A -v- Director General, Department of Health [2000] NSWADT 59

CITATION: A -v- Director General, Department of Health [2000] NSWADT 59 DIVISION: General Division APPLICANT A PARTIES: RESPONDENT Director General, Department of Health FILE NUMBER: 993241 HEARING DATES: 17/02/00 SUBMISSIONS CLOSED: 02/17/2000 DATE OF DECISION: 05/16/2000

BEFORE: Hennessy N (Deputy President) APPLICATION: Freedom of Information Act - access to documents - access to documents MATTER FOR DECISION: Principal matter LEGISLATION CITED : Freedom of Information Act 1989 Wittingslow Amusements Group Pty Limited and Anor -v- The Director General of Environment Protection Authority of New South Wales (unreported decision of the Supreme Court of New South Wales 23 April 1993) The Commissioner of Police -v- The District Court of NSW (Perrin's Case) (1993) 31 NSWLR 606 University of Melbourne -v- Robinson (1993) 2 VR 177 CASES CITED: Gilling -v- General Manager, Hawkesbury City Council {1999} NSWADT 43 Re Williams and Registrar of Federal Court of Australia (1985) 8 ALD 219 Young -v- Wicks (1986) 13 FCR 85 Re French (1987) 12 ALD 525 Re Griffith and the Queeensland Police Service (unreported decision No 97013, 15 August 1997) APPLICANT REPRESENTATION: In person RESPONDENT A Wilson, solicitor ORDERS: 1. Application dismissed.

Introduction 1 These proceedings were brought by a person who I have called "A". The reason for not disclosing his name is that he maintains that a document containing his name and other information, concerns his personal or business affairs and should not be disclosed. Pursuant to s 55(a) of the Freedom of Information Act 1989 (FOI) Act, the Tribunal must ensure that it does not disclose any exempt matter in its reasons. Even if the Tribunal does not ultimately find that the material is exempt it is wise not to disclose it because otherwise an appeal against the Tribunal's decision would be pointless. 2 The basis of A's application is that officers of the Department of Health (the agency) failed to consult with him before releasing a document under the FOI Act. A maintains that the document relates to his personal or business affairs and should not be released. 3 The document is an investigation report entitled "Investigation of allegations concerning the non-attendance at work and related salary and trust fund payments to two senior staff specialists (name of hospital deleted)" and dated December 1998 ("the report"). The report was prepared by the agency in response to a complaint by a Mr X about A and another person. 4 The investigation report comprises twenty-seven pages as well as twenty-seven appendices. It contains five parts under the headings: Executive Summary and Conclusions; Introduction; Recommendations; Investigation Findings and Appendices. The report found that the allegations against A and the other person were not substantiated. 5 On 25 January 1999, Mr X made an application to the agency under the FOI Act for access to the report. Initially the report was released except for certain passages which the agency considered related to A's personal affairs. Because these passages were not released, the agency did not consult with A before making its decision. Following a request for an internal review of the agency's decision by Mr X on 4 March 1999, the agency decided to vary its original decision and release the report in full. The agency did not consult with A at that time. 6 The agency advised A by letter of 9 April 1999 that if he was aggrieved by the decision to release the information he could apply for an external review of that decision and the information would not be released to Mr X for a period of 60 days. 7 A then went to the Ombudsman who considered his complaint and wrote to him on 16 July 1999. This letter expressed the view that the agency had made the correct decision in deciding to release the entire report to Mr X. A then applied to the Tribunal on 19 October 1999 for a review of the agency's decision. Preliminary point 8 At the hearing, A queried the agency's assertion that Mr X had been given a complete copy of the report following the internal review decision. At my request, the agency contacted Mr X who told the agency that he has never received a copy of any part of the report. The agency maintains that they did send him the report. (See letter dated 2 March 2000 from the agency to the Registrar of the Tribunal.) 9 I find, on the basis of this evidence, that Mr X does not have a copy of the report. There is no reason for him to say he does not have a copy if he does have a copy of the report. I also accept that the agency intended to send Mr X the report and were under the impression that he had received it. It is fortuitous that Mr X does not have the report because any decision of the Tribunal that the report or part of the report should not be disclosed can still have effect. Jurisdiction 10 Although it was not raised by the agency at the hearing, there is an issue as to whether A lodged his application with the Tribunal within time. 11 Under s 16 of the FOI Act, "A person has a legally enforceable right to be given access to an agency's documents in accordance with this Act." Section 25(1)(a) states that: An agency may refuse access to a document: (a) if it is an exempt document "Exempt documents" are defined in s 6 to include "a document referred to in any one or more of the provisions of Schedule 1." 