Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rourke v Health Professional Councils Authority [2024] NSWCATAD 100 Hearing dates: 27 March 2024 Date of orders: 15 April 2024 Decision date: 15 April 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr R Dubler SC, Senior Member Decision: The decision of the Respondent under review is affirmed. Catchwords: ADMINISTRATIVE LAW - government information – whether documents are excluded information of the Health Care Complaints Commission that is conclusively presumed to be subject to an overriding public interest against disclosure within the meaning of the Government Information (Public Access) Act 2009 (NSW) – whether the application for access to documents should be refused on the basis that there is an overriding public interest against their disclosure as compromising the complaint handling process of the Respondent within the meaning of the Government Information (Public Access) Act 2009 (NSW) Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 Bailey v Commissioner of Police, NSW Police Force [2023] NSWCATAP 103 Broadribb v Medical Council of New South Wales [2018] NSWCATAD 2013 Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19 Fire Brigade Employees' Union v Fire and Rescue NSW [2014] NSWCATAD 113 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Leech v Sydney Water Corporation [2010] NSWADT 298 Re Waterford and Department of Treasury (No 2) [1984] AATA 67 Ryan v NSW Minister for Planning and Open Spaces [2021] NSWCATAP 221 Sinclair v Psychology Council of NSW [2017] NSWCATAD 8 Snape v Commissioner of Police (No 2) [2022] NSWCATAP 244 Yee v Medical Council of NSW [2017] NSWCATAD 370 YG and GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: Jeremy James Rourke (Applicant) Health Professional Councils Authority (Respondent) Representation: Applicant (self-represented) Crown Solicitor (Respondent) File Number(s): 2023/00338559 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) the disclosure, publication or broadcast to the Applicant or the public of the evidence and submissions lodged with, or given to, the Tribunal in confidence by the Respondent is prohibited. reasons for decision Introduction 1. On 4 August 2023, the Applicant lodged an access application (the Access Application) under s 9 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) with the Respondent (HPCA), seeking access to information in the following terms: 'In relation to the independent review by Ms Vanessa Clift of events of 6 April 2018 I request all written records of communication to and from Ms V Clift in regard to the terms of reference of the review including but not limited to letters, emails, faxes, memos and diary entries.' 2. On 15 September 2023, the HPCA decided the Access Application (the original Decision) by providing access to certain documents and refusing to provide access to three documents on the basis that there was an overriding public interest against disclosure of the information including on the basis that it was the excluded information of the Health Care Complaints Commission (HCCC). 3. By application lodged on 24 October 2023, the Applicant seeks administrative review of the original Decision. Background 1. The Applicant is a Dental Practitioner. In 2016, complaints were made to the HCCC and/or the Dental Council of NSW about the Applicant's professional conduct by another Dental Practitioner and a former patient. 2. The Dental Council of NSW held an inquiry under the Health Practitioner Regulation National Law (NSW) (National Law) to deal with the complaints (the April 2018 Inquiry). On 4 May 2018, the Dental Council notified the Applicant that it had found him guilty of unsatisfactory professional conduct within the meaning of s 139B(1) of the National Law. 3. On 24 April 2023, the Applicant sent a letter addressed to the Commissioner of the HCCC described as a 'complaint with regard to the conduct of one of the Members of the Dental Council who presided over the April 2018 Enquiry' in relation to her professional conduct as to under 139B of the National Law. On 1 June 2023, the HCCC wrote to the Applicant in response to his correspondence dated 24 April 2023 notifying him that it had referred his complaint to the HPCA because it raised issues requiring investigation by the HPCA rather than the HCCC. On 2 June 2023, the HCCC sent an email to the HPCA referring the Applicant's complaint to the HPCA for investigation. 4. On 5 June 2023, the Applicant sent a further letter to the HCCC described as an 'Impairment Notification in accordance with … s 152 of the National Law and a complaint in accordance with s 7(1)(a) of the Health Care Complaints Act …' in relation of one of the Members of the Dental Council that conducted the April 2018 Inquiry (Impairment Notification). On 9 June 2023, the HCCC sent the Applicant an email in relation to the Impairment Notification advising that the matters raised did 'not fall within the scope of [its] remit', and that, in any case, the matter it raised did not meet the HCCC's 'threshold for initiating an investigation or suggesting any impairment'. 