Black v Hunter New England Local Health District

[2024] NSWCATAD 373

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Black v Hunter New England Local Health District [2024] NSWCATAD 373

Hearing dates:

25 September 2024

Date of orders:

11 December 2024

Decision date:

11 December 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Bryant, Senior Member

Decision:

(1) Pursuant to section 55(2) of the Privacy and Personal Information Protection Act 1998, the Tribunal determines to take no action with respect to the matter.

(2) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, other than to the Tribunal and respondent, publication, broadcast, or disclosure of the confidential material filed by the respondent in these proceedings is prohibited.

Catchwords:

ADMINISTRATIVE LAW – health information — public interest considerations — whether contravention of health privacy principle 7 — same information previously requested and refused under the GIPA Act — previous Tribunal decisions

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Freedom of Information Act 1989

Government Information (Public Access) Act 2009

Health Records and Information Privacy Act 2002

Privacy and Personal Information Protection Act 1998

Cases Cited:

Black v Hunter New England Local Health District (No 2) [2012] NSWADT 235

Black v Hunter New England Local Health District (No 3) [2020] NSWCATAD 280

Black v Hunter New England Local Health District [2021] NSWCATAP 105

BY v Director General, Attorney General's Department [2002] NSWADT 79

Commissioner of Police, NSW Police Force v Ritson [2023] NSWCA 300

GA v Commissioner of Police, NSW Police [2004] NSWADT 254

Independent Liquor and Gaming Authority v D & D Natural Health Pty Ltd [2021] NSWCATAP 170

Klaric v Commissioner of Police [2020] NSWCATAD 47

Klaric v Commissioner of Police [2020] NSWCATAP 153

KP v Narrandera Shire Council (GD) [2011] NSWADTAP 15

MG v Department of Education and Training [2004] NSWADT 137

OD v Department of Education and Training (GD) [2005] NSWADTAP 74

Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220

Texts Cited:

None

Category:

Principal judgment

Parties:

Phillip Ross Black (Applicant)
Hunter New England Local Health District (Respondent)

Representation:

Applicant (self-represented)
Crown Solicitor (Respondent)

File Number(s):

2024/00241271

Publication restriction:

Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, other than to the Tribunal and respondent, publication, broadcast, or disclosure of the confidential material filed by the respondent in these proceedings is prohibited.

REASONS FOR DECISION

The decision under review

1. The applicant applied to this Tribunal under s 55 of the Privacy and Personal Information Protection Act 1998 (PPIP Act) for review of the decision of the respondent to refuse the applicant access to an unredacted copy of a report dated 30 December 2005 (the Report).

2. On 19 January 2024 the applicant made an access application under the Health Records and Information Privacy Act 2002 (HRIP Act) to be given the opportunity to read and take notes from a complete copy of the Report. On 1 March 2024 the respondent decided to refuse to deal with the application and/or provide access to the Report because there is an overriding public interest against disclosure under the Government Information (Public Access) Act 2009 (GIPA Act).

The issues

3. The issues for determination in this review are:

1. Whether, following the respondent’s conclusion that:

1. the respondent was entitled to refuse to deal with the applicant's request for access in reliance on s 60(1)(b) of the GIPA Act, and/or

2. there is an overriding public interest consideration against disclosure under cll 1(d), 3(a) and 3(b) of the Table to s 14 of the GIPA Act,

the respondent has contravened Health Privacy Principle 7 (HPP 7) by not providing the applicant access to a complete copy of the Report.

2. If a breach is established, what action should be taken under s 55(2) of the PPIP Act.

4. For the reasons that follow, I am satisfied that the respondent has not breached HPP 7 because the respondent was entitled to refuse to deal with the applicant's request for a complete version of the Report in reliance on s 60(1)(b) of the GIPA Act.

5. The Tribunal has determined to take no action in this matter under s 55(2) of the PPIP Act.

Legislation

The PPIP Act

6. The PPIP Act regulates the handling of personal information (other than health information) by public sector agencies, principally through 12 Information Protection Principles.

7. The HRIP Act regulates the handling of "health information" through 15 Health Privacy Principles (or HPPs).

8. The PPIP Act regulates the review of conduct by agencies under the PPIP Act and the HRIP Act.

9. Under s 52(1)(a) of the PPIP Act this includes “conduct” said to contravene an information protection principle that applies to the agency:

Part 5 Review of certain conduct

52 Application of Part

(1) This Part applies to the following conduct—

(a) the contravention by a public sector agency of an information protection principle that applies to the agency,

10. As will be seen below, HPP 7 is an “information protection principle” that applies to the respondent under the HRIP Act.

