Civil and Administrative Tribunal New South Wales

• Medium Neutral Citation: Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130
• Hearing dates: On the papers
• Decision date: 08 September 2014
• Jurisdiction: Administrative and Equal Opportunity Division
• Before: S Montgomery, Senior Member

Decision

The decision under review is affirmed.

• Catchwords: overriding public interest against disclosure - conclusive presumption
• Legislation Cited: Administrative Decisions Tribunal Act 1997; Civil and Administrative Tribunal Act 2013; Government Information (Public Access) Act 2009; Health care Complaints Act 1993
• Cases Cited: Cianfrano v NSW Ombudsman [2007] NSWADT 273; DF v Director General, Attorney Generals Department [2002] NSWADT 164; Gliksman v The Commissioner, Health Care Complaints Commission [2001] NSWADT 47; Miller v Director of Public Prosecutions [2012] NSWADT 38; NZ v Health Care Complaints Commission [2006] NSWADT 111; Raethel v Director-General, Department of Education and Training [1999] NSWADT 108
• Category: Principal judgment
• Parties: Iraklia Pertsinidis (Applicant); Illawarra Shoalhaven Local Health District (Respondent)
• Representation: Anne Pertsinidis - agent (Applicant); Crown Solicitor's Office (Respondent)
• File Number(s): 133288

reasons for decision

1 This matter was commenced in the General Division of the Administrative Decisions Tribunal ("the ADT"). On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of NCAT. But because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of this Schedule).

2 The Applicant was been a patient of the Wollongong Hospital ("the Hospital"), which falls within the Illawarra Shoalhaven Local Health District ("ISLHD"). She submitted an application to the Respondent under the Government Information (Public Access) Act 2009 ("the GIPA Act"), in which she sought access to the following:

"File held by the ISLHD in relation to a complaint made by my family on my behalf in relation to events at Wollongong Hospital in May 2012"

3 The Applicant was admitted to the Hospital in May 2012. The Applicant's family lodged a complaint with both the Respondent and the Health Care Complaints Commission ("the HCCC" or "the Commission") in relation to her treatment at the Hospital. The complaint was lodged with the Respondent on 10 May 2012 ("the Hospital complaint"). The complaint was lodged at the HCCC on 11 May 2012 ("the HCCC complaint"). The two complaints were in similar terms. The Respondent was advised of the HCCC complaint shortly after the HCCC received it and it received a formal notification of the HCCC complaint on 16 May 2012.

4 In the notification letter, the HCCC invited the Respondent to respond to the complaint and requested a copy of the Applicant's medical records. A significant amount of the information on Respondent's complaint file was created or obtained for the purpose of responding to the complaints.

5 An objection was made to the release of some of the information sought, and the decision was taken under section 58(1)(a) of the GIPA Act, to provide partial access to the information. Internal documentation related to the HCCC Complaint Handling & Investigation Process was excluded.

6 The Applicant subsequent requested the Information Privacy Commissioner ("the IPC") review the Respondent's decision. The IPC made the recommendation under section 93 of the GIPA Act that the Respondent reconsider its decision by way of internal review and provide a new decision.

7 The Respondent consulted with the HCCC and the fresh decision was made against disclosure of the withheld information under clause 2 of schedule 2 of the GIPA Act and Section 99A of the Health Care Complaints Act 1993 ("the HCC Act"). The decision was based on the Respondent's understanding that section 99A prohibits the disclosure of information collected and considered when preparing a response to the HCCC.

8 The Respondent's internal investigation culminated in an Investigation Report dated 16 June 2012 ("the Investigation Report"). The Applicant contends that the Investigation Report did not address her concerns regarding her care and treatment at the Hospital. Her Access application sought documentation, specifically statements from the treating clinicians ("the staff statements"), to provide detailed and specific responses relating to her treatment and care. She was not satisfied with the Respondent's determination and she has applied to the Tribunal for external review of that determination.

