Cheney v Sydney West Area Health Service [2008] NSWADTAP 29

Appeal Panel - Internal

CITATION: Cheney v Sydney West Area Health Service [2008] NSWADTAP 29

APPELLANT Roger David Cheney PARTIES: RESPONDENT Sydney West Area Health Service

FILE NUMBER: 079052

HEARING DATES: 13 March 2008

SUBMISSIONS CLOSED: 13 March 2008

DATE OF DECISION: 13 March 2008

BEFORE: Hennessy N - Magistrate (Deputy President); Handley R - Judicial Member; Bolt M - Non Judicial Member

CATCHWORDS: Leave to extend to the merits - question of law

MATTER FOR DECISION: Principal matter

DECISION UNDER APPEAL: Cheney v Sydney West Area Health Service (No.2) [2007] NSWADT 209

FILE NUMBER UNDER APPEAL: 063267, 063328

DATE OF DECISION UNDER APPEAL: 09/11/2007

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989

CASES CITED: Marke v Victorian Police (2007) VSC 522 University of New South Wales v McGuirk [2006] NSW SC 1362

APPLICANT In person REPRESENTATION: RESPONDENT A Johnson, solicitor

ORDERS: 1. Leave is refused for the appeal to be extended to the merits of the Tribunal's decision 2. The Tribunal's decisions made on 4 April 2007 and 11 September 2007 are affirmed.

