CY v Northern Sydney Central Coast Area Health Service [2008] NSWADT 315

CITATION: CY v Northern Sydney Central Coast Area Health Service [2008] NSWADT 315

DIVISION: General Division

APPLICANT CY PARTIES: RESPONDENT Northern Sydney Central Coast Area Health Service

FILE NUMBER: 073302

HEARING DATES: 16 June 2008

SUBMISSIONS CLOSED: 30 June 2008

DATE OF DECISION: 27 November 2008

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Access to documents – personal affairs – confidential material – operations of agencies – Internal working documents

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1989 Industrial Relations Act 1996

Cianfrano v Director-General, Premiers Department [2007] NSWADT 216 Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 CASES CITED: Handicapped Children's Centre, NSW v Director, Department of Aging, Disability & Homecare [2003] NSWADT 116 Livermore v Tumbarumba Shire Council [2008] NSWADT 125 TW v TX [2005] NSWADT 262 University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362

APPLICANT M Robinson, barrister REPRESENTATION: RESPONDENT A Harvey, solicitor

ORDERS: The decision under review is set aside. In its place the decision is made that the Kimber Report should not be released.

REASONS FOR DECISION Background 1 In these reasons the names of several private individuals have been anonymised so as to preserve the privacy of their personal affairs. The Applicant is referred to as CY. I have also limited my discussion of the evidence in order to avoid the possibility that the identities of individuals might be revealed. 2 This application relates to a request under the Freedom of Information Act 1989 ("the FOI Act") for access to a report prepared by Mr Kimber SC ("the Kimber report"). Mr Kimber was appointed as an external investigator as part of an investigation conducted by the Respondent into a complaint made by parents ("the parents") of a patient ("the patient") who had left a Hospital Unit administered by the Respondent ("the Unit") and subsequently died. A copy of the Kimber Report has been provided to the Tribunal. The parents are the applicants under the FOI Act but they are not parties to these proceedings. 3 After receipt of the Kimber Report, the Respondent sought advice in relation to it from Dr Hoyle, Director of Clinical Governance and Mr Landrigan, Area Director of Human Resources. The Hoyle/Landrigan Report concluded that there was no proper basis upon which to take disciplinary action against CY. CY was subsequently informed that there would be no disciplinary action taken. 4 The parents made further representations to the Respondent and as a consequence Mr John Taylor was commissioned to review and report on the matter. A report ("the Taylor Report") was provided in which Mr Taylor concluded that disciplinary action was warranted. Mr Terry Clout, the then Acting CEO of the Respondent, indicated that he was inclined to accept the Taylor Report finding. 5 Neither the Hoyle/Landrigan Report nor the Taylor Report is the subject of this application. 6 It is common ground that the Kimber report concerns CY. The Respondent undertook third party consultations with three subjects of the Kimber Report. CY was one of those consulted. CY's legal representatives made a submission and objected to the possible release of the Kimber Report. 7 The Respondent subsequently determined that the parents would be granted partial access to the Kimber Report. CY was advised of that determination and CY's legal representatives sought an internal review of the determination. On internal review the original decision to release the Kimber Report was overturned. 8 Following a complaint by the parents, the office of the NSW Ombudsman made formal suggestions to the Respondent. These included the suggestion that the Kimber Report be released to the parents, without the attachments but including a list of those documents, and with certain words deleted because they relate to the personal affairs of identified people. 9 The Respondent subsequently made a re-determination that complied with the Ombudsman's suggestions to release the Kimber Report in a redacted form. 10 The Health Services Union has notified a dispute to the NSW Industrial Relations Commission under section 130 of the Industrial Relations Act 1996 (NSW) in relation to the disciplinary proceedings against CY. Those proceedings remain to be determined. The external review 11 The applicant applied to the Tribunal for review of the determination to release a redacted version of the Kimber Report. 12 By consent, an order was made that the matter be remitted to the Respondent for reconsideration under section 65(1) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). The further internal review 13 Mr Matthew Daly, the Respondent's Chief Executive, undertook the further internal review. Mr Daly made a determination varying the earlier decision. Insofar as it is relevant to these proceedings, his decision was that the Kimber Report should be released to the parents in a redacted form and without attachments but including a list of those attachments. Mr Daly also determined that the Hoyle/Landrigan report was not the subject of the parents' application under the FOI Act and therefore no decision should have been made in regard to that document. 14 The statement of reasons provided by Mr Daley set out the reasons relied upon by the Respondent for releasing the Kimber Report. 15 The names of the individuals who were under investigation have been extracted from the form of the Kimber Report proposed for release. Nevertheless, it is common ground that the Kimber Report still contains findings that concerns CY. Issues 16 There are two issues for determination in this application. These are: (a) whether Kimber Report is exempt by reason of either clause 6, clause 9, sub-clause 13(b) or sub-clause 16(a)(iii) of Schedule 1 to the FOI Act; and (b) if the document is exempt, whether it should be released to the parents. Relevant legislation 17 Section 5 of the FOI Act relevantly provides: 5 Objects (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. 