GBV v Western Sydney Local Health District

[2024] NSWCATAD 110

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GBV v Western Sydney Local Health District [2024] NSWCATAD 110

Hearing dates:

22 March 2024

Date of orders:

24 April 2024

Decision date:

24 April 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Sullivan, Senior Member

Decision:

(1) The applicant is granted an extension of time under s 101(4) of the Government Information (Public Access) Act 2009 to file the application to the Tribunal.

(2) To the extent the application requests the Tribunal to “order WCOH to start [child’s] orthodontic treatment immediately”, the application is dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013.

(3)   The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW – access to government information – extension of time to file application –jurisdiction of the Tribunal - whether information is held by the agency – “government information”

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Government Information (Public Access) Act 2009

Health Services Act 1997

State Records Act 1998

Cases Cited:

Amos v Central Coast Council [2018] NSWCATAD 101

Collection Point Pty Ltd v Federal Commissioner of Taxation (2013) 212 FCR 184; [2013] FCAFC 67

Commissioner of Police v Danis [2017] NSWCATAP 7

Crewdson v Central Sydney Area Health Service [2002] NSWCA 345

Davison v NSW Department of Education and Training [2013] NSWADT 25

Kitson v Manly City Council [2015] NSWCATAD 102

Redfern Legal Centre v Commissioner of Police [2021] NSWCATAD 288

Shevetsova v University of New England [2015] NSWCATAD 49

Turner v Commissioner of Police (NSW) [2014] NSWCATAP 4

Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

YG and GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

None

Category:

Principal judgment

Parties:

GBV (Applicant)

Western Sydney Local Health District (Respondent)

Representation:

Applicant (self-represented)

Crown Solicitor (Respondent)

File Number(s):

2023/00355864

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 publication or broadcast of the name of the applicant or of his child is prohibited.

REASONS FOR DECISION

Background

1. Orders were made by the Tribunal on 11 December 2023 and 20 February 2024 under s 64(1) of the Civil and Administrative Tribunal Act 2013 (CAT Act) prohibiting disclosure of the true name of the applicant and his child by publication or broadcast. The pseudonym ‘GBV’ was assigned to the applicant.

2. On 28 January 2023 GBV sought access under the Government Information (Public Access) Act 2009 (GIPA Act) for information regarding his child’s proposed orthodontic bracing treatment by Westmead Centre for Oral Health (WCOH).

3. WCOH is a business unit of the respondent, Western Sydney Local Health District (WSLHD).

4. The respondent sent a Notice of Decision to GBV on 18 July 2023 (Notice of Decision). It provided answers to certain questions, provided some additional information not specifically requested, and otherwise determined it did not hold the information requested.

5. On 8 November 2023, GBV applied to the Tribunal for administrative review. As part of the Grounds of Review, he requested that the Tribunal “review and evaluate GIPA and WCOH responses and order WCOH to start [child’s] orthodontic treatment immediately”.

Issues

6. The issues in this review are:

1. Whether the Tribunal will grant an extension of time for GBV to file his application;

2. Whether the Tribunal has jurisdiction to “order WCOH to start [child’s] orthodontic treatment immediately”; and

3. Whether the respondent holds government information requested by GBV but not produced.

Material before the Tribunal

7. The parties filed submissions and documents in this matter and made oral submissions at the hearing.

1. GBV filed his application to the Tribunal on 8 November 2023, accompanied by a 5 page document (which he confirmed were his written submissions) and attached correspondence/documents
   (Exh A-1).

2. The respondent filed:

1. a statement of Ms Dhana Profilio dated 5 March 2024 together with Attachments A to D (Exh R-1);

2. submissions dated 5 March 2024 (Exh R-2;) and

3. a letter and accompanying submissions dated 27 November 2023 in support of a request for dismissal of the matter, together with Annexures A to F (Exh R-3).

Legislation

8. The object of the GIPA Act is to open government information to the public. The GIPA Act provides a mechanism for the public to request such information from an “agency”.

9. A person who applies to an agency for government information has a legally enforceable right to be provided with access to that information unless there is an overriding public interest against disclosure of the information: s 9. No issue of public interest arises in this case.

10. “Government information” means “information contained in a record held by an agency”: s 4. “Record” is defined in Sch 4 cl 10(1) as “any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means”.

11. Section 53 sets out the search obligations of an agency in responding to an access request for government information. Relevantly:

1. an agency’s obligation to provide access is limited to information held by the agency at the time the application is received – s 53(1);

2. the agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency at the time the application was received, with searches to be conducted using the most efficient means reasonably available to the agency – s 53(2);

3. the obligation to undertake reasonable searches extends to searches using any resources reasonably available to the agency, including resources that facilitate the retrieval of information stored electronically – s 53(3);

4. an agency is not required to search for information in an electronic backup system, unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred or otherwise dealt with in contravention of the State Records Act 1998 or contrary to the agency’s established records management procedures – s 53(4); and

5. an agency is not required to undertake a search for information that would require an unreasonable and substantial diversion of resources – s 53(5).

