Dezfouli v Justice Health [2008] NSWADT 175

CITATION: Dezfouli v Justice Health [2008] NSWADT 175

DIVISION: General Division

APPLICANT Saeed Dezfouli PARTIES: RESPONDENT Justice Health

FILE NUMBER: 073150, 073263

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 20 May 2008

DATE OF DECISION: 17 June 2008

BEFORE: Pearson L - Judicial Member

CATCHWORDS: Access to documents - adequacy of search - adverse effect on agency - law enforcement & public safety - personal affairs

MATTER FOR DECISION: Principal matter

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1989 Mental Health Act 1990 Mental Health Act 2007

Centrelink v Dykstra [2002] FCA 1442 Cianfrano v Director General, Premier's Department [2007] NSWADT 216 Department of Education and Training v Mullett and Randazzo (No 2) [2002] NSWADTAP 29 Dezfouli v Justice Health [2006] NSWADT 274 CASES CITED: Dezfouli v Justice Health [2007] NSWADT 262 Dunstan v Department of Corrective Services [2004] NSWADT 177 DZ v NSW Police [2002] NSWADT 274 State Electoral Office v McCabe [2003] NSWADTAP 28 University of New South Wales v McGuirk [2006] NSWSC 1362

APPLICANT In person REPRESENTATION: RESPONDENT K Mattes, solicitor

ORDERS: The decisions under review are affirmed.

REASONS FOR DECISION Background to applications File 073150 1 The applicant is a patient of Long Bay Forensic Prison Hospital, having been detained subject to section 39 of the Mental Health (Criminal Procedure) Act 1990. On 28 March 2006 he applied under the Freedom of Information Act 1989 (FOI Act) for access to the following documents: Medical file from 28 February 2006 to 28 March 2006 (A copy of everything). 2 That application was received by the respondent on 4 April 2006. 3 On 13 April 2006 the applicant applied under the FOI Act for access to the following documents: Entire medical file from 28 February 2006 to 13 April 2006. 4 That application was received by the respondent on 8 May 2006. 5 The respondent treated these two applications as being a request for access to copies of the applicant's entire medical records dating from 28 February 2006 to 13 April 2006. On 23 May 2006 a determination was made to grant partial access. Six documents had been identified as being within the scope of the request. Full access was granted to one document, partial access was granted to 4 documents, and access was refused to one document. The respondent relied on exemptions in clause 4(1)(a), (c) and (h), and clause 6 of Schedule 1 to the FOI Act. 6 The applicant requested internal review of that determination, and on internal review the decision to grant partial access to 4 documents and refuse access to one document was upheld. The applicant was notified of this determination by letter dated 30 June 2006. 7 The applicant complained to the NSW Ombudsman. In a letter dated 3 May 2007 Ms Sania Silver, Senior Investigation Officer, NSW Ombudsman, outlined the various inquiries undertaken; discussions concerning which documents should be placed on the applicant's medical file; and discussions concerning the possible provision of regular access outside the FOI regime. Ms Silver concluded with a summary of the arrangement put in place by the respondent as to which information would be placed on the applicant's medical records, and under which the applicant was to have access to his medical records each month. The letter concluded with a statement that no further action would be taken on the applicant's complaint, and notification of the applicant's right of appeal to the Tribunal. 8 The applicant applied to the Tribunal for review on 18 May 2007, stating that the determination was in violation of the FOI Act. The issue of jurisdiction in this and a related matter was determined as a preliminary matter: Dezfouli v Justice Health [2007] NSWADT 262. File 072363 9 On 1 January 2007 the applicant applied for access to the following documents: A copy of entire medical records from 19 October 2006 to present. 10 That application was received by the respondent on 17 January 2007. 11 On 29 June 2007 the respondent notified the applicant that a total of 73 documents had been identified as being within the range of the application. Full access was granted to 18 documents, partial access was granted to 47 documents, and access was refused to 8 documents. The respondent relied on exemptions in clause 4(1)(h), clause 6, and clause 16(a)(iv) and (b) of Schedule 1 to the FOI Act. A number of documents were considered to be outside the scope of the application. 12 On 9 July 2007 the applicant requested internal review. This application was received on 23 July 2007. The respondent did not conduct an internal review, and the applicant applied to the Tribunal on 5 September 2007, stating that the determination was in violation of the FOI Act, and that documents were missing. 