Cy v AEF and Northern Sydney Local Health District (GD)

[2012] NSWADTAP 46

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

CY v AEF and Northern Sydney Local Health District (GD) [2012] NSWADTAP 46

Hearing dates:

7 September 2012 and 25 October 2012

Decision date:

14 November 2012

Before:

Judge K P O'Connor, President
K Fitzgerald, Judicial Member
P Smith, Non-judicial Member

Decision:

1. Appeal dismissed.

2. Tribunal's decision affirmed, subject to it taking effect 10 days after the publication of these reasons.

Catchwords:

GOVERNMENT INFORMATION (PUBLIC ACCESS) - Appeal - Third party objection to release of documents - Whether prior suppression order raises conclusive presumption - Power of Tribunal to re-open suppression order - Status of prior Tribunal order made between different parties - Merits - Balancing of considerations for and against disclosure - Appeal dismissed: Government Information (Public Access) Act 2009, s 14, Schedule 1, Clause 4; Administrative Decisions Tribunal Act 1997, s 75.

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Court Suppression and Non-publication Orders Act 2010
Freedom of Information Act 1989
Government Information (Public Access) Act 2009

Cases Cited:

AEF v Northern Sydney Local Health District (No 2) [2012] NSWADT 89
AEF v Northern Sydney Local Health District [2011] NSWADT 170
C v New South Wales Scientific Committee and anor [2008] NSWADT 42
Chief Executive Officer, State Rail Authority v Woods (GD) [2003] NSWADTAP 25
Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 (Perrin's case)
CY v Northern Sydney Central Coast Area Health Service [2008] NSWADT 315
Harry Day v John Smidmore & Ors (No 2) [2005] NSWIRComm 406
House v The King (1936) 55 CLR 499

Category:

Principal judgment

Parties:

CY (Appellant)
AEF (First Respondent)
Northern Sydney Local Health District (Second Respondent)
Information Commissioner (Statutory Intervener)

Representation:

Counsel
C D Jackson (Appellant)
Slater & Gordon (Appellant)
In person (First Respondent)
Lander & Rogers (Second Respondent)

File Number(s):

129012

 Decision under appeal 

Citation:

AEF v Northern Sydney Local Health District (No 2) [2012] NSWADT 89

Date of Decision:

2012-05-11 00:00:00

Before:

General Division

File Number(s):

113084

REASONS FOR DECISION

1. This appeal arises out an application made under the Government Information (Public Access) Act 2009 (GIPA Act) for access to three documents. They are connected with the circumstances of the self-inflicted death of a voluntary patient that occurred in 2003 after she unexpectedly left a mental health care facility. The access applicant is the patient's father ('AEF').

1. The three documents are known as the Kimber report (19 July 2006), the Hoyle-Landrigan report (13 November 2006) and the Taylor report (18 September 2007). They dealt with the question of whether disciplinary action should be taken against three senior officers in relation to their management of the patient's health care needs.

1. The Tribunal below has ordered their release in full to the access applicant: AEF v Northern Sydney Local Health District (No 2) [2012] NSWADT 89. The second respondent in those proceedings was CY, a senior administrative officer of the agency, one of the three officers whose conduct is the subject of examination in the three documents.

1. In 2008 he had been successful in objecting to the agency's decision to release redacted parts of the Kimber report to AEF): see CY v Northern Sydney Central Coast Area Health Service [2008] NSWADT 315 (Montgomery JM). The Tribunal held that the whole of the document should not be released.

1. In responding to the present access application, the agency refused access on the ground that there was a suppression order in force affecting the three documents. The suppression order was made in the 2008 case, as follows:

Division: General

Applicant: CY

Respondent: Chief Executive, North Sydney Central Coast Area Health Service

File Number: 073302

The Tribunal makes the following orders:

1 A general order is made under s 75 of the Administrative Decisions Tribunal Act 1977 and s 55 of the Freedom of Information Act 1989 in these proceedings prohibiting and restricting disclosure of the name of the applicant, the documents lodged with the Tribunal and received in evidence, and the transcript of the hearing.

2 Order 1 does not apply to disclosure between the parties or to disclosure between their legal representatives, servants or agents or to disclosure to any Tribunal member constituted to deal with the matter and Tribunal staff.

16 June 2008 [ENDORSED By Judicial Officer Steve Montgomery]

1. The Tribunal primarily acted under s 75 of the Administrative Decisions Tribunal Act 1997 (ADT Act). It provides:

75 Proceedings on hearing to be conducted in public

(1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public.

(2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order that the hearing be conducted wholly or partly in private,

(b) an order prohibiting or restricting:

(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or

(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,

(b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

(2A) The Tribunal cannot make an order under subsection (2) (b) in respect of any proceedings to which section 126 applies.