9 The Applicant identified five documents that remain in dispute:

1. Statement of Dr Jane Holt dated 16 May 2012

2. Statement of Dr Rachel Teo dated 18 May 2012

3. Statement of Dr Johanna Kohlhagen dated 18 May 2012

4. Statement of Dr David Huber dated 23 May 2012

5. Statement of Dr David Huber dated 29 May 2012

Legislative scheme

10 The objects of the GIPA Act are set out in section 3, which provides:

Object of Act

(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a)authorising and encouraging the proactive public release of government information by agencies, and

(b)giving members of the public an enforceable right to access government information, and

(c)providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2) It is the intention of Parliament:

(a)that this Act be interpreted and applied so as to further the object of this Act, and

(b)that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

11 It is not disputed that the information that is the subject of this application, is government information and is held by an agency: section 4(1) of the GIPA Act.

12 Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure.' Section 9(1) provides that a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information.

13 Subsection 12(1) of the GIPA Act provides that there is a 'general public interest in favour of the disclosure of government information.' Subsection 12(2) provides that nothing in the GIPA Act limits any other public interest consideration in favour of the disclosure of government information, which may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government Information. The subsection also sets out a number of examples of public interest considerations in favour of disclosure of government information.

14 Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure. That test is in the following terms:

Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interests considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure

15 The public interest considerations against disclosure are set out in a Table to section 14 of the GIPA Act.

16 Section 14(1) of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosing any of the government information described in Schedule 1 to the Act.

17 Clause 1 of Schedule 1 to the GIPA Act provides

1 Overriding secrecy laws

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information the disclosure of which is prohibited by any of the following laws (which are referred to in this Act as "overriding secrecy laws"), whether or not the prohibition is subject to specified qualifications or exceptions and whether or not a breach of the prohibition constitutes an offence:

...

Health Care Complaints Act 1993

18 Clause 6 of Schedule 1 to the GIPA Act provides:

6 Excluded information

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of.

(2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information.

(3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5.

19 'Excluded information' is defined in Schedule 4 as follows:

"excluded information" of an agency specified in Schedule 2 means information that relates to any function specified in that Schedule in relation to the agency.

20 Clause 2 of Schedule 2 provides:

Excluded information of particular agencies

Note: Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is "excluded information" of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency.

...

2 Complaints handling and investigative information

...

The Health Care Complaints Commission-complaint handling, investigative, complaints resolution and reporting functions (including any functions exercised by the Health Conciliation Registry and any function concerning the provision of information to a registration authority or a professional council (within the meaning of the Health Care Complaints Act 1993 ) relating to a particular complaint).

...

21 Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. It provides:

15 Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:

(a) Agencies must exercise their functions so as to promote the object of this Act.

(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

22 Section 54 of the GIPA Act contains a requirement that an agency is to take reasonably practicable steps to consult with specified persons before providing access to information. That requirement only applies to information, which is of a kind that requires consultation under section 54(2) which includes personal information about a person: see section 54(2)(a) of the GIPA Act.

23 Section 58 of the GIPA Act sets out how applications are decided. Section 58(1)(d) provides that an agency can decide an access application for government information by deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information

24 On an application for review to the Tribunal, the onus is on the agency to establish that the decision the subject of review is justified: section 105(1).

25 The effect of a conclusive presumption of an overriding public interest against disclosure is that an agency is not required to balance the public interest test before refusing access to the information.

26 The object and principle of the HCC Act are set out in section 3:

3 Object and principle of administration of Act

(1) The primary object of this Act is to establish the Health Care Complaints Commission as an independent body for the purposes of:

(a) receiving and assessing complaints under this Act relating to health services and health service providers in New South Wales, and

(b) investigating and assessing whether any such complaint is serious and if so, whether it should be prosecuted, and

(c) prosecuting serious complaints, and

(d) resolving or overseeing the resolution of complaints.

(2) In the exercise of functions under this Act the protection of the health and safety of the public must be the paramount consideration.

27 Section 99A of the HCC Act provides:

99A Offence: improper disclosure of information

(1) If a person discloses information obtained in exercising a function under this Act and the disclosure is not made:

(a) with the consent of the person to whom the information relates, or

(b) in connection with the execution and administration of this Act, or

(c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or

(d) with other lawful excuse,

the person is guilty of an offence.

Maximum penalty: 10 penalty units or imprisonment for 6 months,

or both.

