Altaranesi v Sydney South West Area Health Service [2011] NSWADT 43

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Altaranesi v Sydney South West Area Health Service [2011] NSWADT 43 Hearing dates: 17 September 2010 and 8 October 2010 Decision date: 03 March 2011 Jurisdiction: General Division Before: P Molony, Judicial member Decision: The deemed decision to refuse Mr Altaranesi access to documents is affirmed. Legislation Cited: Administrative Decision Tribunal Act 1997 Freedom of Information Act 1989 Interpretation Act 1987 Freedom of Information (Fees and Charges) Order 1989 Cases Cited: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Department of Treasury and Finance v Kelly 920010 4 VR 595,; [2001] VSCA 246 Re Shewcroft and Australian Broadcasting Corp (1985) 2 AAR 496 Cianfrano v Premier's Department [2006] NSWADT 137 Challita v NSW Department of Education and Training (GD) [2009] NSWADTAP 70 Texts Cited: Pearce & Geddes, Statutory Interpretation in Australia, (6th Ed) Butterworth's Category: Principal judgment Parties: Tareq Altaranesi (Applicant) Sydney South West Area Health Service (Respondent) Representation: Counsel : A Britt (Respondent) T Altaranesi (Applicant in person) File Number(s): 103029

reasons for decision

Background 1On 8 December 2009 Mr Altaranesi faxed an application for access to information under the Freedom of Information Act 1989 (the Act) to the Sydney South West Area Health Service (SSWAHS). The application was in form of a letter. A copy is annexure 'TA1' to Mr Altaranesi' affidavit filed on 7 July 2010. The letter requested that the agency not disclose his health information, and included the following paragraph - "I apply today, under Freedom of Information Act to get the copy of all my files of Workers Compensation Ms Mary McAllister, Dr. Nossar, Mr Derek Wysocki, Human resources Dept, and others are holding." 2On 9 December 2009 Mr Altaranesi again wrote to the SSWAHS (TA3) referring to his previous letter. He attached this letter to a formal application under the Act (TA4) that referred back to the letter for particulars. Included, was a money order for a concessional fee. The respondent says this was received by fax on 11 December and by post on 14 December 2009. Mr Altaranesi relevantly advised - "Form of access is:- Inspect the document sand Copy them. The documents required: 1 - My entire file in the Environmental Service and Corporate services Department of RPAH (includes employment and works compensation issues). 2 - My entire file in Human Resources Department of RPAH. (Includes personal information they are holding, employment and works compensation issues). 3 - My entire With Ms. Mary McAllister [Rehabilitation Coordinator of RPAH]. Regarding all compensation claims, including all assessments and medical & referrer (sic) reports. 4 - My entire file with Dr. George Nossar, HR of RPAH. [including all compensation claim and his previous assessments for me]. 5 - My entire file with Mr Meheran and Mr Derek Wysocki, [Compensation office in RPAH]. [Including all documents of compensation claim]. 6 - My entire file, Ms Whalan is holding. [Including employment and compensation claim]. 7 - other files regarding all works (sic) compensation claim (sic), RPAH or SSWAH are holding." 3On 14 December 2009 Ms Sonia Makira, Area FOI Coordinator, acknowledged receipt of Mr Altarenesi's correspondence and asked him to provide certified copies of his proof of identity. A certified copy of his health care card was also requested to verify his entitlement to a concessional fee. 4On 16 December 2009 Mr Altaranesi wrote to the respondent as follows (TA7) - "Regarding my request for the documents as indicated in your letter of 14 December 2009, please amend it to be include also the electronic file (computer files) created for me by Mr. Harding, Mr. Chris Leahy, Ms Mary McAllister (all emails and faxed exchanges between her and, Meheran, Derek, Jan Whalan, Chris Leahy, bob Harding and insurer: Employer Mutual Limited), Dr. George Nossar, Mr Meheran, Mr Derek Wysoki, Human Resources Dept. and Ms Whalan. And also seek Personal Information Cards or file, the HR, Environmental Svc, Dr Nossar and Mr Leahy are holding." He enclosed an uncertified copy of his health card with the card number and his address deleted. This was received by fax on 16 December and by post on 21 December 2009. 