Bray v North Coast Area Health Service [2009] NSWADT 93

CITATION: Bray v North Coast Area Health Service [2009] NSWADT 93

DIVISION: General Division

APPLICANT Arli Bray PARTIES: REPSONDENT North Coast Area Health Service

FILE NUMBER: 083283

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 20 February 2009

DATE OF DECISION: 4 May 2009

BEFORE: Pearson L - Judicial Member

CATCHWORDS: Access to documents – confidential material

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

Cianfrano v Director General, Premier's Department [2007] NSWADT 216 Director General, Department of Education & Training v Mullett (GD) [2002] NSWADTAP 13 CASES CITED: GJ v NSW Department of Education and Training [2008] NSWADT 310 Macquarie University v Howell (GD) [2008] NSWADTAP 46 University of New South Wales v McGuirk [2006] NSWSC 1362

APPLICANT M Fishburn, solicitor REPRESENTATION: RESPONDENT D Fletcher, agent

ORDERS: Decision under review affirmed

REASONS FOR DECISION Background 1 On 8 April 2008 the applicant's solicitor requested access under the Freedom of Information Act 1989 (the FOI Act) to the following documents: The clinical information/medical records of Zak Coggan relating to his birth on 18 May 2006. The NCAHS internal investigation report and attachments into the management of care in the maternity unit at Coffs Harbour Campus relating to the birth of Zak Coggan on 18 May 2006. 2 On 28 July 2008 Ms Fletcher, Director Clinical Operations of the respondent (the NCAHS) provided a copy of a report described in the following terms: "NCAHS Internal Investigation into a complaint IIMS Incident No. 179027-20 Clinical Management Obstetrics- Maternal" dated 17 November 2006. 3 That report had 18 Appendices. On 29 July 2008 the applicant's solicitor requested access to the Appendices. On 1 September 2008 the applicant's solicitor was notified by email that Appendices 1-10, 17 and 18 were released, and that Appendices 11,12, 13, 14, 15 and 19 were records of confidential interviews that required third party consultation. 4 On 23 September 2008 the applicant's solicitor applied to the Tribunal for review of the decision, stating that the reason given for not releasing Appendices 11, 12, 13, 14, 15 and 19 "is not a valid reason for refusal to provide the documents under the Freedom of Information Act". 5 A planning meeting was held on 28 October 2008 and I made an order under s56 of the FOI Act for the respondent to formally notify the applicant of its review determination by 31 October 2008. On 31 October 2008 the respondent notified the applicant that Appendix 16 was a duplicate of Appendix 1; that Appendix 17 was actually Appendix 18, and Appendix 18 is actually 19. Appendix 17 was released. The respondent stated that Appendices 11, 12, 13, 14 and 15 "are records of confidential interviews which would require third party consultation". The determination stated that the documents are exempt under clauses 7 and 13 of Schedule 1 to the FOI Act, and that it would not be appropriate to delete information contained in the documents, as the information had been obtained from witnesses on a confidential basis, and that while deletion of the name of the interviewed person might provide some level of protection the party could be readily identified by cross reference to the report. 6 At a subsequent planning meeting on 11 November 2008 I directed the respondent to advise the outcomes of its consultation with third parties, and made directions for filing and serving of written submissions and witness statements. The parties agreed that the matter could then be determined on the papers. 7 On 8 December 2008 the respondent filed an affidavit by David Hutton, Director Clinical Governance. On 29 January 2009 the applicant's solicitor provided written submissions. On 28 January 2009 the respondent advised that correspondence had been sent to the witnesses seeking permission for the release of their records of interview; four responses had been received, two refusing release and two advising that they were seeking legal advice and indicating that they did not want their statement released. The applicant was given the opportunity to file further submissions. Both applicant and respondent notified the Tribunal that they did not wish to file any further written submissions. Consideration 8 The documents in issue in this matter are Appendices 11, 12, 13, 14 and 15 to a Report of the NCAHS Internal Investigation into a Complaint IIMS Incident No.179027-20 Clinical Management Obstetrics-Maternal, dated 17 November 2006 ("the Report"). I note here that "IIMS" appears to be an abbreviation of "Incident Information Management System". The Terms of Reference for the investigation (provided by the applicant with the application for review) include the appointment by the Chief Executive of the NCAHS of three investigators "to investigate the management of care in the Maternity Unit at Coffs Harbour Health Campus (CHHC) on the 18 May 2006". According to the Terms of Reference, the scope of the investigation was "to address the adverse outcome arising from the delay in delivering a neonate" and that it should review the performance of a Registered Nurse employed by the respondent. The Report contains a Summary of Events, a Synopsis of Recommendations, Findings and Conclusions, and References. The Summary of Events is divided into five columns: Date, Time, Issue, Evidence and Recommendation. The Evidence column includes references to the written records of interview provided as Appendices to the report, identifying each of the relevant witnesses. 