapes were provided to the Tribunal.

32. The documents in dispute fall into the following categories :

(b) Interview preparation notes by Ms Hughes (documents 12, 16 and 22).

(d) Tapes of the interviews (documents 25, 26 and 27).

(e) Notes from Ms Hughes' review of documents (documents 5, 20 and 23).

(f) Internal file notes relating to the complaints (documents 3, 8, 21 and 24).

(g) File notes of discussions relating to the complaints (documents 2, 13, 15, 17 and 18).

33. Section 3(2) of the Ombudsman Act 1973 (Vic) ("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 Act. That section states that the principal function of the Ombudsman is to enquire 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.

34. 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 Part IVA of the Police Regulation Act 1958, divulge information received or obtained by him under the Ombudsman Act or Part IVA of the Police Regulation Act 1958.

35. 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. Sub-section (1) provides that the Ombudsman may conduct an investigation under the Act either on his own motion or as a consequence of complaint. Sub-section (2) provides that a complaint may be made by a person or by a body of persons and shall be made in writing. The applicant made her complaint on 4 April 1996 to the Ombudsman pursuant to this sub-section.

36. Section 17 of the Act deals with the procedure relating to investigations. Section 17(1) provides that before conducting an investigation the Ombudsman must inform the principal officer of the relevant authority and the responsible Minister. 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 thinks fit and may determine whether any person may be represented by a legal practitioner or otherwise in the investigation".

37. 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 this Act applies, he shall, before making the report, give the principal officer the opportunity to comment on the subject matter of the investigation.

38. Section 18 provides that the provisions of sections 17, 18, 19, 20 and 20A of the Evidence Act 1958 apply to and in relation to any investigation which the Ombudsman is authorized 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".

39. The Office of Ombudsman is an agency within the meaning of s.5(1) of the FOI Act because it is 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 has been the case since the enactment of the Freedom of Information Legislation (Amendment) Act 1993 (Vic) and the former s.17 of the Public Sector Management Act 1992 (Vic).

40. The applicant gave evidence in these proceedings that she was angry and frustrated at the manner in which she had been treated by the Department, the Board and Mr J Smith. Further, she said she was not satisfied with the way in which the Ombudsman performed the third investigation. She outlined a number of concerns in relation to that investigation. They included an alleged failure to check information provided by witnesses to Ms Hughes, the acceptance of unsubstantiated allegations against her and Dr Woodford, the criticisms of Ms Henderson and the failure of Ms Hughes to provide an opportunity to her to comment on information provided to Ms Hughes by other people Ms Hughes interviewed. She described the Ombudsman's final report, as 15 pages of "just absolute rubbish". She disagreed with the conclusion of the Ombudsman that the passage of time would not lead to a constructive reinvestigation by the Department. She stated she was not satisfied with the conclusions in the Ombudsman's letter of 4 April 2000 (summarised in paragraph 28). She said that she believed "that there is a need to clear the air in relation to the manner in which the Ombudsman's investigations have been carried out. I also believe that the Ombudsman should be held accountable for his investigations. And I believe that I have a right to know exactly how the Ombudsman investigated my complaints".

41. When asked what she sought to achieve, she replied that she wanted justice and accountability. When asked what she would do with the information, if the exempt documents were released to her, she was unable to give a precise answer. She said she did not know whether she would try to persuade the Ombudsman to reopen his investigation. When asked whether the main goal was to have the Ombudsman reopen his investigation into the Department's investigation, she said "I don't see what else can be done for me to stop me from jumping off the bridge". She said that the relevance of the documents to her was that they were essential to an understanding of "what is going on"." She said it was not just Mr J Smith's behaviour that concerned her now. The Department's investigation and the proceedings at the Tribunal where she was provided with access to the Department's documents, "opened up a lot of other things that went wrong". She said that people provided information in which they denigrated her and the denigration was not deserved. She said the question of denigration by the public servants was a major concern to her. When asked the reason for her delay in contacting the Ombudsman with her concerns in relation to the Ombudsman's final investigation (nearly 3 years), she said : "I knew that there was no point in going over it again with the Ombudsman". Dr Woodford in a written statement dated 22 November 2000 tendered in evidence supported the applicant's evidence.

42. Section 38 is claimed by the respondent in relation to every document in dispute. It provides :

"38. Documents to which secrecy provisions of enactments apply

A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications".

43. The enactment which the respondent contends satisfies s.38 of the FOI Act is s.20 of the Act. It states :

"20. Person obtaining information shall not disclose or take advantage of it

(1) A person (other than the complainant) who obtains or receives information in the course or as a result of the exercise of the functions of the Ombudsman under this Act -

(i) for the purposes of the exercise of the functions of the Ombudsman and of any report or recommendation to be made under this Act; or

(ii) for the purposes of any proceedings in relation to an offence against this Act or section 19 of the Evidence Act 1958; or

(iii) for the purposes of any communication authorized under section 20A of this Act; and

(b) shall not take advantage of any knowledge gained from that information to benefit himself or any other person.

(2) A person who in contravention of this section discloses information or takes advantage of knowledge gained from information shall be guilty of an offence against this Act".

