Black v Hunter new England Local Health District
[2011] NSWADT 295
•14 December 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Black v Hunter New England Local Health District [2011] NSWADT 295 Decision date: 14 December 2011 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: 1.Pursuant to subsection 107(3) of the Government Information (Public Access) Act 2009, Confidential Exhibit DA1, Confidential Exhibit DA 2 and Confidential Exhibit MF1 are received into evidence and argument is to be heard in regard to these Exhibits in the absence of the public, the applicant and the applicant's representative.
2.The application of the first respondent in regard to Confidential Exhibit MF2 and the Confidential Statement of the second respondent is adjourned to the next directions date.
3.The first and second respondent to file and serve any further evidence and written submissions in regard to application File No 113151 and application File No 113232 by 13 January 2012.
4.This application and application File No 113232 is adjourned for further directions on 17 January 2012 at 2pm.
Catchwords: Access to documents - procedure for dealing with public interest considerations - receiving evidence and hearing argument in the absence of the public and the applicant Legislation Cited: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989 (repealed)
Government Information (Public Access) Act 2009
Government Information (Public Access) (Consequential Amendments and Repeal) Act 2009 (repealed)Cases Cited: Commissioner of Police v Gray [2009] 74 NSWLR 1
Gypsy Jokers Motorcycle Club Inc. v Commissioner (2008) 234 CLR 532Category: Interlocutory applications Parties: Phillip Black (Applicant)
Hunter New England Local Health District - (First Respondent)
Dr Glenda Lattimore (Second Respondent)Representation: Counsel
B Tronson (Applicant)
M Izzo (Second Respondent)
Public Interest Advocacy Centre Ltd (Applicant)
Crown Solicitor (First Respondent)
McCabe Terrill Lawyers (Second Respondent)
Office of the Information Commissioner
File Number(s): 113151
REasons for decision
Introduction
GENERAL DIVISION: S HIGGINS, DEPUTY PRESIDENT. On 17 June 2011, the applicant, Mr Black, lodged an application for review of a decision of the respondent, Hunter New England Local Health District (HNELHD) to refuse Mr Black's request, under the Government Information (Public Access) Act 2009 (GIPA Act), for access to two documents. The documents for which Mr Black sought access were the following:
(a) Mental Health Triage Module created by Peter Scollay dated December 2005 (the Triage Report). The HNELHD determined to refuse Mr Black access to the entire Triage Report. However, a copy was provided with some information redacted;
(b) 'Brief Psychological Report' relating to Mr Black, as supplied to Mr P Scollay, Taree Mental Health, by fax on 30 December 2005 (the Psychological Report). There is no dispute that this report was prepared by Dr Glenda Lattimore, a psychologist. HNELHD determined to refuse Mr Black access to this Report. However, the HNELHD suggested that Mr Black may wish to pursue an option of receiving a verbal summary of the documents as paraphrased by a senior mental health clinician at HNELHD, or by undergoing a mental health assessment. Mr Black did not accept this suggestion and has pressed access to the information in this document. I understand, the HNELHD has now resiled from this offer.
The decision for which Mr Black seeks review is the decision of the HNELHD, made on reconsideration, after Mr Black had sought review by the Office of the Information Commissioner (OIC), of HNELHD's initial determination.
In its decision the HNELHD found, in regard to the deleted information in the Triage Report and the entire information in Psychological Report, that the public interest factors against disclosure outweighed the public interest factors in favour of disclosure. In making its determination the HNELHD relied on the following prescribed public interest factors against disclosure, as listed in the Table to section 14 of the GIPA Act:
- would prejudice the supply to an agency of confidential information that facilitates the effective exercise of an agency's functions (1(d));
- result in the disclosure of information provided to an agency in confidence (1(g));
- would release personal information of other persons (3(a));
- would contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a health privacy principle under the Health Records and Privacy Act 2002 (3(b)); and
- would expose a person or persons to a risk of harm or of serious harassment or serious intimidation (3(f)).
