Raiz and Professional Services Review - [2021] AATA 4360

Raiz and Professional Services Review [2021] AATA 4360 (25 November 2021)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2020/1115
Re:Danny Raiz
APPLICANT

Professional Services ReviewAnd
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Date:25 November 2021
Place:Melbourne

The Tribunal notes that on 2 July 2021 the decision dated 5 July 2019 was partially set aside and substituted. With respect to the remaining documents in dispute, the Tribunal affirms the decision of 5 July 2019.
........................................................................
Deputy President Britten-Jones
Catchwords
FREEDOM OF INFORMATION – review of decision of Professional Services Review that documents are partially or wholly exempt – documents relate to investigations of Professional Services Review into applicant’s possible inappropriate medical practice – documents conditionally exempt under sections 47C and 47E(d) of the Freedom of Information Act 1982 – documents exempt under s 42 of the Freedom – consideration of immunity provisions – disclosure of documents would be against the public interest – the decision under review is affirmed
Legislation
Freedom of Information Act 1982 (Cth)
Health Insurance Act 1973 (Cth)
Cases
Dreyfus and Secretary Attorney-General’s Department [2015] AATA 962
Dr Pradhan v Holmes (in his capacity as the Director of Professional Services Review) [2001] FCA 1560; (2001) 125 FCR 280
Esso Australia Resources Ltd v Commissioner for Taxation [1999] HCA 67; (1999) 201 CLR 49
Herijanto v Refugee Review Tribunal [2000] HCA 21; (2000) 170 ALR 575
Kline v Official Secretary to the Governor-General [2013] HCA 52; (2013) 249 CLR 645
Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601
Secretary, Department of Employment, Workplace Relations and Small Business v Staff Development and Training Centre Pty Ltd [2001] FCA 1375; (2001) 114 FCR 301.
Secondary Materials
The FOI Guidelines under s 93A of the Freedom of Information Act 1982
REASONS FOR DECISION
Deputy President Britten-Jones
25 November 2021
INTRODUCTION

