AEF v Northern Sydney Local Health District (No 2)
[2012] NSWADT 89
•11 May 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: AEF v Northern Sydney Local Health District (No 2) [2012] NSWADT 89 Hearing dates: 28 October 2011 Decision date: 11 May 2012 Jurisdiction: General Division Before: P. H. Molony, Judicial Member Decision: 1.Order 1 of the confidentiality orders made by the Tribunal on 16 June 2008 is varied by inserting after the word "evidence," the following, "(save for the documents known as the Kimber Report, the Hoyle/Landrigan report and the Taylor Report)".
2.With effect 30 days from the publication of these reasons:-
a The decision of the Agency under the Government Information (Public Access) Act 2009 to refuse access to the Kimber Report, the Hoyle/Landrigan Report and the Taylor Report is set aside.
b. In lieu thereof the Tribunal the grant the applicant full access to the Kimber Report, the Hoyle/Landrigan report and the Taylor Report.
Catchwords: Government Information (Public Access) - reveal personal information - disclose Legislation Cited: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989
Government Information Public Access Act 2009Cases Cited: AEF v Northern Sydney Local Health District [2011] NSWADT 170
CY v Northern Sydney Central Coast Area Health Service [2008] NSWADT 315
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
John Fairfax v Local Court (1991) 26 NSWLR 131
JY v Commissioner of Police (2008) NSWADT 306
Hurst v Wagga Wagga City Council [2011] NSWADT 307
McKinnon v Blacktown City Council [2012] NSWADT 4
Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98
Walton v Momot [1997] NSWCA 334Texts Cited: Robinson, NSW Administrative Law (Thompson Reuters) Category: Principal judgment Parties: AEF (Applicant )
Northern Sydney Local Health District (Respondent)
CY (Joined Respondent)Representation: Counsel
G Sullivan (Respondent)
C Jackson (Joined Respondent)
AEF (Applicant in person)
Lander & Rogers (Respondent)
Slater & Gordon (Joined respondent)
Information Commissioner
File Number(s): 113084
REasons for decision
Introduction
The Tribunal is considering two applications by AEF.
First, an application 75(2B) of the Administrative Decisions Tribunal Act 1997 (the ADT Act) to vary or revoke a confidentiality order prohibiting the disclosure of documentary evidence made in earlier, concluded proceedings. Those documents are known as the Kimber Report, the Hoyle/Landrigan Report and the Taylor Report. The order was made by Montgomery JM, in CY v Northern Sydney Central Coast Area Health Service [2008] NSWADT 315, a review under the Freedom of Information Act 1989 seeking access to the Kimber Report.
The issue in the first application is whether the Tribunal should exercise the power to vary or revoke that order.
The second application is a review application made by AEF under the Government Information (Public Access) Act 2009 (the GIPA Act) to review a decision made the Northern Sydney Local Health District (the Agency) to refuse access to the Kimber Report, the Hoyle/Landrigan report and the Taylor Report. On 1 December 2010 the agency's right to information officer refused access to the reports on the basis that, under the GIPA Act, there is a conclusive presumption that there is an overriding public interest against their disclosure. This was so because the reports were subject to confidentiality order made under s 75 of the ADT Act.
AEF then sought review of that decision by the Information Commissioner under s 89 of the GIPA Act.
On 28 March 2011 the Information Commissioner referred the decision of the agency to the Tribunal for review under s 99 of the GIPA Act. In her referral letter the Information Commissioner wrote -
The OIC agrees with the decision of the agency. However, this matter cannot be determined on its merits under the GIPA Act because of the confidentiality orders, which create a conclusive presumption of an overriding public interest disclosure of the information pursuant to s 14(1) of the GIPA Act.
In CY v Northern Sydney Central Coast Area Health Service [2008] NSWADT 315 Judicial Member Montgomery said the following at paragraph 45:
Having regard to all the circumstances, it is my view that there are no strong grounds that would justify overriding the exemption claimed. This position may change once the Industrial Relations Commission proceedings have been completed. However, on the evidence before me I am satisfied that the Kimber Report should not be released at this stage.