5. On 12 June 2023, the Applicant sent an email to the Executive Officer of the Dental Council referring to the Impairment Notification and the response from the HCCC on 9 June 2023. The email asserted that, in light of the HCCC's response to decline to investigate the matter, 'it follows that it's now the responsibility of the Dental Council and HPCA to progress their own determination of this matter'. On 4 July 2023, Ms Clift, Acting Director of Council Services, HPCA, sent an email to the Applicant, notifying him that she had been appointed to conduct a review (the HPCA Review) by considering the allegations he had raised in accordance with the 'HPCA Policies and Procedures - Managing Complaints about a Council, Council Members, Hearing Members or Council Delegates 2022'. 6. On 4 July 2023, the Applicant sent a letter to the HCCC described as a 'new complaint' concerning the conduct of all four Council Members that conducted the April 2018 Inquiry. On 5 July 2023, the Applicant sent an email to Ms Clift notifying her that he had sent her a USB containing an audio recording of the April 2018 Inquiry. On 3 August 2023, Ms Clift sent an email to the Applicant acknowledging receipt on 7 July 2023 and 17 July 2023 of the complaint and two USBs which contained 'recordings… of the full Council Inquiry from 6 April 2018, including times of adjournments of that Inquiry'. 7. On 18 August 2023, Ms Clift sent a letter to the Applicant referring to his email dated 20 June 2023 regarding allegations against a particular Member of the Dental Council, and his further letter and USB making additional complaints against other Council Members who heard the April 2018 Inquiry. The letter indicated that the HPCA review had concluded that there was no evidence to support the Applicant's allegations. The Access Application 1. On 4 August 2023, the Applicant submitted the Access Application to the HPCA. On 24 August 2023, the HPCA notified the Applicant that it was required to consult with a third party, namely the HCCC. On 4 September 2023, the HCCC responded and did not provide its consent to the disclosure of identified documents to the Applicant. 2. On 15 September 2023, the HPCA made the original Decision on the Access Application, deciding that: 1. The required information is excluded information of the HCCC which cannot be released without HCCC's consent; 2. It would provide access to certain documents, being correspondence received from or sent to the Applicant, because the HCCC had consented to the release of that information; 3. It refused access to three documents, being Document 1, 7 and 8 (Tabs 1, 2, 3 of the Confidential Bundle tendered to the Tribunal) pursuant to s 58(1)(d) of the GIPA Act because the HCCC had not consented to their release. The evidence and written submissions 1. The HPCA tendered the following material: 1. An open bundle of evidentiary material received by the Tribunal on 18 December 2023 (Exhibit A); 2. A confidential bundle of evidentiary material lodged with the Tribunal dated 15 December 2023 (Confidential Exhibit B); and 3. Affidavit of C. J. Borg dated 18 December 2023 (Exhibit C). 1. The HPCA also relied upon a set of open written submissions and closed written submissions received in confidence. An order restricting publication and disclosure of the confidential material lodged and tendered at the Tribunal has been made. 2. The Applicant tendered and relied upon at the hearing a bundle of documents lodged with the Tribunal on 19 March 2024 (Exhibit 1) and a set of written submissions lodged with the Tribunal on 19 March 2024. 3. Mr Borg was cross-examined on his affidavit. The evidence of Mr Borg 1. Mr Borg is the Executive Officer of the Dental Council of NSW and is employed in that role by the HPCA. Mr Borg has worked in roles relating to professional standards in health professions, and training and regulations of health professionals, for over 25 years. 2. Those roles include: 1. Since 2018, being the Executive Officer of the Dental Council; 2. From 2011-2018, working as the Medical Registration Manager in the Australian Health Practitioner Regulation Agency; and 3. From 2000-2011, working at the Royal Australian College of Physicians. 1. Mr Borg explains that one of the functions of the HPCA is that it receives, investigates and determines complaints about Council's or their Members, including the Dental Council, in accordance with its complaints policy and procedure. The complaints policy and procedure of the HPCA outlines the policy for handling complaints about 'Council processes, including decisions made by a Council Member or Delegate'. 2. Of particular relevance is paragraphs 15-23 of his affidavit as follows: 15. It is my experience and expectation that confidentiality should be maintained at all stages of a complaints handling process. Practically speaking, this means that individuals involved in the complaint handling process have a responsibility to ensure information relating to the investigation is kept confidential. Parties involved in an investigation and complaints management process must not disclose information or materials relating to the complaint with individuals who are not involved in its management. 