Cheney v Sydney West Area Health Service

[2007] NSWADT 75

CITATION:	Cheney v Sydney West Area Health Service [2007] NSWADT 75
DIVISION:	General Division
PARTIES:	APPLICANT Roger David Cheney RESPONDENT Sydney West Area Health Service
FILE NUMBER:	063267; 063328
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	17 November 2006
DATE OF DECISION:	4 April 2007
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	access to documents - adequacy of search - access to documents - personal affairs - Freedom of Information Act - access to documents - adequacy of search - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Commissioner of Police v District Court of NSW 31 NSWLR 606 Re Colakovski and Australian Telecommunications Commission (1991) 29 FCR 429 University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362
REPRESENTATION:	APPLICANT In person RESPONDENT Dr G Close, agent
ORDERS:	The matter is to be set down for further directions on Wednesday 18 April 2007 at 10:00 am.

REASONS FOR DECISION

Background

1 These are two applications brought by Mr Cheney in relation to requests that he made to the Sydney West Area Health Service (“the Agency”) under the Freedom of Information Act 1989 (“the FOI Act”). Mr Cheney applied to the Agency for access to documents as the follows:

Matter No. 063267

Documentation, written notes taken by Dr Robert Goetz at the Institute of Clinical Pathology and Medical Research (I.C.P.M.P.) Ref: FS: 93/836 and FS: 93/837.

Mr Cheney clarified this request as including all relevant documentation, written notes and DNA results produced by Dr Robert Goetz in those matters.
Matter No. 063328

All blood tests results, DNA results, Police reports, Biologist reports, all documentation relating to Roger David Cheney Ref: FS: 93/836; FS: 93/837 and FS: 91/354 held at Department of Forensic Medicine, Glebe, NSW.

Applicable legislation

2 Section 5 of the FOI Act provides that the objects of the FOI Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government. Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the FOI Act. The legally enforceable right to be given access to documents is subject only to such restrictions as are reasonably necessary for the proper administration of the Government. The discretions conferred by the FOI Act shall be exercised, as far as possible, so as to facilitate and encourage the disclosure of information.

3 Under section 25(1)(a) of the FOI Act, an agency has discretion to refuse access to a document if it is an exempt document. Pursuant to section 61 of the FOI Act the agency has the burden of establishing that its determination was justified.

4 Clause 6 of Schedule 1 of the FOI Act provides as follows:

6 Documents affecting personal affairs

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.

The original determination in relation to Matter No. 063267

5 In relation to Matter No. 063328 the Agency identified a total of 23 documents as falling within the scope of Mr Cheney’s request. The original determination was that full access was granted to 10 documents, partial access to 11 documents and access was refused to 2 documents, as they were considered exempt under Clause 6 of Schedule 1 to the FOI Act - Personal Affairs. This position was varied on internal review with the determination made that the two documents to which access was refused were to be released in part. It was asserted that they contain information relating to the personal affairs of a third party and that full release would involve unreasonable disclosure of the individual's personal affairs.

6 A further search undertaken following Mr Cheney’s request for an internal review revealed the existence of a further 3 documents in relation to FS: 93/837 that were originally deemed out of scope in relation to the request. The determination was made that 2 of those documents be released in full and 1 document be released in part as exempt under Clause 6 of Schedule 1 to the FOI Act.

7 Mr Cheney was advised that he cannot be given access to documents relating to DNA test results, as the Agency did not carry out any DNA tests on any items related to case FS: 91/354 and therefore does not hold any documents relating to DNA test results within the scope of the application.

8 The agency responded to a number of concerns raised by Mr Cheney in the following manner:

In response to your request for the following 'all' documents in relation to cases FS.93/836 and FS: 93/837, I will specifically address each of your concerns:

1) Forensic Biology Liquid Blood Sample: Documents No. I - No.6 blood group documents - format also handwritten, of Biologist

All documents relating to liquid blood samples have been provided. These are only relevant to testing of Item No. 1 (blood sample from victim) and Item No. 6 (blood sample from suspect) listed on the final report by Mr Goetz.

