Khoo v South Western Sydney Local Health District

[2015] NSWCATAD 183

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Khoo v South Western Sydney Local Health District [2015] NSWCATAD 183

Hearing dates:

11 May 2015

Decision date:

03 September 2015

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Lucy, Senior Member

Decision:

1. The respondent’s decision to refuse to provide access to the information sought by the applicant is set aside.

2. The respondent is to provide the applicant with access to the information the subject of her application under the Government Information (Public Access) Act 2009 (NSW).

Catchwords:

GOVERNMENT INFORMATION – Information contained in medical records of applicant’s deceased grandmother - Public interest considerations in favour of disclosure – Interest in government accountability – Interest in disclosure of information relating to care of elderly people – Personal factors of application – Applicant’s close relationship to grandmother - Applicant’s concern to investigate suspected negligence - Public interest considerations against disclosure – Personal information of deceased person – Contravention of health privacy principle – Whether disclosure of information could reasonably be expected to prejudice the supply of confidential information – Whether disclosure of information could reasonably be expected to prejudice the effective exercise by the respondent of its functions – Lack of evidence to support public interest considerations against disclosure – Balancing of public interest considerations

Legislation Cited:

Government Information (Public Access) Act 2009 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW)
Health Records and Information Privacy Act 2002 (NSW)
Administrative Decisions Review Act 1997 (NSW)
Freedom of Information Act 1989 (NSW)

Cases Cited:

AEF v Northern Sydney Local Health District (No 2) [2012] NSWADT 89
JY v Commissioner of Police (2008) NSWADT 306
Black v Hunter New England Area Health Service [2008] NSWADT 301
Hurst v Wagga Wagga City Council [2011] NSWADT 307
Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252
St Joseph's Hospital Ltd v Correy [2008] NSWADTAP 4
Comcare v Fiedler [2001] FCA 1810
Norrie v NSW Registrar of Births Deaths and Marriages [2013] NSWCA 145
Wright v Commissioner of Police [2014] NSWCATAP 67
Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19
Raven v The University of Sydney [2015] NSWCATAD 104

Category:

Principal judgment

Parties:

Cecilia Khoo (Applicant)
South Western Sydney Local Health District (Respondent)

Representation:

Counsel:
P Rooney (Respondent)

Solicitors:
C Khoo (Applicant in person)
Curwoods Lawyers (Respondent)

File Number(s):

1410678

reasons for decision

1. This is an application for access to government information under the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”). The information in question is contained in medical records of the applicant’s deceased grandmother created in the days before she died. The applicant says that she wants the records in order to consider whether the respondent was negligent in providing medical services to her grandmother, and so she can have a sense of closure following her grandmother’s death.

BACKGROUND

2. The applicant’s grandmother was an elderly woman with dementia. She was cared for primarily by her daughter (“the aunt”), with whom she lived. The applicant cared for her grandmother, Ms Goh, on weekends. The applicant was estranged from her aunt.

3. Late on the evening of 31 July 2012 or early in the morning of 1 August 2012, the applicant’s grandmother was taken to hospital by ambulance. The applicant’s grandmother died in the early morning of 3 August 2012. The applicant has various concerns about the treatment given to her grandmother at the hospital and by the Ambulance Service of New South Wales.

4. On 24 July 2013, the applicant applied to the respondent for the following information:

1. complete copies of records/files of treatment given to Madam Goh by the Liverpool hospital ambulance paramedics when they were called to her home at [address] on late Tuesday night (31 July 2012) or early Wednesday morning (1 August 2012) and up to them bringing her to Liverpool Hospital emergency department.

2. Complete copies of all medical records/files relating to the treatment given to Madam Goh at Liverpool Hospital from the date she was first treated there… to the date of her death especially the treatment given to her from the date she was admitted late Tuesday night (31 July 2012) or early Wednesday morning (1 August 2012) to the time she died at 4:05 AM Friday morning (3 August 2012).

5. The applicant also sought an opportunity to discuss Ms Goh’s treatment with the respondent’s patient liaison officer. As the applicant now recognises, this request is not properly the subject of an application under the GIPA Act.