11. The Tribunal has jurisdiction under s 55 of the PPIP Act to undertake an administrative review of conduct that was the subject of an internal review under s 53(1) of that Act.

12. It is relevant to note that s 5 of the PPIP Act confirms that its operation is subject to the GIPA Act:

5 Government Information (Public Access) Act 2009 not affected

(1) Nothing in this Act affects the operation of the Government Information (Public Access) Act 2009.

(2) In particular, this Act does not operate to lessen any obligations under the Government Information (Public Access) Act 2009 in respect of a public sector agency.

13. Section 20 of the PPIP Act, which also refers to the GIPA Act, states:

20 General application of information protection principles to public sector agencies

(1) The information protection principles apply to public sector agencies.

(2) The application of the principles to public sector agencies—

(a) may be modified by privacy codes of practice, and

(b) is otherwise subject to this Act.

…

(5) Without limiting the generality of section 5, the provisions of the Government Information (Public Access) Act 2009 that impose conditions or limitations (however expressed) with respect to any matter referred to in section 13, 14 or 15 are not affected by this Act, and those provisions continue to apply in relation to any such matter as if those provisions were part of this Act.

The HRIP Act

14. The HRIP Act provides for the protection of the privacy of an individual’s health information in the public and private sectors, and for an individual’s access to, and complaints about access to, their health information (s 3).

15. Section 11 of the HRIP Act states that it applies to every “organisation” that is a health service provider (s 11(1)) which must comply with the HPPs (s 11(2)) and not do any thing or engage in any practice that contravenes the HPPs (s 11(3)). There is no dispute that the respondent is an organisation, public sector agency and health service provider for the purposes of s 11.

16. Clause 7 of Schedule 1 to the HRIP Act (HPP 7), which is relevant to these proceedings, states:

7 Access to health information

(1) An organisation that holds health information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information.

Note—

Division 3 (Access to health information) of Part 4 contains provisions applicable to private sector persons in connection with the matters dealt with in this clause.

Access to health information held by public sector agencies may also be available under the Government Information (Public Access) Act 2009 or the State Records Act 1998.

(2) An organisation is not required to comply with a provision of this clause if—

(a) the organisation is lawfully authorised or required not to comply with the provision concerned, or

(b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).

17. HPP 7 requires an organisation to provide an individual to whom the health information relates with access to their health information without delay or excessive expense.

18. Clause 11 of Schedule 1 to the HRIP Act (HPP 11) prevents an organisation from disclosing health information for a purpose (secondary purpose) other than the purpose for which it was collected (primary purpose) unless, among other things, the individual to whom the information relates has consented to the disclosure of the information for a secondary purpose.

19. Section 6 of the HRIP Act defines “health information” to mean:

(a) personal information that is information or an opinion about—

(i) the physical or mental health or a disability (at any time) of an individual, or

(ii) an individual’s express wishes about the future provision of health services to him or her, or

(iii) a health service provided, or to be provided, to an individual, or

(b) other personal information collected to provide, or in providing, a health service, …

20. Section 21 of the HRIP Act provides that the contravention of a HPP by a public sector agency is "conduct" to which Part 5 of the PPIP Act applies:

21 Complaints against public sector agencies

(1) The following conduct by a public sector agency is conduct to which Part 5 (Review of certain conduct) of the PPIP Act applies—

(a) the contravention of a Health Privacy Principle that applies to the agency,

…

(2) For that purpose, a reference in that Part—

(a) to personal information is taken to include health information, and

(b) to an information protection principle is taken to include a Health Privacy Principle,

21. Similar to the PPIP Act, s 22 of the HRIP Act confirms that its operation is subject to the GIPA Act:

22 Government Information (Public Access) Act 2009 not affected

(1) Nothing in this Act affects the operation of the Government Information (Public Access) Act 2009.

(2) In particular, this Act does not operate to lessen any obligations under the Government Information (Public Access) Act 2009 in respect of a public sector agency.

(3) Without limiting the generality of subsection (1), the provisions of the Government Information (Public Access) Act 2009 and the Privacy and Personal Information Protection Act 1998 that impose conditions or limitations (however expressed) with respect to any matter referred to in HPP 6 (Information about health information held by organisations), HPP 7 (Access to health information) or HPP 8 (Amendment of health information) are not affected by this Act, and those provisions continue to apply in relation to any such matter as if those provisions were part of this Act.