44. It was submitted by Mr Tracey QC, who appeared for the respondent, that s.20 is an enactment "applying specifically to information of a kind contained in" the documents for which exemption is claimed pursuant to s.38 of the FOI Act, namely information obtained or received in the course or as a result of the exercise of the functions of the Ombudsman under the Act. He argued that information obtained in the course of or as a result of the exercise of the functions of the Ombudsman is sufficiently specific given that, in the same part of the Act, the specific functions and powers of the Ombudsman to obtain such information are identified and it can readily be determined in any given case whether the information was obtained as a result of the exercise of those powers. He contended that s. 20 is far more specific than saying that anything obtained by the Ombudsman or his officers in the course of their duties is protected. In support of this contention he relied on the decisions of Judge Hassett in Deasey v Geschke (unreported, 11 November 1984), pp.40-42, Department of Premier and Cabinet v Birrell [No 2] [1990] VicRp 5; [1990] VR 51 and Re Berryman and Department of Education (unreported, VCAT, Macnamara DP, 4 February 1999) and Young v Wicks [1986] FCA 169; (1986) 13 FCR 85.

45. In Deasey v Geschke Hassett J had to consider whether s.20 of the Act met the requirements of s.38 of the FOI Act. S.20 of the Act at that time provided :

"(1) A person who obtains or receives information in the course of an investigation under this Act -

(i) for the purposes of the investigation and of any report or recommendation to be made thereon under this Act; or

(ii) for the purposes any proceedings in relation to an offence against this Act or section 19 of the Evidence Act 1958; or

(iii) for the purposes of any communication authorized under section 20A of this Act".

"The question for determination is whether the Ombudsman Act is an enactment applying specifically `to information of a kind' contained in the documents. The Shorter Oxford Dictionary defines `kind' as including `a genus or species; also, a sort, variety or description'. The issue then is whether `information received or obtained' by the Ombudsman under this Act or `information obtained or received in the course of the investigation' under the Ombudsman's Act is `information of a kind' to which the Ombudsman's Act applies specifically. The question may be posed; does the Ombudsman Act apply to some, and if so what, `kind of information'. I consider the answer is; yes, information obtained or received during the course of an investigation under the Ombudsman's Act. Accordingly, I conclude that the documents which are the subject of this appeal are exempt documents under the provisions of s.38 of the FOI Act".

47. His Honour distinguished the decisions of the Federal Court of Australia in Kavvadias v Cth Ombudsman [1984] FCA 55; (1984) 1 FCR 80 and News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64. He noted that ss.35 and 35A of the Ombudsman's Act 1976 (Cth) dealt with by the Court in those two cases were very different from the provisions of the Victorian Act.

48. In Kavvadias v Cth Ombudsman (supra), the Full Court of the Federal Court in dealing with s.35(2) of the Ombudsman Act 1986 (Cth) found it did not attract the s.38 exemption. That section prohibited an officer from disclosing to any person any information acquired by him "by reason of his being an officer, being information that was disclosed or obtained under the provisions of this Act, ...". At pp.84 and 85, the Court said :

"Section 38 of the Act deals with information in a document. We do not doubt that what is in the document, including indications of its source, and how it came into the possession of the person who has it, is all information in the sense of s.38. It may be thought adequate for the purposes of the section that the enactment to which it refers should prohibit disclosure of information by reference to it having been received by officers in the course of their duty. Such a prohibition would say nothing directly as to the kind of information in question, which, depending upon the role of the officers, may be of a very wide, almost limitless nature.

It seems to us that s.38 requires that there be a more direct and explicit reference to the nature of the information itself. Information is the commodity being dealt with in the Act, not the discipline or integrity of officers. Bowen CJ and Fisher J in their joint judgment in The News Corporation case expressed much the same thought as follows :

`We are firmly of the opinion that s.38 expressly and intentionally directs attention to the nature of the information contained in the document and not to the capacity of the person who has received the information'.

Moreover, to apply s.38 in the way suggested, would be largely to destroy the objects of the Act. It is said in subs.3(1) that its object `is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth'."

49. In the News Corporation case the Full Court of the Federal Court considered s.47 of the National Companies and Securities Commission Act 1976 (Cth). That section prohibited a servant or agent of the defendant from disclosing, except in the performance of his official duties, information acquired by him in the course of his employment. The Court held that s.38 of the FOI Act should be construed as applying to enactments which specified the nature or quality of the information which was prohibited from disclosure. It had no application to an enactment, such as s.47, which identified the information merely by reference to the capacity of the person who had received or was in possession of the information. The Court held further that an enactment would apply "specifically", within the meaning of s.38 to information of a kind if the enactment was formulated with such precision that it referred with particularity to the information.

50. The Full Federal Court in Harrigan v Department of Health (1986) 72 ALR 293, 294-5, in a joint judgment as members of the Full Court of the Federal Court, summarized the position with respect to the provision which then corresponded with s.38 of the Victorian Act in the Federal Act :

"The operation of s.38 has been considered by the Court on several occasions and the effect of those decisions, so far as presently relevant, may be stated as follows :

_(a) An enactment does not satisfy s.38 if it does no more than prohibit the disclosure of information identified only by reference to the capacity of the person who has received or is in possession of the information (_News Corporation Limited v National Companies and Securities Commission (1984) 1 FCR at 70; [1984] FCA 36; 52 ALR 277 at 283, per Bowen CJ and Fisher J).

_(b) An enactment does not satisfy s.38 if it does no more than prohibit the disclosure of information identified only as information obtained in pursuance of the enactment in which the prohibition is found (_Kavvadias v Commonwealth Ombudsman [1984] FCA 55; (1984) 1 FCR 80 at 85; [1984] FCA 55; 52 ALR 728 at 733).