This is an application for review of a decision made by the Professional Services Review (PSR) on 5 July 2019 to refuse access to certain parts of documents under the Freedom of Information Act 1982 (Cth) (the Act).[1] The respondent (the PSR) decided to provide to the applicant (Dr Raiz) some of the requested documents, in whole or in part, and found that other documents were exempt from disclosure.
[1] All references to legislation are to the Freedom of Information Act 1982 (Cth) unless otherwise stated.
The documents were created in the context of the Professional Services Review Scheme (PSR Scheme) established by Part VAA of the Health Insurance Act 1973 (Cth) (HI Act). This is a scheme that reviews and investigates instances where a Medicare, dental or pharmaceutical benefit has been claimed by practitioners for the provision of services and there is suspected ‘inappropriate practice’.
On 7 August 2019, Dr Raiz applied to the Australian Information Commissioner for review of the decision of 5 July 2019. A delegate of the Australian Information Commissioner decided not to undertake a review of the decision in accordance with s 54W of the Act.
On 27 February 2020, Dr Raiz applied to the Tribunal for review of the decision of 5 July 2019. Since Dr Raiz filed his application, the PSR has further reviewed the documents in dispute and has either wholly or partially released additional documents.
Freedom of Information Requests
On 7 May 2019, Dr Raiz made a freedom of information (FOI) request to the PSR for documents relating to the PSR Scheme investigation into his provision of services for suspected ‘inappropriate practice’. Dr Raiz requested the following documents:
(a)copies of all internal correspondence of the PSR relating to PSR Committee No.1095 from 1 January 2014 to the date of the request;
(b)to the extent not covered in (a), any other internal correspondence of the PSR relating to Dr Danny Raiz including to or from the Director of the PSR from 1 January 2014 to the date of the request;
(c)copies of correspondence between any third party and any representative of the PSR relating to Dr Danny Raiz or PSR Committee No 1095 (excluding correspondence from Collins & Collins lawyers) from 1 January 2014 to the date of the request;
(d)copies of instruments of appointment of the members of the PSR Committee No. 1095, including ministerial delegations and the specific appointments by the date of the request;
(e)documents setting out policy guidance for reviews of inappropriate practice under section 82 of the Health Insurance Act 1973; and
(f)documents setting out KPIs, financial targets or projected estimates for recovery of funds by the PSR for the financial years to present.
The PSR provided a schedule of documents on 17 June 2020 that outlined the documents for which the claim for exemption related and the provisions of the Act that they relied upon for the exemption.
Some documents were exempted because they contained personal information including mobile phone numbers, passwords, names and identifying details of the consultants to the Director. On 2 July 2021, the Tribunal directed by consent of the parties that certain documents be released to the applicant with personal information redacted. The respondent filed an amended schedule (Schedule) on 28 June 2021 (exhibit 3) that outlines the documents that remain in dispute. This Schedule, although prepared by the respondent, was based on [18] of the Application and Outline of Submissions filed by Dr Raiz on 1 June 2021. At the hearing on 30 June 2021, counsel for Dr Raiz confirmed that information about third parties was not being pursued. After the hearing, the respondent provided terms of an agreed order to reflect the final position of the parties. On 2 July 2021 the Tribunal made the directions, the terms of which the parties had agreed. The respondent then provided the Tribunal with an email of the disputed documents with shading to reflect those parts of the documents in dispute.
STATUTORY FRAMEWORK
Freedom of Information Act 1982
The High Court considered the legislative framework of the Act in Kline v Official Secretary to the Governor-General: [2]
… The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increased public participation and scrutiny, by making information freely available to persons on request, and exempting other government processes and activities from public participation and scrutiny, in order to secure a competing or conflicting public interest in non-disclosure.
[2] [2013] HCA 52; (2013) 249 CLR 645, 661 at [37].
The general objects of the Act are set out in s 3 as follows:
(1)The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
(2)The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b) increasing scrutiny, discussion, comment and review of the Government’s activities.
(3)The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4)The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
To promote the objects in s 3(1)(b), s 11(1) provides that:
Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
Section 11A(3) provides that where a person makes a request in accordance with s 15(2) to an agency or Minister for access to a document and pays the required charge, the agency or Minister must give the person access to the document in accordance with the Act ‘subject to this section’.
Section 11A(4) provides that the agency or Minister is not required to give the person access to the document if the document is an exempt document.
The term ‘exempt document’ is defined in s 4(1) to include: ‘a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B)’. Section 31B provides that:
A document is exempt for the purposes of this Part if:
(a) it is an exempt document under Division 2; or
(b) it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5)
If a document is exempt, the agency is not required to provide the document.
Public interest test
Section 11A(5) provides the following:
The Agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to public interest.
Section 11B(3) outlines the public interest factors in favour of granting access to the document including whether the grant would:
(a)promote the objects of the Act (including all the matters set out in ss 3 and 3A);
(b)inform debate on a matter of public importance;
(c)promote effective oversight of public expenditure;
(d)allow a person to access his or her own personal information.
Under s 11B(4), a decision maker must not take the following factors into account when determining whether the release of a document would be contrary to the public interest:
(a)access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
(b)access to the document could result in any person misinterpreting or misunderstanding the document;
(c)the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
(d)access to the document could result in confusion or unnecessary debate.
FOI Guidelines: Public Interest
Section 93A requires the Tribunal to have regard to any guidelines issued by the Information Commissioner. Paragraphs 6.5 and 6.6. of the Freedom of Information Guidelines (Guidelines) set out the general principles regarding what is in the public interest:
·something that is of serious concern or benefit to the public, not merely of individual interest;
·not something of interest to the public, but in the interest of the public;
·not a static concept, where it lies in a particular matter will often depend on a balancing of interests;
·necessarily broad and non-specific (because what constitutes the public interest depends on the particular facts of the matter and the context in which it is being considered); and
·it is not necessary for a matter to be in the interest of the public as a whole. It may be sufficient that the matter is in the interest of a section of the public bounded by geography or another characteristic that depends on the particular situation. A matter of particular interest or benefit to an individual or small group of people may also be a matter of general public interest.
Paragraph 6.19 of the Guidelines provides examples of factors under s11B(3) that would favour disclosure including if disclosure would:
·Promote the objects of the FOI Act such as:
oinform the community of the Government’s operations;
