‘BA7’ and Goulburn Valley Health (Freedom of Information) [2020] VICmr 11 (24 January 2020)

All references to legislation in this document are to the Freedom of Information Act 1982 (Vic) (FOI Act) unless otherwise stated.

Notice of Decision

I have conducted a review under section 49F of the Agency’s decision to refuse access to documents requested by the Applicant under the FOI Act.

My decision on the Applicant’s request differs from the Agency’s decision.

On the information available, I am satisfied the exemptions in sections 30(1), 32(1), 33(1), 35(1)(b) apply to certain documents and have decided to release the documents in part.

The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.

My reasons for decision follow.

Joanne Kummrow

Public Access Deputy Commissioner

24 January 2020

Reasons for Decision

Background to review

1. The Applicant made a request to the Agency for access to the following documents:

All files, notes, records, reports, case notes, assessments, correspondence, communications, or other documents (as defined in the Interpretation of Legislation Act 1984 and the Evidence Act 2008) relating to the complaint made on [date] by [Applicant] in relation to [named Agency staff member], including but not limited to details of all interviews undertaken and transcripts thereof, details of what action has been taken to discipline [named Agency staff member] and to educate [them] with respect to [their] obligations as a medical practitioner; and what steps will be taken by Goulburn Valley Health to ensure such behaviour is not repeated and that patients are not exposed to similar intimidation from medical practitioners in the future.

2. In its decision, the Agency identified 110 documents within the scope of the request. The Agency decided to release 42 documents in full, three documents in part, and to refuse access to 65 documents in full.

Review

3. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
4. The Applicant also lodged a complaint with this office in relation to the adequacy of the document search conducted by the Agency. The complaint has been dismissed in accordance with section 61B(1)(b).
5. I have examined copies of the documents subject to review.
6. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.
7. I have considered all communications and submissions received from the parties, including:

• 1. the Agency’s decision on the FOI request;
  2. the Applicant’s review application and submission dated [date];
  3. the Agency’s submission dated [date].

8. In undertaking my review, I have had regard to the object of the FOI Act, which is to create a general right of access to information in the possession of the Government or other public bodies, limited only by exceptions and exemptions necessary to protect essential public interests, privacy and business affairs.

Review of exemptions

9. The Agency relied on the exemptions in sections 30(1), 32(1), 33(1), 35(1)(b) and 38 to refuse access to parts of the documents. The Agency’s decision letter sets out the reasons for its decision.

Section 30(1)

10. Section 30(1) has three requirements:

• 1. the document must 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;
  2. such matter must be made 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
  3. disclosure of the matter would be contrary to the public interest.

11. The exemption does not apply to purely factual material in a document.^[1]
12. I must also be satisfied releasing this information is not contrary to the public interest. This requires a ‘process of the weighing against each other conflicting merits and demerits’.^[2]
13. In deciding if release is contrary to the public interest, I must consider all relevant facts and circumstances remaining mindful that the object of the FOI Act is to facilitate and promote the disclosure of information.
14. In deciding whether disclosure of the matter would be contrary to the public interest, I have taken the following into consideration^[3]:
    1. the right of every person to gain access to documents under the FOI Act;
    2. the degree of sensitivity of the issues discussed in the documents and the broader context giving rise to the creation of the documents;
    3. the stage of a decision or status of policy development or a process being undertaken at the time the communications were made;
    4. whether disclosure of the documents would be likely to inhibit communications between agency officers, essential for the agency to make an informed and well-considered decision or participate fully and properly in a process in accordance with the agency’s functions and other statutory obligations;
    5. whether disclosure of the documents would give merely a part explanation, rather than a complete explanation for the taking of a particular decision or the outcome of a process, which the agency would not otherwise be able to explain upon disclosure of the documents;
    6. the impact of disclosing documents in draft form, including disclosure not clearly or accurately representing a final position or decision reached by the agency at the conclusion of a decision or process; and
    7. the public interest in the community being better informed about the way in which the agency carries out its functions, including its deliberative, consultative and decision-making processes and whether the underlying issues require greater public scrutiny.
15. My decision in relation to each document is set out in the schedule at Annexure 1.

Section 32(1)

16. Section 32(1) provides:

Documents affecting legal proceedings

(1)     A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege or client legal privilege.