16. Maintaining confidentiality over the complaint handling and investigative process is necessary to ensure the fairness, integrity and transparency of the process. I say that for the following key reasons: a. The complaints that the HPCA receives are often serious matters going to the professional integrity and standing of health practitioners and regulatory processes. It would be unfair to the subjects of those complaints, and compromise the public's confidence in the investigation process, if unverified allegations or incomplete findings were disclosed. Release of that information may unfairly damage the reputations of the people concerned. b. Confidentiality facilitates cooperation and sharing of information with investigators during an investigation, because people have confidence that the information they provide will not be disclosed. If people were concerned about the information they provided being released, they may become concerned about the risk of reprisal action from people about whom they share information, which would discourage their cooperation. c. Confidentiality enables investigators to pursue and analyse information in a thorough and frank way, and enables them to record their analysis with a focus on reaching the right outcome and without having to be concerned about whether that analysis, if released, might be misunderstood or misused by other parties. CONCERNS REGARDING DISCLOSURE OF INVESTIGATION DOCUMENTS 17. I have reviewed the documents that Dr Rourke is seeking to access through his application. These include: a. internal HPCA correspondence containing background information and proposed steps in the investigation of his complaint; and b. a file note document prepared by Ms Clift recording what I would describe as her "thought bubbles" about the investigation, including potential and ongoing lines of inquiry, initial views about the allegations, and initial views about how to deal with the complaint. 18. In my view, disclosing HPCA documents that record steps in the investigation process would prejudice HPCA's exercise of its complaint handling function because it would compromise the ability of HPCA officers managing complaints to conduct investigations effectively. I say that for the following key reasons. 19. First, documents like the internal correspondence and Ms Clift's file note which record pieces of information obtained by an investigator and their evolving or initial views only provide a "snapshot" of the investigation - either a particular part, or a particular moment in time. They do not provide a complete picture of the decision-making process, and are not intended to do so. They may include unverified allegations that are later found to be incorrect, or considerations that were considered but not ultimately relevant to, or given any weight in, the investigator's final determination of the complaint. 20. If investigators or other HPCA staff who provide information in relation to complaints considered that there was a risk that they would have to disclose documents in which they have recorded these steps in their thinking, they would be discouraged from recording that information in writing, so as to avoid giving an incorrect impression of the complaint handling process that might damage public trust in the process. 21. It is essential to the integrity of the investigation of a complaint that investigators and other HPCA staff who provide information in relation to complaints be able to express and record their views contemporaneously, candidly and thoroughly. Documents recording that information are an important tool in the investigatory and reasoning process because they enable investigators to track their progress, analyse the information they have gathered, identify important issues and gaps for further consideration, and reach a reasoned conclusion. Based on my experience conducting investigations and supporting the conduct of investigations, if that toot was not available to an investigator, I would be concerned that they may miss important details that are relevant to the determination of the complaint, and risk making incorrect assessments or decisions based on incomplete or flawed information. 22. Furthermore, disclosure of documents of this kind would disclose confidential information from (the investigation process, including investigators' own consideration of the issues raised by the complaint and any information provided by other individuals in confidence. As discussed at [16] above, that would risk unfairly disclosing unverified allegations, damaging reputations and discouraging people from cooperating with investigators. It may also mean that HPCA staff involved in the investigation are less likely to be frank in their discussions if they are concerned that those discussions may later be disclosed. 23. I also think each of these risks together would reduce public confidence in the transparency, integrity and fairness of the HPCA's investigation processes as a whole. That would risk compromising public confidence in the work of the councils themselves, which is an important part of protecting the health and safety of the public under the National Law. Issues for Determination 1. There are three documents in question, referred to by the parties as Document 1, Document 7 and Document 8. 2. Originally, the HPCA contended that Document 8 was not within the scope of the Access Application, however, in order to facilitate the just, quick and cheap resolution of the real issues in dispute between the parties and to avoid a further amended Access Application being made to the HPCA, the HPCA decided to treat Document 8 as if it was within the scope of the Access Application. 