oreveal the reason for a Government decision and any background or contextual information that informed the decision; and/or
oenhance the scrutiny of Government decision-making;
·Inform debate on a matter of public importance, including to:
oallow or assist inquiry into possible deficiencies in the conduct of an agency or official; and/or
oreveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct.
Paragraph 6.22 of the Guidelines provides examples of factors against disclosure including:
·whether disclosure could reasonably be expected to prejudice an agency’s ability to obtain similar information in the future;
·whether disclosure could reasonably be expected to prejudice the management function of an agency.
Professional Services Review Scheme
The documents the subject of this review are related to the Professional Services Review Scheme (Scheme) that was established by Part VAA of the Health Insurance Act 1973 (Cth) (HI Act). This is a scheme for reviewing and investigating suspected ‘inappropriate practice’ by a person in the provision of services where a Medicare, dental or pharmaceutical benefit has been claimed.
The object of the Scheme is set out at s 79A of the HI Act:
The object of this Part is to protect the integrity of the Commonwealth medicare benefits, dental benefits and pharmaceutical benefits programs and, in doing so:
(a) protect patients and the community in general from the risks associated with inappropriate practice; and
(b) protect the Commonwealth from having to meet the cost of services provided as a result of inappropriate practice.
The first stage of the PSR process is triggered when a Delegate of the Chief Executive Medicare requests the Director of the PSR (Director) to review the services rendered by a practitioner. At the conclusion of the review, the Director may decide to take no further action or to refer the person under review to a Professional Services Review Committee (Committee) for further investigation under s 93 of the HI Act.
The second stage of the process involves a review by the Committee to investigate whether a practitioner has engaged in inappropriate practice. The Committee is made up of members that belong to the profession or speciality of the person under review pursuant to s 95 of the HI Act.
Under s 101 of the HI Act, the Committee may hold hearings and require the person under review to give evidence. They may also require production of documents (s 105A of the HI Act). Section 106KD requires that the Committee produce a draft report that contains its findings to the person under review, giving them the opportunity to respond to any adverse findings, before producing a final report with the outcome.
If a Committee finds that a person has engaged in inappropriate practice, they will report this finding to the Determining Authority (ss 106G(2) and 106GL(3) of the HI Act). This is third and final stage of the PSR process, after which the Determining Authority decides on the best course of action.
There are several safeguards throughout the process to ensure that the person under review has opportunity to state their case and respond to possible adverse findings.
Protected Information
Section 106F(1) of the HI Act protects Committee members from disclosure of deliberations:
A Committee member has, in the performance of his or her duties, the same protection and immunity as a Justice of the High Court.
The HI Act further prohibits the disclosure of certain information relating to PSR investigations. Section 106ZR of the HI Act creates a criminal offence for disclosure of information relevant to a PSR investigation, except in specified circumstances:
(1) A person must not disclose to another person:
(a) any of the deliberations or findings of a Committee; or
(b) any information or evidence given to the Committee in the course of its deliberations;
unless the disclosure is required or permitted under this Act or the Dental Benefits Act 2008 or is necessary in connection with the performance of the first‑mentioned person’s functions or duties under this Act or the Dental Benefits Act 2008.
Penalty: Imprisonment for 12 months.
(3) This section does not prevent a person from making a disclosure:
(a) to a lawyer for the purpose of obtaining legal advice or representation relating to a matter involving the deliberations or findings of the Committee; or
(b) if the person is a lawyer—for the purpose of complying with a legal duty of disclosure arising from his or her professional relationship with a client.
Section 130 of the HI Act creates a criminal offence for unlawful disclosure of information a person acquires through the performance of their duties, or in the exercise of their powers or functions under the HI Act.
Background
Dr Raiz is an anaesthetist based in Canberra, Australian Capital Territory.
On 3 March 2017, a delegate of the Chief Executive Medicare, acting under s 89 of the HI Act, requested that the Director review services rendered by Dr Raiz between 1 August 2015 and 31 July 2016 (review period).
On 6 April 2017, the Director decided, pursuant to s 88A of the HI Act to undertake a review of Dr Raiz’s services for which he claimed Medicare rebates.
On 21 December 2017, the Director provided a signed report to Dr Raiz pursuant to s 89C of the HI Act with reasons stating that she had not made a decision under s 91 of the HI Act to take no further action in relation to the referral.
On 9 March 2018, the Director established a Professional Services Review Committee pursuant to s 93 of the HI Act. The Committee was charged to investigate whether Dr Raiz had engaged in inappropriate practice in providing certain services billed under the Medicare Benefits Scheme. The Director appointed three members to the Committee pursuant to s 95(1) of the HI Act. The referral and report were provided to Dr Raiz on the same day.
Staff of the PSR were then allocated to assist the Committee in accordance with s 106ZPL(1) of the HI Act.
On 22 March 2018, the Director varied the referral to the PSR Committee by deleting some of the Medicare Benefits Scheme items and including others (Amending Instrument) to be investigated. On 22 April 2018, Dr Raiz commenced proceedings in the Federal Court for judicial review of the Director’s decision to vary the referral. The investigation by the Committee was put on hold until the outcome of the court proceedings. On 4 December 2018, the Court ordered by consent that the Amending Instrument be set aside and the Committee’s investigation subsequently resumed.
The Committee proceedings are still on foot. There have already been some hearings, however, Dr Raiz has indicated that he still intends to provide further evidence and final submissions. Therefore, the Committee may hold further hearings in the future and they have not yet provided a draft report of their findings under s 106KD of the HI Act.
ISSUES
The issues before the Tribunal are whether:
(a)each document that the PSR has identified in the Schedule, is exempt, in full or part, or conditionally exempt from disclosure under the provisions of the Act; and
(b)for documents that are conditionally exempt, disclosure would be contrary to the public interest.
EVIDENCE
The sole witness for the PSR was Bruce Neville Topperwein who is the Executive Officer and General Counsel of the PSR. He reports to the Director of the PSR who is a medical practitioner. Mr Topperwein gave evidence by affidavit explaining the process of referring, reviewing and investigating practitioners under the PSR scheme and the particular events in Dr Raiz’s review. He also provided evidence as to the likely outcomes for the PSR’s functions if the information requested were released. I accept the evidence of Mr Topperwein, which Dr Raiz did not challenge.
Interlocutory decision regarding the evidence of the applicant
When this matter was first listed for a hearing, Dr Raiz did not seek to provide any evidence. He lodged his Statement of Facts, Issues and Contentions on 1 September 2020 and did not seek to adduce any of his own evidence. However, on 31 May 2021, Dr Raiz made a late application to rely on an affidavit in his name dated 31 May 2021 (affidavit). On 3 June 2021, I ruled that the affidavit could not be relied upon at the hearing. I will set out my reasons for this decision below.

