1

The decision under review is set aside in relation to Documents 5 and 14 save as provided in paragraph 2 of these orders.

2

The decision under review is affirmed in relation the four names at the foot of page 2 and the same four names under dot point 3 on page 5 in Document 5.

3

The decision under review is affirmed in relation to Documents 42, 43 and 50.

4

A stay of these orders is granted for 28 days.

1

By application for review filed with the Tribunal on 10 May 2004, the applicant sought to review a decision of the Medical Practitioners Board of Victoria (Board) made on or about 18 March 2004 refusing access to certain documents. The application arose in the following circumstances.

2

By letter dated 18 January 2004 to the Board, the applicant made an application under the Freedom of Information Act 1982 (the Act) for access to a number of documents concerning her. The request was clarified in further correspondence between her and the Board to be a request for access to documents relating to an investigation by the Board into a complaint made by the applicant about Dr Robyn Horsley. Dr Horsley is a medical practitioner registered in Victoria and subject to the regulation of the Board.

3

Further correspondence between the parties ensued and ultimately a number of documents were released to the applicant. Five documents remain in dispute and they are as follows :

•

Document 5 is a letter dated 23 July 2000 from Dr Horsley to the Board. Exemption is claimed for the document pursuant to ss 33 and 35(1)(b) of the Act.

•

Document 14 is a report of Dr Middleton investigating officer with the Board. It is dated 12 December 2001 but its correct date is 12 December 2001. It was released in part to the applicant. Exemption is claimed for the withheld parts under ss 30, 33 and 35(1)(b).

•

Document 42 is an undated file note relating to a telephone conversation with Dr Horsley on 9 March 2001. The note appears to have been made by the Board's FOI officer and it is marked private and confidential. The document has been released in part. The withheld parts are claimed to be exempt under ss 33 and 35(1)(b).

•

Document 43 is a memorandum dated 9 March 2001 from the FOI officer of the Board to Mr Stoney, Chief Executive Officer of the Board. That document has been released save for two lines for which exemption is claimed under ss 30, 33 and 35(1)(b).

•

Document 50 is a memorandum dated 5 April 2001 from the FOI officer to Dr Flynn, President of the Board. The document has been released save for two lines for which exemption is claimed under ss 30 and 35(1)(b).

4

The background to these proceedings is as follows.

5

The Board is responsible for the registration and regulation of medical practitioners in Victoria pursuant to the Medical Practice Act 1994. The Board receives complaints (now called notifications) by members of the public and others concerning the conduct of registered medical practitioners. In the ordinary course of events, when a complaint is received about a medical practitioner, an investigating officer conducts a preliminary investigation into the complaint and makes recommendations to the Board. Those recommendations can be that the investigation not proceed further, or that there be a formal hearing or an informal hearing into the matter.

6

In 1995, the applicant, whilst employed by Australia Post, made a claim for worker's compensation payments on the basis that she had sustained a psychiatric injury as a result of stress and harassment at work and that she was incapacitated for work.

7

The applicant began treatment with a psychiatrist, Dr Ranawera, in about December 1995. Dr Ranawera referred the applicant to Dr Horsley, who is an occupational physician, for the purpose of initiating a return to work plan. A previous return to work plan had failed and the applicant asserted that this was because there had been further harassment in the workplace.

8

It appears that the applicant saw Dr Horsley on two occasions in July 1996 in relation to the return to work plan. Dr Horsley subsequently prepared a report dated 22 July 1996 which was provided to the applicant and to Australia Post. In the report Dr Horsley set out a proposed a plan of action and the restrictions which she considered should be included in any return to work plan for the applicant.

9

By letter dated 30 May 2000 to the Board, the applicant made a number of complaints about Dr Horsley. They included that Dr Horsley had not paid sufficient attention to reports from her treating psychiatrist, that Dr Horsley had intentionally ignored her medical condition, that Dr Horsley recommended an inappropriate return to work programme and that Dr Horsley had discussed her case with people prejudiced against her.

10

By letter dated 4 July 2000 to Dr Horsley, Mr John Smith, at that time Registrar of the Board, informed Dr Horsley of the complaint, enclosed a copy of it and requested a written response to the allegations. The letter stated in part:

Note: The Board is an organisation subject to freedom of information legislation. It will endeavour to maintain confidentiality if you express that desire, but in the event that an appeal is made to the Victorian Civil and Appeals (sic) Tribunal, the Board may be obliged by law to disclose some or all of the material.