2) DNA results also written notes, handwritten documents, format document etc Dr Robert Goetz FS: 93/836: 837

As previously advised, former Western Sydney Area Health Service did not carry out any DNA tests on any items related to cases FS: 93/836 and 93/837 and therefore cannot provide any DNA test results. To reiterate previous advice on this matter, no semen was detected in the cases 93/836 and 93/837, as documented in Part 3 of the reports for FS: 93/836 and FS: 93/837 by Mr Goetz dated 15112/93 and 16/12/93 respectively, and therefore no DNA testing was performed.

3) General worksheet Item No. 2: Two single bedsheets also handwritten worksheets and notes. FS 93/837

Item 2 was not examined, as documented in Part 3 of the report for FS: 93/837 by Mr Goetz dated 16/12/93, therefore no worksheets and notes exist.

4) General worksheet Item No. 3: Pillowslip also handwritten worksheets and notes. FS 93/837

Item 2 was not examined, as documented in Part 3 of the report for FS: 93/837 by Mr Goetz dated 16/12/93, therefore no worksheets and notes exist.

5) DNA Material Retained Form: Test Date Form: FS: 93/836 & 837. Mr Robert Goetz and Other

As no DNA was recovered for testing in the cases FS: 93/836 & FS: 93/837, the form is not relevant to these cases and therefore does not exist.

6) FORENSIC BIOLOGY EXHIBITS SHEET: Format and handwritten FS: 93/836 & FS: 93/837

In 1993, handwritten Forensic Biology Exhibits Sheets were not retained and were destroyed. The procedure changed between 1991 and 1993, therefore this sheet is not on file in the cases FS: 93/836 & FS: 93/837

7) Swabs and Smears sample Sheets: FS: 93/836 & FS: 93/837

No swabs and smears were received for testing in relation to case FS: 93/836. The only item received for testing in this case was a bedspread.

In relation to FS: 93/837, all worksheets relating to swabs and smears have been provided. These worksheets are only relevant to testing on Item 1 (S.A.I.K), specifically testing on Items 1b, 1c, 1d, le, 1f, 1g and 1h.

8) DNA results: Blood test results, written notes, format documents: also Mr Robert Goetz and other

As previously advised and documented in 2) above, no semen was detected in the cases 93/836 and 93/837, as documented in Part 3 of the reports for FS: 93/836 and FS: 93/837 by Mr Goetz dated 15/12/93 and 16/12/93 respectively, and therefore no DNA testing was performed and no DNA results exist.

9 Mr Cheney was also advised that the Division of Analytical Laboratories moved from the Department of Forensic Medicine at Glebe in 1993 and all documents were transferred with the Department of Analytical Laboratories as a result of the move. The Department of Analytical Laboratories was part of the NSW Department of Health Division of Forensic Medicine, Glebe, until 1985. In 1995 the Division was split up, with the Department of Forensic Medicine at Glebe being aligned with former Central Sydney Area Health Service and the Division of Analytical Laboratories being sent to former Western Sydney Area Health Service. The Division of Analytical Laboratories was still physically located at Glebe until 1993, when it moved to its current location at Lidcombe. All files were transferred to Lidcombe at that time. He was also advised that Department of Forensic Medicine does not hold any documents relating to his cases.

The original determination in relation to Matter No. 063328

10 In relation to Matter No. 063267 the Agency identified a total of 15 documents that fell within the scope of Mr Cheney’s request. The original determination was that full access was granted to 7 documents, partial access to the remaining 8 documents, as they were considered exempt under Clause 6 of Schedule 1 to the FOI Act. The Agency also determined that it does not hold any documents relating to DNA test results within the scope of the application as no DNA testing was performed. This position was affirmed on internal review.