17. A document will be subject to legal professional privilege and exempt under section 32(1) where it contains a confidential communication:^[4]

• 1. between the client (or the client’s agent) and the client’s professional legal advisers, that was made for the dominant purpose of obtaining or providing legal advice or is referrable to pending or contemplated litigation; or
  2. between the client’s professional legal advisers and third parties, that was made for the dominant purpose of pending or contemplated litigation; or
  3. between the client (or the client’s agent) and third parties that was made for the purpose of obtaining information to be submitted to the client’s professional legal advisers for the dominant purpose of obtaining advice on pending or contemplated litigation.

18. The High Court of Australia has held the purpose of legal professional privilege, or client privilege ensures a client can openly and candidly discuss legal matters with their legal representative and seek legal advice:

The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor.[5]

19. In considering whether legal professional privilege applies, I must consider the dominant purpose for which the confidential communication was made.[6]
20. My decision in relation to each of the documents the Agency decided is exempt under section 32(1) is set out in the schedule at Annexure 1.

Section 33(1)

21. A document is exempt under section 33(1) if two conditions are satisfied:

• 1. disclosure of the document under the FOI Act would ‘involve’ the disclosure of information relating to the ‘personal affairs’ of a person other than the Applicant;^[7] and
  2. such disclosure would be ‘unreasonable’.

22. Information relating to a person’s ‘personal affairs’ includes information that identifies any person or discloses their address or location. It also includes any information from which this may be reasonably determined.^[8]
23. The concept of ‘unreasonable disclosure’ involves balancing the public interest in the disclosure of official information with the personal interest in privacy in the circumstances of a matter.
24. Section 33(2A) requires, in deciding whether the disclosure of a document would involve the unreasonable disclosure of information relating to the personal affairs of any person, I must take into account whether the disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person. However, I do not consider this to be a relevant factor in the circumstances.
25. In deciding whether disclosure of a document would involve the unreasonable disclosure of a third party’s personal affairs information, an agency must notify that person (or their next of kin, if deceased) an FOI request has been received for documents containing their personal information and seek their view as to whether disclosure of the document should occur.[9] However, this obligation does not arise if:
    1. the notification would be reasonably likely to endanger the life or physical safety of a person, or cause them undue distress, or is otherwise unreasonable in the circumstances;
    2. the notification would be reasonably likely to increase the risk to the safety of a person experiencing family violence; or
    3. it is not practicable to do so.[10]
26. The Agency consulted with certain affected third parties in this matter. I have taken their responses into consideration in my assessment of each document claimed under section 33(1).

Do the documents contain the personal affairs information of individuals other than the Applicant?

27. The Agency applied section 33(1) to the following types of information:
    1. the email address of the Agency officer subject to the complaint;
    2. sensitive health and personal information about an Agency officer that was communicated in confidence;
    3. the names, roles and personal accounts of Agency officers; and
    4. the name of another patient.
28. I agree the above is personal affairs information of individuals other than the Applicant.

Would release of the personal affairs information be unreasonable?

29. The concept of ‘unreasonable disclosure’ involves balancing the public interest in the disclosure of official information with the personal interest in privacy. I have considered the following factors in the circumstances of this case:
    1. the nature of the personal affairs information;
    2. the circumstances in which the information was obtained;
    3. the Applicant’s interest in the information;
    4. whether any public interest would be promoted by the release of the information;
    5. whether the individuals to whom the information relates object, or would be likely to object, to the release of the information;
    6. whether disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person.
30. In relation to the personal affairs of the subject of the complaint, and the other Agency officer who provided information in relation to the event (the information in paragraphs 27 (a), (b) and (c) above), I have considered the following:
    1. The information is sensitive as it relates to their personal accounts of the events being complained about, including their perception of the conduct of all parties and the affect it had on them;
    2. The information was obtained in the course of investigating a complaint. I consider in these circumstances there would be an expectation of confidentiality. I also note that one of the Agency officer’s objects to the disclosure of their personal affairs information;
    3. I note the Applicant’s interest in the information, in that they wish to be satisfied the complaint was properly investigated, and their view that there is a public interest in disclosure;
    4. I must also consider that this exemption is designed to protect individuals’ privacy;
    5. While this matter relates to Agency staff in the performance of their professional roles, some of the information clearly relates to them as individuals and reflects their personal and private lives; the impact therefore of disclosure, while unlikely to endanger those persons, may cause distress.
    6. From my reading of the documents, I cannot see any public interest in disclosure, in that they do not disclose serious misconduct or mismanagement that would benefit from public airing and therefore the public interest in disclosure does not outweigh the interest in privacy of those concerned.
31. On balance, I consider this information is exempt under section 33(1).
32. In relation to the other patient’s name, I consider this information appears incidentally in the documents and falls outside the scope of the Applicant’s request. Therefore, it is irrelevant to the request and is to be deleted in accordance with section 25.
33. I also note the Agency consulted with two Agency officers. One Agency officer objected to disclosure of their information whilst the other Agency officer did not respond to consultation. While I have had regard to this information, an individual’s objection is not determinative.
34. In this matter, I have decided it would not be unreasonable to disclose the names of Agency staff directly involved in the handling of the complaint. Some of the parties will be known to the Applicant, and many of their names have been provided to the Applicant in documents released to them in full. In relation to the other staff members not known to the Applicant, they appear only in relation to the performance of their professional roles and it is therefore not unreasonable to release their names.
35. My decision in relation to this information is set out in the schedule at Annexure 1.

