Fulham v Director General, Department of Environment and Conservation

[2005] NSWADT 68

CITATION:	Fulham v Director General, Department of Environment and Conservation [2005] NSWADT 68
DIVISION:	General Division
PARTIES:	APPLICANT Michael Fulham RESPONDENT Director General, Department of Environment and Conservation
FILE NUMBER:	043084
HEARING DATES:	22/11/2004
SUBMISSIONS CLOSED:	11/22/2004
DATE OF DECISION:	03/31/2005
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	access to documents - business affairs - access to documents - personal affairs - Freedom of Information Act - access to documents - business affairs - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Bennett v Director General, National Parks and Wildlife Service [2000] NSWADT 136 Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111 Dawson v The Commissioner, Health Care Complaints Commission [1999] NSWADT 57 Eyes v Wyong Shire Council [1999] NSWADT 139 H v Commissioner of Police, New South Wales Police Service [2001] NSWADT 202 Re Williams and Registrar, Federal Court of Australia (1985) 8 ALD 219 Schlebaum (No 2) v Director General, Department of Community Services & Anor [2001] NSW ADT 214 Searle Australia Pty Limited v Public Interest Advocacy Centre (1992) 108 ALR 163 Stephanie Raethel v Director General, Department of Education and Training [1999] NSW ADT 108 Vincent Neary v State Rail Authority [1999] NSWADT 107 Young v Wicks (1986) 13 FCR 85
REPRESENTATION:	APPLICANT P Singleton, barrister RESPONDENT D Anderson, solicitor
ORDERS:	The Agency's decision to release the documents in dispute is affirmed

1 Dr Fulham is the Director of the Department of PET and Nuclear Medicine at the Royal Prince Alfred Hospital. He is a Fellow of the Royal Australasian College of Physicians and an Associate Professor in the Faculty of Medicine at the University of Sydney.

2 It seems that there is some disharmony within the nuclear medicine profession with some members of the profession seeking to restrict the class of persons able to use Positron Emission Tomography ("PET") technology to nuclear physicians. Dr Fulham concedes that he is not a nuclear physician.

3 Currently a practitioner may only bill Medicare for PET studies if he or she both is credentialed by an accreditation committee and is using a PET scanner with Medicare accreditation. Dr Fulham is the only non-nuclear physician accredited to do PET work, his accreditation having been based on recognition of his experience.

4 Dr Fulham asserts that some members of the profession have been lobbying for a restriction of PET accreditation to only nuclear medicine physicians with radiation licences, and that if this lobbying succeeded he would lose the right to bill Medicare for PET studies. This would potentially destroy his career in Australia as a PET practitioner.

5 In November 2003, the Department of Environment and Conservation (“the Agency”) received an application for documents under the Freedom of Information Act 1989 ("the FOI Act") from a party who is not a party to these proceedings. That application sought:

"... documents pertaining to the Radiation licensing of Dr Michael Fulham and his subsequent application to train other radiation workers.”

6 The Agency identified a number of documents that fell within the scope of the application. The documents were identified as follows:

Document 1 is an application by Dr Fulham for a licence.

Documents 2, 3, and 4 are documents relating to the workings of the Radiation Advisory Council ("RAC"). They contain recommendations for licence approvals including that for Dr Fulham.

Documents 5, 7, 9 and 12 are copies of licences issued to Dr Fulham by the Agency.

Document 6 is an extract of an Agency procedural manual

Document 8 is an application by Dr Fulham to vary his licence.

Document 10 contains information solely relating to other licence applicants. It had been erroneously included in the schedule.

Document 11 is an Agency pro forma letter issued to all radioactive substances licensees.

7 In accordance with Section 32 of the FOI Act the Agency consulted with Dr Fulham in relation to the request, but he was not told who had made the application.

