Black v Hunter New England Local Health District (No 2)
[2012] NSWADT 235
•12 November 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Black v Hunter New England Local Health District & Dr Lattimore (No 2) [2012] NSWADT 235 Decision date: 12 November 2012 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: 1.The decision of the agency in regard to the deleted information in the Triage report, of 23 December 2005, is varied in accordance with paragraph 119 of these reasons for decision.
2.The decision of the agency in regard to the information in Dr Lattimore's report, dated 30 December 2005, is set aside and in substitution thereof a decision that the applicant be:
(a)granted access, in part, in accordance with paragraph 120 and 121 of these reasons for decision, with a copy of the personal information and health information about himself; and
(b)refused access to the remaining information in the report.
Catchwords: Government Information (Public Access) -prejudice the supply of confidential information that facilitates the effective exercise of the agency's function - reveal an individual's personal information - contravene an information protection principle or a health privacy principle- expose a person to a risk of harm or of serious harassment or serious intimidation. Legislation Cited: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1982 (Cth)
Freedom of Information Act 1989 (Repealed)
Government Information (Public Access) Act 2009
Health Records and Information Privacy Act 2002
Health Services Act 1997
Mental Health Act 2007
Privacy and Personal Information Protection Act 1998Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR180
Black v Hunter New England Area Health Service [2008] NSWADT 301
Black v Hunter New England Local Health District [2011] NSWADT 295
Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19
McKinnon v Secretary, Department of Treasury [2006] HCA 45
QB v Greater Southern Area Health Service [2011] NSWADT 90Category: Principal judgment Parties: Phillip Black (Applicant)
Hunter New England Local Health District (First Respondent)
Glenda Lattimore (Second Respondent)Representation: Counsel
B Tronson (Applicant)
M Izzo (Second Respondent)
Public Interest Advocacy Centre Ltd (Applicant)
Crown Solicitors Office (First Respondent)
McCabe Terrill Lawyers (Second Respondent)
File Number(s): 113151 Publication restriction: N/A
REasons for decision
Introduction
The applicant, Mr Black, seeks review of a decision of the first respondent, the Hunter New England Local Health District (the agency), made under the Government Information (Public Access) Act 2009 (the GIPA Act), to refuse him access to information he sought access to under that Act.
The information to which the agency has refused access is contained in the following documents:
- a mental health telephone referral triage report in relation to the applicant, created by Peter Scollay, a psychologist employed at a mental health service of the agency, on 23 December 2005 (the Triage report), and
- a written report provided by Dr Glenda Lattimore, on 30 December 2005, to the mental health service of the agency (Dr Lattimore's report).
In its decision, the agency found:
(a) there was an overriding public interest against disclosure of the handwritten information in the Triage report that identified the third party caller, giving rise to the report. This decision was made following consultation with the third party caller who objected to the disclosure of his/her identity. The applicant was otherwise provided with a redacted copy of the information in the Triage report, and
(b) there was an overriding public interest against disclosing the entire information contained in Dr Lattimore's Report. In making its decision, the agency consulted Dr Lattimore, who objected to the disclosure of her report on a number of grounds. However, the agency also decided, pursuant to subsection 73(3) of the GIPA Act, conditional access could be granted to the applicant. The condition being that the applicant be given a verbal summary of the information by a senior mental health clinician of the agency, or he undergoes a mental health assessment to exclude any risk as identified in the internal review. The applicant I understand rejected this approach and this form of access and the agency withdrew this form of access in these proceedings.
The applicant has previously, in 2007 and 2008, sought access to both of these documents under the now repealed Freedom of Information Act 1989 (the repealed FOI Act), the Privacy and Personal Information Protection Act 1989 (PPIP Act) and the Health Records and Information Privacy Act 2002 (HRIP Act): see for example Black v Hunter New England Area Health Service [2008] NSWADT 301.
However, the applicant's current application for access is under a new legislative scheme in regard to access to government information. Accordingly, it is necessary for the tribunal, as it was for the agency, to consider his application a fresh in the context of the new legislative scheme and the material before it.
There is no dispute that the decision of the agency is a reviewable decision that the tribunal has jurisdiction to review: see section 38(1) of the Administrative Decisions Tribunal Act 199) (the ADT Act) and sections 80(d) and (i) and 100 of the GIPA Act,
For the reasons set out below, in summary, I have found that the personal information (i.e. personal information about which the applicant has knowledge) and health information about the applicant in the Triage report and Dr Lattimore's report should be released to him. That is, in regard to this information, on the material before the tribunal, I have found that the relevant public interest considerations against disclosure, did not, on balance, override the public interests in favour of disclosure of this information.
History of these proceedings
The applicant's application first came before the tribunal at a planning meeting on 29 August 2011. At this planning meeting, the agency raised an issue about whether the tribunal should receive certain documents, in confidence, in the absence of the public, the applicant and the applicant's legal representative under subsection 107(3) of the GIPA Act. That issue was ultimately determined as a preliminary matter as it involved a construction of the relevant subsection of the GIPA Act and also an assessment of the contents of the documents the respondent sought to put before the Tribunal under that subsection: see Black v Hunter New England Local Health District [2011] NSWADT 295.
By consent, on 29 August 2011, Dr Lattimore was made a party to these proceedings. She had lodged an application for review of the agency's internal review decision. That application was withdrawn not long after Dr Lattimore was made a party to these proceedings.
The applicant's application was heard over two days, on 26 April 2012 and 25 May 2012.
Relevant law
As I have indicated, the relevant law in this application is the GIPA Act, the objects of which are set out in section 3 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.