(2) A person may not be compelled in any legal proceedings to give evidence about, or produce documents containing, any information obtained in exercising a function under this Act.

(3) Subsection (2) does not apply to the following proceedings:

(a) proceedings under the Royal Commissions Act 1923,

(b) proceedings before the Independent Commission Against Corruption,

(c) proceedings under Part 3 of the Special Commissions of Inquiry Act 1983 ,

(d) an inquiry under the Ombudsman Act 1974 .

Issues before the Tribunal

28 The applicant has formulated seven issues before the Tribunal:

(1) Whether all the staff statements that were obtained before 14 June 2012 are "excluded information" under the GIPA Act;

(2) Whether all the staff statements that were obtained before 14 June 2012 are "excluded information" under the HCC Act;

(3) Whether the Respondent has demonstrated that it was exercising a function under the HCC Act when it obtained the relevant information;

(4) Whether the Respondent has provided evidence that shows that the statements and information provided by individual clinicians before 14 June 2012 would be treated as confidential and not shared with the Applicant;

(5) Whether the individual clinicians have been consulted by the Respondent as to the release of the information requested;

(6) Whether Dr B Errington's statement is "excluded information" under the GIPA Act, and

(7) Whether Dr B Errington's statement is "excluded information" under the HCC Act.

29 The Respondent submits that the issue for determination is whether there is an overriding public interest against disclosure of the HCCC investigation documents.

Discussion

30 The Respondent decided not to release information which it contends is internal documentation related directly to the HCCC's Complaint Handling and Investigation Processes. The Respondent submits that there is an overriding public interest against disclosure of the HCCC investigation documents because the information is captured by Clause 1 of schedule 1 to the GIPA Act and there is therefore a conclusive presumption of an overriding public interest against disclosure.

31 As noted above, the Hospital complaint was lodged with the Respondent on 10 May 2012 and the HCCC complaint was lodged at the HCCC on 11 May 2012. In all material respects the HCCC complaint is identical to the Hospital complaint.

32 The Respondent received verbal notification of the HCCC complaint on 14 May 2013. When it received formal notification of that complaint on 16 May 2012 it was conducting an internal investigation into the Hospital complaint. The HCCC confirmed to the Applicant's family that a written response was requested from the Respondent and due by 14 June 2012.

33 The HCCC made a determination on 22 June 2012. On 25 June 2012 the Applicant's family sought a review of that determination and the HCCC requested responses the Respondent, including statements from individual clinicians. The HCCC made a determination in regard to this review (HCCC File # 12/02729) on 13 November 2012.

34 The Applicant submits that the staff statements provided before 14 June 2012 contain information that was created or obtained in relation to the internal investigation of the Hospital complaint. As such it is not excluded information and is subject to the public interest test provisions under the GIPA Act.

35 She submits that the staff statements obtained before 14 June 2012 were not requested by or provided to the HCCC by the Respondent. The statements were extensively referenced and used by the Respondent to construct and compose the Investigation Report. The Respondent did not object to the inclusion of selected extracts and excerpts from the statements in the Investigation Report.

36 She further submits that the Respondent has not demonstrated that the staff statements were "obtained in exercising a function" under the HCC Act. She contends that the HCCC did not obtain any statements from any of the clinicians before 6 September 2012.

37 The Respondent submits that the HCCC investigation documents contain information that was created or obtained in relation to the Commission's investigation, and is thus excluded information. Further, the Respondent submits that the Commission refused to consent to the Respondent providing access to the documents. Accordingly, the Respondent contends that it complied with clause 6(2) of Schedule 1 to the GIPA Act.

38 Additionally, the Respondent submits that there is an overriding public interest against the disclosure of the HCCC investigation documents by operation of clause 1(1) of Schedule 1 to the GIPA Act and section 99A of the HCC Act.

39 Section 99B of the HCC Act grants the Commissioner, appointed under that Act, a discretion to "disclose information obtained in exercising a function" under the Act to certain classes of people "only if:

(a) the Commission considers the public interest in disclosing the information outweighs the public interest in protecting the confidentiality of the information and the privacy of any person to whom the information relates, and

(b) the Commission has had due regard to the principle set out in section 3 (2)."