(2B) The Tribunal may from time to time vary or revoke an order made under subsection (2).

(3) Mediation sessions and neutral evaluation sessions under Part 4 are to be conducted in private.

1. In addition the order referred to s 55 of the Freedom of Information Act 1989 (then in force):

55 Procedure for dealing with exempt matter

In determining a review application, the Tribunal:

(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter, and

(b) is to, where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative.

1. It will be seen that s 55 is not a source of power for the making of suppression orders.

1. The agency rejected the 2010 access application on the basis that a conclusive presumption arose. The presumption was seen as applying not only to the Kimber report (the disputed document in the 2008 case) but also the Hoyle-Landrigan report and the Taylor report as they had been tendered in evidence.

1. In reaching this conclusion the agency relied on ss 5, 9(1) and 14(1) of the GIPA Act and cl 4 of Schedule 1, in particular cl 4(b):

5 Presumption in favour of disclosure of government information

There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

9 Access applications

(1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.

14 Public interest considerations against disclosure

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure

Cl 4 Contempt

It is to be conclusively presumed that there is an overriding public interest against disclosure of information the public disclosure of which would, but for any immunity of the Crown:

(a) constitute contempt of court, or

(b) contravene any order or direction of a person or body having power to receive evidence on oath, [emphasis added] or

(c) infringe the privilege of Parliament.

The Decision under Appeal

1. The Tribunal below considered as a preliminary matter whether it had power to reopen the suppression order. The Tribunal received submissions from the agency, CY and the Information Commissioner. It decided it had power to vary or revoke the order: AEF v Northern Sydney Local Health District [2011] NSWADT 170 (Molony JM). It proceeded to hear the substance of the case, and decided to grant AEF's application in full. It then varied the 2008 suppression order so as to except from its scope the three documents: AEF v Northern Sydney Local Health District (No 2) [2012] NSWADT 89.

1. (AEF has asserted that he approached the Registry of the Tribunal in 2009 seeking to reopen the suppression order and was advised that he could not do so as the file had been closed. We are not in position to confirm that account, but for the reasons that appear below, an affected person can, as we see it, apply at any time to have a suppression order reopened, regardless of whether the proceedings in which the order was made have been finalised.)

The Appeal

1. CY now appeals against the 2012 Tribunal decision. This appeal is governed by the ADT Act, ss 112 and 113.

1. AEF is the first respondent, the agency the second respondent. The Information Commissioner has also appeared at both levels in the proceedings, as permitted by the GIPA Act, s 104. CY opposes release of so much of the material in the three reports as refers to him.

1. At hearing on 7 September 2012 CY sought leave to add a further ground to the appeal, and that was granted.

1. On the same day, we asked CY to indicate what parts of the report were not the subject of an objection to release by him. His counsel handed up a document at the resumed hearing on 25 October 2012. Through his counsel, he indicated that he did not have any objection to consent orders being made in appropriate terms to reflect the terms of the draft. We will return to this matter later in these reasons.

1. As amended, the grounds of appeal on questions of law are:

(1) Whether a Tribunal in proceedings other than those in which orders under s 75(2) of the ADT Act has the power to vary those orders.

(2) Whether the Tribunal failed to take into account the conclusive presumption of an overriding public interest against disclosure of the Kimber Report as provided for in s 14(1) and Schedule 1 cl 4 of the GIPA Act, such conclusive presumption arising by order of Montgomery JM in the 2008 case.

1. CY also applied for leave to extend the appeal to the merits. An appeal may be extended to the merits without it being necessary to demonstrate an error of law.

1. AEF, the first respondent, made submissions in support of the Tribunal's decision. The agency, as the second respondent, maintained the position it had adopted before the Tribunal below, namely that the Tribunal had power to vary or revoke the suppression order. The agency did not make any submissions on the further question, either before the Tribunal below or on appeal, in relation to whether the documents should be released, once the suppression order was varied.

1. The Information Commissioner's representative referred to submissions made to the Tribunal below on the issues (16 June 2011).

The Conclusive Presumption Issues

1. The Tribunal has power to receive evidence on oath. To that extent, therefore, cl 4(b) of Schedule 1 is engaged.

1. Counsel for CY did not draw our attention to any case-law that might be said to stand in the way of the view that the Tribunal could at any time deal with an application for revocation or variation of a suppression order, apart arguably from the observations in C v New South Wales Scientific Committee and anor [2008] NSWADT 42, which left the question open.

1. The agency's submissions referred to the Industrial Relations Commission case of Harry Day v John Smidmore & Ors (No 2) [2005] NSWIRComm 406 (Full Bench). The agency noted that the Full Bench did not see itself as prevented from making new suppression orders pertaining to an earlier judgment. We note that the provision under notice in that case was not in identical terms to the ADT Act provision. The agency also referred to the broad powers given to courts by the Court Suppression and Non-publication Orders Act 2010, s 9(3), which expressly allow for orders to be made after proceedings have concluded.