5On 22 December 2009 Ms Makira replied in a lengthy letter (TA11). Relevantly she advised - "... this new re-scoped application, dated 16 December 2009, is now regarded as a new application, which will result in a new time limit arising (21 days from the receipt of your application no new application fee has been charged, - as an application fee was received with your letter dated 9 December (received 14 December 2009)... However, please be advised that after preliminary review of your amended request, I have determined that its scope is too broad for Sydney South West Area Health Service (SSWAHS) to process in its current form. In my opinion, it would unreasonably divert this agency's resources from its core functions. Under section 25(1)(a)) of the FOI Act and agency may refuse access to documents: ... if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency's resources away from their we by the agency in the exercise of its functions. By way of explanation, as your application of 16 December 2009 is currently worded, I have estimated that the amount of time to search for, retrieve and manually assess the documents including each of the staff members (you have listed above) to search through their e-mails will be in excess of 65 hours. These hours would not include the time required to process the application, such as determining whether the documents are within scope, photocopying, consulting with third parties, scheduling the documents, making a determination and the general administration of the FOI process. By refining your request of 16 December 2009, SSWAHS should be able to conduct appropriate searches; and it will also assist in keeping the processing costs to a minimum. Should you wish to limit or clarify the scope of your application, please advise me in writing . 6Mr Altaranesi replied on 23 December 2009 by fax (TA12.) He expressed his frustration at the way his application was being dealt with. He said that his 'main application is as indicated in the FOI application form,' He said he 'did not add anything more than mentioned in my application.' The application was as initially stated in his letters of 8 and 9 December. The letter of 16 December simply provided a 'more specific explanation in order to help you in locating the documents required (manually and electronically).' The letter concluded - "I look forward to hear the following:- 1. Determination decision according to the application of FOI dated 8 and 9 December followed by my explanation of, where these documents are kept. (Without re - scoping the application as you said). ... 7On 24 December 2009 Mr Altaranesi attended at RPAH. He says that he sought to produce his ID to Ms Pan. While there are differences as to what then occurred, with SSWAHS saying that Ms Pan advised him that she was not authorised to deal with him, there is agreement that she did not note his ID. Mr Altaranesi put his view of what occurred in a letter to Ms Makira dated that day (TA13 and SM14). 8On the same day Ms Makira again wrote to Mr Altaranesi (TA14). Ms Makira noted that Mr Altaranesi had sent in a copy of a certified copy of his health care card which was illegible (her faxed copy was - see exhibit SM 11 to her affidavit), and required production of the original certification. Her letter continued - "As per my letter of 22 December 2009, you were advised that after preliminary review of your amended request, I determined that its scope was too broad for Sydney South West Area Health Service (SSWAHS) to process in its current form, and in my opinion; it would unreasonably divert this agency's resources. A detailed explanation was given, as we 22 a request that you re-scope your application, in my letter of 22 December 2009. Notwithstanding my request, you advised that you would not reduce the scope of your application, as per your faxed letter of 23 December 2009. I am again giving you an opportunity to reduce the scope of your application, dated 16 December 2009. " 9Mr Altaranesi says that he replied on 30 December 2009 (TA15) as follows- I refer to the application to inspect and get a copy of some document under FOl Act on 9 th December 2008. Please be noted that this application is for personal affairs and this application is constitutional completed. And for the IDs, as I said in previous occasion expressed to show the IDs for you by myself and I visited RPAH to show them to Ms. Ellaine Pan without taking a photos of them, but she refused, plus I told you that I am ready to show them to you at any time. (Although my IDs, you are holding as I am ex-employee). You even refused to get my phone or contact me. I am looking to hear of the date of inspection and copying