By consent, on 29 August 2011, Dr Lattimore was made a party to the proceedings arising from Mr Black's application for review. Prior to this, on 15 August 2011, Dr Lattimore also lodged an application for review seeking review of the decision of the respondent to the extent it suggested that Mr Black be granted access to the psychological report through the means of a verbal summary. That application is file number 113232.
For the purpose of this application, the HNELHD made an application, under subsection 107(3) of the GIPA Act, for the Tribunal receive certain documents into evidence and hear argument in the absence of the public, the applicant and the applicant's representative. Mr Black objected to this application and as a result I set this preliminary issue down for hearing on 19 October 2011 and made orders for the filing and serving of evidence and submissions on this issue.
Written submissions were filed and served by the legal representatives of the parties (including Dr Lattimore) and the OIC. In addition to this the HNELHD filed and served two statements, a statement of Dinesh Arya, the Director of Mental Health and Clinical Lead Innovation Support Unit of the HNELHD and a statement of Mary Anne Fernandez, the Acting Executive Support Manager, Clinical Governance, at the HNELHD. The statement of Dr Ayra and Ms Fernandez each made reference to Confidential Exhibits, which are the subject of the HNELHD's application under section 107. The Tribunal was provided with a copy of these Confidential Exhibits, which were marked DA1, DA2, MF1 and MF2. The Tribunal was also provided, in confidence, with a statement of Dr Lattimore.
On 19 October 2011, after hearing short arguments from the legal representatives of the parties on the proper construction of section 107 of the GIPA Act I reserved my decision. I have now considered all the material and the relevant legislation and these are my reasons for decision in regard to this interlocutory application of the HNELHD.
Issues
There are essentially two matters in issue. These are:
(a) the proper construction of subsection 107(3) of the GIPA Act; and
(b) whether the documents the subject of this application of the HNELHD should be received by the Tribunal in the absence of the public, Mr Black and Mr Black's legal representative. Mr Black is not objecting to the Tribunal receiving these documents into evidence in his absence and that of the public. However, he does object to them being received by the Tribunal in the absence of his legal representative.
The OIC has also raised an ancillary issue, as to whether section 107(3) of the GIPA Act applies to the Information Commissioner.
The documents the subject of the s107 application
It is convenient to first set out the documentary evidence the HNELHD seeks to have adduced into evidence in the absence of the public, the applicant and the applicant's legal representative. These are as follows:
(a) Confidential Exhibit DA1 and Confidential Exhibit DA2 - these Exhibits are copies of the documents for which Mr Black seeks access and the subject of his application for review (see statement of Dr Dinesh Arya at paragraphs 17 and 20);
(b) Confidential Exhibit MF1 and Confidential Exhibit MF2 - these Exhibits are copies of correspondence from McCabe Terrill Lawyers as a result of consultation by HNELHD (formerly HNEAHS)(see paragraphs 7 and 31 of the statement Ms Fernandez). Confidential Exhibit MF1 is as a result of consultation under section 31 of the Freedom of Information Act 1989 (repealed)(FOI Act) following Mr Black's original 2007 request for access to documents under the FOI Act. Confidential Exhibit MF2 is as a result of consultation under section 54 of the GIPA Act following Mr Black's request for access that is the subject of this application; and
(c) a confidential statement of Dr Lattimore, prepared for the purpose of this application by Mr Black.
Relevant legislation
The GIPA Act commenced operation on 1 July 2010. On the provisions of the GIPA Act coming into operation, the Freedom of Information Act 1989 was repealed: see section 3 of the Government Information (Public Access) (Consequential Amendments and Repeal) Act 2009. Accordingly, the GIPA Act provides a new mechanism for access to government information.