12. Section 58 of the GIPA Act sets out how access applications may be decided by agencies. Relevantly, an agency may decide an access application by:

1. deciding to provide access to the information (s 58(1)); or

2. deciding that the information is not held by the agency (s 58(1)(b)).

13. An agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information: s 75(1). However, it has no obligation to make a new record of information held by the agency; update or verify the accuracy of information; or “create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency”: s 75(2).

14. Section 76 authorises an agency to release information to an applicant, in addition to what has been requested by an access application, unless there is an overriding public interest against disclosure. As with s 75, there is no obligation for the agency to do so.

Administrative review jurisdiction of the Tribunal

15. The Tribunal’s administrative review jurisdiction to review decisions of an agency is conferred (and limited) by provisions of the GIPA Act, the CAT Act and the Administrative Decisions Review Act 1997 (ADR Act).

16. Under s 55 of the ADR Act, the Tribunal only has jurisdiction to review “an administratively reviewable decision”. An administratively reviewable decision is defined in s 7 of the ADR Act to be “a decision of an administrator over which the tribunal has administrative review jurisdiction”. Section 9 of the ADR Act provides that the Tribunal has administrative review jurisdiction over a decision of an administrator “if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision made by the administrator:

1. in the exercise of functions conferred or imposed by or under the legislation, or

2. in the exercise of any other functions of the administrator identified by the legislation.”

17. Relevantly, the GIPA Act is the “enabling legislation” for the purpose of s 9 of the ADR Act. And under the GIPA Act:

1. a person aggrieved by a “reviewable decision” may seek administrative review of that decision by the Tribunal: s 100;

2. a “reviewable decision” is defined in s 80. In the circumstances of these proceedings:

1. a decision by the agency to provide access or refuse to provide access to information requested is a reviewable decision: s 80(d); and

2. a decision that government information is not held by the agency is a reviewable decision: s 80(e).

18. The Tribunal may dismiss at any stage any proceedings before it if it considers that the proceedings are “frivolous or vexatious or otherwise misconceived or lacking in substance”: s 55(1)(b) of the CAT Act.

19. The Tribunal’s function on a review under s 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any written or unwritten law as though it were the administrator: Commissioner of Police v Danis [2017] NSWCATAP 7 at [31]. The Tribunal may affirm, vary, or set aside the decision made by the agency and make a substitute decision, or set aside the decision and remit it to the agency for reconsideration in accordance with any directions or recommendations of the Tribunal. The time at which the determination is to be made as to the correct and preferable decision is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

20. The burden of proof falls on the agency to establish that its decision is justified: s 105 of the GIPA Act.

Time for filing applications

21. Prescribed time limits apply under the GIPA Act for filing an application to the Tribunal unless an extension is granted by the Tribunal:

1. The application is required to be filed with the Tribunal “within 40 working days after notice of the decision to which the review relates is given to the applicant”: s 101(1).

2. The Tribunal may extend the time for making the application where the Tribunal “is of the opinion that the person has provided a reasonable excuse for the delay”: s 101(4).

3. An application for an extension of time is to be made by the applicant in writing, unless the Tribunal disposes with that requirement in a particular case: s 101(5).

Evidence of the Applicant

22. The evidence presented by GBV sets out a long history regarding his child’s medical and dental issues and his concerns regarding a delay in receiving orthodontic bracing treatment. For the reasons noted below in my consideration, much of the evidence is not relevant to the issues I am required to determine. However:

1. some of the evidence refers to similar questions asked in the GIPA Application (and prior responses given by the respondent);

2. the Notice of Decision refers to some of this evidence; and

3. as supplemented by GBV orally at the hearing, it provides background to the application to the Tribunal (and the relief sought by GBV), and reasons for the delay in filing that application.

23. His child, a minor now in his late teens, has a number of complex dental conditions and requires orthodontic bracing treatment. The child has received general oral care from WCOH since 2013 and underwent oral surgery there in past years.

24. The child has many other complex medical conditions, and has received treatment and management at The Children’s Hospital at Westmead (Hospital) since birth. This included a diagnosis of osteoporosis after two spinal fractures in 2016 and 2018. The Hospital advised GBV that his child should not have any significant dental procedures performed until treatment for that condition had been completed (A-1, p 2/81).

25. Following completion of that treatment in July 2022, GBV attended his child’s orthodontic appointment at WCOH on 3 August 2022. GBV says he was expecting his child to be scheduled for bracing treatment at that appointment, but was told there were lengthy wait times and no confirmed date for that treatment. He says he was told that a person may be placed on the waiting list for up to 10 years. A letter from the WCOH orthodontist (copied to GBV) dated 4 August 2022 (A-1 p 15/81) stated that GBV had been advised at the appointment on 3 August 2022 that the child was eligible for orthodontic treatment at Westmead, however “due to our extensive wait times he would like to be assessed privately”.

26. GBV says he had never been told about a waiting list or the length of delays for his child’s bracing treatment before August 2022, in writing or otherwise. He told the Tribunal it came as a “complete shock”. He pointed out that none of the documents presented by him to the Tribunal prior to the letter of 4 August 2022 (including handwritten notes on 12 June 2018 by a WCOH orthodontist regarding an appointment that day) referred to a waiting list, or any resulting delay.