8 Ultimately the Agency determined that documents 1 and 8 were totally exempted on the basis of Clause 7(1)(c) of Schedule 1 of the FOI Act (“Clause 7”), as they contain Dr Fulham's professional details and were exempted and it was decided that release could affect his business affairs. However, it determined that the remaining documents falling within the scope of the application should be released, in whole or part. Dr Fulham supports the exemption with respect to documents 1 and 8 however he objects to the release, in whole or part, of documents 2, 3, 4, 5, 7, 9 and 12. He lodged an application with the Tribunal requesting that the Agency's decision be reviewed. That application is the subject of these proceedings.

Issue to be determined by the Tribunal

9 The issue to be determined in these proceedings is whether or not the documents falling within the terms of the FOI application should be released.

10 Dr Fulham bases his objection on the exemptions in clauses 6 (the 'personal affairs' exemption) and 7 (the 'business affairs' exemption) of Schedule 1 to the FOI Act. He formed the view that the applicant for access is a most likely to be person who seeks to advance the position that PET work should be confined to nuclear physicians. He is therefore concerned that the purpose of the application for access is to use the documents in question in order to press that case.

11 The applicant for access to documents has declined to appear in these proceeding. Dr Fulham contends that this should lead to an adverse inference. He argues that the release of the documents in question will lead to or be an occasion for renewed efforts to discredit him or his right to have a licence or to practice in PET; significant distraction from his professional work and an unwarranted intrusion into his personal time and life; and the use of the documentation in such a way as would undermine, if not destroy, his practice and business. He is concerned that those seeking access to the documents are minded to use the documents in order to advance their cause, regardless of the contents of the document.

12 The Agency contends that Clause 6 of Schedule 1 of the FOI Act (“Clause 6”) cannot apply as the documents the subject of these proceedings do not contain information about Dr Fulham's personal affairs, rather the documents only contain information about his business affairs. However, it is submitted that even if the documents were held to relate to Dr Fulham's "personal affairs", those documents in no way contain matter or information which would, if released, involve the "unreasonable disclosure" of that information.

13 The Agency argues that Clause 7(1)(c) is the only valid consideration. The Agency further contends that the documents the subject of these proceedings do not concern Dr Fulham's business, professional, commercial or financial affairs. However, it is submitted that even if the documents were held to concern those affairs, the documents could not reasonably be expected, if released, to have an unreasonable adverse effect on them. This is because the documents, in total, constitute evidence that Dr Fulham is properly licensed to conduct his current business activities. The release of the documents, which establish compliance and due process, could not possibly have an adverse effect, let alone an unreasonable adverse effect on Dr Fulham's business affairs.

14 The Agency further contends that the overriding public interest in this case is to assure the public at large, and patients in particular, that medical practitioners who use radiation equipment for diagnostic and therapeutic purposes are properly licensed to do so because misuse of radiation equipment is potentially harmful to people and the environment. As such, it is important to inform the public that practitioners such as Dr Fulham are properly licensed.

Findings

15 The documents that the Agency has identified as falling within the scope of the FOI application fall into four broad categories as follows:

i. Licence applications lodged by Dr Fulham;

ii. Copies of licences issued by the Agency to Dr Fulham;

iii. Copies of Minutes of the Radiation Advisory Council's decisions to approve licenses to Dr Fulham; and

iv. General licensing information.

16 I am satisfied that Document 10 contains information solely relating to other licence applicants and that it had been erroneously included in the schedule of documents that the Agency has identified. It therefore need not be considered further as it falls outside the scope of the application.

The 'personal affairs' exemption

17 For present purposes, a document will only be exempt under clause 6(1) of Schedule 1 of the FOI Act if it contains matter that concerns Dr Fulham’s personal affairs; and if the disclosure of the document would be unreasonable. The term "personal affairs" is not defined in the FOI Act, although it’s meaning has been considered in several matters before this Tribunal and in other forums. Those decisions are instructive in considering what constitutes "personal affairs".