The term 'government information' is defined in section 4 of the GIPA Act to mean 'information contained in a record held by an agency'. There is no dispute that the information the subject of this application falls within this definition.
Section 5 of the GIPA Act contains a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure'. Section 13 of the GIPA Act sets out the test to be applied in determining whether there is an overriding public interest against disclosure. That test is in the following terms:
'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(1) of the GIPA Act provides that there is a general public interest in favour of disclosure of government information. Subsection 12(2) provides that public interest considerations in favour of disclosure are not limited. The section goes on to provide some examples of public interest considerations in favour of disclosure of government information. These include 'the information is personal information of the person to whom it is to be disclosed.'
However, the public interest considerations against disclosure are limited. These are set out in the table to section 14 of the GIPA Act. Subsection 14(1) provides that government information described in Schedule 1 is to be conclusively presumed to give rise to a public interest consideration against disclosure. The information in issue in this application does not fall into this category of government information.
Subsection 14(2) sets out the only other public interest considerations against disclosure. For the purposes of this application, the relevant public interest considerations against disclosure are as follows:
14 Public interest considerations against disclosure
(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.
(3) ...
Table
1 Responsible and effective government
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 (whether in a particular case or generally):
(a)
...,
(b)
..., ,
(c)
...,
(d)
prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions,
(e)
...
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,
(b)
contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002,
(c)
...,
(d)
...,
(e)
...,
(f)
expose a person to a risk of harm or of serious harassment or serious intimidation,
(g)
...
Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. That section provides as follows:
15 Principles that apply to public interest determination
A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:
(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.
Where the information for which access is sought contains 'personal information' about a person, other than the access applicant, section 54 of the GIPA Act requires an agency to consult with that person before providing access where (a) the person may reasonably be expected to have concerns about the disclosure of the information, and (b) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information.
Section 55 provides for personal factors to be taken into account in determining where the public interest lies. That section is in the following terms:
55 Consideration of personal factors of application
(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 and, for that purpose, require the applicant to provide proof of his or her identity.
(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.
Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. That is, the agency bears the burden to establish that the claimed public interests against disclosure apply to the information the subject of this application and that they are overriding ones. Dr Lattimore bears the same onus in respect to her claim that the information in her report is not to be disclosed.
Section 107 of the GIPA Act sets out how the tribunal is to deal with information for which there is, or is claimed to be, an overriding public interest against disclosure. In essence that section provides that the tribunal is to prevent the disclosure of such information to the public, applicant and the applicant's legal representative. On the basis of this provision, evidence and submissions, containing information to which this section applied, were tendered in confidence, in the absence of the public, the applicant and the applicant's legal representative. During the course of the hearing, relevant confidentiality orders were also made under subsection 75(2) of the ADT Act.
In accordance with the nondisclosure requirements of section 107, in these reasons for decision, to the extent they contain information for which there is, or is claimed to be, an overriding public interest against disclosure, have been redacted and identified by the words 'not to be published'. However, the agency, Dr Lattimore and their respective legal representatives are to be provided with a full copy of these reasons for decision.
Section 72 of the GIPA Act sets out the form in which access is to be given where the agency determines to grant access to the information sought. That section provides:
72 Forms of access
(1) Access to government information in response to an access application may be provided in any of the following ways:
(a) by providing a reasonable opportunity to inspect a record containing the information,
(b) by providing a copy of a record containing the information,
(c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned),
(d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format.
(2) The agency must provide access in the way requested by the applicant unless:
(a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or
(b) to do so would be detrimental to the proper preservation of the record, or
(c) to do so would involve an infringement of copyright, or
(d) there is an overriding public interest against disclosure of the information in the way requested by the applicant.
Section 74 of the GIPA Act makes provision for the deletion of information in providing an applicant access to information in a record, which contains, in part, information for which there is an overriding public interest against disclosure. That section is in the following terms:
74 Deletion of information from copy of record to be accessed
An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information.
Section 73 of the GIPA Act deals with conditions on access. It provides as follows:
73 Access to be unconditional
(1) 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.
(2) A condition may be imposed as to how a right of access may be exercised (such as a condition that prevents an applicant making notes from or taking a copy of a record that is made available for inspection) but only to avoid there being an overriding public interest against disclosure of the information.
(3) A condition may be imposed that access to medical or psychiatric information will only be provided to a medical practitioner nominated by the applicant and not to the applicant personally.
Note. Access can also be made conditional on the payment of processing charges (s 64) and on the provision of evidence of identity or other personal factors relevant to the agency's decision to provide access (s 55).
The material before the Tribunal
The agency relied on the following material in support of its case:
- a statement of Mary Anne Fernandez, the Acting Executive Support Manager, Clinical Governance, of the agency, dated 16 August 2011. Attached to Ms Fernandez's statement were two confidential exhibits, MF1 (a full copy of the Triage report) and MF2 (the correspondence between the agency and the third party pursuant to section 54 of the GIPA Act),
- a statement from Peter Scollay, Clinical Psychologist, dated 12 August 2011. As I have indicated Mr Schollay made the entries on the Triage report,
- a statement of Dr Dinesh Arya, the Director, Mental Health and Clinical Lead Innovation Support Unit of the agency, dated 15 August 2011. Attached to Dr Arya's statement were two confidential exhibits, exhibit DA1 (a full copy of the Triage report) and DA2 (Dr Lattimore's report),
- an undated confidential statement of Dr Lattimore which was sent by facsimile on 26 August 2011.