22. Section 22(3) of the HRIP Act provides that conditions or limitations imposed under the GIPA Act with respect to access to health information apply as if they were provisions of the HRIP Act. As a result, if an access application is legitimately refused or there is an overriding public interest against disclosure under the GIPA Act, an agency is not required to provide access to a document under the HRIP Act.

The GIPA Act

23. The GIPA Act facilitates access to NSW government information to the public by application for access unless there is an overriding public interest against disclosure (s 3).

24. “Government information” is defined broadly in s 4 of the GIPA Act to include “information contained in a record held by an agency”. There is no dispute that the unredacted Report is government information and the respondent is an agency for the purposes of the GIPA Act.

25. Section 5 creates a presumption in favour of the disclosure of the government information to the applicant unless there is an overriding public interest against disclosure. Section 9(1) gives the applicant a legally enforceable right to be provided with the information in accordance with Part 4, unless there is an overriding public interest against disclosure.

26. Section 12 clarifies that the public interest considerations are weighted in favour of disclosure of government information (s 12(1)) and that there is no limit on the public interest considerations supporting such disclosure that may be taken into account (s 12(2)).

27. Section 13 is key for the operation of the public interest test under the GIPA Act 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.

28. The public interest considerations against disclosure are set out in a Table to s 14 of the GIPA Act. Section 14 provides:

14 Public interest considerations against disclosure

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

(2) 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.

29. Section 14 limits the public interest considerations able to be relied upon in determining whether there is an overriding public interest against disclosure of government information to those listed in the Table to s 14 of the GIPA Act. The respondent in this case relies on the following public interest considerations against disclosure from the Table:

1. Clause 1(d) – that disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions,

2. Clause 3(a) – that disclosure of the information could reasonably be expected to reveal an individual's personal information, and

3. Clause 3(b) – that disclosure of the information could reasonably be expected to contravene a HPP under the HRIP Act.

30. Section 55(2) of the GIPA Act makes provision for the personal factors of the application (as defined in s 55(1)) to be taken into account as factors in favour of providing the applicant with access to the information.

31. Section 60 of the GIPA Act relevantly provides that an agency may to refuse to deal with an access application in certain circumstances:

60 Decision to refuse to deal with application

(1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason)—

…

(b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application,

The role of the Tribunal

32. The Tribunal has jurisdiction to review the decision or “conduct” of an “administrator” (the respondent), if “enabling legislation”, (in this case the PPIP Act), provides that applications may be made to it for a review of the decision or conduct: ss 4(1), 7(1) and (2), 8 and 9 of the Administrative Decisions Review Act 1997 (ADR Act). In determining an application for review, the Tribunal is to decide what the correct and preferable decision or conduct is having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: s 63 of the ADR Act. For the purpose of reviewing the decision or conduct, the Tribunal may exercise all functions conferred or imposed by any relevant legislation on the administrator: s 63(2) ADR Act.

33. The former NSW Administrative Decisions Tribunal (ADT) in GA v Commissioner of Police, NSW Police [2004] NSWADT 254 articulated the preconditions for the exercise of the Tribunal’s jurisdiction under s 55 (at [4]):

There are three pre-conditions to the Tribunal’s jurisdiction under s 55:

- The person must have made an application for internal review under s 53;

- The person must be dissatisfied with the findings of the review or the action taken by the public sector agency in relation to the application; and

- The person must be asking the Tribunal to review the conduct that was the subject of the application.

34. The scope of the Tribunal’s review is limited by the applicant’s application for internal review and its scope: see OD v Department of Education and Training (GD) [2005] NSWADTAP 74 at [13]-[14].

35. As the Appeal Panel of the former ADT stated in KP v Narrandera Shire Council (GD) [2011] NSWADTAP 15, at [23]-[24]:

The Tribunal may decide to take no action 'on reviewing the conduct'. It is uncontroversial that the Tribunal can decide to take no action whether or not it finds that the alleged conduct contravenes an Information Protection Principle (or a privacy code of practice or discloses personal information kept in a public register): AW v Vice Chancellor, University of Newcastle [2008] NSWADT 86; NW v New South Wales Fire Brigades (No 2) [2006] NSWADT 61 at [24]. But it must first make a finding. Section 55 does not give the Tribunal a discretion to review or not to review the conduct that is the subject of the application.