The objects of the GIPA Act are set out in section 3, which provides as follows:
3 Object of Act
(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
(a) authorising and encouraging the proactive public release of government information by agencies, and
(b) giving members of the public an enforceable right to access government information, and
(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
(2) It is the intention of Parliament:
(a) that this Act be interpreted and applied so as to further the object of this Act, and
(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
'Government information' is broadly defined in section 4 to mean: 'information contained in a record held by an agency'. Part 2 of the GIPA Act contains provisions concerning the general principles to be applied in regard to access to government information. Division 1 in this Part deals with ways of accessing government information. Section 5 in this Division provides:
There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Section 9 in this Division gives every person who makes an access application for government information a legally enforceable right to be provided with access to the information in accordance with the Act, unless there is an overriding public interest against disclosure of the information. Section 11 in this Division sets out those provisions in another Act or law for which there is a conclusive presumption of an overriding public interest against disclosure. These provisions are referred to as an 'overriding secrecy law'. Section 11 was no application to Mr Black's application for access.
Division 2 of Part 2 deals with those circumstances where the section 11 conclusive presumption of an overriding public interest against disclosure does not apply. Section 13 in this Division sets out the public interest test which is to be otherwise applied to applications for access to government information under that Act. That section 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.
Section 12 in this Division sets out examples of public interest considerations in favour of disclosure and section 14 sets out the (i.e. the only) public interest considerations against disclosure of government information.
Part 3 of the Act deals with information of an agency that is to be made publicly available (i.e. open access information).
Part 4 contains provisions in regard to making an application to a government agency for access to information held by it (Division 1), and how the agency is to (a) process and deal with such applications (Divisions 2 and 3), (b) determine such applications (Division 4 and 5) and (c) provide access (i.e. form of access) (Division 6). Section 54 in Division 3 of Part 4 makes provision for an agency to consult with another party in certain cases when processing an access application made under Division 1. Section 58 in Division 4 of this Part sets out the decisions an agency can make in regard to an application for access under Division 1 of this Part. It is these decisions, which are reviewable by the Tribunal under Part 5 of the GIPA Act (see section 80 of the GIPA Act). Included in these decisions is a decision to refuse to provide access to the information because there is 'an overriding public interest against disclosure of the information' (see paragraph 58(1)(d) and (f)). As I have indicated, in this application the decision of the HNELHD was to refuse Mr Black's application for access on the grounds that there was 'an overriding public interest against disclosure of the information'.
Part 5 of the GIPA Act deals with reviews of decisions (determinations) of a government agency in regard to an access application made and determined under Part 4 of the Act. Provision is made for internal review by the agency (Division 2), the Information Commissioner (Division 3) and the Tribunal (Division 4). Section 100 in Division 4 gives a person (e.g. the access applicant under Division 1 of Part 4) who is aggrieved by a decision of an agency made under section 58 (i.e. a reviewable decision) the right to apply to the Tribunal for a review of that decision. Section 104 in this Division gives the Information Commissioner and any other person who could be aggrieved by a decision of the Tribunal under that Division a right to be appear and be heard in proceedings for review before the Tribunal. A person who could be aggrieved is generally a third party with whom the agency has consulted in accordance with section 54 in Division 3 of Part 4 of the GIPA Act. In this application, Dr Lattimore is such a person in so far as it relates to the report. However, as I have already indicated, Dr Lattimore has by consent been joined as a party to these proceedings initiated by Mr Black.
Section 107, in Division 4 of Part 5, sets out the procedure to be adopted by the Tribunal in dealing with 'public interest considerations'. That section provides as follows:
107 Procedure for dealing with public interest considerations
(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.
(3) On an ADT review, the ADT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of:
(a) the public and the applicant, and
(b) the applicant's representative if the ADT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.
Proper construction of s107(3)
As a general rule the Tribunal is required to accord procedural fairness in exercising its functions under the Administrative Decisions Tribunal Act 1997 (the ADT Act): see subsections 73(2) and 73(4) of the ADT Act and Commissioner of Police v Gray [2009] 74 NSWLR1. Procedural fairness includes receiving evidence and hearing argument in the presence of both parties and their respective representative: see subsection 75(1) of the ADT Act.