IMPORTANT: It is normal for the Board to release your letter to the complainant. It is important for you to advise the Board if there is any part of your response which you do not wish to release to the complainant.

11

By letter dated 23 July 2000 (Document 5), Dr Horsley provided an 8 page response to the complaint. In the response she did not address the issue of confidentiality raised by the Board or advise the Board that her letter should not be released to the applicant.

12

On 31 July 2000, Mr Smith wrote to the applicant stating that Dr Horsley had responded to the complaint and that she had provided the Board with her clinical notes and letters which were generated during her involvement with the applicant. Mr Smith stated that a copy of Dr Horsley's response was enclosed. In fact, for reasons which are unclear, Mr Smith only enclosed the last page of Dr Horsley's letter with some parts of the page deleted. Mr Smith requested the applicant's written comments in relation to Dr Horsley's response. By letter dated 8 August 2000 to the Board, the applicant provided a detailed reply to Dr Horsley's response.

13

Document 14 was subsequently prepared by Dr Middleton (the investigating officer) and forwarded to the Board for consideration as part of a preliminary investigation. Dr Middleton recommended that the investigation into the matter should not proceed further. That recommendation was accepted by the Board and by letter to the applicant dated 15 January 2001, Mr Smith advised the applicant that a preliminary investigation of the complaint had been carried out by the Board and it had determined that the complaint should not be further investigated. In the letter Mr Smith set out brief reasons for that determination.

14

After the hearing commenced I inspected the documents for which exemption was claimed. The inspection revealed that Document 5 referred to 13 people by name, and that the Board claimed exemption under s 33 of the Act in relation to those people as well as Dr Horsley. It also became apparent that none of those people other than Dr Horsley had been informed of the proceedings, or their right to intervene in accordance with s 53A of the Act.

15

In such circumstances, at the conclusion of the evidence, I directed that the Board give written notice of the proceedings in accordance with s 53A(1) and (2) of the Act to those people by 8 November 2004 and that they be requested to inform the Tribunal and the Board within 14 days (and not 21 days as specified in sub-section 2(b)) whether they intended to intervene. I directed that a Directions Hearing take place on 23 November 2004 to consider any responses that had been received from them.

16

At the Directions Hearing, Mr Gorton, counsel for the Board, informed me that all but one of the persons had been contacted in accordance with my directions. Each person had been informed that whilst the document the subject of the dispute was confidential, they could telephone the Board's solicitor to discuss the matter. One person could not be contacted as that person's union would not provide the person's address or forward on information to him. Of the other people contacted, six notified the Board that they would not be taking any action or did not wish to be involved, three people did not make any contact with the Board, two people had no objection to release (both being medical practitioners) and another person, a medical practitioner indicated he/she was unlikely to object.

17

Both parties relied on written submissions. In addition, Mr Smith, now Deputy Chief Executive Officer of the Board and the applicant, gave viva voce evidence and Mr Smith also relied on a written statement dated 8 October 2004.

18

It was apparent from the Board's submissions and the documents in dispute that Dr Horsley opposes release of Document 5.

19

In her evidence and submissions, the applicant expressed concern as to the manner in which her complaints had been investigated by the Board and she stated that only two of the issues raised by her had been investigated. She submitted that the Board did not conduct a fair and thorough investigation and she set out in some detail the basis for her concerns.

20

Mr Smith gave evidence that information provided to the investigating officer is provided in confidence and that it was the usual practice of the Board that all documents and instructions relating to a file remain confidential and not be disclosed throughout the investigation. He said that, in his opinion and in his experience, without protection of confidentiality, witnesses, complainants and medical practitioners would be less inclined to make a full and frank disclosure in response to a complaint to the Board.

21

He said at paragraph 5 of his statement that :

For an investigating officer adequately to investigate a complaint into a doctor's conduct, it is in nearly every case (and it was with this case) vital that the doctor being investigated provide a full explanation not just of the complainant's presentation and symptoms, but of the doctor's opinions, treatment and conduct, and the reasons for the doctor's conduct. That explanation will usually, as it did in this case, include information as to the patient's complaints and histories given, other sources of information that the doctor had and whether or not and how it was relied upon, the diagnoses and opinions formed by the doctor, the treatment given by the doctor, and otherwise seek to explain the actions taken by the doctor.

