Dezfouli v Justice Health (No 2)

[2010] NSWADT 155

CITATION:	Dezfouli v Justice Health (No 2) [2010] NSWADT 155
DIVISION:	General Division
PARTIES:	APPLICANT Saeed Dezfouli RESPONDENT Justice Health
FILE NUMBER:	083043
HEARING DATES:	21 January 2010
SUBMISSIONS CLOSED:	21 January 2010
DATE OF DECISION:	22 June 2010
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Freedom of Information Act - Access to documents - operations of agencies
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Dezfouli v Justice Health [2006] NSWADT 27 Dezfouli v Justice Health [2008] NSWADT 175 Dezfouli v Justice Health [2008] NSWADTAP 72
REPRESENTATION:	APPLICANT In person RESPONDENT G Singh, solicitor
ORDERS:	1. Set aside the decision made on internal review, so as to grant Mr Dezfouli access to the entry in the progress notes timed at 0500 on 11 May 2007, with the exception of the name and signature of the Justice Health staff member who made that entry 2. Otherwise, the Tribunal affirms the initial decision made by Justice Health 21 December 2007.

REASONS FOR DECISION

Background

1 Mr Dezfouli is a forensic patient, having been detained under s 39 of the Mental Health (Criminal Procedure) Act 1990. He regularly makes application to Justice Health (‘the Agency’) for access to his medical records under the Freedom of Information Act 1989 (FOIA). On 18 October 2007 he sought access to his “entire medical records from 1 January 2006 to 10 July 2006 and from 1 January 2007 to date under the FOIA.

2 On 12 December 2007 the Agency wrote to Mr Dezfouli noting that his medical records from the 1 January 2006 to 10 July 2006 had been provided to him pursuant to an earlier request. As a result the Agency proposed to address medical records relating to the period 1 January 2007 to 18 October 2007 only.

3 A determination was made on 21 December 2007. A total of 62 documents were identified as being within the scope of the application. Mr Dezfouli was given full access be granted to 24 documents and partial access to 38 documents. In determining partial access to certain documents, the Agency relied on the exemptions in clause 16 (a) (iv) & (b) (documents concerning operations of agencies) of Sch 1 to the FOIA. The information deleted was said to relate to names and signatures of staff members. The deleted information was considered exempt, as release could reasonably be expected to have a substantial adverse effect on the effective performance by an agency (i.e. Justice Health) of the agency's functions. The public interest test was considered and it was determined that on the balance, it is not in the public interest to release parts of the documents.

4 Mr Dezfouli requested internal review of the determination on 3 January 2008. The internal review was determined on 5 February 2008. The internal review found that monthly meetings had been arranged between Mr Dezfouli and Agency staff to allow Mr Dezfouli to view his medical records, under an arrangement reached with the assistance of the NSW Ombudsman. The internal review determined that Mr Dezfouli should raise any concerns he had regarding the initial decision at the next monthly meeting.

5 Mr Dezfouli lodged an application for external review with the Administrative Decisions Tribunal on 6 February 2008. In the Tribunal the Agency relied on the exemptions in clause 16 (a) (iv) & (b) (documents concerning operations of agencies) of Sch 1 to the FOIA.

6 The matter has made very slow process through the Tribunal. Initially it was listed for Pearson JM for a series of planning meetings. There was then a considerable delay when Mr Dezfouli asked Ms Pearson to disqualify herself, and unsuccessfully appealed her decision to refuse to do so. Ms Pearson later resigned from the Tribunal and the matter was allocated to me.

7 I heard the application on 21 January 2010.

Issue

8 At that hearing Mr Dezfouli indicated that he accepted that the Agency was entitled to redact form his medical records the names and identifying information relating to Agency employees and fellow inmates. In doing so he acknowledged the force of a number of previous decisions of the Tribunal relating to that issue: Dezfouli v Justice Health [2006] NSWADT 274, Dezfouli v Justice Health [2008] NSWADT 175, and Dezfouli v Justice Health [2008] NSWADTAP 72.

9 The issue from Mr Dezfouli’s perspective was that he was unsure whether the deletions made from his medical records only related to the names and identifying information of Agency employees and fellow inmates. His concern was that personal information relating to him had also been redacted. He was seeking an independent and impartial assessment of the information deleted from his medical records to ensure that his personal information had not been deleted.

10 The medical records to which Mr Dezfouli was given partial access comprise many hundreds of pages. There was not the time or opportunity for me to carefully review them at the hearing. With the agreement of the partiers I reserved my decision on the following basis:

“Decision reserved as to whether the documents to which Mr Dezfouli has been granted partial access have had redacted from them anything other than identifying information relating to Justice Health of other prisoners, which Mr Dezfouli accept is an appropriate deletion.”

Consideration

11 I have carefully compared the documents to which Mr Dezfouli was given partial access with the original documents. With one exception, I can confirm that the only information deleted from the medical records is identifying information relating to Agency and associated staff and other inmates.

12 That exception relates to an entry in Mr Dezfouli’s progress notes timed at 0500 on 11 May 2007. It is a one line entry. The whole line has been deleted from the copy provided to Mr Dezfouli. That line begins and ends with the name of the Agency staff member who made the entry, and ends with that person’s signature. Both the name and the signature are bracketed in the originals, indicating that they should be deleted from the copy provided to Mr Dezfouli, with the six words between them that relate to Mr Dezfouli not being designated for deletion.

13 It is evident that whoever undertook the very laborious task of deleting all identifying information from the medical records has deleted those six words in error. They contain information relating to Mr Dezfouli.

14 The only other information redacted from the medical records is information which Mr Dezfouli accepts was correctly deleted in the light of earlier decisions of the Tribunal.

15 As a result I think that the correct and preferable decision is to:

1. Set aside the decision made on internal review, so as to grant Mr Dezfouli access to the entry in the progress notes timed at 0500 on 11 May 2007, with the exception of the name and signature of the Justice Health staff member who made that entry.
2. Otherwise, affirm the initial decision made by Justice Health 21 December 2007.