Adams v Health Care Complaints Commission

[2025] NSWCATAD 125

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Adams v Health Care Complaints Commission [2025] NSWCATAD 125

Hearing dates:

12 May 2025

Date of orders:

03 June 2025

Decision date:

03 June 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Redfern PSM, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW — Access to government information – whether excluded information – whether access application valid

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Health Care Complaints Act 1993 (NSW)

Cases Cited:

Beregi v Department of Planning, Industry and Environment [2020] NSWCATAP 185

Christopher v Independent Commission Against Corruption [2021] NSWCATAD 256

Crewdson v Central Sydney Area Health Service [2002] NSWCA 345

DNM v NSW Ombudsman [2019] NSWCATAP 77

HP Mercantile Pty Limited v Commissioner of Taxation [2005] FCAFC 126

Texts Cited:

None

Category:

Principal judgment

Parties:

Charlie Adams (Applicant)
Health Care Complaints Commission (Respondent)

Representation:

Applicant – (Self Represented)
A Boehm (Respondent)

File Number(s):

2025/00042903

Publication restriction:

Nil

REASONS FOR DECISION

1. The applicant, Mr Charlie Adams, seeks administrative review of a decision of the respondent, the Health Care Complaints Commission (HCCC), in relation to an application for access to certain information lodged by him on 13 December 2024.

2. The access application sought information regarding the investigation and handling of Mr Adams’ complaint against a health practitioner. The application was made pursuant to the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act).

3. By letter dated 20 December 2024, the HCCC wrote to Mr Adams and advised that his application was not a valid application under to s 43 of GIPA Act. Mr Adams requested an internal review of this decision. The internal reviewer conducted a review and made a decision dated 17 January 2025, affirming the original decision. Mr Adams lodged an application for review on 3 February 2025. There is no dispute, and I am satisfied, that the application for review was lodged within the prescribed period and that the Tribunal has jurisdiction to conduct this review under s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act)

4. Mr Adams represented himself and Ms Boehm, legal officer, represented the HCCC. Procedural directions were made by the Tribunal for submissions and evidence and, on the day before the hearing, Mr Adams notified the Tribunal about a change in scope in relation to his request. This change in scope was discussed at the hearing and is outlined below.

5. I have affirmed the decision under review for the following reasons.

Background

6. On or about 9 February 2024, Mr Adams submitted a complaint form to the HCCC about a health practitioner. Mr Adams contends that he requested the health practitioner to complete a medical certificate for Centrelink, being a request on a form referred to as “SU-684”. He further contends that this form is used to notify Centrelink of a new medical condition or update on an existing medical condition. In his complaint, Mr Adams submitted that the form SU-684 requires the health practitioner to report on the diagnosis and medical facts relating to the condition of the person who is the subject of the form.

7. The health practitioner did not complete the form at Mr Adams’ request. Mr Adams complained that the health practitioner wrongly claimed that Mr Adams had requested a Centrelink medical certificate for a three-month work exemption. Mr Adams further complained that the failure of the health practitioner to complete this form on his behalf affected his capacity to work or his eligibility for benefits.

8. Mr Adams complaint was investigated and by letter dated 11 March 2024, a senior assessment officer advised Mr Adams about the outcome of the assessment of the complaint. Mr Adams requested a review of the assessment outcome and, by letter dated 10 July 2024, Mr Adams was advised of the outcome of the review. He was advised that the HCCC could not identify a basis for further action. Mr Adams submitted a further complaint dated on or about 15 July 2024 and was informed of the assessment outcome concerning that complaint by letter dated 9 August 2024. Mr Adams was advised that the HCCC, in consultation with Medical Council of NSW, had determined to take no further action. It was suggested that, if Mr Adams remained unsatisfied with the complaint handling process, he could complain to the NSW Ombudsman. He was provided with the relevant details for the website.

9. Mr Adams’ request was as follows:

I am requesting access to all correspondence, documents, emails and records of communication between the Health Care Complaints Commission (HCCC] and [health professional], as well as any correspondence involving Danika De Palo regarding the investigation and handling of my complaint against [health professional], and file numbers [XXX]. This request includes, but is not limited to, correspondence exchanged during the assessment and review processes conducted by Danika De Palo, as well as the review of the decision carried out by Jane Probert, Director, Resolution and Customer Engagement (HCCC). I am seeking this information to determine whether my complaint was managed appropriately by the HCCC.