27. Following some further medical appointments attended by the child at the Hospital, two “clearance” letters (copied to GBV) were issued by the child’s paediatric endocrinologist (on 1 September 2022) and the paediatric cardiologist (on 2 September 2022) to the child’s general practitioner, which included the following statements:

… as [child] was being treated with [drugs] for his osteoporosis, his orthodontic treatment had previously been put on hold. Unfortunately, the waiting time for braces at Westmead Dental Service is eight years. I would be grateful if the team could take this into consideration and assist with providing earlier treatment. [extract from 1 September 2022 letter]

No special precautions are required from a cardiac point of view. In particular, [child] does not require endocarditic prophylaxis prior to dental work or other surgery. [extract from 2 September 2022 letter]

28. On 16 March 2023, GBV and his wife wrote to the Head of Department (HOD) at WCOH requesting expedition of the child’s bracing treatment (A1, p 2/81). The letter outlined the child’s medical history, both at WCOH and the Hospital. A schedule to the letter listed the child’s dental appointments since 23 April 2013. Past correspondence including the “clearance letters” noted above was attached.

29. On 21 March 2023, WCOH responded by email.

…

Please note Department of Orthodontics is a Tertiary Department where we get referrals for very complex and medically compromised patients from all over NSW.

[Child] has been placed on the waiting list for the treatment with our Orthodontics Department already.

We have to be fair to every patients (sic) on our waiting list, since they have similar complex dental history, and therefore we will not be able to prioritise [child’s] treatment…

30. There followed a series of communications between GBV and WCOH:

1. Letter from GBV dated 11 April 2023 to the HOD and titled “Notice for Information”, which requested:

Since when [child] put on waitlist for the bracing treatment? What is his waitlist number? How long it will take to get the appointment for the bracing treatment? How many patients you attend on monthly or yearly basis for the bracing treatment? What my next escalation path within WCOH or external body?

2. Email response from WCOH dated 28 April 2023, which advised (in part, my emphasis):

[Child] has been placed on the waiting list for Orthodontic treatment in May 2017.

All patient (sic) being treated in public system have complex treatment needs.

Waiting list entries for Orthodontic treatment are prioritised according to a very strict treatments needs criteria. [Child] has been prioritised accordingly, and due to the complexity of cases treated at Westmead Centre for Oral Health it is impossible to predict the length of time each case will take.

GBV told the Tribunal that no supporting documents were provided to evidence this date of “May 2017”.

3. Letter from GBV to the HOD dated 23 May 2023, titled “Notice for Information (Second Reminder)” requesting answers to the same questions previously asked, and stating:

Reference is given to an email response… dated 28 April 2023 stating that [child] has been placed on the waiting list for Orthodontic treatment in May 2017. [Child] is a patient to the WCOH since 2011 for his complex dental issues which is more than 12 years to date. And now [child] is overdue for [child’s] treatment in WCOH, its unfair that [child] is again put on long waiting list.

…

We are looking forward to hearing from you soon as [child’s] health condition is deterioriating everyday.

4. Email response from WCOH 26 May 2023, stating (in part):

[Child] has been treated in Paediatric Dentistry at [WCOH] since July 2013 for [child’s] decayed teeth. [Child] has been given comprehensive treatment under general anaesthesia twice once in 2014 and then again in 2016, following this [child] has been kept under regular recall.

[Child] was first accessed in our Orthodontic Department on 22/05/2017 and that is the date [child] has been placed on the waiting list for treatment (patient gets placed on the treatment waiting list after consultation with a specialist).

What is [child’s] number?

[Child’s] number is 44 on the waiting list for the orthodontic treatment list.

How long will it take to get the bracing treatment?

As informed previously, waiting list entries for Orthodontic treatment are prioritised according to a very strict treatment needs criteria. [Child] has been prioritised accordingly by a specialist. It is impossible to predict the length of time each case will take due to the complexity of the cases being treated at [WCOH]. However approximate waiting time for Orthodontic treatment is 10 years from the date patient is placed on the waiting list – please note this is only approximate time frame which can change either way it depends on the availability of the clinician.

5. Letter from GBV to the HOD dated 28 June 2023, titled “Notice for Information (Final Reminder)”. This letter referred to the 26 May 2023 response, said the information provided was “inconsistent and incorrect”, and requested the child’s original waitlist number “to escalate this matter further”. (There was no response to this letter before the Tribunal.)

The GIPA Application

31. On the same day (28 June 2023), GBV sent the GIPA Application to the respondent requesting the following information:

My [child…] is a patient to the Westmead Centre for Oral Health (WCOH) since 2011 for his complex dental issues for than 12 years to date. And now [child] is overdue for [child’s] bracing treatment in WCOH. Hospital is saying there is a long wait list and not confirming the date for [child’s] bracing treatment. Could you please provide the following details from [child’s] record.

.   When was [child] put on wait list?

