Dezfouli v Justice Health

[2006] NSWADT 274

CITATION:	Dezfouli v Justice Health [2006] NSWADT 274
DIVISION:	General Division
PARTIES:	APPLICANT Saeed Sayaf Dezfouli RESPONDENT Justice Health
FILE NUMBER:	053350
HEARING DATES:	On papers
SUBMISSIONS CLOSED:	03/11/2006
DATE OF DECISION:	09/21/2006
BEFORE:	Pearson L - Judicial Member
CATCHWORDS:	access to documents - adverse effect on agency - access to documents - law enforcement & public safety - access to documents - personal affairs - Freedom of Information Act - access to documents - adverse effect on agency - Freedom of Information Act - access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Health Records and Information Privacy Act 2002
CASES CITED:	Centrelink v Dykstra [2002] FCA 1442 Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 Department of Education and Training v Mullett and Randozzo (No 2) [2002] NSWADTAP 29 Dunstan v Department of Corrective Services [2004] NSWADT 177 Gilling v Hawkesbury City Council [1999] NSWADT 43 Mangleson v Roads and Traffic Authority [2005] NSWADT 269 Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 State Electoral Office v McCabe [2003] NSWADTAP 28
REPRESENTATION:	APPLICANT In person RESPONDENT G Mahoney, solicitor
ORDERS:	The Tribunal orders:; (1) That the decision of the respondent to refuse the applicant access to documents identified as 10 and 21 is set aside. In substitution thereof a decision that:; (a) the names of the persons other than the applicant, and other information which would identify those persons, in documents 10 and 21 are exempt; and; (b) within 28 days, the applicant be granted access to documents 10 and 21 with the names of those persons and the other identifying information being deleted.; (2) That the decision of the respondent to refuse the applicant access to the document identified as 70 is set aside, and the matter remitted to the respondent under s63 of the Administrative Decisions Tribunal Act 1997 for reconsideration.; (3) That the decision of the respondent to give access to the applicant to documents 1-9, 11, 12, 16-20, 22-33, 36-45, 47-54, 56, 57, 59-61 and 63-69 with exempt matter deleted is affirmed; (4) That the decision of the respondent to refuse access to documents 13, 14, 15, 34, 35, 46, 55, 58, and 62 is affirmed; (5) That paragraphs 14, 42, 43, and 53 of these reasons be made available only to the respondent and its legal advisors, and not be made available to the applicant or published by the Tribunal

1 On 18 May 2005 the applicant applied under the Freedom of Information Act 1989 (FOI Act) for access to the following documents:

Entire medical records from the beginning to 15/01/05 and from 01/04/05 to 18/05/05.

2 On 5 September 2005 the respondent advised the applicant that a total of 130 documents had been identified as being within the scope of the application, and that partial access was granted in accordance with clauses 2(1)(d) and (e), 4(1)(c), 4(3), 6, and 11(c) of Schedule 1, and s25(1)(c) of the FOI Act. Full access had been granted to 60 documents, partial access had been granted to 59 documents and access had been refused to 11 documents. The applicant requested internal review, and on 26 September 2005 the respondent advised that the original decision had been upheld. The applicant’s application to the Tribunal for review was lodged on 7 October 2005.

3 In accordance with directions made at a planning meeting on 15 November 2005 the respondent filed a Schedule of Released/Exempt Documents and the 70 documents it claims are exempt or partially exempt. In accordance with further directions made on 12 December 2005 the respondent filed written submissions in which the respondent made a further claim that 61 of the documents are exempt under clause 16(a)(iv) of Schedule 1.

Relevant law

4 Under s16(1) of the FOI Act, a person has a legally enforceable right to be given access to an agency’s documents. This right is subject to other provisions of the FOI Act, in particular s25(1)(a), under which an agency can refuse access to a document if it is an exempt document, and s25(1)(c), if it is a document that is usually available for purchase. Schedule 1 to the FOI Act lists the categories of exempt documents. Under s25(4)(b) an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted and if it appears to the agency that the applicant would wish to be given access to such a copy.