It appears from the above comment that Judicial Member Montgomery did not intend the confidentiality orders to remain on foot indefinitely and left open the possibility of considering whether the Kimber Report could be released in the future.
I would propose to exercise my right to appear and be heard in the ADT in relation to the matter pursuant to s 104(1) of the GIPA Act
AEF then made the present applications.
On 10 May 2010, CY appeared by his solicitor. CY is the person whose conduct in the course of his employment was considered by the three reports. He wished to be heard in relation to both AEF's application under s 75(2B) of the ADT Act and the review under the GIPA Act. I determined to join CY as a party the proceeding under s 67(4) of the ADT Act. I note that CY has a statutory right to be heard in the GIPA Act review: see s 104(3).
In AEF v Northern Sydney Local Health District [2011] NSWADT 170 I found, at a preliminary hearing in this matter, that a differently constituted Tribunal has power under s 75(2B) to vary or revoke an earlier order made by the Tribunal under s 75(2) prohibiting the disclosure or publication of evidence tendered in earlier, separate proceedings.
The remaining issue in the first application is whether the Tribunal should exercise that power.
The issues in the second application are contingent on the outcome of the first. If no order is made varying or revoking the Tribunal's earlier orders made under s 75(2) of the ADT Act, the GIPA Act provides that there is a conclusive presumption against disclosure of the three reports while the orders remain in force: see s 14(1). In that eventuality, the decision of the Agency must be affirmed. On the other hand, if the order under s 75(2) with respect to the three reports is revoked, then the Tribunal will consider AEF's application under the GIPA Act on the merits.
Background
The parties have provided an agreed chronology which forms the basis of this outline.
This matter has a long and sad history. Its genesis is the tragic death by suicide in 2003 of AEF's adult daughter, after she absented herself from psychiatric care in the Lindsay Madew Unit, at Hornsby Ku-ring-gai Hospital.
On 14 March 2003 AEF made a complaint to the Health Care Complaints Commission (HCCC) concerning the circumstances leading to his daughter's death. This was referred to the area health authority, which had an external review report prepared. AEF continued to ask questions concerning the circumstances leading to his daughter's death. Parliamentary questions were asked.
An inquest concluded in August 2004 that she had committed suicide. The Deputy Coroner noted some criticisms of the Hornsby Ku-ring-gai Hospital Mental Health Service (an earlier name of the Agency's) and certain aspects of the patient's care and treatment whilst at the Lindsay Madew Unit. No adverse finding was made against any individual practitioner or administrator. The Deputy Coroner made a number of recommendations directed to the NSW Minister for Health, concerning standardising certain policies and procedures applying to mental health inpatients in New South Wales.
In October 2004 AEF made a further complaint to the HCCC and in November a further complaint to the Agency. On 18 April 2005 Mr M. J. Kimber SC was retained by the Agency to examine and report upon complaints made by AEF and his wife. In particular, he was asked to advise whether three administrators (one of whom was CY) may be guilty of a breach of a discipline as a result of being careless, inefficient or incompetent in the discharge of their duties.
On 14 March 2006 the HCCC published its findings with respect to a complaint made by AEF.
On 21 August 2006 the Kimber Report was delivered. AEF made the first of a series of requests for a copy on 28 September 2006.
On 30 October 2008 the Agency commissioned Dr Hoyle and Mr Landrigan to advise on the case for disciplinary action against the administrators in the light of the Kimber Report. The Hoyle/Landrigan Report was delivered on 13 November 2006. AEF and his wife were advised that no disciplinary action would be taken against the administrators.
Between late December 2006 and June 2007 AEF tried to obtain access to the Hoyle/Landrigan Report and the Kimber Report under the FOI Act. He was not successful.
In June 2007 AEF and his wife requested that the Agency review the decision not to take disciplinary action, and sought external review by the Ombudsman. In August 2007 the Agency commissioned Mr Taylor to review the Kimber Report and the Hoyle/Landrigan Report, and the decision not to take disciplinary action. On 18 September 2007 the Taylor Report was competed. Mr Taylor concluded that disciplinary action was warranted.
On the same day the Ombudsman recommended the release of a redacted version of the Kimber Report to AEF. The Agency accepted that recommendation the next day. Two days later, on 21 September 2007, the Agency advised CY that it was inclined to take disciplinary action.
