Dawson v The Commissioner, Health Care Complaints Commission

[1999] NSWADT 57

CITATION:	Dawson v The Commissioner, Health Care Complaints Commission [1999] NSWADT 57
DIVISION:	General
APPLICANT:	Eleanor Dawson
RESPONDENT:	The Commissioner, Health Care Complaints Commission
FILE NUMBER:	993076
HEARING DATES:	07/05/1999
SUBMISSIONS CLOSED:	07/06/1999
DATE OF DECISION:	30 July 1999
BEFORE:	N Hennessy - Deputy President
PRIMARY LEGISLATION:	Freedom of Information Act 1989
APPLICATION:	Review of decision to refuse access to documents (or part thereof) - personal affairs exemption
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: In person Respondent: T Galloway, Director of Investigations and Prosecutions, Health Care Complaints Commission
ORDERS:	1. The respondent's decision not to disclose the complete list of practitioners on the list of psychiatrists as at 31 May 1999 is set aside. 2. In substitutation for that decision the respondent is to provide to the applicant within 7 days a complete list of practitioners on the HCCC's list of psychiatrists as at 31 May 1999. The list should indicate the names of those practitioners who have resigned since that date.

Background to the application

1 This is an application by Dr Eleanor Dawson under the Freedom of Information Act 1989 (FOI Act) for access to the names of psychiatrists currently on the Health Care Complaints Commission’s (HCCC) list of psychiatrists under their Peer Review Scheme. The HCCC has disclosed the names of all but three of the people on the list and has submitted that those three have either never been “properly” on the list or are no longer on the list. Alternatively the Commission has claimed that they are justified in not disclosing the names of the three people because of the operation of certain exemptions under the FOI Act.

2 The applicant originally lodged her application with the HCCC on 30 July 1997 seeking the “names of psychiatrists currently on the Register.” Her application for the names was refused in full by letter dated 22 August 1997. The applicant applied for an internal review of the HCCC’s decision by letter of 25 September 1998. The HCCC replied by letter of 12 October 1998 refusing the application and quoting Section 13 (b)(ii) of Schedule 1 to the FOI Act to justify their decision.

3 On 4 February 1999 Dr Dawson wrote to the Ombudsman requesting that she conduct an external review of the HCCC’s decision under the FOI Act. The Ombudsman responded by requesting the HCCC to provide further information.

4 The applicant lodged an Application for Review of a Decision with the Tribunal on 4 May 1999. In that application Dr Dawson noted that “The NSW Ombudsman is awaiting a response from the HCCC - due about 18 May 1999.”

5 At a meeting on 3 June 1999 the HCCC Commissioner gave the applicant the names of fourteen people on the list and advised that efforts were being made to consult with the remainder of the psychiatrists on the list. However the HCCC told the applicant that the identity of the people who objected to their names being disclosed would not be provided.

6 At a Directions Hearing on 10 June 1999 the Tribunal ordered the respondent to provide a Statement of Reasons in respect of the people on the list whose names had not been disclosed. By an undated letter to the applicant, eight more names were provided. The names of the three remaining people were not disclosed. The letter stated that “In the circumstances the full current list of the psychiatrists peer review panel has now been supplied to you. As I understand it, this satisfied your Application and there are no further matters which would warrant the provision of a Statement of Reasons.”

Evidence

7 Sarah Crawford, Director of Executive Support at the HCCC gave evidence that the list in question is compiled by the HCCC to assist in investigative work where independent opinions are needed in order to assess the allegations of complainants. The officer handling a complaint decides who is the most appropriate person on the panel to do a review. That person is then telephoned and asked if they agree to conducting the review.

8 Ms Crawford told the Tribunal that the means by which a person becomes a panel member has changed in the last few years. Previously there was a very informal process whereby people were placed on the panel through personal recommendation. In the last couple of years the process has been formalised so that a person is required to provide their curriculum vitae and a senior officer conducts an interview. The list is continually changed to ensure that it reflects the needs of the Commission. As at June 1999 the list comprised approximately four hundred practitioners. Participation on the list is voluntary with practitioners paid fees for the provision of reports or for participation as witnesses in hearings.