5 Under s55 of the FOI Act, the Tribunal is required to ensure that it does not disclose any exempt matter. Because of the nature of the exemptions claimed, and my conclusions on those exemptions, part of this decision will only be made available to the respondent and its legal representatives. The remainder of the decision will be available without restriction.

Evidence

6 As noted above, the respondent filed the 70 confidential documents which it claims are exempt or partially exempt. These documents are contained in two folders, with tabs numbered 1 to 70. In some instances more than one document is filed under these tabs. The respondent claimed that the following exemptions applied:

Clause 2(1)(d) & (e): 62

Clause 4(1)(c) & Cl.16(a)(iv): 1-12, 14-33, 36-45, 47-54, 56, 57,59-61, 63-39

Clause 4(3): 35, 55

Clause 6: 12, 14, 70

Clause 11: 34, 46, 58, 62

Section 25(1)(c): 15, folio 3 of tab 58

7 The respondent filed witness statements, both open and confidential. The applicant received copies of the respondent’s submissions (filed 10 February 2006) and further submissions (filed 22 February 2006), and open witness statements, and made a written submission in response (received 9 March 2006).

8 The respondent’s submissions addressed each of the claimed exemptions. In his written submission dated 5 March 2006 the applicant confirmed that he had received the open witness statements and the two written submissions of the respondent, and stated:

I have no objections to the surname of these seven nurses get deleted from the records, but I strongly oppose to their first names get deleted.

I also strongly oppose to any other names or entry or information get exempted.

9 The applicant is a patient of Long Bay Forensic Prison Hospital, and is detained pursuant to s39 of the Mental Health (Criminal Procedure) Act 1990. He participated in two planning meetings by telephone. His position, as expressed during those planning meetings, is that the documents requested are his medical file, the information concerns him, and he wants to know what they contain. The central issue for determination relates to disclosure of information that would identify individuals employed by the respondent and other individuals. I am satisfied that this issue, and the other issues for determination, can be adequately determined in the absence of the parties. The parties agreed to this matter being determined on the papers. Accordingly I have made my determination based on the documents filed with the Tribunal.

Consideration

10 The first issue is to define the scope of the applicant’s request. The applicant requested access to “entire medical records” for a defined period. The term “medical records” is not defined in any relevant legislation. In other legislation which might be thought to shed some light, different terms are used. For example, the Health Records and Information Privacy Act 2002 uses the term “health information”, which has a broad meaning. In attempting to define the term “medical records”, I have relied on the ordinary meaning of the terms “medical” and “record”. The term “record” includes, according to the Macquarie Dictionary:

An account in writing or the like preserving the memory or knowledge of facts or events; information or knowledge preserved in writing or the like;

11 The adjective “medical” is defined in the Macquarie Dictionary to mean:

Of or relating to the science or practice of medicine; curative; medicinal; therapeutic.

12 I consider that the term “medical records” covers a broad range of documents, including records of medication prescribed or administered, observations or reports of medical practitioners and other health professionals, and other matters relating to the health, medical condition, and treatment of the person to whom those records relate.

13 I have examined the documents provided by the respondent, and find that documents 1-12, 14, 16-33, 36-45, 47-54, 56, 57, 59-61, and 63-70 fall within the scope of the applicant’s request.

14 Subject to suppression order

15 The respondent claims that these documents are exempt to the extent to which they identify individual staff employed by the respondent, under cl.4(1)(c) of Schedule 1, and cl.16(a)(iv) of Schedule 1. Clause 4(1)(c) provides:

4 Documents affecting law enforcement and public safety

(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:

…

(c) to endanger the life or physical safety of any person, or

16 Clause 16(a)(iv) provides:

16 Documents concerning operations of agencies

A document is an exempt document if it contains matter the disclosure of which:

(a) could reasonably be expected:

…

(iv) to have a substantial adverse effect on the effective performance by an agency of the agency’s functions, or

… , and

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

17 In order to determine whether the agency has established that these documents are exempt to the extent to which they contain information which would identify staff, I first considered the context within which these records were created.