Complaints are often made by persons with psychiatric symptoms or diseases or undergoing treatment from a psychiatrist. In such cases, the information provided is particularly confidential, and often includes the doctor's opinions as to the patient's mental state - which opinions have often either not been fully communicated by the doctor to the patient, or have been communicated in a sensitive and particular way.

Neither the Board nor the investigating officer have the power to require a doctor under investigation, or anyone else, to provide any information to the investigating officer. The fact that confidentiality is maintained in respect of all such communications is necessary not only to ensure that the rights and reputations of the doctors under investigation are protected, but, more importantly, to encourage witnesses, complainants, other doctors and the doctors under investigation to be forthcoming in making or responding to complaints, in order to assist the Board to achieve its aims of protecting the public by properly regulating medical practitioners.

... the investigating officer in his or her final report recommends whether the matter proceed to a formal hearing, an informal hearing, or that no further action be taken. In order for the Board to be able to decide whether to accept or act upon that recommendation, it is vital that the report set out fully the relevant material that the investigating officer took into account, and the process of reasoning that led to that recommendation. This will, almost inevitably, require the setting out and a discussion of the confidential material.

25

Mr Smith expressed the view that to release the withheld parts of Document 14 containing such information would inhibit the ability of investigating officers to frankly express a view on the merits of complaints because they would be loathe to put information in the reports if they did not have the permission of the medical practitioner to do so. This would inhibit the Board's ability to adequately assess the report and recommendations made. Mr Smith said that the Board was concerned to maintain confidentiality in the communications made by Dr Horsley to its officers in the course of the investigation into the applicant's complaints and the initial FOI request and that this was particularly so given the nature of the applicant's underlying stress condition, the candour of the views expressed by Dr Horsley and the fact that the Board did not proceed to an informal or formal hearing against Dr Horsley.

26

Mr Smith said that if an investigating officer's report was released in circumstances where a medical practitioner sought confidentiality, it might well mean that the officer did not put information in the report but may provide the information orally at professional conduct committee meetings of the Board. In addition to making a verbal report, he said that no one would take file notes of what was said, if such information was released.

27

He was asked by Mr Gorton whether he was aware of any situations where an investigating officer had reported orally to the Board beyond the substance of the material in his or her written report. Mr Smith replied that he could recall two occasions where this occurred. They involved the professional conduct committee but he could not recall the circumstances, or whether it was confidential information, save that one of the cases may have related to a family member who had provided information and there was concern that the information may have been released under FOI.

28

Mr Smith said he was opposed to the release of Document 14, whether or not it contained information which Dr Horsley sought to keep confidential, because it was an internal working document. He said that if this document was released it would mean that all such reports would have to be released and if the recommendation in a report was not accepted by the Board, this would call into question the competence of the investigating officer.

29

Section 35(1)(b) is in the following terms :

35. Documents containing material 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 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.

30

Section 55(2) of the Act has the effect that the Board has the onus in establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.

31

As I indicated earlier, s 35(1)(b) is claimed for all five documents in dispute. The exemption requires that the communication to the Board be in confidence and there must be proof that disclosure would be reasonably likely to impair the Board from obtaining similar information in the future.

32

The Full Court of the Supreme Court of Victoria considered the operation of the s 35(1)(b) exemption in Ryder v Booth [1985] VicRp 86; [1985] VR 869. At p 871, Young CJ stated :

Paragraph (b), which has been set out above is, as Gray J has written a wordy provision and I agree with his Honour that the paragraph would probably have achieved its purpose if it had read 'the disclosure of the information would impair the ability of the agency to obtain similar information in future'. I take the phrase 'by reason that' to mean 'because'.

Put in terms of the present appeals this means that the question is, would the disclosure of the information damage the ability of the Board to obtain frank medical opinions in the future. It may be noted that it is the ability of the Board that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. There may well be feelings of resentment amongst those who have given information 'in confidence' at having the confidence arbitrarily destroyed by the operation of the legislation, but it is another thing altogether to say that they or others will not provide such information in future. It is not sufficient to show that some people may be inhibited from reporting so frankly if they know that their report may be disclosed. More is required to satisfy the onus cast upon the agency by s 55(2) of the Act.

34

King J in Ryder v Booth observed at p 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 p 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.