On 15 October 2007 CY applied to this Tribunal under the FOI Act to review the decision to release the Kimber Report.
In March 2008 proceedings were commenced in the Industrial Relations Commission (IRC) against disciplinary action taken by the Agency.
In May or June 2008 the Ombudsman commenced an investigation in which it considered the disclosure of information by the Agency, in the light of complaints made by AEF and his wife.
The hearing of AEF's FOI application took place on 6 June 2008. In those proceedings the Tribunal made a confidentiality order under s 75(2) of the ADT Act with respect to, among other things, the three reports. The order provided that:-
1. A general order is made under s 75 of the Administrative Decisions Tribunal Act 1997 and s 55 of the Freedom of Information Act 1989 in these proceedings prohibiting and restricting disclosure of the name of the applicant, the documents lodged with the Tribunal and received in evidence, and the transcript of the hearing.
2. Order 1 does not apply to disclosure between the parties or to disclosure between their legal representatives, servants or agents or to disclosure to any Tribunal member constituted to deal with the matter and Tribunal staff.
On 27 October 2008 the IRC recommended that no disciplinary action be taken against the administrators. That recommendation was based on considerations of procedural fairness. It did not address the substantive matters underlying the decision to take disciplinary action.
On 27 November 2008 the Tribunal delivered its decision with respect to AEF's FOI application. The Tribunal affirmed the decision to refuse access. The Tribunal found: -
37 The Respondent's decision was that the Kimber Report should be released to the parents in a redacted form and without attachments but including a list of those attachments. The Respondent also determined that the Hoyle/Landrigan report was not the subject of the parent's application under the FOI Act.
38 The history of the matter suggests that the Respondent's decision was made in the light of the recommendation made by the Ombudsman and that it was an effort to provide some support for the parents. The Ombudsman's recommendation was given at a time when the Respondent had taken the decision that there would be no disciplinary action against CY. It is clear that the Respondent's position on that issue changed after receipt of the Taylor Report. After that time CY was advised that disciplinary action was anticipated.
39 It is common ground that in its complete form the Kimber Report is an exempt document pursuant to clause 6 of Schedule 1 to the FOI Act. It is also common ground that the Kimber Report still contains findings that concerns CY. At paragraph 16 it is stated that CY "may well be guilty of a breach or breaches of discipline as a result of being careless, inefficient or incompetent in the discharge of [CY's] duties ..."
40 The NSW FOI Manual, August 2007, published by the NSW Department of Premier and Cabinet and NSW Ombudsman at paragraph 12.3.19(19) provides:
"Without attempting to set out a comprehensive list of relevant matters, in assessing FOI applications it can be assumed that, in the absence of special circumstances to the contrary, information concerning the following matters could constitute the 'personal affairs' of a person in terms of the first part of the test in clause 6:
...
(19) Disciplinary investigations or proceedings, particularly where disciplinary action was taken."
41 In my view, the evidence supports the contention that the Kimber Report forms the basis of disciplinary proceedings to be taken against CY. It is my view that the Kimber Report, even in a redacted form, is a document that concerns CY's personal affairs.
42 Action has been commenced in the NSW Industrial Relations Commission in relation to the disciplinary proceedings and those proceedings remain to be determined.
43 In these circumstances, the disclosure of the Kimber Report, even in a redacted form, would be unreasonable. It is therefore exempt under clause 6 of Schedule 1 to the FOI Act.
On 19 June 2009 the Ombudsman delivered a report entitled Investigation into the Department of Health, Northern Sydney Central Coast Area Health Service and the [other Area Health Service]. In that report the Ombudsman was critical of the Agency's handling of AEF's request for access to the reports, suggesting they should have been released under the open disclosure policy. The difficulties resulting form the existence of the confidentiality order were noted. The Ombudsman recommended that the Agency apply to the Tribunal for an order varying or revoking the confidentiality orders.
On 21 July 2009, 8 September 2009 and 19 April 2010 the Agency applied to the Tribunal to vary the confidentiality order. On each occasion the application was rejected at Registry level, apparently on the basis that the proceedings in CY v Northern Sydney Central Coast Area Health Service were concluded.