13 At a planning meeting on 3 December 2007 directions were made for filing and serving of submissions and witness statements for both matters. The parties consented to the applications being determined on the papers. The respondent has provided copies of the documents to the Tribunal on a confidential basis. The respondent has filed written submissions, an open witness statement by "AB" and a confidential witness statement. The applicant has provided a written submission in response, and the respondent has provided written submissions in reply. Relevant legislation 14 Under section 16(1) of the FOI Act, a person has a legally enforceable right to be given access to an agency's documents. This right is subject to other provisions of the FOI Act, in particular section 25(1)(a), under which an agency can refuse access to a document if it is an exempt document. Section 25(1) is qualified by section 25(4) of the FOI Act, which provides: (4) An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate): (a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and (b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy. 15 Section 25(1) confers a discretion, and an agency may decide to provide access to a document notwithstanding that the document is an exempt document. In University of New South Wales v McGuirk [2006] NSWSC 1362 Nicholas J held that section 63 of the Administrative Decisions Tribunal Act 1997 provides the Tribunal with the discretion to order access to a document which is an exempt document if it decides that to do so is the correct and preferable decision with regard to the material then before it. 16 Under section 61 of the FOI Act, the respondent bears the onus of establishing that its determination of the applicant's request was justified. 17 The respondent claims that clauses 4, 6 and 16 of Schedule 1 to the FOI Act apply. Clause 4 of Schedule 1 states: 4 Documents affecting law enforcement and public safety (1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected: (a) to prejudice the investigation of any contravention or possible contravention of the law (including any revenue law) whether generally or in a particular case, or … (c) to endanger the life or physical safety of any person, or … (h) to prejudice any system or procedure for the protection of persons or property, or 18 Clause 6 states: 6 Documents affecting personal affairs (1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased). (2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made. 19 Clause 16 states: 16 Documents concerning operations of agencies A document is an exempt document if it contains matter the disclosure of which: (a) could reasonably be expected: (i) to prejudice the effectiveness of any method or procedure for the conduct of tests, examinations or audits by an agency, or (ii) to prejudice the attainment of the objects of any test, examination or audit conducted by an agency, or (iii) to have a substantial adverse effect on the management or assessment by an agency of the agency's personnel, or (iv) to have a substantial adverse effect on the effective performance by an agency of the agency's functions, or (v) to have a substantial adverse effect on the conduct of industrial relations by an agency, and (b) would, on balance, be contrary to the public interest. Respondent's case 20 The respondent has provided copies of the relevant documents to the Tribunal on a confidential basis. There are five documents listed in the schedule for matter 073150, some comprising several pages: clinical progress notes, medication charts, nursing/medical officer certificate, a fax from the Australian Federal Police dated 7 March 2006, and an email dated 28 March 2006. In matter 073263 there are 55 documents, many of which consist of several pages. These documents include observation charts, patient health plans, progress notes, case summaries, hunger strike documents, interdisciplinary treatment plans, medication charts, and documents concerning appointments made at Prince of Wales Hospital. There are also copies of correspondence including faxes sent to and by the respondent, letters from Crown Solicitor's Office and the applicant, and Department of Corrective Services documents, including records of purchases from earnings. 21 The respondent relies on the exemption in clause 4(1)(c) in respect of the majority of the documents in dispute, being A-C and E in matter 073150, and 1-3, 5-13, 15-50 in matter 073263, and submits that the names of the staff appearing in those documents should be deleted. The respondent argues that the unique circumstances of the environment in which it operates means that the disclosure of the names of staff could reasonably be expected to endanger the life or physical safety of those staff members. The respondent also relies on clause 16(a)(iv) and (b) in respect of these documents, and argues that the release of the surnames of staff would result in staff being less likely to accurately and forthrightly record observations of staff; create difficulty for the respondent in recruiting and retaining staff; and compromise the treatment of the applicant which would place both him and the community at risk. 22 The respondent relies on the exemption in clause 6 in respect of documents A in 073150 and 15 and 36 in 073263. These documents contain the management index number ("MIN") of another person. The MIN is a number allocated to an individual by the Department of Corrective Services and each person in custody is identifiable by his or her MIN. 23 In relation to document D in matter 073150, the respondent submits that this document is not a 'medical record' and thus not within the terms of the applicant's request for access; in the alternative, that the document falls within clause 4(1)(a) and (h). The respondent submits that documents 4 and 16 in 073263 are also outside the scope of the request. While the request in matter 073150 was framed as a request for everything on the "medical file" for a specified period, only medical records properly belong on the applicant's medical file and non-medical records do not form part of the applicant's "medical file". 24 The respondent submits that the applicant has failed to provide any credible material which indicates that there is an arguable case that the respondent has not adequately searched for documents falling within the terms of the request. 