Parliament, however, may validly legislate to exclude or modify the rules of procedural fairness: Gypsy Jokers Motorcycle Club Inc. v Commissioner (2008) 234 CLR 532 at 598. To exclude or modify the rules of procedural fairness, Parliament is required to do so by 'plain words of necessary intendment'. Paragraphs 75(2)(c) and (d) of the ADT Act contain an express modification of this nature.
It is not disputed that section 107 of the GIPA Act also has the effect of modifying the general rule and that it applies notwithstanding the discretion contained in subsection 75(2) of the ADT Act: see also section 40 of the ADT Act. The question is to what extent does section 107(3) of the GIPA Act modify the general rule that evidence is to be received and heard in the presence of the public, Mr Black and his/her representative.
As noted in the written submissions of the parties, subsections 107(1) and (2) are in similar terms to section 55 of the repealed FOI Act. While section 55 made reference to 'exempt matter', section 107 makes reference to 'information for which there is an overriding public interest against disclosure.' Subsection 107(3) is in terms similar to those in subsection 57(2) of the repealed FOI Act. However, they do differ in some respect. Subsection 57(2) only applied to a 'restricted document'. A 'restricted document' was defined in section 6 of the repealed FOI Act to mean a document referred to in any one or more of the provisions of Part 1 of Schedule 1. Schedule 1 concerned exempt documents and Part 1 related to a 'restricted document', which are defined in the repealed Act to be cabinet documents (clause 1), Executive Council documents (clause 2) and documents affecting law enforcement and public safety (clause 4).
The Tribunal regularly applied section 55 of the repealed FOI Act when hearing and determining applications for review of decisions of an agency under that Act so as not to disclose the content of a document, or information in a document that an agency had determined to be exempt under that Act. The Appeal Panel, in a decision of an earlier appeal by Mr Black (see Black v Commissioner of Police, NSW Police Force [2008] NSWADT AP 80, at [17]) gave the following explanation of the procedures of the Tribunal in regard to its obligations under section 55 of the repealed FOI Act:
'...[Ordinarily] courts and tribunal proceed in open. In a dispute over whether a document is to be withheld, it will sometimes occur that the agency will wish to proceed in a closed session. It may wish to refer expressly to the contents of the document, or explain surrounding circumstances that justify its non-release.'
To my knowledge, the Tribunal seldom, if ever, received or heard evidence in confidence under subsection 57(2) of the repealed FOI Act.
Nevertheless, for the purpose of construing section 107 of the GIPA Act, the starting point must be the terms of the section and its context within the GIPA Act as a whole.
It is the contention of HNEAHS that:
'.. [each] subsection of s.107 applies, in reverse chronological order, to a different stage in the Tribunal's process of hearing and determining a proceeding. Section 107(1) applies to the Tribunal's reasons for decision; s. 107(2) assists in regulating the impromptu disclosure of information during a hearing; and s. 107(3) deals with evidence that is anticipated, either orally or in writing.'
While this might be a convenient way to distinguish the operation of the three subsections in section 107, it is arguable that they are not necessarily mutually exclusive as suggested by HNEAHS. What is clear from the terms of the subsections, is that they concern the procedure for dealing with 'information' for which (a) there is an overriding public interest against disclosure, or (b) there could be, or is claimed to be an overriding public interest against disclosure. That is, the 'information' the subject of the decision for which the applicant has sought external review by the Tribunal. This is inferred from the terms of the section, the objects of the Act (see paragraph 3(1)(c)) and the context in which the section appears within the GIPA Act. As I have indicated, section 107 is contained within Division 4 of Part 5 of that Act, which specifically deals with applications to the Tribunal for external review of decisions of an agency under the provisions of Division 4 of Part 4 of the Act. This includes external review of a decision of an agency to refuse access to an access applicant on the grounds that there is 'an overriding public interest against disclosure of the information' for which access was sought.
Without a procedure along the lines of section 107, the general rule of an open hearing and the open receipt of evidence would apply, which would be contrary to the objects of the GIPA Act and also render the determination of the respondent nugatory. This clearly was not the intention of Parliament. At the same time, it can be inferred that Parliament did not intend the procedure in section 107 to have a broader application other than to the 'information' that is the subject of the review application and any other information, the disclosure of which would disclose the information the subject of review. This may include information of the surrounding circumstances of the information in dispute.