9 Ten months ago letters were sent to all 400 members on the list to advise them of the new procedures and obtain up to date curriculum vitaes. Ms Crawford estimated that twenty or thirty of the 400 people who were sent letters wrote back saying they did not know they were on the panel.

10 On 31 May 1999 Ms Crawford sent a fax to the twenty five members of the psychiatric panel advising them that an FOI application had been received and asking whether or not they objected to their name being released. One person, person A, sent a fax to the Commission stating that he had never been on the list. The letter, dated 1 June 1999 stated that:

I do not hold a position on your review panel and have no desire to do so. Please remove my name from your list and do not release it to any members of the public.

11 Person B sent a fax dated 1 June 1999 which stated that:

Your fax prompted me into action as I had been planning to withdraw from the peer review panel. This is a formal notice of my resignation.

12 Ms Crawford spoke to Person C who sought further information from the Commission regarding the operation of the peer review scheme but requested that her name be removed from the list in the meantime.

13 The guidelines for Experts and Peer Reviewers are available to all reviewers. The issue of confidentiality is covered on page 4 of the guidelines. It states, in part, that:

The practitioner subject of the complaint (the respondent) and the complainant will not have access to the identity of the reviewer unless the matter is referred to a disciplinary hearing, but will be entitled to know the speciality and details of the declaration of connection as required under the Act.

Issues and legislation

Section 30 of the Health Care Complaints Act 1994 provides that:

30 Expert assistance

(1) In investigating a complaint, the Commission may obtain a report from a person (including a person registered under a health registration Act) who, in the opinion of the Commission, is sufficiently qualified or experienced to give expert advice on the matter the subject of the complaint.

(2) The Commission may not obtain a report from a person who has a financial connection with the health practitioner against whom the complaint is made.

(3) The person giving the report must include in it, or annex to it, a statement in the following form, completed as appropriate:

I have/do not have a personal, financial or professional connection with the person against whom the complaint is made. Particulars of the connection are as follows:

Dated this day of 19 .

Signature

(4) Such a report may be used in disciplinary or related proceedings under a health registration Act but may not be admitted or used in any other proceedings before a court, tribunal or body, except with the consent of the person giving the report, the complainant and the person against whom the complaint is made.

(5) A person from whom such a report is obtained may not be compelled to produce the report or to give evidence in relation to the report or its contents in any such other proceedings.

(6) In this section, report includes a copy, reproduction and duplicate of the report or any part of the report, copy, reproduction or duplicate.

Application of the law

14 The respondent’s first submission was that the names of person A and C were not “properly” on the register as those individuals were unaware that they were on the register. To provide the names of those doctors would be wrong because they do not belong on the list and immediately sought removal once they were advised they were on the list. In relation to person B, the person does not wish to be on the panel and her name has now been removed. Similarly, the names of persons A and C have been removed. The respondent argued that none of the three practitioners were currently on the list. In these circumstances it was the respondent’s submission that the FOI request has been complied with in full because the names of all current practitioners on the list have been revealed.

15 Dr Dawson rejected the respondent’s arguments and submitted that she was entitled to the names of all the practitioners on the list regardless of whether they knew they were on the list or not or had since resigned.

16 I do not accept the respondent’s submission that the two practitioners who did not know they were on the list, were not properly or validly appointed. There are no legislative requirements as to the manner in which a person can be validly appointed to the list. The HCCC’s former processes of appointing people by personal recommendation resulted in several people being unaware that they were on the list. The HCCC’s records show that the two practitioners concerned were on the list. Their ignorance of this fact cannot undo it.