18 In an open witness statement, “AB” outlines the role of the respondent Justice Health, forensic patients, and Long Bay Prison Hospital:

Role of Justice Health

4.Justice Health is a statutory health corporation constituted under s.41 of the Health Services Act 1997. It is independent from the Department of Corrective Services. Justice Health provides health services, both medical and psychiatric, to people in custody in NSW.

5.Justice Health psychiatric services provide care and rehabilitation to forensic patients and mentally ill inmates hospitalised in Long Bay Hospital.

6.Justice Health psychiatric also provides ambulatory psychiatric care to mentally ill inmates in the general correctional environment.

7.In addition to prison psychiatric services, Justice Health also provides psychiatric court liaison services.

8.Justice Health also provides forensic psychiatric consultation to general mental health in respect of the management of forensic patients in the community and high risk psychiatric patients and complex cases in the community.

Forensic Patients

9.A “forensic patient” is legally defined category of psychiatric patient under the Mental Health Act 1990 (the MH Act). There are predominately three groups of forensic patients:

(i) persons found not guilty by reason of mental illness;

(ii) persons found unfit to stand trial; and

(iii) mentally ill inmates in NSW correctional centres who meet the terms of the MH Act as either a “mentally ill person” under s.9 of teat Act or s.10 a “mentally disordered person” under that Act who requires involuntary treatment to a psychiatric hospital.

10.Patients falling within (i) and (ii) arise by operation of the [Mental Health (Criminal Procedure) Act]. Patients that fall within (iii) are scheduled patients pursuant to sch.3 to the MH Act.

11.The majority of patients at Long Bay are involuntary patients, being forensic patients or civilly committed patients, although there are some patients who are admitted on a voluntary basis.

Long Bay Forensic Hospital

12.Long Bay Forensic Hospital (Long Bay) caters for mentally ill offenders who are incarcerated and forensic patients.

13.The Custodian function of patients at Long Bay is with the Department of Corrective Services. While Long Bay is a hospital, it is a hospital within a prison. In this respect, Justice Health, including all mental health workers, are “visitors” to the hospital. The role of Justice Health is to work within the prison environment to provide necessary psychiatric care. However, custody and security responsibility remains with the Department of Corrective Services.

14.Long Bay consists of three wards: D Ward, C Ward and A Ward. D Ward is generally regarded as an acute ward which caters for patients who come into custody and who are acutely unwell or who have higher needs. D Ward provides treatment for the more severe symptoms the patient may have upon their arrival at the hospital. D Ward is a higher need ward where the focus of treatment is biological treatment. Once a patient’s symptoms have improved or settled down following the initial treatment, the patient may move across to C Ward.

15.C Ward is a sub-acute ward and the patients in C Ward have moderate needs.

16.A Ward is a chronic ward and is a psychiatric rehabilitation ward. In A Ward, the patient’s illness is stabilised with the focus of treatment being on more psychological and social treatment.

Treatment of patients at Long Bay

17.In managing mentally ill patients, there is a real need for collaboration with the Department of Corrective Services. The patients do not have the normal mental functioning as with inmates within the general (non forensic) prison population and have certain needs which must be monitored and met by both Justice Health and the Department of Corrective Services. The Department of Corrective Services and Justice Health rely on each other for mutual advice about how to manage mentally ill inmates in order for each to function (especially when that information relates to risk either medical or psychiatric) and there is a high degree of consultation between the two agencies.

18.Both the Department of Corrective Services and Justice Health are involved in the rehabilitation of patients. Justice Health utilises doctors, occupational therapists and nurses. The doctors provide biological treatment. The occupational therapists provide occupational health and assessment of the patient population. The nurses provide nursing oversight and perform the same roles as what is expected in any psychiatric hospital. Their duties include:

recording progress notes;

meeting with patients regularly;

completing the intake for patients;

arranging discharges;

liaising with external services and corrective officers around medical issues that may relate to patients with psychiatric issues; and

form the foundation for the psychiatric care in the hospital supported by consultants and Registrars (being psychiatrists in training who are supervised by the consultant).

