Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cheney v Mid North Coast Local Health District [2014] NSWCATAD 220 Hearing dates: On the papers Decision date: 12 December 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer, Senior Member Decision: (1) I affirm the decision of the Agency Catchwords: Government information public access - confidential health information - personal information of child Legislation Cited: Government Information (Public Access) Act 2009 Privacy and Personal Information Protection Act 1998 Health Records and Information Privacy Act 2002. Evidence Act 1995 Administrative Decisions Review Act 1997 Criminal Procedure Act 1986 Cases Cited: JY v Commissioner for Police, NSW Police [2008] NSWADT 306 Category: Principal judgment Parties: R Cheney ( Applicant) Mid North Coast LHD (Respondent) Representation: R Cheney (Applicant in person) Crown Solicitor's Office (Respondent) File Number(s): 133244 reasons for decision 1Mr Cheney is an inmate at Junee Correctional Centre. He was convicted of various crimes of which some of the evidence and related information pertaining to the victim are the subject of his application for government information. 2On 5 July 2012 Mr Cheney applied to the Mid North Coast Local Health District (the Agency) under the Government Information (Public Access) Act 2009 (the GIPA Act) for copies of: Records and reports of the alleged sexual assault of 'X.X. Yyyyyy' on 8 December 1993 / Hastings District Hospital File 11-99-11 1993. (now known as Port Macquarie Base Hospital NSW). 3A large number of specific records were referred to in an attachment to the application. These records related to the evidence gathering process and records by Police and Health, records relating to the treatment of the victim of the assault, including a large number of specified documents concerning medical procedures as part of that treatment. In addition documents related to police and forensic reports in connection with the matter were sought by the Applicant. 4The Agency identified seven documents as being within scope of the request. In its decision of 27 July 2012 the Agency decided to withhold access to all seven documents. On 15 August 2012 Mr Cheney sought a review of that decision by the Information Commissioner as a reviewable decision under section 80 (d) of the GIPA Act. 5The (Information Commissioner) review was conducted in the absence of an internal review by the Agency, and as such was reviewed in accordance with the provisions of section 89 (2) of the GIPA Act, which permitted an external review by the Information Commissioner in the absence of an internal review, if the applicant was the aggrieved access applicant. There is however some correspondence to indicate that there was some confusion as to whether the initial application to the Agency was a review, (as per Agency correspondence dated 9 July 2012). However, correspondence the following day clarified that the 5 July 2012 application was a fresh application. 6The Information Commissioner issued a report on 25 June 2013 that made findings and recommendations. The Commissioner was not satisfied that the Agency had adequately dealt with Mr Cheney's application, in that they had not adequately applied the public interest test to the information identified as being within scope, and had not met the provisions of section 61 of the GIPA Act in respect to its reasons for decision. 7On 4 July 2013 (following the Information Commissioner's Report) the Agency commenced an internal review of their earlier decision. On 17 July 2013 the Agency completed its review and identified 9 Documents in its schedule to the review. The Agency determined to withhold all of the documents and outlined the provisions under section 14 of the GIPA Act and the provisions of other legislation for refusing access to the documents. 8On 20 August 2013 Mr Cheney lodged an Application for a review of a reviewable decision with the Administrative Decisions Tribunal (ADT) under the provisions of section 100 of the GIPA Act. That review was of a decision to provide access or to refuse access to information in response to an access application in accordance with section 80 (d) of the GIPA Act. I take the view that the application to the Tribunal was lodged within the time specified by section 101(2) of the GIPA Act, having regard to the date of the Agency review decision being posted on or after 17 July 2013, with service effected in accordance with the Evidence Act 1995 making the application within time. In any event nothing has been raised by the parties on this issue. 9The Tribunal's function on review under s 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decision having regard to the material before it before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. 10The matter was listed for a number of Planning Meetings in the latter half of 2013, whereby the parties and Tribunal clarified the issues that remained in dispute, and set out a timetable for submissions and the filing of material in respect of the future conduct of the proceedings (a hearing or determination on the papers). 11At a Planning Meeting on 11 December 2013 a direction was made that: The matter is to be determined on the papers. 12This matter was commenced in the General Division of the Administrative Decisions Tribunal ("the ADT") pursuant to the Administrative Decision Tribunal Act 1997 ("the ADT Act"). On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of NCAT. However, because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of that Schedule). 13The GIPA Act objects are set out in section 3 of the Act. 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. 14In addition the long title of the Act provides that it is: An Act to facilitate public access to government information. 