35

Hedigan J in Medical Practitioners of Victoria v Sifredi & Anor [2000] VSC 33; (2000) 16 VAR 347 stated :

It would seem to be beyond doubt that the public interest in the objects of the Act are important matters to be weighed against the reasonable likelihood of impairment comprehended by s.35(1)(b), particularly where the question of proof of the risk is not a matter of fact and could rarely be established. It is the satisfaction about damage to the ability of the Board to obtain information in the future that is critical. In my view, language of this kind in the Act, and in the context, draws in elements of estimation and judgment rather than proof of a likelihood, as might arise about a fact in the litigation context. This is doubtless why no specific degree of likelihood or probability has been assayed in any of the authorities, leaving it to be judged in a broad way. In Ryder's case Young CJ (873) referred to a requirement that the release of the documents affect the Board's operation 'significantly'. See also Gray, J at 880 and Marks, J in Binnie's case at 843. No argument was advanced that resentment or reluctance of a particular doctor to the breaching of confidence could amount to a sufficient impairment.

36

Document 5 contains a mixture of opinions expressed by Dr Horsley, factual matters, information received from others and a history obtained from the applicant. In Document 14 Dr Middleton refers to the information received from Dr Horsley and gives consideration to that material.

37

I turn first to Document 5. Assuming without deciding that the information in Document 5 was communicated in confidence by Dr Horsley to the Board, I am not satisfied that disclosure would be reasonably likely to impair the ability of the Board to obtain similar information in the future. I was not persuaded by the evidence of Mr Smith that without protection of confidentiality, medical practitioners will be less inclined to make a full and frank disclosure in response to complaints to the Board.

38

Macnamara DP's observations in Sifredi v Medical Practitioners Board (1998/05623) 2 March 1999 unreported, subsequently upheld on appeal by Hedigan J in Medical Practitioners Board of Victoria v Sifredi and Another 2000 VSC 33 are pertinent. At p 5 Macnamara DP made the following observations in relation to s 35(1)(b) which had been claimed in relation to reports by the Board's investigating officer :

.... a practitioner who is approached in this way by the Board and who is either innocent of any wrongdoing or is convinced that he is innocent will have the strongest possible incentive to speak out and to speak fully. Any disciplinary action is a painful and embarrassing episode in a professional life. Any professional man who believes he has the means of heading off and limiting such action will be likely to take that step.

On the other hand a practitioner who has something to fear in terms of making a full disclosure to the Medical Board who are for present purposes the police of the profession, will have perhaps strong motives for being less than frank. In the case of a practitioner who is himself the subject of an enquiry or a proposed enquire, these considerations seem to be the overwhelmingly important ones, rather than the question of confidentiality or no. It is obvious that where the Board seeks information from third parties who are not the subject or threatened subject of enquiry, very different considerations would apply [cf Lapidos v The Ombudsman (No 1) (1987) 2 VAR 82] and so I confine myself to the situation which presents itself here, namely the situation of a practitioner who is himself the subject of an enquiry or a proposed enquiry.

I respectfully adopt those observations. In my view they are relevant notwithstanding the circumstances in Sifredi are somewhat different in that several of the doctors involved in those proceedings consented to release of documents they had furnished to the Board.

39

I accept that Mr Smith has considerable experience in medical administration. Nevertheless, as Hedigan J. observed in Medical Practitioners Board v Sifredi in relation to somewhat similar evidence from Mr Smith and Mr Ball :

Whilst the opinions of Messrs Smith and Ball, men of substantial experience in medical administrative matters, must be respected, nevertheless what they have stated is an opinion or estimation as to the reactions of the medical profession at large. Doubtless there would be other persons in the field with a different opinion. Furthermore, although both men have spent a long time in the positions which they now occupy, no statistical, scientific or even anecdotal information has been provided to underwrite the formation of the opinions expressed. If the position were that doctors who were being asked to co-operate had stated on frequent occasions that they would not help at all or only help to a limited degree because of the risk of their statements or advice not being held confidential, it would be surprising if no record or records of such a pattern of behaviour had been kept or exists. The Tribunal obviously thought that much of this was sheer hypothesising and formed the view that such generalised opinions, not backed by any hard evidence, had to be suspect. The Tribunal reached its conclusion bearing in mind that proof lay upon the Medical Practitioners Board to satisfy the Tribunal that the decision of the Board to exempt was justified.

