GTV v Nepean Blue Mountains Local Health District

[2024] NSWCATAD 383

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GTV v Nepean Blue Mountains Local Health District [2024] NSWCATAD 383

Hearing dates:

2 December 2024

Date of orders:

16 December 2024

Decision date:

16 December 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

EA MacIntyre, Senior Member

Decision:

(1) The administratively reviewable decision under review is affirmed.

(2) Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the name of the Applicant or reference to any information, picture or other material that identifies the Applicant or is likely to lead to the identification of the Applicant is prohibited.

(3) Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the contents of all paragraphs in these reasons marked NOT FOR PUBLICATION are not to be published or disclosed to the Applicant or the public.

Catchwords:

ADMINISTRATIVE LAW - administrative review - government information - access application - enforceable right to access government information - presumption in favour of the disclosure of government information - overriding public interest against disclosure - public interest considerations against disclosure - public interest considerations in favour of disclosure - balance - term ‘could reasonably be expected’ - personal information -confidential information - prejudice to supply of information - prejudice to the effective exercise of agency’s functions

ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

Alexander v University of Sydney and anor [2008] NSWADT 214

AMH v Western New South Wales Local Health District [2013] NSWADT 282

Amos v Western NSW Local Health District; Arnold v Western NSW Local Health District [2017] NSWCATAD 359

Collins v Department Finance, Services & Innovation [2018] NSWCATAD 60

Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19

EIF v Legal Aid New South Wales [2020] NSWCATAD 113

Fahey v NSW Office of Liquor Gaming and Racing [2012] NSWADT 181

Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286

Fire Brigade Employees' Union v Fire and Rescue NSW [2014] NSWCATAD 113

Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 495

Leech v Sydney Water Corporation [2010] NSWADT 298

Luxford v Department of Education and Communities [2016] NSWCATAD 118

Miskelly v Secretary, Department of Education [2019] NSWCATAD 48

MJ v NSW Department of Education & Commerce [2013] NSWADT 213

Pillinger v Northern Sydney Local Health District [2021] NSWCATAD 14

Robinson v Director General, Department of Health [2002] NSWADT 222

Ryan v NSW Minister for Planning and Open Spaces [2021] NSWCATAP 22

Texts Cited:

None Cited

Category:

Principal judgment

Parties:

GTV (Applicant)

Nepean Blue Mountains Local Health District (Respondent)

Representation:

Appellant (Self Represented)

Solicitors:
Crown Solicitor (Respondent)

File Number(s):

2024/00316949

Publication restriction:

Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the name of the Applicant or reference to any information, picture or other material that identifies the Applicant or is likely to lead to the identification of the Applicant is prohibited.

Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the contents of all paragraphs in these reasons marked NOT FOR PUBLICATION are not to be published or disclosed to the Applicant or the public.

REASONS FOR DECISION

1. This is a review of a decision made by Nepean Blue Mountains Local Health District (“Respondent”) to refuse access to certain information. The information sought by the applicant (“Applicant”) concerns matters about the Applicant the subject of an investigation by the Respondent.

Background

2. The Applicant is a neurosurgeon employed by the Respondent.

3. In February 2020, the Respondent received notification of concerns regarding the Applicant. The Respondent began management of the alleged concerns, in the Respondent’s submission, following NSW Health Policy Directive PD 2018 - 032 “Managing Complaints and Concerns About Clinicians” (“PD 2018-032”).

4. By letter dated 18 April 2024, the Applicant was advised of certain risk management measures. They included the suspension of his contract, meaning that he is not currently rostered for certain on-call attendances requiring clinical duties.

5. On 8 May 2024, the NSW Medical Council advised that it was not satisfied that it was appropriate to take action in response to the notification of concerns.

6. By access application received on 28 May 2024, the Applicant requested access under the GIPA Act to certain material. That material concerned information about concerns and notifications provided to other named medical practitioners about certain patients and alleged conduct of the Applicant. The information sought included documents recording risk assessments and the terms of reference for investigation.