_(c) The two types of enactment to which we have referred do not satisfy s.38 because they do not sufficiently identify the type of information which is the subject of the prohibition upon disclosure. A provision, however, which identifies the information as information `respecting the affairs of another person' would ordinarily be sufficiently specific to satisfy s.38 (_FCT v Swiss Aluminium Australia Limited (1986) 66 ALR at 162-3 (Bowen CJ) and at 167, 168-9 (Jackson J))".

51. It was submitted by Mr Tracey that the decision in Deasey v Geschke was correct and should be followed in the present case. He said that the provisions which the Court dealt with in News Corporation and Kavvadias were far broader than s.20 of the Act with which Hassett J was concerned. Mr Tracey noted that a different result was reached by Mr A F Smith (as his Honour then was) in Lapidos v Ombudsman (No 1) (1987) 2 VAR 82 pp. 90-91. His Honour held that s.20 of the Act lacked the degree of specificity required by s.38 of the FOI Act. The same conclusion was reached by Miss E H Curtain (as her Honour then was) in Re Horesh and Ombudsman (1986) 1 VAR 149 at 150-151. In both cases, the Tribunal dealt with s.20 as it was when considered by Hassett J. Mr Tracey submitted that I should not follow these decisions. He said that neither case referred to the decision of Deasey and Geschke. He submitted that a finding that s.20 had sufficient specificity would be consistent with later authority : Department of Premier and Cabinet v Birrell; Re Berryman and Department of Education and Young v Wicks.

52. It was conceded by Mr Bell QC, who appeared with Mr Pizer of counsel for the applicant, that the Act is an enactment for the purposes of s.38 of the Act. As to the requirement in s.38 of the FOI Act that "the enactment applies specifically to information of a kind contained in a document", he relied on a number of authorities including News Corporation, Kavvadias, Swiss Aluminium and Harrigan. He submitted that on its proper construction, s.20 of the Act essentially prohibits all persons (other than the complainant) from disclosing information that is obtained or received pursuant to the Act. He submitted that the section says nothing about the intrinsic characteristics of the kind of information in question. To adopt the language from Kavvadias the prohibition "says nothing directly as to the kind of information in question", which may be "of a very wide almost limitless nature".

53. In relation to Deasey v Geschke, it was submitted by Mr Bell that s.20 of the Act in its original form (and applicable when that case was decided) concerned a materially different provision. Prior to the amendment, s.20 was at least confined to information obtained or received "in the course of an investigation". The current version, by contrast, is not so confined. It extends to all information obtained or received in the course of or as a result of "the exercise of the functions of the Ombudsman under this Act".

54. I accept Mr Bell's submissions. In my view the words in s.20 "a person (other than the complainant) who obtains or receives information in the course or as a result of the exercise of the functions of the Ombudsman under this Act" do no more than prohibit the disclosure of information identified only as information obtained pursuant to the enactment in which the prohibition is found : see Kavvadias. Whilst I accept Mr Tracey's submission that the words in s.20 are not as broad as s.35(2) of the Ombudsman Act 1976 (Cth) with which Kavvadias and News Corporation were concerned, it seems to me that in the present case as in Kavvadias and News Corporation, the relevant provision seeks to impose secrecy upon officers performing their functions under the Ombudsman Act. In my view, the fact that the Ombudsman's powers and functions are found in the same part of the Act as s.20 and that it can readily be determined in any given case whether the information was obtained as a result of those provisions, does not overcome this problem.

55. In so far as Deasey v Geschke is concerned, it may well be that the change of language in s.20 justifies a different approach as was contended by Mr Bell. The words of s.20 of the Act appear to broaden the obligations of the Ombudsman's officers by comparison to the terms of the section when considered by Hassett J. Section 20 in its original form generally prohibited a person disclosing information obtained or received when performing the principal function of the Ombudsman as set out in s.13(1), that is, "to inquire into or investigate any administrative action taken in any Government Department or Public Statutory Body to which this Act applies". However, it may be that whilst different words were used in the present enactment the substance of the words in both enactments is similar.

56. If that is correct, the Tribunal is faced with a choice between Deasey v Geschke and the Federal Court decisions which appear to proceed on a different basis. The decisions of the Federal Court are decisions of a body of a higher court, albeit of federal rather than state jurisdiction. Moreover, on balance, I find the reasoning more compelling in the Federal Court decisions than in the decision of Deasey v Geschke. The approach in Deasey v Geschke leaves little work for the adverb "specifically" as contained in s.38. In the circumstances, I prefer to apply the reasoning in the Federal Court decisions. I note further that such an approach is consistent with Horesh and Lapidos, albeit the Tribunal in those cases did not appear to have been referred to Deasey v Geschke. Clearly, I should follow those decisions, unless there is a clear reason for not doing so, given the obvious desirability of consistency in Tribunal decisions in matters such as the one in issue here (see Anteden Pty Ltd v Glen Eira City Council and Ors [2000] VSC 366; 16 VAR 334 at 343-4 a decision of Balmford J).

57. In relation to Berryman, Birrell and Young v Wicks, I am not convinced that those cases support the decision in Deasey v Geschke as submitted by Mr Tracey. In Birrell's case, the Full Court of the Victorian Supreme Court held that the documents in dispute were not exempt from disclosure pursuant to s.38 of the FOI Act because the phrase "Cabinet information" appearing in the Public Service (Unauthorized Disclosure) Regulations 1987 did not identify with sufficient specificity the kind of information to which the section could apply. The regulation listed seven classes of documents that were defined as "Cabinet Information", one of which was any document which the Premier declared was a Cabinet document. The regulations made it an offence for any officer to disclose such "Cabinet Information". News Corporation, Kavvadias, Swiss Aluminium and Harrigan were applied.