6. The respondent claims that there is an overriding public interest against disclosure of the information sought by the applicant. The public interest considerations against disclosure relied upon by the respondent are that disclosure of the information could reasonably be expected to have one or more of the following effects:

1. prejudice the supply to it of confidential information that facilitates the effective exercise of its functions;

2. prejudice the effective exercise by it of its functions;

3. reveal an individual’s personal information; and

4. contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW) or a Health Privacy Principle under the Health Records and Information Privacy Act 2002 (NSW).

7. On 30 July 2013, the respondent decided not to provide the applicant with access to the information sought.

8. On 10 September 2013, the applicant applied for an internal review of the respondent’s decision not to provide her with access to the information. The internal review officer decided, on 16 October 2013, not to provide access to the information applied for by the applicant.

9. On 9 December 2013, the applicant applied to the Information Commissioner for review of the respondent’s decision.

10. The Information Commissioner completed her review report on 3 September 2014. She considered that the agency had not explained which personal factors of the application it had considered pursuant to s 54 of the GIPA Act, nor how its decision making process was affected by the personal factors. She noted that relevant personal factors may include the applicant’s relationship with her grandmother and/or the next of kin, her motives for making the access application and any other relevant factors. The Information Commissioner recommended, pursuant to s 93 of the GIPA Act, that the respondent make a new decision within 15 working days of the date of the Information Commissioner’s report.

11. The respondent consulted with two persons before making an internal review decision, on 7 October 2014, not to provide access to the information applied for by the applicant. One of these persons was the Ambulance Service of New South Wales, as some of its records are held by the respondent and captured by her application. The Ambulance Service objected to the release of a patient record in circumstances where the patient’s nearest relative had not provided consent to access the patient’s records, for the reasons set out in clause 3(b) of the table in section 14 of the GIPA Act.

12. The other person with whom the respondent consulted is the daughter of Ms Goh, with whom Ms Goh was living immediately prior to her death (“the aunt”). It is common ground that the aunt was Ms Goh’s primary carer, and that the applicant took care of Ms Goh on the weekends. The aunt objected to the disclosure of information to the applicant in a letter to the respondent. She did not give evidence in the Tribunal.

13. The basis of the aunt’s objections related to her claim that disclosure would expose the aunt to a risk of harm or of serious harassment or serious intimidation, that disclosure would prejudice the aunt’s legitimate business, commercial, professional or financial interests and that disclosure would reveal false or unsubstantiated allegations about the aunt which are defamatory (within cl 3(f), cl 4(d)) and cl 3(e) respectively of the table in s 14 of the GIPA Act). The aunt claimed that the applicant was harassing her or making false or unsubstantiated allegations about her. These allegations were, according to the aunt, that the aunt had withheld treatment to Ms Goh so that Ms Goh would die quickly, and that the aunt had given Ms Goh the flu which led to her death.

14. The aunt made various allegations about the applicant which the applicant disputed in oral evidence given to the Tribunal. The aunt said that her siblings agreed that her mother’s medical records should not be released and that there would be nothing achieved by releasing them.

15. On 1 December 2014, the applicant applied to this Tribunal for a review of the respondent’s decision of 7 October 2014.

RELEVANT LEGISLATION

16. The object of the GIPA Act is to "is to open government information to the public" in stated ways “[i]n order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective” (GIPA Act, s 3(1)).

17. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5).

18. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information (GIPA Act, s 9(1)).

19. There is a general public interest in favour of the disclosure of government information (GIPA Act, s 12(1)). In the notes to s 12(2) of the GIPA Act, examples are given of public interest considerations in favour of disclosure of information. These include that disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct (example (e)).

20. There is an overriding public interest against disclosure of government information 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 (GIPA Act, s 13).

21. The public interest considerations listed in the table to s 14 are the only considerations, where Schedule 1 does not apply, that may be taken into account as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information (GIPA Act, s 14(2)).

22. As already indicated, the respondent relies on the following public interest considerations in the table to s 14:

“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,

…

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

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, …”

23. Section 15 of the GIPA Act sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. That section provides as follows:

“15 Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:

(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.”