7. By decision dated 26 June 2024, the Respondent identified seven documents as responsive to the Applicant’s access application, determining to provide partial access to two documents and refuse access to the balance of the information. These documents were before the Tribunal in evidence and identified by numbers 1 to 7. The Applicant sought internal review of the decision to refuse access.

8. By further decision made on 15 August 2024, the Respondent again determined to refuse access to the five documents in full and to provide partial access to two documents.

9. By application filed on 27 August 2024, the Applicant seeks review by the Civil and Administrative Tribunal (“Tribunal”) of the Respondent’s decision to refuse access to the information withheld.

10. Subsequently, proceedings commenced before a Committee of Review established under the Health Services Act 1997 (NSW). The Applicant is the appellant in those proceedings and the Respondent is the respondent in those proceedings.

11. The Respondent was issued a notice to produce in the proceedings before the Committee of Review, compelling production of certain documents. These documents included all documents responsive to the application the subject of the proceedings before the Tribunal under the GIPA Act. There were redactions in the documents provided of the names of patients. There were no other redactions. As a consequence, the Applicant holds all seven documents in issue in these proceedings, subject to these redactions.

Applicant’s right to information

12. The Government Information Public Access Act 2009 (“GIPA Act”) gives members of the public an enforceable right to access government information, subject to the provisions of that Act. That right is given for the stated object of maintaining and advancing “a system of responsible and representative democratic Government that is open, accountable, fair and effective” (s 3(1)(b) of the GIPA Act).

13. A person who makes an access application for government information has a “legally enforceable right to be provided with access to the information” (s 9(1) of the GIPA Act). Access applications are to be dealt with in accordance with Part 4 of the GIPA Act.

14. An agency may determine an access application under the GIPA Act in a number of ways, as relevantly set out in s 58(1), including:

“(a)   deciding to provide access to the information

….

(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information.”

15. There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5 of the GIPA Act). There is a general public interest in favour of the disclosure of government information (s 12(1) of the GIPA Act). However, the right to access will not be available where “there is an overriding public interest against disclosure of the information” (s 9 of the GIPA Act).

16. There is an overriding public interest against disclosure of government information for the purposes of the GIPA Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure (s 13 of the GIPA Act). It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 of the GIPA Act (s 14(1) of the GIPA Act). The considerations listed in the Table under s 14 of the GIPA Act are the only other considerations that may be taken into account in determining whether there is an overriding public interest against disclosure (s 14(2) of the GIPA Act).

17. The power of the Tribunal to review a decision of the Respondent arises where a person is aggrieved by a “reviewable decision” of an agency. Such a person may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) (“ADR Act”) of that decision (s 100 of the GIPA Act).

18. What are “reviewable decisions” of an “agency” is set out in s 80 of the GIPA Act. They include a decision to provide access or to refuse to provide access to information in response to an access application (s 80(d) of the GIPA Act).

19. There was no dispute that the respondent is an “agency”.

20. An agency has made a “reviewable decision” within the meaning of s 80 of the GIPA Act, the agency being the Respondent and the “reviewable decision” being a decision to refuse to provide access to information in response to an access application.

21. The Tribunal under s 63 of the ADR Act is to determine the matter, based on the material before it, including any relevant factual material and any applicable written or unwritten law. It must decide what is the correct and preferable decision. It may decide to affirm, vary or set aside the decision and make a substitute decision, or set aside the decision and remit the matter to the agency in accordance with any directions or recommendations of the Tribunal.

22. The provisions of the GIPA Act referred to above apply where the Applicant has made a valid “access application” seeking “government information”. It is not in issue that the Applicant made an “access application” under Part 4 of the GIPA Act and that the information requested was “government information” (see definition of these terms in s 4 of the GIPA Act).

23. The Respondent has the onus of establishing that the decision is justified (s 105(1) of the GIPA Act).

Consideration

24. There are two questions for determination by the Tribunal. They are:

1. what are the consequences of the provision all the documents in issue (subject to relevant redactions) to the Applicant pursuant to the notice to produce issued in the proceedings before the Committee of Review.