18 Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act. 19 Section 25(1) of the FOI Act provides, in part, that an agency may refuse access to a document if it is an exempt document. Section 25(4)(a) provides, in part, that an agency shall not refuse access to a document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted. 20 The Tribunal's jurisdiction to review determinations under the FOI Act is conferred by section 53 of the FOI Act, which provides, relevantly: 53 Right to make a review application (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, or (ii) an agency or Minister should have, and has, taken such steps but the determination is not in accordance with the views of the person, or. and the determination has been made as a consequence of a review under section 34 or 47 or has not been subject to a right of review under either of those sections. 21 Clause 6 of Schedule 1 to the FOI Act provides: 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. 22 Clause 9 of Schedule 1 to the FOI Act provides: 9 Internal working documents (1) A document is an exempt document if it contains matter the disclosure of which: (a) would disclose: (i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or (ii) any consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, and (b) would, on balance, be contrary to the public interest. (2) A document is not an exempt document by virtue of this clause if it merely consists of: (a) matter that appears in an agency's policy document, or (b) factual or statistical material. 23 Clause 13(b) of Schedule 1 to the FOI Act provides: 13 Documents containing confidential material A document is an exempt document: … (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. 24 Clause 16(a)(iii) of Schedule 1 of the FOI Act provides: 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: … (iii) to have a substantial adverse effect on the management or assessment by an agency of the agency's personnel, or … and (b) would, on balance, be contrary to the public interest. The Respondent's case 25 The Respondent filed a copy of the Kimber Report. It also relies on an affidavit of Ms Carol Parker, the Respondent's Acting Freedom of Information Officer. Ms Parker's affidavit annexes all the documents relevant to the Respondent's case. The Respondent relies on the reasoning provided in the final internal review determination and also provided written submissions in support of its case. It concedes that the Kimber Report contains material that constitutes CY's personal affairs. 26 It argues that the issue before the Tribunal is whether the Kimber Report should be releases in a redacted form. During the hearing the Respondent agreed that insufficient detail had been deleted from the material that it had proposed to release and agreed to remove additional significant amounts of material. The Respondent agreed that the material could have identified CY and other individuals. The Respondent contends that CY's concerns are met by the proposed deletion of material from the Kimber Report. 27 The Respondent relies on the reasons provided in regard to the further internal review as the bases for not recognising possible exemptions under clauses 9, 13(b) and 16(a)(iii) of Schedule 1 to the FOI Act. Insofar as are relevant, those reasons stated: "[CY's] most recent submission, asserts that the Kimber Report is an exempt document on several grounds and that NSCCAHS should exercise its discretion against release of the Kimber Report. (i) Personal Affairs (clause 6(1) of Schedule 1) … [F]or the purposes of this determination, it is assumed that the Kimber Report does contain material which constitutes information regarding the personal affairs of CY and [another named individual]. [CY and another named individual] have contended that the Kimber Report contains material which is highly critical of them and will thereby cause damage to their respective reputations if released, particularly if [the parents] circulates or publicises the material. Whilst that contention is a relevant consideration, against that must be balanced the following public interest considerations: access to material forming part of NSCCAHS's investigation process into the circumstances surrounding [the patient] leaving [the Unit]; disclosure of information pertaining to the administration of the Unit; disclosure of information relevant to the accountability of NSCCAHS for its decision making processes; provision of information of particular relevance to [the parents]. It is also considered that the concerns of [CY and another named individual] are, at least in part, met by the deletion of some material from the Kimber Report. It is concluded that either: (a) release of the Kimber Report is not an unreasonable disclosure within the meaning of clause 6(1); or (b) NSCCAHS should in any event exercise its discretion in favour of release of the Kimber Report. (ii) Internal working document (clause 9 of Schedule 1) It is accepted that the Kimber Report is an internal working document in that it contains an opinion, advice or recommendation that has been obtained, prepared or recorded for the purpose of the decision-making functions of the NSCCAHS. However, it is not accepted, due to the considerations referred to above, that the release of the Kimber Report would, on balance, be contrary to the public interest. (iii) Confidentiality (clause 13(b) of Schedule 1) It is not accepted that the Kimber Report was prepared on a confidential basis or that material provided to Mr Kimber was done so on the understanding that it would be kept confidential. On the contrary, as noted at paragraph 8 of the Kimber Report, written responses submitted by [CY and other named individuals] were all provided to [the parents]. The suggestion that release of the Kimber Report will adversely affect the future supply of information is misplaced for the same reason, (iv) Substantial adverse effect on assessment of agency personnel (clause 16(a)(iii) of Schedule 1) It is not considered that the Kimber Report attracts this exemption. Release of the Kimber Report would not have a substantial adverse effect upon the assessment of personnel in that the participation of personnel in the investigation did not occur on a confidential basis. In any event, it is not considered that disclosure of the Kimber Report would, on balance, be contrary to the public interest." 