Marden v Pharmacy Council of New South Wales [2017] NSWCATAD 34

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Marden v Pharmacy Council of New South Wales [2017] NSWCATAD 34 Hearing dates: On the papers Date of orders: 19 January 2017 Decision date: 19 January 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member Decision: (1) The first respondent's decision to provide access to information in the Notification (complaint) form by creating a new record in which the handwritten text is redacted and, where access has been granted to the information, replaced with typed text containing that information, is affirmed. (2) The first respondent's decisions to refuse to provide access to information, and to provide access to information, are set aside and the following decisions are made in substitution: a. The provision of access to the following information is refused: the information in the responses to the second part of question 2, to questions 3 to 5 (including the first nine words of the marginal comment) and to questions 16 and 23; information in the first sentence in response to question 21; the handwritten information in Section E other than the date; the fifth to ninth words and signature in the comment beginning "Please note" on a separate page; and the information constituted by the complainant's handwriting. b. Access is to be provided to the remainder of the information sought by the applicant. (3) The first respondent is to provide the applicant with access to information in accordance with Orders 1 and 2, on 17 February 2017. Catchwords: GOVERNMENT INFORMATION – Personal factors of application favouring disclosure – Applicant is pharmacist the subject of a complaint to which access is sought – Complainant has objected to disclosure including disclosure of complainant's identity - Public interest in applicant being provided with her personal information – Public interest in obtaining information to which individual entitled as matter of procedural fairness - To what extent information sought is applicant's personal information – To what extent applicant is entitled to information as a matter of procedural fairness – Procedural fairness only requires disclosure of substance of complaint - Public interest considerations against disclosure – Disclosure could reasonably be expected to reveal complainant's personal information – Whether scheme concerning the handling of complaints under the Health Care Complaints Act 1993 (NSW) has the effect that the complainant's information is not personal information - Whether the decision to refuse access to information is inconsistent with that scheme – Whether complainant knew that complainant's identity would be provided to applicant at time of making complaint – Public interest consideration against disclosure of complainant's personal information outweighs considerations in favour of disclosure of that information – Applicant otherwise entitled to access information in complaint Legislation Cited: Government Information (Public Access) Act 2009 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Administrative Decisions Review Act 1997 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Freedom of Information Act 1989 (NSW) (repealed) Cases Cited: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 Cousins v Ambulance Service of New South Wales [2014] NSWCATAD 48 Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 Kioa v West (1985) 159 CLR 550 Marden v Pharmacy Council of New South Wales [2015] NSWCATAD 230 Marden v Pharmacy Council of NSW [2016] NSWCATAD 86 Nasr v New South Wales (2007) 170 A Crim R 78; [2007] NSWCA 101 New South Wales Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55 Raven v The University of Sydney [2015] NSWCATAD 104 Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 Shvetsova v University of New England [2015] NSWCATAD 49 Category: Principal judgment Parties: Judith Marden (Applicant) Pharmacy Council of NSW (First Respondent) Complainant (Second Respondent) Information Commissioner (Exercising right to appear and be heard) Representation: Solicitors: K Mills (Applicant) Pharmacy Council of NSW (First Respondent) Complainant in person (Second Respondent) Office of the Information Commissioner (Information Commissioner) File Number(s): 1410583 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), the disclosure of the Second Respondent's name is prohibited and the publication of the redacted paragraphs in the published version of this decision is prohibited.