9 The respondent has provided a copy of Appendices 11, 12, 13, 14 and 15 to the Tribunal on a confidential basis. Each of these documents is a transcribed record of interview with individual employees of the respondent. 10 The respondent's case is that the documents are exempt under clauses 7 and 13 of Schedule 1 to the FOI Act, on the following basis: -the documents are transcripts of tape recorded interviews -the parties interviewed are directed rather than invited to attend the interview -the interview is fact finding -the interviewed parties are advised in writing of the requirement to attend interview and that: (a) the actual record of interview will not be provided to witness/es or respondent/s (b) the investigation is confidential -confidentiality of the parties interviewed is considered essential to obtain information -if confidentiality is not maintained it will jeopardise this organisation's future ability to obtain adequate information in future investigation. This in turn will compromise the organisation's ability to adequately conduct investigations -the interviewed parties should be consulted as to the release of this information. 11 The applicant's case is that there is general reference to the context in part of some of the statements given in the Report which the respondent has not objected to the production of; and there is nothing in the documentation provided to indicate or support the allegation that provision of the statements will prejudice the future supply of such information to the government or the agency. The applicant submitted that if the documents are exempt, the Tribunal should exercise its discretion to release them on the basis that liberal extracts of the statements given are included and referred to in the Report, and that given the nature and seriousness of the incident which was the subject of the investigation it is appropriate and proper that the applicant should have access to the statements relating to her treatment following her admission and relating to the birth of her son. 12 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. 13 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 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. 14 Under section 61 of the FOI Act, the respondent bears the onus of establishing that its determination of the applicant's request was justified. 15 Clause 7 of Schedule 1 to the FOI Act provides: 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 (a1) if it contains matter the disclosure of which would disclose the commercial-in-confidence provisions of a government contract (within the meaning of section 15A), or (b) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets or commercial-in-confidence provisions) 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, commercial-in-confidence provisions 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. 16 Clause 13 provides: 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. 17 The Terms of Reference provide the background to the investigation, and contain the following statement as to procedure to be followed in conducting the investigation: The Investigators may interview NCAHS staff involved in the provision of care, and will be provided with access to all health records and policies/procedures relevant to the investigation. The investigation must be conducted with procedural fairness. This means that the employees have the right to be fully informed of the issues under investigation at the start of the process, to be given a fair hearing and the opportunity to present their case, and to be accompanied by a support person or advocate. 18 The respondent provided a copy of a letter sent to one of the witnesses advising of interview arrangements for the investigation. The relevant parts of the letter state: ... You are required to available by telephone for a fact-finding interview as detailed below: ... The purpose of the interview is to investigate concerns in relation to clinical performance. The interview will be taped. For your protection as well as ensuring there is a complete and accurate record of our discussion, you will be provided with a tape at the end of the interview. You will also be provided with a typed record of the interview and will have the opportunity to comment on whether this is a true and correct record of proceedings and/or to add comment if you wish. ... The information obtained from this interview will constitute evidence in the investigation. The actual record of interview will not be provided to witness/es or respondents involved in this investigation. However, the effective