40

I did not understand Mr Smith to be saying that doctors would refuse to respond to a request from the Board for information in the event a doctor's request for confidentiality was not observed. Rather he opined that doctors would be less inclined to make a full and frank disclosure. However, as Macnamara DP observed in Sifredi (p8) it is apparent from Ryder v Booth (per Young CJ at 892) that mere apprehension of lack of full frankness and candour is not sufficient to make out the exemption.

41

It may be that there will be cases where the withheld information is particularly sensitive. For example, it may include a doctor's opinion about a patient's mental state which the patient may be unaware of. This is not the case here. Dr Horsley saw the applicant to initiate a return to work and any views in her report as to the applicant's psychiatric condition are known to the applicant because she has had released to her a fairly robust report by a psychiatrist, Dr Mendelson. He appears to have examined the applicant at the request of Australia Post.

42

Dr Horsley did not provide a witness statement and she was not called to give evidence. Accordingly it was not possible to test the basis for her concern about release of Document 7. However, she was aware when she responded to the applicant's allegations that the Board was subject to the Act and that it might be obliged to disclose some or all of the material. This was made clear in the letter from Mr Smith to her of 4 July 2000.

43

I turn now to Document 14 being Dr Middleton's report. I am satisfied from the evidence of Mr Smith that the report was provided in confidence by Dr Middleton to the Board. I am not satisfied however, on the material before me, that disclosure would be reasonably likely to impair the ability of the Board to obtain similar information in the future.

44

For reasons given in relation to Document 5, I am not satisfied that the exemption has been made out in relation to the material provided by Dr Horsley and included in Document 14. Further, I was not convinced by Mr Smith's evidence that release of such material in an investigating officer's report would impair the ability of the investigating officer to frankly express his or her views on the merits of the complaint because investigating officers would be loathe to put information in the report if they did not have the permission of the doctor to do so. Mr Smith agreed that an investigating officer would always carry out an investigatory role and express a view, irrespective of release of any material. In his long experience as an officer of the Board, he could only recall two instances where an investigating officer had reported orally to the Board beyond the substance in the written report and the circumstances of those cases were not entirely clear.

45

The applicant referred me to an unreported decision of Macnamara DP in Anderton v Medical Practitioners Board (1995/02145) in the Administrative Appeals Tribunal. The Deputy President in dealing with a claim under s 30 in relation to an investigating officer's report observed as follows :

The investigating officers, as I understand their role under the Board's statute have a duty to report. There is no reason to think they will do other than comply with their statutory duty even if their reports are released.

46

Further, Document 14 does not appear to contain material which is particularly sensitive or confidential and of the type referred to by Mr Smith in para 5 of his written statement. The observations of Hedigan J in Medical Practitioners Board of Victoria v Sifredi & Anor at para 22 are pertinent :

... I take the view that the question of whether a disclosure is reasonably likely to impair the ability of an agency to obtain similar information in the future ought to be taken on case-by-case basis as the context, background or evidence may be more or less influential on the body charged with making a decision in different cases.

In the present case, I am not satisfied that the Board has discharged the onus cast upon it by s 52 of the Act.

47

I turn to Document 42. Mr Smith gave evidence that the document is a file note by the Board's FOI officer of a conversation with Dr Horsley setting out Dr Horsley's attitude to release of the documents in dispute and Dr Horsley's opinion as to the applicant's behaviour. He said the information provided to the FOI officer was confidential in nature. Mr Smith said that :

If file notes such as this were to be made public, in my opinion persons in Dr Horsley's position would be inhibited from expressing full and frank views to the FOI officers, and the FOI officers would be inhibited from making full and accurate files (sic) notes. In this way the proper handling of any application would be inhibited.

48

Mr Smith gave evidence that Document 43 is the FOI officer's report following the applicant's initial FOI request containing a recommendation (amongst other things) that Dr Horsley's letter, being Document 5, not be disclosed. Document 50 is the FOI officer's report following a request for an internal review, in which the recommendation is made to maintain the denial of access to documents including Document 5. Mr Smith said that both documents contain paragraphs that summarise confidential communications received from Dr Horsley. Mr Smith said :

In my opinion, if otherwise confidential and exempt information were made public by reason of being included in such reports, those responsible for those reports would be likely not to include such information. In this way, proper assessment of a recommendation would be difficult if not impossible, and the decision making process would thereby suffer.