25 The respondent submits that any discretion to direct release of documents found to be exempt should not be exercised in this case, as it would defeat the purpose of the exemptions. Applicant's case 26 The applicant's case is that the documents are his medical records and he should have access to them. In his written submission the applicant states that while he has no objection to the deletion of the surnames of Justice Health staff, he does object to the deletion of their first names. The applicant argues that he needs full copies of NSW Police and Australian Federal Police documents. He needs access to document D in 073150 so that he can know who gave this to Justice Health to put in his medical file. The applicant submits that he needs full access to documents 4, 14, 16, 45, 51, 52, 53, 54 and 55 in 073263. 27 The applicant submits that the witness statement of "AB" is false and fabricated, and in support has provided copies of a number of documents including correspondence with the Independent Commission Against Corruption and the NSW Ombudsman, and medical reports. Consideration Scope of requests 28 The first issue to be determined is the scope of the applicant's requests. Matter 073150 was framed as a request for documents on the applicant's "medical file" for a specified time period; 073263 was for access to "medical records" for a specified time period. In Dezfouli v Justice Health [2006] NSWADT 274 at [12] I expressed the following view: I consider that the term "medical records" covers a broad range of documents, including records of medication prescribed or administered, observations or reports of medical practitioners and other health professionals, and other matters relating to the health, medical condition, and treatment of the person to whom those records relate. 29 I remain of that opinion. Document 4 in 073263 is a letter from the Director of Public Prosecutions and does not relate to the applicant's health, medical condition or treatment. Document 16 is a fax sent by the NSW Police and does not relate to the applicant's health, medical condition or treatment. In my view neither falls within the scope of the applicant's request. 30 Document D in 073150 was a document contained in the applicant's medical file. Whether or not it should have been in that file is not to the point. This document falls within the scope of the applicant's request. 31 Some of the documents referred to in the initial determination in 073263, and now identified as documents 14, and 51 to 55 in the Schedule of documents, are dated outside the time frame in the applicant's request for access. Document 14 is dated 28 September 2006, and documents 51 to 55 are dated March 2007. It is not clear how they came to be included in the initial determination if, as appears from their face, they were created after the applicant's request for access. It is conceivable that an agency file that relates to a specified period might contain a document that was created outside that time period and filed in error. Had the applicant's request been framed as it was in 073150, such documents would have been within the scope of the request. The request in 073263 was directed at "medical records", and not the "medical file", and specified the period "from 19/10/06 to present". I agree with the respondent that documents 14, and 51-55 fall outside the scope of the applicant's request for access. Mental Health Act 32 The applicant submitted that he is entitled to have access to his medical records by operation of section 276(1) of the Mental Health Act 1990, as a patient receiving care and treatment. In written submissions the respondent submitted that the Tribunal has no jurisdiction under the Mental Health Act 1990, and that in any event section 276(1) applies only to proceedings before the Mental Health Review Tribunal. 33 Section 276(1) of the Mental Health Act 1990 provided: 276 Inspection etc of medical records (1) A patient or person having any matter before the Tribunal is, unless the Tribunal otherwise determines, entitled to inspect or otherwise have access to any medical records in the possession of any person relating to the patient or person. 34 As noted in the respondent's submissions, the Mental Health Act 1990 has been repealed and the Mental Health Act 2007 has been in force since 16 November 2007. It makes no difference whether the 1990 Act (as the legislation in force at the time of the applicant's requests) or the 2007 Act, applies, as section 156 of the 2007 Act is in identical terms. The Tribunal referred to is the Mental Health Review Tribunal, and access is subject to determination of that Tribunal. Any entitlement to access medical records as part of the proceedings of that Tribunal is quite distinct from consideration of the applicant's rights under the FOI Act. Exemptions: Information identifying Justice Health staff 35 The evidence in support of the claimed exemptions is a witness statement made by "AB". The open version of AB's statement outlines the role of Justice Health, the operation of Long Bay Forensic Hospital, and provides information on the treatment of patients. This material is similar to that set out in paragraph [18] in Dezfouli v Justice Health [2006] NSWADT 274, and is as follows: Role of Justice Health 4.Justice Health is a statutory health corporation constituted under s41 of the Health Services Act 1997. It is independent from the Department of Corrective Services. Justice Health provides health services, both medical and psychiatric, to people in custody in NSW. 5.Justice Health psychiatric services provide care and rehabilitation to forensic patients and mentally ill inmates hospitalised in Long Bay Hospital. 