Fulham & Mohamed v NSW Department of Health

[2008] NSWADT 227

CITATION:	Fulham & Mohamed v NSW Department of Health [2008] NSWADT 227
DIVISION:	General Division
PARTIES:	APPLICANTS Michael J Fulham Armin Mohamed RESPONDENT NSW Department of Health
FILE NUMBER:	083107
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	12 August 2008
DATE OF DECISION:	15 August 2008
BEFORE:	Handley R - Deputy President
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989 Administrative Decisions Tribunal Act 1997
CASES CITED:	Chief Executive Officer, State Rail Authority v Woods [2003] NSWADTAP 25 Colakowski v Australian Telecommunications Corporation (1991) 29 FCR 429 YZ v Sydney South West Area Health Service [2006] NSWADT 316 Department of Education & Training v Mullett and Randazzo (No 2) [2002] NSWADTAP 29 Dezfouli v Justice Health [2006] NSWADT 274 Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 Saleam v Director General, Department of Community Services [2002] NSWADT 41 Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 Martin v Commissioner of Police, NSW Police [2005] NSWADT 23 Humane Society International Inc v National Parks & Wildlife Service & Ors [2000] NSWADT 133 Schlebaum (No 2) v Department of Community Services and Gliksman [2001] NSWADT 214 Fulham v Director-General, Department of Environment and Conservation [2005] NSWADT 88 Vincent Neary v State Rail Authority [1999] NSWADT 107 McMahon v Director-General, Department of Fair Trading [2003] NSWADT 164 Druett v Director General, Department of Community Services & anor (No 2) [2004] NSWADT 269 McGuinness v Bathurst Regional Council [2005] NSWADT 152 Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier’s Department [2002] NSWADT 277 Keriakes v State Rail Authority of NSW [2003] NSWADT 191 WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 Gales Holdings Pty Ltd v Tweed Shire Council [2005] NSWADT 168 Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301 Cianfrano v Director General, NSW Treasury [2005] NSWADT 7 University of NSW v McGuirk [2006] NSWSC 1362 Cianfrano v Director General, Premier’s Department [2007] NSWADT 216
REPRESENTATION:	APPLICANT M Allars, counsel RESPONDENT K Thomas, solicitor
ORDERS:	The decision under review is varied in accordance with these reasons.

1 This is an application by Michael J Fulham and Armin Mohamed for the review of a decision of the Department of Health (‘the Department’) made under the Freedom of Information Act 1989 (‘the FOI Act’) to release parts of a report dated 29 May 2006 titled “Review of Nuclear Medicine Services at the Royal Prince Alfred Hospital” prepared by Professor Brendon Kearney (‘the Kearney Report’).

Background

2 Clinical Professor Fulham and Clinical Associate Professor Mohamed (‘the Applicants’) are employed in the Department of PET [Positron Emission Tomography] & Nuclear Medicine at the Royal Prince Alfred Hospital (‘RPAH’). On 31 May 2007, the Department received an application for access to the Kearney Report. That application was refused on 26 July 2007, a decision upheld on 5 September 2007 after an internal review. The FOI applicant then applied to the Tribunal for a review of this decision. [That application is the subject of separate proceedings.]

3 By letters dated 6 December 2007, the Department advised the Applicants that it had decided to make a fresh determination in respect of an application under the FOI Act for access to the Kearney Report. The Department said it had taken into account their objections to the release of the Report detailed in letters to the Department dated 19 November 2007. Having considered those objections, the Department had decided to grant partial release of the Report to the FOI applicant.

4 The Applicants sought an internal review of this determination. On 10 January 2008, the Department’s Chief Financial Officer, Ken Barker, decided to affirm the determination. This decision was provided to the Applicants under cover of an undated letter from the Department’s FOI Officer, received by Dr Fulham on 8 February 2008 and by Dr Mohamed on 11 February 2008.

5 On 2 April 2008, the Applicants filed an application for a review of the internal decision by the Tribunal. At a Planning Meeting with representatives of the parties on 6 May 2008, I set a timetable for the exchange of documents. At another Planning Meeting on 2 July 2008, I set a further timetable for the exchange of evidence and submissions, and the parties agreed that, on receipt of these documents, I should determine this matter ‘on the papers’.

Preliminary Issue – the Applicants’ Application for a Confidentiality Order

6 The Applicants seek a general confidentiality order under s 75(2)(b) and (c) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) in respect of names and personal information mentioned in the statements of evidence filed in support of their application, other material in those statements, and all submissions filed on behalf of the Applicants, in order to protect the personal and professional affairs of those persons. Initially, the Applicants also sought a more limited confidentiality order in respect of documents provided to the Department, but in the light of strong objections from the Department, later decided not to press this. The Department did not object to the general confidentiality sought provided that this was not applicable to itself.