.    What was [child’s] original and current waitlist number?

.    How long will it take to get the appointment for the bracing treatment?

.    How many patients WCOH attend on monthly or yearly basis for the bracing treatment to determine [child’s] appointment for the treatment?

32. At item 4 (Form of Access), in response to the question “How do you wish to access the information”, GBV answered “yes” to all options, being “Inspect the documents”, “A copy of the documents” and “Access in another way (please specify)” – although no specification was completed.

33. The respondent acknowledged the application as a valid access application on 29 June 2023.

The Notice of Decision

34. On 18 July 2023, the respondent issued the Notice of Decision to GBV. The Notice of Decision responded to the requests as follows:

1. In response to the question “When was [child] put on the waitlist”:

Released in full.

[Child] was added to the wait list on 22 May 2017.

2. In response to the question “What was [child’s] original and current waitlist number?”

1. For the “original” waitlist number:

Not held.

[Child’s] original number on the waitlist is not known. This information is not held by WSLHD.

2. For the “current” waitlist number:

Released in full.

As at 7 July 2023 [child] is currently number 44 on the waitlist.

Refer to point 2 (sic) for more information about wait lists.

3. In response to the question “How long will it take to get the appointment for the bracing treatment?”:

Not known.

This information is not held by WSLHD. It will depend on the availability of the specialists who perform this procedure and the complexity of the patients who are currently being treated and the patients on the wait list before [child].

4. In response to the question “How many patients WCOH attend on monthly or yearly basis for the bracing treatment to determine [child’s] appointment for the treatment?”

Not held.

Additional information will be provided.

The number of patients who attend WCOH for bracing treatment is not a discrete figure which is held by WSLHD. This is because of the nature of bracing treatment which can take up to six years and requires up to 30 treatments per patient.

The information that is held by WSLHD is the total number of bracing treatments performed in a year. In the 2022-2023 financial year 117 [bracing] treatments were performed by the Westmead Centre for Oral Health.

NB: this is not 117 patients.

Further correspondence

35. On 18 July 2023, GBV filed a complaint letter to the Oral Health Network Office’s Complaint Department. He says this was done following the recommendation of WCOH. A meeting was scheduled and held on 31 August 2023. GBV says this meeting was held by WCOH primarily to provide him and his wife with a chance to voice their concerns and for WCOH to inform them about how the service is administered, and patients are assigned to treatment.

36. On 4 October 2023, WCOH sent a written letter regarding this meeting. GBV told the Tribunal that his genuine worries about misleading communication on his child’s waiting listed situation and the request made in the complaint letter were not addressed by WCOH at the meeting or in this letter. GBV says that the request in the “clearance letter” of 1 September 2022 for an earlier orthodontic treatment was “overruled” during this meeting.

The Application to the Tribunal

37. GBV filed the application to the Tribunal on 8 November 2023. On the application form he acknowledged the application was lodged out of time, and stated the reason for the late lodgement as follows:

The GIPA response was escalated to WCOH and in person meeting was arranged …. on 31^st August 2023. WCOH submitted response on 4 OCT 2023. The response was not satisfactory to make this application then.

38. At the hearing, GBV reiterated his hope that the 31 August 2023 meeting (held in the month following the Notice of Decision) would address and resolve his concerns, but neither the meeting nor the letter received by him from the respondent over a month later (on 4 October 2023) met his expectations.

39. He said that he then made calls to the Tribunal and attended the registry in Parramatta. He said the registry provided information to him on how to prepare and file the application for review. He said that he needed time to prepare and file a submission, which he had understood was required to be lodged when the application was filed.

40. When filed with the Tribunal on 8 November 2023, the application was accompanied by 81 pages of documentation. This included the Notice of Decision, the 5 page document prepared by the applicant providing details of the request to the Tribunal, and copies of correspondence and other documents referred to in that 5 page document which is referenced above.

41. Under the section “Grounds of Review” on the application form, GBV wrote:

There is no evidence of [child] put on wait list on 22 May 2017 for his orthodontic treatment by Westmead Centre for Oral Health. The GIPA response found no record of [child’s] original wait list.

[Child’s parents] seeking NCAT to review and evaluate GIPA and WCOH responses and order WCOH to start [child’s] orthodontic treatment immediately.

42. GBV told the Tribunal at the hearing that he believed that his child was put on the waitlist around 26 August 2022, because by the time the application was filed with the Tribunal he had not received any conclusive evidence in their system supporting the date of 22 May 2017.

Evidence of the Respondent

43. The respondent relied on a statement of Ms Dhana Profilio (Ms Profilio) affirmed on 5 March 2024. The statement included four attachments.

44. Ms Profilio also appeared in person before the Tribunal. She swore that her statement was true and correct. Relevant facts from her statement, as supplemented by her oral evidence, are set out below.

45. There were no relevant objections to the evidence presented by Ms Profilio.

WCOH

46. WCOH is a business unit of WSLHD. It provides general dental services to the eligible population of Western Sydney and specialist dental services to residents of NSW.