1. The agency also noted that the 2008 Tribunal did not publish reasons or a judgment underlying the suppression order made on that occasion; and that they were made in proceedings to which AEF was not a party. It submitted that those orders ought not preclude determination of AEF's present application on its merits, and the making of any necessary variation of the 2008 order.

1. The Information Commissioner's submissions (those filed before the Tribunal) argued that s 75 is a procedural power whose nature may be contrasted to the substantive powers conferring jurisdiction under ss 37 and 38 of the ADT Act or the power to make determinations under s 63. The submissions, as did the agency's, noted the broad and open-ended terms of s 75, in particular sub-section (2B).

1. In our view, s 75(2) is to be understood as a provision subordinate to the primary rule laid down by s 75(1). The primary rule is one fundamental to the administration of justice, i.e. that ordinarily legal proceedings should be conducted in public.

1. We see no reason to read down the breadth of s 75(2B). A suppression order must, we consider, always be capable of revisitation so as to ensure that the fundamental principle of 'open justice' reflected in s 75(1) is not inappropriately impaired. In our view, persons affected by suppression orders (and that may extend well beyond the parties to the litigation) must be able to apply to the Tribunal at any time to have the order revisited. The circumstances that gave rise to the suppression order may have changed, it may have been expressed too widely or it may have some other untoward effect. It is for reasons of this kind that there is a power to vary or revoke granted by s 75(2B).

1. In our view, it is beyond doubt that s 75(2B) confers an express power on the Tribunal to reopen a suppression order. It was open to the Tribunal to proceed in the way that it did in this matter.

1. The ground added to the notice of appeal on 7 September 2012 (and the subject of supplementary written submissions) was that the 2008 order to set aside the agency decision, and in effect substitute a decision of refusal of access to the entire document, was itself an order of the kind to which cl 4(b) referred.

1. Clause 4(b) is expressed in broad terms, lending a colour of plausibility to this argument. But the provision must be read in the context of the Act as a whole, and having regard to the scheme of the legislation.

1. It is plain that the 2008 order was made against the background of a set of understandings on the part of the Tribunal that no longer apply. The Tribunal in essence accepted CY's case that no release of the contents of these reports should occur while proceedings in the Industrial Relations Commission involving him remained on foot. Those proceedings have now concluded (we were advised at hearing that they had in fact concluded between the time of the 2008 Tribunal's hearing and its determination, a matter not advised to the Tribunal). There has been no disciplinary action taken against CY.

1. Clearly it was material to the Tribunal's response on that occasion that it understood that there were disciplinary proceedings on foot, a factor that is no longer relevant.

1. There is nothing in the GIPA Act that prevents an applicant making repeated applications for the same documents. That possibility is recognised by the giving of a power to the Tribunal to restrain excessive conduct of this kind (see GIPA, s 110). This is consistent with the objective of FOI or GIPA laws. The public interest considerations that support or oppose disclosure may well shift over time.

1. The agency in its supplementary submissions for the resumed hearing made a similar point.

1. If the appellant's view of the operation of cl 4(b) were to prevail then GIPA non-disclosure orders made at Tribunal level at a time when the public interest considerations favoured non-disclosure would be set in aspic. This would defeat the clear objective of the GIPA law to promote access to government information to the maximum extent consistent with the public interest.

1. In our view, cl 4(b) is not to be interpreted so as to apply to orders made under the GIPA Act of the kind in issue in this case.

1. The Tribunal did not, in our opinion, err in law, and we reject the two grounds of appeal on questions of law.

Application for Leave to Extend to the Merits: The Balancing of Considerations for and against Access

1. CY's counsel acknowledged the difficulty of upsetting on appeal a discretionary decision of the kind made by the Tribunal. For an error of law to arise, there would need to be an error in understanding of a serious degree, of the kind to which the well-known principles of House v The King refer - (1936) 55 CLR 499. Against this background counsel pressed the application for leave to extend the appeal to the merits.

1. In the application found in the notice of appeal CY submitted that the decision under appeal raised a number of issues of importance both to him and more generally, in terms of balancing the competing interests of privacy in relation to matters of a personal nature on the one hand, and open access to information. He noted that the documents sought by AEF were of an internal disciplinary nature, were dependent on the full and willing co-operation of those the subject to potential disciplinary action, and that co-operation involved an implicit promise that the process was of a confidential nature.

1. In addition in his written and oral submissions to the Appeal Panel, CY referred to the amount of material that was already in the public domain. He noted that there was a coronial investigation which resulted in a brief to the coroner which was provided to AEF and his wife, followed by a lengthy inquest at which multiple witnesses from the hospital, including the three persons the subject of investigation, gave evidence. AEF and his wife were represented at those proceedings, and had the opportunity to question him, as well as the other witnesses.

