Cheney v Sydney West Area Health Service (No 2)

[2007] NSWADT 209

CITATION:	Cheney v Sydney West Area Health Service (No 2) [2007] NSWADT 209
DIVISION:	General Division
PARTIES:	APPLICANT Roger David Cheney RESPONDENT Sydney West Area Health Service
FILE NUMBER:	063237, 063328
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	11 June 2007
DATE OF DECISION:	11 September 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:	Cheney v Sydney West Area Health Service [2007] NSWADT 75 University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 Watt v Forests NSW [2007] NSWADT 197
REPRESENTATION:	APPLICANT In person RESPONDENT Dr G Close, agent
ORDERS:	The decision is affirmed

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.

2 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.

3 I considered the exemptions claimed by the Agency and made findings in regard to those exemptions in Cheney v Sydney West Area Health Service [2007] NSWADT 75. In particular, I found that material withheld by the Agency was exempt pursuant to Clause 6 of Schedule 1 of the FOI Act.

4 In University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 the Supreme Court decision confirmed that the Tribunal has 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. In light of that decision I considered that it was appropriate that the parties have an opportunity to present argument with respect to how the Tribunal’s discretion should be exercised. I invited the parties to make submissions in regard to whether the material that Mr Cheney seeks should be released notwithstanding that it has been found to be exempt.

5 Mr Cheney stated that he seeks the documents for use in legal proceedings relating to the review of a conviction. He says that he is unable to subpoena the documents for that purpose and needs to access them through a process outside the courts. He gave an assurance that the documents would be used only for those proceedings and that they will not be released to the public. He contends that this is sufficient reason to release the exempt material.

6 The Agency argues that the Tribunal has accepted that the withheld material is exempt from production under Clause 6 of Schedule 1 of the FOI Act. It says that the Tribunal should not accept Mr Cheney's assurance that the documents in question will be used only in his court proceedings because, by the very nature of the FOI Act, disclosure of documents constitutes release to the world at large, not just to Mr Cheney.

7 The policy underpinning the FOI Act is one of accountability and transparency of Government. Accordingly it is an express object of the FOI Act that the public should have access to information held by Government and to ensure that records held by Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading. However, this must be balanced against other public interests including the right to privacy of individuals.

8 The withheld material contains matter relating to other persons, which is of a personal, sensitive nature. The Agency argues that there is not any public interest served in releasing the withheld material to Mr Cheney, and thus to the world at large, as this opens up avenues for public access to such sensitive material held by the Agency and compromises the privacy of the individuals concerned.

9 The Agency also states that does not hold the originals of these documents, it only holds copies, and thus this is not the only avenue by which these documents would be available for the purposes of Mr Cheney’s legal court matters.

Findings

10 As I have previously indicated, Mr Cheney has been given a number of documents and partial access to those that are the subject of this application. I agree with the Agency in regard to the sensitive nature of the withheld material. I also agree that disclosure of documents constitutes release to the world at large, not just to Mr Cheney.

11 The Tribunal has discretion to order access to be given to documents that are exempt documents under the FOI Act. In order to determine whether or not the correct and preferable decision is to order access to be given to an exempt document it is necessary to balance the factors supporting the exemption against any public interest or other considerations justifying exercise of the residual discretion to override the exemption.

12 I considered various authorities dealing with how this discretion is to be exercised in the reasons for my recent decision in Watt v Forests NSW [2007] NSWADT 197. The residual discretion should only be exercised where there are strong grounds justifying the overriding of an exemption. In my view, the potential impact that would flow from release of the exempt sensitive personal information is a highly relevant factor. Very strong grounds would need to be found to justify disclosure of that material. I do not think such strong grounds are present in this matter.

13 I appreciate the importance of this information to Mr Cheney. However, I agree with the Agency that its release would compromises the privacy of the individuals concerned. In my view, the public interest in preserving that privacy outweighs the factors favouring the release of the material.

14 It is my view that the correct and preferable decision with regard to the material before me is that the exempt material should not be disclosed. Accordingly, the determination to refuse to release that material should be affirmed.

DECISION

The decision is affirmed.