10. The details of the health practitioner have not been included having regard to the confidentiality provisions under the Health Care Complaints Act 1993 (NSW) (the HCCC Act).

11. The internal review dated 17 January 2025 noted the background to the request and recorded that the internal reviewer had regard to the original application and decision, the HCCC case management system concerning Mr Adams’ complaints, her independent enquiries of HCCC officers, Mr Adams’ request for a review and email correspondence with HCCC officers. The internal reviewer summarised the relevant principles under the GIPA Act, including case law. Three categories of documents were identified by the internal reviewer, namely, all correspondence, documents, emails and records of communications between the HCCC and the health professional, any correspondence involving the HCCC senior assessment officer regarding the investigation and handling of Mr Adams’ complaint against the health practitioner under nominated file numbers and all correspondence exchanged during the assessment and review processes conducted by the senior assessment officer, as well as the review of the decision carried out by the Director Resolution and Customer Engagement HCCC.

12. The internal reviewer found that the HCCC is primarily a complaint receiving body which means that it does not ordinarily have jurisdiction to exercise its powers without a complaint having been received. The functions of the HCCC in relation to a health practitioner are generally confined to considering a complaint received against them or in connection with a complaint. The internal reviewer’s examination of the HCCC case management systems and the enquiries revealed that there did not appear to be any reason to communicate with the health professional outside the exercise of the functions of complaint handling. The internal reviewer was therefore satisfied that the information sought by Mr Adams in relation to the first category of documents was ‘excluded information’ within the meaning of Sch 2 of the GIPA Act. As such, the access application in relation to the first category of documents was not a valid application pursuant to s 43(2) of the GIPA Act.

13. In relation to the second category of documents, the internal reviewer found that the correspondence from or to the senior assessment officer regarding the investigation and handling of Mr Adams’ complaint “squarely” falls within the excluded information as defined in Sch 2. The internal reviewer found that this request was not valid by reason of s 43(2) for similar reasons to those outlined in respect of the first category of documents. The internal reviewer further found that to the extent that Mr Adams’ requested correspondence concerning the senior assessment officer’s handling of the complaint, complaint handling was the only relevant function of the senior assessment officer and the creation of any documents by the officer clearly related to the complaint handling functions and was excluded information. This access request was also not valid pursuant to s 43(2) of the GIPA Act.

14. The internal reviewer noted that, in relation to the third category of documents, there did not appear to be any correspondence that fell outside of the HCCC complaints handling functions. The internal reviewer concluded that the request related to excluded information and this request for access was not valid under s 43(2) of the GIPA Act.

15. The internal reviewer affirmed the original decision.

Statutory framework

16. The GIPA Act was introduced in 2009 to facilitate public access to government information.

17. Section 3 provides that the object and intent of the GIPA Act is as follows:

(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.

18. Relevantly, s 5 provides:

There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

19. A person who makes an “access application” for government information has a legally enforceable right under s 9 to be provided with access to the information unless there is an overriding public interest against disclosure of the information.

20. Section 12(1) provides that there is a general public interest in favour of the disclosure of government information. Examples of public interest considerations in favour of disclosure are set out in the Note to s 12 as follows:

Note--:The following are examples of public interest considerations in favour of disclosure of information--

(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d) The information is personal information of the person to whom it is to be disclosed.

(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

21. Section 13 sets out how the public interest test must be assessed and provides:

There is an "overriding public interest against disclosure" of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

22. Section 14 of the GIPA Act sets out the public interest considerations against disclosure. Section 14(1) provides that there is certain information in respect of which it is “conclusively presumed” that there is an overriding public interest against disclosure. Section 14(2) provides that the grounds that may be taken into account as public interest considerations against disclosure are the public interest considerations listed in the Table to s 14(2). There are seven different grounds listed. Section 14(2) is not relevant to this application.

23. Section 14(1) is relevant. Schedule 1 lists that information, or classes of information, where it is conclusively presumed that there is an overriding public interest against disclosure. There are 16 categories of information, including ‘excluded information’ under cl 6 of Sch 1.

24. Section 15 of the GIPA Act sets out the principles that apply to agencies and, relevantly, to the Tribunal, when making a determination as to whether there is an overriding public interest against disclosure of government information.