7 The Applicants provided the following statements in support of their application to the Tribunal for a review: (1) Janelle Whalan, dated 25 July 2008, (2) Dr Fulham, dated 26 July 2008, and (3) and Dr Mohamed, dated 25 July 2008. Ms Whalan is the Director, Corporate Services of the Sydney South West Area Health Service (‘SSWAHS’).

8 The Applicants seek a general confidentiality order in respect of the whole of Ms Whalan’s statement. The Applicants submit the statement and its annexures contain references to a significant number of staff of the SSWAHS and Concord Hospital, which have not been provided to the Department. It would be unfair on those persons to disclose the information to the Department in this form and, if disclosed, that information would become part of the records of the Department, which could be subject to other FOI requests. If such information were to be disclosed to an FOI applicant, it could lead to complaints or adverse comments concerning such persons.

9 The Applicants also seek a general confidentiality order in respect of the whole of the Applicants’ statements. The Applicants submit the statement contains personal and professional affairs information which would otherwise be exempt under clauses 6 and 7(1)(c) of Schedule 1 of the FOI Act, together with information which it would be inappropriate to disclose for the reasons stated in relation to Ms Whalan’s statement.

10 The Applicants seek a similar confidentiality order in respect of the relevant parts of the submissions where reference is made to the evidence contained in the statements.

Discussion

11 Section 75(2)(b) of the ADT Act empowers the Tribunal, if satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, to make an order prohibiting or restricting the disclosure of information leading to the identification of any person, whether or not that person is a party to the proceedings. Further, pursuant to s 75(2)(c), the Tribunal may, for the same reasons, make an order prohibiting or restricting the publication of evidence given before the Tribunal or of matters contained in documents lodged with the Tribunal.

12 The Applicants seeks such confidentiality orders in respect of the three statements filed in support of their application and in respect of their submissions, as outlined above. The Department does not object to the general confidentiality order provided that this is not applicable to itself.

13 I have reviewed Ms Whalan’s statement. I note that Ms Whalan refers to persons and annexes correspondence from persons who are not a party to these proceedings, including staff of the SSWAHS, Concord Hospital and the RPAH. Her statement also refers to grievances/disputes over the provision of PET and nuclear medicine services at the RPAH. I note that the Department’s policy on grievance resolution and complaint handling assures those involved of confidentiality.

14 I am satisfied that it is desirable to make a general confidentiality order under s 75(2) in respect of Ms Whalan’s statement in order to protect the confidentiality of persons named in her statement and in the annexures thereto, and also to protect the confidentiality of the other evidentiary material in her statement and annexures, the disclosure of which, in my view, could give rise to further disputes and be detrimental to the public interest.

15 With regard to the Applicants’ statements, given the nature of these proceedings, arising from the Applicants’ objection to the partial release of the Kearney Report to an FOI applicant, and given the background to the commissioning of the Report, and especially the grievances/disputes over the provision of PET and nuclear medicine services at the RPAH, I am satisfied that it is desirable that there should be a general confidentiality order in respect of the Applicants’ statements and the annexures thereto under s 75(2), in particular to protect the personal and professional affairs of the Applicants and of the other persons named therein.

16 The order extends to references to those statements and the evidence contained therein in the parties’ submissions. The order is not, however, applicable to the Department. Pursuant to s 75(2)(b), the order prohibits the disclosure of the statements or the contents thereof, including the names of persons referred to therein, and also disclosure of references to the contents of the statements in the submissions. Pursuant to s 75(2)(c), the order prohibits the publication of the statements or of matter contained therein and also publication of those parts of the submissions that refer to such material. [The paragraphs or parts of paragraphs below marked ‘Non-Publication Order’ contain material that is the subject of the s 75(2) order.]

The Relevant Legislation

17 The objects of the FOI Act are stated in section 5, as follows:

5 Objects

(1) The objects of this Act are to extend, as far as possible, the rights of the public:

(a) to obtain access to information held by the Government, and

(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.

(2) The means by which it is intended that these objects are to be achieved are:
(a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and

(b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and

(c) by enabling each member of the public to apply for the amendment of such of the Government’s records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading.

(3) It is the intention of Parliament:

(a) that this Act shall be interpreted and applied so as to further the objects of this Act, and

(b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information.

(4) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records as permitted or required by or under any other Act or law.

18 Pursuant to s 16(1) of the FOI Act, “[a] person has a legally enforceable right to be given access to an agency’s documents”. However, s 25(1)(a) states that an agency “may refuse access to a document” if it is an “exempt document”, the onus being on the agency to establish this. Section 25(4) provides that 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 it appears to the agency that the FOI applicant would wish to be given access to such a copy.