49

I am satisfied that the withheld information in the three documents was provided in confidence by Dr Horsley. This is apparent from an inspection of the documents which indicate confidentiality was sought by Dr Horsley as well as Mr Smith's evidence.

50

The evidence before me however did not establish that release of that material would impair the ability of the Board to obtain similar information in the future. In particular, I was not convinced that Mr Smith's evidence of impairment has any basis, for reasons similar to those given in relation to Documents 5 and 14.

51

In view of my findings, none of the documents is exempt under s 35(1)(b).

(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).

"information relating to the personal affairs of any person" includes information -

(a) that identifies any person or discloses their address or location; or

(b) from which any person's identity, address or location can reasonably be determined.

53

For a document to be exempt under s 33(1), two conditions must be satisfied. Disclosure of a document must involve the disclosure of information relating to the personal affairs of a person and such disclosure must be unreasonable. As indicated earlier, this exemption was claimed for all five documents.

54

It was submitted by Mr Gorton that release of the documents would involve the unreasonable disclosure of information relating to the personal affairs of Dr Horsley and of the other persons referred to in Document 5, and subsequently incorporated into Document 14. Mr Gorton referred in particular to Dr Horsley's response to the allegations, the information she provided in relation to her conduct, the views that she had expressed and the manner of her professional practice. He referred to several passages in document 5 which, he submitted, were of particular sensitivity. He submitted that release of the document would be unreasonable, because the public interest in protecting information such as the information under consideration, outweighed any public interest in having it disclosed. That public interest included the public interest in private and sensitive information being protected generally and the public interest in persons under investigation providing information and full and frank explanations to investigating officers, particularly, where the provision of that information could not otherwise be enforced, as was the case under the Medical Practice Act 1994.

55

In support of his submission that the opinions expressed by Dr Horsley in her medical practice related to her personal affairs, Mr Gorton referred me to a decision of the Appeal Division of the Supreme Court of Victoria in University of Melbourne v Robinson [1993] 2 VAR 177. At 187, Brooking J said :

The reference to the "personal affairs of any person" suggest to me that a distinction has been drawn by the legislature between those aspects of an individual's life which might be said to be of a private character and those relating to or arising from any position, office or other public activity with which the person occupies his or her time.

56

Mr Gorton also relied on a decision of Macnamara DP in Ambikapathy v Victoria Legal Aid [1999] VCAT 1361. At para 18 the Deputy President noted that the communication in the document for which exemption was claimed was made in the author's profession as a legal practitioner. He said that :

As a non-agency officer, a private legal practitioner has 'no official' life in the same way as an agency officer does. It might be thought however that the practice of one's chosen profession is part of one's public rather than a private or personal life. In the end I am left uncertain whether disclosure of this document ought to be regarded as the disclosure of information relating to the personal affairs of the author and ... I prefer to leave that question open_._

57

Mr Gorton also referred me to several other decisions of this Tribunal including Hutchison v Department of Human Services 12 VAR 423, although he conceded that those decisions were not exactly on point.

58

Having regard to the passages just referred to, it is arguable that the documents if disclosed would involve the personal information of Dr Horsley and the other people referred to by her in Document 5. It is apparent from s 33(9) that information relating to the "personal affairs of a person" includes information that identifies any person.

59

I am not satisfied however, that disclosure would involve the unreasonable disclosure of information relating to the personal affairs of any person, whether it be Dr Horsley or the other people referred to by Dr Horsley in Document 5, save for the four names to which I will shortly refer.

60

A consideration of unreasonableness requires a balancing process which was described by Judge Jones, then President of the Tribunal, in Re Page v Metropolitan Transit Authority (1988) 2 VAR 243 at 245-246. His Honour remarked :

What therefore has to be decided is whether disclosure of this information would be unreasonable. This requires a balancing of interests: the right to personal privacy of an individual whose personal affairs may be unreasonably disclosed by grating access to the information and the object of the Act to extend as far as possible the right of the community to access to information in the possession of Government or agencies ... more particularly, this balancing of interest requires a consideration of all the circumstances, including the interest that the applicant has in the information in question, the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent and whether the information has any current relevance.

61

In deciding whether access would be "unreasonable" for the purposes of s 33, the Tribunal must look at all the circumstances of the application including the purpose for which access is required (see Re McNamara v Department of Human Services [2004] VCAT 1085 at 10).