25. An ‘access application’ is defined under s 4 to mean an application for access to government information that is a valid access application under Part 4. Part 4 of the GIPA Act deals with access applications. Section 41(1) provides that an application or other requests for government information is not a valid access application unless it complies with the formal requirements contained in subs (1). The formal requirements include the name of the applicant and such information as is reasonably necessary to enable the government information applied for to be identified. Section 42 provides that access applications can include submissions by the applicant as to any public interest considerations of the applicant thinks the agency should take into account in determining the application.

26. Section 43 provides:

Access application cannot be made for excluded information

(1) An access application cannot be made to an agency for access to excluded information of the agency.

Note : Information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency.

(2) An application for government information is not a valid access application to the extent that the application is made in contravention of this section.

27. Schedule 4 contains interpretative provisions under the GIPA Act and provides that ‘excluded information’ of an agency specified in Sch 2 means information that relates to any function specified in that Schedule in relation to the agency. A ‘function’ includes a power, authority or duty and the ‘exercise’ of a function includes to ‘perform a duty. An ‘agency’ includes a ‘public service agency’ and a ‘public authority’ (s 4).

28. Schedule 2, headed Excluded information of particular agencies provides:

Note : Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is "excluded information" of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for  information of the agency.

29. One of the functions specified in Sch 2 is Complaints handling and investigative information. There are 23 agencies referred to under this heading with different functions specified. The following is specified as ‘excluded information’:

The Health Care Complaints Commission--complaint handling, investigative, complaints resolution and reporting functions (including any functions exercised by the Health Conciliation Registry and any function concerning the provision of information to a registration authority or a professional council (within the meaning of the Health Care Complaints Act 1993 ) relating to a particular complaint).

30. Section 51 provides that when an agency receives an application for access to government information, the agency is to decide whether the application is a valid access application. If the application is not a valid access application, the agency must notify the applicant as soon as practicable.

31. Section 80 of the GIPA Act sets out the decisions of an agency which are ‘reviewable decisions’ for the purposes of Part 5 of the GIPA Act. This relevantly includes a decision that an application is not a valid access application (s 80(a) of the GIPA Act).

32. Section 82 of the GIPA Act allows a person aggrieved by a reviewable decision of an agency to seek an internal review.

33. Section 100 provides that a person who is aggrieved by a reviewable decision may apply to the Tribunal for an administrative review of the decision under the Administrative Decisions Review Act 1997 (NSW) (ADR Act). An application for review must be made within 40 working days after notice of the decision to which the review relates (s 101) Section 105 provides that the onus is on the agency to justify decisions made in respect of access under the GIPA Act.

34. Section 63 of the ADR Act provides that the Tribunal must make the ‘correct and preferable decision based on the material before it at the time of the decision. In determining the application for review, the Tribunal may decide to affirm or vary the decision or set aside the decision and make a decision in substitution or set aside the decision and remit the matter for reconsideration by the administrator, in this case the HCCC, in accordance with any directions or recommendations of the Tribunal.

Submissions

35. Mr Adams lodged submissions on 14 April 2025. He contends that the HCCC mishandled his complaint by failing to adequately investigate the core issue, namely, whether the health practitioner falsely claimed that Mr Adams requested a Centrelink medical certificate for a three-month work exemption rather than an SU-684 form. Mr Adam submits that this critical discrepancy was not addressed in the HCCC's decision-making process, leading to a flawed outcome. Mr Adams notes that the HCCC has immunity from disclosing investigative correspondence under the HCCC Act but states that there are specific legal circumstances that warrant disclosure. Mr Adams submits the procedural fairness and natural justice and the importance of transparency in decision making, warrant the disclosure of this information.

36. Mr Adams submits that the GIPA Act provides for a balancing of competing interests and notes that s 15 outlines situations where disclosure is permissible if it reveals wrongdoing, maladministration or negligent conduct by a public authority. I have taken this submission to be a reference to the examples set out in the note to s 12 (relevantly (d)) rather than s 15, which sets out the principles for determination.

37. Mr Adams’ submission is lengthy and focuses on what he considers to be errors and deficiencies in the HCCC investigation. He seeks orders for the full disclosure of the information sought and states that the purpose of the disclosure is to verify whether the HCCC accurately assessed the core issue of misrepresentation allegedly made by the health practitioner to determine whether there is any procedural misconduct, negligence or mishandling of his complaint. Mr Adams states that he has sought the review by the Tribunal to assess whether the HCCC has correctly applied the exemptions under the GIPA Act. He further seeks, and this was also raised in the material provided to the Tribunal just before the hearing, that the Tribunal conduct a review of the correspondence between the HCCC and the health practitioner in closed session to determine what form that was considered by the HCCC.