11 Mr Cheney applied to this Tribunal for a review of the Agency’s determinations. By consent these matters are to be determined on the basis of the material filed without the need for a hearing. Each of the parties provided written submissions and a copy of each of the documents in dispute has been provided to the Tribunal.

Mr Cheney’s case

12 Mr Cheney seeks access to the documents to which he has been provided only partial access. He asserts that he requires these documents for use in his future legal proceedings.

13 Mr Cheney seeks copies of the complete Sexual Assault Investigation Kit for FS: 93/837. Mr Cheney has been provided with a six page document titled Sexual Assault Medical Examination Information sheets. He stated that he has seen more than these six pages in the possession of the DPP and asserts that the document to which he has been given access is not the complete document.

14 Mr Cheney also seeks copies of original documents held by the Department of Analytical Laboratories that have been provided to the Tribunal. The Agency did not provide Mr Cheney with those documents that comprised correspondence between Mr Cheney and the Department of Analytical Laboratories because it was presumed that he would already have copies of those documents and the Agency considered that they fell outside the scope of the requests. Mr Cheney asserts that these documents are within the scope of his requests.

The Agency’s case

15 With respect to its assertion that it does not hold any documents relating to DNA test results within the scope of the application as no DNA testing was performed, the Agency also relies on statements provided by Ms Miriam McCartney and Mr Robert Goetz from the Division of Analytical Laboratories, Forensic Biology Laboratory, Lidcombe.

16 Ms McCartney referred to a reference in an earlier matter which suggested that DNA testing had occurred and stated:

The determination to a request for DNA documents relating to Mr Roger Cheney dated 30 January 2003, was provided by me in the capacity of the Area Freedom of Information (FOI) Officer for the then Western Sydney Area Health Service.

Paragraph 5 within the determination refers to documentation produced and owned by the NSW Police Force and were not within the Area Health Service's jurisdiction to release. The documents referred to in this paragraph were NSW Police P377 Specimen/Exhibit Examination Forms. The Area Health Service's response to further requests, dated 27 March 2006, notes that the NSW Police Force have subsequently released these documents.

During the FOI investigation it was revealed that Western Sydney Area Health Service had not commenced the DNA testing for the NSW Police in 1993 (December 1993 being the time Mr Cheney believes the samples and tests were taken). On 3 April 2003 I personally rang Mr Cheney and explained that the Division of Analytical Laboratories (DAL) and the Institute of Clinical Pathology & Medical Research (ICPMR) did not hold DNA results for the year of 1993, in specifically they held no DNA results in relation to Mr Roger Cheney.

17 In reference to a notation "DNA Prep'd" on one of the documents provided to Mr Cheney Mr Goetz stated:
1. DNA testing was not carried out on cases FS93/836 and FS93/837.

2. "DNA Prep'd" refers to the protocol of storing blood from a person into a small vial which is then placed in the freezer in case DNA testing is required. If DNA testing is not conducted on any items in the case this sample remains in the freezer unexamined and will not be DNA typed.

18 With respect to the Agency’s assertion that information contained within those documents to which only partial access has been granted is exempt pursuant to Clause 6 of Schedule 1 to the FOI Act, the Agency submitted:
All documents held by Sydney West Area Health Service relating to the scope of Mr Cheney’s FOI applications have been released to Mr Cheney, either in part or in full.

A thorough search has been undertaken of the documents held by the Department of Analytical Laboratories and Mr Robert Goetz has certified that all documents relating to Mr Cheney and the cases in question within the scope of the various FOI applications have been produced.

A thorough search has been undertaken by Dr Robert Kozyrod, who has checked the DAL Physical Evidence Laboratory’s sample register between November 1993 and December 1995 for any records relevant to the FOI requested by Mr Cheney in relation to FS 93/836 and FS 93/837 and he was not able to find any pertinent register entries. The only entry related to the case 91/354 (Register no. C8192) which has been provided, as indicated above.