As I have mentioned the confidential exhibits attached to the statements of Ms Fernandez and Dr Arya and the statement of Dr Lattimore were received into evidence in the absence of the public, the applicant and the applicant's legal representatives. Dr Arya and Mr Scollay gave oral evidence and were cross-examined during the hearing on 26 April 2012. Dr Lattimore gave oral evidence, by telephone, and was cross-examined at the hearing on 25 May 2012. The evidence of Dr Arya and Dr Lattimore was given, in part, in confidence.
The applicant relied on a statement of Dr Philip Hoyle, the Director of Medical Services and Clinical Governments at Royal Adelaide Hospital, dated 14 March 2012. Dr Hoyle gave oral evidence, by telephone, at the hearing on 25 May 2012. He was also cross-examined.
The Triage report
(a) The information in issue
The information in issue in the Triage report is as follows:
(a) a handwritten telephone number at the top of page 1 of the report,
(b) the name of the 'referral source' (i.e. the name of caller),
(c) the relationship of the caller to the 'consumer' (i.e. in this case the applicant),
(d) the caller's contact details,
(e) the reasons for referral, other than the introductory words 'Phillip is a 58 man who is separated from his wife Marie', and
(f) a portion of the recent treatment history of the applicant on page 2 of the report.
The applicant has otherwise been provided with the information in the report, which includes a reference to the caller having made the call to seek assistance, that the applicant was not aware of the referral, that the information provided by the caller was third hand, that the applicant did not meet the 'early psychosis intervention' criteria, and that 'Police may bring Phillip to A & E when they remove Firearms.' The evidence is that on 23 December 2005, the police attended the home of the applicant and removed his firearms. The applicant was the holder of a firearms licence and held them lawfully. According to a copy of a COPS report, attached to the statement of Ms Fernandez, the firearms were removed after the police received information that there were concerns about the applicant's mental health and the impact this may have if he were to retain his firearms. The COPS report states that the applicant co-operated fully and understood why the police were removing his firearms. It is also noted that two days after the removal of his firearms, the applicant attended the police station stating that his former wife, Doctor Lattimore and other named doctors had given false information about him. He was advised that the matters he raised were not matters for police - they were matters for the Health Care Complaints Commission. I understand the applicant's firearms were subsequently returned to him some time later.
In these proceedings, the applicant's possession and use of firearms has not been raised as an issue. There is also no dispute that after having removed his firearms the police did not take the applicant to the accident and emergency department of the local hospital. In fact the applicant did not attend any mental health service operated by the agency. In accordance with usual procedure, he was contacted by a staff member of the agency, on 4 January 2006, and asked if he would like to be assessed, but he declined to do so.
The agency and the caller contend that the information in dispute falls within the terms of the public interest considerations against disclosure under clause 1(d) (information provided in confidence) and clauses 3(a) (personal information) and 3(b) (contravene on information protection principle) of the table in section 14 of the GIPA Act.
Not to be published
(b) The evidence
It was the evidence of Dr Arya that telephone triage is one of three points of health advice and health referral service provided by the agency. He explained that telephone referrals are made by individuals, family members, friends, health professionals, police and other agencies to any of the community mental health services operated by the agency. Where a telephone triage referral is received by a service of the agency, the person responding to the call will complete a pro-forma four-page triage report. The information in that report assists the person receiving the call to assess the risk and what action should be taken. Dr Arya explained that, depending on the information obtained, the relevant service may (a) take no further action, (b) contact the individual about whom the report has been made and offer that person an assessment, or (c) invoke the provisions of the Mental Health Act 2007.
In his statement, Dr Ayra said that, in his experience, telephone triage referrals that are received from third parties are generally made in confidence. He went to say at paragraph 12 of his statement that:
'... [The] referral process relies for its efficacy on the confidentiality of reports made to the mental health service' and where health professionals, family members and other third parties who make such reports became aware that the details of reports they make could be given to the person who is the subject of the reports, I believe that they would either fail to make any report at all, or perhaps more likely, that they would find themselves self-censoring their reports. While some individuals providing information about another person's mental health status may not be deterred from providing information to the health service by the release of the information supplied to the person concerned, this would be a deterrent to others.'
Dr Ayra also explained that any self-censoring of a report by a caller would reduce the ability of the mental health service to form an accurate initial self -assessment of the mental health of the person the subject of the referral.
In his oral evidence Dr Ayra acknowledged that a person is able to make a request to have access to their clinical files. He agreed that a person's clinical files included any telephone triage report that had been made by or about that person. However, where such a request is made the agency will consider whether access to the person is appropriate. For example, consideration is given to the question of whether there is a risk to the person or someone else if access is granted. Where information is explicitly received in confidence then it is not disclosed. In this regard he said family members who make a report often do not wish to be identified to the person the subject of the report. In regard to health professionals he said he could not recollect any specific example of where a health professional had sought non-disclosure of a triage report they may have made.
Dr Ayra agreed that in assessing a person's request for access to his/her clinical files, the starting point would be the relevant provisions of the PPIP Act and the HRIP Act. He also agreed that his evidence about the nature of the information provided in the course of a telephone triage referral was based on his personal experience and that he had not conducted any research in this regard.