19 Pursuant to s 31, where a document contains information concerning the personal affairs of any person, an agency shall not give access to that document without first taking reasonable steps to obtain the views of that person as to whether or not the document is an exempt document by virtue of clause 6 of Schedule 1 of the FOI Act. Section 32 is a similar provision concerning documents containing information affecting a person’s business affairs with reference to the exemption in clause 7.

20 Section 6(1) defines ‘agency’ as including a Government Department, and ‘exempt document’ as including a document referred to in any one or more of the provisions of Schedule 1. The exempt documents in Schedule 1 include, relevantly, those specified in clauses 6, 7, 13 and 16, which are relied on by the Applicants in these proceedings. The relevant parts of those clauses state:

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.

7 Documents affecting business affairs

(1) A document is an exempt document:

(a) ...

(a1) ...

(b) ...

(c) if it contains matter the disclosure of which:

(i) would disclose information (other than trade secrets, commercial-in-confidence provisions or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and

(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.

13 Documents containing confidential material

A document is an exempt document:

(a) if it contains matter the disclosure of which would found an action for breach of confidence, or

(b) 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.

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:

(i) ...

(ii) ...

(iii) to have a substantial adverse effect on the management or assessment by an agency of the agency’s personnel, or

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

(v) ... , and

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

21 The Applicants submit the Kearney Report is exempt in its entirety pursuant to the following provisions of Schedule 1 of the FOI Act: (1) clause 6 – unreasonable disclosure of documents affecting the personal affairs of any person; (2) clause 7(1)(c) – information concerning the professional affairs of a person; (3) clause 13(b) – information obtained in confidence; (4) clause 16(a)(iii) – substantial adverse effect on the management or assessment by an agency of the its personnel; and (5) clause 16(a)(iv) – substantial adverse effect on the effective performance by an agency of its functions. As stated above, the Applicants rely on statements from Janelle Whalan, dated 25 July 2008, Professor Fulham, dated 26 July 2008, and Associate Professor Mohamed, dated 25 July 2008, in support of their application.

Evidence

22 Ms Whalan is the Director, Corporate Services of the Sydney South West Area Health Service (‘SSWAHS’). ... [Non-Publication Order]

23 Non-Publication Order

24 Non-Publication Order

25 Non-Publication Order

26 Dr Fulham, who is the Clinical Director, Medical Imaging Services, SSWAHS at the RPAH, and in charge of the PET program, ... [Non-Publication Order]

27 Non-Publication Order

28 Non-Publication Order

29 Dr Mohamed, who is a senior staff specialist at the RPAH, ... [Non-Publication Order]

30 Non-Publication Order

31 Non-Publication Order

32 Non-Publication Order

Submissions filed on 31 July 2008

33 Ms Allars provided a comprehensive analysis of the relevant law in relation to each of the exemptions relied on by the Applicants.

34 Clause 6 - personal affairs. Ms Allars submitted that the cases establish that the context in which information is provided requires close consideration. Information relating to the employment of an officer of an agency may fall within the personal affairs exemption. In particular, while an assessment of the performance of an officer by a manager does not concern the manager’s personal affairs, a complaint to management by an employee about the conduct of another employee concerns the personal affairs of the complainant: Chief Executive Officer, State Rail Authority v Woods [2003] NSWADTAP 25.

35 Whether assessment of work performance constitutes the personal affairs of the employee assessed depends upon the context. Information concerning a person’s health, marital or other relationships, domestic responsibilities or financial obligations is personal affairs information. However, it may legitimately affect work performance and be included in an assessment of that performance. In such a context, an evaluation must be made as to whether it concerns personal affairs and whether it is unreasonable to disclose it.

36 Whether a particular disclosure is unreasonable, requires reference to public interest considerations: Colakowski v Australian Telecommunications Corporation (1991) 29 FCR 429, at 438 (per Lockhart J). This requires examination of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which it was obtained, the likelihood of the information being information that the person would not wish to have disclosed without consent, the current relevance of the information and the motive of the requester. Further, it must be borne in mind that disclosure to the requester is disclosure to the world at large.

37 Non-Publication Order

38 Non-Publication Order

39 Non-Publication Order

40 Clause 7(1)(c) – professional affairs. Ms Allars referred to a number of cases where the meaning of ‘professional affairs’ was discussed and held to include information concerning professional conduct, professional background and qualifications, and professional licensing. With regard to the unreasonable adverse effect test posed by clause 7(1)(c)(ii), this must be more than a mere risk of being placed at a disadvantage. The decision in YZ v Sydney South West Area Health Service [2006] NSWADT 316 (‘YZ’), indicates that apparent defamatory imputations, expectations of confidentiality, and the ability of the relevant Health Service to attract suitable staff may be relevant considerations.