58. In Berryman's case, Mr Macnamara DP, concluded that the provisions of clause 4.19 of the Teaching Service Order was sufficiently specific to attract the operation of the s.38 exemption. Clause 4.19 of the order states :

"All persons involved in the complaints process outlined in clauses 4.1 to 4.6 in this order shall keep information collected during the course of the process confidential except to the extent required to obtain advice or to support or answer the allegations within the complaint".

59. Mr Macnamara observed at p.20 of his reasons for decision that the identification of the persons upon whom the duty of confidentiality was imposed was made by reference not to their status as officers but to their involvement in the complaints procedure. I accept Mr Bell's submission that s.20 of the Act, by contrast is not so confined and extends to all information obtained or received in the course of or as a result of "the exercise of the functions of the Ombudsman under this Act".

60. In Young v Wicks a decision of the Federal Court of Australia, Beaumont J found that Regulation 283(1) of the Air Navigation Regulations was an enactment to which s.38 of the Freedom of Information Act (Cth) applied. That regulation provided :

"A report or other document furnished to the Secretary that relates to an accident or incident that is, or has been, the subject of an investigation shall not be made public without the approval in writing of the Secretary".

Regulation 283(2) enabled the Secretary to publish such comments and recommendations in certain circumstances. In my view, both the regulation considered in Young v Wicks and s.16(2) of the Income Tax Assessment Act 1936 (Cth) considered in Swiss Aluminium describe the information in question more specifically than in the present case. In Swiss Aluminium there was a prohibition against an officer making a record of or divulging or communicating to any person any information respecting the affairs of another person acquired by him by being disclosed to him or obtained by him under the income tax legislation. In Young v Wicks the relevant air navigation regulation prohibited disclosure of a report or other document relating to an accident or incident that is or has been the subject of investigation.

61. In view of my findings, none of the documents in dispute are exempt pursuant to s.38. I turn now to the remaining exemptions claimed by the respondent.

62. 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 processes 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)".

"35.(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 -

(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".

This section is claimed in relation to information obtained by the Ombudsman or his officers at different stages of the Ombudsman's inquiries. They include the notes of interview prepared by Ms Hughes and the tape recordings of these interviews. I propose to deal with the documents within their various categories.

65. Documents 1, 4 and 7 are claimed by the respondent to be exempt under s.30. The respondent relies on the evidence of Mr Seamer, Senior Assistant Ombudsman (general complaints) to support the claim for exemption.

Document 1 is described in the respondent's schedule of exempt documents as a draft letter to Dr Neal, President of the Board dated 4 February 1993, prepared by the then Ombudsman, Mr Geschke. It would appear that the final version of the letter which was sent to the Medical Board has been released to the applicant. Mr Seamer said in evidence that the document related to the Ombudsman's investigation of the applicant's original complaint against the Board and its handling of the complaint regarding the conduct of Dr Murphy. He said the letter was the first draft, with handwritten amendments, of a letter to Dr Neal seeking his response to the complaint made by the applicant's solicitor in 1975 and advising Dr Neal of the decision of the Ombudsman to reopen the investigation. He said disclosure of the document would reveal consultation or deliberation that took place between Mr Geschke and his officers in the course or for the purpose of the Ombudsman's deliberative processes. He agreed there was nothing to suggest that any one other than Mr Geschke drafted the letter and there was no evidence that Mr Geschke engaged in consultation or deliberation with any one else in relation to the draft.

67. I accept the submission for the applicant that the evidence does not establish that disclosure of the document would reveal consultation or deliberation that took place between Mr Geschke and his officers. Notwithstanding Mr Seamer's evidence to this effect, an examination of the document itself and Mr Seamer's own evidence does not establish that the preparation of the letter or the amendments were made as a result of consultation or deliberation between officers. I am satisfied however that the document contains "matter in the nature of opinion ... prepared by an officer ... in the course of, or for the purposes of the deliberative processes involved in the functions of an agency". A reading of the document indicates that it reveals the opinion of Mr Geschke for the purposes of investigating the applicant's complaint against the Board. Further, the handwritten amendments to the letter would, if released, disclose the author's preliminary thoughts, subsequently changed by the amendments.

68. It was contended for the applicant that the document did not meet the requirement of s.30(1)(b) that it would be contrary to the public interest to release the material. I accept Mr Bell's submissions that the evidence does not establish that disclosure would reveal the manner in which the Ombudsman conducts investigations and enable persons to frustrate those investigations using that knowledge. Mr Seamer's evidence that disclosure of the draft might reveal the practices of the Ombudsman was not convincing, particularly having regard to the contents of the letter.

69. I have had regard to the fact that the investigation is now long concluded (it was completed in January 1994) and the letter was prepared many years ago. However, Document 1 is an incomplete preliminary opinion. It expresses views which the author chose subsequently to "tone down" after reflection on the matter. It does not represent Mr Geschke's final opinion in writing to Dr Neal. In my view, having regard to those matters release will be contrary to the public interest as it will be confusing and engender necessary debate. As Mr Macnamara stated in Pullen v Alpine Resorts Commission (1995/21450 unreported) :

"Where the final report on a matter is made public, release of draft documentation which canvasses possibilities considered but not adopted will be contrary to the public interest as tending towards confusion".

