Dezfouli v Justice Health and Forensic Mental Health Network

[2021] NSWCATAD 189

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Dezfouli v Justice Health & Forensic Mental Health Network [2021] NSWCATAD 189

Hearing dates:

17 May 2021

Date of orders:

7 July 2021

Decision date:

07 July 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Ransome, Senior Member

Decision:

(1) The decision under review is set aside.

(2) The application is remitted to the respondent for further determination.

Catchwords:

ADMINISTRATIVE LAW – administrative review - Government Information – whether information already provided – whether information otherwise available – refusal to deal with application - whether substantial and unreasonable diversion of agency’s resources – consideration of s 60(3A) and (3B) factors

Legislation Cited:

Administrative Decisions Review Act 1997

Freedom of Information Act 1989

Government Information (Public Access) Act 2009

Cases Cited:

Cianfrano v Director General, Premier's Department [2006] NSWADT 137

Colefax v Department of Education and Communities (No. 2) [2013] NSWADT 130

Commissioner of Police v Danis [2017] NSWCATAP 7

Ruyters v Commissioner of Police [2020] NSWCATAD 223

Hanna v NSW Ministry of Health [2019] NSWCATAD 21

Loussikian v University of Sydney [2018] NSWCATAD 140

Category:

Principal judgment

Parties:

Saeed Dezfouli (Applicant)
Justice Health & Forensic Mental Health Network
(Respondent)

Representation:

Applicant (Self Represented)
Respondent (Legal Officer)

File Number(s):

2020/00188079

REASONS FOR DECISION

1. Saeed Dezfouli is a forensic patient detained at the Forensic Hospital at Malabar which is administered by the respondent, Justice Health & Forensic Mental Health Network (Justice Health). Mr Dezfouli made an application under the Government Information (Public Access) Act 2009 (the GIPA Act) seeking access to his medical records for the period 1 January 2017 to the date of his application. I note that the application was not treated initially as an application under the GIPA Act and there was therefore some delay in responding to the request.

2. On 14 September 2020 Justice Health made a decision releasing to Mr Dezfouli some 3,243 pages of his health records for the period 26 January 2019 to 24 April 2020 (the date of his access request) with some redactions. The information redacted related to personal information of others and Mr Dezfouli does not seek to challenge those redactions in this application. The information was released as the documents had already been produced in response to a subpoena in the District Court in other proceedings involving Mr Dezfouli.

3. Justice Health identified a further 665 pages which fell within the scope of the request relating to the period 1 January 2017 to 25 January 2019 and refused to deal with the application in relation to this information on two bases:

1. under s 60(1)(a) of the GIPA Act on the basis that it was an unreasonable and substantial diversion of the agency’s resources; and

2. under s 60(1)(b1) of the GIPA Act as the applicant had previously been provided with access to the information concerned under the GIPA Act.

4. It is this part of the decision which Mr Dezfouli asks be administratively reviewed by the Tribunal. Both parties appeared at a hearing on 17 May 2021 and Justice Health provided written submissions in addition to its oral submissions made at the hearing. The Tribunal also had received statements from Kevin Baron, Deputy Director of Nursing and Services, Forensic Hospital and Natalie Szulgit, Legal Advisor, Justice Health. Ms Szulgit gave evidence at the hearing.

The legal principles

5. The objects of the GIPA Act as set out in s 3 are to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.

6. Sub-section 3(2) provides that it is the intention of Parliament that the GIPA Act be interpreted and applied so as to further the objects of the Act and that the discretions conferred by the Act are to be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

7. A person aggrieved by a “reviewable decision” may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (ADR Act) of that decision. A decision to refuse to deal with an access application is a reviewable decision for the purposes of the GIPA Act (s 80 (c)). The Tribunal’s function under s 63 of the ADR Act is to determine, based on the material before it, what is the correct and preferable decision, and may affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit it to the agency for further determination.

8. The burden of establishing that a decision made under the GIPA Act is justified lies on the agency, in this case Justice Health.

9. In accordance with s 60 of the GIPA Act an agency may decide to refuse to deal with an access application on a number of grounds. Sub-section 60(1)(a) is relevant to this application and provides that an agency may refuse to deal with an access application where dealing with the application would require an unreasonable and substantial diversion of the agency’s resources. In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency’s resources, the agency is not required to have regard to any extension by agreement between the applicant and the agency of the period within which the application is required to be decided (s 60(2)). Ordinarily, an agency must decide an access application within 20 working days after it receives it (s 57(1)).

