Gliksman v The Commissioner, Health Care Complaints Commission

[2001] NSWADT 47

CITATION:	Gliksman -v- The Commissioner, Health Care Complaints Commission [2001] NSWADT 47
DIVISION:	General Division
PARTIES:	APPLICANT Dr Michael David Gliksman RESPONDENT The Commissioner, Health Care Complaints Commission
FILE NUMBER:	003003
HEARING DATES:	24/07/2000 05/12/2000
SUBMISSIONS CLOSED:	12/05/2000
DATE OF DECISION:	03/23/2001
BEFORE:	Robinson MA - Judicial Member
APPLICATION:	access to documents - personal affairs - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Health Care Complaints Act 1993 Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Humane Society International Inc. v National Parks and Wildlife Service [2000] NSWADT 133 Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 Humane Society International Inc. v National Parks and Wildlife Service [2000] NSWADT 133
REPRESENTATION:	APPLICANT In person RESPONDENT P A Johnson SC, barrister
ORDERS:	1. The decision under review is affirmed

1 This is an application for review of a reviewable decision made under the Freedom of Information Act 1989 (“FOI Act”) refusing the applicant access to documents relating to the applicant’s complaints made to the respondent agency concerning a fellow medical doctor and a complaint made by that doctor against the applicant. The applicant is also a psychologist.

2 When the matter first came on for hearing on 24 July 2000, the respondent had identified 38 documents relevant to the applicant’s FOI request dated 12 November 1999 and relied on the following exemptions in Schedule 1 of the FOI Act in respect of 13 of those documents: clause 6(1) (documents affecting personal affairs); clause 10(1) (documents subject to legal professional privilege) and the specific FOI Act exemption relating to the respondent here in the combination of section 9 and Schedule 2 of the FOI Act. Section 9 provides that any body or office specified or described in Schedule 2 is, in relation to such of the functions of the body or office as are so specified or described, exempt from the operation of the Act. Schedule 2 describes the relevant exemption in the following terms:

“The Health Care Complaints Commission—complaint handling, investigative and reporting functions in relation to a complaint that is in the course of being dealt with by the Commission.”

3 At that hearing, the applicant was represented by an officer of the Australian Medical Association (NSW) Limited and the respondent was represented by Mr Johnson SC. Affidavits were then read and an oral examination conducted (of Mr Thomas Galloway). I made a non-publication order relating to the names of the five persons the subject of the personal affairs exemption claim pursuant to section 75(2)(b) of the Administrative Decisions Tribunal Act 1997 (“ADT Act”) (as amended with effect from 30 June 2000 by Act No 33 of 2000, Sch 1[11]).

4 During the course of the hearing, it became apparent to the Tribunal that there may have been a number of parties in respect of whom the personal affairs exemption might apply and who had not been notified of the fact of the hearing by the respondent. Further, in the making of the reviewable decision, their respective views had not been sought by the respondent under what is known as the “reverse FOI” procedure relating to personal affairs documents set out in section 31 of the FOI Act. Accordingly, as these five persons might have had a right to be joined or might have been permitted to be joined as a party to these proceedings pursuant to section 67, and in particular section 67(4) of the FOI Act and sections 53(1) and 53(3)(b)(i) of the FOI Act, the Tribunal inter alia, remitted the reviewable decision to the administrator who made it for reconsideration of the decision by the administrator pursuant to section 65(1) of the ADT Act and made orders relating to the implementation of the reverse FOI procedure and the notification of the third parties.

5 On the occasion of the second hearing on 5 December 2000, the applicant represented himself and the respondent was again represented by Mr Johnson SC. It was accepted by the parties that the relevant reviewable decision was the new decision of the respondent’s administrator dated 28 September 2000. It was noted that the applicant no longer pressed his claim in respect of documents numbered 2, 3 & 4 (adopting the respondent’s numbering) described in the said decision (which related to the privilege claim) and abandoned any claim for Schedule 2 documents relating to current investigations. Document numbered 26 in the decision was given to the applicant by the respondent on 7 April 2000.