70. It was submitted for the applicant that any factual material in the document should be released by virtue of s.30(3) of the FOI Act. The document does contain factual material. However, in my view, the factual material and the material which falls within s.30(1)(a) are so intertwined that it would be hard to separate them to produce an expurgated document of any meaning (see Re Kosky and Department of Human Services (1998) 13 VAR 420 at 424. On that basis, it is not appropriate that I release the purely factual material.

Document 4 is described in the schedule of exempt documents as a draft letter dated 16 April 1996 relating to the Ombudsman's third investigation prepared by Ms Mary Hughes and addressed to the applicant. The letter was in fact never sent. A perusal of the document indicates that it is marked in red with the word "Draft". It is a typed document which contains several handwritten corrections and additional sentences at the end of the letter. During cross-examination, Mr Seamer said that it was intended that the letter be signed by the Ombudsman and that it related to the merits of the case. He said the handwritten corrections and additions were made by Ms Hughes. Again, exemption is claimed pursuant to s.30.

72. Mr Bell submitted that this document was different to Document 1 in that it was Ms Hughes' final work and represented her view, although it was a draft which she prepared for the Ombudsman. The submission by Mr Bell in relation to the document was similar to that made in relation to document 1, that is that Mr Seamer, in claiming exemption, had confined himself to the second limb of s.30(1)(a), namely, that "disclosure would reveal consultation or deliberation that took place between the Ombudsman and his officers". I agree with Mr Bell's submission that the evidence does not establish this is the case. However, for reasons similar to those which I gave in relation to document 1, I find the document falls within s.30(1)(a). A consideration of Mr Seamer's evidence and an examination of the document itself indicates that the document expresses the views of Ms Hughes in relation to the applicant's complaint regarding the Department's investigation.

73. I am satisfied from Mr Seamer's evidence and an examination of the document that the Ombudsman did not concur with the contents of the letter and he did not sign it. As Mr Seamer said, the letter was "a move that the Ombudsman decided not to make". I am satisfied that the document falls within s.30(1)(b). With respect, I adopt Mr Macnamara's remarks in Re City Parking where he said at 229 :

"When one officer submits a draft to another, it is, in my view, an expression of opinion, recommendation or advice as the appropriateness of the proposed draft. It is contrary to the public interest to disclose documents which upon due consideration, the proposed signatory has regarded as wholly inappropriate for dispatch or inappropriate for dispatch save in an altered form".

Document 7 is a draft letter to the applicant from the Ombudsman dated 17 June 1996. I am satisfied for the reasons given in relation to the other draft letters that the document falls within s.30(1)(a). A perusal of the document indicates that it was prepared by Ms Hughes for the Ombudsman's consideration and it contains her views in relation to the applicant's complaint concerning the Department's investigation. The letter does not appear to have been sent to the applicant and it is apparent from the face of the letter that its contents were not adopted by the Ombudsman. The final version of the document is not document GW43 as surmised by Mr Bell. For reasons given in relation to the other documents, I am satisfied it would be contrary to the public interest to release it.

75. The applicant in the written submissions filed on her behalf and in her evidence, raised a number of questions regarding Ms Hughes' part in the Ombudsman's third investigation. For example, she asked why Ms Hughes remained an investigation officer in circumstances where she may have formed a negative view in the early stages of the investigation about the applicant's complaint. Release of the draft document will not assist in providing an answer to those questions. Further, as I indicate later in these reasons, there is nothing in the material before me, including the exempt material, which indicates that the investigation was carried out in an unsatisfactory or inappropriate manner. Accordingly, I am not persuaded that there are countervailing public interest factors which override the public interest in withholding such material.

76. It was submitted by Mr Bell that as Mr Geschke, Mr Perry and Ms Hughes had not been called to give evidence in relation to documents 1, 4 and 7, I should draw an inference that their evidence and particularly the evidence of Ms Hughes would not have assisted the respondent's case in accordance with the rule in Jones v Dunkel (1959) 101 CLR 298. In my view, the evidence that the respondent was seeking to adduce in relation to these documents was of a general nature, not intended to relate precisely to the circumstances of the Ombudsman's investigations concerning the applicant's complaints. In relation to Ms Hughes, whilst her evidence may have assisted in providing a better understanding of the manner in which the investigation was carried out by the Ombudsman, it is difficult to see how this would have assisted a determination of the central issues in this case. In my view, in such circumstances, it is not objectionable that the respondent did not seek to adduce evidence from those witnesses and, accordingly, I make no inference that their evidence would not have assisted the respondent's case.

77. In view of my findings documents 1, 4 and 7 are exempt under s.30.

TAPES OF INTERVIEWS - DOCUMENTS 25, 26, 27 AND 28

78. These documents are the tape recordings of the interviews conducted by Ms Hughes with Mr Howell, Ms Henderson, Ms Zuehlsdorff and Mr Levine. The interview with Mr Mercovich was taped but the tape is blank. I have been provided by the respondent with a transcript of the tapes. One of the exemptions claimed for these documents is s.35(1)(b).

79. It was Mr Seamer's evidence that for as long as the office of Ombudsman has existed, the office has operated on the basis that information obtained by those with whom interviews are conducted is taken and retained in confidence subject to the Ombudsman's power to release such information pursuant to s.20(1) of the Act. He said the Ombudsman dealt with officers of the Department regularly and they were well aware of the practices and procedures of the Ombudsman.