6.Justice Health psychiatric also provides ambulatory psychiatric care to mentally ill inmates in the general correctional environment. 7.In addition to prison psychiatric services, Justice Health also provides psychiatric court liaison services. 8.Justice Health also provides forensic psychiatric consultation to general mental health in respect of the management of forensic patients in the community and high risk psychiatric patients and complex cases in the community. Forensic Patients 9.A "forensic patient" is legally defined category of psychiatric patient as provided at s4 of the Mental Health Act 2007 (the MH Act). " forensic patient means a person: (a) who is detained in a mental health facility, correctional centre or other place, or released from custody subject to conditions, pursuant to an order: (i) under section 10(3)(c), 14, 17(3), 25, 27 or 39 of the Mental Health (Criminal Procedure) Act 1990, or (ii) under section 7(4) of the Criminal Appeal Act 1912 (including that subsection as applied by section 5AA (5) of that Act), or (b) who is granted bail pursuant to section 14 (b)(ii) or 17(2) of the Mental Health (Criminal Procedure) Act 1990, or (c) who is detained in a mental health facility pending the person's committal for trial for an offence or pending the person's trial for an offence, or (d) who has been transferred to a mental health facility while serving a sentence of imprisonment and who has not been classified by the Tribunal as an involuntary patient. 10.The majority of patients at Long Bay are involuntary patients, being forensic patients or civilly committed patients, although there are some patients who are admitted on a voluntary basis. Long Bay Forensic Hospital 11.Long Bay Forensic Hospital (Long Bay) caters for mentally ill offenders who are incarcerated and forensic patients. 12.The Custodian function of patients at Long Bay is with the Department of Corrective Services. While Long Bay is a hospital, it is a hospital within a prison. In this respect, Justice Health, including all mental health workers, are "visitors" to the hospital. The role of Justice Health is to work within the prison environment to provide necessary psychiatric care. However, custody and security responsibility remains with the Department of Corrective Services. 13.Long Bay consists of three wards: D Ward, C Ward and B Ward. A Ward has been demolished and its function is currently performed in the Mental Health Rehabilitation Hostel (MHRH) at another site on Long Bay complex. The MHRH is a psychiatric rehabilitation within a prison. In the NHRH, the patient's illness is stabilised with the focus of treatment being on more psychological and social treatment. 14.D Ward is generally regarded as an acute ward which caters for patients who come into custody and who are acutely unwell or who have higher needs. D Ward provides treatment for the more severe symptoms the patient may have upon their arrival at the hospital. D Ward is a higher need ward where the focus of treatment is biological treatment. Once a patient's symptoms have improved or settled down following the initial treatment, the patient may move across to C Ward. 15.C Ward is a sub-acute ward, comprising 30 male sub-acute mental health beds, including forensic patients. Treatment of patients at Long Bay 16.In managing mentally ill patients, there is a real need for collaboration with the Department of Corrective Services. The patients do not have the normal mental functioning as with inmates within the general (non forensic) prison population and have certain needs, which must be monitored and met by both Justice Health and the Department of Corrective Services. The Department of Corrective Services and Justice Health rely on each other for mutual advice about how to manage mentally ill inmates in order for each to function (especially when that information relates to risk either medical or psychiatric) and there is a high degree of consultation between the two agencies. 17.Both the Department of Corrective Services and Justice Health are involved in the rehabilitation of patients. Justice Health utilises doctors, occupational therapists and nurses. The doctors provide biological treatment. The occupational therapists provide occupational health and assessment of the patient population. The nurses provide nursing oversight and perform the same roles as what is expected in any psychiatric hospital. Their duties include: recording progress notes; meeting with patients regularly; completing the intake for patients; arranging discharges; liaising with external services and corrective officers around medical issues that may relate to patients with psychiatric issues; and form the foundation for the psychiatric care in the hospital supported by consultants and Registrars (being psychiatrists in training who are supervised by the consultant). 