conduct of the investigation may necessitate the disclosure of evidence to other parties. Should you want any evidence not to be disclosed for reasons of confidentiality you will need to state that on the record of the meeting and the reasons for confidentiality. ... This investigation is confidential and you are instructed not to discuss these matters or this investigation with any person, with exception of your support person(s). It would be a breach of confidentiality – possibly subject to discipline – if you or other staff discussed or speculated about the matters, which are the subject of this investigation. However, while this process is going on, you may need to talk to someone for advice and support. You are allowed to talk to a union representative or a counsellor or someone else who will support you through the process. If you wish to access the free services of the Employee Assistance Program, please contact your local human resources manager or rehabilitation officer for contact information. ... 19 In his affidavit, Mr David Hutton, NCAHS Director of Clinical Governance, states that the Director of Clinical Governance "has the overarching responsibility to ensure the system for managing complaints about clinicians is in place and functions effectively". The affidavit refers to, and provides copies of, two NSW Health policy documents: Policy Directive PD2006_007 Complaint or Concern about a Clinician, and Management Guidelines GL2006_002 Complaint or Concern about a Clinician. In his affidavit, Mr Hutton outlines the investigation process, the range of evidence collected, how investigation findings and conclusions are reached, and the Investigation Report. Mr Hutton notes that staff required to attend an interview are advised that the investigation is confidential and fact finding, and states: The importance of confidentiality is twofold: -To ensure the integrity of the investigation including procedural fairness -To promote the divulging of information from witnesses who may be reluctant to provide relevant information if they feel unable to trust the investigation process. 20 The respondent relies on clauses 7(1)(c) and 13(b) of Schedule 1 to the FOI Act. For cl 13(b) to apply, all three requirements must be met. Clause 13(b)(i) requires that disclosure would disclose information obtained in confidence. It is not necessary to show that there was an express obligation or understanding that the information was obtained in confidence, and this can be inferred from the circumstances in which the information was obtained: GJ v NSW Department of Education and Training [2008] NSWADT 310. In this matter, the witnesses were advised in the letter notifying details of the interview that the investigation was confidential, that the record of interview would not be provided to witnesses or the respondent (presumably the clinician the subject of the complaint), and that disclosure to other parties would be in the context of "the effective conduct of the investigation". The records of interview at issue in these proceedings include a statement at the beginning of the interview that "anything that occurs in this room is confidential". The fact that some material obtained during the interview might later be disclosed, either (as foreshadowed by the letter) where necessary for the effective conduct of the investigation, or (as was the case here) by references in the Report of the investigation, does not mean that the communications are deprived of the status of information obtained in confidence: Macquarie University v Howell (GD) [2008] NSWADTAP 46. I am satisfied that the interviews were conducted in the context of an investigation where there was a mutual expectation that the information provided at the interview would be treated in confidence. 21 Clause 13(1)(b)(ii) requires consideration of whether disclosure "could reasonably be expected to prejudice the future supply of such information" to the agency. The Appeal Panel in Director General, Department of Education & Training v Mullett (GD) [2002] NSWADTAP 13 at [58] noted: In our view cl 13(b)(ii) required the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. 22 GL2006_002 Complaint or Concern about a Clinician - Management Guidelines states that its purpose is to set out "an operational framework for the use of public health organisations when dealing with a complaint or concern about an individual clinician", and provide guides for the implementation of PD2006_007 Health Policy Directive Complaint or Concern about a Clinician - Principles for Action. GL2006_002 outlines the possible outcomes of an investigation, which range from identification and reporting of professional misconduct or unsatisfactory professional conduct, through to identification and management of performance issues or behaviour, or systems issues. The Guideline sets out a model for development of local procedures, which contains the following statement in relation to investigations: Obtain information relevant to the complaint or concern from all appropriate sources including other clinicians or staff