1. The submission was that the three reports now under notice offered 'nothing additional of a concrete nature, but rather are subjective and tendentious opinion, reached as part of a confidential, internal, personal, disciplinary process'. The submissions went on to criticise the reasoning in the Kimber report, referred positively to the reply provided by the Hoyle-Landrigan report and referred negatively to the Taylor report, and its conclusion that the performance issues be dealt with by a negative notation on some employees' files. As to the last matter, the submissions noted the Industrial Relations Commission quashed this recommendation on the ground that the employees had been denied procedural fairness.

1. We accept that CY regards the release of the contents of the three reports that refer to his conduct as likely to inflict public damage on his standing and reputation in the health care community. As we noted, his major concern is directed to the Kimber report which contains a number of damaging statements. On the other hand, the Hoyle-Landrigan report rejects the Kimber analysis. The Taylor report is less supportive, but is not as negative as the Kimber report.

1. In his submissions CY referred to the personal nature of the material. We do not think that the references in reports of an internal disciplinary nature to the official conduct of officers can properly be regarded as personal in nature, in the sense of going to their personal affairs. In our view, the opinions expressed by the Court of Appeal in Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 (commonly known as Perrin's case) remain applicable under the new GIPA Act.

1. He stressed that he had co-operated with the Kimber process, and believed that he had, at least implicitly, an ironclad guarantee of confidentiality in relation to the publication of its contents. This was disputed by AEF. Mr Kimber, a barrister, was retained by the agency to examine and advise in relation to the findings of the coronial inquest and other material. While the degree to which it occurred is not clear to us, the parties acknowledged that there were some exchanges of material for comment between interested parties including CY and AEF, before he finalised his report. See further Tribunal reasons at [67].

1. We acknowledge CY's essential submission that it will often be appropriate to protect a public servant the subject of confidential adverse comment from revelation of those comments or assessments to third party GIPA applicants. The Tribunal has in a number of cases that arose under the predecessor law to the GIPA Act (the Freedom of Information Act 1989) recognised the importance of supporting co-operation with confidential investigations, and has affirmed agency decisions to refuse to release that material. See, for example, Chief Executive Officer, State Rail Authority v Woods (GD) [2003] NSWADTAP 25. That case involved junior officers of the agency, and disclosure they had made to a disciplinary investigation of conduct by other officers in the same unit.

1. However, we are not disposed to reopen the decision of the Tribunal.

1. We note in this regard that CY is a relatively senior officer in the health system. Senior officers may be called to account in relation to their management in the ways that have occurred in this case. As a senior officer, CY appropriately co-operated with the inquiries that ensued, including the Kimber process. While there may have been a strong expectation of confidentiality, this was a case that had a high profile. As CY noted in his submissions, there was a coronial inquest. We understand that the inquest made recommendations for change, and there has also been a Health Care Complaints Commission inquiry, and an Ombudsman inquiry. The basic thrust of each of the three reports in issue is well known to the parties. All that is left to be revealed is the specifics on some points as they affect CY. The other two persons the subject of the reports are no longer pressing any objection to their release. We acknowledge in that regard that CY remains a career officer unlike the other two persons.

1. Further, we note that in the present case there were no systemic submissions from the agency, as has been seen in some cases that arose in the Tribunal under the old Act, referring to the possible prejudice that release of the material might have on future co-operation by officers with investigative processes of the present kind.

1. In addition we note that in this case the applicant, AEF, relied heavily on special considerations relating to his personal circumstances as a factor in favour of being given unfettered access. The question of whether special interests personal to one citizen should be given weight as compared to citizens generally under FOI laws was the subject of controversy under the previous legal regime. On one view all access applicants should be treated alike in relation to the question of access to the policy documents of government or important internal documents such as investigation reports and briefs to Ministers. However, the GIPA Act gives, as did FOI case law as it developed in more recent years, some weight to special considerations personal to the access applicant: GIPA Act, s 55.

1. We do not grant leave to extend the appeal to the merits.

1. Accordingly the appeal is dismissed.

1. We note that the Tribunal deferred the operation of its order for 30 days, during which time the appeal was lodged, and a stay of the Tribunal's decision granted until further order (12 June 2012).

1. We will formally affirm the Tribunal's order, and defer its operation, on this occasion, for a period of 10 days.

1. In these circumstances it is unnecessary to formulate consent orders along the lines of the (helpful) statement provided by CY at our resumed hearing on 25 October 2012.

Order

1. Appeal dismissed.

2. Tribunal's decision affirmed, subject to it taking effect 10 days after the publication of these reasons.

Decision last updated: 15 November 2012