On 9 November 2010, following repeal of the FOI Act and commencement of the GIPA Act, AEF made his present application for access to the Kimber Report, the Hoyle/Landrigan report and the Taylor Report under the GIPA Act. I have already outlined the events which followed, including the referral by the Information Commissioner. He also sought to vary the confidentiality order under s 75(2a).
Should the confidentiality orders be revoked or varied.
The Agency did not oppose the confidentiality orders being varied so as to enable release of the three reports to AEF. While the Agency had not undertaken the exercise of considering release under the GIPA Act, and did not make submissions in that regard, it did not oppose release.
CY opposed any variation to or revocation of the confidentiality orders. Mr Jackson, for CY, argued that any such order must be made in the interest of justice and that on a proper consideration the interests of justice required that confidentiality be fully maintained.
Mr Jackson submitted that the three reports share three important features. First, they each refer to a large amount of material that is already in the public domain; e.g. from the coronial process and the HCCC investigation. AEF and his wife have access to that material. Secondly, the reports do not add anything to what is already known. Thirdly, the reports represent different and diverging opinions about whether disciplinary action was appropriate as a result of events the knowledge of which is in the public domain. They have, he argued, no particular value.
The reports, especially the Kimber report, he argued, contain conclusions that are damaging to the administrators, and especially CY's, professional reputations. Information which is old and redundant. Professional reputation, he said, is a precious thing. Release of the reports, he submitted, would harm CY's professional reputation and deprive him of the finality he had following the IRC recommendation in the disciplinary proceedings.
Balanced against the possible value of the reports to AEF and his wife of release of the reports, he submitted it was impossible to see that justice would be served by release. They already have access to all the factual information which would enable them to understand the circumstances leading to their daughter's death.
AEF said that the Kimber report was commissioned in response to a letter he and his wife had written to the Agency, requesting that disciplinary action be taken with respect to the circumstances leading to their daughter's death. Kimber SC was chosen to undertake the review as a lawyer with expertise in employment and health law, who could undertake an independent and factual analysis of those circumstances. Thus, he argued, Mr Kimber was considering issues of fault, whereas the Coroner had made it clear that his role was not to apportion blame.
AEF said that the initial external review conducted by the Agency had concluded that there were systemic failures in the Lindsay Mayhew Unit, but there had been no discussion of the responsibility of individuals for those failures.
The Hoyle/Landrigan Report was an in house review of the Kimber report to consider whether disciplinary action should be taken. Following its release, AEF said he and his wife were advised that there would be no disciplinary action. They did not understand why. Following that, the Taylor Report must have backed up the Kimber Report, because of the disciplinary action which the Agency had then taken. The IRC subsequently recommended that the action be withdrawn.
AEF said that despite being promised access to the Taylor report, it had not been given.
AEF said that he and his wife needed to fully understand what had occurred. They have no desire to re-open the disciplinary matters or to prosecute CY. They personally need to fully understand all that has happened. Further, they believed that there was a wider interest: to make sure the systemic issues had been fully addressed as suicides are still happening in the mental health system.
I was not directed to any authorities concerning the exercise of the Tribunal's power to revoke or vary a confidentiality order. Section 75 of the ADT Act relevantly provides:
(1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public.
(2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:
(a) an order that the hearing be conducted wholly or partly in private,
(b) an order prohibiting or restricting:
(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or
(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,
(b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal,
(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,
(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.
(2A) The Tribunal cannot make an order under subsection (2) (b) in respect of any proceedings to which section 126 applies.
(2B) The Tribunal may from time to time vary or revoke an order made under subsection (2).
...
It is clear from his decision CY v Northern Sydney Central Coast Area Health Service that, in finding the Kimber Report exempt and in making the wide order under s 75(A) to support that conclusion, Montgomery JM paid significant regard to the facts that:-
- The Kimber Report contained relating to disciplinary proceedings and action against CY, which was information relating to his personal affairs;
- The Kimber Report formed the basis of those proceedings;
- Action had been commenced in IRC with respect to those proceedings; and
- The IRC proceedings had yet to be completed.