…

Section 55(2) does not give the Tribunal power 'not to carry out . . . a review'. In our view, s 55 requires the Tribunal to review the conduct and make a finding as to whether or not there has been a contravention of an information protection principle (or other contravention or disclosure as defined in s 52(1)) before deciding to take no action.

Background

36. These proceedings concern the Report that is held by the respondent.

37. The applicant has sought access to the Report in various ways and by various means since 2007. This has included applications under the GIPA Act (and the Freedom of Information Act 1989, the PPIP Act and HRIP Act before that). The history since 2011 was outlined in the respondent’s submissions as follows:

14. In 2011, the applicant made an application under the GIPA Act for access to the Report. The respondent determined there was an overriding public interest against disclosure of information contained in the report and, again, refused access to the report in its entirety.

15. The applicant sought administrative review of the respondent's decision by the Administrative Decisions Tribunal. In Black v Hunter New England Local Health District […] (No. 2) [2012] NSWADT 235, the Tribunal set aside the decision of the agency with respect to the Report and, in substitution, determined to:

a.   grant access, in part, to a copy of the report, containing personal information and health information about the applicant; and

b.   refuse access to the remaining information in the report.

16. The respondent subsequently provided the applicant with a redacted copy of the Report in accordance with the Tribunal's orders.

17. The applicant made a further application for the Report under the GIPA Act in March 2020. The respondent determined to refuse to deal with this application in reliance on s. 60(1)(b) of the GIPA Act, on the grounds that the respondent had already decided a previous application for the information made by the applicant, and there were no reasonable grounds for believing that the respondent would make a different decision on the application.

18. The respondent's decision to refuse to deal with the applicant's access application was subsequently affirmed by the Tribunal on administrative review: Black v Hunter New England Local Health District (No 3) [2020] NSWCATAD 280.

19. The Tribunal's decision was then affirmed on appeal: Black v Hunter New England Local Health District [2021] NSWCATAP 105.

38. On 19 January 2024 the applicant applied under the HRIP Act to be able to view a complete copy of the Report, and to take notes.

39. On 1 March 2024, the respondent advised the applicant that his request to access the unredacted Report to view and take notes was declined. The applicant was offered a redacted copy of the Report, the same as he had been provided with previously (in accordance with the Tribunal’s decision in Black v Hunter New England Local Health District (No 2) [2012] NSWADT 235), with specific information withheld.

40. The applicant sought internal review of the respondent’s decision on 25 March 2024 under s 53(1) of the HRIP Act. The internal review decision dated 17 June 2024 found that there had been no contravention of HPP 7. The internal review report stated:

3.1.1.1 Assessment

…the right under HPP7 to access personal information is subject to the limitations on accessing information under the GIPA Act. This is because section 22(1) of the HRIPA provides that nothing in the HRIPA affects the operation of the GIPA Act.

…

The GIPA Act does not authorize the disclosure of information that is subject to an "overriding public interest against disclosure". It follows that the right to access health information under HPP 7 does not include a right to access information which is subject to an overriding public interest against disclosure under the GIPA Act.

…

Consideration was also given to the following NCAT decisions:

o   Black v Hunter New England Local Health District (No 2) — [2012] NSWADT 235 that allowed the applicant to have access to a redacted copy of the report.

o   Black v Hunter New England Local Health District (No 3) [2020] NSWCATD 280 that affirmed the LHD's decision to refuse to deal with the applicant's application for a report on the grounds that it had already decided a previous application for the information concerned made by the applicant, and there were no reasonable grounds for believing that it would make a different decision on the application. In reaching this decision, the Tribunal stated in part:

17.   Taking these personal matters into account on both the positive and negative sides, and also taking account of the age of the document, I am not convinced that (while recognising the distress that the applicant suffers from not being able to let go) these factors weigh sufficiently on the positive side of granting access, against the negative factors which remain extant, and which received detailed consideration in [Black] v HNELHD (No.2).

18. On this basis it is the Tribunal's view that the 2nd limb of Sec 60(1)(b) GIPA is not satisfied, i.e. there are no reasonable grounds for believing the agency would make a different decision on the access claim.

Relying on clause 3(a) and (b) of Table 14 of the GIPA Act, the Privacy Contact Officer determined that there were public interest considerations against disclosure of parts of the report, as it contained both personal and health information relating to other individuals. Considering the previous NCAT decisions, they concluded that the public interest considerations against disclosing the personal information of others, on balance, outweigh the public interest consideration in favour of the disclosure of this information.