18.There are two groups within the Department of Corrective Services that have involvement with patients, being Corrective Services Officers and psychologists. Psychologists are engaged with the patients to a degree and conduct cognitive behavioural therapy and other therapies within their field. They also have input, along with Justice Health, in processes such as risk assessment and report writing. The Department of Corrective Services also provides welfare workers whose role is effectively a de facto social worker role. 19.The correctional officers maintain security and facilitate access to psychiatric and medical care. They take on a role normally taken on by nurses in a general psychiatric hospital, being the control and restraint of mentally ill patients. Where a patient is engaged in violent conduct, the correctional officer will make a report for the Department of Correctional Service file and a Justice Health staff member will make a corresponding report for the patient's medical file. 20.In determining a course of treatment for a patient, certain processes are undertaken, as follows: (i) obtain history from patient; (ii) review file; (iii) get collateral information if necessary; (iv) examine person if possible; (v) using all the available information, make a decision around diagnosis; (vi) consider the risks including risk of implementing a particular treatment and the risk of not implementing a particular treatment (vii) balance those risks and then make a decision as to implementing treatment. 21. Before implementing treatment, it is preferable to provide the person who is to receive treatment with information about the treatment that is intended to be implemented and inform them of the potential consequences of the treatment. It is somewhat different for forensic or committed patients as, by definition, they are involuntary patients which means treatment can be provided without consent. However, providing treatment in a forceful manner is not preferable as it can damage the therapeutic alliance, being the relationship between the doctor and patient. 22. In making a decision as to diagnosis and treatment, it is essential that nursing staff provide comprehensive notes. On forensic ward, where the predominant issue is the management of risks, the recording of comprehensive and accurate notes is of paramount importance. 23. Patients who are placed on forensic wards generally have a history of violence, although this is not always the case. The violent behaviour of a patient also often has a relationship to the illness' symptoms. Additionally, in a forensic hospital, you have a group of people with similar violent and disturbed psychiatric histories, living in close proximity to one another. It is important than nursing staff document all relevant observations, including those observations a patient may take to be adverse to him or her. Such records assist in determining whether the treatment being provided is having the required effect and also whether the rehabilitation goal for the forensic patient, being to reduce violent or aggressive behaviour, is being achieved. Comprehensive and accurate notes are necessary to monitor the impact of treatment on the patient over time. All behaviour that may relate to the mental state of a patient is fundamental to psychiatric practice, regardless of whether the information places the patient in a positive, negative or neutral light. 36 AB states that while in general the therapeutic relationship may be unaffected by the provision by a forensic psychiatrist to a tribunal of an opinion perceived by the patient to be adverse, there are some patients more prone to responding angrily to what is perceived to be an adverse and/or negative comment. In paragraph 31, AB states the opinion that the applicant falls within the class of patient "who would be more vulnerable to adverse comments". AB states that if staff are aware that the applicant has access to their surnames, they would be anxious about the potential consequences to themselves in the long term. AB concludes: 33 If, as a consequence of the release of staff names to patients, the staff at Long Bay expressed an intention to be less forthcoming and honest in the recording of notes in respect of patients, there would be significant concern as to whether Justice Health could properly fulfil its role. I do not think it can function properly without full disclosure. A failure to do so results in no person's interest being served, including the long term interests of patient. Non-disclosure exposes both the patient and the community to unnecessary risks. 37 In the confidential witness statement AB outlines the basis for the statement in paragraph 31 of the open witness statement. 38 The applicant in his submissions has described AB's statement as "false and fabricated", and has provided copies of documents, which he claims challenge the statement made by AB that there is evidence that the applicant has "chronic psychotic disorder and schizophrenia". The documents provided on 31 January 2008, and further documents provided on 27 April 2008 include copies of medical reports concerning the applicant. While the applicant is unhappy with the diagnosis and the statements made about him, his submissions do not contest the general points made by AB as to the nature of the environment at Long Bay Forensic Hospital and the treatment of patients. The accuracy or otherwise of the diagnosis of the applicant's condition is not relevant to the issues which must be determined in this review. Some of the documents in the applicant's possession identify some Justice Health staff by name. There is no information to indicate how the applicant obtained access to those documents. The issue for determination in this review is whether access should be given under the FOI Act. 39 Having regard to the confidential witness statement and the documents in question I am satisfied that AB is a health professional employed by the respondent Justice Health at Long Bay Forensic Hospital, and has been involved in providing health care to the applicant. I accept AB's evidence as to the need for nursing and other health professional staff employed by the respondent to make comprehensive and accurate notes of matters relevant to the treatment provided to patients, and that such notes may include information and observations that might be perceived by a patient to be negative. From my examination of the relevant documents, they contain information identifying staff of Justice Health, being the full name, first name, or in some instances, signature of staff members. 