19.There are two groups within the Department of Corrective Services that have involvement with patients, being Corrective Services Officers and psychologists. Psychologists are engaged with the patients to a degree and conduct cognitive behavioural therapy and other therapies within their field. They also have input, along with Justice Health, in processes such as risk assessment and report writing. The Department of Corrective Services also provides welfare workers whose role is effectively a de facto social worker role.

20.The correctional officers maintain security and facilitate access to psychiatric and medical care. They take on a role normally taken on by nurses in a general psychiatric hospital, being the control and restraint of mentally ill patients. Where a patient is engaged in violent conduct, the correctional officer will make a report for the Department of Correctional Service file and a Justice Health staff member will make a corresponding report for the patient’s medical file.

19 All the open witness statements address the issue of disclosure of staff names. “LM” states:

The identity of nursing staff is closely guarded within a forensic hospital. Unlike mainstream hospitals, nursing staff do not wear name tags. Nursing staff are not required to disclose their surname to patients and there is an unwritten policy that staff members are prohibited from disclosing information relating to other nursing staff to patients. For the most part, patients are not aware of the surnames of nursing staff.

20 “EF” states:

I am unaware of any formal policy that Justice Health has in respect of the release of surnames to patients but have always held the view that there is an accepted practice that surnames are not disclosed and that staff are not required to and have not named in the past. This arises because of the nature of the environment, being a forensic hospital dealing with patients with acute and chronic conditions where their mental illness has, at least, in the past, contributed to violent behaviours and drug and alcohol abuse. Patients often do not accept they have a mental illness and therefore have trouble accepting they have symptoms of a mental illness.

21 “GH” states:

I record as much information about my observations of the patient as I can with particular emphasis on matters relevant to their illness or changes in their presentation and behaviour. The recording of these matters is done honestly and I try to quote what is said by the patient. The entries accurately reflect my observations of the patient’s behaviour on that day.

Prior to these proceedings I thought there was a policy or a law that prevented the release of staff surnames to patients. I do not provide forensic patients with my surname, address or other private information and am known only by my first name.

22 In their open witness statements, “CD”, “EF”, “GH”, “IJ” and “JK” expressed fears that disclosure of their surname to patients would place their safety and well being at risk. “EF” states:

If the Department permitted the release of my surname to patients, I would feel compelled to limit my documentation in written records. I would be more inclined to communicate orally with relevant staff. I fear the release of my surname to Mr Dezfouli allows for the potential harm to myself and/or family in the future, including long term harm arising from his eventual release.

23 “GH” states:

If the Department permitted the release of my surname to patients, I would have genuine concerns as to my safety. Patients with a mental illness, especially those who lack insight into the illness, can easily become fixated on a matter. I would be concerned that such a fixation would occur if a patient was to read what was written about them, especially if they did not agree with it, and the patient could seek me out on release.

24 “JK” states:

My concerns as to my safety arises from knowledge of previous patients obtaining information and using that to locate the private residences of staff and stalking those staff.

A forensic hospital is a secure facility and Long Bay houses many violent offenders. It is known that patients share information which in my view places a greater need on ensuring that personal details as to staff are protected.

25 In their open witness statements, “CD”, “GH”, “IJ” and “JK” state that release of their surnames would lead them to consider leaving the Department.

26 I have read the witness statements filed on a confidential basis in which “AB”, “CD”, “EF”, “GH”, “IJ”, “JK”, “LM”, and “MN” are identified. I am satisfied, based on the information contained in those statements, that each of these individuals is a health professional employed by the respondent Justice Health at Long Bay Forensic Hospital, and is or has been involved in providing health care to the applicant.

27 I am satisfied on the basis of the statements provided by these individuals that it is the routine practice of the respondent not to disclose the surnames of its staff, and for staff employed by the respondent not to disclose their own surnames, or personal information about other staff. I am satisfied that one of the reasons for this practice is a concern for the physical safety of staff and their families should information which might assist in identifying them outside the context of their employment become known.