Section 35(1)(b)

36. A document is exempt under section 35(1)(b) if two conditions are satisfied:

• 1. disclosure would divulge information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister; and
  2. disclosure would be contrary to the public interest as it would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.

37. When determining whether information was communicated in confidence, it is necessary to consider the position from the perspective of the communicator.[11] In this case, the individuals who provided the information to the Agency.
38. The Agency has claimed this exemption for the following types of documents:
    1. information provided to the Agency by the Agency officer subject to the complaint;
    2. information provided by other agency officers to the Agency regarding the complaint; and
    3. emails between Agency officers about the management of the complaint.

Was the information or matter communicated in confidence?

39. When determining whether information was communicated in confidence, it is necessary to consider the position from the perspective of the communicator. In this case, the individuals who provided the information to the Agency.
40. Further, confidentiality can be express or implied from the circumstances of the matter.[12]
41. Generally, the exemption in section 35(1)(b) applies to information communicated to an agency from outside sources, not to internal communications between agency staff carrying out their usual duties and responsibilities. However, in certain circumstances, section 35(1)(b) may apply to information communicated in confidence between agency officers, for example, where an agency officer provides confidential information to their agency to assist in the investigation of a workplace incident or dispute.[13]
42. In this matter, information was communicated to Agency officers managing the investigation of a complaint, in their capacity as the subject of the complaint, or witnesses to the complaint. Accordingly, I am satisfied the nature of this communication falls within the scope of information communicated in confidence to the Agency under section 35(1)(b).
43. While I do not have information before me to confirm the Agency officers communicated information to the Agency on a confidential basis, I am satisfied they would reasonably have had an expectation it was being communicated in confidence to the Agency given the nature and circumstances of what would have been a sensitive matter.
44. In contrast, I am not satisfied communications between Agency officers who were responsible for managing the investigation of workplace complaints is information communicated in confidence to the Agency for the purposes of section 35(1). Accordingly, I am not satisfied information of this nature is exempt under section 35(1)(b).

Would disclosure of the information impair the ability of the Agency to obtain similar information in the future?

45. I acknowledge the Agency’s submission that it provided information to OVIC in confidence and it considered its disclosure would compromise its ability to investigate patient complaints, as staff may be reluctant to provide, or be less forthcoming in providing, information during the course of an investigation.
46. My decision in relation to this information is set out in Annexure 1.

Deletion of exempt or irrelevant information

47. Section 25 requires an agency to grant access to an edited copy of a document when it is practicable for the agency or Minister to delete exempt or irrelevant information and the applicant agrees to receiving such a copy.
48. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’^[14] and the effectiveness of the deletions. Where deletions would render a document meaningless they are not ‘practicable’ and release of an edited document is not required under section 25.^[15]
49. I have considered the effect of deleting irrelevant and exempt information from the documents.
    I am satisfied it is practicable to delete irrelevant and exempt information from the documents as to do would not require substantial time and effort, and the edited documents would retain meaning.