10. Sub-section s 60(1)(b1) of the GIPA Act is also relevant and gives an agency the power to refuse to deal with an access information if the applicant had previously been provided with access to the information under the GIPA Act. Whether a person has previously been provided with the information under the GIPA Act (or its predecessor, the Freedom of Information Act 1989) is a question of fact and a condition precedent to the exercise of the discretion to refuse to deal with the application.

11. In Commissioner of Police v Danis [2017] NSWCATAP 7 the Appeal Panel said at [43]:

Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient of (sic) deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications (see (a)) or by having to reprocess applications that have already received attention either through previous determinations (the focus of (b) and (b1)) … Read together it can be seen that the grounds listed in s 60(1) have as an aim the avoidance of wasteful use of administrative resources (see especially (a)) or situations where the applicant has already obtained a practical result (b), (b1) …

12. The Appeal Panel went on to say that when reviewing a decision based on s 60(1) the Tribunal “should examine the matter, at least in part, by reference to systemic considerations such as the role provisions of this kind play in promoting the efficient administration of the GIPA Act, and the avoidance of wasteful deployment of limited resources” (at [49]).

13. In relation to whether dealing with the application would require an unreasonable and substantial diversion of an agency’s resources, ss 60(3A) and (3B) provide:

(3A)   In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency’s resources, the agency may, without limitation, take into account the following considerations—

(a)   the estimated volume of information involved in the request,

(b)   the agency’s size and resources,

(c) the decision period under section 57.

(3B)   Any consideration under subsection (3A) must, on balance, outweigh—

(a)   the general public interest in favour of the disclosure of government information, and

(b)   the demonstrable importance of the information to the applicant, including whether the information —

(i)   is personal information that relates to the applicant, or

(ii)   could assist the applicant in exercising any rights under any Act or law.

14. The matters which may be considered under s 60(3A) are non-exhaustive. The factors in s 60(3A) and (3B) draw on two previous cases which dealt with the factors to be considered in an assessment of whether an application would require an unreasonable and substantial diversion of an agency’s resources.

15. In Cianfrano v Director General, Premier's Department [2006] NSWADT 137 at [62] O’Connor DCJ stated that the matters relevant to such an assessment include:

(a)   the terms of the request, especially whether it is of a global kind or generally expressed request; …

(b)   the demonstrable importance of the document or documents to the applicant may be a factor in determining what in the particular case is a reasonable time and a reasonable effort …

(c)   more generally whether the request is a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications

(d)   the agency estimate as [to] the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost

(e)   the reasonableness or otherwise of the agency’s initial assessment and whether the applicant has taken a co-operative approach in redrawing the boundaries of the application

(f)   the time lines binding on the agency …

(g)   the indication that is found in the Annual Report reporting requirements suggesting that requests involving more than 40 hours’ work are seen as lying at the upper end of the range; suggesting at least that the view of government administrators is that a processing time that goes well beyond 40 hours may properly raise concerns

(h)   regard needs to be had to the degree of certainty that can be attached to the estimate that is made as to documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made

(i)   possibly, the extent to which the applicant is a repeat applicant to the agency in respect of applications of the same kind, or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application may have been adequately met by those previous applications.

16. That case dealt with the former freedom of information legislation applicable in NSW prior to the introduction of the GIPA Act. In Colefax v Department of Education and Communities (No. 2) [2013] NSWADT 130 the Tribunal confirmed that these matters remain relevant to an assessment under s 60(1)(a) of the GIPA Act, although it also found that the changed context of the GIPA Act, which requires that discretions under it are to be exercised so as to enhance its objects (s 3(2)(b)), could result in “differing weight and importance being accorded to the Cianfrano factors” (at [26]). Colefax also identified that the fact that an access applicant is seeking their personal information is a relevant factor in the determination (at [27]).

17. The principles espoused in Cianfrano and Colefax remain relevant to a consideration of whether dealing with an application would require an unreasonable and substantial diversion of an agency’s resources (Ruyters v Commissioner of Police [2020] NSWCATAD 223 at [18]).

18. As I stated in Ruyters, the tasks to be undertaken in considering whether dealing with an application would require an unreasonable and substantial diversion of the agency’s resources are to identify and take into account any matters falling within s 60(3A) and then to determine whether, on balance, those matters outweigh the factors set out in s 60(3B). It is only where the matters in s 60(3A) outweigh those in s 60(3B) that an agency can refuse to deal with an access application on the basis that it would require an unreasonable and substantial diversion of an agency’s resources [at [24]).