Based on this assessment, it is my view that the decision by HNELHD not to release a complete copy of the health records requested by the applicant was soundly made.

…

4.   Findings

The review has concluded that a breach of HPP 7 (Access to Personal Health Information) has not occurred.

…

5.2 Recommended Action

In accordance with Section 53 (7) of the PPIPA, the following recommendations are made:-

- That no additional information requested by the applicant should be released at this time.

- That no further action is required by HNELHD.

41. The applicant filed his application for administrative review on 1 July 2024. The applicant seeks for the respondent's conduct to be reviewed under s 55 of the PPIP Act.

42. On 14 August 2024 the Tribunal made an order under s 59 of the Civil and Administrative Tribunal Act 2013 (CAT Act) relieving the respondent of the obligation to lodge an unredacted copy of the Report with the s 58 documents and enabling the respondent to file an unredacted copy of the Report on a confidential basis, subject to an order under s 64 prohibiting publication and restricting disclosure to the respondent and the Tribunal.

Material before the Tribunal

43. The applicant provided letters, copies of other correspondence and written submissions to the respondent and Tribunal.

44. The respondent provided a bundle of material, the Report filed on a confidential basis, and written submissions to the applicant and Tribunal.

45. Both parties made oral submissions at the hearing.

46. No witnesses were required for cross examination.

The applicant’s case

47. The applicant’s access application includes the definition of “health information” in the HRIP Act, the purpose of the HRIP Act in s 3(1)(b) “enabling individuals to gain access to their health information”, the object of the HRIP Act in 3(2)(b) “to enhance the ability of individuals to be informed about their health care”, and HPP 7 to submit that:

1. The redacted information in the Report contains opinions about him, that were included by the author of the Report,

2. The applicant has a legal right to the information in the Report and the respondent “must” provide him with access to it,

3. The applicant requires a reasonable opportunity to inspect and take notes from the information pursuant to s 28(1)(b) of the HRIP Act.

48. In relation to the GIPA Act, the applicant submits:

Numerous other Acts have been used to deny my simple request. GIPA Act and HRIP Act are the relevant acts applicable to my simple request.

…

Again, my simple application to read the report, which I have an undeniable legal right to do so, has been made into a complicated example of a waste of tax [payer] funds, resources and time, which is completely against the objectives of the GIPAA 3(2).

…

Valid reasons for disclosure completely out weigh reasons for non disclosure but this fact is always denied and never fairly applied to my requests. Reasons for NON disclosure are very limited and specific, reasons for disclosure are not. Refer GIPA Schedule.

49. In relation to the previous decisions (including Tribunal decisions) about access, the applicant submits:

Its another example of how the crown solicitors, agencies, tribunals, commissions etc. have always blatantly and unjustly been hell bent on denying a member of the public their legal rights and justice to access [personal] information.

…

Re Higgins decision 2010 this decision is false and misleading prior to the release of a [heavily] redacted copy of the report, which gave me the chance to read the released information, I did not have any knowledge of the contents of the report which Higgins claimed I did. Because the redacted copy of the report was released under appeal, I could not challenge his decision.

…

It is fair to claim that different decisions could have been reached if my various applications received full, fair and proper evaluation based on my legal rights at a number of hearings before various commissions. I had to deal with solicitors and barristers from the Crown Solicitors Office. … This meant I faced an impossible foe who I had no chance to challenge or debate.

50. The applicant expressed the reason for his interest in the Report and not having full access to it in the following terms:

It is a FACT, that I have never met or spoken to the Psychiatrist or Psychologist mentioned … and I’m not sure who the GP’s would be. What LEGAL RIGHT did [the author of the Report] have to consult with these people and use their comments in the report which is a PLANNED and DELIBERATE PSYCHOLOGICAL ABUSE of me to support her then client. Her actions were ILLEGAL.

My understanding is that there has never been a similar matter ever dealt with by any tribunal, commission or agency, therefore the way this matter has been handled is incorrect and has set a precedent which is false and incorrect.

…

It is impossible to fully explain the detrimental effect the publishing of this report has had on my life and my family, since December 2005. It continues to do so, why because my children have decided that my x and I should not be in the same room or family events, and preference is given to her.