24. Two relevant guidelines have been issued by the Information Commissioner to which regard must be had under s 15(b) of the GIPA Act. They are entitled “Guideline 4: Personal information as a public interest consideration under the GIPA Act” and “Guideline 5 - Consultation on public interest considerations under section 54.”

25. The requirement for an agency to take steps to consult is contained in s 54 of the GIPA Act. Section 54 relevantly provides:

“54 Consultation on public interest considerations

(1) An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that:

(a) the information is of a kind that requires consultation under this section, and

(b) the person may reasonably be expected to have concerns about the disclosure of the information, and

(c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information.

(2) Information relating to a person is of a kind that requires consultation under this section if the information:

(a) includes personal information about the person, or

(b) concerns the person’s business, commercial, professional or financial interests, or…

(3) If consultation is required concerning the release of personal information about a deceased person, that consultation is to be done by consultation with a close relative of the deceased.

(4) The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection.”

26. The GIPA Act also provides that "personal factors" of the application may be taken into account in some circumstances. Subsections 55(1) to (3) provide:

“55 Consideration of personal factors of application

(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section:

(a) the applicant's identity and relationship with any other person,

(b) the applicant's motives for making the access application,

(c) any other factors particular to the applicant.

(2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.”

27. In proceedings to review a decision made under the GIPA Act to refuse access to government information in response to an access application, the burden of establishing that the decision is justified lies on the respondent agency: GIPA Act, s 105(1).

28. The Tribunal's function on review under s 63 of the Administrative Decisions Review Act 1997 (NSW) is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable written or unwritten law.

PUBLIC INTEREST CONSIDERATIONS IN FAVOUR OF DISCLOSURE

29. The applicant relied on the following considerations in favour of disclosure of her grandmother’s medical records. She said that disclosure of the information could reasonably be expected to reveal or substantiate that an agency has engaged in negligent conduct, relying on the example given in paragraph (e) following s 12(2) of the GIPA Act. The respondent acknowledged that that example was relevant to the applicant’s application.

30. The applicant alleged that Liverpool Hospital may have acted negligently by giving a frail, 44 kg, 88-year-old lady two pints of blood very fast and when she had a fever. She said that her grandmother was talking normally before she was taken to the blood transfusion room but was in a coma when she came back. The applicant claimed that the hospital treatment records would reveal whether Ms Goh had a fever when she was given the blood transfusion, the amount of blood that was given and the speed at which the blood transfusion was given. She also said that staff at Liverpool Hospital were negligent in not arranging for her grandmother to be wheeled from the emergency department to the intensive care unit where she could be constantly monitored by medical staff given the serious condition she was in.

31. In addition, the applicant relied upon other public interest considerations in favour of disclosure. These included the examples given in paragraphs (a) and (b) following s 12(2) of the GIPA Act. These are that disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance government accountability or contribute to positive and informed debate on issues of public importance and that disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

Consideration

32. There is a general public interest in favour of the disclosure of the information sought by the applicant (GIPA Act, s 12(1)). There are also specific public interests in favour of such disclosure.

33. The information sought by the applicant is contained in her grandmother’s medical records. There is no expert evidence before the Tribunal which would allow it to make a finding about whether disclosure of the information could reasonably be expected to reveal or substantiate that the respondent has engaged in negligent conduct. However, the Tribunal accepts that there is a public interest in disclosure of the information in that it could enhance government accountability by allowing the applicant to make enquiries about whether the information in fact substantiated her suspicion that the respondent had engaged in negligent conduct and, if so, to take action in relation to such conduct.

34. I accept that disclosure of the information could reasonably be expected to inform the public about the operations of the respondent, insofar as it could be expected to inform the applicant, as a member of the public, about those operations, in relation to her grandmother.

35. The applicant relied upon AEF v Northern Sydney Local Health District (No 2) [2012] NSWADT 89. In that case, the Tribunal recognised the public interest in the care and protection of children and people with disabilities (see also JY v Commissioner of Police (2008) NSWADT 306 at [58]). The applicant said that there was a similar public interest in the care of elderly people and, in particular, people with dementia. The applicant also submitted that there was a public interest in knowing about systems for monitoring elderly patients after they have been given blood transfusions.