41 Non-Publication Order

42 Clause 13(b) – information obtained by agency in confidence. Ms Allars stated that whether information is obtained in confidence depends upon the circumstances of the case. ... [Non-Publication Order]

43 Clause 16(a)(iii) – substantial adverse effect on management of agency personnel. Ms Allars referred to the decision in Department of Education & Training v Mullett and Randazzo (No 2) [2002] NSWADTAP 29 (‘Mullett (No 2)’), at paragraph 97, where the Appeal Panel held that this provision focuses on systemic considerations, and that ‘substantial adverse effect’ involves a higher test that mere prejudice and requires an effect “sufficiently serious to cause concern to a properly informed reasonable person” and “must not be irrational or absurd”. In relation to ‘the public interest’ (clause 16(b)), the Appeal Panel held, at paragraph 101, that the protection of confidentiality is one important aspect of good personnel management practices.

44 Non-Publication Order

45 Clause 16(a)(iv) – substantial adverse effect on effective performance of agency functions. Ms Allars noted that in Dezfouli v Justice Health [2006] NSWADT 274 (‘Dezfouli’), the Tribunal adopted the meaning of substantial adverse effect applied in Mullett (No 2). The Tribunal held that the disclosure of documents containing the names of the Respondent’s nursing staff who cared for forensic patients at Long Bay Prison Hospital could reasonably be expected to result in those staff being less likely to make comprehensive and accurate notes of their observation of patients. This would constitute a substantial adverse effect upon the ability of the agency to provide appropriate health care to the patients. The Tribunal held that the public interest in appropriate treatment being provided to forensic patients outweighed any public interest in full disclosure of the names of nursing staff providing notes.

46 Non-Publication Order

47 In conclusion, Ms Allars submitted that the exemptions claimed have been established and the Kearney Report should not be released in its redacted form as proposed by the Department. A decision should be substituted for the internal review decision of Mr Barker that the Report is exempt in its entirety.

Submissions filed on 12 August 2008

48 In further submissions filed in response to the Department’s submissions, Ms Allars noted seven discrepancies between the Department’s submissions as to specific parts of the Kearney Report that should be excluded from release and Mr Barker’s internal review decision. (These discrepancies are referred to below under the heading ‘Discussion’.)

49 Ms Allars noted the Department had provided no evidence to support its claim that the balance of the Report, after the exclusion of exempt material, is “factual and non-contentious”, and there is no evidence of this before the Tribunal. On the contrary, the Applicants have provided unchallenged evidence that some matters in the Report are indeed contentious. Whether material is factual or evaluative is for the Tribunal to determine. However, for the most part this is not relevant to the tests posed by the exemptions claimed in this case.

50 Ms Allars said there is also no evidence to support the Department’s contention that the material in the balance of the Report is “readily accessible” in the public domain. She noted, in particular, that large parts of the material reflect Professor Kearney’s evaluation. Further, there is no evidence to support the Department’s claim that all the recommendations made in the Report have been actioned so that there is no reason why access to them should be restricted. In any event, whether recommendations have been actioned is not a factual matter that is pertinent to the exemptions claimed.

The Department’s Evidence and Submissions

51 Ms Thomas said the Department does not cavil with the Applicant’s submissions that certain parts of the Report should be exempt from the copy of the Report released to the FOI applicant. Ms Thomas listed those parts of the Report the Department proposes to exempt, exemptions that it has already effected in the copy proposed to be released. (The specific exemptions are considered more fully below under the heading ‘Discussion’.)

52 The Department submits that the remainder of the document contains material that is factual and non-contentious. The information contained is already accessible to anyone who wishes to look for it in the public domain. In these circumstances, it is inappropriate to exclude this further material under the FOI Act. Moreover, there is no reason why access to Professor Kearney’s recommendations should be restricted, given that all the recommendations made in the Report have been actioned.

Discussion

The Relevant Law

53 The following discussion addresses each of the exemptions relied upon by the Applicants.

Clause 6

54 For a document to be exempt under clause 6, firstly, it must contain “information concerning the personal affairs” of a person other than the applicant and, secondly, the disclosure of that information would be “unreasonable”. What constitutes the “personal affairs” of a person has been discussed in a number of decisions both of the courts and of the Tribunal. In Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43, at paragraph 33, Deputy President Hennessy said 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.

55 A leading authority on what constitutes the “personal affairs” of a person is the NSW Court of Appeal decision in Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 (‘Perrin’s case’) where, at 625, Kirby P described “personal affairs” as meaning “the composite collection of activities personal to the individual concerned”. His Honour recognised, at 620-621, that clause 6(1) can embrace the personal affairs of the agency’s own officers and employees. He said, at 625, that while disclosing the names of police officers and employees involved in the preparation of police reports could not be classified as disclosing information concerning their personal affairs:

“It would be quite different if personnel records, private relationships, health reports or (perhaps) private addresses would be disclosed. Such information would attract the exemption.”