17 The respondent also argued that because three of the practitioners had resigned they were not on the list and the applicant was therefore not entitled to their names. Dr Dawson’s original application was made on 30 July 1997 seeking the “names of psychiatrists currently on the Register.” This application was initially refused however Dr Dawson has now been given the names of 22 of the 25 practitioners on the register as at 31 May 1999. There was no evidence from the respondent as to whether the names on the list had changed during that time. If the list has changed, Dr Dawson is technically only entitled to the documents covered by her original application, that is the names on the register as at 30 July 1997. However the respondent did not raise this point and was prepared to disclose in part, (and the applicant was prepared to accept) the current list. In these circumstances I do not accept the respondent’s argument that practitioners who have resigned in the last few months are not subject to Dr Dawson’s application.

18 The respondent’s alternative submission was that Clause 6(1) of Schedule 1 to the FOI Act (the personal affairs exemption) applies. An agency may refuse access to a document if it is an “exempt document” (FOI Act s 25(1)(a)). By s 6(1) an “exempt document” includes a document referred to in Schedule 1. The exemption relied on by the respondent in this case is contained in Sch 1, cl 6(1) which states that:

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).

19 For the exemption in cl 6 to be made out, two conditions must be satisfied. First, the document must contain material concerning the personal affairs of any person. Secondly, the disclosure of the information must be “unreasonable.”

20 Section 31 requires an agency to consult with any person whose personal affairs may be disclosed by providing access to any document. That section states that:

(1) This section applies to a document that contains information concerning the personal affairs of any person (whether living or deceased).

(2) An agency shall not give access to a document to which this section applies (otherwise than to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 6 of Schedule 1.

21 The onus of proof is on the agency to justify any decision to withhold documents. As Kirby P said in Commissioner of Police v District Court of New South Wales (Perrin’s case ) (1993) 31 NSWLR 606 at 625

Prima facie, the document in its entirety must be disclosed. To withhold disclosure it is for the agency to make out the application for an exemption. Thus the question properly is not why the information should be disclosed but why it should be exempted.

22 As I said in Gilling v Hawkesbury City Council [1999] NSWADT 43 at [33]:

The purpose of the personal affairs exemption is to allow the public interest in personal privacy to be balanced against the public interest in people having open access to information held by government. Privacy is an important right enshrined in various international human rights instruments including the International Covenant on Civil and Political Rights, art 17. Access to information held by government, reflected in the principles of openness, accountability and responsibility of government, is also a fundamental principle which the FOI Act seeks to enshrine.

23 The first question is whether the names of the three practitioners constitute their “personal affairs.” By consulting with each practitioner on the list the HCCC took the view that their name was information concerning their personal affairs.

24 As I said in Gilling v Hawkesbury City Council [1999] NSWADT 43 at [36]:

The term “personal affairs” appears in both Commonwealth and Victorian FOI legislation and consequently it has been interpreted in many cases in those jurisdictions. The cases make it clear that “personal affairs” cannot be precisely or exhaustively defined. In several cases it has been given its ordinary dictionary meaning, that is, “matters of private concern to an individual.” (See Re Williams and Registrar of Federal Court of Australia (1985) 8 ALD 219 per Beaumont J at 221-222; Young v Wicks (1986) 13 FCR 85 per Beaumont J at 89.) The only New South Wales case on the exemption is Perrin’s Case, (1993) 31 NSWLR 606 a decision of the Court of Appeal. In that case Kirby P noted at 625 that it has been suggested that the ordinary dictionary meaning might be too narrow. The President held that, “In its context, the words ‘personal affairs’ mean the composite collection of activities personal to the individual concerned.”

25 As in Gilling v Hawkesbury City Council, I have adopted this definition in considering the meaning of the phrase in this case.