2. whether the public interest considerations against disclosure of the relevant information outweigh the public interest considerations favouring disclosure.

Committee of Review proceedings

25. The provision of the relevant documents pursuant to a notice to produce in the Committee of Review was, on the evidence, subject to an implied Harman undertaking. As such, that provision did not grant the recipient party, the Applicant, an unfettered right to use the documents as he saw fit. The implied Harman undertaking permitted the documents to be utilised only for the purpose for which they were provided.

26. Where, on the other hand, access to information is provided in response to an access application under the GIPA Act, an agency is not entitled to impose any conditions on the use or disclosure of the information by reason of s 73(1) of the GIPA Act. Therefore, disclosure in response to an application for access is a disclosure to the “world at large”.

27. What follows is that a consequence of disclosure under the GIPA Act would place the Applicant in possession of the relevant documents without the restrictions currently applying to that possession under the implied Harman undertaking in place. In other words, the provision of access through the GIPA Act cannot be said to serve no purpose. It would grant the Applicant an unfettered right lawfully to use the relevant documents that the Applicant does not currently have by reason of the applicable Harman undertaking.

28. The Respondent submits the consequence of the provision of the relevant documents under the notice to produce in the Committee of Review proceedings means that the relevant information has already been provided to the Applicant within the meaning of s 80(i) of the GIPA Act. In other words, a decision has been made to “provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant)”.

29. The provision of information made in connection with the Committee of Review proceedings was not a production of information under the GIPA Act. It was not a provision of information “in response to” an access application under the GIPA Act and is not a provision of information governed by the GIPA Act. I am therefore of the opinion that the decision to provide the relevant information pursuant to the notice to produce issued in connection with the Committee of Review proceedings is not a decision to provide access to information under s 80(i) of the GIPA Act.

30. Nevertheless, a decision to refuse access has been made within the meaning of s 80(d) of the GIPA Act. The Tribunal has jurisdiction to review that decision in these proceedings and that is the Tribunal’s task.

Determination of the balance of public interest considerations

31. In determining the correct and preferable decision on review of a decision to refuse access, the correct approach in making the required determination to be adopted by the Tribunal is the process outlined in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [24] – [25], relevantly that:

“Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused.

… The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions…”.

32. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286, the task of the Tribunal was described as follows:

“…. in all cases other than those falling under the terms of Schedule 1, the public interest test under the GIPA Act involves the following:

(a) identifying the public interest in favour of disclosure;

(b) identifying the public interest against disclosure; and

(c) determine where the balance lies”.

33. Section 15 of the GIPA Act sets out the principles that apply when determining whether there is an overriding public interest against disclosure:

“(a)  Agencies must exercise their functions so as to promote the object of this Act.

(b)  Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c)  The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d)  The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e)  In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information”.

34. The Respondent identified the following considerations in favour of disclosure of the relevant information:

1. that disclosure of the requested information could reasonably be expected to provide transparency with respect to the investigation or concerns raised with respect to the Applicant;

2. that disclosure could reasonably be expected to promote openness, fairness and accountability of the process by which the Respondent handles concerns and complaints under PD 2018-032;

3. that disclosure would inform the Applicant of the substance of any concerns or complaints made against him;

4. that disclosure would enhance government accountability regarding the appropriate management of workplace issues.

35. The Applicant, for his part, submits that a further public interest consideration favouring disclosure is that disclosure could reasonably be expected to reveal or substantiate that the Respondent has engaged in misconduct or negligent, improper or unlawful conduct. The Applicant, in support of his submission, sets out various matters going to his dissatisfaction with the manner in which the investigation by the Respondent of the concerns in issue took place.

36. The Respondent identified a number of public interest considerations against disclosure, set out in s14 of the GIPA Act. Relevantly, cl 1 of the Table in s 14 of the GIPA Act, in determining whether there is an overriding public interest against disclosure, provides:

“1 Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)—

….

(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions,

(e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency,

(f) prejudice the effective exercise by an agency of the agency’s functions,

(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence”.