3. Otherwise, the HPCA submits that the correct and preferable decision to these proceedings is to refuse access to the three withheld documents on the basis that: 1. Documents 1 and 8 are the excluded information of the HCCC and are conclusively presumed to be subject to an overriding public interest against disclosure; and 2. There is an overriding public interest against disclosure of Document 1, Document 7 and Document 8. 1. Accordingly, the issues for determination may be summarised as follows: 1. Whether the public interest considerations against disclosure of Document 1, Document 7 and Document 8 outweigh those in favour: see section 13 and clause 1(e) and (f) to the Table to s 14 of the GIPA Act; and 2. Whether an overriding public interest against disclosure is conclusively presumed by s 14(1) of the GIPA Act because Document 1 and Document 8 constitute 'excluded information' of the HCCC pursuant to clause 6, schedule 1 of the GIPA Act. Jurisdiction 1. A decision to refuse to provide access to information in response to an access application is a 'reviewable decision': see GIPA Act, s 80(b). The person aggrieved by a 'reviewable decision' under the GIPA Act may apply to the Tribunal for administrative review of the decision under the Administrative Decisions Review Act 1997 (NSW) (ADR Act); GIPA Act s10(1); Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 30. 2. The task of the Tribunal when undertaking administrative review is to determine what is the 'correct and preferable decision' having regard to the material before it: ADR Act, s 63. 3. The time at which the determination is to be made as to the correct and preferable decision, is the date and time that the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25]. General Principles 1. In administrative review proceedings in relation to a decision to refuse access to information under the GIPA Act, the burden falls on the agency to establish that its decision is justified: GIPA Act, s 105(1). 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. 2. Section 13 of the GIPA Act provides as follows: 13 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 interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 1. Section 14(1) of the GIPA Act provides that information provided in Sch 1 of the GIPA Act is 'conclusively presumed' to be subject to an overriding public interest against disclosure. Relevantly, cl 6 of Sch 1 provides that the conclusive presumption applies to 'excluded information', as follows: (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. 1. The term 'excluded information' is defined in Sch 4, cl 1 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. 1. Relevantly for the purposes of these proceedings, the HCCC is an agency specified in Sch 2, in respect of which the following functions are specified: 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)." 1. The note to Sch 2 repeats that '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'. Public interest test 1. Where the government information sought in an access application is not subject to a conclusive presumption against disclosure pursuant to s 14(1) of the GIPA Act, regard must be had to the "public interest test" set out in s 13, which provides that: There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure." 1. Section 12(1) provides that there is a general public interest in favour of the disclosure of government information. Section 12(2) further provides that nothing limits the considerations in favour of disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest in favour of disclosure. The note to s 12(2) lists examples of the types of considerations in favour of disclosure that may be taken into account. 2. The Table to s 14 sets out the only considerations against disclosure that may be taken into account when applying the public interest test in s 13. In relation to the considerations in the Table, the evidence must demonstrate that they 'could reasonably be expected' to have one or more of the stated effects set out in the clauses. 3. As discussed further below, these proceedings raise the application of two public interest considerations against disclosure of information in the Table, being where disclosure could reasonably be expected: 1. to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency: cl 1(e); and 2. to prejudice the effective exercise by an agency of the agency's functions, whether in a particular case or generally: cl 1(f). 1. Section 58 of the GIPA Act sets out how access applications may be decided by agencies. Relevantly, an agency may determine an access application by deciding to refuse to provide access to information because there is an overriding public interest against disclosure: s 58(1)(d). Is there an overriding public interest against disclosure of Documents 1, 7 and 8? 1. The issue for consideration here is, whether or not, applying the public interest test in s 30 of the GIPA Act, the Tribunal should find that there is an overriding public interest against the disclosure of Documents 1, 7 and 8, having regard to the public interest against disclosure in clauses 1(e) and 1(f) of the Table to s 14 of the GIPA Act. 2. The HPCA submits that to reveal the documents in question would reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency pursuant to clause 1(e). Further, and in the alternative, the HPCA submits that to reveal the documents would prejudice the effective exercise by an agency of its functions pursuant to clause 1(f). 