56 As Ms Allars has pointed out, the nature of the document and the context in which the information was provided must be considered.

57 With regard to when the disclosure of information is unreasonable, in Saleam v Director General, Department of Community Services [2002] NSWADT 41, at paragraph 38, the President of the Tribunal, O’Connor DCJ, followed the approach adopted by the Commonwealth Administrative Appeals Tribunal (‘AAT’) in Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257, at paragraph 51:

“Whether a disclosure is ‘unreasonable’ requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was being obtained, the likelihood of the information being information that the person concerned would not wish to be disclosed without consent, and whether that information has any current relevance.”

58 However, as the AAT noted, at paragraph 52:

“consistently with the stated object of the Act (s 3), it is also necessary to take into consideration the public interest recognised by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document.”
(See also the decision in Martin v Commissioner of Police, NSW Police [2005] NSWADT 23, at paragraph 39.)

59 When considering the question of reasonableness, the FOI applicant’s motive may also be relevant: Humane Society International Inc v National Parks & Wildlife Service & Ors [2000] NSWADT 133 (see paragraphs 26 to 31); YZ (see paragraphs 17 to 18).

Clause 7

60 Relevantly, for a document to be exempt under clause 7(1)(c), first, the document must contain information concerning the business, professional, commercial or financial affairs of any agency or other person and, second, disclosure of the information could reasonably be expected to have an unreasonable adverse effect on those affairs. In Schlebaum (No 2) v Department of Community Services and Gliksman [2001] NSWADT 214, at paragraphs 42 to 43, Deputy President Hennessy said that the terms “business and professional affairs” should be given a broad meaning:

“Dr Schlebaum is admitted to a recognised profession and offers her services to the community for a fee. The information was provided in her capacity as a professional practising child psychiatrist and concerns her patient, AW, and AW's children. Based on these findings and a broad interpretation of "professional affairs" my view is that each of the documents in dispute contains information which concerns the professional affairs of Dr Schlebaum.”

61 In Fulham v Director-General, Department of Environment and Conservation [2005] NSWADT 88, at paragraph 29, the Tribunal said:

“for a document to concern business, professional or commercial affairs, the document must contain material that goes beyond simply referring to those affairs. The document must contain something relating to business, professional or commercial affairs that is of a real and genuine substance.”

62 With regard to whether disclosure of the information could reasonably be expected to have an unreasonable adverse effect on those affairs, the Tribunal must adopt an objective approach and the expectation must be more than a mere risk: Vincent Neary v State Rail Authority [1999] NSWADT 107, per O’Connor DCJ, President, at paragraph 35.

Clause 13

63 The exemption conferred by clause 13(b) applies if three requirements are satisfied. First, the information must be obtained in confidence, for example, as in McMahon v Director-General, Department of Fair Trading [2003] NSWADT 164, where information was provided to the Department of Fair Trading concerning possible breaches of the Home Building Act 1989.

64 Second, where disclosure could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, for example, as in Druett v Director General, Department of Community Services & anor (No 2) [2004] NSWADT 269, where child protection concerns had been raised with the Department. In McGuinness v Bathurst Regional Council [2005] NSWADT 152 (‘McGuinness’), at paragraph 8, Deputy President Hennessy said:

“Whether or not disclosure could reasonably be expected to prejudice the future supply of such information does not necessarily depend on whether the informant herself could reasonably be expected to refuse to supply such information in the future. While that evidence is relevant, the Tribunal must answer a broader question, that is whether disclosure could reasonably be expected to prejudice the future supply of such information from a substantial number of the sources available or likely to be available to [the agency] ... ( Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 341).”

65 Third, where disclosure would, on balance be contrary to the public interest. A loss of confidence in the confidentiality of personal data has been held to be against the public interest: Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier’s Department [2002] NSWADT 277, at paragraph 69. Conversely, it is in the public interest for an agency to receive confidential information from employees about the performance of other employees: Keriakes v State Rail Authority of NSW [2003] NSWADT 191; see also McGuinness.

66 I note that in WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 (‘the WorkCover case’), at paragraph 151, the NSW Court of Appeal, referring to the objects of the FOI Act set out in s 5(2)(a) and (b), recognised that the right to be given access to documents held by an agency is subject to such restrictions as are reasonably necessary for the proper administration of the Government:

“Determining whether documents should be disclosed involves balancing those two matters. Thus, ... testing whether disclosure of documents would be contrary to the public interest requires the decision-maker ‘to weigh the public interest in citizens being informed of the processes of their Government and its agencies on the one hand against the public interest in the proper working of Government and its agencies on the other’: Harris v Australian Broadcasting Corporation [(1983) 78 FLR 236] (at 246).”