Accordingly, the information to which subsection 107(3) applies, includes information of the kind described by the Appeal Panel in Black , but it will only apply where that evidence or argument is information, relevant to the application and which, if disclosed, will disclose the information for which there is, may be, or claimed to be an 'overriding public interest against disclosure'.
In my view, the real question is whether the qualifying words, after the words 'the applicant's representative', in paragraph 107(3)(b) equally apply to paragraph 107(3)(a) and whether the subsection as a whole is mandatory in its operation once the Tribunal forms the opinion as prescribed in the qualifying words.
It is the contention of the HNELHD that paragraph 107(3)(a) is mandatory and that the qualifying words in paragraph 107(3)(b) are of no application to this paragraph. That is, in an application made under paragraph 107(3)(a) an agency need do no more than make the application and if made the Tribunal must accede to the application, without further inquiry, and receive the evidence or hear the argument, in the absence of the public and the applicant. The HNELHD contended that as the qualifying words at the end of paragraph 107(3)(b) subsection did not apply, an agency was not required to give any reason, explanation or justification for making the application in so far as it related to the public and the applicant.
The HNELHD also contended that paragraph 107(3)(b) of the GIPA Act was mandatory in its operation and not discretionary where the Tribunal forms the opinion as prescribed in the qualifying words in that paragraph.
As I understand the submissions of Mr Black, Dr Lattimore and the Information Commissioner they each agree with the construction of paragraph 107(3)(a) as contended for by the HNELHD. However, the submissions of Mr Black and Dr Lattimore seem to contend that paragraph 107(3)(b) is discretionary. The counsel for Mr Black contended that paragraph 107(3)(b) contains an element of discretion along the lines set out by the High Court in Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at 273. That is, the evidence must be 'of such importance and cogency that justice is more likely to be done by receiving the information in confidence than by refusing an order to exclude the party.'
In my view, the qualifying words, after the words 'applicant's representative', in paragraph 107(3)(b), equally apply to paragraph 107(3)(a). If paragraph 107(3)(a) were to be given the construction contended for by the parties it would enable an agency to make an application in respect of any information and the Tribunal would be required to accept that information into evidence, in confidence and in the absence of the applicant, without any further enquiry. Having regard to the terms of subsections 107(1) and (2) and the objects of the GIPA Act this could not have been what was intended by Parliament. On the other hand, the construction I have suggested is consistent with the terms of subsections 107(1) and (2). This is especially so in regard to subsection 107(2). It is also consistent with the purpose of section 107, which as I have already stated, is to provide a mechanism whereby information, the subject of the reviewable decision of the agency, and for which there is, may be, or claimed to be an 'overriding public interest against disclosure' can be considered and dealt with by the Tribunal, without disclosing the information.
However, I agree with the contentions of the HNELHD that subsection 107(3) is mandatory in operation in that where the Tribunal forms the opinion as prescribed in that subsection it must receive the evidence and hear argument the subject of the agency's application in the absence of the public, the applicant and the applicant's representative.
Subsection 107(3) does not otherwise override the Tribunal's obligation to receive evidence and hear argument in public as prescribed in subsection 75(1) of the ADT Act. As pointed out by the parties, subsection 75(2) of the ADT Act gives the Tribunal a general discretion to make confidentiality orders. In this regard, while I accept that the test in Pochi may be applicable to the exercise of the Tribunal's discretion under subsection 75(2) of the ADT Act, in my view it is of no application to subsection 107(3) of the GIPA Act.
Should the documents be received into evidence in the absence of the public, applicant and the applicant's legal representative?
It is convenient to deal with each category of document separately, which I have only examined for the purpose of this interlocutory application by the HNELH.