37. Disclosure must be one that “could reasonably be expected” to have the relevant effect. What this means was described in Leech v Sydney Water Corporation [2010] NSWADT 298 in the following terms, at [25]:

“The term ‘could reasonably be expected’ has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC”.

Clause 1(d) - prejudice the supply to an agency of confidential information

38. The Tribunal in Collins v Department Finance, Services & Innovation [2018] NSWCATAD 60, considered the requirements of cl 1(d). The Tribunal said, at [61]:

“The relevant elements of Clause 1(d) are:

(1) the information was obtained in confidence;

(2) disclosure of the information could reasonably be expected to prejudice the supply of such information to the Agency in future; and

(3) the information facilitates the effective exercise of the Agency's functions”.

39. The Tribunal went on to say, at [63]-[64]:

“… the Tribunal is to engage in a relatively abstract analysis. The Tribunal is to ask whether, as a matter of reasonable expectation, if material of the kind sought to be protected were released, could it prejudice the supply of similar material to government in the future. In this context the word 'prejudice' is to be given its ordinary meaning, namely: 'to cause detriment or disadvantage'. It is not necessary that the decision-maker be satisfied that the release of the information will in fact prejudice the future supply of information.

The Tribunal is to consider the nature of the material sought to be protected, the extent to which material of that kind can only reasonably be obtained by confidential communication and the extent to which guarantees of confidentiality may be necessary. That is, would disclosure of the information sought damage the ability of the agency to obtain similar information in future? The agency's evidence is examined in regard to the conditions under which it conducts the service within which the information was received and the extent to which the information in issue facilitates the effective exercise of that agency's functions. The experience of the witnesses who expressed the relevant opinions is a significance factor”.

40. That the meaning of the word prejudice is to “cause detriment or disadvantage” or to “impede or derogate from” was accepted in Hurst v Wagga Wagga City Council [2011] NSWADT 307, at [60].

41. The Respondent submitted that Documents 1-4 and the redacted parts of Documents 6-7 in evidence, contained confidential information in the sense described in cl 1(d).

42. The Respondent relied on evidence provided by Mr Adam Quested. He was “Interim Director, People and Culture” for the Respondent. He has held this position since 4 December 2023. He has worked in the NSW public health system for 21 years in roles relating to “People and Culture”. In this role, he has had responsibility in the human resources function of the Respondent.

43. Mr Quested referred to the confidential nature of the concerns management process. Persons involved in the concerns management process, in Mr Quested’s understanding, had both a right to confidentiality and responsibility for maintaining confidentiality. The evidence was that the maintenance of confidentiality required limiting the distribution of confidential material and information to those who had a genuine “need to know” and limiting the amount of information provided to that which was necessary. Parties were asked not to discuss the process among themselves nor share or distribute materials. Materials held by persons involved in the grievance management process was securely stored at all times. I accept the evidence of Mr Quested as regards the framework surrounding the maintenance of confidentiality of the relevant documents in this matter.

44. In MJ v NSW Department of Education & Commerce [2013] NSWADT 213, the Administrative Decisions Tribunal said:

“It is well established that a function of an agency is to deal with and action allegations of misconduct by one or more of its officers. The effective exercise of that function is based on complaints being made voluntarily and that the making of the complaint and any action taken in regard thereto remains confidential, to the extent required by law”.

45. I am in agreement with the Respondent’s submission that the maintenance of confidentiality over the documents in issue formed part of the Respondent’s processes for reviewing the relevant matters of concern (see also AMH v Western New South Wales Local Health District [2013] NSWADT 282, at [81]; Amos v Western NSW Local Health District; Arnold v Western NSW Local Health District [2017] NSWCATAD 359, at [71] –[72] and Pillinger v Northern Sydney Local Health District [2021] NSWCATAD 14, at [66]). I find, in these circumstances, that the documents in issue were “confidential” within the meaning of cl 1(d).