80. He said the issue of confidentiality may not come up at all during interviews, unless the officer is particularly concerned about it. If someone specifically seeks confidentiality but the Ombudsman believes the information provided by him or her should be disclosed, he writes to that person and in the end disclosure is a matter for the Ombudsman's judgment. During cross-examination, Mr Seamer agreed he was unable to say whether Ms Hughes said anything to any of the interviewees about confidentiality or whether any of the interviewees, apart from Mr Howell, raised the question with her. He agreed Mr Howell said merely that he did not want a departmental liaison officer to be present at the interview. He agreed that interviewees would expect that what they say may be released in the Ombudsman's report to the complainant, unless they raised the issue of confidentiality. Further, there was no evidence that Ms Hughes told the Ombudsman that the interviewees (other than Mr Howell) provided the information in confidence. He said, however, in general, interviewees raise the question of confidentiality very regularly.

81. When asked what impact disclosure of material obtained by the Ombudsman would have on the functions of the Ombudsman's office, he said :

"I think it would make the work of the office extremely difficult. We would still get information but we would get far less frank and full information than we are able to get at the present time".

He said that investigators had power to coerce people to give information but he went on to say :

"We can still, I believe, get the basic information - the information that is discernible from the file, given that the officers would know where we can get the file for instance, or witnesses would provide information that would answer the question, but I don't believe that it would necessarily - that they would necessarily answer the question in depth to the extent necessary to make our work effective".

82. He said that whilst the Ombudsman can obtain evidence either by using his coercive powers or by seeking information voluntarily, it was the accepted practice of the Ombudsman that in most investigations, information was sought from the relevant authority and third party witnesses on an informal basis. If the Ombudsman was required to use his coercive powers in every case, the time taken to complete an investigation would increase and the demand and resources would increase substantially. The investigation process would inevitably become more costly but less efficient.

83. It was submitted by Mr Tracey that information obtained by the Ombudsman and his officers was obtained in confidence for the purposes of s.35 of the FOI Act because s.20 of the Act required it. He said interviews had to be conducted in private and the only basis upon which the contents of those interviews might subsequently be given wider exposure was if the Ombudsman exercised his powers to report part of that material as permitted by the Act. Save in those very limited circumstances, the material had to be retained in confidence.

84. Mr Tracey conceded that the interviews conducted by Ms Hughes were not preceded with any formal statement by her promising to maintain confidence and assuring the person who gave evidence that it would be retained in confidence. However, he submitted that such assurances were not necessary; it did not matter what the interviewee did or did not want by way of confidentiality. It may be a matter to which an interviewee might not even turn his or her mind. He said the question was whether the structure of the legislation under which the interview took place imposed confidentiality. He submitted that it did, although the confidentiality was qualified by s.20(1) of the Act.

85. He conceded that the officer conducting the interview could not know what view the Ombudsman would take subsequently as to the extent of any disclosure. So, if an interviewee asked for a guarantee of confidentiality, this would not have been possible given the existence of s.20. He said this really emphasized the point that the communication of an interviewee was confidential and remained so unless and until the Ombudsman chose to exercise his powers under s.20(1). If he did not, it remained wholly confidential. If he did, to the extent of the release, the confidentiality was breached, but what remained was still confidential. That position remained, irrespective of the wishes of the person making the statement, because nobody with authority under the Act was in a position to release the information and, indeed, would commit a criminal offence if he or she did so.

86. Mr Tracey submitted that I should be 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 an agency to obtain similar information in the future. He relied on the evidence of Mr Seamer that the quality of information would be affected if it was disclosed. In support of his submissions he referred to the decision of Deasey v Geschke, Re Lapidos and Anor and Ombudsman (No 2) (1987) 2 VAR 148 and Lapidos (No 1).

87. It was submitted by Mr Bell that, in the light of Mr Seamer's evidence and Mr Tracey's concessions, the respondent had failed to discharge its onus of proving that the information was provided in confidence. This was supported by the fact that significant portions of the material (said to have been provided in confidence) had been released to the applicant in the Ombudsman's final report.

88. He submitted that I should have regard to the fact that nothing was said about the issue of confidentiality in any of the interviews, save for Mr Howell and that the interviewees spoke freely and at large to Ms Hughes without any request for confidentiality. He said that all interviewees were public servants answering questions put by Ms Hughes. As such they were required to provide such information as part of their duty as a departmental officer. It followed that the fact that the information was provided in the course of a discussion with the Ombudsman's office, did not, by itself, mean the information was provided in confidence.

89. Further, every public servant would know that he or she could not be confident that information was being provided in confidence because, by virtue of s.20(3), the Ombudsman could publish the information. However, none of the interviewees reached agreement with the Ombudsman that the information would be retained confidentially. He submitted I should find on the facts in the case of each interview that they were not conducted confidentially and that none of the informants gave the information in confidence. In relation to Mr Howell, he said he did not want a departmental officer to be present at the interview. This was not the same thing as seeking confidentiality. Mr Bell submitted that there was no intention by Mr Howell that the information be confidential in the wider sense.

90. It was further submitted by Mr Bell that the respondent had failed to discharge its onus of proving that the disclosure of the documents would be reasonably likely to impair the Ombudsman's ability to obtain similar information in the future. He argued that to suggest that public servants would not voluntarily provide information to the Ombudsman in future investigations if the documents were disclosed was merely a variant of the frankness and candour argument. It was the duty of departmental officers to be frank with the Ombudsman and to assist him with his investigations. Why then, should they not continue to do so? He pointed to the fact that there was no evidence that any witness had refused to co-operate. Further, as Mr Seamer conceded in his evidence, the Ombudsman can use similar evidence by using his coercive powers under sections 18 and 22 of the Act.