Subsection 60(1)(1b)

19. Before turning to s 60(1)(a) and the factors in ss 60(3A) and (3B), it is convenient to deal with the ground in s 60(1)(1b).

20. In the decision that was made on 14 September 2020 the reasons for refusing to provide access to the records for the period 1 January 2017 to 25 January 2019 in accordance with ss 60(1)(a) and (1)(1b) were:

You have had the opportunity to access this information during your monthly meetings under the GIPA Agreement (Attachment 4). Access to your medical record from 26 January 2019 to 24 April 2020 spans over eight volumes and totals 2578 pages. To reproduce your previous records from 1 January 2017 to 25 January 2019 would require an unreasonable and substantial diversion of resources.

21. The reasons for the decision are not particularly clear in relation to s 60(1)(1b) but it appears that the first sentence of the quoted paragraph relates. As noted above, s 60(1)(1b) gives an agency the power to refuse to deal with an access information if the applicant had previously been provided with access to the information under the GIPA Act. There is no information within the decision to indicate that Mr Dezfouli has previously been provided with the requested information. At the hearing the representative for Justice Health said that at some stage Mr Dezfouli may have been provided with this material, but again no evidence was provided to establish that he had in fact been provided with the information now sought.

22. Mr Dezfouli stated at the hearing that he had been given access to progressive notes up to June 2017 but has not had access to his health records since that time.

23. In the absence of any evidence that Mr Dezfouli has been provided with the information sought in this application, that is, all his health records from 1 January 2017 to 25 January 2019, reliance on s 60(1)(1b) by Justice Health as a reason for refusing access cannot be maintained.

24. In her statement, Ms Szulgit, who was the officer who made the 14 September 2020 decision, states that during the decision-making process she concluded that Mr Dezfouli had had the opportunity to access his information for the period 1 January 2017 to 25 January 2019 during monthly meetings under the “GIPA Agreement”. She stated that she considered that form of access to be sufficient to satisfy s 59(1)(b) of the GIPA Act.

25. Under s 58 of the GIPA Act, an agency can decide an access application by deciding that the information is already available to the applicant. Subsection 59(1)(b) provides that an agency can decide that information is already available to an applicant if the information is “available to the applicant from, or for inspection at, the agency free of charge in accordance with this Act or the agency’s policies and practices”. While I note that this provision was not the basis upon which the decision to refuse access was in fact made, it was raised at the hearing as an alternate basis for the decision.

26. A copy of the “GIPA Agreement” referred to by Ms Szulgit was attached to the decision. It is an undated document titled Framework for Management of Complaints and FoI Requests Saeed Dezfouli which “outlines the principles and a framework for the management of complaints and requests under Freedom of Information (FoI) from Mr Saeed Dezfouli managed in the Forensic Hospital”. The framework envisages that Mr Dezfouli will be provided with access to his medical records through monthly meetings and that these meetings will continue to be offered to him whether or not he chooses to attend. The document states that, if a meeting is offered, Justice Health can refuse any FoI application from Mr Dezfouli on the basis of s 25(1)(b1) of the FoI Act. Subsection 25(1)(b1) of the Freedom of Information Act 1989 was in identical terms as the current s 59(1)(b) of the GIPA Act. The document goes on to state that the ability to refuse access to documents is not affected by Mr Dezfouli declining to attend a meeting.

27. The framework was clearly devised and entered into prior to the GIPA Act coming into effect in 2010. At the hearing Mr Dezfouli stated that the monthly meetings ceased in July 2017. Ms Szulgit stated that she had been informed that the meetings occurred up until March 2019.

28. No evidence has been provided that the GIPA Agreement is still current – both Mr Dezfouli and Ms Szulgit stated that meetings have ceased. There is also no direct evidence that meetings were offered during the relevant period and that the information sought in the current access request was available to Mr Dezfouli under the GIPA Act or otherwise. In these circumstances, I cannot be satisfied that s 59(1)(b) provides a proper basis to refuse access to the information.

Subsection 60(1)(a)

29. The primary contention of Justice Health is that dealing with the access application would require an unreasonable and substantial diversion of its’ resources. Justice Health submits that dealing with the request would be onerous given the volume of records, the time involved and the limited resources of the agency. The evidence of Ms Szulgit is set out below in relation to the factors in ss 60(3A) and (3B).

Subsection 60(3A) considerations

Time to process the application

30. Ms Szulgit states that Mr Dezfouli’s medical records comprise both paper and electronic records. She estimates that the paper records involved in the request for access to records for the period 1 January 2017 to 25 January 2019 would be in the order of 916 pages, although could be higher. She stated that there could also be electronic records for this period, although these would not be substantial as the electronic system was not fully implemented until late 2019.