32. I accept the applicant’s submission that there is a public interest in the disclosure of information relating to the care of elderly people and people with dementia. These people are likely to be vulnerable and the disclosure of information makes transparent systems for caring for them which is a form of protection against exploitation or neglect of the elderly and those with dementia.

PERSONAL FACTORS OF THE APPLICATION

37. The applicant's identity and relationship with any other person, her motives for making the access application and any other factors particular to the applicant are personal factors of the application which may be taken into account in favour of providing the applicant with access to the information (GIPA Act, s 55(1), (2)).

38. The applicant provided evidence of what she said was her close relationship with her grandmother. In her application to the respondent for the information, she said that her grandmother was like a mother to her after her own mother’s death. The evidence provided to the Tribunal of the applicant’s close relationship with her grandmother included typed words of remembrance which the applicant said she spoke at her grandmother’s funeral service and a photograph showing her with her grandmother on her eighty-eighth birthday in 2012. The applicant also gave unchallenged evidence that she cared for her grandmother on weekends. She said she was in charge of organising Ms Goh’s memorial service.

39. The applicant explained her motives for seeking the information as follows. She said she needed to find out whether there was negligence on the part of the hospital or the Ambulance Service, so they will improve on their processes and not negligently cause other deaths. She also said she needs the records to gain closure following her grandmother’s death. In a letter to the respondent written in July 2013, the applicant also says that the disclosure of the information would assist her in understanding what led to her grandmother’s death.

40. The respondent submits that it has taken into account that the information applied for relates to the applicant’s grandmother. However, it says that the applicant is not Ms Goh’s “authorised representative” within s 8 of the Health Records and Information Privacy Act, does not fall within the definition of an “immediate family member” in s 4(1) of that Act and was not Ms Goh’s primary carer.

41. The respondent also notes that the applicant intends to make a complaint to the Health Care Complaints Tribunal (as she refers to it) if negligence is revealed from the hospital’s records. The respondent does not explain the relevance of this.

Consideration

42. The Tribunal accepts the applicant’s evidence, which was unchallenged, that she had a close relationship with her grandmother and provided care to her grandmother. This is a factor in favour of disclosure of Ms Goh’s health information to the applicant.

43. The respondent has not established that it is relevant that the applicant is not an “immediate family member” of Ms Goh within s 4(1) of the Health Records and Information Privacy Act. This definition is only relevant where the exception to the prohibition against disclosure in health privacy principle 11(1)(g) of that Act is in issue. The applicant did not raise the application of this exception.

44. It is not necessary to decide whether the applicant is an “authorised representative” of Ms Goh within s 8 of the Health Records and Information Privacy Act, as this definition is primarily of relevance where a (living) person lacks capacity. That is not the situation here. Whether the applicant is an “authorised representative” of her grandmother for the purposes of the Health Records and Information Privacy Act is not a factor of any significance in the circumstances of this case, when determining the applicant’s identity and relationship to Ms Goh for the purposes of s 55(1) of the GIPA Act.

45. The Tribunal accepts that the applicant’s motives for making the access application are as she has described them. It finds that these are factors which may be taken into account as factors in favour of providing the applicant with access to the information.

46. If the respondent’s reference to the applicant’s intention to make a complaint to the Health Care Complaints Commission is made to indicate that this is a personal factor of the application which tends against disclosure, I do not accept that this is the case. On the contrary, the applicant’s capacity to make any such complaint would enhance government transparency.

PERSONAL INFORMATION AND PRIVACY PRINCIPLES (cl 3(a) and (b))

47. The respondent relies upon cl 3(a) and (b) of the table contained in s 14 of the GIPA Act, concerning the revelation of an individual’s personal information and the contravention of a privacy principle.