40 Section 3(2) provides that "[i]n the exercise of functions under this Act the protection of the health and safety of the public must be the paramount consideration."

41 As noted above, with limited exceptions, section 99A(1) of the HCC Act renders it an offence for a person to disclose information obtained in exercising a function under that Act.

42 The Respondent submits that the HCCC investigation documents contain information that was "obtained in exercising a function" under the HCC Act. Further, as disclosure of the information is prohibited by the HCC Act, the information is subject to a conclusive presumption "that there is an overriding public interest" against its disclosure".

43 The Respondent relies on the evidence of its Director of Clinical Governance, Mr Robert Farrugia. Mr Farrugia provided an affidavit in which he set out the background to the matter, the steps taken to respond to the access application and the complaints. He stated:

4. The approach taken by the ISLHD is outlined in the following paragraphs.

5. Wollongong Hospital and the ISLHD utilise software called TRIM as their file management system. TRIM utilises electronic containers or files based on specific type of records. For example containers/files exist for legal matters, human resource matters, complaints, and so forth. Therefore, when the GIPA request was received from Ms Pertsinidis on 20 February 2013, the entire TRIM database was searched and it was identified that a complaint container exists titled Complaint from Anne Pertsinidis concerning Mrs Iraklia Pertsinidis - Wollongong Hospital. No other complaint files related to this subject were identified in the search. The ISLHD and Wollongong Hospital do not utilise hard copy files for official records.

6. The ISLHD originally received a request for the same complaint file in November 2012 from the legal firm Edwards Michaels Lawyers. The response of the ISLHD at the time directed the author to the lodgement of the request under the provisions of GIPA and a need to have the client sign the appropriate application form. An application form was provided which was subsequently returned in February 2013.

7. It was at this point that the ISLHD formed the view that there was a potential for litigation in relation to this matter and a notification was made to our insurer.

8. Having identified the one container in TRIM which matched the request made by Ms Pertsinidis, the documents within the container were reviewed. The contents consisted of files related to the lodgement of the complaint and its local investigation as well as correspondence to and from the Health Care Complaints Commission (HCCC) and documents in the form of the staff statements prepared for the HCCC.

9. Ms Pertsinidis has advised that she lodged her complaint with the HCCC on the 11 May 2013 (sic). Internal ISLHD correspondence dated 14 May 2013 (sic) indicates that the ISLHD had received verbal notification on this date that the HCCC would shortly provide the ISLHD with a detailed complaint from Ms Pertsinidis. There was further telephone communication between the Commission and the ISLHD between the 15 and 16 May 2013 (sic) which required the ISLHD to confirm formal receipt of the complaint from the Commission. This was confirmed on the 16 May 2013 (sic).

10. The ISLHD can confirm that within the TRIM complaint file documents prepared for the HCCC relate to on and after the 14 May 2013 (sic). This has guided our decision making when determining which documents are within the scope of release under GIPA.

11. The initial decision by the ISLHD in response to the release of documents under GIPA cited legal privilege and the provisions of s99A of the Health Care Complaints Act 1993 and Clause 2 of Schedule 2 of the Government Information (Public Access) Act 2009 and therefore only partial release of the documents contained within the complaint file was made.

12. Following a request for a review of the decision by Ms Pertsinidis, the ISLHD sought advice from Legal and Regulatory Services at the Ministry of Health. A phone call to the Director of Clinical Governance from Legal and Regulatory Services advised that the ISLHD had incorrectly cited legal privilege in responding to this request and that legal privilege did not apply in this instance. This was noted by the ISLHD and resulted in the release of additional documents to Ms Pertsinidis. The ISLHD regrets and extends an apology that the incorrect rationale related to legal privilege for partial non-disclosure was applied in the first instance.

13. The ISLHD has subsequently released all documents contained within the complaint file except those related to the HCCC exercising its functions under the Health Care Complaints Act 1993. This relates specifically to s99A of the Act and is further clarified in Clause 2 of Schedule 2 of the Government Information (Public Access) Act 2009. As part of the review of our original decision, the ISLHD (at the request of the Office of the Information Commissioner) contacted the HCCC to ascertain whether the Commission would make documents related to its investigation available to Ms Pertsinidis.