That is no longer the case. The IRC proceedings have concluded and the disciplinary action taken against CY has been withdrawn following an IRC recommendation. The need that Montgomery JM saw to protect information that was at the heart of existing proceedings no longer subsists. It is apparent that he contemplated that the strength of the exemption might well lessen when the IRC proceedings were completed.
The order he made under s 75(2A), however, was wide and not restricted in duration. It was made during the hearing and has an ongoing impact - creating a conclusive presumption that disclosure is against the public interest - which is contrary to the apparent intention of his final order.
While I accept that release of the three reports under the GIPA Act could have an effect on the professional reputations of the administrator's I do not accept that this result would flow from varying the s 75(2), so that it does not apply to the three reports. Rather, varying the order will enable further consideration of whether AEF should have access to the reports under the GIPA Act. In the course of that consideration the nature of the personal information relating to the administrators can be considered, as can whether or not the public interest requires, on balance, that the reports be disclosed.
I add that I am not persuaded that potential damage to an individual's reputation alone is a ground for making or continuing a confidentiality order in the interests of justice. As was pointed out by Kirby P in John Fairfax v Local Court (1991) 26 NSWLR 131, 142:
It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms: see, eg, David Syme & Co Ltd v General Motors-Holden's Ltd (at 307); Raybos Australia Pty Ltd v Jones (at 58); R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227 at 235; [1984] 2 All ER 27 at 31; R v Bromfield, per Malcolm CJ (at 22); Rockett v Smith, per Derrington J (at 7). A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice.
Similarly, I am not persuaded that varying the s 75(2) order would have the effect of depriving CY of the result of the IRC proceedings. Those proceedings are concluded. I am unable to see how varying the orders could deprive him of their benefit.
The interest of justice requires, wherever possible, that proceedings and the evidence given in them be open and accountable to the public. None of the reasons which CY has advanced outweigh that requirement. I repeat the passage I quoted in my preliminary decision form the Court of Appeal in Walton v Momot [1997] NSWCA 334, concerning a suppression order made by the Chiropractors and Osteopaths Tribunal. Handley JA, with whom Priestly JA and Grove AJA agreed, said -
The general principle provided for in s 46 (3) is that the Tribunal will sit in public. If the Tribunal sits in public the details of the proceedings, including the names of the complainant and the practitioner, may become known to interested members of the public and the media, who will be entitled to publish details of the proceedings including the name of that practitioner.
This being the prima facie method by which the Tribunal should conduct its proceedings as laid down by the Act, it follows that something special, exceptional, or out of the ordinary, must be established before the Tribunal can make an order avoiding such a result. It could decide under s 46 (3) that it will sit in private, or it could make a suppression order under cl 6 (1) in the Third Schedule.
This of course reflects the general principle that the administration of justice under our system is carried on in public. This has been repeatedly emphasised by the courts, most recently, for relevant purposes, in John Fairfax & Sons Limited v The Police Tribunal (1986) 5 NSWLR at 465, and by Samuels JA in Bowen-James v Delegate of Director-General Department of Health (40432/91 unreported 29/7/91). The Chairman therefore did not misdirect himself when he said that special or exceptional circumstances had to be established before a suppression order could properly be made.
I will vary order 1 of the confidentiality orders made by the Tribunal on 16 June 2008 by inserting after the word "evidence," the following, "(save for the documents known as the Kimber Report, the Hoyle/Landrigan report and the Taylor Report)".
Consideration of the GIPA application
The GIPA Act commenced operation on 1 July 2010. The objects of the Act are set out in (s 3(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.
"Government information' is given a wide meaning (s 4) being 'information contained in a record held by an agency.' 'Agency' is also defined in s 4. The Agency is an agency to which the GIPA Act applies.
The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (s 9). The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the 'overriding secrecy laws' that are set out in Schedule 1. In the case of overriding secrecy laws it is conclusively presumed that there is an overriding public interest against disclosure (s 11 and s 14).
With respect to other government information, the Act establishes a principle that there is pubic interest in favour of disclosure (s 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides -
Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.
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
There will only be an overriding public interest against disclosure when the public interest test in s 13 is satisfied. It 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.