67 The Applicants rely on exemption pursuant to both clause 16(a)(iii) and 16(a)(iv). Clause 16(a)(iii) requires first, that the disclosure of documents could reasonably be expected to have a substantial adverse effect on the management or assessment by the agency of its personnel and, second, whether the disclosure of the documents would, on balance, be contrary to the public interest.

68 A “substantial adverse effect” is one that is more than mere prejudice, and is sufficiently serious to cause concern to a properly informed reasonable person. The focus is on the future effect on the agency’s function rather than the effect of disclosure on the matter in dispute between the parties. See McGuinness, at paragraph 21 (Hennessy DP, citing Re James and Australian National University (1984) 6 ALD 687, Re Thies and Department of Aviation (1986) 9 ALD 454, and Director General, Department of Education & Training v Mullet & anor [2002] NSWADTAP 13 (revised as at 11/6/02)); see also Gales Holdings Pty Ltd v Tweed Shire Council [2005] NSWADT 168 (Higgins JM), at paragraph 46.

69 Deciding whether or not disclosure is contrary to the public interest requires a balancing of competing interests, including the public interest in the applicant’s right to know and the public interest in the proper working of the Government and its agencies: Forgie DP in Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301, at paragraphs 115 to 119, cited with approval by O’Connor DCJ, President, in Cianfrano v Director General, NSW Treasury [2005] NSWADT 7, at paragraph 83.

70 In Mullett (No 2), at paragraph 29, the Appeal Panel noted that clause 16(a)(iii) “focuses on systemic considerations”. In relation to the public interest, the Panel observed, at paragraph 101: “Protection of confidentiality is merely one important aspect of what is involved in the preservation of good personnel management practices.”

71 Clause 16(a)(iv) requires first, that the disclosure of documents could reasonably be expected to have a substantial adverse effect on the effective performance by an agency of its functions, and, second, that the disclosure of the documents would, on balance, be contrary to the public interest. I note that the Tribunal decision in Dezfouli, referred to by Ms Allars, above, is an example of this exemption being found to apply. The above discussion of ‘substantial adverse effect’ and the public interest applies equally to clause 16(a)(iv).

Residual Discretion

72 By virtue of s 63(2) of the ADT Act 1997 and s 25(1)(a) of the FOI Act, the Tribunal has a residual discretion to release documents otherwise found to be exempt pursuant to Schedule 1 of the FOI Act, and, in such a case, must consider whether to exercise its discretion to do so: University of NSW v McGuirk [2006] NSWSC 1362, at paragraph 102 (per Nicholas J). The principles guiding the exercise of the discretion were discussed by the President of the Tribunal, O’Connor DCJ, in Cianfrano v Director General, Premier’s Department [2007] NSWADT 216.

73 The question to be considered is whether, bearing in mind the objects of the FOI Act expressed in s 5, stated above, there are strong grounds justifying the overriding of the exemptions found to apply.

Discussion

74 In the present case, Ms Allars submits that the Kearney Report is exempt in its entirety. The Department provided the Report to me in confidence for the purpose of these proceedings. In my view, having reviewed the Report as a whole, while the Report does refer to the Applicants, and does contain material referring to the Applicants and others, I am not satisfied that access to the whole Report should be refused by reason of the exemptions sought to be relied on by the Applicants. Rather, partial access should be allowed with deletions where exemptions are found to apply.

75 The Department has determined to give access to the Report with deletions to protect the confidentiality of the Applicants and others who participated in the Kearney review. I intend to review the Report, including those deletions made by the Department, with reference to the evidence before me and the exemptions claimed by the Applicants.

76 As the Kearney Report states, Professor Kearney was commissioned by the Department to conduct “a review of the provision and organisation of Nuclear Medicine Services at the RPAH including consideration of the level of nuclear medicine services appropriate for a principal referral hospital”. In the course of that review, Professor Kearney consulted with, among others, members of the PET and Nuclear Medicine Department at the RPAH.

77 Non-Publication Order

78 Non-Publication Order

79 Non-Publication Order

80 Clause 6. Turning to the exemptions relied upon by the Applicants, as I have said, I am not satisfied that the whole of the Kearney Report is exempt by reason of the exemptions claimed, including the personal affairs exemption in clause 6 of Schedule 1. In my view, bearing in mind the context in which the review was undertaken, the Report does contain references to the ‘personal affairs’ of the Applicants in so far as there are parts of the Report that refer to what I accept were private consultations between Professor Kearney and the Applicants. In my view, with regard to the second component of the clause 6 exemption, it would be unreasonable for that information to be disclosed to the FOI applicant, and, therefore, to the world at large.