of these documents. And please noted that, As I said in my letter of 30 December 2009, don't join the application of 9 Dec. with my letter of 16 Dec. particularly after you are imposing impracticable decisions, my application of 9 December has to deal separately, and the letter of 16 December has to be dealt separately too; I have sent my request to provide me with the form of FOI application for my request of electronics file (mentioned in letter of 16 Dec. 09). Regarding your decision of making the main application of 9 Dec. 09 and letter of 16 Dec. 09 into one application, subsequently led to your decision as it is broad of access, I am still waiting your direction of how will I make the Internal Review for this decision. I look forward to hear from you, if you have any queries, please contact me.. 10On her return to work, after the Christmas break, Ms Makira found three faxes from Mr Altaranesi. The first, bearing a fax time of "24.12.2009 15:22", consisted of two pages: a cover page showing it was from "TAREQ". That page bore a fax number with the comment "Confidential". The second page was Mr Altarenesi's letter of 24 December 2009 (TA13 and SM14). The second fax (SM 15) bore the time of "30/12/2009 10:04" and consisted of five pages. The first was a cover page showing it was from "TAREQ" with the same fax number and the comment "Confidential". The next four pages were blank apart from the fax imprint bearing the time, the page number, the word "TAREQ," and the same fax number. The third fax (SM16) is identical to the second fax. 11On 11 January 2010 Mr Altaranesi wrote to the Ms Makira, again by fax, referring to his application of 9 December 2009. He continued - " I refer to your letter dated 24 December 2009, which I received it today by registered main No. 591681013, please do the following to avoid exhausting your and my time in processing a simple request:- 1. To avoid scoping or re-scoping etc... At this time I need you to rely only on my request of access under FOI Act, dated 9 December 2009, I can consider and rely on my request of 9 December 2009 not 8 December 2009, as the letter of 8 December was initially addressed for others purposes plus my request for FOI . (Please disregard my request of 101 dated 8 December 2009 not other issues mentioned in this letter). I think it is cleared for you. I am still waiting the date of when can I come to inspect and you copied it. 2. For my request of 16 December 2009 to "amend my application to be also include the electronically files (not manually file)" which you decided that this request is significantly increased my request for document, and was a new scope to my request of 9 December 2009 and it is too broad for SSWAHS relied on s25 (1)(a1) of FOI Act. Please NOTE that I am applying for review for this decision. Please provide me with the form required and conditions of review which it must be calculated as of today 30 December 2009. (And the reviewer should be except Jan Whalen as there is conflict of interest with me). I am re-applying with a new separate application to access to personnel affair document concerning myself the following electronics files: a. Electronic file created by Bob Harding, Silvio Mennillo, Gisela Travers and Environmental Services Department for Employment, grievances and Works Compensation), this includes emails exchanges between Mr Harding, Silvio Mennillo, Ms Travers, Jan Whalan, Jacqui Clark, Jackie Mills, Greg Driver and Chris Leahy. b. Electronic files and faxes created by Corporate Services Manager of RPAH concerning my employment and works compensation including emails exchanged between him/ her and human resources, Dr. Nossar, Jan Whalan and Jacqui Clark. c. Electronic files and faxes created by Ms Mary McAllister, Mr. Meheran and Derek Wysocki. Regarding Works compensation, including emails exchanged between them, Insurer, Bob Harding, Jan Whalan and Chris Leahy. d. Electronic files created by Jan Whalan regarding employment, works compensation and grievances, including emails exchanged between her and Chris Leahy, Greg Driver, Bob Harding, Jackie Mills, Gisela Travers, George Nossar and Mary McAllister. e. Electronic files created by Mr. Greg Driver regarding employment and works compensation and grievances, including emails exchanged between him and Bob Harding, Gisela Travers, Chris Leahy, Jackie Mills, Jan Whalan, Jacqui Clark, George Nossar and Mary McAllister. f. Electronic files created by Human Resources Manager of RPAH, including emails exchanged between him/ her with