38. In his request lodged on 11 May 2025 for a change in the scope of the application, Mr Adams notified the Tribunal that he wished to amend the scope of his application. He states that he now withdraws his request for “full disclosure” of correspondence between the HCCC and the health practitioner and instead requests that the Tribunal conduct a private review of the relevant correspondence for the limited purpose of determining which form was actually investigated. Mr Adams submits the two forms are legally and functionally distinct. All he seeks from the HCCC is clarification about which form was the subject of the investigation. Mr Adams submits that the Tribunal should consider awarding costs against the HCCC because it has unreasonably prolonged this application and because he has been caused considerable emotional distress.

35. In his oral submissions, Mr Adams expanded upon this request. He said his request was simple. He just wanted to know whether the HCCC had investigated the health practitioner's refusal to provide him with a completed SU-684 form as opposed to the more significant, in his view, SU-415 form. The contention appears to be that the health practitioner’s refusal to complete an SU- 415 form may have been considered by the HCCC not to warrant action but his refusal to complete a SU-684 form, which did not require the health practitioner to make an assessment about fitness over a period, would and should have, in his view, been a form that the health practitioner could properly complete. The failure of the health practitioner to complete this form was the basis for Mr Adams’ original complaint. He further said that he has information to suggest that the health practitioner’s refusal was based on the SU-415 form, which was not the basis of his complaint.

36. The HCCC provided written submissions in response. It is submitted that the core issue is whether Mr Adams’ application for access was valid having regard to the fact that the application requested information which was ‘excluded information’ for the purposes of s 43 and Sch 2 of the GIPA Act. It is further submitted that the access application clearly falls within the definition of ‘excluded information’ and, this being the case, the access application is not valid. As such, the balancing exercise under the GIPA Act is irrelevant. There is no overriding requirement under the GIPA Act that provides for the weighing of the principles of natural justice and procedural fairness. It is submitted that Mr Adams’ application seeks to ventilate his issues and dissatisfaction with the outcome of his complaint. It is submitted that proceedings under the GIPA Act should not be used as a vehicle for a collateral review of the merits or validity of official action: Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at [24]. It is further submitted that Mr Adams’ reference to various sections under the GIPA Act, including the reference to s 14 allegedly requiring that personal information must be disclosed, is in error.

37. In oral submissions, Ms Boehm submitted that Mr Adams had not responded to the core issue of whether his request for access related to information that was excluded information.

38. Because Mr Adams said on a number of occasions that all he wanted to know whether the HCCC had considered his complaint about the health practitioner’s refusal to complete the SU-684 form, the hearing was adjourned briefly to allow Ms Boehm to obtain instructions about whether the HCCC would provide these particulars, in which case Mr Adams said he would withdraw his application. Ms Boehm said the HCCC would be open to considering responding to this request for information but not as part of this application. Mr Adams therefore decided to proceed with his application for review.

Consideration

43. Mr Adams is clearly unhappy with the investigation of his complaint by the HCCC. He has sought an internal review of the outcome, which remained unchanged, and wishes to challenge the decision of the HCCC to take no action in relation to the health practitioner.

44. The GIPA Act provides a mechanism for applicants to obtain information about certain public authorities and recognises that there is general public interest in favour of the disclosure of government information. The GIPA Act also expressly recognises the importance of open government to “promote open discussion of public affairs, enhance Government accountability” and reveal information that “could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct”.

45. Despite these objectives and general principles, the GIPA Act specifically recognises exemptions. As observed by the Appeal Panel in DNM v NSW Ombudsman [2019] NSWCATAP 77 at [51] when considering the functions of the NSW Ombudsman:

The statutory purpose of the definition of excluded information is to restrict or prohibit access to government information when there is an overriding public interest against disclosure such as the public interest in delivering responsible and effective government.

46. It is clear from the provisions of the GIPA Act that information identified as ‘excluded information’ is not only conclusively presumed to give rise to an overriding public interest against disclosure under s 14(1), but s 43(1) provides that it cannot be the subject of an access application. The distinction between the operation of two provisions was considered by the Senior Member Higgins in Christopher v Independent Commission Against Corruption [2021] NSWCATAD 256 (Christopher v ICAC) who observed at [80]:

…s 43(1) of the GIPA Act provides that an access application cannot be made to an agency for access to information that is ‘excluded information’ of the agency.In my opinion, for the reasons that follow the application of this section must be distinguished from that which applies to the application of s 14(1) of the GIPA Act in regard to information that is ‘excluded information’. The application of the former has the effect of determining, based on the terms of the person’s access application, that the application is an invalid application. The application of the latter has the effect of determining that there is a presumed conclusive overriding public interest against the disclosure of the information ‘held’ by the agency which has been identified by the agency to fall within the terms of the person’s access application.