12 Under s 55 of the Administrative Decisions Tribunal Act 1997 (ADT Act) the Tribunal (1) A person may apply to the Tribunal for a review of a reviewable decision only if: (d) the application is made within such period as may be prescribed by the rules of the Tribunal following the date on which the internal review is taken to have been finalised under section 53 (9). 13 Section 57 of the ADT Act provides that: (1) Despite section 55 (1) (d), the Tribunal may, on application in writing by an interested person seeking to make a late application to the Tribunal, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application. (2) The time for making an application for a review of a reviewable decision may be extended under subsection (1) although that time has expired. (3) In this section, late application means an application not made within the time prescribed by the rules of the Tribunal (or prescribed by or under the enactment under which the application is made). 14 In this case, the enactment referred to in s 57(3) of the ADT Act is the FOI Act. Section 54 of that Act provides that: A review application is to be made: (a) except as provided by paragraph (b)---within 60 days after notice of the determination to which it relates is given to the access applicant, or (b) if a complaint is made to the Ombudsman in relation to the determination---within that period of 60 days and: (i) the Ombudsman refuses to investigate the conduct complained of or discontinues an investigation of that conduct within 60 days after the complainant is informed of that fact, or (ii) the Ombudsman completes an investigation of the conduct complained of within 60 days after the results of the investigation are reported to the complainant. 15 The combined effect of the provisions of the ADT Act and the FOI Act as they relate to this case, is that A is required to lodge a review application with the Tribunal "within 60 days after the results of the investigation are reported to the complainant." The results of the Ombudsman's investigation were conveyed to A by letter of 16 July 1999. A did not lodge an application with the Tribunal until 19 October 1999, a period of more than 60 days after the Ombudsman reported the results of the investigation. However, pursuant to s 57(1) of the ADT Act, the Tribunal may, on application in writing by an interested person, extend the time for the making of an application in certain circumstances. 16 In this case A has not applied to the Tribunal for an extension of time. If A had lodged such an application, the Tribunal would have been able to consider the issue. Because A also faces another jurisdictional problem, I did not suggest that he make an application to the Tribunal to extend the time for the lodgement of his application. 17 The second jurisdictional problem facing A arises from the operation of s 53 of the FOI Act. If the Tribunal has jurisdiction to hear this matter, its jurisdiction must derive from that section, the relevant provisions of which are as follows: (1) A person who is aggrieved by a determination made by an agency or Minister under section 24 or 43 may apply to the Tribunal for a review of the determination. (3) For the purposes of this section, a person is aggrieved by a determination: (b) in the case of a determination that relates to an application made by some other person under section 17, 34 or 36, in respect of a document to which one or more of the provisions of Division 2 of Part 3 applies---if: (i) an agency or Minister should have, but has not, taken such steps as are reasonably practicable to obtain the views of the person as to whether or not the document is an exempt document by virtue of any one or more of the provisions of Part 2 of Schedule 1. 18 In this case a decision has been made by the agency under s 24 to give access to the report to Mr X. That determination relates to an application Mr X made under s 17 (application for access to agencies' documents) and then under s 34 (internal review). A submits that he is aggrieved by the agency's determination within the meaning of that term in s 53(3)(b)(i) because the agency should have, but has not, taken such steps as are reasonably practicable to obtain the views of A as to whether or not the document is an exempt document under Part 2 of Schedule 1 (which includes Clauses 6 and 7). 19 Section 31 and s 32 of the FOI Act are relevant to the issue of whether or not the agency should have taken steps to obtain the views of A prior to deciding to give access to the report to Mr X. 20 Section 31 relates to documents affecting personal affairs, while s 32 relates to documents affecting business affairs. Section 31 provides as follows. (1) This section applies to a document that contains information concerning the personal affairs of any person (whether living or deceased). (2) An agency shall not give access to a document to which this section applies (otherwise than to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 6 of Schedule 1. 21 Clause 6 of Schedule 1 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. 