Hayley Paddon v Northern NSW Local Health District

[2020] NSWCATAD 24

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Hayley Paddon v Northern NSW Local Health District [2020] NSWCATAD 24
Hearing dates:	On the papers
Date of orders:	20 January 2020
Decision date:	20 January 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Mulvey, Senior Member
Decision:	The board of the Northern NSW Local Health District meets the definition of being an ‘agency’ pursuant to the provisions of s5 of the GIPA Act.
Catchwords:	ADMINISTRATIVE LAW – government information – preliminary question - whether the board of a local health district is an public authority.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Health Services Act 1997
Cases Cited:	None cited
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Hayley Paddon (Applicant) Northern NSW Local Health District (Respondent)
Representation:	Solicitors:   T Lawson (Respondent) Applicant (Self Represented)
File Number(s):	2019/00022935
Publication restriction:	Nil

REASONS FOR DECISION

1. Ms Hayley Paddon, (the applicant) applied for information from the Northern NSW Local Health District (the respondent) under the Government Information (Public Access) Act 2009 (the GIPA Act) on 10 August 2018 (Access Application). The information related essentially to communication passing between the respondent and its board members.

2. On 28 August 2018, the applicant entered into a negotiation with the respondent as to the scope of the Access Application. On 6 September 2018, the respondent made a decision that no documents had been found that fell within the scope of the Access Application.

3. External review of the 6 September 2018 decision was undertaken by the Information and Privacy Commission (IPC) following a request by the applicant.

4. On 19 December 2018, the respondent internally reviewed its decision, and, decided to provide to the applicant information which was outside the terms of the Access Application.

5. On 24 January 2019, the applicant, by her agent Dr Allison Adams, filed with this Tribunal an application under the GIPA Act. The applicant seeks that the Tribunal review the decision of the respondent made 19 December 2018, which related to a request for the following information:

1. All correspondence (record, report, draft report, request, consultation, electronic records, meeting notes or other files) between any of the following people on the respondent’s Board: Dr John Griffin, Mr Pat Grier, Ms Carolyn Byrne, Professor Susan Nancarrow, and Mr Mark Humphries; and any other persons or businesses, regarding the site selection process for the proposed Tweed Valley Hospital site within the Tweed Shire, which may also be referred to in communication as a ‘green belt’ or ‘green field’ site.

2. All reports and correspondence (record, report, draft report, request, consultation, electronic records, meeting notes or other files) between the following individuals: Dr John Griffin, Mr Pat Grier, Ms Carolyn Byrne, and Mr Mark Humphries; and any other persons or businesses, in relation to the respondent’s clinical services plan.

3. All correspondence (record, report, draft report, request, consultation, electronic records, meeting notes or other files) between Ms Carolyn Byrne and Mr Glenn Searle, Mr Don Beck, Mrs Lynn Beck, Mr Idwall Richards, Mr Alan McIntosh, Mr Warren Polglase, Mr James Owen, Mr Pearce Allsop, Mr Wes Allen, Mr Phillip Hanna, Mr Kerry Prichard, Mr Duane Joyce, Mr Joe Agius.

Representation of the Applicant

6. The applicant seeks for Dr Adams to act as her agent in these proceedings. There was no application made by the respondent to oppose leave being granted for Dr Adams to represent the applicant. The Tribunal pursuant to s45 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) may grant leave for Dr Adams to represent the applicant. In circumstances where no issue has been made in this regard, the Tribunal grants leave for Dr Allison Adams to represent the applicant in these proceedings pursuant to s45 of the NCAT Act.

The Hearing

7. The matter was agreed to be determined on the papers without a hearing by consent.

8. On 10 June 2019, the Tribunal ordered that the case will be decided without the need for parties to be present. It noted in the order: ‘The Tribunal notes that the question of whether the Tribunal has jurisdiction in regard to emails held by board members who are private individuals will be determined as a preliminary issue.’

Jurisdiction of the Tribunal

9. The respondent contends that the information requested by the applicant relates to information held by its board members who it says are not employees of the organisation and that the GIPA Act does not apply.

10. The following is relevant with regard to the preliminary question to be determined.

The Legislative Regime

11. Section 5 of the GIPA Act provides:

“5 Presumption in favour of disclosure of government information

There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.”

12. Section 4 of the GIPA Act defines "agency"to mean any of the following: 

(a) a Public Service agency, 

(b) a Minister (including a person employed by a Minister under Part 2 of the Members of Parliament Staff Act 2013 ),

(c) a public authority, 

(d) a public office, 

(e) a local authority, 

(f) a court, 

(g) a person or entity that is an agency pursuant to regulations under clause 5 of Schedule 4.

Note : Schedule 4 contains definitions of

"Public Service agency" ,

"public authority" , 

"local authority" , 

"public office" and 

"court" .

The Information Commissioner publishes a list of agencies and their contact details.

13. A “public authority” is defined in clause 2 of schedule 4of the GIPA Act to mean:

2 PUBLIC AUTHORITIES 

(1) In this Act, "public authority" means: 

(a) a statutory body representing the Crown, or 

(b) a body (whether incorporated or unincorporated) established or continued for a public purpose by or under the provisions of a legislative instrument, or 

…

(2) The regulations may declare any of the following bodies to be a public authority: 

(a) a body (whether incorporated or unincorporated) established for a public purpose otherwise than by or under the provisions of a legislative instrument, 

(b) a body (whether incorporated or unincorporated) that is established by the Governor or by a Minister or that is an incorporated company or association over which a Minister is in a position to exercise direction or control. 