28 The Respondent asserts that in the circumstances the correct and preferable decision is to order the release of the Kimber Report in the proposed form. CY's case 29 CY provided two affidavits and relies on that evidence. Written submissions were also provided to the Tribunal on CY's behalf. CY also repeats the detailed submissions made to the Respondent as part of the internal review process. Those submissions were put in evidence as annexures to Ms Parker's affidavit. 30 As noted above, CY asserts that the Kimber Report is exempt under clauses 6, 9, 13(b) and 16(a)(iii) of Schedule 1 of the FOI Act. 31 The Respondent has conceded that the Kimber Report contains information that constitutes CY's "personal affairs". CY asserts that while all references to the names of three individuals who were the subject of Mr Kimber's inquiry might have been removed from the text of the version of the Kimber Report proposed for release, that is insufficient to prevent unreasonable disclosure of CY's personal affairs. 32 Mr Robinson submits that it is reasonable to assume that if the parents were given a copy of the Kimber Report they would not keep it confidential. In those circumstances, release to the parents would equate to release to the world. Mr Robinson also contends that while the Hoyle/Landrigan report exposed the deficiencies in the Kimber Report, that report was found to be outside the scope of the parent's application under the FOI Act. As a consequence, any balance that the Hoyle/Landrigan report may have provided to criticism relating to CY that is contained in the Kimber Report is not available to the public. He says that in these circumstances it would be unfair to CY to release the Kimber Report. 33 The written submissions on behalf of CY identify the exemptions that are said to apply to the Kimber Report as follows: "The Personal Affairs Exemption 17. The subject document should not be released to the original FOI applicants because: (a) It plainly contains "information concerning the personal affairs" of the applicant within the meaning of clause 6 of Schedule 1 of the FOI Act (this fact is agreed as between the parties); (b) The persons the subjects of the Report, including the applicant, do not wish it to be released at all and the applicant strenuously opposes release; (c) The Report is internal to the agency and is confidential. It is part of the confidential and private personnel records of the applicant; (d) It relates to disciplinary matters involving the applicant that have not yet concluded. The employer agency and the applicant should not have the original FOI applicants and the whole world looking over the shoulder of whoever it is appointed to undertake any disciplinary proceedings in relation to the applicant; (e) The subject document does not relate merely to "the fact of a person's employment in a relatively high level governmental position" and "the term of the persons employment" which would constitute "information of an official character" (Livermore v Tumbarumba Shire Council [2008] NSWADT 125 at [24] (Handley, Judicial Member)) it constitutes matters of "private concern" (ibid at [24]). (f) On its face and taken alone, the subject document amounts to a one- sided and personal attack on the applicant's personal and professional reputation; (g) There is no identifiable benefit to the public should this document be released. The disclosure of the document has the potential to embarrass the applicant and undermine [the applicant's] professional and personal reputation. This potential harm to the applicant must be weighed against the public benefit in disclosure; (h) The subject matter of the Report is plainly confidential to those to whom it relates and to those to whom it refers; (i) Release under FOI must be considered not only release to the original FOI applicants, but release to the whole world (Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 at 440); (j) Disclosure would be contrary to the public interest because it would make it more difficult for the agency to comply with its statutory obligations in future to provide its employees with a safe workplace - TW v TX [2005] NSWADT 262 at [49] (Hennessy N -Magistrate (Deputy President)); (k) There is nothing further to be gained as to the internal workings of Government in NSW that has not already been released to the applicant; (l) The Tribunal should not be asked by a respondent employer to do something that would otherwise potentially found a breach of the implied common law duty of good faith in the contract of employment between the parties (or to do something calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties); and, (m) In order for current and future employees of the respondent to have faith in and participation in a system of disciplinary processes, the Tribunal should accept the practical realities of confidentiality, privacy, discretion and fair due process, particularly as should be afforded to the person or persons the subject of the inquiry. 