In his statement, Mr Scollay explained the general procedure he follows when receiving a triage telephone referral. He said his usual practice was to pick up a fresh pro-forma Triage report form. He said he then records, on the form, the relevant information as provided by the caller. He then assesses that information and decides what action is to be taken and records this on the form. He said he does not attempt to probe or question the person making the call and generally accepts the caller's concern at face value. Mr Scollay said that, on the basis of the information received from the caller, an assessment is made as to whether the person the subject of the referral has, or may have a mental health disorder and whether some form of urgent action is required. The assessment, he said, was not a proper or thorough mental health assessment. It was an assessment as to what action should be taken having regard to the information provided by the caller. I note page 3 and 4 of the pro-forma report make provision for various actions that may be taken, which includes a comprehensive mental health assessment. Mr Scollay said where urgent action is not required, the health professional having taken the call, or another health professional from the agency will always make a follow-up call to the person of concern. The purpose of that call, Mr Scollay, explained was to ask the person if they wish to make an appointment for a mental health assessment. Mr Scollay said the Triage report, once completed, is for internal use by the agency and a copy is not provided to the caller.
In his statement Mr Scollay went on to explain that when he received the telephone triage referral, in regard to the applicant, on 23 December 2005, he completed the Triage report in the usual way he prepared such reports.
In his oral evidence, Mr Scollay explained why he did not make any entry to some of the questions on the pro-forma form. He also said 'it does happen that a caller asks that their identity not be disclosed'. He said his practice and that of others in his team is to record any such request on the referral report (i.e. the Triage report). He said where a caller does not specifically ask for confidentiality it is assumed the caller does not mind if their name is disclosed to the person the subject of the caller's report. He said most callers do not have a problem about being identified as this often assists the person about whom the report has been made. He explained that such persons, if contacted by an agency health professional after a referral will often asks who had contacted the agency. Mr Scollay said it is useful to be able to respond by explaining that 'X is concerned about you ....'. As I understood his evidence, when making a follow-up call with the person the subject of the referral, the health professional may refer to the earlier referral and say who it was and that they were concerned about them. What is said will depend on the circumstances and the mental health of the person of concern. Mr Scollay explained that callers are usually family members, police or the person's treating doctor. In cross-examination, Mr Scollay said that if the caller is the person's treating health professional then that person will be asked to provide a report, otherwise no such request is made.
The caller objects to the disclosure of their identity and what they said to Mr Scollay. The caller asserts that the information he/she provided was provided in confidence and was not to be disclosed to the applicant.
(c) Public interest considerations against disclosure
The introductory words to clauses 1 and 3 require the decision maker to enquire 'if disclosure of the information could reasonably be expected' to have the effect as prescribed in one or more of the paragraphs in these clauses. Accordingly, it is an enquiry as to whether the disclosure of the information in issue could reasonably be expected to have the prescribed effect. That enquiry being of a general and abstract nature.
In this regard I note the term 'disclose information' is defined in clause 1 of Schedule 4 of the GIPA Act to include 'make information available and release or provide access to information.'
The phrase 'could reasonably be expected to' has been the subject of considerable judicial consideration with respect to its use in the context of exempt documents under the repealed FOI Act and also the Freedom of Information Act 1982 of the Commonwealth. The same meaning has been applied to this phrase as it appears in the table to section 14 of the GIPA Act. That is, the words in the phrase are to be given their ordinary meaning and ' require a judgement to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous' to expect to have the prescribed consequences: see McKinnon v Secretary, Department of Treasury [2006] HCA 45, at [61] and Attorney-General's Department v Cockcroft (1986) 10 FCR180, at 190.
Although there is some overlap in the various grounds of public interest considerations against disclosure relied on by the agency, for convenience I have dealt with them separately.
Clause 1(d)- prejudice the supply to an agency of confidential information
In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [33], the Appeal Panel considered the construction and application of clause 1(d) of the table to section 14 of the GIPA Act. At [33], the Appeal Panel said that the question as to whether information is 'confidential information' is to be examined, primarily at least, by reference to the agency's evidence and the conditions under which it conducts the service in which the information in issue was obtained. At [34], the Appeal Panel said that, the enquiry under this clause 'should focus on the point of receipt, and the administrative standards and community understandings which surrounded it.'
I agree with this analysis of the Appeal Panel.
There seems to be no dispute that the telephone triage referral service of the agency is a service falling within the functions of the agency as set out in paragraph 10(a) of the Health Services Act 1997. As explained in the evidence, the primary purpose of the service is to assist any individual suffering from, or who may suffer from a mental health disorder. The service is operated by a health professional and assistance, in the form of advice or referral, can be sought. While a request for advice, or referral can be made by a person other than the person with a mental health disorder, or suspected mental disorder, the purpose of the service remains the same.
Given the very personal nature of the service, I find that the information provided to the agency in the course of a telephone triage referral is confidential information. However, that confidence is not absolute. For example, the information supplied is subject to the agency using the information for the purpose it was provided.
As the information in dispute was provided in the course of the agency's telephone triage referral service, I accept that it is confidential information in the relevant sense. That is, it is information of the kind, supplied to the agency to facilitate the effective exercise of its functions.
However, the question is whether the disclosure of the disputed information could reasonably be expected to have the effect of prejudicing the supply to the agency of information of this kind. Consistently, with the reasoning of the Appeal Panel in Camilleri, in my view, this issue must also be examined in the context of the manner in which the agency operates the service generally and for which information of the kind in issue is supplied. That is, whether the caller will be reluctant to make such calls is immaterial.
In this regard, Dr Ayra's evidence is that disclosure of information of the kind in issue could reasonably be expected to have the relevant prejudicial effect. In general, Mr Scollay's evidence is not contrary to this. His only qualification was that where the caller is a third party, disclosure of the identity of that person and the reason for the call is generally disclosed to the person the subject of the referral. In my view, that disclosure is limited to the extent it is necessary for the purpose for which it was obtained. A disclosure under the GIPA Act is not included in this. In my view, Dr Ayra's and Mr Scollay's acknowledgement that the person the subject of a triage referral report has a right to seek access such a report, as it forms part of their clinical records is a factor relevant to the 'personal factors of the applicant': see subsection 55(1) of the GIPA Act. Such factors, as I have mentioned are not applicable to the enquiry under clause 1(d): see subsection 55(3). However, it is a factor relevant to the enquiry as to the balance between the public interest considerations for and against disclosure.