28 The claimed risk of endangering the physical safety of staff was put both generally, and specifically by reference to the applicant. As noted above, “CD”, “EF”, “GH”, “IJ” and “JK” state that they fear for their physical safety if their surnames are released to any forensic patient. More specifically, “EF” states that the applicant can become verbally abusive. “LM” states that the applicant has allegedly been violent towards two medical practitioners, and refers to a passage in nursing progress notes where the applicant is alleged to have threatened physical harm to particular individuals. In the confidential witness statement “MN” outlines specific incidents in which the applicant has threatened physical harm. The respondent submits (in paragraph 42 of the written submissions of 10 February 2006) that the past violent actions of the applicant, his on-going incarceration, his continued placement on C Ward, his non-progression to A Ward and his lack of insight into his medical condition are indicative that he poses an actual physical threat to people, in particular the staff of the respondent.

29 The approach to be adopted in considering the exemption provided by cl.4(1)(c) was outlined by the Appeal Panel in State Electoral Office v McCabe [2003] NSWADTAP 28:

In our view, agency opinions making such a grave assessment must be closely scrutinised and not easily accepted. The Tribunal is, we consider, obliged to bring some scepticism to the task of assessing what are necessarily self-serving statements by agencies ….The question is always whether the material, statements of opinion and submissions put forward by the agency justifies reliance on the exception (see s61, burden of proof).

30 In Dunstan v Department of Corrective Services [2004] NSWADT 177 President O’Connor stated that the general approach to be adopted in dealing with the kind of exemptions found in cl 4(1) is addressed by the Federal Court in Centrelink v Dykstra [2002] FCA 1442, which dealt with equivalent provisions in the Commonwealth FOI Act:

20 Mansfield J stated that the test to be applied by the Commonwealth Tribunal involves focusing upon the character of the documents in the circumstances of the case, to determine whether there is a ‘realistic and material possibility of the harm contemplated by the section occurring.’

21 As noted by Beaumont J and Bowen CJ in Attorney-General's Department v Cockcroft (1986) 64 ALR 97 at 112 the test:

‘... require[s] a judgment to be made as to whether it is reasonable as distinct from something that is irrational, absurd or ridiculous, to expect that ... there could be a risk of harm to the life or physical safety of another person.’

31 In Dykstra Mansfield J noted that it is not the personal or subjective belief of particular individuals which is determinative, and continued:

… The Tribunal had to determine whether the documents had the character that their release would, or could reasonably be expected to, endanger the life or physical safety of any person. I do not discern from the Tribunal's reasons that it misdirected itself in considering that question. It set out to judge objectively whether there was a possibility that the disclosure of the documents could endanger the life or physical safety of other persons, and if so whether that possibility was one which was a reasonable one as distinct from one which was irrational, absurd or ridiculous.

32 I am satisfied, based on the witness statements, that the nature of the Long Bay Hospital environment, being a forensic hospital dealing with patients with acute and chronic conditions, many of whom have records of violent behaviours, is such that staff employed there are particularly vulnerable. I am satisfied, based on the witness statements, that there is a possibility that disclosure of the surnames of staff employed by the respondent to provide health care at Long Bay Forensic Hospital could endanger the physical safety of those individuals. I am satisfied that this possibility is a reasonable one, and that there is a realistic possibility of the harm occurring, in relation to disclosure to the applicant in particular, and disclosure more generally. The respondent has discharged its onus of proving that disclosure of the surnames of staff to the applicant “could reasonably be expected” to endanger the life or physical safety of staff working at Long Bay Forensic Hospital.

33 Some of the documents in issue identify staff by their first name only. While the submissions of the respondent, and many of the witness statements, focus on the disclosure of staff surnames, the deletions made by the respondent include the deletion of first names. In considering whether disclosure of any material identifying staff could fall within cl.16(a)(iv) of Schedule 1, the first issue to consider is whether disclosure could reasonably be expected to have a “substantial adverse effect” on the effective performance by the respondent of its functions.