18 In Dawson v The Commissioner, Health Care Complaints Commission [1999] NSWADT 57 the Tribunal’s Deputy President observed at paragraph 33 of her reasons:

“Prima facie there is nothing “personal” about someone’s name being on a list of professional psychiatrists held by a public agency. It does not matter that these practitioners were not public servants or that they could remove their names at any time. What matters is the nature of the information interpreted in its context. The information in question does not relate to their family or personal relationships, their financial or health status or any other matter personal to them. It relates to their identity and competence as a professional person. For these reasons the information does not concern their personal affairs.”

19 The Deputy President relied on views expressed by Beaumont J in Re Williams and Registrar, Federal Court of Australia (1985) 8 ALD 219 at 222. In considering the expression "personal affairs" in the context of the Commonwealth FOI Act his Honour stated:

"... information as to the work capacity and performance of a person is not private in that sense. It is something observed by others and discussed by those in that work. Ordinarily, information as to a person’s vocational competence is not something which is treated as confidential. Prima Facie at least, it is not part of his personal affairs”.

20 In Young v Wicks (1986) 13 FCR 85 Beaumont J was required to ascertain whether documents about the applicant's activities as an aircraft pilot were exempt documents under the "personal affairs" exemption in the Commonwealth FOI Act. His Honour stated at 89:

“The applicant, it is true, is the subject of the documentation but the documents are concerned exclusively with the public regulation of air navigation. The result is that the documents have a public, rather than a private, character.”

21 I agree with these views. An application of these principles leads me to the view that documents 1 and 8 contain information concerning Dr Fulham’s personal affairs. I am also of the view that disclosure of those documents would be unreasonable in the circumstances and they are therefore exempt from release pursuant to Clause 6.

22 It is my view that none of the other documents in issue relate to Dr Fulham’s personal affairs.

23 Documents 5, 7, 9 and 12 are licences issued to Dr Fulham. It is clear from a consideration of the contents of each of those documents that they could not be said to contain information about Dr Fulham's personal affairs. These documents should therefore not be exempted from release pursuant to Clause 6.

24 Documents 2, 3, and 4 are copies of minutes of the RAC's decisions to approve licences to Dr Fulham. As was the case of the applicant in Young v Wicks, it is true to say that Dr Fulham is in part the subject of the documents. However I agree with the Agency’s assessment that the documents are concerned with the RAC's decision-making process and cannot be categorised as relating to Dr Fulham's personal affairs. These documents should therefore not be exempted from release pursuant to Clause 6.

25 Documents 6 and 11 are documents of a general nature. They contain no information specific to Dr Fulham and in no way relate to Dr Fulham's personal affairs. These documents should therefore not be exempted from release pursuant to Clause 6.

26 Having formed this view it is unnecessary for me to consider whether the disclosure of the documents in question would be unreasonable.

The 'business affairs' exemption

27 Dr Fulham contends that the documents should be exempt from release under clause 7(1)(c). For present purposes, a document will only be exempt under clause 7(1)(c) if all limbs of cl. 7(1)(c) have to be made out. That is, that disclosure of a document in issue would disclose information concerning Dr Fulham’s business, professional, commercial or financial affairs and the disclosure could reasonably be expected to have an unreasonable adverse effect on those affairs.

28 I have been referred to a number of authorities that provide examples of what has and has not been held to amount to business, professional, commercial or financial affairs. In H v Commissioner of Police, New South Wales Police Service [2001] NSWADT 202 Judicial Member Robinson found that a memo from Optus to the NSW Police relating an individual who held an account with Optus might relevantly concern the business affairs of Optus. In Vincent Neary v State Rail Authority [1999] NSWADT 107 the Tribunal’s President found that invoices as to expenditure on services provided by the Crown Solicitor's Office relating to the hours of services rendered and the hourly rate of those services fell within the clause 7(1)(c) exemption. In Schlebaum (No 2) v Director General, Department of Community Services & Anor [2001] NSW ADT 214 the Tribunal’s Deputy President found that three file notes and a memorandum held by the Department of Community Services recording the concerns of a child psychiatrist concerned the professional affairs of the psychiatrist.