Accordingly, I find that this public interest consideration against disclosure has been established.
Clause 3(a)- reveal an individual's personal information
Personal information is defined in clause 4 of Schedule 4 of the GIPA Act. It relevantly provides as follows:
4 Personal information
(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) ...
(3) ...
As I have already indicated, the information in dispute is personal in nature. I am also satisfied that the information in dispute is personal information falling within the terms of subsection 4(1) of the GIPA Act. That is, it is information or opinion about the caller and other persons, including the applicant. The question is whether disclosure of this information could reasonably be expected to 'reveal' the personal information about these persons.
The term 'reveal information' (see item 3(a) of section 14 above) is defined in clause 1 of Schedule 4 of the GIPA Act to mean 'information that has not already been publicly disclosed (otherwise than by unlawful disclosure).' The word, 'publicly' in this context should be given its ordinary meaning; namely openly disclosed.
On the material before the tribunal, there is no evidence to suggest that the information in dispute has been publicly disclosed. Yet the information, in part, is personal information about the applicant and of which he appears to have knowledge of. Not to be published.
However, as it has also not been publicly disclosed, I am satisfied that it is information that falls within the terms of this public interest consideration against disclosure. However, the fact that the applicant has knowledge of the information, is a factor relevant to the enquiry as to where the balance lies between the public interest consideration for and against disclosure.
Accordingly, I am satisfied that this ground of public interest consideration against disclosure has been established by the agency.
Clause 3(b) - contravene an information protection principle or health privacy principle
Again the issue for determination is whether (a) the information in dispute is 'personal information' as defined in section 4 of the PPIP Act, or 'health information' as defined in section 6 of the HRIP Act, and (b) disclosure of the information would contravene an information protection principle (IPP) under the PPIP Act or a health privacy principle (HPP) under the HRIP Act.
'Personal information' in section 4(1) of the PPIP Act is in similar terms to that contained in the GIPA Act. 'Health information' is defined in paragraph 6(a) of the HRIP Act to mean '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 ...
'Personal information' is also defined section 5(1) of the HRIP Act in similar terms to that contained in section 4(1) of the PPIP Act and clause 4 of Schedule 4 of the GIPA Act.
On the basis of the findings I have already made, I find that the information in dispute is 'personal information' for the purpose of the PPIP Act. That is, it is personal information about the caller and others (including the applicant). I also find that the information, in part, is also health information about the applicant and another person.
Sections 8 to 19 of the PPIP Act set out a number of IPPs in regard to the collection, storage, access, amendment, use and disclosure of personal information. Schedule 1 of the HRIP Act sets out a number of HPPs in regard to health information about a person. Again these HPPs relate to the collection, storage, access, amendment, use and disclosure of health information.
There is no dispute that the agency, as a public sector agency, is required (unless otherwise provided) to comply with the IPPs and HPPs when it collects, stores, grants access, amends, uses and discloses personal information and health information about a person. In regard to this application the agency has relied of the disclosure IPP, in section 18 of the PPIP Act, which is in the following terms:
18 Limits on disclosure of personal information
(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:
(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or
(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or
(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.
(2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.
As can be seen from the terms of this IPP, disclosure of personal information held by an agency is limited. There is no suggestion that a disclosure under paragraph 18(1)(c) applies. The agency contends that a disclosure under paragraph 18(1)(a) cannot apply as the information in issue was not 'collected': see subsection 4(5) of the PPIP Act, which provides that 'unsolicited information' is not collected for the purpose of the Act. If the agency is correct then paragraph 18(1)(b) also has a limited operation.
Whether information of the kind contained in the Triage report was 'collected' for the purpose of the PPIP Act, was recently considered in QB v Greater Southern Area Health Service [2011] NSWADT 90. At [64], Judicial Member Molony, found that it was 'collected', and not unsolicited. In my view the same conclusion should be drawn from the material that is before the tribunal in these proceedings.
Although not relied on by the agency, I note clause 11 of Schedule 1 of the HRIP Act sets out the circumstances in which an agency can disclose health information it holds about an individual.
It is the applicant's contention that consideration also needs to be given to the access IPP in section 14 of the PPIP Act and access HPP in clause 7 of Schedule 1 of the HRIP Act when considering whether a disclosure of the information could reasonably be expected to breach the abovementioned disclosure principles. Again, for the reasons I have already given, in my view, this is a matter relevant to determining where the balance lies between the two public interests.
On the basis of the material before the tribunal, I am satisfied that a disclosure of the information in issue could reasonably be expected to breach section 18 of the PPIP Act as it would not be a disclosure directly relating to the purpose for which the information was collected.
(d) Balancing the public interests
In summary, I have found that disclosure of the information in dispute could reasonably be expected to have the following effects:
(a) prejudice the supply of confidential information to the agency in facilitating the effective exercise of its telephone triage service,
(b) reveal an individual's personal information, including that of he applicant,
(c) contravene section 18 of the PPIP Act.
I also find that the public interest factors in favour of the disclosure of the information are as follows:
(a) the general public interest in favour of disclosure,
(b) disclosure of the information could reasonably be expected to give insight into the manner in which the agency deals with reports of this kind, thus enhancing the accountability of the agency to the public, and
(c) the information is personal information and health information of the applicant.