34 The term “substantial adverse effect” was considered in Department of Education and Training v Mullett and Randazzo (No 2) [2002] NSWADTAP 29 at [97]:

‘Substantial adverse effect’ involves a higher test than, for example, mere ‘prejudice’ as referred to in (a)(i) and (ii): see Re James and Australian National University (1984) 6 ALD 687. The effect must be sufficiently serious to cause concern to a properly informed reasonable person: Re Thies and Dept of Aviation (1986) 9 ALD 454; it must not be irrational or absurd: see Attorney General (Comm) v Cockcroft (1986) 64 ALR 97. We agree with the following comments in Australian Administrative Law (Butterworths, Australian Administrative Law Library, June 2002) at [741]:
‘Prejudice or substantial adverse effect must arise from the disclosure of the particular information in the particular documents but also from the disclosure of documents of a particular kind. The vice of such disclosure lies in the breach of confidential properties, a breach which can for that reason lead to the cessation or diminution of the future flow of information to the agency in question: Department of Social Security v Dyrenfurth (1988) 15 ALD 232; 80 ALR 533; Re Fryar and Australian Federal Police (1988) 17 ALD 25.’

35 In the written submissions dated 10 February 2006 the respondent addressed cl.16(a)(iv) in the context of release of staff surnames, and pointed to three respects in which that release would have an adverse effect on the performance of the agency:

(i) staff would be less likely to accurately and forthrightly record observations of patients;

(ii) the respondent would have difficulty retaining and recruiting staff; and

(iii) the treatment of the applicant would be compromised which would place both him and the community at risk.

36 In their open witness statements, “AB”, “CD”, “EF” and “GH” state that disclosure of their surname would lead to reluctance to record matters which may be perceived to be negative. “AB” states:

In making a decision as to diagnosis and treatment, it is essential that nursing staff provide comprehensive notes. On a forensic ward, where the predominant issue is the management of risks, the recording of comprehensive and accurate notes is of paramount importance.

Patients who are placed on forensic wards generally have a history of violence, although this is not always the case. The violent behaviour of a patient also often has a relationship to the illness’ symptoms. Additionally, in a forensic hospital, you have a group of people with similar violent and disturbed psychiatric histories, living in close proximity to one another. It is important that nursing staff document all relevant observations, including those observations a patient may take to be adverse to him or her. Such records assist in determining whether the treatment being provided is having the required effect and also whether the rehabilitation goal for the forensic patient, being to reduce violent or aggressive behaviour, is being achieved. Comprehensive and accurate notes are necessary to monitor the impact of treatment on the patient over time. All behaviour that may relate to the mental state of a patient is fundamental to psychiatric practice, regardless of whether the information places the patient in a positive, negative or neutral light.

…

If as a consequence of the release of staff names to patients, the staff of Long Bay expressed an intention to be less forthcoming and honest in the recording of notes in respect of patients, there would be significant concern as to whether Justice Health could properly fulfil its role. I do not think it can function properly without full disclosure. A failure to do so results in no person’s interests being served, including the long term interests of patient. Non-disclosure exposes both the patient and the community to unnecessary risks.

37 I have found the witness statements of “AB” particularly helpful, and based on those statements I am satisfied that the provision of health care in the context of Long Bay Forensic Hospital depends on staff making comprehensive and accurate notes. I am satisfied, based on the statements of “CD”, “EF”, “GH”, and “LM” that disclosure of the identity of staff making notes and recording observations could lead to staff being less likely to make accurate and comprehensive written notes, and that this could reasonably be expected to have a substantial adverse effect of the ability of the respondent to provide comprehensive and appropriate health care to patients.

38 Clause 16(b) requires consideration of whether disclosure of information identifying staff would, on balance, be contrary to the public interest. I consider that the public interest in appropriate treatment being provided to forensic patients outweighs any public interest in full disclosure of the names of staff providing notes.

39 The decision of the respondent to delete material which would identify staff in documents 1-9, 11, 12, 16-20, 22-33, 36-45, 47-54, 56, 57, 59-61, and 63-69, should be affirmed.

Documents 10 and 21

40 The respondent claims that documents 10 and 21 are exempt, under cl.4(1)(c) and cl.16(a)(iv) of Schedule 1, in their entirety.

41 I am satisfied, for the reasons outlined above, that the disclosure of the names of the individual medical staff who prepared these documents, or who are otherwise identified in them, could reasonably be expected to endanger the life or physical safety of the persons named in them. The exemption claim goes further than this, however, and extends to the content of the documents.