14. The HCCC subsequently provided advice to the ISLHD on 12 September 2013 that the Commission did not consent to the release of this information and concurred that the information should be excluded under Clause 2 of Schedule 2 of the Government Information (Public Access) Act 2009 and s99A of the Health Care Complaints Act 1993.

15. The ISLHD has now provided Ms Pertsinidis with all material contained within the complaint file as requested other than the information excluded under the provisions outlined in paragraph 14 above.

44 The Respondent's evidence indicates that the staff statements were provided to the HCCC on 20 September 2012. It concedes that it relied on information contained in the staff statements in the course of conducting its internal investigation and preparing its response to both the Applicant and the HCCC.

45 The Respondent submits that there is nothing in the language or purpose of section 14(1) and/or clause 6 of Schedule 1 to the GIPA Act to suggest that this concurrent use or purpose by the Respondent has the effect of negating the conclusive presumption that there is an overriding public interest against disclosure of the information contained in the staff statements. It further submits that such use does not preclude the content of the staff statements subsequently attracting the protection of clause 6(1) of Schedule 1 to the GIPA Act once they were obtained by the HCCC.

46 The Respondent points to Judicial Member Isenberg's consideration of this regime in Miller v Director of Public Prosecutions [2012] NSWADT 38 ("Miller"), where the Judicial Member rejected an argument that the regime established under the Act is narrower than the regime established by section 9 of the Freedom of Information Act 1989 ("the FOI Act"). In Miller, the Judicial Member was concerned with whether certain documents related to the Director of Public Prosecution's prosecuting functions and thus were excluded information under the Act.

47 The Judicial Member's reasons indicate that views expressed in decisions made in respect of the FOI Act, such as in Cianfrano v NSW Ombudsman [2007] NSWADT 273 ("Cianfrano") and Raethel v Director-General, Department of Education and Training [1999] NSWADT 108, are applicable to the interpretation of clause 6(1). These included the view expressed in DF v Director General, Attorney Generals Department [2002] NSWADT 164, that the expression "relating to" as used in the FOI Act is to be construed with the "widest import".

48 The Respondent submits that, consistently with Miller and Cianfrano, the information in the staff statements is related to the exercise of functions of the Commission, specifically its complaint handling and investigative functions. The phrase "relates to" should not be read down by the Tribunal to exclude documents that are generated by persons other than the Commission where it is apparent that they record information that relates to the Commission exercising its functions. Such a step would compromise the integrity of the regime developed to protect the investigative procedures of numerous government agencies.

49 Further, the Respondent submits that, since the documents record excluded information, it is not permissible for the Tribunal to consider them using the public interest test provisions under the GIPA Act.

50 The Respondent submits that the Applicant's contention that the Respondent's use of the staff statements in the course of its own investigation precludes them from attracting the conclusive presumption in of clause 1(1) of Schedule 1 to the GIPA Act is not correct because it requires the Tribunal, in effect, to read down the scope of the protection provided by the conclusive presumption against disclosure.

Conclusion

51 While it is not in dispute that the Respondent used the staff statements for the purposes of its investigation into the Hospital complaint, it appears that the Respondent also provided the statements to the HCCC as part of its response to the HCCC in regard to its review of the determination of the HCCC complaint.

52 The staff statements were provided to the HCCC on 20 September 2012. This appears to have been in regard to HCCC File # 12/02729. The HCCC requested material from the Respondent as part of that review and its investigation was not concluded until 13 November 2012.

53 That being the case, it is apparent that the HCCC review was being undertaken at the time the staff statements were provided to the HCCC on 20 September 2012.

54 The scope of section 99A(1) of the HCC Act is wide. With limited exceptions, the section prohibits disclosure of information obtained in exercising a function under that Act. On the basis of the material before me I am satisfied that the HCCC obtained the staff statements in exercising a function under the HCC Act i.e. its review of HCCC File # 12/02729. This would remain the case notwithstanding that the statements were prepared for the purposes of the Respondent's investigation into the Hospital complaint.