3. The Applicant makes submissions against these propositions. He submits that two of the withheld documents were internally generated by the HPCA before Ms Clift commenced her review. The Applicant refers to the fact that two of the withheld documents, Document 1 (28 June 2023) and Document 8 (29 June 2023), were created internally by the HPCA before Ms Clift wrote on 4 July 2023 to the Applicant to inform him that she had been appointed to undertake the review. The Applicant also contends that access to the documents would not prejudice the deliberations of Ms Clift in her review as the scope of the application was only for the 'terms of reference' for Ms Clift's review. 4. The Applicant submits that public trust would be compromised if the HPCA staff are shown to be accepting 'unverified allegations' as critical evidence in its investigation. He contends that the public interest would be served if there was disclosure of withheld documents that confirmed such conduct. 5. The Applicant submits that Mr Borg's statement at [19] of his affidavit is irrelevant to the deliberations of the Tribunal as no first step of the investigative process can ever represent the investigation as a whole – and even if it did – it would still be in the public interest to disclose the withheld documents which might reveal the guiding influence that led to Ms Clift reaching her decision. 6. The Applicant refers to the statement in Mr Borg's affidavit at [20] that to reveal the documents might give an incorrect impression of the complaint handling process that might damage public trust in the process. The Applicant submits that this should not be taken into account given what is stated at s 15(d) of the GIPA Act to the effect that 'the fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account'. 7. According to the Applicant, disclosure of the documents or documents of the kind being sought would focus the HPCA's staff thoughts, attention and comments on the issues that are important and free of any bias. Also, according to the Applicant, frank, robust and forthright deliberations could easily still occur in such an environment and make HPCA's staff accountable. 8. The Applicant contends that the reasoning of Mr Borg at [22] is irrelevant and inconsistent with s 15(c) of the GIPA Act which states: 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. 1. The Applicant submits that reliance on clause 1(e) is misconceived as the phrase 'a deliberative process' cannot apply as Ms Clift's review is now complete and therefore cannot possibly be prejudiced. 2. The Applicant contends that reliance on clause 1(f) is wrong as the submissions and evidence of Mr Borg are speculative in nature and do not support the contention that disclosure of the three withheld documents would impair the ability of the HPCA to obtain similar information in the future. 3. The Applicant pointed to the following factors in favour of disclosure: 1. The public interest in ensuring the decision by Ms Clift was 'open' and 'fair'; 2. To ensure that the Applicant was afforded procedural fairness; 3. The fact that there was no proper reasoning articulated by Ms Clift; 4. The public interest in terms of accountability, openness and transparency espoused in s 3 of the GIPA Act; 5. The desirability of ensuring confidence in the integrity of the HPCA decision making process; 6. Disclosure of the information sought could reasonably be expected to inform the public about the manner in which the conduct of HPCA officials are held to account beyond the investigation of professional Councils and the HCCC; 7. Understanding the reasoning process will reassure affected persons, such as the Applicant, that the outcome is correct; 8. Being required to explain why a decision has been made (giving reasons) is a fundamental accountability mechanism; and 9. The above considerations are heightened in the case of Ms Clift as she occupied the roles of both investigator and decision maker. 1. In summary, the Applicant submits that revealing the documents in question is in the public interest essentially for two reasons: first, to ensure effective outcomes are reached and, secondly, to ensure that effective processes and procedures are followed. In other words, the Applicant and the public have an 'absolute entitlement to know' that the body charged with the protection of their health and safety with the statutory power to adversely affect the interest of individuals are discharging their functions in a fair and lawful manner and are seen to be doing so. 2. The Applicant focused on the lack of clear reasoning expressed in the decision of Ms Clift on the Applicant's complaint. The Applicant focused on the statement of Ms Clift in her conclusion as follows: I confirm that I listened to your recoding provided in full and have formed the view that the panel members were respectful and adherent to the HPCA code of conduct when addressing you in person. I have also formed the view that you were given a fair hearing and that procedural fairness was followed throughout the enquiry. 1. The Applicant submits that it was not stated by Ms Clift as to whether she formed the view that the panel was respectful and adherent to the HPCA code of conduct for that part of the inquiry while Dr Rourke was out of the hearing room during the numerous adjournments. The Applicant submits that this was relevant given that the audio showed that Dr Lobo had stated 'what an arsehole' in reference to Dr Rourke but this fact is not specifically dealt with by Ms Clift nor the subject of any real finding. 