Confidential Exhibit DA1 and Confidential Exhibit DA2 - as these exhibits contain the information the subject of Mr Black's review application and for which the HNELHD has determined there is an 'overriding public interest against disclosure', I am satisfied that it is necessary, to prevent the disclosure of this information, for the Tribunal to receive these two exhibits into evidence in the absence of the public, the applicant and the applicant's representative pursuant to subsection 107(3) of the GIPA Act . In this regard, Dr Lattimore also claims that there 'overriding public interest against disclosure' of the information in Confidential Exhibit DA2.
I note that Mr Black does not take issue with this aspect of the HNELHD's application.
Confidential Exhibit MF1 and Confidential Exhibit MF2 - In its written submissions filed on 12 September 2011, the HNELHD contend, at paragraph 26 and 27, that these documents were provided to it in confidence and that the public interest consideration against disclosure in clause 1(d) of the Table to section 14 of the GIPA Act was applicable.
I accept that both documents were provided to the HNELHD in confidence, as part of its consultation with the third parties as required under the GIPA Act. However, for the reasons I have stated, for the purpose of subsection 107(3) the matter should be approached by considering whether the information in these exhibits, if disclosed, will disclose the information the subject of review and for which the agency has determined, or a third party has claimed there is an 'overriding public interest against disclosure'. If the information in these exhibits fail to satisfy this description, then section 107(3) does not apply.
I am satisfied that Confidential Exhibit MF1 contains information, if disclosed, would reveal the information the subject of this application. That is, I am satisfied that if disclosed, the information in Confidential Exhibit MF1 would reveal the information the subject of Mr Black's review application and which the HNELHD has determined there is an 'overriding public interest against disclosure'. Accordingly, I am satisfied that it is necessary, to prevent the disclosure of the information, for the Tribunal to receive Confidential Exhibit MF1 into evidence in the absence of the public, the applicant and the applicant's representative pursuant to subsection 107(3) of the GIPA Act. In making my findings I have considered the submissions of counsel for Mr Black that any order that is made should not include Mr Black's legal representative. That is, the Tribunal should receive these Confidential Exhibits and Dr Lattimore's statement in the absence of the public and Mr Black, but not in the absence of Mr Black's legal representative. In my view, having regard to the information in issue, to receive this evidence and to hear argument in regard thereto in the presence of Mr Black's legal counsel would amount to a disclosure of this information and hence be contrary to subsection 107(3).
In regard to Confidential Exhibit MF2, I am satisfied that it contains, in part, information, if disclosed, that would reveal the information the subject of this application. The HNELHD has not otherwise indicated whether it relies on the information, not falling within this category. If pressed, this information could not be made the subject of an order under subsection 107(3). In regard to the information in Confidential Exhibit MF2, which would reveal, if disclosed, the information the subject of this application, an order under subsection 107(3) would be appropriate. However, I will adjourn making a final order in regard to Confidential Exhibit MF 2 until the next directions hearing date. The HNELHD can then inform the Tribunal the information in the exhibit for which it presses its section 107(3) application. The remaining information, if to be relied on by the HNELHD or Dr Lattimore for the purpose of this application should be provided to Mr Black.
Dr Lattimore's statement - during the course of the hearing, the solicitor for HNELHD acknowledged that she, nor her client had seen a copy of Dr Lattimore's confidential statement. Nevertheless, the HNELHD pressed its subsection 107(3) application in regard to Dr Lattimore's statement.
At the time of hearing, I had not read the confidential statement of Dr Lattimore. Her counsel, Mr Izzo, acknowledged that Dr Lattimore did not have standing to make an application under subsection 107(3). That is, he acknowledged that subsection 107(3) did not give a third party standing to make an application under that section. However, as I have already indicated, an agency can make an application under this the subsection in regard to a claim by a third party, as a result of consultation, that there is an 'overriding public interest against disclosure' in regard to the information the subject of the review application before the Tribunal.
It was acknowledged, that Dr Lattimore could only make an application for a confidentiality order under 75(2) of the ADT Act. However, Mr Izzo conceded that if Dr Lattimore's statement was not accepted as falling within subsection 107(3) of the GIPA Act, then an application under subsection 75(2) of the ADT Act would be unlikely to succeed.