40 The respondent argues that clauses 4(1)(c) and 16(a)(iv) and (b) apply to the names of staff appearing in most of the documents. In Dezfouli v Justice Health [2006] NSWADT 274 I set out the principles relevant to consideration of clause 4(1)(c) of Schedule 1 in the following terms: 29 The approach to be adopted in considering the exemption provided by cl 4(1)(c) was outlined by the Appeal Panel in State Electoral Office v McCabe [2003] NSWADTAP 28: In our view, agency opinions making such a grave assessment must be closely scrutinised and not easily accepted. The Tribunal is, we consider, obliged to bring some scepticism to the task of assessing what are necessarily self-serving statements by agencies … .The question is always whether the material, statements of opinion and submissions put forward by the agency justifies reliance on the exception (see s61, burden of proof). 30 In Dunstan v Department of Corrective Services [2004] NSWADT 177 President O'Connor stated that the general approach to be adopted in dealing with the kind of exemptions found in cl 4(1) is addressed by the Federal Court in Centrelink v Dykstra [2002] FCA 1442, which dealt with equivalent provisions in the Commonwealth FOI Act: 20 Mansfield J stated that the test to be applied by the Commonwealth Tribunal involves focusing upon the character of the documents in the circumstances of the case, to determine whether there is a 'realistic and material possibility of the harm contemplated by the section occurring.' 21 As noted by Beaumont J and Bowen CJ in Attorney-General's Department v Cockcroft (1986) 64 ALR 97 at 112 the test '... require[s] a judgment to be made as to whether it is reasonable as distinct from something that is irrational, absurd or ridiculous, to expect that ... there could be a risk of harm to the life or physical safety of another person.' 31 In Dykstra Mansfield J noted that it is not the personal or subjective belief of particular individuals which is determinative, and continued: … The Tribunal had to determine whether the documents had the character that their release would, or could reasonably be expected to, endanger the life or physical safety of any person. I do not discern from the Tribunal's reasons that it misdirected itself in considering that question. It set out to judge objectively whether there was a possibility that the disclosure of the documents could endanger the life or physical safety of other persons, and if so whether that possibility was one which was a reasonable one as distinct from one which was irrational, absurd or ridiculous. 41 As was the case in Dezfouli v Justice Health [2006] NSWADT 274, I am satisfied that the nature of the Long Bay Hospital environment, being a forensic hospital dealing with patients with acute and chronic conditions, many of whom have records of violent behaviours, is such that staff employed there are particularly vulnerable. I am satisfied that there is a possibility that disclosure of the surnames of staff employed by the respondent to provide health care at Long Bay Forensic Hospital, or other information that might enable them to be identified outside the Long Bay environment, could endanger the physical safety of those individuals. I am satisfied that this possibility is a reasonable one, and that there is a realistic possibility of the harm occurring, in relation to disclosure to the applicant in particular, and disclosure more generally. The respondent has discharged its onus of proving that disclosure of the surnames of staff to the applicant could reasonably be expected to endanger the life or physical safety of staff working at Long Bay Forensic Hospital, and that cl 4(1)(c) of Schedule 1 applies. 42 The applicant has pressed for disclosure of the first names of staff. This information may be less likely to pose a risk to physical safety than the surname. There is, however, an issue as to whether disclosure of this information might have an effect on how treatment is provided by Justice Health staff at Long Bay prison hospital. While the respondent's initial submissions focussed on disclosure of staff surnames, in submissions in reply the respondent argued that disclosure of any information that would enable the applicant to identify an individual member of staff who had made certain comments about him would give rise to a risk of harm to those staff, and thus fall within cl 4(1)(c), and would have an adverse effect on the performance of the agency, and thus fall within cl 16(a)(iv) and (b) of Schedule 1. 