Jan Whalan, Greg Driver, Jacqui Clark, Di Gill, Chris Leahy, Mary McAllister, George Nossar, Bob Harding, Gisela Travers and others. (Regarding employment, grievances and works compensation). g. Electronic files created by Dr. George Nossar (RPAH) concerning my employment, works compensation, medical assessment, including emails exchanged between him and Bob Harding, Jackie Mills, Corporate services Manager of RPAH, Mary McAllister, Di Gill, Greg Driver, Jan Whalan, Jacqui Clark and Insurer. I am looking forward to start the processing this application as of 30 December 2009, until you send to me an application form to me to fill it down and attached with the necessary required. I think the matter become easier for you for processing, and I brief the above in the following:- 1- My application of 9 December 2009 must be processed without re-scoping or linking to letter of 16 December, particularly after explanation above.. 2 - I am applying for review your decision regarding my letter of 16 December 2008 that it was too broad for SSWAHS relied on s25 (1)(a1) of FOI Act. I am looking to provide me the application form of review and conditions of the review as of today 30 December 2009. 3 - I am applying with new application to access under FOI, please start as of 30 December 2008 until you send an application form under FOI then I will send it with all required. For my request of the new application, if you have any further queries or information regarding my request, please Contact me, and I remind you I don't like to disclose my personal information for you, and my all IDs or original paper are ready for seeing it (without sending the original for you) and take notation of them putting in my applications file without copying it. (I am ready to show them to you wherever and whenever you like). I look forward to hear from you. 12Ms Makira declined to break up Mr Altarenesi's amended FOI request as it related to similar information, albeit from some different sources. On 21 January 2010 she wrote to Mr Altaranesi (SM18 and TA17) refusing his application to access for information under s 25(1)(a) of the Freedom of Information Act 1989 on the ground that the work involved with the application would be a substantial and unreasonable diversion of the agency's resources. She explained - "I have determined that the scope of your request is too broad for SSWAHS to process. In my opinion, it would unreasonably divert this agency's resources from its core functions. Under section 25(1)(al) of the FOI Act, an agency may refuse access to documents:... if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions.' She advised Mr Altaranesi of his right to seek an internal review of that decision. 13Mr Altaranesi says he received this letter on 28 January 2010. He responded on that day, again by fax, seeking an internal review and paid the appropriate fee by mail order. This was sent by registered post. The SSWAHS says it was received on 1 February 2010. 14Mr Altaranesi disputes this relying on the registered post record (Exhibit A2). This indicated that an article addressed to "Sonia Makiara / Area FOI Coord, SSWAHS, Locked Bag 7017, Liverpool" was sent by Mr Altaranesi on 28 January 2010. It was signed for as received, by an agent of the addressee, on 29 January 2010. I note that 29 January 2010 was a Friday. The next working day was Monday, 1 February 2010. 15Ms Makira acknowledged receipt by letter dated 2 February 2010 (SM22). 16On 12 February 2010 Mr Altaranesi lodged an application for review in this Tribunal on the basis that there had been a deemed refusal on internal review. 17The internal review was considered by Ms Roberts and dated 15 February 2010. It affirmed the decision to refuse Mr Altaranesi access to the documents requested on the basis that the work involved in dealing with the request would constitute an unreasonable diversion of resources. 18Mr Altaranesi's application to the Tribunal was first listed before me for a planning meeting on 20 April 2010 when there was considerable dispute as to the course of events, and whether the decision subject to review was a deemed refusal or that made by Ms Roberts. There was, however, agreement that the issue at the heart of the matter concerned the unreasonable diversion of resources. 19After two further planning meetings the matter was listed for hearing on 17 September 2010. The hearing was not completed on that day and it was adjourned part hearing to 8 October 2010, when the hearing was completed and I reserved my decision.