62

In Re Lapidos v Officer of Corrections (No 3) (1990) 4 VAR 150, the Tribunal observed :

It is true that a general right of access to agency documents is accorded to "every person" (p 13), and that it is not a condition of eligibility or access that the applicant should have a particular interest in the subject matter of the document. But when the legislation makes an exemption on whether disclosure of a person's personal affairs would be "unreasonable", one is driven to consider the purpose of the application. Disclosure to one applicant, such as the applicant in Re Simons and Victorian Egg Marketing Board (No 1) (1985) 1 VAR 54, might not be unreasonable but it might be unreasonable vis-à-vis another applicant. ... The very words "unreasonable disclosure" compel one to engage in a balancing exercise, weighing, on the one hand, the strength of the applicant's claim to access, and, on the other hand, the interests of other persons to maintain the integrity of their personal affairs and privacy.

63

Dealing first with Documents 5 and 14, there are several circumstances which persuade me that disclosure would not be unreasonable. In this case, the withheld information whilst relating to the personal affairs of others, including Dr Horsley, more particularly relates to the applicant's personal affairs. Much of it is factual in nature and likely to be known to the applicant.

64

Further, in my view the applicant has received inadequate information as to the basis for the Board's decision not to further investigate her complaint. Release of the material in Document 5 (reflected in Document 14) will assist the applicant in understanding the reasons for the Board's decision. It is relevant in this regard that Mr Smith conceded that she had received minimal information and that the Board now gives more detailed reasons to people who have made notifications. In so saying, I make no findings (and the material does not permit me to do so) as to whether there is any merit in the applicant's complaints concerning Dr Horsley and the Board's investigation.

65

Mr Smith expressed concern about release having regard to the applicant's stress condition and the candour of the view's expressed by Dr Horsley. Mr Gorton submitted that the second last sentence in Document 5 was particularly sensitive. I think it unlikely that either document 5 or 14 (including the sentence referred to by Mr Gorton) would hold any surprises for the applicant if they were released. The material largely deals with Dr Horsley's involvement with the applicant and the actions taken by her to initiate a return to work.

66

As to the other people whose personal affairs are sought to be affected, I note that none sought to intervene in these proceedings or objected to release. Further, on its face the information concerning them does not appear to be particularly sensitive, except for four people who are named on pages 2 and 5 in Document 5 as being the subject of certain proceedings. In my view it would be unreasonable to release their names (given release is to the world at large) in the circumstances pertaining here. Accordingly, the reference to those names at the foot of page 2 and at the third dot point on page 5 are exempt. Save for those names I am not satisfied on the material before me that disclosure would be unreasonable. Accordingly, save for those names the claim for exemption under s 33 is not made out for Documents 5 and 14.

67

I turn now to Documents 42, 43 and 50. The withheld material on its face concerns Dr Horsley's own sensitivities and perceptions which, in the circumstances, it would be unreasonable to disclose. Release of the information would not, in my view, assist the applicant in understanding the basis of the Board's decision not to further investigate her complaint. In my view, these matters outweigh the applicant's right to information concerning her. Accordingly that material is exempt.

68

This exemption is claimed in relation to Documents 14, 43 and 50. I have already found the withheld material in Documents 43 and 50 to be exempt under s 33, so it is not necessary to consider the s 30 exemption in relation to these two documents.

69

Section 30(1) states :

(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

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Deputy President Macnamara in Anderton made the following observations at p 2 in relation to a claim under s 30 by the Board in respect of an investigator's report :

It is relevant at this point to consider the decision of Judge Rowlands, the then President of this Tribunal in the matter of Coleman v Director-General of The Local Government Department of Pentland (1985) 1 VAR 9.

In Coleman's case, his Honour had to consider an application for a report by an inspector acting under the Local Government Act addressed to the Minister for Local Government. As a result of the report, the Minister took particular action. The respondent in Coleman's case relied upon the exemption under Section 30(1). His Honour said at (1985) 1 VAR 9, 11

'I find it difficult to accept that a person in the position of the inspector writing his final and considered report after an investigation is involved in the creative debate which comprises part of the governmental decision-making process, as that concept is understood in policy-forming activities'.

In substance therefore, his Honour found that the deliberative process had concluded when the inspector made his final report which was the basis of the decision made by the Minister. It seems to me that this could very well be the view taken of the present report.

