CITATION: YZ v Sydney South West Area Health Service [2006] NSWADT 316 DIVISION: General Division APPLICANT PARTIES: YZ RESPONDENT Sydney South West Area Health Service FILE NUMBER: 063268 HEARING DATES: 31/10/06 SUBMISSIONS CLOSED: 10/31/2006 DATE OF DECISION: 11/09/2006 BEFORE: Handley R - Judicial Member CATCHWORDS: access to documents - business affairs - access to documents - confidential material - access to documents - personal affairs - Freedom of Information Act - access to documents - business affairs - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - personal affairs MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 Harris v Australian Broadcasting Corporation (1983) 78 FLR 236 Humane Society International Inc v National Parks & Wildlife Service & Ors [2000] NSWADT 133 Keriakes v State Rail Authority of NSW [2003] NSWADT 191 Martin v Commissioner of Police, NSW Police [2005] NSWADT 23 CASES CITED: McGuiness v Bathurst Regional Council [2005] NSWADT 152 NV v Randwick City Council [2005] NSWADT 45 Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Director General, Premier's Department [2002] NSWADT 277 Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 Saleam v Director General, Department of Community Services [2002] NSWADT 41Schlebaum (No 2) v Department of Community Services and Gliksman [2001] NSWADT 214 Vincent Neary v State Rail Authority [1999] NSWADT 107 WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 APPLICANT MA Robinson, barrister REPRESENTATION: RESPONDENT A Dansie, agent ORDERS: That part of the decision of the Sydney South West Area Health Service dated 12 May 2006 by which it was determined that Folios 000055 and 000056 be released in their entirety is revoked, and in substitution those documents are determined to be exempt pursuant to Sch 1, cl 6 and cl 7 of the Freedom of Information Act 1989. REASONS FOR DECISION 1 The Sydney South West Area Health Service ('the Health Service') received an application for access to documents under the Freedom of Information Act 1989 ('the FOI Act'). The Health Service determined that some of the documents to which access was requested contained information relating to YZ. It therefore wrote to YZ informing him of the application and inviting him to comment on whether the disclosure of the documents would be an unreasonable disclosure of his personal affairs or involve the disclosure of information obtained in confidence. 2 By letter dated 7 March 2006, the Health Service informed YZ that, after consideration of his comments, it had determined that full or partial access be granted to 14 documents relating to YZ, but that it had determined that other documents were exempt from disclosure pursuant to Sch 1, cl 6 and cl 13 of the FOI Act. YZ sought an internal review of this decision in relation to seven documents. By letter dated 12 May 2006, the Health Service informed YZ of the outcome of its internal review. 3 On 11 July 2006, YZ applied to the Tribunal for a review of this decision in relation to two documents which the Health Service found not to be exempt from disclosure: both documents are letters, YZ being named in the first letter (Folio 000055), of which he received a copy, and being the author of the second letter (Folio 00056). YZ submits the two documents are exempt documents pursuant to Sch 1, cl 6 (documents affecting personal affairs), cl 7 (documents affecting business affairs), and cl 13 (documents containing confidential information) of the FOI Act. 4 At the hearing, the Tribunal, having heard submissions on the issue from the parties, made an order under s 55 of the FOI Act to prevent disclosure of the two documents in issue claimed to be exempt by the applicant. Further, being satisfied that it was desirable to do by reason of the confidential nature of the evidence, the Tribunal also made a general order under s 75 of the Administrative Decisions Tribunal Act 1997 restricting disclosure of the name of the applicant, the documents lodged with the Tribunal and received in evidence, and the transcript of the hearing. The Relevant Law 5 Pursuant to s 16(1) of the FOI Act, "[a] person has a legally enforceable right to be given access to an agency's documents". However, s 25(1)(a) permits an agency to refuse access to a document if it is an "exempt document", the onus being on the agency to establish this. Section 25(4) provides that an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted and it appears to the agency that the FOI applicant would wish to be given access to such a copy. 6 Section 31 requires that where a document contains information concerning the personal affairs of any person, the agency shall not give access to such a document unless the agency has taken reasonable steps to obtain the views of the person as to whether or not the document is exempt by virtue of Sch 1, cl 6. Section 32 provides similarly in respect of documents affecting a person's business affairs (in relation to Sch 1, cl 7). 7 Section 6(1) defines 'agency' as including a public authority, and 'exempt document' as including a document referred to in any one or more of the provisions of Sch 1. The exempt documents in Sch 1 include, relevantly, those specified in cl 6, cl 7 and cl 13, set out below. Clause 6 8 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. 