At a directions hearing on 20 May 2021, Counsel for Dr Raiz raised for the first time the matters that became the subject of the affidavit. Counsel explained that he sought to adduce this new evidence to respond to a submission of the respondent in their Statement of Facts, Issue and Contentions dated 17 June 2020 that none of the public interest factors favouring disclosure were relevant to Dr Raiz’s application.
Counsel for Dr Raiz submitted, by way of explanation for the delay of almost a year to provide this evidence, that he identified the issue that required the further evidence when he was briefed shortly after the date of the first vacated hearing in February 2021. He explained that he delayed bringing this matter to the Tribunal or respondent’s attention until May 2021 because it was a lengthy process to review all the relevant documentation.
I consider that the delay from February 2021 until May 2021 was excessive. However, even if that that was an appropriate length of time to process the documentation, there is no explanation for the initial delay in failing to file this evidence at any point after 17 June 2020 when the respondent first made submissions. Dr Raiz has had the same instructing solicitors since the beginning of this matter and those instructing solicitors filed a Statement of Facts, Issues and Contentions on his behalf on 1 September 2020 where they did not raise the issues referred to in the affidavit. Therefore, Dr Raiz made a decision at or around 1 September 2020, when he submitted his Statement of Facts, Issues and Contentions, that he would not file any evidence, despite having all the documents that the respondent intended to rely upon. I find that there is no adequate explanation for the failure to provide the material earlier, particularly as the matter was ready for a hearing in February and April 2021.
Further, some of the matters within the affidavit had been outlined in previous solicitor correspondence from Moray & Agnew, including letters in June 2019 and August 2018. This suggests that Dr Raiz had access to the material for a lengthy period and made a forensic decision not to rely upon it.
In any event, I find that the material within the affidavit is not probative of the issues that need to be resolved with respect to the FOI application.
The affidavit contains statements of conclusion for which there is no evidentiary support. Dr Raiz expresses concerns and apprehensions said to be based upon material within the affidavit. However, the material that Dr Raiz deposes to as the basis of those statements of concern or apprehension do not provide any evidentiary support. Hence the conclusions are not based on objective evidence. Further, the concerns, apprehensions and beliefs of the deponent are not relevant to the issues that are raised in the FOI application.
The affidavit contains material that is hearsay in the sense of not being direct evidence from the person who is said to have made the statement. Those statements are then later relied upon to underpin some of the beliefs or apprehensions of Dr Raiz, which I discuss above.
The affidavit contains scandalous allegations which would impact upon the personal and professional reputation of third parties in circumstances where it is hard to see the relevance of those matters to the issues in the FOI application.
The affidavit contains material that goes back to 1987 and 1988 which, if allowed, would put the respondent in a difficult situation to attempt to respond to matters from many years ago at a late stage of the proceedings. The respondent should not be put to the expense of trying to deal with factual matters that go back to the late 1980s and matters that appear to involve people with only a peripheral connection to the primary actors in this litigation. Many of the persons deposed to in the affidavit are strangers to the litigation.
If Dr Raiz was given leave to rely upon the affidavit then the hearing listed to commence on 30 June 2021 would likely have had to be vacated.
This is a matter in which the respondent provided its evidence and Statement of Facts, Issues and Contentions on 17 June 2020. Dr Raiz was given the opportunity to file evidence but he decided not to. He has had the benefit of being legally represented since bringing his application for review on 27 February 2020. His Statement of Facts, Issues and Contentions was lodged on 1 September 2020 and the matter was listed for a hearing to commence on 11 February 2021. The date for that hearing was vacated because the representative of Dr Raiz was unwell. The hearing was re-listed to commence on 28 April 2021 but that hearing was vacated at the request of Dr Raiz and with the consent of the PSR. Throughout this period there was no indication from Dr Raiz that he wished to rely upon further evidence. That indication first came on 20 May 2021 during a telephone directions hearing. As set out above, the evidence sought to be adduced in the form of the affidavit contains scandalous and irrelevant material and would cause further delay. I took the view that the affidavit would not assist me in determining the issues on the application because it contains no probative material.
For these reasons, I disallowed Dr Raiz to tender the affidavit as evidence. Dr Raiz did not seek to tender any other evidence and did not give oral evidence at the hearing.
CONSIDERATION
Documents relating to the Director’s review
The PSR has claimed the exemption under s 47C for documents 24, 65, 85, 86, 90 and 91 which relate to the Director’s review of Dr Raiz.
Section 47C provides that documents disclosing deliberative matter are conditionally exempt:
47C Public interest conditional exemptions—deliberative processes
General rule
(1) A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of:
(a) an agency; or
(b) a Minister; or
(c) the Government of the Commonwealth.
Exceptions
(2) Deliberative matter does not include either of the following:
(a) operational information (see section 8A);
(b) purely factual material.
Note: An agency must publish its operational information (see section 8).
(3) This section does not apply to any of the following:
(a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;
(b) reports of a body or organisation, prescribed by the regulations, that is established within an agency;
(c) the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A)
In Dreyfus and Secretary Attorney-General’s Department [2015] AATA 962 at [18], Bennett J explained that ‘purely factual material’ does not extend to factual material that is an integral part of the deliberative content and purpose of a document, or is embedded in, or intertwined with, the deliberative content such that it is impractical to excise it.
Paragraph 6.61 of the Guidelines states that a deliberative process includes the recording or exchange of a collection of facts or opinions, including the pattern of facts or opinions considered, and interim decisions or deliberations. Further, paragraph 6.67 provides that deliberative matter includes materials gathered for deliberative purposes.
Paragraph 6.68 of the Guidelines provides that a consultation undertaken for the purposes of, or in the course of, a deliberative process includes any discussion between the agency, minister or government and another person in relation to the decision that is the object of the deliberative process.
Section 47C applies, not only to documents that disclose matter ‘in the nature of’ opinion, advice, recommendation, consultation or deliberation, but also to documents that disclose matter ‘relating to’ opinion, advice or recommendation or consultation or deliberation that has taken place.[3] This is relevant for documents in this matter that were prepared by staff of the PSR and contain information recording or discussing the deliberations of the Committee.
[3] Secretary, Department of Employment, Workplace Relations and Small Business v Staff Development and Training Centre Pty Ltd [2001] FCA 1375; (2001) 114 FCR 301.
Document 24 is partially redacted to remove advice and recommendations from a PSR lawyer to other staff regarding Dr Raiz’s request that the members of the Committee were not ACT-based. The PSR submits that this information is exempt from disclosure under s 47C because it would reveal advice provided for the purposes of deliberations of the agency. The emails between the Principal Legal Officer and the Special Counsel of the PSR Agency contain legal advice and deliberative matter under s 47C. The email from Russell Ball of Ball & Ball Partners to the PSR Agency has been disclosed.
Document 65 is an email from the Director to PSR’s Special Counsel. One paragraph has been redacted where the Director expresses her opinion about certain issues relevant to the review and provides directions to the Special Counsel in relation to that matter. The PSR submits that this information is exempt from disclosure under s 47C as the information would disclose an opinion recorded, and consultation between the Director and her staff member, in the course of, or for the purposes of, the deliberative processes of the Director during her review.
