Turner v Justice & Forensic Mental Health Network [2016] NSWCATAD 265

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Turner v Justice & Forensic Mental Health Network [2016] NSWCATAD 265 Hearing dates: 14 March 2016; 31 March 2016; 2 May 2016 Date of orders: 21 November 2016 Decision date: 21 November 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: (1) The decision under review is varied to incorporate the further decisions taken by the Respondent in September 2015 and December 2015. (2) The decision as varied is affirmed. Catchwords: ADMINISTRATIVE LAW – access to government information – access application – reasonableness of searches - excluded information Legislation Cited: Government Information (Public Access) Act 2009 Cases Cited: Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464 Mino v Legal Aid NSW [2015] NSWCATAD 245 Category: Principal judgment Parties: Donovan Bruce Turner (Applicant) Justice & Forensic Mental Health Network (Respondent) Representation: Counsel: L Doust (Respondent)

Solicitors: D Turner (Applicant in person) Curwoods Lawyers (Respondent) File Number(s): 1510399

REASONS FOR DECISION 1. The Respondent is an agency which provides health care to people in the adult correctional environment; in courts and police cells, to juvenile detainees, to those within the New South Wales forensic mental health system and in the community. The Applicant is a former patient of the Respondent. 2. The Applicant made an access application to the Respondent pursuant to the Government Information (Public Access) Act 2009 ("the GIPA Act"). In his access application dated 10 February 2015 he sought: (a) Regarding disclosure of material while held in correctional custody to 2009 – 2015 period: (i) psychiatric records; and relevant information (ii) records; and relevant information of physical injuries (iii) doctor's and optometrist's records and information to eye injury (b) Regarding disclosure of material associated to (NSW Police Force Sutherland Police); and Hurstville Crime Scene Unit (FSG) Forensic Services Group to their investigation held 30.05.2008 and any other held concerning Donovan Turner for 2008; noting possible corrupted forensic evidence to a "2007" alleged offence. (i) 1. Fingerprint evidence This evidence may be recorded upon document Forensic Examination Request Form (date unknown) 2008, as "Job No. J" (ii) 2. Physical evidence This evidence may be recorded upon document Forensic Examination Request Form (date unknown) 2008, as "Job No. J" (iii) 3. P967 Person DNA Request Form (date unknown) 2008 (18.6.2008?) Concerning incident 29.05.2008 … (c) Regarding disclosure for material and information to: (i) Inner ear Infection (ii) Dentist/s (iii) Buccal swab/s (iv) GIPA lodgement(s) (v) Forensic evidence receives; and analysed by laboratories/services/any other (vi) alleged "sexual element" by DPP at District Court Syd. 2008 Mention (d) Request disclosure of ALL information; and material rightfully owed to the Applicant under GIPA Act 2009; and any other written or unwritten law. … (e) NSW Police had falsely claimed that Turner had a diagnosed "Schizophrenia" illness and thus associated the disorder to the offence. Any information and material relevant is thus requested to be disclosed. 1. The Applicant also provided additional information as clarification of the request. 2. In a notice of decision dated 19 March 2015 the Respondent's reviewer identified the information requested under six categories: "1 Copies of all Psychiatric reports from Jan 2009 to present date, 2 Records and relevant information of physical injuries during Jan 2009 to present date, 3 General Medical and Optometrists reports re eye injury, 4 Materials allocated to NSW Police and Hurstville Crime Sutherland, 5 Investigation report from the Forensic Services Group as of 30 May 2008, and 6 Any and all reports pertaining to you" 1. The reviewer found: Your access application is not valid as required under s 41(1)(e) of the GIPA Act as it does not include such information as is reasonably necessary to enable the government information applied for to be accepted Your request deemed to be too broad and invalid. 1. However, the reviewer also confirmed that the Respondent did not hold some of the requested information. The reviewer stated: Upon preliminary assessment, I can confirm that we do not possess any of the following information • Psychiatric reports from Jan 2009 to present date, you may wish to submit a separate application to Corrective Services NSW (CSNSW) to obtain a copy of it • Investigation report from the Forensic Services Group as of 30 May 2008, and • Materials allocated to NSW Police and Hurstville Crime Sutherland, you may wish to submit a separate application to NSW Police to obtain a copy of it 1. The Applicant asked the office of the Information and Privacy Commissioner ("the IPC") to conduct an external review of the Respondent's decision. The IPC did not agree with the Respondent's decision that the access application was invalid. The IPC Review Officer stated: The remaining three items listed in the notice of decision do not appear to accurately reflect the information requested by the Applicant. For example, the notice of decision describes information requested as 'any and all reports pertaining to the Applicant'. This appears to be a narrower categorisation than that described by the Applicant on page 3.1 of his attachment which describes a request for 'all information and material' which appears to encompass more than just reports. This is a broader but still identifiable category of information. Therefore it does not appear that the application is invalid under section 41(1)(e) of the GIPA Act and the Agency's decision is not justified. 1. The IPC Review Officer recommended that the Respondent reconsider its decision by way of an internal review. 2. The Respondent's Manager, Information Management, Mr Marcin Pasternak undertook the internal review. In his internal review determination Mr Pasternak stated: 3.1 Notice of decision Under s.60.1(b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information (FOI) Act 1989. Health Records Information and Privacy Act (HRIPA) application received by JH&FMHN dated 28th February 2011. • Documents requested: All mental health notes from JH&FMHN staff between March 2009 to 2011. • Documents were received by Mr Donovan Turner on 14th September 2011. GIPA Application via the Department of Premier and Cabinet (Ref: DPC11/01685) received by JH&FMHN dated 25th August 2011 (Our Ref: DG21064/11) • Documents requested and provided: Full records of all reports, information and documentation from health staff regarding psychiatric and psychological (if available) and physical health records related to Mr Turner's stay in custody from the period of March 2009 to August 2011 from prisons Wellington, Bathurst, MRRC, Dawn de Laos and Goulburn. • GIPA application deemed valid on 9th September 2011. I have decided under s.58(1)(a) of the GIPA Act, to provide access to the information sought in your access application. Attached to this Notice is a Schedule of Documents that will be released. 1. The Schedule of Documents attached to the determination referred to the Applicant's Health Record and indicated that there were no public interest considerations against disclosure of that information. 2. The Applicant was not satisfied with the determination and has sought external review in the Tribunal. He cited the following grounds: The agency had concealed/tampered with information in contravention to Crimes Act 1900 s.308A; B and s.307C(1)(a)(b)(c); and GIPA Act 2009 s.3(1)(a)(b)(c) (2)(a)(b). The material is necessary for "Leave" CCA Appeal." 1. During the course of the proceedings in the Tribunal, seemingly as a result of the intervention of its external legal advisors, the Respondent identified that it held further information falling within the scope of the access application. It produced additional information to the Applicant as follows: a. By letter dated 29 September 2015 the Respondent produced 2 volumes of the Applicant's Health Record; b. By letter dated 21 December 2015 the Respondent determined to produce further documents concerning the Applicant that it had located on its Total Record Information Management system ("TRIM") and in its Patient Administration System ("PAS"). 1. However, the Respondent also determined that the access application was not valid to the extent the Applicant had sought documents relating to complaint investigation processes referred to in Schedule 2 to the GIPA Act. 2. The Respondent does not contend that Mr Pasternak's internal review determination is the correct and preferable decision. Rather it contends that since the review has been on foot, it has made two decisions which, when taken together, constitute the correct and preferable decision in respect of the application. The Respondent submits that if the Tribunal is satisfied that those decisions, taken together, constitute the correct and preferable decision in respect of the access application, it could vary the review decision and make a decision consistent with those decisions.