43 Clause16 (a)(iv) of Schedule 1 requires assessment of whether disclosure of any information identifying individual staff by name could reasonably be expected to have a "substantial adverse effect" on the effective performance by the respondent of its functions. I summarised the relevant principles in Dezfouli v Justice Health [2006] NSWADT 274 in the following terms: 34 The term "substantial adverse effect" was considered in Department of Education and Training v Mullett and Randazzo (No 2) [2002] NSWADTAP 29 at [97]: 'Substantial adverse effect' involves a higher test than, for example, mere 'prejudice' as referred to in (a)(i) and (ii): see Re James and Australian National University (1984) 6 ALD 687. The effect must be sufficiently serious to cause concern to a properly informed reasonable person: Re Thies and Dept of Aviation (1986) 9 ALD 454; it must not be irrational or absurd: see Attorney General (Comm) v Cockcroft (1986) 64 ALR 97. We agree with the following comments in Australian Administrative Law (Butterworths, Australian Administrative Law Library, June 2002) at [741]: 'Prejudice or substantial adverse effect must arise from the disclosure of the particular information in the particular documents but also from the disclosure of documents of a particular kind. The vice of such disclosure lies in the breach of confidential properties, a breach which can for that reason lead to the cessation or diminution of the future flow of information to the agency in question: Department of Social Security v Dyrenfurth (1988) 15 ALD 232; 80 ALR 533; Re Fryar and Australian Federal Police (1988) 17 ALD 25.' 44 In written submissions the respondent pointed to three respects in which release of staff names would have an adverse effect on the performance of Justice Health: (i) staff would be less likely to accurately and forthrightly record observations of patients (ii) the respondent would have difficulty retaining and recruiting staff; and (iii) the treatment of the applicant would be compromised which would place both him and the community at risk. 45 I accept AB's evidence that the keeping of accurate and comprehensive notes and information concerning a patient is crucial to assessment of what treatment is appropriate and whether it is having the desired effect. AB states that if as a consequence of the release of staff names to patients, the staff of Long Bay expressed an intention to be less forthcoming and honest in the recording of notes in respect of patients, there would be significant concern as to whether Justice Health could properly fulfil its role. I accept that disclosure of information that could enable the applicant to identify a staff member making a particular comment or observation could lead to a reluctance to make accurate and comprehensive written notes, and that this could reasonably be expected to have a substantial adverse effect of the ability of the respondent to provide comprehensive and appropriate health care to patients. 46 Clause 16(b) requires consideration of whether disclosure of information identifying staff would, on balance, be contrary to the public interest. I consider that the public interest in appropriate treatment being provided to forensic patients outweighs any public interest in full disclosure of the names of staff providing notes. 47 It follows that I agree with the respondent that information that could identify an individual staff member, whether by full name, family name, first name, or signature, is exempt. I am satisfied that any such information can be deleted from the documents concerned under s25(4) of the FOI Act. Exemptions: Personal Affairs 48 The respondent argues that documents A in 073150 and 15 and 36 in 073263 contain the MIN of a person other than the applicant and that disclosure would involve the unreasonable disclosure of information concerning those persons. 49 In Dezfouli v Justice Health [2006] NSWADT 274 I concluded (at [46]) that the MIN was the equivalent of the name of a person in custody, and that disclosure of that information would be unreasonable where it had been recorded in the context of the respondent's provision of health care to the applicant and the person it identifies, and in the context of the need to maintain a secure environment at Long Bay prison hospital. I am of the same view in these matters, and that this information falls within clause 6 of Schedule 1. I am satisfied that it is practicable to delete this information under section 25(4) of the FOI Act. Document D in 073150 50 Document D in 073150 is a copy of a facsimile sent to the respondent from the Australian Federal Police dated 7 March 2006. The respondent argues that if this document is included within the scope of the applicant's request for access, it is exempt under clause 4(1)(a) and (h) of Schedule 1, and relies on the decision in DZ v NSW Police [2002] NSWADT 274 to support the proposition that clause 4(1)(a) applies both to unspecified contraventions of the law which may have occurred or may occur in the future. 51 Having examined document D, I am of the view that it contains matter that relates to the "investigation" of any contravention or possible contravention of the law such as to fall within clause 4(1)(a). I accept that to the extent that it identifies any individual officer of Justice Health or the Australian Federal Police it would, for the reasons outlined above, fall within clause 4(1)(c), or to the extent that it discloses contact numbers or addresses, would fall within clause 4(1)(a). It would be practicable to delete material identifying any individual officer of Justice Health or the Australian Federal Police, and the substance of the communication, pursuant to section 25(4). It is clear, however, from the terms of the applicant's submissions as to his reasons for pressing for access that he wants to see precisely that material, and I am not satisfied that he would wish to be given access to a copy of the document with that material deleted. Discretion 52 In University of New South Wales v McGuirk [2006] NSWSC 1362 Nicholas J held that the Tribunal has a discretion to order that access be given to a document found to be exempt. In Cianfrano v Director General, Premier's Department [2007] NSWADT 216 O'Connor DCJ surveyed the decisions of the Tribunal concerning the exercise of the discretion to direct the release of documents found to be