15Section 14 of the GIPA Act provides the circumstances whereby public interest considerations against disclosure of government information may be applied. Relevant to this application, the Agency relied on the provisions outlined below (being public interest considerations) against disclosure of some of the information. Relevantly section 14 and the Table provides (inter alia): 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section. (4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section). 16In refusing access to the information the Agency relied upon and applied significant weight to the following 'public interest considerations' as listed in the Table to section 14 of the GIPA Act. 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): (a) (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (e) (g) (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, 2 Law enforcement and security There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): (a) (a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant, (b) (d) .................... (d) endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person, (e) ................... 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) (a) reveal an individual's personal information, (b) (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002, (c) .................... (g) (g) in the case of the disclosure of personal information about a child-the disclosure of information that it would not be in the best interests of the child to have disclosed. 17The Agency has applied the provisions of Clause 3 (a) (b) and (g) of the Table to section 14 of the GIPA Act (as outlined above), as a public interest consideration against disclosure which (in their assessment) outweighs the general public interest consideration in favour of disclosure as outlined in section 12 of the GIPA Act. Grounds under Part 2 of the Table were also relied upon. 18The principles that apply to the application of the public interest considerations against disclosure (which can be taken into account when assessing whether to override the presumption in favour of disclosure), are set in section 15 of the GIPA Act. That section provides that: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 19In addition section 54 of the GIPA Act provides the following relevant provisions in respect of consultation. 54 Consultation on public interest considerations (1) An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that: (a) the information is of a kind that requires consultation under this section, and (b) the person may reasonably be expected to have concerns about the disclosure of the information, and (c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. (2) Information relating to a person is of a kind that requires consultation under this section if the information: (a) includes personal information about the person, or (b) concerns the person's business, commercial, professional or financial interests, or (c) concerns research that has been, is being, or is intended to be, carried out by or on behalf of the person, or (d) concerns the affairs of a government of the Commonwealth or another State (and the person is that government). Note. The requirement to consult extends to consultation with other agencies and other governments. See the definition of person in Schedule 4. ............ (4) The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection. (5) The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information. (6) If consultation establishes that a person objects to the disclosure of information but the agency decides to provide access to the information in response to the application, access is not to be provided until the agency has first given the objector notice of the agency's decision to provide access to the information and notice of the objector's right to have that decision reviewed, and is not to be provided while review rights on the decision are pending. (Emphasis added 2 (a)) 20Whilst an Agency is not entitled to place conditions in the use of any information, when determining an access application an Agency is entitled to take into account any relevant personal factors of the Applicant. 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73. 21I note that whilst the Respondent Agency now only relies on the provisions outlined in the table (above), in their review they raised a reliance in respect of some of the material on material dealt with in the Criminal Procedure Act 1986 . Whilst those matters are no longer pressed by the Agency, it appears that as they fall outside the provisions of Schedule 1 of the GIPA Act, then those matters are dealt with and caught by the provisions of section 11 of the GIPA Act. In any event, the similar information remains to be assessed in accordance with the relevant provisions in the Table to section 14. The Respondents Submissions 22The Respondent submitted that release of the information does not advance the objects of the Act, such as advancing a system of responsible and representative democratic government. The Respondent submits that the Applicant is only seeking counselling and medical records of two individuals that he was convicted of sexually assaulting. The Respondent therefore submits that the general public interest in favour of disclosure is minimal. He is not seeking information concerning how the evidence was complied, or how his matters were handled by police and the DPP. 23In respect of the section 55 considerations, the Applicant advises that he is seeking the information in order to apply to the Supreme Court for a review of his conviction. In respect of whether the Applicant's interest is a private interest in favour of disclosure, the case of JY v Commissioner for Police, NSW Police [2008] NSWADT 306 addresses this point. 