Document 85 includes redacted material in an email dated 21 March 2018 from the Principal Legal Officer to the Special Counsel and Case Manager of the PSR Agency about preparing documentation to set up the Committee and requesting legal advice from the PSR’s Special Counsel. The names of other persons under review have also been redacted. The penultimate paragraph (which is duplicated in documents 86, 90 and 91) has been redacted because it contains an opinion on a matter relevant to preparing the documentation and for which legal advice was sought. Therefore, the PSR submits that this paragraph contains a deliberative matter as it relates to an opinion about a matter relevant to the Director’s review.
Document 86 is a communication between the Principal Legal Officer and the Case Manager of the PSR Agency providing advice in the course of the review. Therefore, the PSR submits that this contains deliberative matter as it relates to an opinion about a matter relevant to the Director’s review.
Document 90 includes document 85 (the 21 March 2018 email) and subsequent email communications of the same nature between the Principal Legal Officer and the Case Manager of the PSR Agency.
Document 91 includes document 85 (the 21 March 2018 email) and subsequent email communications of the same nature between the Principal Legal Officer and the Case Manager of the PSR Agency.
At the hearing, Dr Raiz’s Counsel requested that I review these documents to confirm that they would, in fact, disclose deliberative processes. He submitted that the PSR had adopted too wide a definition of deliberations and that some of the redacted documents were simply factual material. Having reviewed the redacted information, I confirm that the documents listed above contain advice or consultations intended to assist the Director’s deliberations, or directly reveal the Director’s deliberations so that they may be labelled as deliberative material. Therefore, I accept the respondent’s submissions that the redacted information relates to deliberative matter during the Director’s review.
Public Interest Test for Director’s review documents
Section 47C provides a conditional exemption, therefore the PSR must further satisfy me that on balance, it would be contrary to the public interest for the documents relating to the Director’s review to be released. I accept Dr Raiz’s submission that the respondent has the onus to show that there is public interest in non-disclosure as the objects of the Act favour disclosure of government-held information.
In relation to the information in each of the documents relating to the Director’s review, Mr Topperwein deposed to the harm that would be caused if the information were disclosed:
The Director is expressly excluded by the HI Act from having any further involvement with Dr Raiz's matter, including providing, or disclosing, any additional information gained or considered during her review to the Committee. Disclosure of the information referred to above, revealing issues deliberated on by the Director, and opinions formed at particular stages of the review, matters which may or may not be in her referral report would interfere with that important statutory requirement. It may be that in time, when Dr Raiz's matter is concluded through the investigation and, if required, the Determining Authority phases, there would be no reason not to disclose the document, but that is not the case now while Dr Raiz's matter is still active.
The PSR submits that the further information about the Director’s deliberations which was not included in the referral report to the Committee would interfere with the statutory requirement that the Director is excluded from the deliberations of the Committee after providing the referral and the reasons for referral under s 93 of the HI Act. This is because these documents would disclose further considerations that go behind the report provided to the Committee. Under s 106H(1) of the HI Act, the Committee is to make findings only in respect of referred services. Section 81 of the HI Act provides that ‘referred services‘ are the services specified in the referral made to the Committee under s 93.
In Dr Pradhan v Holmes (in his capacity as the Director of Professional Services Review) [2001] FCA 1560; (2001) 125 FCR 280, 286-287 at [30], the Court confirmed that s 106H of the HI Act (this provision has been amended since, however the meaning remains) limits the involvement of the Director beyond making findings in the referral report:
First, unlike with an investigative referral, the services to be examined by the Committee are limited to those specified in the adjudicative referral itself: s93(7) and s81 "referred services". The obvious contemplation of the scheme in this is that the Director will winnow out of all of the services referred to him or her in the investigative referral: s86(4)(a); the rendering or initiating of which is considered not to warrant reference to the Committee for the purposes of its inquiry. This limitation on the scope of the Committee's function is made explicit in s106H(1) which provides that: “The Committee is to make findings only in respect of services (the specified services) particulars of which are contained in the adjudicative referral.”
The intention that the Committee’s investigation be limited to the matters set out in the referral report is further evinced by the fact that the Committee must refer the matter back to the Director to make additional findings if they wish to investigate any other matters of inappropriate practice outside of the referral.[4] Therefore, the PSR submits that as the Committee investigation is ongoing, it would be inappropriate to disclose the Director’s deliberations beyond her referral report.
[4] Health Insurance Act 1973 s 106J(1).
Dr Raiz submits that it is not relevant that the PSR Committee proceedings are ongoing because the Committee may inform itself on any matter in any way it sees fit, [5] and therefore could, itself, seek out this further information regarding the Director’s review. I do not find this compelling as the Committee may only inform in any manner ‘for the purposes of its inquiry into the provision of services specified in the referral’.[6] Therefore, the Committee is confined to make findings only in relation to the referred services within the Director’s report and it would be outside the scope of s 98(3) of the HI Act for it to seek information considering matters beyond the referral.
[5] Health Insurance Act s 106(2).
[6] Health Insurance Act s 98(3).
Dr Raiz further submits that disclosure of the information about the Director’s review would promote the objects of the Act to inform the community of the government’s operations and provide the reasons for government decisions including background and contextual information. I accept that, in a broad sense, disclosure of this information adds to further government transparency (there are few cases where disclosure does not promote the broad objects of the Act) [7] however I do not consider that there is anything particular to this case that calls for additional transparency.
[7] See paragraph 6.18 of the FOI Guidelines.
The PSR submits that the factors against disclosure outweigh those in favour of disclosure. If the information about the Director’s review is revealed it could reasonably be expected to impede on the Committee review process which is structured to exclude involvement from the Director. This allows the PSR Committee to come to an independent decision, free from any ongoing influence from the Director. Further, it ensures that the matters under review are limited to those deemed serious enough for referral by the Director so that the review remains appropriately confined.
I consider that none of the public interest factors in favour of disclosure apply beyond general principles of government transparency. There is no reasonable suggestion that the Director has engaged in any misconduct in her review that would require further consideration of her deliberations. In these circumstances, the factors against disclosure, including that disclosure would impede on the carefully formulated process that separates the stages of the PSR investigation, outweigh those in favour of disclosure.
I find that the documents relating to the Director’s review and the spending proposal are deliberative matter and further, that it would be against the public interest to disclose this information. These documents are exempt from disclosure under s 47C.
Committee Investigation (s 47C and s 47E(d))
The PSR claims immunity under s 47C and s 47E(d) in respect of documents that contain information relating to the deliberations of the Committee in its investigation into the services provided by Dr Raiz during the review period. The documents in dispute in this category are 82 to 84, 92 to 96, 98, 99, 105 to 107, 112, 114, 115, 134, 175 to 178, 243 to 245, 249, 250, 258 to 269, 276, 282 and 307 in the Schedule.
Section 47E(d) provides:
47E Public interest conditional exemptions—certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:
…
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.
The Guidelines provide guidance on the interpretation of the words ‘would’