In considering whether there is an overriding public interest against disclosure s 16 provides that the following principles apply -
(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.
The public interest considerations against disclosure are limited to those set out in the Table to s 14. Section 14(2) provides that -
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.
The public interest considerations against disclosure identified in this case are to be found under the categories of "Responsible and effective government" and "Individual rights, judicial processes and natural justice" in the Table to s 14. They are -
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) reveal an individual's personal information,
...
(e) reveal false or unsubstantiated allegations about a person that are defamatory,
...
Section 55 provides that personal factors relating to an applicant can be taken into account in deciding to grant access. In limited circumstances they may also be taken into account in refusing access. That section provides -
(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.
(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.
An access application is to be determined in accordance with s 58. In this case it was determined by deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information.
Section 74 provides that an agency can delete information for records being released that is irrelevant, or that the agency had decided not release.
A person aggrieved may seek a review by the Tribunal (s 100). When this provision is read with s 38 of the Administrative Decisions Tribunal Act 1997, they confer jurisdiction on the Tribunal to review reviewable decisions under the GIPA Act.
In any review of a reviewable decision s 105 places the burden of justifying the decision on the agency concerned. It provides -
"(1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.
(2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.
(3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review."
The Tribunal's function on review under s 63 of the Administrative Decisions Tribunal Act 1997 is to make the correct and preferable decisions 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: Drakev Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It relevantly provides -
"(1) In determining an application for ADT review, the ADT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.
(2) On an ADT review, the ADT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.
..."
In this case the Tribunal was provided with confidential copies of the three reports, without attachments. CY was aware of their content. AEF was not. By consent of all parties the Information Commissioner was granted access to the reports, subject to confidentiality and non-disclosure orders which expire on the making of a final determination.
Both CY and the Information Commissioner were given time to make confidential submissions with respect to the three reports. The Information Commissioner made wider submissions going to the whole of the matter contrary to that order, much of which is merely a restatement of previous oral submissions. It compelled CY to seek to respond. This was not of assistance to the Tribunal, creating unnecessary work and duplicating earlier oral submissions.
In exercising functions under the Act s 3(2) instructs that -
"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."
Public interest disclosures in favour of disclosure
In my opinion there are a series of public interests considerations in favour of disclosure of the three reports.
First, 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: see s 12(2) note (a). I agree with the Information Commissioner that the three reports aggregate information and express opinions concerning the impact of public administration concerned with the provision of mental health services on the death of AEF's daughter. She is a person was plainly mentally ill. The release of the information would enhance accountability by exposing the actions of the service to public scrutiny, and inform the debate and promote public discussion about suicide among mental health patients, and the supervision and monitoring of patients at risk.
Secondly, 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: see s 12(2) note (b). This is particularly the case with respect to the agencies systems with respect to the monitoring and supervision of patients at risk at the time of the death, and the handling of complaints by the Agency.
Thirdly, 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. At the heart of the reports is a consideration of whether disciplinary action should be taken against three administrators. The reports in fact consider whether there is evidence of misconduct on the part of the administrators, or of negligence and carelessness, and reach differing views. In those circumstances I accept that release of the reports could be reasonably expected to reveal or substantiate negligent or improper conduct by a member of an agency.
Fourthly, I accept that the public interest articulated by the Tribunal in JY v Commissioner of Police (2008) NSWADT 306, being the public interest in the care and protection of children and people with disabilities, applies. There is no issue that AEF's daughter was suffering from a severe and disabling mental illness at the time. As a result she was a person with a disability on the ordinary understanding, despite the fact, as CY points out, that she was a voluntary patient. I accept that this public interest coincides with the interests of AEF and his wife concerning the death of their daughter. In so doing I refer to paragraphs [53-58] of the decision in JY:-
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.
56 In this case JY submits that her own need for information concerning her daughter's death is of such strength that it amounts to a public interest consideration in its own right. In doing so, she noted that the internal review officer had grappled with the competing public interests and had acknowledged, relying on Re Burns, that JY's need was of such strength as to amount to a public consideration in its own right. I do not accept this submission because, as I have already explained, I do not consider that a private interest alone can amount to a public interest. In so doing, I acknowledge that a private interest may coincide or equate with a similar public interest.