46. Once it has been established that the information in question is confidential, the Tribunal needs to consider whether disclosure could reasonably be expected to prejudice the supply of such information to the agency in the future. The Respondent provided evidence of its reliance on voluntary participation of staff in the process of managing and investigating complaints. There was evidence that the staff could be reluctant to raise concerns about other staff and generally are reluctant to participate in internal investigations. The evidence was that if assurance of anonymity and confidentiality could be given, this was essential to securing participation of staff in any investigation.

47. In numerous contexts, it has been accepted that the performance of investigative functions will, to a large extent, depend on the cooperation of those who have information relevant to the investigation and that that cooperation will depend on the information they provide being kept confidential (Robinson v Director General, Department of Health [2002] NSWADT 222, at [71]; See also Alexander v University of Sydney and anor [2008] NSWADT 214, [33]-[35] and EIF v Legal Aid New South Wales [2020] NSWCATAD 113, at [86]).

48. I accept the evidence provided by Mr Quested on behalf of the Respondent as to the effect of not maintaining confidentiality when obtaining information from staff in investigations of matters of concern. I am satisfied that not maintaining that confidentiality could reasonably be expected to prejudice the future supply of information.

49. In EIF v Legal Aid New South Wales [2020] NSWCATAD 113, the Tribunal, in similar circumstances, accepted that “to ensure confidentiality … is vitally important to …. [Legal Aid] … facilitating the exercise of its function. Disclosure of such information, in my view, could reasonably be expected to prejudice the supply of that information in the future”, at [86].

50. The Applicant submits heads of departments unlike younger doctors may be less likely to be constrained when providing information and that disclosure was unlikely to prejudice the supply of information by more senior personnel. I could not, however, find in the evidence, any specific evidence that was sufficient to support the Applicant’s assertion. I accept, on the basis of the evidence of Mr Quested, that the maintenance of confidentiality is necessary to allow for the disclosure of information without constraint, whether by junior or senior personnel.

51. It is self-evident that the receipt of the information in issue facilitates the effective exercise of the Agency's functions, by enabling it to deal with matters of concern in accordance with its processes, having received information about such matters.

Clause 1(e) – reveal a deliberation or consultation

52. The Respondent relies on the public interest consideration against disclosure that disclosure would reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency.

53. The Respondents submits that Documents 5, 6 and 7 would reveal relevant deliberations. They are deliberations undertaken in a preliminary review and assessment of certain cases of concern (Document 5) and deliberations regarding risk management measures to be undertaken as part of the management of concerns (Documents 6 and 7).

54. What is meant by a deliberative process was considered in Fire Brigade Employees' Union v Fire and Rescue NSW [2014] NSWCATAD 113. Higgins SM said:

“As a matter of ordinary English the expression "deliberative processes" appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. "Deliberation" means "The action of deliberating: careful consideration with a view to decision": see The Shorter Oxford English Dictionary. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. ...”

55. The Appeal Panel, considering the reach of cl 1(e), said in Ryan v NSW Minister for Planning and Open Spaces [2021] NSWCATAP 22, at [34]:

“ … the Appeal Panel notes that:

(1) cl 1(e) contemplates that the deliberative process that may reasonably be expected to be prejudiced may be a “particular case or generally”. Thus, the focus of this clause goes beyond particular deliberative processes;

(2) there is no requirement that the deliberative process that may reasonably be expected to be prejudiced is the same as the deliberation which could be expected to be revealed by disclosure of the information (where it is a deliberation rather than a consultation, opinion advice or recommendation that would be revealed by disclosure of the information). This is clear from the use of the phrase “a deliberative process”;

(3) the existence of a deliberative process which might reasonably be expected to be prejudiced by disclosure will turn upon the evidence before the Tribunal in each case. Whilst the parties referred in their submissions to particular cases in support of their preferred interpretation, those cases turn on their particular facts. For example, in AQJ, the Tribunal found that the deliberative process had concluded, whereas in Owen the Tribunal found that there was an ongoing deliberative process”.