and ‘could’ in s 47E(d) at paragraph 5.17:
The use of the word ‘could’ in this qualification is less stringent than ‘would’, and requires analysis of the reasonable expectation rather than certainty of an event effect or damage occurring. It may be a reasonable expectation that an effect has occurred, is presently occurring, or could occur in the future.
The Guidelines further advise on the meaning of ‘substantial adverse effect’ at paragraph 5.20:
The term ‘substantial adverse effect’ broadly means ‘an adverse effect which is sufficiently serious or significant to cause concern to a properly concerned reasonable person’ [see Re Thies and Department of Aviation [1986] AATA 141 [24]). The word ‘substantial’, taken in the context of substantial loss or damage, has been interpreted as ‘loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal’ [Tillmanns Butcheries Pty Ltd v Australasian Meat Employees Union & Ors (1979) 27 ALR 367 383].

The phrase ‘could reasonably be expected’ requires more than a mere assumption or allegation that damage may occur. The Guidelines provide at paragraph 6.103:
The particulars of the predicted effect should be identified during the decision making process, including whether the effect could reasonably be expected to occur. Where the conditional exemption is relied upon, the relevant particulars and reasons should form part of the decision maker’s statement of reasons, if they can be included without disclosing exempt material…
The PSR describes each of the documents to which they claim s 47C and s 47E(d) exemptions in the Schedule as documents containing information that records, or is in relation to, the Committee’s deliberations.
Upon Dr Raiz’s review application, the PSR further reviewed the documents related to the Committee investigations and provided to Dr Raiz additional information that they deemed merely administrative in nature.
The PSR submits that disclosure of the documents relating to the Committee investigation would disclose deliberative matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place in the course of, or for the purposes of, the deliberative processes of the Committee’s function of investigating Dr Raiz. They further submit that the documents were created for or by the Committee for its sole function to investigate whether Dr Raiz had engaged in inappropriate practice. They submit that none of the redacted information is ‘purely factual matter’ as any factual material that has been redacted is integral to the deliberative content and purpose of the documents such that it is impractical to excise it.[8]
[8] Dreyfus and Secretary Attorney-General’s Department [2015] AATA 962 at [18].
Some of the documents relate to requests by the Committee for data related to the Medical Benefits Scheme (MBS). Mr Topperwein provides an explanation of these data requests as follows:
As part of their investigation, PSR Committees need to consider relevant MBS data and make decisions on what MBS items to investigate. A Committee can choose to investigate a random sample of services which then enables it to apply the sampling methodology under s 106K of the HI Act.
It is usual practice for a Committee to instruct PSR staff at a Committee meeting regarding which items it wants to consider. PSR staff are then responsible for taking all the steps required to enable such consideration and deliberation to occur, including obtaining on behalf of the Committee additional data where required by the Committee.
The staff of the Committee, and the Committee, may have questions about the particular data from the ‘owner’ of the data (the Department of Health and previously the Department of Human Services). If so the staff of the Committee are tasked with dealing with the issues on behalf of the Committee.
To undertake its investigation following the Raiz referral, the Committee, in accordance with usual practice, required data about the MBS items specified in the referral from the Director. The Committee directed staff at a Committee meeting to obtain the data in accordance with its decisions. Staff took the necessary steps to obtain and collate the data, on behalf of the Committee.
Dr Raiz submits that requests for data are not inherently deliberative as they do not involve a process of weighing up or considering competing arguments. Therefore, he argues that the MBS data is best categorised as ‘purely factual material’ and not conditionally exempt. Further, Dr Raiz argues that instructions to staff about which MBS data to review occurs after a deliberative process but is a purely administrative matter in itself. Similarly, Dr Raiz submits that questions from the staff to the ‘owners’ of the data do not involve a deliberative process.
I reject Dr Raiz’s arguments that this material is not deliberative material. I refer to paragraph 6.67 of the Guidelines that states that material that is gathered as a basis for intended deliberations may be deliberative matter. It is clear from Mr Topperwein’s evidence that MBS data must be considered as a part of a PSR Committee investigation and further that the Committee must deliberate as to which MBS items to investigate. It is not relevant that the instructions to retrieve certain data technically occurs after the deliberative process as these instructions would reveal the outcomes of deliberations regarding which data to request. Therefore, disclosure of the contents of the requests for data, the data itself, and the staffs’ interactions with the ‘owners’ of the data would all reveal information directly related to deliberations and necessary for the Committee’s continuous deliberations.
In any event, the PSR submits that the information relating to the Committee investigations is also conditionally exempt under s 47E(d) because disclosure of the documents would, or could, reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of the PSR.
The PSR contends that ss 106ZR and 106F of the HI Act which protect against disclosure of Committee deliberations evince parliament’s intention that information related to Committee investigations are protected from public disclosure. The PSR submits that if information that reveals Committee deliberations could be uncovered through the FOI process, this would defeat the purpose of these protections.
The PSR submits that this would have a substantial adverse effect on Committee operations as it would limit freedom of thought and independence of judgement which is the purpose of such an immunity provision.
Mr Topperwein deposes to the potential harm to the agency’s operations if the documents regarding the Committee’s deliberations were disclosed:
I am concerned, as the Executive Officer of the PSR, that members of a Committee would be severely inhibited in their task if the correspondence on issues about the data that the Committee has requested as part of their deliberative processes were disclosed to the PUR, and that is particularly the case in Dr Raiz's matter as the Committee's investigation is ongoing.
Disclosure of the documents dealing with collection and interpretation of data by PSR staff to ensure the Committee has relevant and correct data for the purposes of its investigation would disclose matters relating to deliberation that has taken place by PSR staff discussed with the Committee in the course of and for the purposes of the deliberative processes of the Committee.
In Herijanto v Refugee Review Tribunal [2000] HCA 21; (2000) 170 ALR 575 at 577 [9]-[11], Gaudron J considered the immunity provision that applied to members of the Migration Review Tribunal which was in the same terms as s 106F(1) of the HI Act:
…The protection afforded to individual members of the Tribunal by s 435(1) of the Act would be illusory if, although they could not be compelled to disclose their decision-making processes, those processes could be revealed by analysis of computer records.
In my view, the protection and privilege conferred by s 435(1) of the Act extends not merely to disclosure by the individual member concerned, but the revelation, by whatever means, of any aspect of his or her decision-making process
...
Whether or not the privilege conferred by s 435(1) of the Act extends to the revelation, by whatever means, of the decision-making processes of individual members of the Tribunal, it would not be right, in my view, to order discovery to enable the plaintiffs to do indirectly what they cannot do directly.
Dr Raiz argues that the PSR employs too wide a definition of ss 106F(1) and 106ZR of the HI Act and that requests for data and other information regarding the Committee process do not reveal deliberations that attract immunity. I reject these arguments for the reasons identified above that the redacted information does reveal deliberations for which s 106ZR of the HI Act specifically protects.
There is no general rule that information is not disclosable under the Act if it is attached to an immunity provision in a particular statute. However, if the immunity provision is necessary for the proper functioning of the agency and for decision makers to freely make decisions, there may be a substantial adverse effect if the expected immunity is not upheld.
I accept the PSR’s argument that there could be a serious and material negative impact on the PSR’s operations if the deliberations of the Committee were disclosed to Dr Raiz. Sections 106F(1) and 106ZR of the HI Act evince parliament’s intention that the protections in the PSR Scheme allow Committee members to openly discuss and consider whether a practitioner has engaged in inappropriate practice. If Committee members know that their private deliberations would be available to the person under review, even whilst a review process was ongoing, I consider that this could severely limit their willingness to openly engage in the review process and deliberate on sensitive and controversial matters.
Therefore, the materials related to the Committee investigations are conditionally exempt under ss 47C and 47E(d).
Public Interest Test
The main factor in favour of disclosing the materials relating to the Committee investigations is promoting the Act by revealing the reasons for the agency’s decisions and enhancing scrutiny of the PSR’s operations.[9]
[9] Paragraph 6.19 of the FOI Guidelines.
Dr Raiz further submits that disclosure would inform debate on a matter of public importance and allow access to his personal information.