47. An application seeking access to excluded information is not a valid access application and the legally enforceable entitlement to obtain access under s 9 of the GIPA Act therefore does not arise. Accordingly, if an access application seeks ‘excluded information’, there is no need for the agency, or the Tribunal on review, to undertake the balancing exercise contemplated by s 13, to take into account the public interest considerations in favour of disclosure under s 12 or even to conduct a search for records that may fall within the request. This is because the GIPA Act specifically provides that the non-disclosure of ‘excluded information’ prevails over the principles of open government.

48. The operation of s 43 was explained by the Tribunal in Christopher v ICAC, at 83]-[84] as follows:

83 Under the GIPA Act, the government agencies listed in Sch 2 are not exempt from the operation of that Act. However, information that ‘relates to’ the listed functions of the agency in that Schedule is ‘excluded information’. Hence, where a person makes an application for access to an agency listed in cl 2 of Sch 2 and the access application specifically seeks access to information that ‘relates to’ the specified functions of the agency in that Schedule, this is an application for ‘excluded information’, which by reason of s 43(2) of the GIPA Act, makes the access application an invalid application.

84 In my opinion, where an agency relies on a 43(2), there is no obligation on the agency to first conduct a search for the information it holds that is responsive to the access application of the applicant. However, the agency does need to be satisfied that the terms of the access application is in fact an application for ‘excluded information’ in that the information sought ‘relates to’ the specified functions of the agency in Sch 2 of the GIPA Act. On administrative review, the onus is on the agency to prove that this is the case.

49. The HCCC submits that if the information requested by Mr Adams is ‘excluded information’ as referred to in Sch 2, the information requested cannot be the subject of an access application and Mr Adams’ application is not valid. It is submitted that this is the central issue that requires determination in this matter.

50. The Note to Sch 2 in relation to ‘excluded information’ provides that information ‘that relates to’ a function specified in the Schedule in relation to an agency is excluded information of the agency.

51. In Christopher v ICAC the Tribunal stated at [92] that the expression ‘relates to’ is of broad import, relying on HP Mercantile Pty Limited v Commissioner of Taxation [2005] FCAFC 126 where the Full Federal Court found at [ 35] that the words are “wide words signifying some connection between two subject matters”. Furthermore, in Beregi v Department of Planning, Industry and Environment [2020] NSWCATAP 185 the Appeal Panel found at [48] that the words in the heading in Sch 2, ‘complaints handling and investigative information’ are generic descriptions of various agency functions and their ordinary meaning is “apt to apply to a broad range of activities of an agency”.

52. It is apparent from these authorities that consideration of whether information is ‘excluded information’ for the purposes of s 43, should be construed broadly having regard to the language of the relevant provisions in the GIPA Act.

53. To determine whether the information sought by Mr Adams relates to one of the listed functions in Sch 2 it is relevant to consider the functions of the HCCC. Section 3(1) of the HCCC Act provides:

(1) The primary object of this Act is to establish the Health Care Complaints Commission as an independent body for the purposes of--

(a) receiving and assessing complaints under this Act relating to health services and health service providers in New South Wales, and

(b) investigating and assessing whether any such complaint is serious and if so, whether it should be prosecuted, and

(c) prosecuting serious complaints, and

(d) resolving or overseeing the resolution of complaints.

54. The functions of the HCCC under s 80(1) of the HCCC Act are:

(a) to receive and deal under this Act with the following complaints--

• complaints relating to the professional conduct of health practitioners

• complaints relating to a relevant health organisation, including an alleged breach by a relevant health organisation of a code of conduct prescribed by the regulations made under section 100(1)(c) of the Public Health Act 2010

• complaints concerning a health service that affects, or is likely to affect, the clinical management or care of individual clients

• complaints referred to it by a professional council under the Health Practitioner Regulation National Law (NSW) ,

(b) to assess those complaints and, in appropriate cases, to investigate them, refer them for conciliation or deal with them under Division 9 of Part 2,