6 The sole remaining ground of exemption relied upon by the respondent was the personal affairs exemption, clause 6 of Schedule 1 of the FOI Act. There remains only 9 disputed documents (numbered12, 13, 16, 17, 18, 25, 30, 36 & 38).

7 The respondent’s evidence at the hearing comprised four exhibits. Exhibit 1 is a confidential exhibit containing the 38 documents caught by the applicant’s FOI application. Expurgated versions of some of the disputed documents (namely, 12, 13, 16, 17 & 18) were provided to the applicant by the respondent prior to the hearing. The remaining disputed documents have not been released to the applicant in any form. Exhibit 2 is the affidavit of Mr Thomas McKnight, an officer of the respondent, affirmed 10 November 2000. It sets out the steps taken by the respondent since the Tribunal hearing of 24 July 2000. Parts of the annexures to that affidavit are expurgated as they are said to contain information which is exempt. Confidential Exhibit 3, is the same affidavit of McKnight dated 10 November 2000 with no deletions at all in the annexures to the affidavit. Exhibit 4 is the affidavit Mr Thomas McKnight affirmed 7 April 2000 setting out the original FOI application and the respondent’s decisions in relation to it. A schedule of the relevant documents is attached to that affidavit (Annexure G) which sets out the numbering and description of, and claimed exemption relating to the documents.

8 The respondent also relied on Mr Johnson’s written submission dated 24 July 2000 and confidential submissions (undated). I directed that the confidential submissions and the confidential affidavits not be given to the applicant or anyone else other than a member of the Tribunal constituted to deal with the matter until further direction in accordance with section 55(b) of the FOI Act.

9 In the applicant’s case, the applicant gave oral evidence and subjected himself to cross-examination. In addition, the applicant relied on written submissions which were filed on 16 November 2000.

The FOI Application

10 In the applicant's original FOI application dated 12 November 1999 he requested a number of documents. I have not reproduced in these reasons the name of the doctor mentioned in the said request. I shall refer to her as "Dr A". The applicant requested:
“(a) a complete copy of all documents and other material, whether stored on paper or by electronic or other means, covering Dr A.'s complaint(s) made in relation to myself once she became aware of my complaint to the HCCC;
(b) similar documentation covering the HCCC's decision not to charge Dr A. with having made a false or misleading complaint under the relevant provisions of the HCC Act;
(c) all documents and other material covering the HCCC's investigation of Dr A.
(d) all documentation covering the HCCC's initial decision to pass the complaint to the very organisation implicated along with Dr A. in the alleged disappearance of a nine-year-old State ward and her alleged medical mismanagement of this child, its subsequent reversal of that decision, the reasons for the delay in finalising this matter, the identity of any and all peer reviewers and other medically qualified persons consulted in this matter, and documentary details on how the HCCC established there was no potentially biasing relationship between them and Dr A.”

11 He possibly anticipated the respondent's ultimate response to his FOI request by making a public interest submission in the last paragraph of the said letter which stated:
“I believe it is in the public's interest to understand how the HCCC deals with allegedly false or misleading allegations, and on what basis it reaches its decisions to conciliate, investigate, pass on or terminate matters of such apparent gravity. I also believe that openness and public accountability regarding these types of decisions, can only enhance public and professional confidence in the impartial and effective work of the HCCC.”

12 In later correspondence, the "implicated" organisation was said to be the New South Wales Department of Community Services.

13 I shall not set out any further the series of correspondence and decisions in the matter prior to the first hearing in the Tribunal on 24 July 2000. As I said, since that day, the respondent has given the third persons notification that it intended to make a new decision in relation to the applicant's original FOI application and sought submissions in relation to the personal affairs exemption. I am satisfied that they were each then notified of the present reviewable decision of the respondent dated 28 September 2000 and that none of those persons made any formal application to be made a party to these proceedings.