I have reviewed the documents and I find that although the Committee investigation documents may incidentally contain some of Dr Raiz’s personal information, they are predominantly documents of the Committee, dealing with its investigation. I also do not accept that disclosure would inform public debate in any meaningful sense. The documents relate specifically to Dr Raiz’s investigation and they do not reveal any matters that would be of serious concern to a substantial section of the public or raise any issues of public interest about the functions of the PSR scheme. Therefore, I find that the only factor in favour of disclosure is to promote the objects of the Act including by increasing scrutiny of the government’s activities and transparency.
The PSR argues that disclosure is against the public interest. They submit that s 106ZR of the HI Act that makes it a criminal offence to disclose deliberations of the Committee is evidence of the legislature’s intent that disclosure of information about Committee investigations is against the public interest.
In Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601, Callinan J discussed the equivalent immunity provision for Members of the Refugee Review Tribunal at 669, [299]:
The entire, general, protective immunity of a Justice of the High Court is conferred on the member of the [Migration Review] Tribunal by s 435 of the Act [163]. The rationale for immunity from compulsory disclosure is the assurance that judges should be free in thought and independent in judgment. That rationale naturally extends to an immunity from disclosing any or all aspects of the decision-making process itself.
Dr Raiz submits that disclosing information about the Committee investigation would not affect the free thought and independence of the Committee although he did not provide clear submissions as to why he held this view.
I am satisfied that there is a public interest in the information surrounding the Committee investigation remaining confidential. This is particularly the case whilst the investigations are still on foot. If the Committee members are aware that a person under review may have access to their deliberations and the information they seek in relation to their deliberations, this may fetter their ability to freely seek out information and explore different possible findings without concern of alerting the person under review. The HI Act has implemented statutory immunities for Committee members to ensure the proper functioning of the review scheme and that Committee members may effectively conduct reviews.
At this time, with the review ongoing, I consider it against the best interest of the public for the Committee investigation documents to be disclosed. The Act’s general principles of transparency that favour disclosure are outweighed by the real possibility that Committee members will not be able to fully investigate persons under review if they can no longer rely on the confidentiality of their deliberative materials. This would have negative effects on the PSR process and may impede on the agency’s important function to protect the public from inappropriate use of public Medicare funding.
I conclude that the materials related to the Committee investigations are exempt from disclosure under ss 47C and 47E(d).
Consultant’s names
The names and identifying details of consultant are no longer within the scope of the request pursuant to the Tribunal’s direction made by consent on 2 July 2021. It is appropriate for the names of consultants to be exempt from disclosure for the following reasons.
The Director may engage a consultant who belongs to the same profession as the person under review to provide expert advice when they are considering a referral to a Committee. In this matter, the Director spoke to potential consultants and directed staff to make the necessary arrangements to engage them.
The PSR claimed that the names of the consultants are exempt from disclosure under s 47E(d) and s 47F.
The PSR argued that it is necessary to keep the names of Consultants confidential otherwise consultants would be reluctant to assist the Director as it involves providing advice about another practitioner in their field. They contended that this would have a substantial adverse impact on the ability of the PSR to conduct its reviews and therefore qualifies as conditionally exempt information under s 47E(d).
The PSR has instituted a policy not to reveal the name of consultants to combat the reluctance of consultants to assist the Director if the person under review is aware that they are helping. Therefore, as is their usual practice, the PSR informed the consultants contacted to assist the Director in Dr Raiz’s review that their names and personal information would remain confidential.
Mr Topperwein provided the following evidence as to the likely consequences of breaching this confidentiality policy:
Based on my experience working at PSR and as Executive Officer, , I am of the view that there is a serious risk that if consultants' names were to be routinely released under the FOI Act, this could reasonably be expected to reinforce the reluctance of practitioners to act as consultants advising the Director in a review of one of their colleagues. This is a particularly sensitive issue where the relevant profession or specialty is a relatively small one. If consultants are reluctant to assist the Director, this would seriously affect the Director's ability to access a vital source of advice to assist in her review.
…
If the Director is unable, or hampered in her ability, to engage the services of experienced practitioners in the same profession or specialty as the PUR, this could, or would, reasonably be expected to have a substantial adverse effect on the proper and efficient function of the operations of the PSR. This is because the Director would have to perform her functions without expert advice on the particular services she is reviewing and whether the PUR may have engaged in conduct that would be unacceptable to the general body of the relevant profession or specialty. This in turn would undermine the objects of the Scheme to protect patients and the community in general from the risks associated with inappropriate practice and to protect the Commonwealth from having to meet the cost of services provided as a result of inappropriate practice.
Dr Raiz stated that the PSR has made a ‘mere assumption or allegation’ that disclosure of the names of consultants would seriously impact the Director’s ability to access consultants to assist the Director in her review. However, I have no reason to doubt Mr Topperwein’s evidence based on his extensive experience that consultants often seek confirmation that they will be anonymous as a condition of offering their services. I note that the applicant did not require Mr Topperwein for cross-examination therefore I have no basis to challenge his evidence. Furthermore, it is understandable that in small professions where practitioners are likely to know one another, that one would not wish to engage in a review of their colleague without anonymity.
Therefore, I find that if the names of consultants could be released through an FOI process, this would, or could, have the substantial adverse impact of limiting the number of consultants willing to assist the Director. If the Director no longer has access to a wide pool of consultants, this would significantly prejudice her ability to make informed decisions in the initial referral stage and would therefore fetter the functions of the PSR scheme.
Therefore, I considered that this information relating to the Consultant’s names is conditionally exempt under s 47E(d).
I will not consider whether the names of the consultants are exempt from disclosure under s 47F as I have already found them exempt under s 47E(d).
Public Interest Test
The only public interest in releasing the names of consultants would be to promote the objectives of the Act of transparency and accountability. Dr Raiz argued that releasing the names of the consultants may substantiate any possible claim he wishes to make that the PSR acted improperly during his investigation. However, there is no evidence of impropriety or basis for this claim.
The PSR submitted that there are significant factors against disclosure of the consultants’ names. As discussed earlier, such disclosure would disincentivise consultants to assist the Director in investigating matters. The PSR argues that it is in the public interest that the Director have a broad selection of consultants so that she is guided by the most appropriate experts to reach her views as to whether a practitioner should be investigated for malpractice.
If the Director is fettered in her ability to make decisions at to which matters to refer, this could have a significant negative impact on the public. It would impede the efficacy of the PSR Scheme in protecting the public from both the risks of inappropriate practice and the risks of the Commonwealth having to meet the costs associated with Medicare-related malpractice.
Dr Raiz submitted that as the HI Act never submitted that the names of consultants are confidential, the PSR should never have promised confidentiality. He further argued that the PSR’s motivation to keep the consultants’ names confidential is that the PSR will risk embarrassment if consultants discover that the Director made a baseless promise of confidentiality. Under paragraph 6.24 of the Guidelines, the decision maker must not take into account whether access to a document could result in embarrassment to the Commonwealth Government or a loss of confidence in the Commonwealth Government. Therefore, any embarrassment to the Director if the names of consultants were released against the PSR’s stated policy is not relevant to my decision.
However, without considering this irrelevant factor of the PSR’s reputation, there are significant factors contrary to the public interest if consultants’ names could be released through FOI requests. There would be a substantial risk that many consultants would be reluctant to assist the Director in the future which would impede the effectiveness of the Director’s investigation. There are few compelling reasons to disclose the information except that increased government transparency is generally a favourable outcome.