81 In my view, protecting the personal privacy of the Applicants by exempting parts of the Report is not outweighed by any public interest in disclosure. ... [Non-Publication Order]

82 Clause 7. With regard to the claimed professional affairs exemption under clause 7(1)(c), I accept that the Kearney Report contains some information concerning the Applicants’ professional affairs ... [Non-Publication Order]

83 Clause 13. With regard to the claimed exemption in respect of confidential information under clause 13, ... [Non-Publication Order]

84 With regard to the second requirement for clause 13(b) to apply, I am satisfied that if such information as was provided in confidence was disclosed, this could reasonably be expected to prejudice the future supply of such information if a similar situation were to arise. ... [Non-Publication Order]

85 Thirdly, I am satisfied that disclosure of those parts of the Report containing confidential information would, on balance, be contrary to the public interest. As was recognised in the WorkCovercase, there will be situations where the right to be given access to documents is subject to such restrictions as are reasonably necessary for the proper administration of government. In my view, exemptions from disclosure of parts of the report will not unduly affect the right of the public to access to information about the processes of government. There is a public interest in protecting the confidentiality of information provided in confidence if failure to do so would undermine the provision of valuable information to government where the public interest is not otherwise adversely affected.

86 Clause 16. The Applicants claim both that the disclosure of the documents could reasonably be expected to have an adverse effect on the management or assessment of personnel of the SSWAHS (clause 16(a)(iii)), and that the disclosure could reasonably be expected to have a substantial adverse effect on the effective performance by that agency of its functions (clause 16(a)(iv)). ... [Non-Publication Order]

87 Non-Publication Order

88 With regard to the public interest, I am satisfied that the deletion of those parts of the Report referring to information obtained in confidence would not, on balance, be contrary to the public interest. There is a clear public interest in the ongoing provision of safe and effective nuclear medicine services at the RPAH, which, as the Kearney Report states, is a principal referral hospital in Sydney. In my view, the public interest in safe and effective nuclear medicine services outweighs the public interest in access to the whole Report being granted.

89 Having considered the exemptions relied on in general terms, the specific exclusions from the Kearney Report contained in the Department’s decision must now be reviewed in order to determine whether the Department’s decision constitutes the correct and preferable decision.

90 I have made a careful examination of the exclusions proposed by the Department, in the context of the Report as a whole, and I have also considered whether there are other parts of the Report which should be excluded from the redacted version to be disclosed to the FOI applicant pursuant to one of the exemptions discussed above. My comments below refer to the exclusions made in the redacted version of the Report which the Department proposed to release pursuant to its fresh determination dated 6 December 2007, and use the same small Roman numbering as in the Department’s submissions.

91 I have also taken into account the seven discrepancies referred to by Ms Allars in her further submissions, and I have added additional comments where appropriate. In describing specific parts of the text of the Report, I have referred to the complete, unedited version of the Report in order to avoid the confusion that seems to have arisen as a result of there being two slightly different versions of the redacted Report proposed to be released.

(i) Page 3, paragraph 2, sentence 3 of the Report. I agree that this is exempt under the clause 16(a)(iv) adverse effect on agency functions exemption. In addition, in my view, the whole and not just part (as proposed by the Department) of paragraph 3 should be excluded pursuant to the clause 6 personal affairs exemption. The deletion from this paragraph as presently proposed would not prevent those who have some knowledge of the provision of nuclear medicine services at the RPAH ... [Non-Publication Order].

Page 4, last paragraph, the words after the words ‘authored by’ and before ‘is used’ should be exempt, as Ms Allars notes. These words are, in my view, exempt under the clause 6 personal affairs exemption.

(ii) Page 9, paragraph 2, last sentence. I agree that this is exempt pursuant to the clause 6 personal affairs exemption. I also agree that paragraphs 4 and 5 are exempt in their entirety for the same reason.

(iii) Page 10 in its entirety. I agree that these paragraphs are exempt, in the case of the first paragraph pursuant to the clause 6 personal affairs exemption, the second paragraph pursuant to the clause 6 personal affairs exemption and the clause 13(b) exemption in respect of information provided in confidence, the third paragraph pursuant to the clause 6 personal affairs exemption and the clause 7(1)(c) professional affairs exemption, and the fourth paragraph pursuant to the clause 16(a)(iv) adverse effect on agency functions exemption.

(iv) Page 11, paragraph 1. I agree that sentences 2 to 5 of paragraph 1 are exempt under clauses 6, 7(1)(c) and 16(a)(iv). In my view, the first sentence should also be excluded under clause 16(a)(iv). I agree that what in my copy is the second paragraph on that page, which extends to the first two lines on page 12, should be exempt in its entirety under clause 16(a)(iii) and (iv).