2. The Applicant submits that this heightens the public interest factor in this case in favour of disclosure. 3. In conclusion, the Applicant contends that the factors in favour of disclosure are compelling and should be accorded significant weight in the balancing exercise and that accordingly the documents in question should be revealed. Consideration 1. In Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19 at [24] – [25], the Appeal Panel described the approach to determining whether there is an overriding public interest against disclosure for the purpose of s 13 of the GIPA Act as follows: 24. Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused. 25. The new Act has a more structured approach to the decision-making task than was seen under the previous legislation. The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government. 1. The phrase 'could reasonably be expected' appearing in the Table has been the subject of extensive judicial consideration, including in the context of the GIPA Act: see Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190; Leech v Sydney Water Corporation [2010] NSWADT 298 at [25]. 2. The two public interest considerations against disclosure set out in the Table of s 14 are whether the disclosure of the information sought could reasonably be expected to: 1. Reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency: s 14 Table, cl 1(e); or 2. Prejudice the effective exercise by an agency of the agency's functions: s 14 Table, cl 1(f). 1. Both of these considerations involve a reasonable expectation of 'prejudice'. The term 'prejudice' is to be given its ordinary meaning being to 'cause detriment or disadvantage' or 'to impede or derogate from': see Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. 2. In considering the application of the public interest test, the Tribunal must identify what public interest considerations in favour of disclosure apply and make findings as to the weight to be attributed to those considerations: see Snape v Commissioner of Police (No 2) [2022] NSWCATAP 244 at [41] –[43]; Bailey v Commissioner of Police, NSW Police Force [2023] NSWCATAP 103 at [91] – [92]. 3. Further, it is accepted that there is a general public interest in favour of disclosing government information which must be taken into account and is taken into account. 4. The Tribunal will deal firstly with the public interest considerations in favour of disclosure. The Tribunal finds on the evidence as a whole that: 1. Disclosure of the information sought by the Applicant could reasonably be expected to enhance the accountability of the HPCA as a government agency; 2. Disclosure of the information could reasonably be expected to inform the public about the operations of the HPCA as an agency, and, in particular, its practices for dealing with complaints about members of professional Councils that are referred to it by the HCCC; and 3. The information requested includes personal information of the Applicant. 1. Further, each of the above relevant public interest considerations in favour of disclosure are relevant public interest considerations which adopt, in part, the language of the examples in the note to s 12(2) of the GIPA Act. 2. In this regard, the Tribunal accepts the submissions and reasoning of the Applicant about the importance of the above factors in favour of disclosure of the information in question. In this regard the Tribunal places significant weight on these factors in favour of disclosure of the information in question. 3. Further, the Tribunal notes that s 55(2) of the GIPA Act provides that an agency may take into account 'personal factors of the application' as factors in favour of disclosure. The Tribunal finds that the following relevant personal factors favour disclosure of the information: 1. The fact that the information sought relates to the Applicant's complaints, and to the HPCA's consideration of the complaints; 2. The fact that the Applicant has a personal interest in the outcome of his complaints; and 3. The fairly limited nature of the reasons given by Ms Clift for the conclusions she has reached in not upholding the complaints of the Applicant in question. 1. In this regard, the Tribunal accepts in broad terms the submissions made by the Applicant. Overall, the Tribunal places significant weight upon the personal factors outlined above of the Applicant in favour of disclosure of the documents in question. 2. The Tribunal will now deal with the relevant public interest considerations against disclosure. 