(3) None of the following is a public authority for the purposes of a provision of this Act: 

(a) an incorporated company or association (unless declared to be a public authority for the purposes of the provision by a regulation under this clause), 

…

(4) An unincorporated body that is a board, council, committee, subcommittee or other body established or continued by or under the provisions of a legislative instrument for the purpose of assisting, or exercising functions connected with, an agency is not to be regarded as a separate public authority and instead is to be regarded as part of and included in the agency. 

…

14. Section 9 of the GIPA Act provides:

(1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information. 

(2) An agency is not subject to the direction or control of any Minister in the exercise of the agency's functions in dealing with a particular access application. 

(3) The function of making a reviewable decision in connection with an access application made to an agency may only be exercised by or with the authority (given either generally or in a particular case) of the principal officer of the agency.

15. Section 58 of the GIPA Act provides:

58 HOW APPLICATIONS ARE DECIDED 

(1) An agency decides an access application for government information by: 

(a) deciding to provide access to the information, or 

(b) deciding that the information is not held by the agency, or 

(c) deciding that the information is already available to the applicant (see section 59), or 

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

(e) deciding to refuse to deal with the application (see section 60), or 

(f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. 

Note : These decisions are reviewable under Part 5. 

(2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. 

(3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.

Is the respondent a body for the purposes of determining whether it is a public authority

16. It is relevant to understand how the respondent is created by statute.

17. Under section 17 of the Health Services Act 1997 (NSW) (the HSA) the respondent is a local health district. Section 17 provides:

17 CONSTITUTION OF LOCAL HEALTH DISTRICTS

(1) There are constituted by this section such local health districts as are specified from time to time in column 1 of Schedule 1. 

(2) A local health district is a body corporate with the corporate name specified in column 1 of Schedule 1.

18. Schedule 1 of the HSA lists the respondent as a local health district.

19. The respondent is constituted as a body corporate (see section 17(2) of the HSA), and is governed by its board constituted by section 26 of the HSA. Schedule 4A of the HSA sets out the constitution and procedure of the board. It is also a “public health organisation” pursuant to s 7(a) of the HSA.

20. Section 8 of the HSA provides that the principal reason for constituting local health districts is to facilitate the conduct of public hospitals and health institutions and the provision of health services for residents of the areas of the State in respect of which the districts are constituted.

21. Pursuant to s 22 of the HSA a local health district may take proceedings in its corporate name and “may do and suffer all other things that a body corporate may, by law, do and suffer that are necessary for or incidental to the purposes for which the local health district is constituted”.

22. The functions of a local health district board are set out in section 28 of the HSA and include:

28 FUNCTIONS OF LOCAL HEALTH DISTRICT BOARDS 

(1) The local health district board for a local health district has the following functions-- 

(a) to ensure effective clinical and corporate governance frameworks are established to support the maintenance and improvement of standards of patient care and services by the local health district and to approve those frameworks, 

(b) to approve systems-- 

(i) to support the efficient and economic operation of the local health district, and 

(ii) to ensure the district manages its budget to ensure performance targets are met, and 

(iii) to ensure that district resources are applied equitably to meet the needs of the community served by the district, 

(c) to ensure strategic plans to guide the delivery of services are developed for the local health district and to approve those plans, 

(d) to provide strategic oversight of and monitor the local health district's financial and operational performance in accordance with the State-wide performance framework against the performance measures in the performance agreement for the district, 

(e) to appoint, and exercise employer functions in relation to, the chief executive of the local health district, 

(e1) to ensure that the number of NSW Health Service senior executives employed to enable the local health district to exercise its functions, and the remuneration paid to those executives, is consistent with any direction by the Health Secretary or condition referred to in section 122 (2), 

(f) to confer with the chief executive of the local health district in connection with the operational performance targets and performance measures to be negotiated in the service agreement for the district under the National Health Reform Agreement, 

(g) to approve the service agreement for the local health district under the National Health Reform Agreement, 

(h) to seek the views of providers and consumers of health services, and of other members of the community served by the local health district, as to the district's policies, plans and initiatives for the provision of health services, and to confer with the chief executive of the district on how to support, encourage and facilitate community and clinician involvement in the planning of district services, 

(i) to advise providers and consumers of health services, and other members of the community served by the local health district, as to the district's policies, plans and initiatives for the provision of health services, 

(j) to endorse the local health district's annual report, 

(k) to liaise with the boards of other local health districts and specialty network governed health corporations in relation to both local and State-wide initiatives for the provision of health services, 

(l) such other functions as are conferred or imposed on it by the regulations. 

(2) A local health district board must not exercise a function in a way that is inconsistent with the exercise of a function by the Health Secretary (including a function that has been delegated to the Health Secretary).

The Tribunal’s Consideration

23. It is evident that the respondent is a body corporate pursuant to the provisions of the HSA. There is no evidence before me indicating that the respondent is an incorporated body, but rather a body corporate created by statute (section 17(2) of the HSA). It is clear in my view that the board of the respondent is charged with carrying out the functions contained in section 28 of the HSA which are for the purpose of assisting, and exercising functions connected with the Northern NSW Local Health District.  The board can not therefore be regarded as a separate public authority but instead is to be regarded as part of and included in the agency.

24. Given these findings, I am satisfied that the Board of the respondent meets the definition as set out in clauses 2(1)(b) and (4) of Schedule 4 of the GIPA. As such, I am satisfied that the members of the respondent’s board meet the definition of being included in the ‘agency’ pursuant to the provisions of s5 of the GIPA Act.

25. The respondent’s contention that it need not include information held by its board members as they are not officers or employees of the respondent is in my view incorrect.

26. As this matter was listed for a preliminary determination on this issue, parties are at liberty to restore the matter to the Tribunal’s list for further directions.

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: 20 January 2020