57 ...
58 There are, in my opinion, other identifiable public interests considerations which weigh in favour of disclosure of the statements relating to the death of JY's daughter. These are the public interest in the protection of young children, the public interest in the protection and of the disabled, and the public interest in the protection and maintenance of parental responsibility for infant children.
59 That there is a wider public interest in the protection of the children and of persons with disabilities is well recognised and long standing. This
I do not accept the submission by the Information Commissioner that information in the Reports, that is the personal information of AEF's daughter, should be treated as if it were AEF's for the purpose of the public interest articulated in note (c) of section 12(2). While this submission may have some force with respect to children and adults who have permanent intellectual disabilities and who do not have, and have never had capacity, I consider it a dangerous proposition with respect to persons who have reached and enjoyed majority. Their personal information is their own.
Section 54(3) requires consultation with a close relative of a deceased person to be consulted as to whether they have an objection to the release of personal information. This does not, in my opinion, point to a legislative intention that the interest of a close relative of a deceased person can ground a public interests consideration in favour of disclosure to which note (c) to s 12(2) applies.
Public interests considerations against disclosure
Reveal an individual's personal information
Personal information is defined in clause 4 of Schedule 4 -
(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.
(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.
(3) Personal information does not include any of the following:
(a) information about an individual who has been dead for more than 30 years,
(b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,
(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.
"Reveal' is defined in Clause 1 of Schedule 4 -
reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).
In Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 I observed, at [40], that:-
It is important to note that the definitions of 'government information', 'personal information', and 'reveal' in the GIPA Act operate on information alone, not, as was the case under the Freedom of Information Act 1989, with respect to documents. The issue for consideration is not whether the document has been publicly disclosed, but whether the information they contain has been publicly disclosed. The effect of s 105(1) is to place the burden, of establishing that a decision with respect to an access application is justified, on the agency. In circumstances such as the present, that burden includes establishing that release under the GIPA Act could reasonably be expected to reveal an individual's personal information. Where there is material indicating that the information has already been publicly disclosed, that burden requires the agency to establish that it was not.
The Kimber Report is replete with information and opinion concerning the three administrators, including CY. The great majority of it is an analysis of information that was in the public domain when Mr Kimber considered it; e.g. the transcript of the Coroners hearing and the HCC report. There is no dispute that all of that information is in the public domain. Much of it relates to the conduct to and actions of the administrators in the course of their duties.
In the present case the information in the Kimber Report that has not already been revealed consists essentially of considerations of the administrator's conduct in the context of the considering whether disciplinary proceeding should brought against them. This includes opinions about each of the administrators that have not been revealed. In my view information and opinion about the conduct of employees of the Agency in the course of undertaking their duties, whether or authorised or not, is personal information within the meaning of the GIPA Act: see McKinnon v Blacktown City Council [2012] NSWADT 4 [73].
As a consequence it could be reasonably expected that release of the Kimber report would disclose personal information relating the administrator which has not otherwise be revealed.
Both the Hoyle/Landrigan Report and the Taylor Report refer to information already revealed. They also include reference to the conclusions drawn in the Kimber report, which has not been revealed, and draw conclusions and express opinions with respect to the three administrators. As a consequence it could be reasonably expected that release of the Hoyle/Landrigan Report and the Taylor Report would disclose personal information relating the administrator which has not otherwise be revealed.
CY has made it clear that he objects to the release of his personal information based on concerns about damage to his professional reputation and further disciplinary actions that I have already outlined.
Disclosure could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory
In Hurst v Wagga Wagga City Council [2011] NSWADT 307 I wrote at [83-84]:-
This is a provision new to GIPA. In helpful submissions on the issue the Information Commissioner said -
"49 This is a new consideration. There is no equivalent to it in the old FOl Act (NSW), the Commonwealth, WA or Qld Acts (those most similar to the GIPA Act). However, section 113 of the GIPA Act, which provides protection from actions in defamation, is in almost identical terms to section 64 of the FOl Act. . The decision of the Court of Appeal in Ainsworth v Burden (2003) 56 NSWLR 620 ("Ainsworth") construed section 64 of the FOl Act and remains authoritative. In Ainsworth, the Court found that "[t]he statutory language must be construed in the context of the general principles of the law of defamation" (at 622 per Handley JA).