56. In Luxford v Department of Education and Communities [2016] NSWCATAD 118, the Tribunal said, at [107]-[108]:

“Officers should be able freely to do in written form what they could otherwise do orally, in circumstances where any oral communication would remain confidential. Such written communications relating to decision-making and policy formulation processes ensure that a proper record is maintained of the considerations taken into account. If they were to be released for public scrutiny, officers may in the future feel reluctant to make a written record, to the detriment of these processes and the public record: McKinnon v Department of Treasury [2006] HCA 45. Callinan and Heydon JJ. Stated at paragraph [121]:

The second ground, which speaks of jeopardy to candour, and the desirability of written communications, obviously cannot readily be dismissed ...

I accepted that there is a public interest consideration against disclosure of this information, as it could be expected to prejudice the deliberative processes of the agency”. 

57. In Miskelly v Secretary, Department of Education [2019] NSWCATAD 48, the Tribunal again, in the context of the operation of a school, emphasised the “need to be able to freely discuss privately and frankly how to best manage and resolve sensitive issues” observing that if “records of discussions (deliberative processes) concerning students or parents are released in full, the ability of the respondent and school to perform their day to day functions may be seriously impaired” (at [54]).

58. The reasoning of the Tribunal in Luxford and Miskelly are apposite in the circumstances of the present case. I accept that the Respondent’s personnel may be reluctant to record without inhibition their deliberations, the evidence on which they rely and the conclusions they reach, if they did so on the basis that the record of their deliberations would not be treated as confidential and would be released. I am of the view that, in these circumstances, disclosure of the relevant information could reasonably be expected to have the effect of prejudicing the deliberative processes of the Respondent. As the Appeal Panel said in Ryan, the deliberations protected by cl 1(e) are not limited to those in issue in a particular matter but future deliberations in general.

Clause 1(f) – prejudice the effective exercise of an agency’s functions

59. A public interest consideration against disclosure arises where disclosure could reasonably be expected to prejudice the effective exercise by an agency of the agency’s functions.

60. The Respondent’s submission is that disclosure of Documents 1, 2, 3, 4, 6 and 7 would reasonably be expected to prejudice the Respondent’s functions in the identification, investigation and management of complaints and concerns regarding clinicians, due to the prejudice to the supply of confidential information created by disclosure. Prejudice, in the Respondent’s submission would, also arise in respect of Documents 5, 6 and 7, to the Respondent’s functions in investigating and reviewing complaints and concerns regarding clinicians and in conducting effective risk assessments.

61. In the Respondent’s submission, this prejudice would have broader and serious implications on the ability of the Respondent to perform its core functions in providing medical care and health services. The Respondent relies on the evidence it adduces in support of its claim in respect of cl 1(d), to support its claim under cl 1(f).

62. If a situation arises where staff understood that information provided by them in confidence about the care received by patients would not remain confidential, I accept that circumstances such as this would inhibit the provision by staff of essential information. Consequently, I find that the public interest consideration against disclosure that could prejudice the effective operation of an agency are shown to arise.

Clause 1(g) – reveal information supplied to an agency in confidence

63. A public interest consideration against disclosure arises where disclosure could reasonably be expected to reveal information supplied to an agency in confidence.

64. I accept that the information in issue in the present proceedings was revealed to the Respondent in confidence for the reasons set out at [45] above. As a consequence, I find that disclosure of Documents 1, 2, 3, 4, 6 and 7 could reasonably be expected to reveal information supplied in confidence.

Clause 3(a) - personal information

65. Clause 3 of the Table in s 14 of the GIPA Act, in determining whether there is an overriding public interest against disclosure, provides:

“3 Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects—

(a) reveal an individual’s personal information,

(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002,…”

66. What is personal information is defined in cl 4 of Schedule 4 of the GIPA Act in the following terms:

“Personal information

(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2) Personal information includes such things as an individual’s fingerprints, retina prints, body samples or genetic characteristics.

(3) Personal information does not include any of the following—

(a) information about an individual who has been dead for more than 30 years,

(b) information about an individual (comprising the individual’s name and nonpersonal contact details, including the individual’s position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause”.

67. The individual in question must be someone whose “identity is apparent or can reasonably be ascertained from the information or opinion”.