The respondent’s case

51. The respondent submitted that it is lawfully authorised or required not to comply with HPP 7(1) in relation to the information sought by the applicant because HPP 7(2), together with s 22 of the HRIP Act, operate so that the conditions or limitations for accessing information under the GIPA Act apply. Specifically, the respondent submits that in this case:

1. The respondent was entitled to refuse to deal with the applicant's request for a complete version of the Report in reliance on s 60(1)(b) of the GIPA Act, as there are no reasonable grounds for believing that the respondent would make a different decision on the applicant's application for access to the Report under the HRIP Act. Here the respondent relied on its previous decision to refuse to deal with the applicant’s application for access to the unredacted Report under s 60(1)(b) of the GIPA Act, that was affirmed by the Tribunal as the correct and preferable decision in Black v Hunter New England Local Health District (No 3) [2020] NSWCATAD 280 (Black (No 3)). The Tribunal's decision in Black (No 3) was affirmed on appeal: Black v Hunter New England Local Health District [2021] NSWCATAP 105.

2. In addition, or in the alternative, there is an overriding public interest consideration against disclosure under cll 1(d), 3(a) and 3(b) of the Table to s 14 of the GIPA Act. Here the respondent replied upon the decision in Black v Hunter New England Local Health District (No 2) [2012] NSWADT 235 (Black (No 2)) that allowed the applicant to have access to personal information and health information about the applicant in the Report but refused access to the remainder of the information in the Report on the basis of cll 1(d), 3(a) and 3(b) of the Table to s 14 of the GIPA Act.

Consideration

52. The Tribunal was able to review and consider an unredacted version of the Report the subject of the applicant’s access application.

53. The document to which the applicant seeks access is a 9-page report that was received by the respondent on or around 30 December 2005. The Report concerns the applicant and was prepared by the treating psychologist of the applicant's former wife. The name of the treating psychologist of the applicant's former wife was subject to a suppression order by the Tribunal in Black (No 3).

The effect of the GIPA Act on an application under the HRIP Act

54. In Commissioner of Police, NSW Police Force v Ritson [2023] NSWCA 300 (Ritson) the Court of Appeal confirmed that an agency’s ability to refuse to deal with an access application for specified reasons under s 60 of the GIPA Act constitutes a “condition or limitation” on access to that information for the purposes of s 20(5) of the PPIP Act (see Ritson at [66]). The Court of Appeal in Ritson concluded (at [71]):

For these reasons, the provision of access to documents pursuant to a request under s 14 of the Privacy Act should be read down so as to exclude the need to process an application in circumstances where s 60(1)(a), subject to subs (4), is engaged. A similar result may be reached by a process of implication from the terms of the Privacy Act, by application of s 25(b).

55. The respondent submitted that:

41. Applying the Court of Appeal's analysis in Ritson, the Tribunal may be satisfied in this case that:

a. The provision of access to health information pursuant to a request under HPP 7(1) of the HRIP Act should be read down so as to exclude the need to process an application for information in circumstances where s 60(1)(b) of the GIPA Act is engaged; and

b.   That the same result is reached by relying on HPP 7(2), as the respondent is lawfully authorised to not deal with the request.

42. It is submitted that the Tribunal in this case may rely on the conclusions reached by the Tribunal previously in Black v Hunter New England Local Health District (No 3) to satisfy itself that the conditions for refusing to deal with the applicant's application are satisfied. Relevantly, in its 2020 decision the Tribunal found that:

a. The information to which access is sought (that is, the Report) is the same information as was sought by the applicant's 2011 application. That application was determined by the Tribunal which decision, by application of s. 66 of the Administrative Decisions Review Act 1997, was taken to be a decision of the respondent (at [9] and [11]); and

b.   There were no reasonable grounds for believing that the agency would make a different decision on the later access application (at [17]-[18]).

56. The Tribunal decisions in Black (No 2) and Black (No 3) involved consideration of access applications of the applicant to the unredacted Report under the GIPA Act. Here the applicant requested the respondent to provide access to the unredacted Report under the HRIP Act, for the purposes of viewing and taking notes, in accordance with HPP 7. In the current proceedings, the means through which access has been sought and type of access stipulated has changed. However, the information sought and the reasons for the application are the same. Contrary to the applicant’s submissions, he does not have an “undeniable legal right” to read the unredacted Report – this depends on the requirements and application of the relevant laws.

57. After considering the material before the Tribunal, the relevant legislative provisions, the Court of Appeal’s decision in Ritson, and the Tribunal’s decisions in Black (No 2) and Black (No 3), I am satisfied that the respondent’s submissions at [55] are correct.