Conclusion

50. On the information before me, I am satisfied certain documents are exempt under sections 30(1), 32(1), 33(1) and 35(1)(b).
51. As noted above, I have considered the effect of deleting irrelevant and exempt information from the documents in accordance with section 25. As I am satisfied it is practicable to delete irrelevant and exempt information from the documents, I have decided to release the documents in part.
52. My decision in relation to each document is set out in Annexure 1.

 Review rights

53. If either party to this review is not satisfied with my decision, they are entitled to apply to the Victorian Civil and Administrative Tribunal (VCAT) for it to be reviewed.^[16]
54. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.^[17]
55. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.^[18]
56. Information about how to apply to VCAT is available online at www.vcat.vic.gov.au. Alternatively, VCAT may be contacted by email at admin@vcat.vic.gov.au or by telephone on 1300 018 228.
57. The Agency is required to notify the Information Commissioner in writing as soon as practicable if either party applies to VCAT for a review of my decision.^[19]

Notification to third parties of review rights

58. Section 49P(5) states, if I decide to disclose a document claimed to be exempt under section 33(1), if practicable, I must notify any person who has a right to apply to VCAT for review of my decision of their right to do so.
59. In considering the meaning of ‘practicable’ in relation to other sections of the FOI Act, VCAT has held:

The use of the word ‘practicable’ in the legislation to my mind connotes a legislative intention to apply common sense principles. ‘Practicable’ is not a term of art or a term of precise meaning.

…. The use of the word indicates there should be imported into the process the exercise of judgment by the agency concerned. It does not allow for the conclusion that because a task is possible, it must, ergo, be undertaken.^[20]

60. VCAT also considers the possibility of an unnecessary intrusion into the lives of third parties is relevant when assessing the practicability of notifying them.^[21]
61. I have decided notification of third parties of their review rights would be an unnecessary intrusion for the following reasons:

• 1. the nature of the information;
  2. the information only appears in a professional context and, in some instances, is publicly available;
  3. the information is not sensitive personal information; and
  4. a significant number of Agency staff names have been released to the Applicant by the Agency in documents that were released in full.

62. On balance, given the unnecessary intrusion into the lives of the individuals, whose personal information appears in the documents, I am not satisfied would be practicable to notify those individuals of their right of review.

When this decision takes effect

63. My decision does not take effect until the relevant review period (stated above) expires. If a review application is made to VCAT, my decision will be subject to any VCAT determination.

Annexure 1 – Schedule of Documents

Endnotes

[1] Section 30(3).

[2] Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473 at 485, adopted in Department of Premier and Cabinet v Hulls [1999] VSCA 117 at [30].

[3] Hulls v Victorian Casino and Gambling Authority (1998) 12 VAR 483.

[4] Graze v Commissioner of State Revenue [2013] VCAT 869 at [29]; Elder v Worksafe Victoria [2011] VCAT 1029 at [22]. See also Evidence Act 2008 (Vic), section 119.

[5] Grant v Downs (1976) 135 CLR 674 at [19].

[6] Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67; 201 CLR 49.

[7] Sections 33(1) and (2).

[8] Section 33(9).

[9] Section 33(2B).

[10] Section 33(2C).

[11] XYZ v Victoria Police [2010] VCAT 255 at [265].

[12] Ibid.

[13] See Sportsbet v Department of Justice [2010] VCAT 8 at [71]-[78]; XYZ v Victoria Police [2010] VCAT 255 at [287]-[288]; and Birnbauer v Inner and Eastern Health Care Network [1999] VCAT 1363 at [14]-[15].

[14] Mickelburough v Victoria Police (General) [2009] VCAT 2786 at [31]; The Herald and Weekly Times Pty Limited v The Office of the Premier (General) [2012] VCAT 967 at [82].

[15] Honeywood v Department of Human Services [2006] VCAT 2048 at [26]; RFJ v Victoria Police FOI Division (Review and Regulation) [2013] VCAT 1267 at [140] and [155].

[16] The Applicant in section 50(1)(b) and the Agency in section 50(3D).

[17] Section 52(5).

[18] Section 52(9).

[19] Sections 50(3F) and (3FA).

[20] Re Schubert and Department of Premier and Cabinet (2001) 19 VAR 35 at [45].

[21] Coulston v Office of Public Prosecutions Victoria [2010] VCAT 1234 at [42].