91. Mr Bell referred to Mr Seamer's evidence that if the Ombudsman was required to use his coercive powers in every case "the time taken to complete an investigation would increase and a demand on his resources would increase substantially". Mr Bell contended that there was no evidence to suggest that the Ombudsman would not be able to obtain similar information in the future if the documents were disclosed. Even if there was some delay in obtaining such information, because the Ombudsman needed to use his coercive powers, that delay did not constitute an "impairment" for the purposes of exemption. Mr Bell referred to Lavigne v The Office of the Commissioner of Official Languages, a decision of the Federal Court of Canada of 16 October 1998. In that decision, Dube J was required to review a decision of the Commissioner of Official Languages' refusal to disclose interview notes from his investigation files requested by the applicant under the Privacy Act. In determining that the information was not exempt from disclosure under the Privacy Act Dube J stated that the respondent had not established that there was a reasonable expectation of probable harm to the conduct of its investigation from such a disclosure. He said that proper circumspection (on the part of witnesses in an investigation) "would protect the integrity of the investigative process and the right of the individual's concerns to be fully informed of the case against him". Mr Bell submitted that these observations and findings were relevant to a determination of where the public interest lies for the purpose of s.35(1)(b). He said the question was : "Is the information likely to more reliable and truthful if confidentiality is provided, and a balance needed to be found between the competing considerations".

92. King J observed in Ryder v Booth [1985] VicRp 86; [1985] VR 869 at 883 that whether information is communicated in confidence is a question of fact and it is not necessary to consider whether legal obligations of confidence are set up by the communications in question. Gray J observed in the same case at 878 :

"It is necessary to look at the terms of the document, the nature of the information, the purpose for which and the circumstances in which it was provided, in determining its confidentiality".

93. I am satisfied that the information in question was communicated in confidence for the purposes of s.35(1)(b). 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), section 29(4) rendering the Ombudsman and his officers not compellable "in any court or in any judicial 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.

94. As Judge Hassett observed in Deasey v Geschke at p.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 Hassett J's remarks in Re Lapidos (No 2) (1987) 2 VAR 148 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).

95. I have had regard to the evidence before me that the question of confidentiality was not raised by the interviewees at the time they were interviewed by Ms Hughes. Further, Ms Hughes did not discuss the issue of confidentiality with the interviewees. I have also considered Mr Bell's submission that sections 10, 17 and 20 of the Act say nothing about the provider of the information requiring confidentiality. However, in my view, it can be inferred that if a communication is made with someone who has a statutory obligation to receive the information on a confidential basis the information is communicated in confidence.

96. I feel fortified in reaching this conclusion having regard to Mr Seamer's evidence that officers of the Department are well aware of the practices and procedures of the Ombudsman.

97. I have considered Mr Seamer's evidence that if a person specifically seeks confidentiality but the Ombudsman believes the information should be disclosed, he contacts the person before deciding whether to disclose it. In my view, the fact that there are degrees of confidentiality is not wholly destructive of a finding of confidentiality in the present case. There is no difference in essence between the various types of communication, and in the end, no guarantee that confidentiality will be provided by the Ombudsman.

98. I accept Mr Tracey's submission that the fact that the Ombudsman is empowered under s.20(1)(a)(i) to release information in his report or recommendations, does not affect the nature of his general confidentiality obligations. Such a provision merely serves to describe circumstances when such information can be disclosed without penalty.

99. I am also 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 an agency ... to obtain similar information in the future". In this regard, I accept the uncontradicted evidence of Mr Seamer that under a confidentiality regime people are more likely to volunteer information than would be the case if there is no specific protection. It is true that the Ombudsman could resort to his coercive powers bestowed by s.18(1) of the Act. However, as Deputy President Galvin observed in Re Lapidos (No 2) at 154 :

"This submission fails to take account of two important issues. The first is that information voluntarily given may come from a source unexpected by the Ombudsman against which source he might not have reasonably contemplated resorting to his coercive powers. The second matter is that even where the Ombudsman recognises a source of information, resort to his coercive powers may not result in as full a flow of information as might have been provided without coercion".

Similar observations can be made in relation to Mr Bell's submission that an officer is required to cooperate with the Ombudsman by reason of his status as an officer. Mr Galvin's observations are supported in part by Mr Seamer in his evidence before the Tribunal when he said :

"What you are wanting to do is to try and encourage somebody to be freely open and give you information. If you compel them they may well limit their responses to very literal responses to the questions asked rather than being expansive".

100. It may be, as suggested in Lavignes v Canada that information provided by a witness in the course of an investigation is likely to be more reliable and truthful if it is subject to the scrutiny of a complainant. The fact, however, that the Ombudsman has the power to release such information in his report is likely to overcome such a concern.

101. I am satisfied from a perusal of the documents in question and the evidence before me that disclosure of the documents would disclose information or matter communicated in confidence by a person to an agency and disclosure would be contrary to the public interest because it would be likely to impair the ability of the agency to obtain similar information in the future. Accordingly, the tapes of interview are exempt.