REASONS FOR DECISION 1 The following is a transcript of the written reasons for decision given on 13 March 2008, with minor editorial amendments. 2 This appeal is against two decisions of the Tribunal, one made on 4 April 2007 and the other made on 11 September 2007. The decisions related to applications under the Freedom of Information Act 1989 (FOI Act) by Mr Cheney for access to documents held by the Sydney West Area Health Service (SWAHS). The documents in question recorded information in relation to three allegations of sexual assault, one in 1991, and two in 1993. Mr Cheney was convicted of sexual assault in relation to each of those matters and is serving his sentence in Goulburn Correctional Centre. He says he has applied to the Supreme Court for an inquiry into his convictions and is seeking access to documents for use in those proceedings. 3 Following the filing of Mr Cheney's application under the FOI Act the SWAHS identified several documents which came within the scope of his request and gave him access or partial access to those documents. The material deleted from the documents were the names and addresses of the victim and, in relation to one matter, the date of the victim's last menstrual period and last coitus. In the first decision, dated 4 April 2007, the Tribunal was considering whether or not the deleted material came within the exemption in clause 6 to Schedule 1 of the FOI Act. That provision states that: (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. 4 The Tribunal found that the deleted material concerned the personal affairs of the victims and our understanding is that Mr Cheney does not appeal against that finding. The Tribunal also found that the disclosure was unreasonable. In determining that question the Tribunal said, at paragraph 28 of the decision: It is not in dispute that Mr Cheney may know the identity of the individual who is referred to in these documents, however, release of documents under the FOI Act is release to the world at large not merely to Mr Cheney. The mere fact that Mr Cheney may know the identity of an individual referred to in a document does not assist in characterising them for the purposes of exemption claims under the FOI Act . Knowledge of the contents of the documents by Mr Cheney is one thing, disclosure under the FOI Act is another as it constitutes disclosure to the whole world. 5 Following the decision in April 2007 that the deleted material came within the personal affairs exemption, the Tribunal sought further submissions on whether or not the exempt material should, nevertheless, be disclosed on the basis of the Supreme Court's decision in the University of New South Wales v McGuirk [2006] NSW SC 1362. In that decision it was held that the agency has a discretion to release documents even though they are exempt under the FOI Act . Similarly, the Tribunal can decide that a decision by an agency not to release such documents is not the preferable decision. 6 The Tribunal handed down its decision on the discretion issue on 11 September 2007 and decided not to release the exempt documents. At paragraph 13 the Tribunal said: I appreciate the importance of this information to Mr Cheney, however, I agree with the agency that its release would compromise the privacy of the individuals concerned. In my view, the public interest in preserving that privacy outweighs the factors favouring the release of the material. 7 Mr Cheney has appealed against both decisions of the Tribunal. The Appeal Panel gave leave for him to appeal against the first decision despite the fact that the appeal was lodged out of time. At the hearing, Mr Cheney confined his appeal to two grounds. The first ground was that the Tribunal erred in refusing to allow him to view the original documents even with the exempt material disguised. The second ground was that the Tribunal erred when determining that disclosure of personal information was unreasonable and in determining whether the exempt documents should be released in the public interest by assuming that disclosure to Mr Cheney was equivalent to disclosure to the world at large. These two grounds of appeal were characterised as questions of law. Mr Cheney also appealed against the merits of the Tribunal's decision and requested that the Appeal Panel give him leave to do so. 8 We deal now with the first ground of appeal which was that the Tribunal erred in refusing to allow Mr Cheney to view the original documents even with the exempt material disguised. By way of background, the reason Mr Cheney says that he made that request was that he alleged that documents obtained from NSW Police had been fabricated and that by comparing those documents with duplicates or copies held by the SWAHS, he would be able to prove that allegation in the Supreme Court proceedings inquiring into his conviction. 9 In relation to this ground we accept the submission of the SWAHS that the Tribunal had no jurisdiction to determine the manner in which Mr Cheney should be given access to the documents. Mr Cheney's application was under section 17 of the FOI Act which allows him to request access to documents held by an agency. The agency's decision not to allow him to view the original documents was made under s 27 of the FOI Act which relates to the forms of access that a person may be afforded. 10 Section 53(3) of the FOI Act sets out the circumstances in which a person is able to apply to the Tribunal for a review of an agency's decision. In particular, section 53(3)(a)(i) says that: For the purposes of this section, a person is aggrieved by a determination: (a) in the case of a determination that relates to an access application made by the person under section 17, 34 or 36-if the determination is to the effect that: (i) an agency or Minister refuses to give the person access to a document 11 Neither that provision nor any of the other provisions in section 53(3) give a person a right to apply to the Tribunal for a review of a decision made under section 27 in relation to the form of access. To put it simply the FOI Act does not define a grievance about the manner of access as a matter that the applicant is entitled to seek review in the Tribunal. Consequently, the Tribunal had no jurisdiction review a decision about the form that access should take and similarly the Appeal Panel has no jurisdiction in relation to that matter. 12 The second ground of appeal was that the Tribunal did not take into account the commitment that Mr Cheney had given that he would not disclose the documents except to the Supreme Court in the context of the application for an inquiry into his convictions. That submission was made both in relation to the first decision as to whether or not disclosure was unreasonable and in relation to the second decision as to whether the Tribunal should exercise its discretion to give access to exempt documents. In the first decision, the Tribunal made the finding at [28] to which we have already referred. 13 In the second decision the Tribunal said: Mr Cheney stated that he seeks the documents for use in legal proceedings relating to the review of a conviction. He says that he's unable to subpoena the documents for the purpose and needs to access them through a process outside the Court. He gave an assurance the documents would be used only for those proceedings and that they would not be released to the public. He contends that this is sufficient reason to release the exempt material. 14 The Tribunal went on at paragraph 10 to say: As I have previously indicated, Mr Cheney has been given a number of documents and partial access to those that are the subject of this application, I agree with the agency in regard to the sensitive nature of the withheld material. I also agree that disclosure of documents constitutes release to the world at large not just to Mr Cheney. 15 Ms Johnson, representing the SWAHS, brought to the Tribunal's attention a decision of the Supreme Court of Victoria which was handed down after the Tribunal's decisions on 4 April and 11 September 2007. That decision is Marke v Victorian Police (2007) VSC 522 (13 December 2007). In that case Hansen J was considering the application of section 33 of the Victorian FOI Act which is the equivalent provision to clause 6 in schedule 1 to the New South Wales Act. In determining whether disclosure would involve unreasonable disclosure of the information Hansen J held that disclosure of a document was not necessarily to be construed as disclosure to the whole world. While this decision is not binding on the Tribunal it has persuasive authority and we should consider whether or not to follow it. 16 As we have said it arises in the context of both the Tribunal's decisions, that is, the decision that disclosure of personal affairs would be unreasonable and in the context of the decision not to disclose exempt documents. The question is whether the Tribunal erred by failing to take into account Mr Cheney's assurance that he would not use the document except in the Supreme Court proceedings. 17 Our view is that the Tribunal did not err in failing to come to the same conclusion as the Victorian Supreme Court in the Marke case. The Marke decision should not be applied in New South Wales because the objects of the FOI Act in New South Wales, as set out in section 5 are as follows: To extend as far as possible the rights of the public to 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, out of day, or misleading. 18 That object is important because it refers to the rights of the public in general, not to particular members of the public. There is no restriction on the circumstances in which a member of the public should be given access to a document. In particular, there is no reference in the New South Wales Act to the motivation of the applicant or the extent to which the person is entitled to disclose the document. That interpretation is supported by section 59(A) of the FOI Act headed "Public Interest," which states that, For the purpose of determining under this Act whether the disclosure of a document would be contrary to the public it is irrelevant that the disclosure may a) cause embarrassment to the Government or a loss of confidence in the Government or, b) cause the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason. 19 While the context of that provision is the assessment of public interest under the exemptions, it suggests that when assessing reasonableness or deciding whether to exercise the override discretion, the motivation of the applicant or any adverse effect of disclosure such as embarrassment to the Government or a misunderstanding of the context, are not relevant. The objects of the FOI Act are directed to members of the public in New South Wales and there are no constraints or mechanisms for the imposition of constraints on the dissemination or distribution of information to which access is granted. 20 There is no provision, for example, for the agency or the Tribunal to place conditions on disclosure or to limit in any way the use that is made of documents that are disclosed pursuant to the FOI Act. If there were, then mechanisms would be needed for an agency to assess the credibility of any assurance in relation to the extent of disclosure. No such mechanisms are provided for, either by the agency or the Tribunal. In addition, if the approach of Hansen J in Marke v Victorian Police were followed the result would be that some applicants may be given access to documents while other applicants would not be granted access to the same documents. That situation leads to the conclusion that an applicant may need to give reasons for an FOI request and advise the agency of what he or she proposes to do with the documents. As we have said, there is no mechanism for an agency to assess the credibility of an applicant before reaching a decision as to whether or not disclosure would be unreasonable or whether the override discretion should be exercised. For those reasons, with respect, we do not consider that the views of Hansen J in Marke v Victorian Police should be followed by this Tribunal. 21 Mr Cheney also requested that leave be granted to extend his appeal to the merits of the Tribunal's decision. The reason he made that request was that he says he needs the information for the purposes of his Supreme Court inquiry. That is a matter which the Tribunal had already taken into account and it is not a matter which would justify the Appeal Panel giving leave for the matter to be extended to the merits of the Tribunal's decision. Orders 1. Leave is refused for the appeal to be extended to the merits of the Tribunal's decision 2. The Tribunal's decisions made on 4 April 2007 and 11 September 2007 are affirmed.