68. The Respondent submits that cl 3(a) applies to each of the documents in issue, containing as they do sensitive personal and health information relating to staff and patients. This includes the names of staff, names of patients and details of patients’ personal characteristics and health conditions such that they could be identified. The Respondent further submits that despite the possibility of redacting persons’ names or other information, the identity of the relevant individuals could reasonably be ascertained on the basis of the other information contained in the documents.

69. There is little doubt that the information set out in the documents in question includes personal information of the kinds described above. Consequently, I find that disclosure would reveal personal information and as such, there is a public interest consideration against disclosure of that information.

70. The Applicant submits that there is a public interest in disclosing the identity of persons “who make false complaints”. I understood the Applicant to refer to staff who had been involved in raising the concerns in issue. In Fahey v NSW Office of Liquor Gaming and Racing [2012] NSWADT 181, the Administrative Decisions Tribunal said:

“….. there is a public interest in disclosing the identity of persons who make false complaints. Careful distinction should be made between allegations which, while based on genuinely-held beliefs are found to be erroneous and allegations which are malicious or which are made with disregard to basic facts”.

71. However, on the evidence before me, I am unable to determine that the matters the subject of the notification in this matter either amounted to “false complaints” or were “genuinely-held beliefs” that were “found to be erroneous”. In these circumstances, I am unable to find a public interest consideration in favour of disclosure of the relevant personal information arising out of the circumstances surrounding the relevant allegations made.

Clause 3(b) – Privacy legislation

72. Clause 3(b) contains a public interest consideration against disclosure, being that disclosure would contravene privacy legislation. The Respondent relies on section 18(1) of the Privacy and Personal Information Protection Act 1998 (NSW), which provides as follows:

“18 Limits on disclosure of personal information

(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless—

(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

(2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it”.

73. It is clear that disclosure of the personal information in question falls within s18(1) and does not fall within one of the exclusions allowed under that provision.

Balancing considerations for and against disclosure

74. I place significant weight on the considerations against disclosure set out in cl 1(d), as to disclosure prejudicing the supply to the Respondent of confidential information. I also place significant weight on the considerations set out in cl 1(f), as to disclosure prejudicing the effective exercise by an agency of the agency’s functions. Ensuring that staff involved in caring for patients in the hospital system of New South Wales are able to provide information on matters of concern without constraint is of essential importance, so that these matters can be identified and be properly dealt with. Fundamental to securing this outcome is the maintenance of confidentiality. Doing so goes both to avoiding prejudice to the supply of confidential information within cl 1(d) and avoiding prejudice to the effective exercise of the Respondent’s functions (cl 1(f)).

74. I also place significant weight on the considerations against disclosure on the grounds of information in the documents in question being personal information and also information whose disclosure is prohibited by s 18 of the PPIP Act. While the names of patients can be redacted, I do not consider that doing so would affect the weight I place on cl 3(a) and (b), in circumstances where information about their medical condition and treatment may, of itself, be sufficient to disclose their identity.

75. I place moderate weight on the public interest consideration against disclosure set out in cl 1(e) above. While deliberations or consultations of the relevant kind are protected under cl 1(e), what weight I would place on these matters needs to be determined by also having regard to the interest of the Applicant in knowing and understanding the particulars of the alleged matters of concern raised in regard to his work and conduct. Where a deliberation specifically concerns an individual, as opposed say to general matters of policy, the personal interests of the person, in my opinion, can and should be taken into account in determining what weight to place on the consideration set out in cl 1(e).

76. The Applicant relies on the public interest consideration favouring disclosure that disclosure could reasonably be expected to reveal or substantiate that the Respondent has engaged in misconduct or negligent, improper or unlawful conduct. The Applicant has, in support of his submission, raised a number of concerns regarding the actions of the Respondent and in particular, questions about whether the Respondent has complied with PD 2018-032 in the management of the matters of concern relating to the Applicant. The Respondent, on the other hand, submits that there is no evidence of any such misconduct, or negligent, improper or unlawful conduct.