In my view it is the latter, for which considerable weight should be given in this application.
As I have explained, the deleted information on page 1 of the Triage report concerning the reasons for the call is primarily personal information (information or opinion) about the applicant. As I have identified, in part, it is also information of which the applicant is aware. In my view, in respect to that part of the information, the public interest against disclosure when weighed against the public interest in favour of disclosure is not an overriding one.
However, I am satisfied that on balance, that the public interest against disclosure of the remaining disputed information in this section of the report together with the personal information of the caller (i.e. the caller's identity, contact details and relationship to the applicant) is an overriding one.
While I accept the evidence of Mr Scollay about the practice of disclosing the name of a third party callers and their reason for the call about the person of concern, this evidence was given in the context of the practice of the agency in actioning a referral. That is, the practice of disclosing the identity of the caller is limited to those circumstances where the agency makes a follow-up call or provides some other form of assistance or intervention to the person of concern. In this case, a follow-up call was made by the agency to the applicant, but no other form of assistance or intervention was provided by the agency as a result of the call. Nor was the name of the caller identified to the applicant in the follow-up call. Accordingly, as the agency did not provided the applicant with any assistance or intervention as a result of the call made on 23 December 2005, a disclosure now of the caller's personal information would not be for a purpose related to the practice described by Mr Scollay.
Nor do I find that a disclosure of this information would assist the applicant in obtaining any additional insight into the manner in which the agency deals with reports of this kind. In this regard I agree with the agency that the applicant has all the necessary information.
This leaves the deletion on page 2 of the Triage report, which I have found to be health information about the applicant. As pointed out by Ms Tronson, counsel for the applicant, clause 7 of Schedule 1 of the HRIP Act, makes provision for the applicant to seek access to his health information. As the applicant has already been provided with the health information that is contained on page 2 of the report, it is difficult to understand why this information was not provided. Accordingly, I am not satisfied that on balance, that this public interest consideration against disclosure, when weighed against the public interest in favour of disclosure, of this information is an overriding one.
Dr Lattimore's report
(a) the evidence
The report of Dr Lattimore is 9 pages in length. It is the contention of Dr Lattimore that she provided the report in confidence and objects to its disclosure to the applicant. The information in the report is information about the applicant, his former wife and other persons. There is no dispute that Dr Lattimore was the treating psychologist of the applicant's wife.
During cross-examination, Dr Lattimore agreed that she was an experienced psychologist and that she was aware of the HPP's in the HRIP Act, including the principle concerning a person's right to seek access to their health information. She also acknowledged that the applicant had at no time been her patient and that she had never met him. However, she acknowledged that she had been the recipient of a number of letters and telephone communications from the applicant during the second half of 2005. Dr Lattimore also agreed that her report was, in part, based on the content of these communications. The report was otherwise based on information she had received from other persons. She said that in 2005, the applicant had been invited, through another person, to attend a counselling session with her. He declined to do so.
Ms Tronson, counsel for the applicant, referred Dr Lattimore to the facsimile cover sheet she had forwarded, to the agency, with her report, on 30 December 2005. It would appear that the applicant was provided with a copy of this cover sheet as part of his earlier access applications.
The facsimile cover sheet is headed 'Living Well; Psychological Services' and contains Dr Lattimore's name and qualifications. The facsimile message is headed 'Urgent and Confidential.' It is addressed to Mr Greg Wilcox of the agency and it was noted that a copy of the facsimile was being sent to 4 other people (including Mr Scollay, a local police officer, Dr Ryan (the applicant's treating doctor at the time) and Dr Schuch (the treating doctor of the applicant's wife). In her oral evidence Dr Lattimore said she had prepared the report at the request of the police. She agreed she did not seek the applicant's consent to send the report to the other people identified in the facsimile. Dr Lattimore's message in the facsimile was in the following terms:
'As previously discussed, please find enclosed a brief psychological report re: Mr Phillip Black.
Thank you in anticipation of your urgent and appropriate action.'
The evidence in regard to Dr Lattimore's report is otherwise dealt with below.
(b) Public interest considerations against disclosure
The legal principles discussed above, equally apply to those relied on by the agency in regard to the Triage report. Dr Lattimore also relied on clause 3(f) of the table in section 14 of the GIPA Act in regard to the disclosure of the information in her report.
Clause 1(d) - prejudice the supply to an agency of confidential information
On the basis of the content of the facsimile cover sheet and the heading of the report, I am satisfied that Dr Lattimore provided her report to the agency in confidence. The fact that she provided the report to a number of persons, does not mean it was not provided in confidence. On the contrary, it was provided to each person in confidence. However, as I have indicated above, this public interest consideration against disclosure is not concerned about whether a person supplied information to the agency in confidence, it is concerned more generally with the supply of confidential information that facilitates the effective exercise of the agency's functions.
Dr Lattimore and the agency, argued that the report should be viewed as a report from an ordinary member of the public and not as a psychological report. In my view, the report cannot be viewed in this way. Dr Lattimore clearly prepared the report in her capacity as a professional psychologist and not as an ordinary member of the public. Had she done so she would have written it in a different form and not provided her own professional assessment of the applicant's behaviour at that time.
In any event, whether the report is regarded as a report from an ordinary member of the public, or a psychological report, it is a report about the applicant in which concerns are raised about his mental health at the time. On the basis of the evidence of the agency, and having regard to its functions, I am satisfied that it is information of the kind supplied to the agency to facilitate its functions. I am also satisfied, on the evidence of Dr Ayra, that information of this kind (i.e. information about the mental illness or suspected mental illness of a person), supplied to the agency is treaded by the agency as having been supplied in confidence. That is, it is confidential information in the relevant sense.