48. The applicant accepts that the subject of the applicant’s GIPA application is Ms Goh’s health information within s 6 of the Health Records and Information Privacy Act or her personal information within the Privacy and Personal Information Protection Act. However, she submits that disclosure of such information to her would not contravene health privacy principle 11 in cl 11 of Sch 1 to the Health Records and Information Privacy Act, because disclosure to her is necessary to lessen or prevent a serious threat to public health within cl 11(1)(c)(ii). This is because, in the applicant’s submission, suspected improper practices by ambulance paramedics need to be investigated for the safety of future sick members of the public who seek their services. She makes a similar argument in relation to disclosure of her grandmother’s personal information to her.

Consideration

49. I find that the information the subject of the applicant’s GIPA application is Ms Goh’s health information within s 6 of the Health Records and Information Privacy Act. It is not her “personal information” within s 4 of the Privacy and Personal Information Protection Act because “health information” is excluded from the definition of “personal information” for the purposes of that Act (see s 4A). It is, however, her “personal information” within the GIPA Act (Sch 4, cl 4).

50. Disclosure of that information would breach the non-disclosure principle in cl 11 of Sch 1 to that Act (health privacy principle 11), unless an exception applied. The applicant has not provided evidence of a serious threat to public health within cl 11(1)(c)(ii) of Sch 1 to the Health Records and Information Privacy Act, or that there is a serious and imminent threat to the life, health or safety of a person within cl 11(1)(c)(i). I am not persuaded that an exception to the prohibition against disclosure of Ms Goh’s health information applies.

51. Accordingly, I am satisfied that both the public interest considerations against disclosure in cl 3(a) and (b) of the table to s 14 of the GIPA Act apply to the information the subject of the applicant’s application.

PREJUDICE TO EXERCISE OF AGENCY’S FUNCTIONS (cl 1(d) and (f))

52. The respondent submits that disclosure of the information sought could prejudice or influence a patient’s willingness to provide confidential information to people from whom they seek care, when they receive care and from where they seek care. The respondent also said it could affect the information the patient discloses to it, thereby affecting the care the patient receives, and submitted that it would be undesirable for doctors to restrict what they wrote on medical records.

53. The respondent submits, further, that patient treatment in the health system is entirely information based and any resistance to the free flow of information between care providers and patients prevents the patient from receiving the best possible care and would likely prejudice the respondent’s effective exercise of its functions.

54. The respondent relies upon Black v Hunter New England Area Health Service [2008] NSWADT 301 at [35]. This was a review of a decision under the now repealed Freedom of Information Act 1989 (NSW) (“FOI Act”). Mr Black applied to the Health Service for access to a “Triage Report” on him. The Triage Report was provided on a confidential basis, appears to have concerned Mr Black’s mental health and included the name of the person providing information about Mr Black to the Health Service and the reasons for the referral. The Health Service refused access, claiming that the exemption in cl 13 and 16 of Schedule 1 of the FOI Act for documents containing confidential material and documents the disclosure of which could reasonably be expected to have a substantial adverse effect on the effective performance by an agency of its functions. The former Administrative Decisions Tribunal found (at [35]-[36]) that disclosure of the unredacted document could be reasonably expected to have a substantial adverse effect on the effective performance by the Health Service of its functions.

55. Mr Rooney, for the respondent, also submitted that the fact that a person who has provided information is now deceased does not affect the argument. This is because, in Mr Rooney’s submission, a patient’s own death is unlikely to be in the mind of the patient when the patient is contemplating providing confidential information.

56. The applicant submitted that the public interest considerations in cl 1(d) and (f) of the table in s 14 of the GIPA Act should be given little weight. She noted that she was not just a member of the public. She said that a consumer of the respondent would not be concerned about disclosure to someone like the applicant if they were made aware of the relevant circumstances, including that she was a devoted granddaughter and has strong suspicions that the respondent and the Ambulance Service had been negligent.

Consideration

57. The public interest consideration against disclosure in cl 1(f) applies if disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions. The word “prejudice” is to be given its ordinary meaning, namely: “to cause detriment or disadvantage”: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60], Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 at [65].

