Black v Hunter New England Local Health District (No 3)

[2020] NSWCATAD 280

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

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

Hearing dates:

On the papers

Date of orders:

16 November 2020

Decision date:

16 November 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R L Hamilton S C Senior Member

Decision:

(1) The decision of the Agency is AFFIRMED.

(2) The name of Dr [name suppressed] is prohibited from disclosure pursuant to sec 64(1)(a) Civil and Administrative Tribunal Act 2013.

Catchwords:

GOVERNMENT INFORMATION – refusal by agency to deal with application – sec 60(1)(b) GIPA Act- same information previously requested and refused- no reasonable belief that a different decision would be made

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Government Information (Public Access) Act 2009

Cases Cited:

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

Texts Cited:

None cited

Category:

Principal judgment

Parties:

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

Representation:

Solicitors:
Everingham Solomons (Applicant)
Colin Biggers & Paisley (Intervenor)
Crown Solicitor (Respondent)

File Number(s):

2020/00133958

Publication restriction:

The name of Dr [name suppressed] is prohibited from disclosure pursuant to sec 64(1)(a) Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

1. The applicant, for a second time, seeks access to information in a document created in 2005 under the Government Information (Public Access) Act 2009 ‘GIPA Act’). This information was contained in a written report provided by Dr [name suppressed] the treating psychologist of his former wife on 30 December 2005, to the mental health service of the agency. Dr [name suppressed] has applied to have the name suppressed in this decision on grounds of concern for personal welfare, and the length of the applicant’s campaign concerning this document.

2. The applicant has opposed this.

3. I am not persuaded that there is any relevance or public benefit in having Dr [name suppressed] named in this decision, and therefore I make an order pursuant to sec 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (‘CAT Act’).

4. The applicant previously sought access to the information in 2011. The agency refused access. On review the Administrative Decisions Tribunal (‘ADT’) granted access to a redacted version of the document (Black v Hunter New England Local Health District & [Anor] (No 2) [2012] NSWADT 235 (Black v NELHD (No. 2)).

5. Now years later the applicant has again sought access to the unredacted document. The applicant provided some documents with his application which were designed to achieve different outcome to the application. All but one of these documents post date the earlier decision of the ADT ( the cover sheet to the 2005 document in question was before the Tribunal in Black v HNELHD (No.2) at [81] and [82].

6. The agency refused to deal with the second application under sec 58(1)(e) GIPA Act in reliance on section 60(1)(b) of the GIPA Act which provides as follows [quote]

“60 Decision to refuse to deal with application

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

   (a)   …

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

The applicant has sought a review of the agency’s decision by the Tribunal. The Tribunal has jurisdiction pursuant to sections 80 (c) and 100 of the GIPA Act. The Tribunal has previously determined that this is a matter appropriate to be decided on the papers pursuant to section 50(2) of the CAT Act 2013.

7. Under the earlier application in 2011, the information to which the agency refused access is

8. The 2020 access application under review here is for the information in the same report (although it referred to the report being created on 29 December 2005, the report is dated 30 December 2005).

9. The decision of the ADT in the earlier matter, is taken to be the decision of the administrator [i.e. the agency] (see section 66 Administrative Decisions Review Act 1997 which was in the same terms in 2012).

10. Looking at the elements of section 60 (1) (b) GIPA Act, the information to which access is sought here is the same information as was the subject of the 2011 application. That application was determined by the ADT.

The next issue to be decided is whether there are any reasonable grounds for believing the agency would make a different decision on the new application.

11. In Black v HNELHD (No.2) it was found that the public interest considerations against disclosure outweighed those in favour in relation to those parts of the document which were redacted. The ADT found the following factors in the Table to sec 14 GIPA Act against disclosure applied and outweighed those in favour:

Clause 1(d)- prejudice the supply to an agency of confidential information

Clause 3(a)- reveal an individual's personal information

Clause 3(b) - contravene an information protection principle or health privacy principle

12. The ADT discussed these matters at [85] – [98] of the decision, and went on to 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” at [113]. As to information about the applicant the ADT found “In regard to the information about the applicant, including the opinions [name suppressed] made about the applicant's behaviour at that time (i.e. [the] 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” at [116]. “In regard to the remaining personal information about [name suppressed], I am satisfied that, on balance, the public interest consideration against disclosure is an overriding one” at [117].

Ultimately the ADT ordered:

1. “ In regard to [name suppressed] 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 [name suppressed] assessment of the applicant, and (b) refuse the applicant access to the remainder of the information in the report.

2. Again, attached to the confidential reasons for decision is a marked copy of [name suppressed] report, which identifies the additional information for which the applicant is to be granted access.”

There is nothing to suggest that the public interest grounds against disclosure of the redacted information have lessened over time. Also there is not much to suggest that the public interest in favour of disclosure have gained more weight.

13. The materials submitted with the new application (except for the letter of support from the applicant’s therapeutic social worker) do not change the weight which would be accorded to the factors positive to disclosure.

14. The post-2005 materials (other than the letter of support) relate to complaints lodged by the applicant against [name suppressed] with other regulatory bodies and to an attempt to get information from another agency, but have no salient relevance to the application for access to the information in this document, even though they may be seen as critical of Dr {name suppressed].

15. The letter of support from the applicant’s therapeutic social worker can be considered under sec 55 GIPA as a personal factor which could strengthen a claim to information. Relevantly it states:

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….”.

   16. The social worker’s letter states that the applicant:

‘has a strong fixation on this report and the imagined contents of what was said about him and his mental health…He feels very strongly that it has played a significant part in the fracturing of his relationship with his children…There is a block in any discussion around that time from the children thus the perception of the impact of this report. It is my opinion that a full copy of this report might help [the applicant] let go of his perceptions and find closure to this long standing issue “

It is clear that the existence of this 16 year old document, which he cannot see in its entirety, is causing Mr Black anxiety. He has gone to considerable lengths over the years to get access to it and pursue the author in various other ways. Although the social worker’s opinion that access to the unredacted document might help the applicant let go of his perceptions and gain closure, this personal factor must be balanced against the considerations outlined in the earlier ADT decision concerning clauses 3(a) and (b) of sec 14 GIPA (at [93]-[98]). The personal details and health information of other persons are still relevant considerations.

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

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

Orders:=

1. The decision of the Agency is AFFIRMED.

2. The name of Dr [name suppressed] is prohibited from disclosure pursuant to sec 64(1)(a) Civil and Administrative Tribunal Act 2013.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 16 November 2020