The issue is whether a disclosure of the information in this report could reasonably be expected to prejudice the supply of confidential information of this kind. Whether Dr Lattimore will or will not continue to supply a report of this nature to the agency is immaterial. Nor, in my view, is it important to distinguish whether the report is a psychological report or a report from a member of the public. What is relevant is the nature of the information and its relevance to the functions of the agency. As I have already indicated, it is confidential information.
The applicant contends that the agency and Dr Lattimore have failed to establish the prescribed prejudicial effect if the information in the report is disclosed. His argument is based on Dr Lattimore's report being a psychological report and the evidence of Dr Ayra and Mr Scollay to the effect that the agency is not supplied with such reports from a non-treating psychologists, nor does the agency request such reports. Dr Hoyle gave similar evidence. Accordingly, it was argued that a disclosure of the report could not reasonably be expected to prejudice the supply to the agency of psychological reports. In my view, for the reasons I have already given, for the purpose of the clause 1(d) public interest consideration against disclosure, what is relevant is that the report concerns the mental heal of a person and the fact that it was written by a non-treating psychologist does not alter the nature of the report.
The agency relied on the evidence of Dr Ayra and previous findings of the tribunal in regard to the report. As I have already stated, the role of the tribunal is to consider this issue afresh in light of the provisions of the GIPA Act and the material before it.
As I have already said, the evidence of Dr Ayra is that the agency considers information of the kind in issue to be confidential information. He went on to say a disclosure of the information in Dr Lattimore's report could reasonably be expected to prejudice the supply of confidential information to the agency about suspected mental illness of a person. It is his evidence that persons supplying such information to the agency could become reluctant to provide such information, or they will be less fulsome if the agency did not treat the information as confidential information.
In my view, the evidence of Dr Arya satisfies the threshold necessary to establish this public interest consideration against disclosure.
Clause 3(a) - reveal an individual's personal information
As I have already indicated the information in Dr Lattimore's report consists of personal information or opinion about the applicant, the applicant's wife, Dr Lattimore and other named health professionals. To the extent the information is about the applicant's wife and other named health professionals, I am satisfied that a disclosure of that information could reasonably be expected to reveal the personal information of these people.
I am also satisfied that Dr Lattimore's opinion about the applicant, if disclosed, would reveal that information as it has not previously been openly disclosed. However, the report does contain some information about which the applicant has knowledge. Again that information has not been publicly disclosed and I have dealt with this information in the context of the balance between the public interest against disclosure and the public interest in favour of disclosure.
Accordingly, I find that the agency and Dr Lattimore have satisfied me that this public interest consideration against disclosure is established.
Clause 3(b) - contravene an information protection principle or health privacy principle
On the basis of my findings, the information in Dr Lattimore's report is also personal information and health information about the applicant and others, falling within the terms of the PPIP Act and the HRIP Act. However, the information is not information 'collected' by the agency. It was not requested by the agency or provided to the agency in the context of Dr Lattimore being the applicant's treating psychologist. Accordingly, it was 'unsolicited'.
Nevertheless, I find that a disclosure of the personal information and health information in the report could reasonably be expected to contravene section 18 of the PPIP Act and clause 11 of the HRIP Act.
In regard to the extent the information in the report is personal information or health information about the applicant and his right to seek access to that information under the PPIP Act and HRIP Act, I have dealt with this information in the context of considering the balance between the public interests.
Clause 3(f) - expose a person to a risk of harm or of serious harassment or serious intimidation
The agency does not press this ground of public interest consideration against disclosure, it is only pressed by Dr Lattimore. Accordingly, the onus rests on her to establish this ground.
In this regard, Dr Lattimore relies on the matters set out in her confidential statement and those set out in the statement of Ms Fernandez relating to the correspondence the applicant has sent to officers of the agency in regard to his applications for access.
Not to be published.
I accept that the applicant's correspondence with the agency might be viewed as being excessively assertive, unnecessarily emotive, lacking objectivity and sometimes threatening in tone. However, in light of the applicant having only recently received legal assistance, in my view the applicant's correspondence is a reflection of his frustration in being refused access to information about him, which is held by the agency. That frustration is unfounded, as there is no material before the tribunal to suggest that the officers of the agency dealing with his application for access have dealt with his application other than according to the provisions of the GIPA Act and the repealed FOI Act. At the same time it is evident that the applicant does not fully understand the operation of the provisions of these Acts. This however, does not excuse inappropriate behaviour.
It is now almost 7 years since Dr Lattimore wrote her report. The report was written a week after the police attended the applicant's premises and removed his firearms. I note he fully cooperated with police at that time. There is otherwise no material before the tribunal to indicate that the applicant subsequently ceased to be cooperative or that he behaved in a manner that harassed or intimidated a person other than the assertions in regard to Dr Lattimore and the officers of the agency dealing with his requests for access.
In regard to the applicant's persistence in obtaining access to the information in the report, there is no suggestion that the applicant was not entitled to make his various applications for access or bring proceedings, such as these proceedings, when access was refused. Accordingly, it is difficult to see how a finding of risk of harm, serious harassment or serious intimidation could be made on this basis. In so far as his persistent behaviour towards officers of the agency, I note the agency has taken appropriate steps to curtail this and it would appear he has complied.
Finally, I note that the applicant is seeking access to the report as he believes it contains errors about him.