9 For a document to be exempt under clause 6, firstly, it must contain "information concerning the personal affairs" of a person other than the applicant and, secondly, the disclosure of that information would be "unreasonable". What constitutes the "personal affairs" of a person has been discussed in a number of decisions both of the courts and of the Tribunal. In Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43, at paragraph 33, Deputy President Hennessy said the purpose of the personal affairs exemption is to allow the public interest in personal privacy to be balanced against the public interest in people having open access to information held by government. 10 The leading authority on what constitutes the "personal affairs" of a person is the NSW Court of Appeal decision in Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 ('Perrin's case') where, at 625, Kirby P described "personal affairs" as meaning "the composite collection of activities personal to the individual concerned". His Honour recognised, at 620-621, that cl 6(1) can embrace the personal affairs of the agency's own officers and employees. He said, at 625, that while disclosing the names of police officers and employees involved in the preparation of police reports could not be classified as disclosing information concerning their personal affairs: "It would be quite different if personnel records, private relationships, health reports or (perhaps) private addresses would be disclosed. Such information would attract the exemption." 11 With regard to when the disclosure of information is unreasonable, in Saleam v Director General, Department of Community Services [2002] NSWADT 41, at paragraph 38, the President of the Tribunal, O'Connor DCJ, followed the approach adopted by the Commonwealth Administrative Appeals Tribunal in Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257, at paragraph 51: "Whether a disclosure is 'unreasonable' requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was being obtained, the likelihood of the information being information that the person concerned would not wish to be disclosed without consent, and whether that information has any current relevance." (See also the recent decision in Martin v Commissioner of Police, NSW Police [2005] NSWADT 23.) 12 Mr Robinson, for YZ, submitted that not only did the Health Service fail to address the issue of the reasonableness of the disclosure in terms of YZ's personal affairs in its statement of reasons, it also failed to consider whether the disclosure would be unreasonable in terms of the personal affairs of another person named in the first of the two documents in issue. Pursuant to s 31(2) of the FOI Act, the Health Service was under an obligation "to take 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". There is no evidence the Health Service has done so. Mr Robinson submitted that release of the first document would also raise the issue of whether such a disclosure would be a breach of confidence in relation to that person so that the document is exempt from disclosure pursuant to cl 13. This is discussed more fully below. With regard to whether release of the first document with the other person's name deleted would be practicable, pursuant to s 25(4) of the FOI Act, Mr Robinson submitted that the FOI Applicant would not wish to be given access to the document with that name deleted - this would rob the document of meaning. 13 Mr Robinson submitted that disclosure of the documents would plainly give rise to a breach of both YZ's and the other named person's privacy. He cited NV v Randwick City Council [2005] NSWADT 45, where the Tribunal held, obiter, that the Council's disclosure to a person of documents relating to that person's neighbour's property, including letters from the neighbour to the Mayor of the Council, without regard for the neighbour's privacy, was a breach of the neighbour's privacy. 14 Mr Robinson also submitted that disclosure of the documents, which contain defamatory imputations, could undermine YZ's reputation in circumstances where the documents are difficult to construe in the absence of other material. Moreover, disclosure of the documents could also undermine public confidence in the health system if it is known that known that such sensitive, confidential material can be accessed without the consent of those named. On the other hand, there is no identifiable public benefit in releasing the documents and it would not be reasonable to do so. Mr Robinson contended that the original FOI applicant was, essentially, a "busybody", noting that the application contains threats of legal action if not acceded to. Mr Robinson submitted that the FOI applicant's motive is relevant to the question of reasonableness: Humane Society International Inc v National Parks & Wildlife Service & Ors [2000] NSWADT 133, especially at par 26 – par 31. 15 Mr Dansie, for the Health Service, submitted that the documents in issue do not concern YZ's personal affairs. Rather they concern matters pertaining to YZ's conduct and performance as a health professional. However, if the Tribunal finds otherwise, the Health Service contends the disclosure of the documents would not be unreasonable and would be consistent with the objects of the FOI Act in terms of the openness of government in dealing with its citizens. Release of the documents would also reinforce public confidence in the public health system. With regard to the other person named in the first document, Mr Dansie said it is practicable to give access to the document with that person's name deleted in accordance with s 25(4) of the FOI Act, and he submitted that the FOI applicant would want such access. 