I have examined the Confidential statement of Dr Lattimore, which I accept has been made in confidence. This, as I have already indicated does not mean that the information in the statement should be received into evidence and heard under subsection 107(3) in the absence of the public, the applicant and the applicant's representative. Nevertheless, I do note that the majority of the information in this statement, if disclosed, would reveal the information, the subject of Mr Black's review application, for which the HNELHD and Dr Lattimore claim that there is an 'overriding public interest against disclosure'. Accordingly, I am satisfied that an order under subsection 107(3) in regard to this material would be appropriate.
However, I will also adjourn making a final order in regard to the Confidential statement of Dr Lattimore until the next directions hearing date. The HNELHD can then inform the Tribunal the extent to which it presses the information contained in this statement for the purpose of its section 107(3) application.
Contentions of the Information Commissioner in regard to the operation of s107(2) and (3)
The written submissions of the Information Commissioner contended that where evidence is received and heard in the absence of the public, the applicant and the applicant's representative pursuant to subsections 107(2) and (3) there remained an issue as to how the information the subject of an order under these subsections is to be treated in so far as they relate to her and her Office. It was contended that this remained an issue as the Information Commissioner could not be regard as comprising 'the public'. Hence, it was submitted, the Tribunal was not obliged to exclude the Information Commissioner from evidence and hearings under subsection 107(2) and (3).
In my view, there is no clear support for the contentions of the Information Commissioner arising from the terms of subsection 107(2) and (3). Nor are they supported from the terms of subsection 104(1) of the GIPA Act. That subsection provides that the Information Commissioner has a right of appearance before the Tribunal in any review application of a decision under the GIPA Act. That right of appearance extends to appeals from decisions of the Tribunal in regard to such applications. Subsection 104(2) is a provision in similar terms in regard to the Privacy Commissioner.
In my view, having regard to the structure of the GIPA Act, the duties and functions of the Information Commissioner (including her role in reviewing a reviewable decision of an agency) and the role of the Tribunal under that Act, the role of the Information Commissioner when exercising her right of appearance under subsection 104(1) is to assist the Tribunal on issues of construction, the applicable law and applicable policies and guidelines. That is, the Information Commissioner's role when exercising her rights under subsection 104(1) of the GIPA Act is not one that requires consideration of, or argument on the merits of the application before the Tribunal. Had this been the intent of Parliament, it would have made provision for the Information Commissioner to be a party to proceedings.
Yet I understand that the Information Commissioner may be assisted in her role in being provided with a copy of the information in dispute. However, that is a matter to be resolved between the agency and the Information Commissioner. I note in this application, the HNELHD has agreed to provide the Information Commissioner with a copy of the relevant material. Hence there is no need for the Tribunal to consider this issue any further other. Once again, contrary to what seems to be suggested in the submissions of the HNELHD written submissions, I stress that the Information Commissioner's role before the Tribunal is not that of an advocate for an applicant, or indeed a respondent. The role of the Information Commissioner is clearly one of impartiality. If not, it is arguable that its role as a reviewer of decisions of an agency may become compromised.
Orders
For the reasons set out above the appropriate orders are as follows:
1) Pursuant to subsection 107(3) of the Government Information (Public Access) Act 2009, Confidential Exhibit DA1, Confidential Exhibit DA 2 and Confidential Exhibit MF1 are received into evidence and argument is to be heard in regard to these Exhibits in the absence of the public, the applicant and the applicant's representative.
2) The application of the first respondent in regard to Confidential Exhibit MF2 and the Confidential Statement of the second respondent is adjourned to the next directions date.
3) This application and application File No 113232 is adjourned for further directions on 17 January 2012 at 2.00pm.
In my view it is also appropriate to make orders for the filing and serving of evidence and submissions by the first and second respondent so that when the matter is next listed for directions orders can be made for the filing and serving of evidence and written submissions in reply and both applications can be set down for hearing. These directions are set out in the covering page of this decision.
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Decision last updated: 14 December 2011
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