48 In this case documents in issue contain information relating to the personal affairs of the individuals who made the statements, which information is intermingled with information relating to the personal affairs of JY and her child. 49 It is therefore necessary to determine whether the release of the documents containing personal information would be unreasonable. In Re Chandra and the Minister for Immigration and Ethnic Affairs (1984) 6 ALD N257 at N259 the Hall DP said 51 ... Whether a disclosure is 'unreasonable' requires, in my view, a consideration of all the circumstances, including the nature of all the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what section 41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties. 52 However, consistently with the stated object of the Act (see section 3); it is also necessary in my view to take into consideration the public interest recognized by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document. 50 In Saleam -v- Director General, Department of Community Services and Ors [2002] NSWADT 41 the President (O'Connor DCJ) having reviewed the authorities concerning the assessment of whether disclosure would be unreasonable concluded, at [48-50]: 48 The FOI Act sets a standard which is to apply as between citizens and government. Decisions to grant access under FOI should, to use an American expression, ordinarily be facially neutral. The theory, at least, is that once access is given under FOI to one citizen, any other citizen who makes the same request should have the same rights: see further Humane Society v National Parks and Wildlife Service [2000] NSWADT 133 at [26-31]. But some authorities do recognise that a point may be reached where the applicant may be able to demonstrate a personal need for the information that is of such strength as to amount to a public interest consideration in its own right: see Re Burns and ANU (No 2) (1985) 7 ALD 425 at 438-9; and generally Cossins, Annotated Freedom of Information Act New South Wales (1997), 313. 49 ... 50 For the reasons given, I consider that the FOI Act does not establish a scheme under which agencies can deal differentially as between third party applicants who make the identical request for someone else's personal records, and under which agencies can make varying calculuses as to the 'reasonableness' of disclosure in that way. ... 51 This decision was upheld on appeal: see Saleam -v- Director General, Department of Community Services and Ors [2002] NSWADTAP 30. 52 Uddin -v- Chief Executive Officer, South Eastern Sydney Area Health Service and Anor [2002] NSWADT 228 was a case in which a father of a child sought access to medical records relating to the birth of his child. Those documents contained personal information relating to the child and its mother. Deputy President Hennessy, in affirming a decision to refuse access, noted that the issue was "whether the relationship between the applicant and the person whose personal affairs are contained in the document ... affects the reasonableness of disclosure in this case." In following the decision in Saleam, she found that the fact that the Applicant was the father of the child did not, alone, make it reasonable for him to have access. 53 In Saleam the President acknowledged, based on the decision in Re Burns and ANU (No 2) (1985) 7 ALD 425, that there may be cases in which a private interest in obtaining access to personal information may amount to a public interest in its own right. In Re Burns Todd DP had earlier expressed the view, at [37], that: ... consideration of the public interest involved dual consideration of the interest of the public generally and of the interest of the public in the rights of an individual whose interests are or may be affected by the documents and thus by their disclosure or non-disclosure to him. 54 In adhering to that view the Deputy President referred to the decision in Re Peters and Department of Prime Minister and Cabinet (No 2)(1983) 5 ALN N306 where Morling J discussed the balancing of the public interest in granting access against that of preserving the confidentiality of ministerial advice. Todd DP explained at [39-40]: 39... But what is important is that his Honour clearly considered that there was a public interest in a citizen having such access in an appropriate case, so that if the citizen's 'need to know' should in a particular case be large, the public interest in his being permitted to know would be commensurately enlarged. But if, on the other side of the scales, the public interest in non-disclosure is somewhat less than is the case in other areas (such as that in fact obtaining in Re Peters), then the balance between the two aspects of the public interest may be, at the least, very close. 40 This conclusion is reinforced by reference to the decision, cited in Bayne Freedom of Information Law Book Co Ltd, 1984, of Jacobs J in Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 487, where Jacobs J said: "The words 'public interest' are so wide that they comprehend the whole field of objection other than objection founded on deficiencies in the application and in the required marking out of the land applied for. For instance the public interest may tell against the grant of a mining lease even though the particular interests of an individual are the only interests primarily affected. It may thus be in the public interest that the interests of that individual be not overborne. However, all the objections can be and should be related to the public interest. But private interests as such are not a relevant consideration." 55 In my opinion a consideration of these authorities points to the conclusion that a private interest may coincide with or equate to a public interest in disclosure, but it is the public interest, not the private interest, which is to be considered when balancing the competing interests in disclosure. That public interest in disclosure must be identified. The private interest may, as it does here, graphically illustrate the public interest, but it does not constitute it. 24The Respondent argued that the applicant's interest in the information is a private interest which does not coincide with, or equate to, any identifiable public interest. 