Dezfouli v NSW Department of Corrective Services

[2009] NSWADT 221

CITATION:	Dezfouli v NSW Department of Corrective Services [2009] NSWADT 221
DIVISION:	General Division
PARTIES:	APPLICANT Saeed Dezfouli RESPONDENT NSW Department of Corrective Services
FILE NUMBER:	083374
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	10 May 2009
DATE OF DECISION:	19 August 2009
BEFORE:	Molony P - Judicial Member
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 Dezfouli v Justice Health [2006] NSWADT 274 Dezfouli v Justice Health [2008] NSWADT 175 Dezfouli v Justice Health [2008] NSWADTAP 72
REPRESENTATION:	APPLICANT In person RESPONDENT P Grech, solicitor
ORDERS:	The decision under review is affirmed.

Background

1 Mr Dezfouli is a forensic patient, having been detained under s 39 of the Mental Health (Criminal Procedure) Act 1990.

2 Mr Dezfouli made an application to the Department of Corrections (‘the Agency’) for access to a number of documents under the Freedom of Information Act 1989. On 25 September 2008 the Agency identified eight documents which fell within the scope of his request. It gave him access to redacted copies of each document.

3 The first of these (Document 1) is a hand written statement witnessed by an inmate. The name and MIN (identifying number) of the witness has been deleted on the basis of the personal affairs exemption in clause 6(1) of Schedule 1 of the Freedom of Information Act 1989.

4 Documents 2 to 8 are medical and related records and reports concerning Mr Dezfouli. From them the names of Justice Health staff members were deleted on two grounds. First, the public interest in protecting the safety of Justice Health medical staff (clause 4(1)(c) of Schedule 1). Secondly, the public interest in preventing substantial adverse effect on the effective performance by Justice Health of its functions (clause 16(a)(iv) and (b) of Schedule 1).

5 The Agency advised that there were no documents falling within the scope of Mr Dezfouli’s request for documents created after specified dates, in his Warrant File and his Intelligence File. It advised a ‘Red Folder’ to which Mr Dezfouli had referred had ceased to exist and that ‘all documentation contained in the ‘red folder’ was transferred to ‘your inmate case management folder’ over 18 months ago.’

6 Mr Dezfouli sought an internal review of that decision.

7 On 21 October 2008 an internal review officer determined to release document 5, but otherwise essentially affirmed the original decision.

8 On 18 December 2008 Mr Dezfouli applied to the Tribunal to review that determination.

Planning meetings

9 Two planning meetings were held on 17 February 2009 and 14 April 2009. At those planning meetings the issues to be determined were narrowed.

10 First, Mr Dezfouli accepted that Tribunal under the Freedom of Information Act 1989 does not have power to review the adequacy of the search for records within the scope of his request conducted by the Agency: Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140. Mr Dezfouli maintained his belief that there are other records held by the Agency that fall within the scope of his request, but conceded that this was not an issue which the Tribunal could review.

11 Secondly, I confirmed to Mr Dezfouli, by examining the confidential copy provided to the Tribunal by the Agency, that document 1 is a hand written statement apparently written by him and witnessed by another inmate and that the only deletions are of the inmates name and MIN number. Mr Dezfouli accepted this and did not seek to press his claim for access to this document further.

12 Thirdly, Mr Dezfouli agreed that the agency was entitled to delete from documents 2 to 4 and 6 to 8 identifying information relating to Justice Health staff. This issue has been previously determined by the Tribunal in respect to medical records held by Justice Health in Dezfouli v Justice Health [2006] NSWADT 274, Dezfouli v Justice Health [2008] NSWADT 175, and Dezfouli v Justice Health [2008] NSWADTAP 72. Mr Dezfouli, however, maintained that the Agency, in addition to deleting identifying information relating to Justice Health staff, had also deleted personal information relating to him. This was the only remaining issue in contention.

13 After some discussion both parties agreed that it should be resolved by me examining the confidential copies of the original documents and comparing them with the redacted documents provided to Mr Dezfouli. It was agreed that if, after examining the documents, I found that personal information relating to Mr Dezfouli had been deleted by the Agency the matter would be relisted for further directions and hearing. If, however, personal information relating to Mr Dezfouli had not been deleted, it was agreed I should dismiss Mr Dezfouli’s application for review and affirm the decision made on internal review.

14 At the conclusion of the second planning meeting I made the following consent order which I read to the parties and obtained their express agreement to.

The Tribunal is to examine the documents to determine whether personal information relating to Mr Dezfouli has been deleted. If so, the matter will proceed. If not, the application will be dismissed.

15 In adopting that course I had regard to s 76 of the Administrative Decisions Tribunal Act 1997 which provides that a hearing may be dispensed with ‘if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties.’ That was the case here.

Consideration

16 Following that last planning meeting I commenced to review the documents in issue. I became concerned that I did not have a full set of the redacted documents supplied to Mr Dezfouli, to compare with the copy originals which had been supplied to the Tribunal by the Agency on a confidential basis.

17 I therefore asked the Registrar to write to the parties advising them of this and requesting the Agency to supply the Tribunal and Mr Dezfouli with an additional copy of the redacted documents. If Mr Dezfouli disputed the accuracy of any of the redacted copies so supplied, he was to do so in writing by 10 May 2009.

18 The Agency provided the copies in due time. Mr Dezfouli has not disputed them.

19 There has been an unfortunate and unintended delay in my finally determining the issue since then, for which I bear responsibility. I apologise to the parties for that delay.

20 I have now reviewed all the original documents and compared them with the redacted copies. Having done so, I am satisfied there are no deletions from any of the documents that contain personal information relating to Mr Dezfouli. What deletions there are contain identifying material in respect to Justice Health staff, which Mr Dezfouli has conceded the Agency was entitled to make.

21 For the sake of clarity I observe that the original document 2 is itself a redacted document, from which the names of treating personnel have been deleted. The original document, apparently obtained by the Agency from Justice Health, also contains a deletion in the last sentence of the second full paragraph on page 2. That deletion has not been made by the Agency for the purposes of Mr Dezfouli’s FOI application, but appears on the original Agency document. Whether it contained personal information relating to Mr Dezfouli before the Agency received it in its edited form, I cannot determine. I am however satisfied that no personal information relating to Mr Dezfouli has been deleted from document 2 by the Agency.

Conclusion

22 As a result I think that the correct form of order to make is to affirm the decision under review, which has the effect of dismissing the application for review.