The Personal Affairs Exemption

14 Clause 6 of the FOI Act provides:
“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.”


15 I considered that provision recently in Humane Society International Inc. v National Parks and Wildlife Service [2000] NSWADT 133 at [11]-[25]. Once a document is properly considered to contain information relating to personal affairs, the question becomes whether disclosure is reasonable in all of the circumstances ( ibid , at [23]).

16 The primary person on whose behalf the exemption is claimed is Dr A. She is the principal subject of most of the exempt documents. In her submission to the respondent (Confidential Exhibit 3, annexure B) she said, through her solicitor, that she opposed the release of the subject documents for a number of reasons. Unfortunately, due to the nature of these reasons and due to the content of the subject documents themselves, which I have read, even a general description of the subject documents was not able to be disclosed to the applicant at the hearing and cannot be disclosed in these reasons – see section 55(a) of the FOI Act. It is sufficient for me to say that having regard to all the evidence, most of the information contained in the subject documents is plainly information concerning the personal affairs of Dr A. within the meaning of the FOI Act.

17 There is also some information (in document 16) that specifically relates to two children who were the subject of care proceedings before the Children’s Court. However, that information is also tied up in the affairs concerning Dr A in the documents.

18 In light of the finding that all the subject documents primarily relate to Dr A., it is not necessary for me to go on to consider the individual position of the four other third persons contacted by the respondent. Even if I am wrong on this point, I have taken their views into account (to the extent that they responded to the respondent’s letters, and as set out in the evidence) and that would not have changed my ultimate decision, that the decision under review should be affirmed for the reasons I set out below.

19 The next issue is whether disclosure of the subject documents would involve “unreasonable” disclosure of Dr A’s personal affairs in all of the circumstances.

20 As I have noted, the applicant submitted it was in the public's interest to understand how the respondent deals with allegedly false or misleading allegations, and on what basis it reaches its decisions to conciliate, investigate, pass on or terminate matters of such apparent gravity.

21 The applicant further submitted that openness and public accountability regarding “these types of decisions”, can only enhance public and professional confidence in the impartial and effective work of the respondent.

22 The applicant submitted, inter alia, that he already knew the identity of all the relevant parties and a claim for exemption is order to maintain anonymity is without merit.

23 In his oral evidence, the applicant described his understanding of the contents of the subject documents and provided details of a number of factual incidents leading up to his original FOI request. He explained his motivation for his making the request. None of this was challenged in cross-examination by the respondent. The motive of the applicant does not appear to me to be a significant issue in these proceedings.

24 The applicant is not correct in his assertions that he is aware of the content of the subject documents. His oral evidence made that apparent to me, as I heard his evidence after having read the subject documents. While the applicant might have some idea of the content of some of the documents and some- of the persons mentioned in them, he is by no means fully aware. Even if he was fully or better aware of the contents, I bear in mind that release of the documents to the applicant is release to the world (see eg: Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 per Jenkinson J at 440) .

25 In the present case, specific considerations private and personal to Dr A. (which I cannot mention) weigh very heavily on the Tribunal in deciding whether disclosure is unreasonable.

26 The applicant also submitted that the Tribunal should have regard to section 5(3)(b) of the objects provision of the FOI Act which provides:
“…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.”

27 This appears to me to be a submission that in personal affairs cases, the Tribunal should adopt a “leaning” position in favour of disclosure. I do not regard that as the correct approach for the reasons stated in Humane Society International Inc. v National Parks and Wildlife Service [2000] NSWADT 133 at [22]-[23].

28 The respondent primarily submitted that there was no public interest served by the release of the documents to the applicant here. Much reliance was placed on section 37 of the legislation which established and governs the respondent and its functions, the Health Care Complaints Act 1993 (“ HCC Act ”). Section 37 provides:
“Offence: improper disclosure of information
If a person discloses information obtained in exercising a function under this Division and the disclosure is not made:
(a) with the consent of the person to whom the information relates, or
(b) in connection with the execution and administration of this Act, or
(c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or
(d) with other lawful excuse,
the person is guilty of an offence.
Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.”