16 In my view, the two documents in issue clearly concern YZ's personal affairs, containing information relating to his conduct and relationships with others, of a character that one would ordinarily expect to see retained confidentially in "personnel" records. In all the circumstances, disclosure of the documents would be unreasonable. Certainly, without the deletion of the other named person's name, such a disclosure could undermine public confidence in the health care system's ability to maintain confidentiality for information provided in confidence by individuals seeking treatment. I note that the Health Service has not, as it is required to do pursuant to s 31(2), sought the views of that person as to the release of the first document. 17 I agree with the Health Service that the deletion of the person's name and the partial release of the document pursuant to s 25(4) would protect the privacy of that person and, in my view, the FOI applicant would wish to be given access to such a copy (s 25(4)(b)). However, there is also the defamatory imputation concerning YZ, referred to in the documents, to consider in the light of the FOI applicant's motives in seeking access to this material. 18 Having read the FOI Applicant's application, which is for access to a wide range of documents, I am concerned by the hectoring tone of that application, which is made in the context of the FOI applicant's acknowledged pursuit of an individual grievance. I am not satisfied that there is a broader public interest in the particular documents in issue in this case being released. In my view, the two documents in issue are exempt under cl 6 because they contain matter the disclosure of which would involve an unreasonable disclosure of information concerning YZ's personal affairs. Clause 7 19 Clause 7 states: 7. Documents affecting business affairs (1) A document is an exempt document: (a) if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person, or (b) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets) that has a commercial value to any agency or any other person, and (ii) could reasonably be expected to destroy or diminish the commercial value of the information, or (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. (2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made. 20 Relevantly, for a document to be exempt under cl 7(1)(c), first, the document must contain information concerning the business, professional, commercial or financial affairs of any agency or other person and, second, relevantly, disclosure of the information could reasonably be expected to have an unreasonable adverse effect on those affairs. In Schlebaum (No 2) v Department of Community Services and Gliksman [2001] NSWADT 214, at par 42 to par 43, Deputy President Hennessy said that the terms "business and professional affairs" should be given a broad meaning: "Dr Schlebaum is admitted to a recognised profession and offers her services to the community for a fee. The information was provided in her capacity as a professional practising child psychiatrist and concerns her patient, AW, and AW's children. Based on these findings and a broad interpretation of "professional affairs" my view is that each of the documents in dispute contains information which concerns the professional affairs of Dr Schlebaum." 21 In Vincent Neary v State Rail Authority [1999] NSWADT 107, the President of the Tribunal, O'Connor DCJ, said, at par 35, that the Tribunal must adopt an objective approach in assessing what effect can reasonably be expected from the disclosure of the information, and the expectation must be more than a mere risk. 22 Mr Robinson submitted that the Tribunal could take judicial notice that professionals will not work in the public health system if documents of this nature, which essentially are of a 'personnel' character, are released to the public. This could have significant implications for attracting suitable staff to the Health Service. Mr Dansie submitted that disclosure of the two documents could not reasonably be expected to have an adverse effect on YZ's professional affairs or to prejudice the affairs of the Health Service. 23 An examination of the two documents reveals that they relate to a dispute over professional health care practice and a publication in an on-line professional journal, with specific reference to the professional conduct of YZ. In my view, the documents clearly disclose information concerning YZ's professional affairs. The documents could also reasonably be expected to have an unreasonable adverse effect on those affairs. The dispute which is the subject of the documents would appear to be one concerning differences of professional opinion, and recognition of contribution to the development of a medical practice discussed in the on-line publication. One of the documents contains what appear to be defamatory imputations, arising out of the dispute, which are vigorously denied in the other document. I can see no public benefit in these documents relating to a professional but, nevertheless, private dispute being released. The tone of the documents suggests that the professionals concerned would have expected the documents to be treated confidentially, and if the documents were released this could adversely affect the ability of the Health Service to attract suitable staff. Thus, the two documents are also exempt under cl 7. Clause 13 24 Clause 13 states: 13. Documents containing confidential material A document is an exempt document: (a) if it contains matter the disclosure of which would found an action for breach of confidence, or (b) if it contains matter the disclosure of which: (i) would otherwise disclose information obtained in confidence, and (ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and (iii) would, on balance, be contrary to the public interest. 