26 Both Mahoney JA and Clarke JA in Perrin’s case (1993) 31 NSWLR 606 expressed the view that a person’s name, in isolation, is not generally part of their personal affairs. (See Mahoney JA at 638; Clarke JA at 644). Kirby P also rejected the argument that naming an officer would, in every case, disclose information concerning their personal affairs. (See Kirby P at 625; see also Lockhart J in Colakovski’s Case who said that as an abstract concept, the name and telephone number of a person would not be information relating to their personal affairs.) Consequently, it is a question of fact in every case as to whether the name and address of a person amounts to their personal affairs (Perrin’s case per Clarke JA pat p 644; Re French (1987) 12 ALD 525).

27 In Perrin’s Case (1993) 31 NSWLR 606 the New South Wales Court of Appeal upheld a decision by the District Court that the names of police officers did not constitute their “personal affairs.” The police officers had been involved in the preparation of a report for the Queensland Criminal Justice Commission which contained material about a particular company. Perrin, the solicitor acting for the company, requested the report under the FOI Act. The report was provided with the names of the police officers deleted.

28 After deciding that the information must be “personal to the individual concerned” as interpreted in its context, Kirby P in Perrin’s Case (1993) 31 NSWLR 606 at 625 went on to say that:

Applying that test, it cannot properly be said that the disclosure of the names of police officers and employees involved in the preparation of reports within the New South Wales police can be classified as disclosing information concerning their personal affairs. The preparation of the reports apparently occurred in the course of the performance of their police duties. What would then be disclosed is no more than the identity of officers and employees of an agency performing such duties. As such, there would appear to be nothing personal to the officers concerned. Nor should there be. It is quite different if personnel records, private relationships, health reports of (perhaps) private addresses would be disclosed. Such information would attract the exemption.”

29 The respondent submitted that Perrin’s case is distinguishable because police officers were public servants, whereas doctors are private practitioners who can remove themselves from the list of names at any time.

30 In order to determine whether the names constitute personal affairs in this case, the context in which they appear must be examined. The names were part of a list held by the HCCC to provide independent advice on matters which are the subject of complaints to the Commission. The names were apparently provided on the basis of personal recommendation by another practitioner or staff member. Two of the practitioners were unaware that their names were on the list.

31 What would be disclosed if the names of these three people were released would be the fact that they were, as of 31 May 1999, on the HCCC’s list of psychiatrists. The respondent maintains that disclosure reveals their identity, their occupation and the fact of their involvement with the HCCC. In my view it also reflects the fact that a public agency has viewed their expertise in their chosen field of medical practice as sufficient to justify them reviewing the conduct of their professional peers. In this sense the information reflects positively on their professional reputation.

32 In Re Williams (1985) 8 ALD 219 at 222, Beaumont J stated that if the term personal affairs refers to matters of private concern to an individual then:

. . . ordinarily information as to the work capacity and performance of a person is not private in that sense. It is something observed by others and commonly discussed by those involved in that work. Ordinarily, information as to a person’s vocational competence is not something which is treated as confidential. Prima facie at least, it is not part of his or her “personal affairs.

33 I agree with this analysis. Prima facie there is nothing “personal” about someone’s name being on a list of professional psychiatrists held by a public agency. It does not matter that these practitioners were not public servants or that they could remove their names at any time. What matters is the nature of the information interpreted in its context. The information in question does not relate to their family or personal relationships, their financial or health status or any other matter personal to them. It relates to their identity and competence as a professional person. For these reasons the information does not concern their personal affairs.

34 If I am wrong and the information does concern their personal affairs, it is useful to examine, hypothetically, whether disclosure of the information would be “unreasonable”.

35 Some of the factors which are relevant to the question of unreasonableness are: the views of the third parties; the nature of the personal affairs involved; the circumstances in which the information was obtained; the nature and extent of any prejudice to third parties if their names are disclosed; the current relevance of the information and whether disclosure would serve the public interest purposes of the legislation.

36 The views of the third parties are clear. The Tribunal had evidence that none of the practitioners wanted their name to be disclosed. The respondent quoted Re Gold and Australian Federal Police; Re Gold and National Crime Authority (37 ALD 168 at 171 and Re Nathan and Department of Employment, Education and Training (unreported, AAT, Cth, 28 April 1993, para 17) in support of the proposition that in certain circumstances disclosure of personal information without consent would prima facie be unreasonable.