42 Subject to suppression order

43 Subject to suppression order

44 I am not satisfied that the respondent has discharged its onus of establishing that disclosure of the content of documents 10 or 21 could reasonably be expected to have a substantial adverse effect on the performance of the respondent of its functions. The documents are, to the extent that they contain material which would identify any of the staff who created them, or who are otherwise identified in them, exempt under cl.4(1)(c). Access should be given to these documents with identifying material deleted.

Documents 12, 50, and 70

45 The respondent submits that these documents contain information which falls within the exemption provided by cl.6 of Schedule 1:

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.

46 Tab 12 has 11 pages. Pages 1 and 3 identify other inmates of Long Bay Prison Hospital by reference to a number, which is described in the respondent’s submissions of 10 February 2006 as a “management index number”, or “MIN”. The respondent submits that a MIN is a number allocated to each person who comes into custody. The respondent acknowledges that a person is not known by his or her MIN, but submits that a person is identifiable by his or her MIN. I am satisfied that the MIN is the equivalent of a name within the prison system.

47 Tab 50 has several pages of progress notes, which include names of six inmates other than the applicant.

48 In Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 (Perrin’s case), Kirby P held that the words “personal affairs” mean “the composite collection of activities personal to the individual concerned”. Mahoney JA held that the disclosure of a name of a person does not necessarily amount to disclosure of information concerning that person’s personal affairs. Clarke JA doubted whether a person’s name could fall within the concept of “personal affairs”. In this Tribunal there have been decisions which have concluded that the names of individuals can constitute the “personal affairs” of those persons: Gilling v Hawkesbury City Council [1999] NSWADT 43; Mangleson v Roads and Traffic Authority [2005] NSWADT.

49 In the particular context of the Long Bay Hospital environment, being a forensic hospital dealing with patients with acute and chronic conditions, many of whom have records of violent behaviours, I am satisfied that disclosure of information that would identify inmates other than the applicant, particularly in contexts of incidents involving the applicant and those other inmates, would involve disclosure of information concerning the personal affairs of those other persons. That information would include the name of the inmate, and the MIN of that inmate.

50 The next issue to consider is whether disclosure of this information would be “unreasonable”. In Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 the Administrative Appeals Tribunal held that this requires “consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance.”

51 There is no indication that the respondent has consulted any of the other inmates identified in these documents, however I am prepared to assume that those individuals would object to disclosure. I am satisfied that the information was recorded in the context of the respondent’s provision of health care to the applicant and those other inmates, and in maintaining a secure environment, as outlined in the statement of “AB”. Having regard to the circumstances in which the information was obtained, I am satisfied that disclosure of this information to the applicant would be unreasonable. The decision of the respondent to provide access to these documents with the identifying information deleted under s25(4) should be affirmed.

52 Tab 70 is a single page. The respondent claims that one paragraph of this document is exempt under cl.6.

53 Subject to suppression order

54 The appropriate course is to remit consideration of this document to the respondent for reconsideration.

Orders

55 The Tribunal orders:

(1) That the decision of the respondent to refuse the applicant access to documents identified as 10 and 21 is set aside. In substitution thereof a decision that:
(a) the names of the persons other than the applicant, and other information which would identify those persons, in documents 10 and 21 are exempt; and

(b) within 28 days, the applicant be granted access to documents 10 and 21 with the names of those persons and the other identifying information being deleted.

(2) That the decision of the respondent to refuse the applicant access to the document identified as 70 is set aside, and the matter remitted to the respondent under s63 of the Administrative Decisions Tribunal Act 1997 for reconsideration.

(3) That the decision of the respondent to give access to the applicant to documents 1-9, 11, 12, 16-20, 22-33, 36-45, 47-54, 56, 57, 59-61 and 63-69 with exempt matter deleted is affirmed.

(4) That the decision of the respondent to refuse access to documents 13, 14, 15, 34, 35, 46, 55, 58, and 62 is affirmed.

(5) That paragraphs 14, 42, 43, and 53 of these reasons be made available only to the respondent and its legal advisors, and not be made available to the applicant or published by the Tribunal.