Having regard to all the material before the tribunal, I am not satisfied that Dr Lattimore has established that a disclosure of the information in issue could reasonably be expected to expose a person to a risk of harm. While I accept that there is evidence of the applicant having behaved in a persistent and an unacceptable way, I am not satisfied that it is of a nature to find that it amounted to 'serious' harassment or 'serious' intimidation. Nor am I satisfied that the disclosure of Dr Lattimore's report could reasonably be expected to expose a person to a risk of 'serious' harassment or 'serious' intimidation. I would have made a similar finding had the agency relied on this ground of public interest consideration against disclosure.
(c) Balancing the public interests
In summary, I have found that disclosure of the information in Dr Lattimore's report could reasonably be expected to have the following effects:
(a) prejudice the supply of confidential information to the agency in facilitating the effective exercise of its functions,
(b) reveal an individual's personal information and health information, including that of the applicant,
(c) contravene section 18 of the PPIP Act and clause 11 of Schedule 2 of the HRIP Act.
I also find that the public interest factors in favour of the disclosure of the information are as follows:
(a) the general public interest in favour of disclosure,
(b) the information is personal information and health information of the applicant.
If the information in Dr Lattimore's report were to be considered as a whole, the contentions of the agency and Dr Lattimore are arguable in that the abovementioned public interest considerations against disclosure would outweigh the general public interest in favour of disclosure. However, in my view that is not the correct approach. As the focus of the GIPA Act is on 'information' and not 'documents', as it was under the repealed FOI Act, and where the nature of the information in the document the subject of dispute falls within different categories of information, the correct approach is to consider, for each category of information, where the balance lies between the established public interest consideration in favour of disclosure and the public interest consideration against disclosure.
In this application, as I have identified, the information in the report is personal information about:
(a) the applicant;
(b) the applicant's wife;
(c) Dr Lattimore; and
(d) other persons.
In regard to the personal information about the applicant's wife and persons, other than the applicant or Dr Lattimore, it is the applicant's contention that as there has been no consultation with the applicant's wife in regard to the disclosure of her personal information or the personal information of the other persons, there is no basis to refuse access to that information as it can be inferred that they do not object to its disclosure.
In my view, an inference of this nature is not available. Under section 54 of the GIPA Act, an agency only has an obligation to consult where it proposes to disclose the information in issue. On the material before the tribunal, at no time has the agency been inclined to disclose this information. However, the agency has consulted Dr Lattimore, the author of the report, and she has objected to the disclosure of any of the information in her report. I note that her objection is primarily based on the grounds that her report contains information she obtained in her capacity as the treating psychologist of the applicant's wife. It is well accepted that information of this nature is confidential. In these circumstances, the inference is that the applicant's wife and the other persons could reasonably be expected to object to the disclosure of the personal information about them.
On this basis and the fact that the applicant primarily seeks access to Dr Lattimore's psychological assessment of him, I find that the public interest considerations against disclosing the personal information about the applicant's wife and the other persons (other than that which the applicant has knowledge of), on balance, outweighs the public interest consideration in favour of disclosure and therefore an overriding one.
This leaves the personal information about Dr Lattimore and the personal and health information about the applicant. As I have explained, the personal information and health information in the report includes information that is known to the applicant. Not to be published.
As disclosure of these matters to the applicant would only reveal to him what he already knows, in my view, the public interest considerations against disclosure of this category of information, on balance, does not outweigh the public interest consideration in favour of disclosure.
In regard to the information about the applicant, including the opinions Dr Lattimore made about the applicant's behaviour at that time (i.e. her psychological assessment of the applicant), in my view, the public interest considerations against disclosure of this category of information, on balance, does not outweigh the public interest consideration in favour of disclosure and should be disclosed. In making this finding, I have considered Dr Lattimore's objection to the disclosure of the information and the fact that the applicant has been persistent in obtaining access to this information. However, as Dr Lattimore's opinions about the applicant were opinions based on her professional assessment of the applicant's behaviour at that time, in my view the public interest consideration in favour of disclosure must be given considerable weight. That is, the information is clearly health information about the applicant, which is information about which he has a right to access under the HRIP Act.
In regard to the remaining personal information about Dr Lattimore, I am satisfied that, on balance, the public interest consideration against disclosure is an overriding one.
Conclusions and Orders
For the reasons set out above, I have found that the decision of the agency in regard to the Triage report and Dr Lattimore's report are, in part, not the correct and preferred decision.
In regard to the Triage report I have found that the applicant should be granted access to some additional information, but the decision of the agency in regard to the identity of the caller is the correct and preferred decision. Accordingly, the appropriate order in regard to the Triage report is to vary the decision of the agency by granting the applicant access to the information of which the applicant has knowledge and otherwise affirming the decision of the agency. Attached to the confidential reasons for decision is a marked copy of the Triage report, which identifies the additional information for which the applicant is granted access.
In regard to Dr Lattimore's report, the appropriate order is to set aside the decision of the agency and in substitution thereof a decision (a) granting the applicant access to the personal information about which the applicant has knowledge and also the health information about the applicant as set out in Dr Lattimore's assessment of the applicant, and (b) refuse the applicant access to the remainder of the information in the report.
Again, attached to the confidential reasons for decision is a marked copy of Dr Lattimore's report, which identifies the additional information for which the applicant is to be granted access.
In making my decision I have had regard to the various means of access as set out in section 72 of the GIPA Act. In my view, as the applicant has sought a copy of the information and the agency, or Dr Lattimore have not pressed for access to be granted in an alternative form, it is appropriate to grant the applicant access in the form requested.
I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar
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Decision last updated: 12 November 2012
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