22 Section 32 is in similar terms to s 31 but applies, so far as is relevant to this matter, to documents containing information concerning the business, professional, commercial or financial affairs of A. That section states that: (1) This section applies to a document that contains: (a) information concerning the trade secrets of any person, or (b) information (other than trade secrets) that has a commercial value to any person, or (c) information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any person. (2) An agency shall not give access to a document to which this section applies (otherwise than to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 7 of Schedule 1 23 The relevant provisions of Clause 7 relating to documents affecting business affairs, are as follows: (1) A document is an exempt document: (c) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and (ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency. 24 A pre-requisite to the operation of section 31 is that the document contains information concerning the personal affairs of any person. A pre-requisite to the operation of section 32 is that the document contains certain information including information concerning the business professional, commercial or financial affairs of any person. If the document does not contain such information the obligations under s 31(2) and s 32(2) to take steps to obtain the views of the particular person concerned do not arise. In such cases, it cannot be said that an agency should have obtained those views and consequently the person is not an "aggrieved person" under s s 53(3)(b)(i) and the Tribunal does not have jurisdiction to hear the matter. 25 This conclusion is supported by the findings of Powell J in Wittingslow Amusements Group Pty Limited and Anor v The Director General of Environment Protection Authority of New South Wales (unreported decision of the Supreme Court of New South Wales, 23 April 1993). Powell J found at page 31 that because the report in that case did not come within any of the classes enumerated in s 32(1) of the FOI Act, the provisions of s 32(2) requiring consultation are not brought into play. 26 I will consider first whether the report contains information concerning A's personal affairs. While the agency did not address this issue in the context of the jurisdictional question, they did raise it in relation to the substantive application of the exemption in Clause 6. 27 The agency submitted that the report does not contain material concerning A's personal affairs. They relied, in part, on the Court of Appeal's decision in The Commissioner of Police v The District Court of NSW (Perrin's case) (1993) 31 NSWLR 606. The agency submitted that in Perrin's case the Court of Appeal found that names of police officers in documents which related purely to their official duties did not concern the personal affairs of those officers but could be said to more appropriately concern the affairs of the Police Service. 28 The agency submitted that the same principle applies in this case because A's name appears in the investigation report in a context that is purely concerned with his duties at the hospital and therefore concerns the affairs of the hospital, not A's personal affairs. 29 The agency also quoted the Victorian Supreme Court decision of University of Melbourne v Robinson (1993) 2 VR 177 at 187 where Eames J made the following point when dealing with the corresponding provision in the Victorian legislation: The reference to the "personal affairs of any person" suggests to me that a distinction has been drawn by the legislature between those aspects of an individual's life which might be said to be of a private character and those relating to or arising from any position, office or other public activity with which the person occupies his or her time." 30 As A holds a position within a public hospital, the matters in the report relate to his position within the public health system and therefore, in the agency's submission, relate to the hospital's affairs, not to A's personal affairs. 31 A submitted that the investigation report: ". . . .contains information in a context that concerns my personal affairs. This information is more than just my name. . . . I submit that my name appearing numerous times throughout the document, in close association with some statements of fact, and some allegations, and some statements of untruth, constitutes personal affairs. There are some passages in the document, that even unlinked to my name do concern my business affairs. 32 I pointed out in Gilling -v- General Manager, Hawkesbury City Council [1999] NSWADT 43 at [36] that: The term "personal affairs" appears in both Commonwealth and Victorian FOI legislation and consequently it has been interpreted in many cases in those jurisdictions. The cases make it clear that "personal affairs" cannot be precisely or exhaustively defined. In several cases it has been given its ordinary dictionary meaning, that is, "matters of private concern to an individual." (See Re Williams and Registrar of Federal Court of Australia (1985) 8 ALD 219 per Beaumont J at 221-222; Young v Wicks (1986) 13 FCR 85 per Beaumont J at 89.) 33 In Perrin's Case, (1993) 31 NSWLR 606 Kirby P in the Court of Appeal, noted at 625 that it has been suggested that the ordinary dictionary meaning of personal affairs might be too narrow. The President held that, "In its context, the words 'personal affairs' mean the composite collection of activities personal to the individual concerned." I have adopted this definition in considering the meaning of the phrase in this case. 34 It is a question of fact in every case as to whether the name of a person amounts to their personal affairs (Perrin's case per Clarke JA at p 644; Re French (1987) 12 ALD 525). 