CWF v Arndt [2017] NSWCATAD 251

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CWF v Arndt [2017] NSWCATAD 251 Hearing dates: 13 June and 10 July 2017 Date of orders: 15 August 2017 Decision date: 15 August 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: C Ludlow, Senior Member Decision: Within 30 days of the publication of these reasons, the respondent is to provide the applicant with access to her health information by giving the individual a copy of the health information. Catchwords: ADMINISTRATIVE LAW – health information – information held by private sector person – whether disclosure of the health information would pose a serious threat to life or health Legislation Cited: Health Records and Information Privacy Act 2002 Civil and Administrative Tribunal Act 2013 Freedom of Information Act 1989 Government Information Public Access Act 2009. Cases Cited: Australian Vaccination Network v Department of Finance and Services [2013] NSWADT 60 Category: Principal judgment Parties: CWF (Applicant) Eileen Arndt (Respondent) NSW Privacy Commissioner (Interested Party) Representation: Counsel: Ms J D Williams (Respondent)

Solicitors: Legal Aid (Applicant) HWL Ebsworth (Respondent) File Number(s): 2016/378535 (1610783)

reasons for decision 1. The applicant CWF made an application to this Tribunal for an inquiry into a matter which was the subject of a complaint made to the NSW Privacy Commissioner under s 48(1) of the Health Records and Information Privacy Act 2002 (the HRIP Act). 2. The applicant's complaint was that Dr Eileen Arndt had failed to provide copies, on request, of the applicant's health information. Dr Arndt relied on an exemption under s 29 of the HRIP Act which provides: "A private sector person is not required to provide an individual with access to health information relating to the individual held by the private sector person if: (a) providing access would pose a serious threat to the life or health of the individual or any other person and refusing access is in accordance with guidelines, if any, issued by the Privacy Commissioner for the purposes of this paragraph…" 1. The Privacy Commissioner issued a report on 25 October 2016 in which she stated she was unable to express a view as to whose position regarding the complaint should prevail. The applicant applied to the Tribunal for an inquiry into the complaint. 2. The NSW Privacy Commissioner was represented at the first day of hearing but not on the second day, and filed written submissions. 3. At the commencement of the hearing, Dr Arndt's legal representatives sought to adduce late evidence. This was opposed by the applicant. The Privacy Commissioner, who was represented on the first day of the hearing, submitted that the Tribunal should have access to all possible relevant information. Given that the proceedings concerned whether access would pose a serious threat to the life or health of the applicant or any other person, I determined that the majority of the evidence should be admitted but adjourned the latter part of the proceedings to allow the respondent to respond to that evidence. 4. The respondent sought that the medical evidence be heard in the presence of legal representatives only, to avoid unnecessary disclosure of the confidential information to the applicant. I was satisfied that this was desirable, given that the evidence was confidential, and for the applicant to hear some of the evidence during the hearing might render the inquiry futile if I should determine that the exemption under s. 29 of the HRIP Act was established. Consequently an order to that effect was made under s. 49(2) of the Civil and Administrative Tribunal Act 2013.