29 The Division to which the section refers, Division 5, relates to the investigation of complaints against health practitioners in NSW. I am satisfied from my inspection of the documents that they contain information obtained by the respondent in exercising a function under the HCC Act.

30 It was submitted that this section constituted a statutory “guard” against disclosure of the subject documents and it was a relevant matter for the Tribunal to take into account.

31 No submission was made that section 37 constituted a secrecy provision within the meaning of clause 12 of Schedule 1 of the FOI Act and the documents were therefore exempt (see generally, for example, the discussion of clause 12 in Anne Cossins, Annotated Freedom of Information Act New South Wales , 1997, LBC Information Services, Sydney, at pp 390-394). As no reliance was placed on clause 12 by the respondent, I shall not consider it here.

32 In my view, while section 37 of the HCC Act does not constitute a complete prohibition on the release of the respondent’s documents, as it provides for disclosure with “lawful excuse”, I consider that it is a relevant factor for me to take into account. However, I do not consider it a significant factor in the context of this particular case. Of much more significance is the general nature of the powers and functions of the respondent under Division 5 of the HCC Act and that Act to receive and act on complaints regarding health practitioners. These are plainly functions which would often involve the collection of a significant amount of confidential and personal information about persons. Some of that information would be made public at appropriate times, for example, in the course of some investigations and when prosecutions are commenced by the respondent.

33 As to the submission that there was no public interest to be served by the release of the documents to the applicant here, reference was made by the respondent to the passage of Heerey J in Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 at 441 where it was said of the similar Commonwealth FOI provision in section 41(1) of the Freedom of Information Act 1982(Cth) :
“Turning to the criterion of unreasonableness prescribed by the s 41(1) exclusion, it seems to me that attention is directed, amongst other things, to whether or not the proposed disclosure would serve the public interest purpose of the legislation, which is to open to public access information about government which government holds, this being information which in truth is held on behalf of the public. I do not think it is necessary in order to make out the s 41(1) exclusion that there is some particular unfairness, embarrassment or hardship which would enure to a person by reason of the disclosure. Such matters, if present, would doubtless weigh in favour of exclusion. But if the information disclosed were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, I think disclosure would be unreasonable.”

34 I respectfully agree with these observations in the context of the NSW Act. However, I do not think that the relevant interest of the applicant in the present case is merely that of curiosity.

35 I prefer the analysis of Lockhart J in the same case (Jenkinson & Heery JJ agreeing) at page 483, where he said:
“The object of the Act, as expressed by s. 3, is to give the "Australian community" the right of access to information in the possession of the Australian Government. What is "unreasonable" disclosure of information for purposes of s. 41(1) must have as its core public interest considerations. The exemptions necessary for the protection of "personal affairs" (s. 41) and "business or professional affairs" (s. 43) are themselves, in my opinion, public interest considerations. That is to say, it is not in the public interest that the personal or business or professional affairs of persons are necessarily to be disclosed on applications for access to documents. The exemption from disclosure of such information is not to protect private rights, rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access provided the other conditions mentioned in sections 41 and 43 are satisfied. An examination of the other provisions of Part IV of the Act concerning exempt documents confirms this approach.”

36 In the NSW context, the “touchstone” in personal affairs cases generally is consideration of section 5(2)(b) of the objects provision of the FOI Act which requires the Tribunal (and administrators making decisions under the FOI Act) to consider whether withholding the documents is “reasonably necessary for the proper administration of the Government”.

37 Having considered the documents themselves and all of the evidence and submissions, I am satisfied that withholding the subject documents, for the present, is reasonably necessary for the proper administration of the respondent’s functions and disclosure would involve the unreasonable disclosure of information concerning the personal affairs of Dr A.

38 I determine that the decision under review is affirmed.