58. This is because there has been no change in circumstances since the decision in Black (No 3) that would cause the Tribunal to reach a different conclusion regarding the outcome of the applicant's application to access an unredacted copy of the Report on this occasion. The applicant is unable to subvert the outcome of the previous applications under the GIPA Act by an application under the HRIP Act. Such an outcome would undermine the intention of Parliament for the “harmonious operation” of the PPIP Act and the GIPA Act as part of the overall legislative scheme regarding information held by the government: Ritson at [52].

Refusal to deal with the application under s 60(1)(b) of the GIPA Act

59. Section 60(1)(b) was considered by the Tribunal in Klaric v Commissioner of Police [2020] NSWCATAD 47 (Klaric). The Tribunal described the requirements of the section in the following terms (at [30]):

There are two components to s 60(1)(b) of the GIPA Act. The first is whether the agency has already decided a previous application for the information concerned in the present application, or information that is substantially the same as that information; and secondly, whether there are reasonable grounds for believing that the agency would make a different decision on the application.

60. The Tribunal’s decision in Klaric was upheld by the Appeal Panel in Klaric v Commissioner of Police [2020] NSWCATAP 153, which aptly stated at [31]-[32]:

When reviewing a decision under s 60(1)(b), the Tribunal is not required to assess the merits of the previous decision. In relation to Mr Klaric’s application, the Tribunal was not required to review the Commissioner’s previous decision that he did not hold certain information. Nor was the Tribunal required to review the truth or falsity of what is written in the information provided by the Commissioner. Rather, the Tribunal is required to be satisfied that there are no reasonable grounds for believing that the agency would make a different decision on the application.

The Tribunal understood the meaning of s 60 and correctly applied it to the facts of this case. It would have been an error for the Tribunal to embark on a re-hearing of the merits of Mr Klaric’s previous applications.

61. It would be erroneous for the Tribunal to embark on a re-hearing of the merits of the applicant’s previous applications for access to the Report.

62. The Tribunal relies upon the conclusions reached by the Tribunal previously in Black (No 3) in satisfying itself that the conditions for refusing to deal with the applicant's application under 60(1)(b) of the GIPA Act are satisfied.

63. Turning to the two components of s 60(1)(b) of the GIPA Act, the Tribunal is satisfied that:

1. the agency has already decided a previous application under the GIPA Act for the information concerned in the present application, being an unredacted copy of the Report; and

2. there are no reasonable grounds for believing that the agency would make a different decision on the application.

64. The respondent is not required deal with an application for access to health information pursuant to the applicant’s request under HPP 7(1) of the HRIP Act in circumstances where s 60(1)(b) of the GIPA Act is engaged, by virtue of HPP 7(2). Such an outcome is also consistent with s 5 of the PPIP Act and ss 22(1)-(3) of the HRIP Act.

65. As a result, I find that the conduct of the respondent that was the subject of the internal review application was not conduct that contravened HPP 7 of the HRIP Act.

Previous Tribunal decisions

66. The applicant and the respondent have each referred to earlier decisions of the Tribunal involving the Report. The applicant criticised earlier decisions of the Tribunal, suggesting that they have been wrongly decided. The respondent referred to the previous Tribunal decisions, in particular Black (No 2) and Black (No 3) in support of its position.

67. The ADT in MG v Department of Education and Training [2004] NSWADT 137 considered the effect of earlier decisions of the Tribunal at [35]-[36]:

MG’s arguments are dependent upon the view that two earlier decisions of the Tribunal, Y’s case and BQ, should not be followed. While I agree that there is no obligation to follow earlier decisions, the Tribunal should be slow to reopen rulings of an earlier Tribunal. This is particularly so where earlier rulings were made following detailed submissions, including submissions from the Privacy Commissioner, as was the case in both Y’s case and BQ.

In BY v Director General, Attorney General's Department [2002] NSWADT 79, President O'Connor dealt with the question of precedent in the Tribunal as follows:

"Threshold Issue: Reopening Prior, Considered Tribunal Rulings

21 The threshold question that arises before considering any further these contentions is whether the present Tribunal should revisit the prior considered rulings. Counsel for the Administering Minister acknowledged the importance of different panels of a Division of the Tribunal being seen to deal consistently with the same or like questions. He acknowledged that the view might be taken that it would not be appropriate to revisit the previous, considered rulings.

