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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 4360
Decision Date: 25 November 2021

CaseChat Overview and Summary

This matter concerned an application for freedom of information review brought by Dr Raiz, an anaesthetist, against Professional Services Review (PSR). Dr Raiz sought access to documents related to investigations conducted by the PSR into his alleged inappropriate medical practice. The PSR had claimed that certain documents were exempt from disclosure, either in full or in part, under provisions of the *Freedom of Information Act 1982* (Cth), specifically sections 47C and 47E(d), and also under section 42.

The legal issues before the Tribunal were whether the documents identified by the PSR were exempt from disclosure under the *Freedom of Information Act 1982*, and if any documents were conditionally exempt, whether their disclosure would be contrary to the public interest. The Tribunal was required to consider the nature of the documents, which related to the PSR's review and investigation process, and apply the relevant exemption provisions.

The Tribunal considered the evidence of Mr Bruce Neville Topperwein, Executive Officer and General Counsel of the PSR, which was accepted as Dr Raiz did not challenge it. The Tribunal disallowed Dr Raiz's late application to rely on an affidavit, finding no adequate explanation for the delay in providing the material. The Tribunal found that documents relating to legal advice were exempt from disclosure under section 42 of the Act. With respect to the remaining disputed documents, the Tribunal affirmed the PSR's decision that they were conditionally exempt under sections 47C and 47E(d) and that disclosure would be contrary to the public interest.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.CONSIDERATIONDocuments 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 processesGeneral 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.