In these circumstances, the public interest factors against disclosure of the consultants’ names outweigh the public interest factors in favour of disclosure of their names. Therefore, this information is conditionally exempt under s 47E(d).
Legal advice
The PSR has withheld certain documents as exempt due to a claim of legal professional privilege. Section 42 provides:
Documents subject to legal professional privilege
(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.
(2) A document is not an exempt document because of subsection (1) if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim.
(3) A document is not an exempt document under subsection (1) by reason only that:
(a) the document contains information that would (apart from this subsection) cause the document to be exempt under subsection (1); and
(b) the information is operational information of an agency.
Operational information is information held by the agency to assist the agency to perform or exercise its functions or powers in making decisions or recommendations affecting members of the public (or any particular person or entity, or class of persons or entities).[10]
[10] Freedom of Information Act 1982 (Cth) s 8A.
The PSR has set out the documents that they claim attract legal professional privilege in the Schedule. Broadly these documents relate to:
(a)The judicial review litigation brought by Dr Raiz in the Federal Court including documents 129 and 172; and
(b)The PSR’s investigation of Dr Raiz including communications regarding the Committee Review.
The Guidelines explain at paragraph 5.131 that communications from in-house lawyers are not always privileged. Factors that assist to determine whether a legal adviser-client relationship exists include whether a legal advisor is acting in their capacity as a professional legal advisor, whether the advice is independent, whether the dominant purpose test applies and whether the information is treated as confidential.
The dominant purpose test provides that legal professional privilege only attaches to documents that were brought into existence for the dominant purpose of giving or receiving legal advice or for use in actual or anticipated litigation.[11] Dr Raiz has queried whether all the documents that the PSR has claimed privilege comply with the dominant purpose test.
[11] FOI Guidelines, paragraph 5.136; Esso Australia Resources Ltd v Commissioner for Taxation [1999] HCA 67; (1999) 201 CLR 49.
Mr Topperwein provides the following evidence:
Many of the documents to which legal professional privilege applies are emails between PSR’s legal advisers, including myself, who were responsible for managing the litigation brought by Dr Raiz. These documents are identified in the Schedule with the lawyers involved also identified in the description of particular documents.
…
PSR's lawyers are often called on to undertake tasks that do not involve giving legal advice or to managing litigation. This is because PSR is a small agency and at times work is required to be done by whomever has availability at the time and where a senior person is required to undertake a task that work often falls on the senior lawyers.
Given that practice within PSR, and because I have a dual role as Executive Officer and lawyer, I have carefully reviewed each of the internal documents to ascertain that legal professional privilege applies to the document.
I confirm that legal professional privilege has been claimed only for documents that contain communications between a PSR lawyer, acting in his or her capacity as an in-house legal adviser to the PSR, either to the Director, a Committee or a staff member performing administrative or secretarial roles in assisting the Committee, and where I have confirmed that the communication is for the dominant purpose of seeking or providing legal advice, or for use in connection with the judicial proceedings brought by Dr Raiz in respect of the Amending Instrument.
Mr Topperwein confirms that the documents are held in a secure password protected system and treated confidentially.
Having reviewed the documents in dispute, I confirm that these documents attract legal professional privilege and are for the dominant purpose of providing legal advice. I am guided by Mr Topperwein’s knowledge of the legal matters and roles of lawyers in the PSR in his position as General Counsel of the PSR. I note that upon Dr Raiz’s FOI request, Mr Topperwein reviewed all the documents that the PSR had claimed privilege over and released further documents where he determined that staff were not acting in their capacities as legal advisors. I am satisfied that the remainder of documents that the PSR have claimed privilege involve documents for use in the judicial review proceedings brought by Dr Raiz or to provide legal advice about the PSR’s review of Dr Raiz’s medical practices. These communications are confidential and relate to independent legal advice provided by the in-house lawyers at the PSR.
Therefore, I find that the documents relating to legal advice are exempt from disclosure under s 42.
CONCLUSION
The Tribunal notes that on 2 July 2021 the decision dated 5 July 2019 was partially set aside and substituted. With respect to the remaining documents in dispute, the Tribunal affirms the decision of 5 July 2019.

I certify that the preceding one hundred and thirty-one (131) are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

..[SGD]….......................................
Associate
Dated: 25 November 2021

Date of hearing: 30 June 2021

Counsel for the Applicant: A. Anforth

Solicitors for the Applicant: Collins & Collins

Counsel for the Respondent: R. Walsh

Solicitors for the Respondent: Maddocks

Date of hearing:	30 June 2021
Counsel for the Applicant:	A. Anforth
Solicitors for the Applicant:	Collins & Collins
Counsel for the Respondent:	R. Walsh
Solicitors for the Respondent:	Maddocks