55 The only exceptions to the section 99A of the HCC Act prohibition against disclosure is that found in subsection 99A(1). That is, if the disclosure is:

"(a) with the consent of the person to whom the information relates, or

(b) in connection with the execution and administration of this Act, or

(c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or

(d) with other lawful excuse"

56 Section 99B of the HCC Act provides that the HCCC may disclose information to courts, police, authorities regulating health practitioners and others where the public interest in disclosing the information outweighs the public interest in protecting the privacy of any person to whom the information relates. The Respondent consulted with the HCCC in order to ascertain whether or not the HCCC consented to the release of the staff statements to the Applicant. The Commissioner did not consent.

57 The object and principle of the HCC Act are set out in section 3 and included at in section 3(1)(b) is:

(b) investigating and assessing whether any such complaint is serious and if so, whether it should be prosecuted

58 Section 3(2) provides that the protection of the health and safety of the public must be the paramount consideration.

59 Pursuant to subsection 99A(1)(a) of the HCC Act, disclosure of information obtained in exercising a function under the Act is not prohibited if the disclosure is with the consent of 'the person to whom the information relates'. In this matter, the withheld information relates to the Applicant. It must be implied that she consents to the release of the statements. However, in my view the expression "the person to whom the information relates" in subsection 99A(1)(a) must be read more broadly than as only being a reference to the Applicant. I agree that the expression is to be construed with the "widest import".

60 In order for the HCCC to fulfil its investigative obligation under in section 3(1)(b) of the HCC Act, it is essential that those providing information as part of an investigation are encouraged to give frank and honest responses to the items in issue. Some people would not be prepared to speak frankly to investigators or they might not give accurate information unless they can be assured of confidentiality.

61 As was noted in NZ v Health Care Complaints Commission [2006] NSWADT 111

The Commission is very conscious of the need to maintain confidentiality of complaint and other information it receives and the privacy and confidentiality of people. It is appreciated that to disclose such information can cause harm, affect their information privacy and breach duties of confidentiality owed to them. This is the reason the Commission has developed policies and guidelines to deal with the confidentiality of information that it receives or obtains as part of its business.

62 In Gliksman v The Commissioner, Health Care Complaints Commission [2001] NSWADT 47 Judicial Member Robinson considered an application under the FOI Act. He considered the provisions of the now repealed section 37 of the HCC Act which was in similar terms to that found in section 99A. The Judicial Member stated at paragraph [29] and following:

"29 The Division to which the section refers, Division 5, relates to the investigation of complaints against health practitioners in NSW. I am satisfied from my inspection of the documents that they contain information obtained by the respondent in exercising a function under the HCC Act.

30 It was submitted that this section constituted a statutory "guard" against disclosure of the subject documents and it was a relevant matter for the Tribunal to take into account.

31 No submission was made that section 37 constituted a secrecy provision within the meaning of clause 12 of Schedule 1 of the FOI Act and the documents were therefore exempt (see generally, for example, the discussion of clause 12 in Anne Cossins, Annotated Freedom of Information Act New South Wales, 1997, LBC Information Services, Sydney, at pp 390-394). As no reliance was placed on clause 12 by the respondent, I shall not consider it here.

32 In my view, while section 37 of the HCC Act does not constitute a complete prohibition on the release of the respondent's documents, as it provides for disclosure with "lawful excuse", I consider that it is a relevant factor for me to take into account. However, I do not consider it a significant factor in the context of this particular case. Of much more significance is the general nature of the powers and functions of the respondent under Division 5 of the HCC Act and that Act to receive and act on complaints regarding health practitioners. These are plainly functions which would often involve the collection of a significant amount of confidential and personal information about persons. Some of that information would be made public at appropriate times, for example, in the course of some investigations and when prosecutions are commenced by the respondent.

33 As to the submission that there was no public interest to be served by the release of the documents to the applicant here, reference was made by the respondent to the passage of Heerey J in Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 at 441 where it was said of the similar Commonwealth FOI provision in section 41(1) of the Freedom of Information Act 1982(Cth) :

"Turning to the criterion of unreasonableness prescribed by the s 41(1) exclusion, it seems to me that attention is directed, amongst other things, to whether or not the proposed disclosure would serve the public interest purpose of the legislation, which is to open to public access information about government which government holds, this being information which in truth is held on behalf of the public. I do not think it is necessary in order to make out the s 41(1) exclusion that there is some particular unfairness, embarrassment or hardship which would enure to a person by reason of the disclosure. Such matters, if present, would doubtless weigh in favour of exclusion. But if the information disclosed were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, I think disclosure would be unreasonable."