18. The NSW FOI Manual, August 2007, published by the NSW Department of Premier and Cabinet and NSW Ombudsman at paragraph 12.3.19(19) provides that information concerning disciplinary investigations or proceedings constitutes the personal affairs of an affected person in the absence of special circumstances to the contrary. In addition, the Manual at paragraphs 12.3.33 to 45 discusses the situation with employment related records and disciplinary matters. They should generally remain private and disclosure would be generally unreasonable under the FOI Act. Other Possible Exemptions 19. The Respondent opposes the applicant relying on or arguing other exemptions in Schedule 1 of the FOI Act and relies on Handicapped Children's Centre, NSW v Director, Department of Aging, Disability & Homecare [2003] NSWADT 116 at [35]. The applicant contends that this decision is plainly wrong in that, inter alia, it does not pay sufficient regard to the Tribunal dealing with the whole of the reviewable decision under review or of section 55 of the FOI Act or section 124 of the ADT Act. Alternatively, the applicant relies on the other exemptions as an expression of [the applicant's] own view (Handicapped Children's Centre, ibid) and as examples or instances going to the Tribunal's consideration of "unreasonableness" and the public interest. 20. The respondent in its letter to the applicant of 5 March 2007 represented to the applicant that the applicant was not limited to the "Personal Affairs" exemption ... The respondent in its determination of 5 June 2007 found that other exemptions in fact applied ... 21. On any view on the matter, the Tribunal must arrive at the correct or preferable decision on the matter as a whole. On any fresh determination on the merits, the Tribunal must, with respect, take into account the following additional and significant available exemptions set out in Schedule 1, Parts 2 & 3 of the FOI Act, namely:- Clause 9 internal working documents exemption (a compelling exemption in this particular case); Clause 13 (b)-the confidentiality exemption; Clause 16 (a) (iii) -adverse effect on assessment of agency personnel; and, Public interest and/or reasonableness of release to the public." 34 CY accepts that in University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 the Supreme Court confirmed that the Tribunal has discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it. However, CY submits that in the present case, there are no strong grounds that would justify overriding the exemptions claimed. 35 CY asserts that in the circumstances of incomplete proceedings before the Industrial Relations Commission it is inappropriate and unfair for the release of the Kimber Report. 36 For these reasons it is submitted that the Kimber Report should, for the present, remain confidential in its entirety. Discussion and Findings 37 The Respondent's decision was that the Kimber Report should be released to the parents in a redacted form and without attachments but including a list of those attachments. The Respondent also determined that the Hoyle/Landrigan report was not the subject of the parent's application under the FOI Act. 38 The history of the matter suggests that the Respondent's decision was made in the light of the recommendation made by the Ombudsman and that it was an effort to provide some support for the parents. The Ombudsman's recommendation was given at a time when the Respondent had taken the decision that there would be no disciplinary action against CY. It is clear that the Respondent's position on that issue changed after receipt of the Taylor Report. After that time CY was advised that disciplinary action was anticipated. 39 It is common ground that in its complete form the Kimber Report is an exempt document pursuant to clause 6 of Schedule 1 to the FOI Act. It is also common ground that the Kimber Report still contains findings that concerns CY. At paragraph 16 it is stated that CY "may well be guilty of a breach or breaches of discipline as a result of being careless, inefficient or incompetent in the discharge of [CY's] duties ..." 40 The NSW FOI Manual, August 2007, published by the NSW Department of Premier and Cabinet and NSW Ombudsman at paragraph 12.3.19(19) provides: "Without attempting to set out a comprehensive list of relevant matters, in assessing FOI applications it can be assumed that, in the absence of special circumstances to the contrary, information concerning the following matters could constitute the 'personal affairs' of a person in terms of the first part of the test in clause 6: … (19) Disciplinary investigations or proceedings, particularly where disciplinary action was taken." 41 In my view, the evidence supports the contention that the Kimber Report forms the basis of disciplinary proceedings to be taken against CY. It is my view that the Kimber Report, even in a redacted form, is a document that concerns CY's personal affairs. 42 Action has been commenced in the NSW Industrial Relations Commission in relation to the disciplinary proceedings and those proceedings remain to be determined. 43 In these circumstances, the disclosure of the Kimber Report, even in a redacted form, would be unreasonable. It is therefore exempt under clause 6 of Schedule 1 to the FOI Act. 44 In University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 the Supreme Court confirmed that the Tribunal has discretion to order access to be given to documents which are exempt documents. The approach to be taken by the Tribunal in exercising that discretion has been discussed in several decisions. In Cianfrano v Director-General, Premiers Department [2007] NSWADT 216 the Tribunal's President noted that there should be strong grounds justifying the exercise of this residual discretion to grant access to a document that is found to be exempt. At paragraph [27] the President set out some of the factors relevant to the exercise of the discretion. 45 Having regard to all the circumstances, it is my view that there are no strong grounds that would justify overriding the exemption claimed. This position may change once the Industrial Relations Commission proceedings have been completed. However, on the evidence before me I am satisfied that the Kimber Report should not be released at this stage. 46 I note that there is no agreement between the parties with respect to the other exemptions asserted by CY. However, having formed the view with respect to the clause 6 exemption, I do not need to consider whether the other asserted exemptions are applicable. Order The decision under review is set aside. In its place the decision is made that the Kimber Report should not be released.