A total of 76 documents have been provided to Mr Cheney as a result of his various FOI applications and as an outcome of the ADT planning meetings. Of these 76 documents, 49 documents have been released in full and partial access has been granted to 27 documents.

These 27 documents have been considered exempt in part under section 25(1)(a) of the FOI Act, in relation to the personal affairs exemption set out in Clause 6 of Schedule 1 of the Act. It is the opinion of Sydney West Area Health Service that the sections of the documents not provided (blacked out) contain matter relating to other persons, such as the sexual assault victims, which either identifying or is of a personal, sensitive nature. Access to these sections of the documents in question was refused on the basis that release would involve the unreasonable disclosure of information concerning the personal affairs of these other persons not aware of the request for information.

Although section 31 of the Act sets out the consultation process to be followed where documents contain information concerning personal affairs, Sydney West Area Health Service did not deem it practical or appropriate to attempt to make contact with the persons concerned. This decision was made given the time that has elapsed between the event and the current date, and the sensitive nature of the circumstances under which the information was obtained, which is likely to cause distress for the persons concerned, if they were contactable, if the matter is revisited at this time. We note that the relevant individuals were not patients of clients of SWAHS. Rather SWAHS received the FOI applications as the Department of Analytical Laboratories come under the auspices of the Area Health Service.

In relation to Mr Cheney’s request for release of the victim’s ‘date of last coitus if within 7 days’ on the History of Assault Form (Forensic Laboratory copy) in case FS 91/354, based on legal advice, SWAHS restates its previous decision to withhold release of this information on the grounds that the information is exempt under Schedule 1 Clause 6 of the FOI Act.

It is considered by SWAHS that the information is both information concerning the personal affairs of a third party which is personal and sensitive in nature and that it is unreasonable to disclose the information, satisfying the requirements under Clause 6 of Schedule 1 of the FOI Act for an exempt document.

19 The issues for determination are therefore whether or not the Agency has undertaken a sufficient search for documents that fall within the scope of Mr Cheney’s requests and whether the withheld material should be provided to Mr Cheney.

Findings

20 As indicated above, Mr Cheney has been given a number of documents however access to others documents that have been identified as falling within the scope of the request have been partially refused.

21 I have considered the arguments presented by both parties with respect to the search undertaken by the Agency. I note Mr Cheney’s concern that the search failed to reveal documents that he asserts should exist because he has seen them in the material held by the DPP. Notwithstanding that assertion, I am satisfied that the search undertaken by the Agency was adequate. In my view, the Agency should not be required to undertake any further searches in regard to these requests.

22 I accept that the Agency does not hold any documents relating to DNA test results within the scope of the application.

23 However, I agree with Mr Cheney’s assertion that the correspondence between Mr Cheney and the Department of Analytical Laboratories that has been provided tot eh Tribunal but not to Mr Cheney falls within the scope of the requests and should be provided.

24 With respect to the documents provided to Mr Cheney in part only, the Agency asserts that the withheld material is exempt from production under Clause 6 of Schedule 1 of the FOI Act.

25 I have been given a copy of the relevant documents and I have considered them. It is clear from the face of each of the documents that they refer to an individual who was an alleged victim of sexual assault. The name of the individual has been blacked out, as is some other information relevant to that individual.

26 It is a question of fact in every case as to whether or not information relating to a person amounts to ‘personal information’. In Re Colakovski and Australian Telecommunications Commission (1991) 29 FCR 429 Justice Lockhart stated at [27]:

27. There is a real question as to whether the name and telephone number of a person can answer the description of "information relating to the personal affairs" of that person under s. 41(1). Viewed as an abstract conception I would be inclined to the view that it could not, but such questions are not considered by Courts in the abstract. The present case must be approached on the basis that the relevant documents containing the deleted material state the names, addresses and telephone numbers of persons making the calls or of the subscriber. Plainly enough it would be revealed from the documents when the telephone calls were made, the telephone number from which they emanated, the name of the subscriber, and, at least in some cases the name of the caller and perhaps a pattern of telephone calls.
27 In Commissioner of Police v District Court of NSW 31 NSWLR 606 (Perrins case) Kirby P. (as he then was) observed at pages 624-5:
“The result of these authorities and of the plain language of the exemption is that in each case where the exemption is invoked, the decision-maker must consider whether disclosure of a name appearing in documents of the agency to which access is requested amounts to disclosure of information concerning the “personal affairs” of the person named. It is appropriate to go beyond the deleted words and to examine the document as a whole when considering whether the words disclose information concerning the personal affairs of the person named: cf Re Wong and Department of Immigration and Ethnic Affairs (1984) 2 AAR 208 at 210.

There is no simple rule that disclosure of the name of a person will in every case amount to disclosure of information concerning the named person's “personal affairs”. The Commissioner so submitted. However, I would reject that submission. It is true that disclosure of a name will disclose information concerning the person. But the submission pays insufficient attention to the composite phrase “the personal affairs”. The importance of the word “affairs” has been emphasised in the Federal Tribunal: see, eg, Re Corkin & Department of Immigration and Ethnic Affairs (1984) 2 AAR 214; Re Wong and Department of Immigration and Ethnic Affairs (at 211). That word is to be interpreted as it is commonly understood in ordinary speech.”

28 It is not in dispute that Mr Cheney may know the identity of the individual who is referred to in these documents; however, release of documents under the FOI Act is release to the world at large, not merely to Mr Cheney. The mere fact that Mr Cheney may know the identity of an individual referred to in a document does not assist in characterising them for the purposes of exemption claims under the FOI Act. Knowledge of the contents of the documents by Mr Cheney is one thing. Disclosure under the FOI Act is another, as it constitutes disclosure to the whole world.

29 After considering these documents, I am satisfied that the Agency has correctly determined that the withheld material contains matter relating to other persons which is of a personal, sensitive nature so as to attract the Clause 6 of Schedule 1 exemption. The question then remains as to whether the documents should be released in full despite the finding that they attract this exemption.

Public Interest Override

30 Until recently there has been considerable debate with respect to the issue of whether the Tribunal has what is commonly referred to as a "public interest override" if it determines that the documents should be classed as exempt documents. The matter has now been resolved by Nicholas J in his recent decision in University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362. He stated at paragraphs [102] - [103]:

“102 In my opinion s 63 ADT Act provides the Tribunal with the discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it.

103 It follows that with respect to the overriding discretion issue I respectfully disagree with the conclusion expressed in Neary (para 83) that it is not open to applicants for review to seek an order, purportedly in exercise of powers conferred by s 25 FOI Act that a Minister or agency release an otherwise exempt document. In my respectful opinion the following passage from Mangoplah correctly states the position:

“85 Consistent with this jurisprudence, absent any special limitation on the Tribunal’s review function in applications under the FOI Act, it has the function by reason of s 63 of the ADT Act - indeed the duty - when reviewing a determination under ss 24 and 25 of the FOI Act to consider all issues arising in the case in relation to whether a document should be released. As indicated above, once a ground for refusal of access arises under s 25(1)(a) the issue arises whether to exercise the discretion to release an exempt document which is not a restricted document the subject of a Ministerial certificate. The decision under review must have, or must be taken to have, addressed this discretion before determining to refuse access on the ground of an exemption. The Tribunal must also address it”.
31 This decision was handed down after the parties had filed their submissions in this matter. In light of the decision in University of New South Wales v Gerard Michael McGuirk it is appropriate that the parties have an opportunity to present argument with respect to how the Tribunal’s discretion should be exercised. The matter should be set down for further directions in respect of the outstanding matters, on a date suitable to both parties and as arranged by Registry.

DECISION

The matter is to be set down for further directions on Wednesday 18 April at 10:00 am.