Role of Ms Profilio

47. Ms Profilio is the Privacy and Information Compliance Manager of the Corporate Records Unit of WSLHD. She assisted WCOH in responding to the various requests for information made by GBV since March 2023, and had oversight of the processing of his application under the GIPA Act for information held by WSLHD which resulted in the issue of the Notice of Decision.

The Orthodontic Waitlist

48. WCOH uses the program Titanium Solutions for the maintenance of waitlists for treatments.

49. Patients are added to the waitlist for treatment when they are deemed eligible by the specialist.

50. For each entry on a waitlist, certain information may be recorded, including the patient’s name, the date on which they were added to the waitlist and details of any other waitlists they are on.

51. Attachment C to Mr Profilio’s statement was a screen-shot of the child’s individual entry on the Orthodontic (Specialist Treatment) waitlist. That screen-shot included the following information:

Waitlist:    Specialist Treatment

Subclass 1:   Orthodontics

Subclass 2:   Z

Patient:   [child’s name]

Status:      Waiting

Entry Status:   Routine

Exit Status:   Routine

Listed:      22/05/2017

Assigned:   22/05/2017

Position in List:   0

Notes:      code z – checked/approved by [Doctor’s names]

52. Using Titanium Solutions, it is possible to generate a report which lists each of the individual patients on a waitlist, ordered by the date on which they were added to the waitlist, as at the date of the report. Attachment D to Ms Profilio’s statement was an example of such a report; it was an excel spreadsheet titled “Orthodontic Waitlist as 23 November 2023 Westmead Centre for Oral Health”. The waitlist was recorded as “Ortho” and “Specialist Treatment” and the “sub-class” as “Orthodontics”. There was a column for “Waitlist Date Listed” and “Assigned Date”. The patients’ personal information was redacted, except for GBV’s child. The row entry for GBV’s child was numbered 26 in the first column.

53. Ms Profilio explained that the waitlist is a dynamic database that is updated as patients receive treatment and new patients are added. For example, when the patient who is in the first position on the waitlist commences treatment, the patient who was in position 2 moves into position 1, and all other patients also move up a position.

54. A patient can move up or down a waitlist. A patient could move up because a patient above them has been given their first appointment. A patient could move down because a patient above them, who has been given their first appointment, was unable to attend that appointment, and so was returned to the waitlist.

55. The “position” of a person on the waitlist, relative to other patients, is not a field that is recorded on the individual waitlist entry, or otherwise in the database.

56. Ms Profilio says that, following her enquiries, she was satisfied that the information requested in the GIPA Application regarding the child’s original position on the orthodontic waitlist is not held:

1. As noted above, the waitlist is maintained as a dynamic database within Titanum Solutions.

2. She had conferred with the Dental Information Officer from WCOH and satisfied herself that the WCOH would not hold a record that showed the number of patients that were on the waitlist on the specific date that the applicant’s child was added (22 May 2017).

3. It is not part of WCOH’s standard reporting functions or practices to maintain static “snapshots” of the state of the Orthodontic waiting list at particular points in time.

4. For patients with a list date prior to 19 June 2019 (being the date of a data migration), it is not possible to generate a retrospective report which shows what the position of the patient was on the waitlist at some point in time. Accordingly, it is not possible to now create a record which would show a patient’s original waitlist position.

5. She was advised by the Dental Information Officer that it was possible that the information regarding the original waitlist number might be held in an archive database. However, it would be necessary to recruit external technical resources to interrogate this date, and there was no guarantee that the information will be there.

6. She was not aware of any other searches that could be undertaken to find the requested information.

Length of time to get an appointment for bracing treatment

57. Ms Profilio said that there is no record held that gives a time-frame for when the child will be given an appointment for bracing treatment. At this time, WSLHD does not know when that will occur. The timing will depend on a variety of factors, including the length of further care required by patients who have already started treatment, or who are ahead of the child. The timing of a patient’s treatment may depend on factors other than their position on a wait list. For example, if a patient is schedule for surgery and requires orthodontic treatment before the surgery, it may be necessary to prioritise that patient’s treatment. The length of time of each patient’s treatment in turn depends on various factors, including complexity of the case, patient compliance and regular attendance. The combination of these factors varies between patients because they are unique, and treatment is individualised.

58. She noted that GBV was provided with general information about average periods of treatment and review for fixed orthodontic (braces) treatment and the number of bracing treatments performed in a year. However, she cautioned that even with this information it is not possible to provide any reliable indication as to when the child will be given an appointment, due to the variables identified above.

Number of patients attending WCOH on a monthly or yearly basis for bracing treatment to determine [child’s] appointment

59. Ms Profilio said that WCOH does not produce, as part of its standard reporting functions, reports which record the number of patients attending for bracing treatment on a monthly or annual basis. She conferred with the Dental Information Officer to gain satisfaction that there were no existing records or reports that contain this information.

60. She said that WCOH does maintain records of the number of bracing treatments it provides on an annual basis, and provided the most recent (2022/23) figures to the applicant as part of its response to his application. However, these figures do not reflect the number of patients receiving treatment over that period. That is because of the nature of bracing treatment which can take up to six years and require up to 30 treatments for an individual patient.