29 Those decisions are instructive in considering this issue. I agree with the Agency that these decisions, and a number of other decisions to which I have been referred, suggest that 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. However, I do not agree with the Agency’s view that none of the relevant documents concern Dr Fulham’s business, professional, commercial or financial affairs.

30 Documents 6 and 11 are documents of a general nature and in my view contain no information concerning Dr Fulham's business, professional or commercial affairs. These documents should therefore not be exempted from release pursuant to clause 7.

31 In my view the remaining documents in issue, concern Dr Fulham’s professional affairs. They each concern his identity as a professional person. I do not agree with the Agency’s comparison between these licensing matters and those of a motor vehicle driver’s licence. Dr Fulham’s professional life has been dependent on the issue of these licences. The fact that the documents also relate to the Agency and the RAC's internal working processes or decisions does not alter that fact.

32 The key question is therefore whether disclosure of the contents of the documents could reasonably be expected to have an unreasonable adverse effect on Dr Fulham’s professional affairs. A document will only be exempt under this limb of clause 7(1)(c) if the effect of the disclosure of the document in question is adverse, the adverse effect is unreasonable and the adverse effect could reasonably be expected to occur.

33 The issue of what is required to be satisfied by sub-paragraph (ii) of clause 7 was considered in Neary. At paragraph 35 the Tribunal’s President said:

“There must be more than a mere risk. While the key word used in the relevant provision - ‘expect’ - carries a firmer connotation than words such as ‘anticipates’, it is not necessary that the level of risk be such that it be assessed as more probable than not. Nor is it necessary for the administrator to apply a balance of probabilities calculus similar to that used to set the burden of proof in litigation. All relevant factors, including public interest considerations, should be taken into account. The extent and nature of the effect will be relevant, and often decisive. It is necessary to assess what is reasonable in the circumstances.”

34 That approach was also adopted in Stephanie Raethel v Director General, Department of Education and Training [1999] NSW ADT 108 at [53] and in Bennett v Director General, National Parks and Wildlife Service [2000] NSWADT 136 at [41].

35 The term "unreasonable adverse effect" was considered in Eyes v Wyong Shire Council [1999] NSWADT 139. In that case the Tribunal’s Deputy President said at paragraph 41 of her reasons:

“being ‘placed at a disadvantage’ does not amount to proof of an ‘ unreasonable adverse effect.’”

36 Whether the effect of the disclosure is unreasonable cannot be assessed without taking into account all relevant factors: Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111; Searle Australia Pty Limited v Public Interest Advocacy Centre (1992) 108 ALR 163.

37 In this mater the nature and contents of the relevant documents is uncontroversial. For the documents to be exempted there has to be a prejudice of such a degree that the documents could reasonably be expected to have an unreasonable adverse effect on Dr Fulham’s affairs. The adverse effect to which Dr Fulham points is renewed efforts to discredit him or his right to hold a licence or to practice in PET; distraction from his work and intrusion into his personal life; and the use of the documents in a campaign in such a way as would undermine if not destroy his practice and business.

38 Dr Fulham has adduced evidence setting out what he perceives to be the consequences if disclosure takes place. However, he has only speculated that his affairs might be affected by the misuse of information regarding his licence. There is nothing in the documents themselves that could adversely affect those affairs. In my view, the risk to which Dr Fulham has referred exists regardless of whether or not the documents are released. The release of the information contained in the documents would not increase that risk.

39 Consequently, I am not satisfied that the level of risk can be assessed as more than a mere risk. After taking account of all the relevant factors, I am not satisfied that the release of the documents could reasonably be expected to have an unreasonable adverse effect on Dr Fulham’s affairs.

40 Any information can be misrepresented, and if it is the appropriate remedy lies elsewhere.

Order

The Agency's decision to release the documents in dispute is affirmed.