INTERVIEW PREPARATION NOTES - DOCUMENTS 12, 16 AND 22

102. These documents are described in the Schedule as "interview preparation notes" prepared by Ms Hughes. It was Mr Seamer's evidence that the notes were prepared to help the flow of the interview. They were an aide memoir or basic outline of the issues Ms Hughes believed would need to be covered. He said it did not necessarily follow that because certain questions and topics were referred to in the notes that they would be dealt with or pursued. A perusal of each document reveals a series of questions prepared by Ms Hughes.

103. Document 12, which deals with the interview with Ms Zuehlsdorff, also contains handwritten notes beside each question. It was Mr Seamer's evidence that these were Ms Hughes' handwritten notes as she proceeded through the interview with Ms Zuehlsdorff. My examination of the material confirms that this is the case and that the notes record the answers provided by Ms Zuehlsdorff to the questions.

104. Document 16 comprises 7 pages. The first page contains two paragraphs setting out the circumstances in which an interview between Ms Hughes and Mr Howell took place on 2 October 1996 and Ms Hughes' opinion as to those circumstances. The remainder of the first page comprises the list of questions which Ms Hughes prepared for the purpose of the interview. The remaining pages are headed "Precis of taped interview" and they record details of the interview with Mr Howell.

105. Document 22 has a handwritten annotation at the top of a list of questions prepared by Ms Hughes for the purpose of her interview with Mr Howell. Sections 30 and 35 are claimed for all these documents.

106. Mr Seamer said in evidence that an account of the information provided in the interviews was set out in the Ombudsman's final report. When asked why the notes should not be released in those circumstances, he said that there was information in the notes which did necessarily end up in the report and that it was not necessarily helpful to release such information, "particularly when it's all about issues that went off nowhere".

107. I am satisfied that the interview preparation notes in each of the three documents, so far as they comprise questions prepared by Ms Hughes for the purpose of the interview fall within s.30. Disclosure of the material would disclose matter in the nature of advice prepared by Ms Hughes to herself to assist her in carrying out the interviews. In my view it is not necessary that the documents in question be, for the purposes of the section, a communication from one officer to another officer or to a Minister. As Mr Macnamara found in Re Mildenhall and Dept of Education 14 VAR 87 at 90, a personal aide-memoire whose release would disclose matter in the nature of advice and recommendation could 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 this regard I am satisfied that the investigative process conducted by the Ombudsman is a deliberative process (see Lapidos No 2 (p.150) and Deasey v Geschke (p.38)).

108. I am also satisfied that disclosure of the material would be contrary to the public interest in that it would be likely to lead to confusion and unnecessary debate. I accept Mr Seamer's evidence that the questions were not necessarily asked by Ms Hughes but were for her own assistance. It is difficult to see in such circumstances how release would assist the applicant in clearing the air or holding the Ombudsman accountable for his actions.

109. Section 35(1)(b) is also claimed for the three documents. For reasons similar to those given in relation to the tapes of interviews, I am satisfied that Ms Hughes' handwritten notes in document 12 whereby she records Ms Zuehlsdorff's answers and the precis of taped interview attached to document 16 are exempt under s.35(1)(b).

110. The first two paragraphs of Document 16 are not, in my view, exempt under sections 30 or 35. The first paragraph deals with the circumstances in which the interview with Mr Howell took place and the second paragraph records further details of the circumstances of the interview and Ms Hughes' views in relation to a matter. To the extent that the second paragraph is factual it does not fall within s.30(1)(a). Insofar as the views expressed by Ms Hughes are concerned, the material appears to be unremarkable and I am not satisfied on the evidence before me it would be contrary to the public interest to release it. As to s.35(1)(b), these two paragraphs do not appear to meet the description "information or matter communicated in confidence". Accordingly, neither the first or second paragraphs in Document 16 are exempt.

111. The handwritten note at the top of Document 22 does not appear to meet the requirements of sections 30 or 35. The handwriting is difficult to decipher but it appears to relate to a query concerning an uncontroversial matter. Accordingly, that handwritten note should be released as it is not exempt.

NOTES OF THE INTERVIEWS - DOCUMENTS 6, 10, 11 AND 14

112. These are the notes of Ms Hughes after her interviews with Ms Levine, Ms Zuehlsdorff, Ms Henderson, Mr Mercovich and Mr Howell. Exemption is claimed for the material pursuant to s.35 save for parts of the documents which have already been released. An examination of the material indicates that the notes record information obtained by Ms Hughes during interviews with those people. For reasons similar to those given in relation to the tapes of the interviews, I am satisfied that the material falls within s.35(1)(b) and it is exempt. The documents also contain the questions asked by Ms Hughes in the interviews. For reasons similar to those given in relation to the interview preparation notes, that material is exempt.

NOTES FROM MS HUGHES' REVIEW OF DOCUMENTS - DOCUMENTS 5, 20 AND 23

113. The respondent claims exemption for these documents pursuant to sections 30 and 35. Document 5 is a file note prepared by Ms Hughes after inspecting files held by the Department.

114. It was Mr Seamer's evidence that the file note is Ms Hughes' "desk examination" of the Department's file and records her observations as to the contents of the file. He said that the file note also records Ms Hughes tactical suggestions as to what to make of the information on the file and where to proceed with it. My examination of the document accords with this evidence. Mr Seamer said the investigation did not necessarily go in the direction suggested by Ms Hughes. He said it was obvious from the Ombudsman's final report that he might not have agreed with Ms Hughes' suggested course of action.

At a glance

Court

Decision date

Before

Source

Judgment (249 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (6)