25 The exemption conferred by cl 13 applies in two situations, the first being where a document contains material that would found an action for breach of confidence. This requires that the specific information must have the necessary quality of confidentiality, must have been received by a person in such circumstances as to import an obligation of confidence, and where there is an actual or threatened misuse of that information to the detriment of the person providing the information, which may include, for example, loss or privacy or embarrassment: Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Director General, Premier's Department [2002] NSWADT 277 ('the PSA case'), at par 51 to par 54. 26 The second situation applies where information is obtained in confidence, where disclosure could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and would, on balance be contrary to the public interest. In McGuiness v Bathurst Regional Council [2005] NSWADT 152 ('McGuiness'), at par 8, Deputy President Hennessy said: "Whether or not disclosure could reasonably be expected to prejudice the future supply of such information does not necessarily depend on whether the informant herself could reasonably be expected to refuse to supply such information in the future. While that evidence is relevant, the Tribunal must answer a broader question, that is whether disclosure could reasonably be expected to prejudice the future supply of such information from a substantial number of the sources available or likely to be available to [the agency] ... ( Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 341)." 27 With regard to the public interest, a loss of confidence in the confidentiality of personal data has been held to be against the public interest: the PSA case, at par 69. Conversely, it is in the public interest for an agency to receive confidential information from employees about the performance of other employees: Keriakes v State Rail Authority of NSW [2003] NSWADT 191; see also McGuiness. 28 I note that in WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84, at par 151, the NSW Court of Appeal, referring to the objects of the FOI Act set out in 5(2)(a) and (b), recognised that the right to be given access to documents held by an agency is subject to such restrictions as are reasonably necessary for the proper administration of the Government: "Determining whether documents should be disclosed involves balancing those two matters. Thus, ... testing whether disclosure of documents would be contrary to the public interest requires the decision-maker 'to weigh the public interest in citizens being informed of the processes of their Government and its agencies on the one hand against the public interest in the proper working of Government and its agencies on the other': Harris v Australian Broadcasting Corporation [(1983) 78 FLR 236] (at 246)." 29 Mr Robinson submitted that release of the first document could link the other person named there to an article that appeared in the on-line professional journal referred to above (the specific reference to which was provided to the Tribunal, together with a copy of the relevant publication), describing that person's circumstances and the particular medical procedure applied. This would result in the release of information that was provided by the person in confidence, and would result in a violation of the person's privacy and cause the person embarrassment. Moreover, if information of the kind provided in confidence by the named person were to be released, this could reasonably be expected to prejudice the future supply of such information to the Health Service, which would be contrary to the public interest. 30 Mr Dansie submitted that the deletion of the person's name from the first document would overcome this problem. I agree that this is so, and I have already discussed this in relation to cl 6, above. Once again, however, I note the Health Service's obligation to consult the named person pursuant to s 31(4). In my view, without the deletion of the person's name, I would otherwise be satisfied that the first document is exempt under cl 13 for the reasons given by Mr Robinson. However, given my determination that the documents are exempt under both cl 6 and cl 7, it is unnecessary for me to make any further determination in relation to cl 13. Decision That part of the decision of the Sydney South West Area Health Service dated 12 May 2006 by which it was determined that Folios 000055 and 000056 be released in their entirety is revoked, and in substitution those documents are determined to be exempt pursuant to Sch 1, cl 6 and cl 7 of the Freedom of Information Act 1989. 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.