(v) Page 12, paragraph 1, lines 1 and 2 are exempt as explained above. I agree that paragraph 3, sentence 3 (the Department has mistakenly referred to this as sentence 2, although marking sentence 3 as excluded) is exempt under clause 16(a)(iv).

(vi) Page 13, paragraph 1, sentences 2, 3 and 4 (the Department has mistakenly referred only to sentences 2 and 3 although marking sentences 2, 3 and 4 as excluded) are, I agree, exempt under clause 16(a)(iv) and clause 6. I also agree that from the beginning of the third sentence of paragraph 2 to the end of the page is exempt under clause 16(a)(iv).

(vii) Page 14, paragraph 2: all of sentence 1, part of sentence 2 (after the words ‘PET services’, as Ms Allars noted in her further submissions), the first two words of sentence 3 (not excluded from the redacted version of the Report attached to the decision dated 6 December 2007), and all of sentence 4 are, I agree, exempt pursuant to clauses 6 and 7(1)(c). (The Department has mistakenly referred only to sentences 1 and 2 as being excluded, while marking sentence 1, parts of sentences 2 and 3 and all of sentence 4 as excluded.) I agree that paragraph 3 should be excluded in its entirety under clauses 6 and 16(a)(iv).

(viii) Page 15. I agree that paragraph 2 is exempt in its entirety under clauses 6, 7(1)(c) and 16(a)(iii) and (iv).

(ix) Page 16, paragraph 1, from the beginning of the fourth line to the end of the paragraph is, I agree, exempt under clause 16(a)(iv). I also agree that the first three words of paragraph 3 should be exempt under clause 6.

(x) Page 17, paragraph 2 in its entirety and the first sentence of paragraph 4 are, I agree, exempt under clause 6 and, in addition, under clause 16(a)(iii). In my view, the second sentence of paragraph 4 is also exempt under clause 16(a)(iii) and (iv), in terms of its effect on the management of personnel and on the effective performance of the functions of the SSWAHS. Thus, the whole of paragraph 4 should be exempt.

(xi) Page 18, paragraph 4 in its entirety, is I agree, exempt under clauses 6 and 16(a)(iv). In my view, that part of the last line on the page from after the word ‘services’ up to and including the end of the same sentence on line 1 of page 19 (before the words ‘This Committee’) is exempt under clause 7(1)(c). The Department has marked some but not all these words as being excluded, as Ms Allars noted. ... [Non-Publication Order]

(xii) Page 19, paragraph 2, line 6, from the words ‘At the same time’ to the end of the paragraph are exempt under clauses 6, 7(1)(c) and 16(a)(iv). ... [Non-Publication Order]

(xiii) Page 20. I agree that the text appearing in the paragraph numbered 8, under the title ‘Comment’ is exempt under clauses 6, 7(1)(c) and 16(a)(iv).

(xiv) Page 22. I agree that the names of those who met with or submitted material to Professor Kearney in the course of his review should be excluded under clause 13(b).

92 Neither party made any submissions with regard to the exercise of the residual discretion. As I noted above, the question to be considered is whether, bearing in mind the objects of the FOI Act expressed in section 5, there are strong grounds justifying the overriding of the exemptions found to apply. I am not satisfied that there are such grounds in this case. In particular, I have already considered the public interest in relation to the exemptions in clauses 13 and 16, and public interest considerations were also relevant in my consideration of the application of clause 7(1)(c)(ii).

Conclusion

93 Summarising my review, I agree with the exclusions made by the Department in its determination dated 10 January 2008, affirming a decision dated 6 December 2007 to release the Kearney Report with exemptions, subject to additional material referred to below being excluded for the reasons stated above:

(a) Page 3 – the whole of paragraph 3 should be excluded from release.

(b) Page 4 – last paragraph, the words after the words ‘authored by’ and before ‘is used’ should be excluded from release.

(c) Page 11 - the first sentence of paragraph 1 should also be excluded from release.

(d) Page 17 - the second sentence of paragraph 4 should also be excluded from release.

(e) Page 18 - that part of the last line of the page from after the word ‘services’ up to and including the end of the sentence on line 1 of page 19 (before the words ‘This Committee’) should be excluded from release.

(f) Page 19 - paragraph 2, line 6, from the words ‘At the same time’ to the end of the paragraph should be excluded from release.

94 I also note that there are some errors in the Department’s descriptions of the text to be excluded, which are at variance with those sections of text marked as being excluded. The errors identified are referred to in paragraph 91, subparagraphs (v), (vi) and (vii), above.

Decision

95 The decision under review is varied in accordance with these reasons.