exempt, and noted that there should be strong grounds justifying the overriding of the exemption, and that this should take into account the objects of the FOI Act set out in section 5 of the FOI Act. At [27] the President noted some practical considerations which might influence the Tribunal to exercise the discretion: - whether the exempt matter was, by other means, in the public domain - whether the circumstances that had made the exempt matter sensitive at the time it was refused remain current or significant - the nature of the government activity under scrutiny, and the extent of public or community concern or interest in having a fuller knowledge of that activity - the public interest in an informed debate on issues of significance to the community - whether there were adverse consequences for the proper administration of government, and their extent - whether any adverse consequence is remote or innocuous. 53 The objects in section 5 of the FOI Act are: (1) The objects of this Act are to extend, as far as possible, the rights of the public: (a) to obtain access to information held by the Government, and (b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading. (2) The means by which it is intended that these objects are to be achieved are: (a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and (b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and (c) by enabling each member of the public to apply for the amendment of such of the Government's records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading. (3) It is the intention of Parliament: (a) that this Act shall be interpreted and applied so as to further the objects of this Act, and (b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information. (4) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records as permitted or required by or under any other Act or law. 54 It is significant that the right to access is expressed to be subject only to "such restrictions as are reasonably necessary for the proper administration of the Government" (section 5(2)(b)), and that discretions are to be exercised "as far as possible, to facilitate and encourage" the disclosure of information (section 5(3)(b)). The potential adverse consequences for the effective provision of medical services by Justice Health in the prison environment through disclosure of information identifying staff of the respondent and others are significant, and in my view the restriction of access to that information is reasonably necessary for the proper administration of government. The fact that the applicant has obtained, it appears outside the FOI regime, copies of some medical records which disclose the names of treating health professionals is relevant. However, the proper administration of government requires, in this context, the provision of appropriate care by Justice Health, which in turn depends on it being able to attract and retain qualified staff and for those staff to provide the best health care possible. I am not satisfied that the applicant's interest in having full access to his medical records and other information on his file meets the "strong grounds" referred to in Cianfrano v Director General, Premier's Department [2007] NSWADT 216. 55 The applicant is entitled to have access to copies of documents A, B, C, and E in matter 073150, and documents 1-3, 5-13, and 15-50 in matter 073263, with material identifying staff of Justice Health or other individuals deleted. That is the form in which he has been given access, and the respondent's determinations should be affirmed. Adequacy of search 56 In his application to the Tribunal in matter 073263 the applicant stated that documents, which should have been identified in response to his requests for access, were missing. He repeated this claim in planning meetings, and referred to a letter he had written to the Prime Minister, which had been referred to the Australian Federal Police and then to Corrective Services and Justice Health. In Cianfrano v Director General, Department of Commerce & Anor (No 2) [2006] NSWADT 195 the President of the Tribunal, O'Connor DCJ, held that where an applicant raises an argument that an agency has failed to locate relevant documents, and puts before the Tribunal some credible material or submissions which persuade the Tribunal that an arguable case exists, the Tribunal has jurisdiction to determine whether the agency has failed properly to determine the application so that there is a deemed refusal of the application for the purposes of s24(2). The threshold requirement is that the applicant must first put some credible material or submissions before the Tribunal that documents of the kind requested exist, and it is not enough for the applicant to merely assert non-compliance on the basis of a general distrust of the agency. 57 The applicant's request was for access to his "medical records" for the specified period. The examples given by the applicant of documents which he says should have been located would not fall within that term as defined above. The copies of documents provided with his written submissions would not have been captured by the terms of the request, either as to content or by date. The applicant has not provided material or submissions, which would support his contention as to the existence of documents, or further documents, held as part of medical records kept by the respondent. Accordingly, he has failed to meet the threshold test and on this basis his assertion of there being a failure to search for relevant documents must be rejected. Orders The decisions under review are affirmed.