37 The nature of the information relates to their professional occupation and competence. Even if this information could be regarded as personal, it is far less personal than things like their private or family relationships, their health status or details of their finances.

38 The only evidence about the circumstances in which the information was obtained is that names were put on the list through “personal recommendation.” It is apparent that some people were not consulted before their name was placed on the list.

39 There is no evidence as to the existence or nature of any prejudice the practitioners would suffer if their names were disclosed. There would be prejudice to the practitioner and the process if the name of an individual practitioner performing a review was disclosed to the parties. But the Guidelines for Expert and Peer Reviewers protects the identity of a peer reviewer prior to the matter being referred to a disciplinary hearing.

40 It is true, as the respondent has pointed out, that the information is not current because the three people concerned have resigned. But that is not the same as saying that it has no current relevance (Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257). This point relates to the issue of whether disclosure would further the public interest purposes of the legislation.

41 One objective of the FOI Act, reflected in the Second Reading Speech, is to give people access to information on which government decisions are made and which affect their lives. Both parties accepted that the public interest favours disclosure of the names of practitioners currently on the list. What is in issue is whether there is any public interest in disclosing the names of people not currently on the list. Neither party addressed this issue specifically.

42 The applicant submitted that “at any time any list of the Commission’s accredited and periodically available advisers, relevant to any period, and to any group of health service providers, should be accessible.” The applicant argued that the public must be in a position to monitor the suitability of persons on the list. She said that “legitimate scrutiny and comment may safeguard the public interest, by minimising the likelihood of the Commission being influenced by misleading ‘expert’ advice from unduly diffident, unorthodox or unprincipled persons.” She also said that public knowledge of the people on the list would protect the HCCC from corrupt influences.

43 Even though the HCCC has changed its procedures for appointment to the various lists, there is no reason as a matter of principle, why they should not be subject to scrutiny in relation to the suitability of people who are no longer on the list. The fact that poor selection processes have been recognised and addressed does not mean that the HCCC is no longer accountable for their former processes. That accountability will be served by making the full list available to the public.

44 In summary, two factors favour the Commission’s submission that disclosure would be unreasonable; the fact that the three practitioners have objected, and the circumstances of their appointment. While lack of consent is a significant factor in determining unreasonableness, it is not determinative. In particular, the fact that the nature of the information is not particularly personal (if it is personal at all) and that there is no evidence of any prejudice to them makes their objections far less significant. Furthermore, disclosure would further the public interest objectives of the Act. For these reasons if the information did concern the practitioner’s personal affairs I would find that disclosure was not unreasonable.

45 The respondent’s final submission was that the names of one of the people is exempt under Clause 13(b) of Schedule 1. That clause states that:

A document is an exempt document:

(a) if it contains matter the disclosure of which:
(i) would otherwise disclose information obtained in confidence; and

(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency; and

(iii) would, on balance, be contrary to the public interest.

46 The respondent argued that the person who knew they were on the list but who subsequently resigned, would have agreed to the Guidelines for Expert and Peer Reviewers. It was submitted that that person could rely on the guidelines to infer confidentiality. As outlined above the Guidelines merely make provision for the confidentiality of the identity of a reviewer who has been asked to review a particular complaint. There is nothing in the guidelines which suggests that the name any person on the list is obtained in confidence. Consequently the exception in Clause 13(b) is not made out.

Orders

47 Pursuant to s 63 of the ADT Act, the respondent’s decision not to disclose the complete list of practitioners on the list of psychiatrists as at 31 May 1999 is set aside. In substitution for that decision the respondent is to provide a complete list of practitioners on the list of psychiatrists as at 31 May 1999. The list should indicate the names of those practitioners who have resigned since that date.