61. In order to produce a record which reflects the number of patients treated for orthodontic bracing in a specified period, she said it would be necessary to write and prepare a new code to facilitate the manual extraction of this information from WCOH’s database. It is not possible to produce such a report using any of the existing reporting functions available to WCOH.

Oral evidence of Ms Profilio

62. Ms Profilio gave oral evidence in clarification of a number of points.

63. In respect of Attachment D to her statement, she said:

1. the information in all columns other than the first column comprised data extracted from the Titanium Solutions database into a spreadsheet;

2. she had inserted a new first column to assign a number to each patient on the waitlist. The column headed “Waitlist date listed” was the date that the patient was placed on the waiting list. This column was listed in ascending date order and therefore determined the numbering of the first column to generate the waitlist number for the child; and

3. the column headed “Assigned Date” was the date the record was last updated.

64. She confirmed to the Tribunal that no other responsive information to GBV’s requests had come to her attention subsequent to the date of her statement.

Issue 1 - Extension of Time

65. The respondent gave the Notice of Decision to GBV on 18 July 2023. GBV filed the application for review with the Tribunal on 8 November 2023, which was 81 working days after receipt. This is outside the 40 working day time prescribed by s 101(1) of the GIPA Act.

66. As permitted by s 101(5), I dispense with the requirement for GBV to make a written application for an extension of time. This was not opposed by the respondent.

67. I must therefore consider whether GBV has provided a reasonable excuse for the delay: s 101(4).

68. Having regard to the facts set out above, I am satisfied that GBV has provided a reasonable excuse for the delay. Following the issue of the Notice of Decision, he sought to resolve his concerns through the meeting held on 31 August 2023. When that failed, he sought assistance from the Tribunal to understand the process to prepare and file the application. GBV prepared and provided documentary evidence and submissions when the application was filed; although not required at this point in time, it was in accordance with his understanding. Having read through these documents, I accept this would have taken time for him to prepare and compile.

69. In reaching this decision, I have had no regard to the merits of the claim, any prejudice to either party or the public interest, as these are not relevant: Turner v Commissioner of Police (NSW) [2014] NSWCATAP 4 at [18].

Issue 2 – The relief sought by the applicant (Jurisdiction of the Tribunal)

70. GBV, as part of the grounds in his application, asks the Tribunal to “order WCOH to commence [his child’s] orthodontic treatment immediately”.

Applicant’s Submissions

71. GBV’s submissions regarding the jurisdiction of the Tribunal stated “the Applicant submits that NCAT has jurisdiction to have this claim”. No further legal submissions were made regarding the relief sought.

Respondent’s Submissions

72. The respondent submitted that to the extent that the application for review sought this relief, it was misconceived and should be dismissed pursuant to s 55(1)(b) of the CAT Act.

73. In summary, the respondent submitted that the outcome GBV was seeking:

1. was extraneous to the scope of the GIPA Application he submitted to the respondent;

2. was unable to be reviewed by the Tribunal because it did not form part of the GIPA application; and

3. therefore the Tribunal did not have jurisdiction to direct WSLHD to commence treatment on any patient.

74. The respondent cited Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 (Crewdson) at [24], and cases subsequently citing that case, in support of its submission that the GIPA Act cannot be used as an avenue for obtaining the more substantive relief sought by GBV.

Consideration

75. There is no jurisdiction conferred on the Tribunal to direct the respondent (or WCOH) “to start [child’s] orthodontic treatment immediately” for the following reasons:

1. The administrative review jurisdiction is specifically conferred (and limited) by the legislative provisions set out above (at paragraphs 15 ff).

2. This request made to the Tribunal by GBV did not form part of his GIPA Application. The Tribunal’s jurisdiction is limited to a review of the respondent’s Notice of Decision in respect of the application made to it, and only then in respect of identified “reviewable decisions”.

3. It is established that an applicant cannot, after the application has been dealt with by the agency, widen the scope of the process: see OD v Department of Education and Training (GD) [2005] NSWADTAP 74 at [13] to [14].

4. I accept the submissions of the respondent that proceedings under the GIPA Act should not be used “as a vehicle for the collateral review of the merits or validity of official action”. Crewdson at [24]; Raven v University of Sydney [2015] NSWCATAD 104 at [45]. Nor can these proceedings be an avenue for obtaining the more substantive relief that GBV now seeks regarding the scheduling of bracing treatment for his child.

76. I therefore conclude that this aspect of the application by GBV is misconceived or lacking in substance. There is no “reviewable decision” under the GIPA Act, and therefore no “administratively reviewable decision” under the ADR Act. As a result, I make orders below to dismiss the application to this extent under s 55(1)(b) of the CAT Act.

Issue 3 – Review of the responses provided

77. WSLHD is an “agency” as defined in the GIPA Act, s 4. It is a body corporate constituted under s 17 and specified in Schedule 1 of the Health Services Act 1997. It is an agency to which the GIPA Act applies because it is a “public authority” within the meaning of paragraph (c) of the definition of “agency” contained in s 4 and clause 2(1)(b) of Schedule 4 of the GIPA Act, being a body established for a public purpose under the provisions of a legislative instrument. Accordingly, it had a statutory obligation to receive and determine GBV’s application.