3. First, the Tribunal accepts the evidence of Mr Borg and the statements of opinion provided by Mr Borg in his affidavit. The Tribunal does so having taken into account Mr Borg's cross-examination and the careful detailed submissions of the Applicant. The Tribunal accepts and adopts in general terms the statements of opinion of Mr Borg, not just on the basis of Mr Borg's opinion but on the basis that it is objectively consistent with all of the evidence that is not in dispute before the Tribunal including the nature of the documents in question which the Tribunal has seen but which the Applicant has not been able to view. 4. This is so even though some of the documents pre-date the statement of Ms Clift about embarking on the investigation and handling of the complaint in question and the terms of reference of the Access Application. In this regard, it must be noted that the extent to which the Tribunal in its open reasons can discuss the documents in question is limited. The Tribunal is able to state consistently with the open submissions of the HPCA the following: 1. Document 1 is an email chain setting out certain information about the complaint at an early stage of the investigation; 2. Document 8 is a file note prepared by Ms Clift in the course of her conduct of the investigation; and 3. Document 7 is an internal email dated 4 August 2023 from the Executive Officer of the Dental Council, Mr Collin Borg, to Ms Clift enclosing various documents in the course of her investigation of the complaints and for the purpose of her deliberation in that regard. 1. Accordingly, the Tribunal finds that disclosure of the information in question (Document 1, Document 7 and Document 8) could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advise or recommendation given, in such a way as to prejudice a deliberative process of government or an agency within the meaning of clause 1(e). 2. In this regard, the Tribunal has taken into account the lines of authority relevant to the nature of an agency's 'deliberative processes' and authorities in relation to clause 1(e) or its statutory predecessors: see, for example, Fire Brigade Employees' Union v Fire and Rescue NSW [2014] NSWCATAD 113 (at [58]); Re Waterford and Department of Treasury (No 2) [1984] AATA 67; in particular the Tribunal accepts and adopts the comments of the Appeal Panel in Ryan v NSW Minister for Planning and Open Spaces [2021] NSWCATAP 221 at [34] to the effect that clause 1(e) contemplates that the deliberative process that may reasonably be expected to be prejudiced may be a 'particular case or generally'. 3. Thus, the focus of the clause goes beyond the deliberative processes of the particular investigation initiated by the Applicant. Accordingly, the Tribunal finds that disclosure of the information could reasonably be expected to have the effect of prejudicing the HPCA's deliberative processes in relation to future complaints, and this factor should be given significant weight in the balancing of the public interest in favour of non-disclosure. 4. For the same reasons as outlined in respect of clause 1(e), the Tribunal finds that it could reasonably be expected to be the case that disclosure of the information could prejudice the effective exercise by an agency of its functions being the function of effectively deliberating internally, and consulting with and obtaining confidential information from others concerning its response to and investigation of complaints, such as the complaints made by the Applicant in the case before the Tribunal. The Tribunal also finds that this factor should be given significant weight in the balancing of the public interest in favour of non-disclosure. 5. The Tribunal will now turn to balancing the public interest considerations in favour of and against disclosure. 6. The Tribunal is of the view that ensuring the effective complaint handling processes of the HPCA is very much in the interest of the public. Overall, whilst to some extent the considerations in favour of and against disclosure are somewhat evenly balanced, in the result the Tribunal finds that the public interest considerations against disclosure in the case before it outweighs the public interest considerations in favour of disclosure and that therefore there is an overriding public interest against disclosure of Documents 1, Document 7 and Document 8. 7. In this regard, the Tribunal accepts and finds that some, but not all, of the public interest considerations in favour of disclosure have been partially met by the release of much information already to the Applicant and by the provision of the HPCA's decision in respect of the HPCA's review and conclusion on the complaints of the Applicant. 8. The Tribunal also in this regard places weight upon the nature of the documents in question which the Tribunal has viewed and which, for the reasons given, the Applicant is not able to view. Are Documents 1 and 8 'excluded information' of the HCCC in respect of which a conclusive presumption applies? 1. In light of the Tribunal's conclusions on the previous grounds, it is not necessary for the Tribunal to determine the above question. Further, given that the issue revolves around complex issues of law and statutory construction rather than any determinations of fact, it is preferable not to express any concluded legal views on the issues involved. 2. This is particularly so given that the Tribunal at first instance, but not on appeal, (as far as the Tribunal is aware), has already expressed some views on the matter in similar circumstances: see Sinclair v Psychology Council of NSW [2017] NSWCATAD 8 at [67] – [78]; Yee v Medical Council of NSW [2017] NSWCATAD 370 at [56] –[58] and Broadribb v Medical Council of New South Wales [2018] NSWCATAD 2013 at [45] – [52]. Conclusion and Disposition 1. For the reasons given above, the orders of the Tribunal are: 1. The decision of the HPCA 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 April 2024