22 In my view, a later Tribunal should exercise caution in reopening prior, considered rulings of an earlier Tribunal. Ordinarily a later Tribunal should adopt the ruling of the earlier Tribunal; and leave these questions to be finally determined within the Tribunal at the Appeal Panel level. Notably in the earlier cases where the Administering Minister’s submissions have been rejected, there was no appeal; but that may have been, as counsel for the Administering Minister suggested at hearing, because ultimately following full substantive consideration the determinations in issue were affirmed.

23 Normally a prior considered Tribunal ruling should only be reopened if a new, significant argument is raised before the later Tribunal. This is not such a case. Nonetheless, I consider that some discretion should be allowed to a Divisional Head sitting at first instance to revisit prior rulings, where the Divisional Head has doubts about the prior rulings or the questions involved are of great significance, such as ones raising important issues of power or jurisdiction. (Such a ruling may itself be appealed to the Appeal Panel. In that event, the Divisional Head, who would customarily preside, is ineligible. Where there is an appeal in relation to such a ruling, the Appeal Panel should, in my view, give consideration, if it regards the ruling as doubtful, to referring the controversial question to the Supreme Court for determination.)”

68. As the Appeal Panel stated in Independent Liquor and Gaming Authority v D & D Natural Health Pty Ltd [2021] NSWCATAP 170 at [51] (cited with approval in Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 at [98]):

The Tribunal is not bound by the doctrine of precedent to follow earlier decisions. However, in the context of the legislation governing one of the predecessor Tribunal’s to NCAT – the Administrative Decisions Tribunal – it was said that the Tribunal should ordinarily follow decisions of the Appeal Panel and decisions of the Tribunal as constituted by the President or a Deputy President, unless they are clearly wrong: Rittau v Commissioner of Police [2000] NSWADT 186 at [60]. We agree, however no such qualification has been expressed in relation to first instance decisions by Tribunal Members other than the President or a Deputy President. It follows that the Tribunal did not make a legal error by failing to follow the decision in MJ Trading v Independent Liquor and Gaming Authority [2018] NSWCATAD 260.

69. This Tribunal is not bound to follow previous Tribunal decisions, although the Tribunal should ordinarily follow decisions of the Appeal Panel and decisions of the Tribunal as constituted by the President or a Deputy President, unless they are clearly wrong. Black (No 2) was a decision of the then Deputy President of the ADT. The decision in Black (No 3) was upheld by the Appeal Panel in Black v Hunter New England Local Health District [2021] NSWCATAP 105. No identifiable error or new, significant arguments have been raised by the applicant which would cause the Tribunal to have concerns about the previous Tribunal decisions in either Black (No 2) or Black (No 3). Broad assertions from the applicant that a previous decision is “false and misleading” because the Tribunal assumed he had knowledge of what was in the Report, and that the prior decisions were not a “full, fair and proper” evaluation based on the applicant’s legal rights, are insufficient.

Public interest considerations balancing test

70. The respondent also relied upon the public interest considerations against disclosure in cll 1(d), 3(a) and 3(b) of the Table to section 14 of the GIPA Act as grounds for refusing access to the information, namely:

1. Clause 1(d) - that disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions,

2. Clause 3(a) - that disclosure of the information could reasonably be expected to reveal an individual's personal information, and

3. Clause 3(b) - that disclosure of the information could reasonably be expected to contravene a HPP under the HRIP Act.

71. Following my decision at [62]-[65] above it is not necessary to consider this issue further.

72. However, even if I was unable to be satisfied that the respondent’s conduct did not contravene HPP 7 in reliance on s 60(1)(b) of the GIPA Act, I am also satisfied, consistent with the assessment of the Tribunal in Black (No 2), that the public interest considerations against disclosure in cll 1(d), 3(a) and 3(b) of the Table to section 14 of the GIPA Act outweigh the public interest considerations in favour of disclosure, thereby reaching the same outcome.

Conclusion

73. I am satisfied that the respondent was entitled to refuse to deal with the applicant's request to access a complete version of the Report in reliance on s 60(1)(b) of the GIPA Act.

74. It follows that I am satisfied that the conduct of the respondent has not contravened HPP 7.

75. The appropriate order is to take no action in regard to the matter raised in the applicant’s administrative review application.

Orders

1. Pursuant to section 55(2) of the Privacy and Personal Information Protection Act 1998, the Tribunal determines to take no action with respect to the matter.

2. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, other than to the Tribunal and respondent, publication, broadcast, or disclosure of the confidential material filed by the respondent in these proceedings is prohibited.

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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: 11 December 2024