Mr Sizeland has informed me as I have noted previously that Ms Anderton's complaint was summarily dismissed by the Board. The views expressed in the report which it received from its investigating officer were in no way inconsistent with the decision which the Board ultimately made. No evidence has been called by the respondent and therefore, there is no evidence to rebut the obvious inference that the Board accepted the report made to it by its investigating officer, in the same manner that the Minister for Local Government accepted the report in the Coleman's case. If that is correct, then the exemption under Section 30(1) cannot apply for the simple reason that the report in question was made after the conclusion of the deliberative process in accordance with the reason of His Honour Judge Rowlands. Lest I am wrong in that, I will however consider other aspects of the exemption claimed by the respondent.

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In the event, Deputy President Macnamara went on to consider s 30(1)(b). In accordance with that sub-section, the Tribunal must be satisfied that disclosure would be contrary to the public interest. In Ryder v Booth [1985] VicRp 86; [1985] VR 869, Grey J stated at 879 :

[T]here is always difficulty in identifying what is the public interest in a particular situation. In the present context, I consider that there are only two aspects of the public interest which fall to be considered. One is the particular interest in persons having access to documents, including confidential documents, which concern them but which are in the hands of an agency. The second is the public interest in the efficient and economical conduct of a government agency. In relation to the issue raised under s 30(1)(b), I consider that the appellants must prove that the disclosure would be contrary to the public interest after a balancing of the two considerations I have mentioned.

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Mr Macnamara's observations in my respectful opinion have some weight. However, I will also consider the application of s 30(1)(b).

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The Board, in its statement of public interest grounds filed with the Tribunal referred to the following public interest considerations :

•

the public interest in private and sensitive information being protected generally - the relevant private information here includes not just the detailed information about the applicant and her medical state and treatment but also the information about the conduct and opinions of Dr Horsley and various other persons mentioned in the report;

•

the public interest in persons under investigation providing information and full and frank explanations to investigating officers, particularly when the provision of that information cannot otherwise be enforced. The public interest is promoted by efficient investigations, and efficient investigations are promoted by the provision of full and frank information. If the provision of confidential and sensitive information to an investigator resulted in that information becoming public (including to the complainant), there would be a much greater reluctance to volunteer information. This would impede effective investigation, and the public interest would thereby be affected;

•

the public interest is promoted by officers of the respondent being able to prepare memoranda that refers to relevant confidential and sensitive information without that information being made public. Otherwise such persons are likely to be less full and frank in their memoranda and such memoranda are likely to be of less assistance in the efficient management of the respondent.

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I am not satisfied that it would be contrary to the public interest to release the document. I have already dealt with the public interest grounds raised above in connection with sections 33 and 35(1)(b) and rejected the assertions which form the basis of the public interest grounds.

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Mr Smith, in his evidence, said he was opposed to the release of Document 14 because it was an internal working document. It is apparent from the terms of s 30(1) however, that a document is not exempt merely because it is such a document. Section 30(1)(b) must also be satisfied. It might, in any event, be thought that release of such reports under the Act has the potential to improve the standard of investigation and investigators' reports.

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Mr Smith also indicated his opposition to release of such documents on the basis that if the document was released it would mean that all such reports would have to be released. I do not accept his evidence to this effect. Each case will necessarily turn on its own facts and it may well be that the particular facts will support a claim for exemption under s 30. Mr Smith also expressed concern that if it became known that a recommendation in a report was not accepted by the Board, this would call into question the competence of an investigating officer. Such circumstances are not relevant in the present case.

SECTION 50(4)

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Section 50(4) of the Act permits the Tribunal "where the public interest requires" to override most of the exemptions provided for in the Act but not the exemption constituted by s 33. As I have found Documents 42, 43 and 50 to be exempt under s 33, it is not necessary to consider s 50(4).

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In view of my findings, I make the following orders :

1. The decision under review is set aside in relation to Documents 5 and 14 save as provided in paragraph 2 of these orders.

2. The decision under review is affirmed in relation the four names at the foot of page 2 and the same four names under dot point 3 on page 5 in Document 5.

3. The decision under review is affirmed in relation to Documents 42, 43 and 50.

4. A stay of these orders is granted for 28 days.

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Having regard to the provisions of s 53A(3), it is appropriate that notice of this order should be given to the persons named in Document 5.