35 After deciding that the information must be "personal to the individual concerned" as interpreted in its context, Kirby P in Perrin's Case (1993) 31 NSWLR 606 at 625 went on to say that: Applying that test, it cannot properly be said that the disclosure of the names of police officers and employees involved in the preparation of reports within the New South Wales police can be classified as disclosing information concerning their personal affairs. The preparation of the reports apparently occurred in the course of the performance of their police duties. What would then be disclosed is no more than the identity of officers and employees of an agency performing such duties. As such, there would appear to be nothing personal to the officers concerned. Nor should there be. It is quite different if personnel records, private relationships, health reports or (perhaps) private addresses would be disclosed. Such information would attract the exemption." 36 In Re Williams (1985) 8 ALD 219 at 222, Beaumont J stated that if the term personal affairs refers to matters of private concern to an individual then: . . . ordinarily information as to the work capacity and performance of a person is not private in that sense. It is something observed by others and commonly discussed by those involved in that work. Ordinarily, information as to a person's vocational competence is not something which is treated as confidential. Prima facie at least, it is not part of his or her "personal affairs." 37 In Re Griffith and the Queensland Police Service (unreported decision No 97013, 15 August 1997) the Queensland Information Commissioner commented, at paragraph 51, that I consider that conduct of a public sector employee which occurs in the course of performing his or her employment duties is properly to be characterised as part of the employee's employment affairs rather than his or her personal affairs, even in respect of conduct alleged or proven to involve misconduct or a breach of discipline. 38 In order to determine whether A's name and any other information concerning him, constitutes his personal affairs in this case, the context in which this information appears must be examined. As I pointed out above, the report relates to allegations of non-attendance at work and related salary and trust fund payments to A, who is an employee of the hospital, and another person. On the basis of the authorities quoted above and an examination of the contents of the report, neither A's name, nor any of the other information in the report including the details of the allegations and findings concerning his attendance at work and related salary and trust fund payments, concern his personal affairs. They concern his employment in a public agency. 39 I turn now to consider whether, pursuant to section 32, of the FOI Act, the report contains information (other than trade secrets or certain other information) concerning the business, professional, commercial or financial affairs of A. If it does not, then the obligation under s 32(2) to take steps to obtain the views of the particular person concerned does not arise and the Tribunal does not have jurisdiction to hear the matter under s 53(3)(b)(i). 40 The agency quoted the following relevant passage in Young v Wicks (1986) 79 ALR 448 per Beaumont J at 453: As has been said, the applicant is employed by the Queensland Government as the senior pilot of the ministerial air unit. As a government employee, the applicant is not conducting any business or carrying on any commercial operation in her own right or on behalf of any other person. Her activities are carried out pursuant to her contract of government employment. It follows, in my view, that the information in the subject documents does not concern the application in respect of her business affairs. 41 The agency acknowledged that A is not a government employee, but an employee of a public health organisation. They submitted that the report deals with the activities of A that are carried out pursuant to his employment by a public health organisation. Therefore the report does not concern his business affairs. 42 A pointed out two passages in the report which he says relate to his business affairs. They appear on page 9 at about point 5 and at the top of page 10. I have read those passages and concluded that the information cannot be characterised as relating to his business "affairs" because they do nothing more than establish that he has some business affairs. The information does not relate to those affairs in any substantive manner. 43 On the basis of these findings, the Tribunal does not have jurisdiction to determine this matter and the application is dismissed. Substantive issues 44 Even if I am wrong in relation to both these jurisdictional issues, the same reasoning outlined above means that A would fail in relation to his substantive application. The issue in any substantive application would be whether the agency made the correct and preferable decision in deciding to give Mr X access to the report. 45 In order to vary the agency's decision on this point, I would firstly have to be satisfied that all or part of the document comes within the exemptions in Clause 6 or Clause 7 of Schedule 1. For the reasons outlined above, I have found that the report does not meet at least one element of each of those exemptions, that is, the report does not contain information concerning the personal affairs of A or information concerning the business, professional, commercial or financial affairs of A. 46 Unfortunately for A, these conclusions mean that his submissions about the impact disclosure of the report would have on him do not arise for consideration. 47 If the agency has not already given A a full copy of the investigation report, I recommend that they do so.