Question 1 – the date the child was added to the waitlist

78. When the application was lodged by GBV with the Tribunal, he submitted that no conclusive evidence was provided with the Notice of Decision to support the date of 22 May 2017. He also said that:

1. The date of 22 May 2017 made no sense, as his child had been a patient of WCOH since 2013 (he conceded this was the correct date, not 2011) and had undergone surgery there in 2014 and 2016 already.

2. If there was a waiting list, he should have been informed about it earlier, at the time his child was actually placed on the list.

3. As he was told in 2023 there was a likely 8 to 10 year delay, he believes his child was added to the list in around August 2022, which is why the treatment has not happened so far.

4. As a result, his child was overdue for the bracing treatment.

79. In accordance with the respondent’s submissions, I am satisfied that GBV cannot be relevantly now aggrieved by the provision of information requested in response to Question 1 of the GIPA Application.

1. During the proceedings, GBV received the evidence filed by the respondent which included Attachments C and D to Ms Profilio’s statement. Both these documents record the date of 22 May 2017 when the child was placed on the “Specialist Treatment” waitlist of the WCOH Orthodontic Clinic (Waitlist), and have now been provided to GBV.

2. Although GBV questions this date, it is not the task of the Tribunal to enquire as to “why” this occurred; refer Crewdson at para 75(4) above. Nor is the agency required to answer questions such as “why” a function was undertaken. In Shevetsova v University of New England [2015] NSWCATAD 49 at [33], the Tribunal found that the GIPA Act does not contemplate that the agency is required to, in effect, answer questions about its decisions or functions when responding to an access application. In Davison v NSW Department of Education and Training [2013] NSWADT 25 it was stated at [3]:

[a]ccess requests made under the GIPA Act can only be made in regard to information that is held by the agency at the time the request is made. It is not a vehicle for seeking answers to questions a person might have in regard to administrative action taken by an agency.

80. I therefore merely observe that the date of 22 May 2017 is shortly after the date on which the child’s appointment for Oral Imaging occurred at WCOH, is consistent with the previous informal responses, and there appears from Attachment C to be other waitlists and indeed other areas of WCOH other than the Orthodontics Clinic.

Questions 2 to 4 – was information “not held” by the respondent?

81. Under s 80(e) of the GIPA Act, the Tribunal has jurisdiction to review a decision by an agency that it does not hold the information requested. That section also confers jurisdiction on the Tribunal to review an “implicit decision” that no further information is held, beyond that which is dealt with in a decision: Amos v Central Coast Council [2018] NSWCATAD 101.

82. The respondent submits that it does not hold government information relating to:

• Q2: the position the applicant’s child was on the waitlist when first added to the list;

• Q3: the length of time it will be before the applicant’s child will be granted an appointment for orthodontic bracing treatment; and

• Q4: the number of patients that attend WCOH on a monthly or yearly basis for bracing treatment.

83. “Government information” is defined in s 4 of the GIPA Act as “information contained in a record held by an agency”. In Redfern Legal Centre v Commissioner of Police [2021] NSWCATAD 288, the Tribunal found that “government information” was a reference to an existing record of information held by an agency, not a record that is not in existence but is capable of being produced.

84. Accordingly, if no record containing the requested information exists at the time when the application is made, a decision that the information is “not held” is appropriate.

85. In discharging the Respondent’s burden of proof requiring that the Tribunal be satisfied that the information is “not held”, the reasonableness of the search undertaken (s 53) operates as a ‘plainly relevant factor’: Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowska) at [41].

86. Wojciechowska (at [44]) also stated:

In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to:

(1) identify on the basis of the agency’s reasons and the applicant’s submissions, any relevant factual issues including those derived from s 53(1)– (5);

(2) determine whether the agency has proved any relevant factual issues on the balance of probabilities;

(3) consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency;

(4) applying those findings, decide what the correct or preferable decision is;

(5) affirm, set aside or vary the agency’s decision: s 63(3) of the Administrative Decisions Review Act.

87. What constitutes a reasonable search will vary with the circumstances of each matter and depends upon the agency to whom the access application is made and on what terms it is made.

88. I am satisfied that reasonable searches were conducted by the respondent, as required by s 53 of the GIPA Act. I found Ms Profilio to be a truthful and credible witness and accept her factual evidence regarding the systems and the search undertaken. I am satisfied that the record keeping system of the respondent was such that the relevant “government information”, if available, was located on the Titanium Solutions database (the Database). Ms Profilio obtained appropriate assistance from the Dental Information Officer and adequately explained to the Tribunal the functionalities and limitations of the Database, including those arising from a migration of data in 2019.

The original waitlist number of the child

89. The second question in the GIPA Application requested both the current and original waitlist number of the child.

90. I observe that the response in the Notice of Decision to the “current” waitlist number was released in full as Position 44 (as at 7 July 2023). During the proceedings, this was updated by way of Attachment D to Ms Profilio’s statement, and was Position 26 as at 23 November 2023.