77. I accept that the Applicant has grievances against the Respondent’s conduct in the handling of the alleged concerns relating to the Applicant. There is, however, insufficient evidence before the Tribunal for me to conclude that there has been any relevant misconduct or negligent, improper or unlawful conduct on the part of the Respondent.

78. The evidence is that, notwithstanding the matters of concern that were raised, the NSW Medical Council advised that it was not satisfied that it was appropriate to take action in response to the relevant notification. Such a finding does not necessarily mean that there was misconduct or negligent, improper or unlawful conduct on the part of the Respondent, in acting on the notification in question.

79. I accept that the Applicant seeks the relevant information in order to obtain evidence (if any) in support of his claims. However, in the absence of evidence revealing or substantiating relevant misconduct or negligent, improper or unlawful conduct, I am unable to place significant weight on the relevant consideration in favour of disclosure.

80. The significant weight attached to the public interest considerations against disclosure set out in cl 1(d) and (f), as well as the significant weight I attach to cl 3(a) outweighs the public interest considerations referred to above in favour of disclosure, including at [34].

81. In circumstances where the Applicant now has all of the information he seeks, subject only to the redaction of names within the documents in question, the consequence of possessing that information remain to be considered in carrying out the balancing exercise required of the Tribunal.

82. The Respondent submits that the possession of the information in question allows the Tribunal to attach less weight to the public interest considerations favouring disclosure, on the basis that the Applicant is already in possession of what he seeks. However, it could be equally argued that the fact of possession of the relevant information by the Applicant should allow for less weight to be placed on considerations against disclosure, in circumstances where the Applicant is already in possession of the information and also given the general presumption in favour of disclosure under s 12 of the GIPA Act.

83. I do not consider, in any event, that the Applicant’s possession of the information he seeks in the context of the Committee of Review proceedings assists either the Applicant (in making a case that the public interest considerations in favour of disclosure outweigh those against) or the Respondent (in making the contrary case). That is a determination that needs to be made on the basis of weighing the public interest considerations for and against disclosure stipulated in the GIPA Act as set out above. That is the task that the Tribunal needs to carry out within the scheme of the GIPA Act, regardless of any other means by which the Applicant has obtained or may in the future obtain the information he seeks, such as through a process of discovery in legal proceedings.

84. The consequences of providing to the Applicant the information he seeks would be to put him in possession of that information without the restraints of the Harman undertaking subject to which he currently holds that information. The use of the provisions of the GIPA Act to achieve such an outcome may raise a question as to whether the GIPA Act can be used to access information related to other proceedings, in a way that is inconsistent with the scheme for accessing information for the purposes of those other proceedings. It appears accepted that rights under freedom of information legislation are capable of exercise, even if doing so “might interfere with the due administration of justice” (Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 495, at [37]). However, I do not need to consider the matter further, having found that the balancing exercise required to be carried out under the terms of the GIPA Act, weighs against disclosure.

Documents

86. I make the following specific observations in respect of each of the seven documents in issue, having regard to the findings I have made as to where the balance of the public interest considerations in question weighs.

87. [NOT FOR PUBLICATION]

88. It is not unreasonable for the Applicant to expect an opportunity to address the concerns raised in regard to his work and conduct. These matters answer the description of personal information concerning him. However, for the reasons set out above, the public interest considerations against disclosure outweigh those in favour of disclosure.

89. The scheme of the GIPA Act is an independent scheme for access rights, where an applicant’s rights of access are to be determined under the terms of the GIPA Act, regardless, as I have found, of any other rights of access otherwise conferred on an applicant by law. However, the Tribunal notes that the Applicant has received the relevant information, subject to redaction of names and a Harman undertaking, in connection with the Committee of Review proceedings.

Orders

1. The administratively reviewable decision under review is affirmed.

2. Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the name of the Applicant or reference to any information, picture or other material that identifies the Applicant or is likely to lead to the identification of the Applicant is prohibited.

3. Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the contents of all paragraphs in these reasons marked NOT FOR PUBLICATION are not to be published or disclosed to the Applicant or the public.

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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: 16 December 2024