25The Respondent further submitted that all of the non-released or withheld information was supplied in the context of the allegations and investigation and proceedings concerning the sexual assaults. Such matters are considered by the public to be of great sensitivity and requiring a necessary degree of confidentiality (as with any medical record of a third party). The Respondent submitted generally that individuals would be reluctant to submit for examination and consent to forensic procedures as victims if they knew that those medical examination records would be disclosed to the public. As a result release would significantly prejudice the supply of confidential information. 26Statements were provided by the Respondent in support of the decision to withhold the information. Those statements outlined previous attempts to access records by the Applicant, and the police and other legislative (including subordinate legislative) provisions relied upon to both process and withhold the information. I note that the Applicant elected to deal with the matter on the papers and has as a result waived any rights to question the statement makers about the efficacy and other matters relating to the content of the statement. 27The respondents submissions on the other grounds relied upon were straightforward, having regard to the matters concerning the health information of a child, and the significant weight that would attach to the wording of clause 3 (g) of the table. The Applicants Submissions 28The Applicant filed two documents by way of submissions in response to the submissions of the Respondent. Those documents contain submissions and separate attachments A - F (inclusive). I note that at page 5 of the submissions dated 25 November 2013 the Applicant sets out at paragraph 12. (i) (ii) and (iii) what he is actually seeking. Those matters differ significantly from what was sought in his initial application (see paragraph 2 above) and now seek information from within the initial 'general' pool.. 29The Applicant's submissions essentially revisit the matters outlined by the Respondent, but infer that the motives for seeking the material are well intentioned (in respect of establishing the truth and overturning his conviction) and essentially therefor have a public interest purpose. The attachments comprise the results of earlier applications for information during the period 2003 to 2012, as well as select copies of decisions of the District Court and Court of Criminal Appeal which the Applicant submits are (in effect) on point with his circumstances. Consideration 30This is a case whereby the weight that can be applied to the provisions in the Table to section 14 of the GIPA Act in my view is significant. Whilst the Applicant does not seek identification details in the documents, much of the sensitive information (and it's source) is already known to the Applicant. In my view for the reasons outlined above, any one of the significant grounds relied upon by the Respondent, would in this particular application, provide grounds to attach significant weight to there being a public interest consideration against disclosure, significant to override the general public interest consideration in favour of disclosure. 31In support of this, I attach significant weight to the fact that the majority if not all of the information could be classified as Health Information in accordance with the definition of the Health Records and Information Privacy Act 2002. The information is clearly also personal information as defined in section 4 of the Privacy and Personal Information Protection Act 1998. The information is however information concerning a child (at the time it was collect and the records made), and irrespective of the finding of guilt or otherwise against the Applicant, the information relates to an extremely serious and sensitive matter, which the public would believe should be afforded significant protection. On review it would be open to a decision maker to determine that this type of situation is the type contemplated by the legislature in determining that the relevant provisions in the Table should be included in the GIPA Act, notwithstanding the objects and general presumptions of that Act about the release of government information. 32I note at Guideline 3, 3.2 published by the Information Commissioner, there is a reference to the management of certain government information (of the kind described in item 3 to the Table to Section 14 of the GIPA Act). Whilst not entirely on point with this application, it does provide some insight into what weight should be given to some types of personal information, having regard to the fact that once the decision to release the information is made, the release of that information is unconditional. I reiterate my earlier comments in respect of the release of personal, and in particular health information of a child. When one considers the overall context of how and why the information was collected, and having regard to the terms of Guideline 4 and 5 issued by the Information Commissioner under the provisions of section 14 (3), and noting Guideline 3, in my view significant weight attaches to the public interest consideration against disclosure so as to override the presumption in favour of disclosure under sections 5 and 12(1) of the GIPA Act. Conclusion 33In light of the above I determine that the correct and preferable decision is to make the following order: (1)I affirm the decision of the Agency. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 19 December 2014