31. Ms Szulgit estimates that it would take her 10 to 12 hours to process the request. This would include reviewing the documents, conducting any third party consultations and seeking any additional clinical review for an opinion on whether the documents are appropriate to release. She would manually make any redactions, draft the notice of decision, send out the notice and associated documents and then complete administrative records. She states that this estimate is only referrable to the time spent by her on dealing with the request and does not include the time that would be spent by the Health Records Manager in locating and retrieving the medical records.

The agency’s size and resources

32. The Tribunal has found in the past in cases such as Loussikian v University of Sydney [2018] NSWCATAD 140 at [50] and Hanna v NSW Ministry of Health [2019] NSWCATAD 21 at [41] that it is a matter for an agency to determine what resources it makes available to process GIPA applications and whether or not the agency is large and well-endowed is not a relevant consideration in determining whether dealing with an application would unreasonably and substantially divert resources.

33. The express reference to “the agency’s size and resources” included in s 60(3A) now makes clear that whether the agency in question is large and well-resourced will generally be a relevant consideration which may be taken into account by the Tribunal in determining matters under s 60(1)(a).

34. No information was provided about the size of Justice Health as an agency. Ms Szulgit states that she works three days per week in her role as Legal Advisor. She states that her work with Justice Health is predominantly legal work but also includes her role as Right to Information Officer. The Health Records Manager is involved in the location and retrieval of records and Ms Szulgit and another officer, who Ms Szulgit said can assist her, are involved in dealing with information requests. She states that in 2020 the agency dealt with 55 GIPA requests, the majority being from patients or their legal representatives for access to medical records, and that for 2021 as at the date of the hearing, 30 applications had been received which is above the usual number received in a similar period.

The decision period under s 57

35. Section 57 of the GIPA Act provides that an agency must decide an access application within 20 working days. It is clear that the time required to process this application would be far less than 20 working days and is likely to be around 2 days.

The s 60(3B) matters

36. Subsection 60(3B) requires consideration of the following matters:

1. the general public interest in favour of the disclosure of government information, and

2. the demonstrable importance of the information to the applicant, including whether the information —

1. is personal information that relates to the applicant, or

2. could assist the applicant in exercising any rights under any Act or law.

General public interest in favour of disclosure

37. In Ruyters I found that the term “general public interest” in s 60(3B) should be given the same meaning as in s 12(1) of the GIPA Act which is the inherent public interest in the disclosure of any government information.

Importance of the information to the applicant

38. There is no doubt that the information sought is the personal information of Mr Dezfouli, being his medical records. It is also apparent that Mr Dezfouli has been detained as a forensic patient for many years and has been provided with these records in the past. Mr Dezfouli has not put forward any details of whether the information could assist him in exercising any rights under any Act or law.

Conclusions

39. Subsection 60(3B) provides that any consideration under s 60(3A) must, on balance, outweigh the general public interest in favour of the disclosure of government information and the demonstrable importance of the information to the applicant. The general public interest in favour of the disclosure of government information is relevant in this case, as it is in every case. In addition, the information that Mr Dezfouli seeks is his personal information, and that fact must weigh heavily in the balance.

40. While Justice Health may not be a large agency and, as can be seen from the evidence given by Ms Szulgit, devotes modest resources to dealing with requests to it for access to information, it cannot be said that the request by Mr Dezfouli is voluminous or that dealing with the request would be onerous. The information sought is readily identifiable and is of a sort typically requested. Dealing with the request would take around two days, possibly less, which cannot be said to be a significant impost on the agency. As pointed out by Mr Dezfouli, Justice Health may request that he pay an advance deposit if the costs of dealing with the application are likely to exceed the amount of the application fee.

41. I am satisfied there is a general public interest in favour of the disclosure of government information and that the information is personal to Mr Dezfouli and is of importance to him. I am not satisfied that these matters are outweighed by the matters outlined above in relation to s 60(3A).

42. I am therefore not satisfied that dealing with the application would require an unreasonable and substantial diversion of Justice Health’s resources. The correct and preferable decision is to set aside the decision under review and to remit the matter to Justice Health for further consideration. It will then be a matter for Justice Health to make a decision in relation to access to the information sought in line with the relevant principles set out in the GIPA Act.

Orders

1. The decision under review is set aside.

2. The application is remitted to the respondent for further determination.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 07 July 2021