(c) to make complaints concerning the professional conduct of health practitioners and to prosecute those complaints before the appropriate bodies, including professional councils, professional standards committees and Tribunals,

(d) to report on any action the Commission considers ought to be taken following the investigation of a complaint if the complaint is found to be justified in whole or part,

(e) to monitor, identify and advise the Minister on trends in complaints,

(f) to publish and distribute information concerning the means available for the making of complaints and the way in which complaints may be made and dealt with,

(g) to provide information to health service providers and professional and educational bodies concerning complaints, including trends in complaints,

(h) to consult with groups with an interest in the provision of health services, including professional associations, health service provider groups, relevant community organisations and private and institutional health care providers, on the complaints process and the dissemination of information concerning the complaints process,

(i) to develop, after such consultation with clients, health service providers and persons who, in the Commission's opinion, have an appropriate interest, a code of practice to provide guidance on the way in which the Commission intends to carry out some or all of its functions.

55. The critical question is whether Mr Adams’ access application seeks ‘excluded information’.

56. As noted by the internal reviewer, the information Mr Adams seeks can be conveniently broken down into three categories. I accept that the three categories identified by the internal reviewer cover the request for access made by Mr Adams and have adopted these categories in this decision.

57. The first category of information requested is all correspondence, documents, emails and records of communications between the HCCC and the health professional.

58. As noted above, the primary role of the HCCC is to receive, assess and investigate complaints in relation to health practitioners. For instance, the HCCC does not have a surveillance, registration or monitoring function over practitioners. It therefore follows that all communications with practitioners by way of correspondence, email or records of telephone conversations, including any communications with the health practitioner in question, would relate to ‘complaints handling, investigation, complaints resolution and reporting functions’ of the HCCC.

59. I am therefore satisfied that this part of the access application is a request for access to ‘excluded information’ within the meaning of Sch 2.

60. The second category of information requested is any correspondence involving the HCCC senior assessment officer regarding the investigation and handling of Mr Adams’ complaint against the health practitioner. In my view, this squarely falls within excluded information in Sch 2 because any correspondence created by the senior assessment officer regarding the investigation and the handling of Mr Adams complaint clearly relates to the ‘complaint handling, investigative, complaints resolution and reporting functions’ of the HCCC as outlined in s 80(1) of the HCCC Act. This part of the access application is also a request for access to ‘excluded information’ within the meaning of Sch 2.

61. The third category of information requested is all correspondence exchanged during the assessment and review processes conducted by the senior assessment officer (Danika De Palo) as well as the review of the decision carried out by Janet Probert, Director, Resolution and Customer Engagement HCCC.

62. In my view, any correspondence exchanged during the assessment and review process conducted by the senior assessment officer must relate to the complaint being reviewed by her, which is encompassed by the complaint handling, investigative, complaints resolution and reporting functions of the HCCC. I am also of the view that any correspondence exchanged in relation to the review of the decision made by Danika De Palo would be part of the HCCC's complaint handling functions. This is clear from the background material referred to in the internal review and in the material provided by Mr Adams, which demonstrates that the HCCC had a complaint review process, which he requested on 12 March 2024. This is the subject of the letter from Jane Probert to Mr Adams dated 10 July 2024. As such, I am satisfied that this third category of information requested is excluded information within the meaning of Sch 2.

63. I am satisfied that Mr Adams’ access application seeks information which is ‘excluded information’ and his application is therefore not valid by reason of s 43(2) of the GIPA Act.

64. Mr Adams’ request that the Tribunal review the files of the HCCC to answer the question that he has posed about which form was the subject of the assessment is, in effect, a request by the Tribunal to undertake analysis and investigation of the matters considered by the HCCC in its complaint handling process. The role of the Tribunal in administrative review under the ADR Act is to make the ‘correct and preferable’ decision based on the material before it at the time of the decision. It is not to undertake some further review of the complaints process or to assist Mr Adams in a fact-finding process. Mr Adams has the option to complain to the NSW Ombudsman if he is not satisfied with the process undertaken by the HCCC. I also note that it is open to the HCCC, outside the GIPA Act process, to clarify and potentially resolve Mr Adams’ concerns about the outcome of his complaint.

Conclusion and orders

65. I find that the access application made by Mr Adams seeks information that is ‘excluded information’ under Sch 2. This covers all information sought. His application is therefore not a valid application by reason of s 43(2) of the GIPA Act.

66. The decision under review is affirmed.

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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

Decision last updated: 03 June 2025