91. As to the “original” waitlist number of the child, I am satisfied on the balance of probabilities that the information is “not held” by the respondent.

1. I am satisfied that a reasonable search was undertaken for the purpose of s 53 of the GIPA Act, and that it is not currently possible to extract this information directly from the Database, for the reasons explained by Ms Profilio.

2. The respondent was not required to search electronic back-up records. The respondent’s solicitor confirmed to the Tribunal at the hearing that no obligations of the respondent under the State Records Act 1998 or the agency’s established record management procedures had been contravened for the purpose of s 53(4) of the GIPA Act. No evidence presented to me suggests otherwise.

3. I am satisfied that any “possibility” of locating the original position on the Waitlist is remote, even if such a search was undertaken. It would require bespoke computer programming and the recruitment of external technical assistance. These are resources which are not “reasonably available” to the respondent: see Kitson v Manly City Council [2015] NSWCATAD 102; Collection Point Pty Ltd v Federal Commissioner of Taxation (2013) 212 FCR 184; [2013] FCAFC 67 at [52]-[53].

4. Nor is there any indication on the evidence presented that such a record exists. I observe that the screenshot now provided (see para 51 above) contains a field titled “Position in List”, but the field reads “0”, suggesting it is inactive. This is confirmed to my satisfaction by Ms Profilio’s evidence that in order to ascertain the child’s position on the Waitlist for the purpose of responding to the applicant’s informal requests, an additional “first” column was manually added by her to the report generated by Titanium Solutions to record the position of each individual on the waitlist, based on the date on which they joined the list. She says this same process was adopted when WCOH advised the applicant of dates in earlier correspondence.

5. I am also satisfied that no additional evidence has emerged that might tend to prove that the requested information is held by the respondent.

92. I therefore find that the correct and preferable decision, on the balance of probabilities, is that no “government information” is held responsive to the child’s position on the waitlist when first added to the list.

How long it will take to get the appointment for the bracing treatment

93. GBV in his written and oral submissions set out in some detail his engagement with WCOH over an extended period regarding the timeframe for his child’s bracing treatment.

94. The respondent submits that this question does not seek access to existing information or records of the respondent but, rather, seeks answers from the respondent as to the expected timing of his son’s treatment or, perhaps more substantively, an undertaking from the agency that treatment will be provided within a particular time-frame. It submits that the GIPA Act is not a vehicle for seeking answers to such questions, nor is it an avenue by which an agency can be asked to provide commitments as to the future provision of services. I accept the submissions of the respondent.

95. I am also satisfied on the balance of probabilities, based on the searches undertaken, the screenshot, the spreadsheet prepared by Ms Profilio, and the evidence presented, that there is no existing record that provides an answer to the question asked. I conclude that reasonable searches were undertaken, and no additional evidence emerged that might tend to prove that the requested information is held by the respondent.

96. Further, the reasons provided in prior correspondence to GBV, and the Notice of Decision, provide a consistent and understandable explanation why the information would not exist in the records of the respondent.

97. I therefore find that the correct and preferable decision, on the balance of probabilities, is that no “government information” is held responsive to the child’s position on the waitlist when first added to the list.

The number of patients that attend WCOH on a monthly or yearly basis for bracing treatment

98. I accept the evidence of Ms Profilio that WCOH does not produce, as part of its standard reporting functions, reports as to how many patients receive bracing treatment in a given month or year.

99. I am satisfied that reasonable searches were undertaken and that on the balance of probabilities the respondent does not hold existing records that are responsive to this question.

100. Section 75(2) of the GIPA Act confirms that an agency is not required to create a new record “by deduction, inference or calculation from information held by the agency”.

101. To the extent that the respondent does hold records as to annual numbers of bracing treatments (not patients), that information was provided to the applicant as permitted (but not mandated) by s. 75 of the GIPA Act. The respondent makes the following points regarding this information:

1. Noting that the applicant’s apparent motivation in seeking this information is to allow him to ascertain when his son will receive bracing treatment, these figures are of limited assistance: see Ex R1 at paras [29]-[30], [32];

2. The same difficulties would arise, even if the respondent was able to provide the applicant with figures as to the number of patients receiving treatment.

Conclusion as to whether information is “held”

102. I am satisfied that the respondent has discharged its onus of establishing that reasonable searches have been conducted for “government information” that falls within the scope of the applicant’s GIPA Application, such that there is an unlikelihood that any further information within its scope is held.

103. In my view, the correct and preferable decision is to affirm the respondent’s decision dated 18 July 2023.

Orders

104. I make the following orders:

1. The applicant is granted an extension of time under s 101(4) of the GIPA Act to file the application to the Tribunal.

2. To the extent the application requests the Tribunal to “order WCOH to start [child’s] orthodontic treatment immediately”, the application is dismissed under s 55(1)(b) of the CAT Act.

3. The decision under review is affirmed.

**********

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: 24 April 2024