34 I respectfully agree with these observations in the context of the NSW Act. However, I do not think that the relevant interest of the applicant in the present case is merely that of curiosity.

35 I prefer the analysis of Lockhart J in the same case (Jenkinson & Heery JJ agreeing) at page 483, where he said:

"The object of the Act, as expressed by s. 3, is to give the "Australian community" the right of access to information in the possession of the Australian Government. What is "unreasonable" disclosure of information for purposes of s. 41(1) must have as its core public interest considerations. The exemptions necessary for the protection of "personal affairs" (s. 41) and "business or professional affairs" (s. 43) are themselves, in my opinion, public interest considerations. That is to say, it is not in the public interest that the personal or business or professional affairs of persons are necessarily to be disclosed on applications for access to documents. The exemption from disclosure of such information is not to protect private rights, rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access provided the other conditions mentioned in sections 41 and 43 are satisfied. An examination of the other provisions of Part IV of the Act concerning exempt documents confirms this approach."

36 In the NSW context, the "touchstone" in personal affairs cases generally is consideration of section 5(2)(b) of the objects provision of the FOI Act which requires the Tribunal (and administrators making decisions under the FOI Act) to consider whether withholding the documents is "reasonably necessary for the proper administration of the Government".

37 Having considered the documents themselves and all of the evidence and submissions, I am satisfied that withholding the subject documents, for the present, is reasonably necessary for the proper administration of the respondent's functions and disclosure would involve the unreasonable disclosure of information concerning the personal affairs of Dr A.

38 I determine that the decision under review is affirmed."

63 The approach to the release of information under the FOI Act is significantly different to that of the GIPA Act. The considerations are not the same as that to which Judicial Member Robinson was referring. Nevertheless, the considerations most aligned are those found in the table to section 14 of the GIPA Act at clause 1 which states:

1 Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):

(a) ...,

(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions,

...

(f) prejudice the effective exercise by an agency of the agency's functions,

(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,

...

64 These considerations are relevant to the construction to be given to the HCC Act.

65 In this matter, the staff statements have a dual purpose. They were not prepared for the sole purpose of the investigation into the HCCC complaint. However, they were obtained in the exercise of the investigative function. As Judicial Member Robinson observed, the HCCC receives and acts on complaints regarding health practitioners. Its functions involve the collection of a significant amount of confidential and personal information. It is necessary that health practitioners cooperate in these investigations and the protection afforded by section 99A of the HCC Act is a significant factor in obtaining that cooperation. In my view, that protection applies notwithstanding the dual purpose of the staff statements.

66 I appreciate that this leads to an unsatisfactory outcome for the Applicant. I do not think that her interest is merely one of curiosity. She has a valid reason for wanting to obtain the statements so as to better understand her treatment. In my view, it is open to the individual authors of the statements to consent to the release. If that consent is given then the conclusive presumption of an overriding public interest against disclosure would not be applicable as section 99A(1)(a) would provide an exemption. However, in the absence of that consent, I agree with the Respondent that there is a conclusive presumption of an overriding public interest against disclosure and the statements should not be released.

67 In the circumstances it is not necessary that I consider the relative strengths of the factors in favour of disclosure and those against disclosure. However, I note that under the HCC Act the protection of the health and safety of the public must be the paramount consideration and I am generally of the view that release of information provided in confidence in relation to a complaint might affect the HCCC's ability to carry out investigations and the exercises of its functions. If the individual authors of the statements consent to the release, the Respondent can weigh this against the factors in favour of release and may well form the view that the statements should be released.

68 In my view, the Respondent has correctly determined that that there is a conclusive presumption of an overriding public interest against disclosure of the statements. The decision to refuse to release the information should therefore be affirmed.

Order

The decision under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar

Decision last updated: 08 September 2014