members and the notifier/complainant to clarify scope of complaint. Information collected will vary depending on the nature of the concern raised and according to the nature and severity of the complaint. Information collected may include: statements from, or interviews with, relevant parties including people receiving a health service and their relatives; … 23 In this matter, investigation of the complaint required the obtaining of information from staff present during the relevant time, and some of that information formed part of the evidence for the findings made in the Report. The letter sent to the witnesses stated that the recipient was "required" to attend an interview. There is no indication on the evidence before me as to whether the respondent has power to compel a staff member to participate in an interview. Whether or not there is such a power, I am satisfied that the assurances of confidentiality provided to witnesses interviewed as part of an investigation into a complaint about a member of staff, in a context as important and sensitive as the delivery of health services, are crucial in encouraging witnesses to provide evidence of assistance to such investigations. Such evidence needs to be as comprehensive and frank as possible. I am satisfied that disclosure of the records of interview in this matter otherwise than as foreshadowed in the letters to witnesses or NSW Health PD2006_007 could reasonably be expected to make it more difficult for health services to encourage witnesses in future investigations to be open and to provide all relevant information. 24 Clause 13(1)(b)(iii) requires that disclosure of the information would, on balance, be contrary to the public interest. This requires a balancing of the public interest in ensuring that members of the public have access to information held by government agencies, and the public interest in facilitating thorough investigations into complaints concerning delivery of health services. In my view, the public interest in maintaining the integrity of the public health system through the prompt and proper investigation of complaints and concerns about health professionals, is such that disclosure of the records of interview in this matter would be contrary to the public interest. 25 I am satisfied that the five Appendices at issue in this matter are exempt within the terms of cl 13(b) of Schedule 1 to the FOI Act. Since it is the nature of the documents, and not necessarily the content, that is the matter disclosure of which would meet the three requirements in cl 13(b), it is not practicable to delete material from the documents so as to meet s25(4) of the FOI Act. Having concluded that the documents are exempt under cl 13, I have not considered whether cl 7 would also apply. 26 The next issue to consider is whether the documents should be released. The general principles relevant to consideration of whether to exercise the residual discretion were outlined by O'Connor DCJ in Cianfrano v Director General, Premier's Department [2007] NSWADT 216 at [24] in the following terms: (1) The Tribunal must first ascertain whether the matter is exempt matter. (2) The Tribunal should only exercise the power to decline to refuse disclosing exempt matter where there are strong grounds justifying the overriding of the exemption. (3) The question of whether there are strong grounds should take account of the objects of the FOI Act as expressed in section 5. (4) Even in the case of matter that falls within one of the 'restricted documents' categories of exemption (see cll 1 (Cabinet documents), 2 (Executive Council documents) and 4 (Documents affecting Law Enforcement and Public Safety) of Schedule 1) the only absolute exemption arises where the Minister has granted a certificate pursuant to section 59. (5) In the case of restricted documents, particular account should be taken of the concern addressed by section 5(2)(b), that is, whether or not a restriction of access is 'reasonably necessary for the proper administration of government'. 27 Section 5 of the FOI Act sets out the objects of the Act and provides: (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.' 28 The applicant's solicitor submitted that liberal extracts of the statements are included and referred to in the Report, and that it is appropriate and proper that the applicant should have access to the statements relating to her treatment following her admission to hospital and the birth of her son. The respondent did not directly address the issue of the residual discretion. 29 Some of the material contained in the records of interview is summarised in the Report; other material is not. The significance to the applicant of the events that occurred during her hospitalisation and the birth of her son, and accordingly the documents containing relevant information, is clear. However, I am not satisfied that there are strong grounds to justify the overriding of an exemption which has already taken into account whether disclosure of the information would be contrary to the public interest. Orders Decision under review affirmed.