50. To demonstrate that this consideration is a relevant consideration in the application of the public interest test, the respondent must show that the information to which the applicant seeks access contains false and unsubstantiated allegations against a person, and that those allegations are defamatory.
51. The respondent states that it has investigated and found that the allegations made by the applicant were unsubstantiated. On this basis, it dismissed the allegations (Statement of O'Leary, 16/05/2011, Annexures R & S). ...
52. In order to satisfy the second element of this consideration, the respondent must consider and reach a conclusion about whether the allegations are defamatory according to the general principles of defamation law. A general statement of the elements of defamation from Halsbury's Laws of Australia (chapter written by David Rote) states (with notes removed):
A publication is defamatory of a person if it tends, in the minds of ordinary reasonable people, to injure his or her reputation either by:
(1) disparaging him or her;
(2) causing others to shun or avoid him or her; or
(3) subjecting him or her to hatred, ridicule or contempt.
The cause of action in defamation is complete upon the publication of a defamatory imputation and damage may be inferred without proof of actual loss or injury to the plaintiff.
53. The respondent has not considered whether the allegations are defamatory.
The construction pressed by the Information Commissioner is broadly consistent with that suggested by the editors of Robinson, NSW Administrative Law (Thompson Reuters) at 50.7270. I accept it.
The Information Commissioner has repeated that submission. As the facts are not in issue, the Information Commissioner submits that the public interest consideration against disclosure is not made out.
CY submitted that the issue for the Tribunal is whether there is a real chance that a defamatory imputation may be false or unsubstantiated.
In the present case the defamatory imputations (if indeed that is what they are) are contained in the conclusions reached in the three reports. As CY pointed out, in a different context, the reality is that the Kimber Report considers and expresses an opinion as to whether there is a prima facie case for taking disciplinary action against the administrators. The other reports discuss and draw conclusions with respect to the same issue, albeit some are inconsistent. That inconsistency does not demonstrate that any of the conclusions are based on false or unsubstantiated evidence or that they are defamatory.
In order for this public interest consideration against disclosure to apply the decision maker must be satisfied that the allegations the reports contain are false or unsubstantiated, and are defamatory, and that disclosure could be reasonably expected to reveal them. On the evidence before the Tribunal I am unable to positively draw any such conclusion.
Balancing the public interests
I have found one public interest consideration against disclosure; that relating to the disclosure of personal information contained in the conclusions drawn about the three administrators. I accept that disclosure of that information could reasonably be expected have an adverse impact on their professional reputations. This is a factor meriting real weight.
A counterpoint to that consideration, however, is the public interests consideration in favour of disclosure of information that could be reasonably expected to reveal or substantiate that a member of an agency has engaged in negligent or improper or unlawful conduct. This is, in many ways, the flip side of the personal information consideration. It is concerned with bring concerns about the adequacy of the administrators conduct into the public eye, with accordant risks to their professional reputations. It too merits real weight.
In addition I have found three further public interest considerations in favour of disclosure all of which I consider of substantial merit concerning as they do the accountability of and adequacy of systems for monitoring the risk of suicide in the mentally ill, and the tragic loss of a young woman's life.
In weighing those public interests I take into account the personal factors of the application in accordance with s 55. Those personal factors include AEF's motivation for seeking access. I accept that he fully he has a genuine and personal need to fully understand all the circumstances surrounding their daughter' death, the actions taken to investigate them and to ensure that action has been taken to prevent similar deaths.
On balance I consider that the public interest considerations in favour of disclosure outweigh that against disclosure.
Conclusion
With respect to the GIPA Act application I will make the following orders:
With effect 30 days from the publication of these reasons:
1. The decision of the Agency under the Government Information (Public Access) Act 2009 to refuse access to the Kimber Report, the Hoyle/Landrigan Report and the Taylor Report is set aside.
2. In lieu thereof the Tribunal the grant the applicant full access to the Kimber Report, the Hoyle/Landrigan report and the Taylor Report.
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Decision last updated: 11 May 2012
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