58. The respondent has referred to cl 1(f) in its internal review decision of 7 October 2014, and in its submissions to this Tribunal, but it has not fully articulated how it says that the effective exercise of its functions would be prejudiced by the disclosure of the information in question. The only factors it has identified which may be of relevance to cl 1(f) are its expectation that its “consumers” would be concerned about the disclosure of the information, that such disclosure may prejudice a patient’s willingness to provide it with confidential information and that doctors may restrict what they write on medical records. There is no evidence to support these claims. The respondent’s submission that the lack of free flowing information would prevent the patient from receiving the best possible care and likely prejudice the respondent’s effective exercise of its functions does not explain which functions would be prejudiced and, if so, how this would occur.

59. In order for the public interest consideration against disclosure in cl 1(d) to apply, the respondent must establish that information of the kind sought by the applicant is confidential information, that its disclosure could reasonably be expected to prejudice the supply to the respondent of confidential information and that such supply facilitates the effective exercise of the respondent's functions.

60. The respondent provided no direct evidence as to the confidentiality of Ms Goh’s medical records and the respondent has the burden of proof (see GIPA Act, s 105). However, it is apparent from the respondent’s internal review decision of October 2014 that the respondent’s practice is not to release medical records in the absence of a signed consent form. I am required to have regard to “any relevant factual material” before the Tribunal and I consider that the material in the internal review determination meets that description. The applicant does not dispute that the information in question is confidential. Once a matter is conceded, either expressly or impliedly, the Tribunal is entitled to make a finding of fact on the basis of that concession: St Joseph's Hospital Ltd v Correy [2008] NSWADTAP 4 at [7], Comcare v Fiedler [2001] FCA 1810 at [40]-[41]. I note, also, that the agency is prohibited from disclosing such records under the Health Records and Information Privacy Act, other than to the individual or with his or her consent, except in limited circumstances. This is consistent with a finding that the information is confidential. On balance, I find that there is sufficient factual information before me to make a finding that the information contained in Ms Goh’s medical records is confidential.

61. In case I am wrong and the evidence does not support a finding that Ms Goh’s medical records are confidential, I also consider that I am entitled to take judicial notice of the circumstance that hospital medical records are confidential as this is a fact which is “open and notorious” (see Norrie v NSW Registrar of Births Deaths and Marriages [2013] NSWCA 145, Beazley ACJ at [94]; Wright v Commissioner of Police [2014] NSWCATAP 67 at [64]).

62. For these reasons, I find that the medical records of Ms Goh contain confidential information.

63. The next question is whether the respondent has established that disclosure of the information contained in Ms Goh’s medical records could reasonably be expected to prejudice the supply to it of confidential information.

64. The case relied upon by the respondent, Black v Hunter New England Area Health Service [2008] NSWADT 301, does not greatly assist in determining whether, in the circumstances of the present proceedings, disclosure of the information sought could reasonably be expected to prejudice the supply to the respondent of confidential information that facilitates the effective exercise of its functions. This will depend upon the facts of each case.

65. In Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19 at [28] to [29] and [31], the Appeal Panel of the former Administrative Decisions Tribunal observed that, when determining whether cl 1(d) and 1(f) of the table in s 14 of the GIPA Act apply, the Tribunal is required to engage in a relatively abstract analysis. The Appeal Panel commented that the Tribunal needed to ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation.

66. Whilst the analysis the Tribunal is required to conduct is “relatively abstract,” this does not obviate the need for a respondent to provide some evidence relevant to the question of whether disclosure could reasonably be expected to have the effect of prejudicing the supply of confidential information to an agency or of prejudicing the effective exercise of the agency’s functions, unless this is a matter of which the Tribunal is entitled to take judicial notice. As I commented in Raven v The University of Sydney [2015] NSWCATAD 104 at [52]:

“The ‘relatively abstract’ nature of the Tribunal’s analysis does not mean that the Tribunal may proceed upon mere speculation. There must be some evidentiary basis from which the Tribunal may infer that disclosure of the information sought could reasonably be expected to prejudice the supply to an agency of confidential information. It is not sufficient for the respondent to make an assertion that this is the case: cf Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135, at [123].”

67. The respondent has not adduced any evidence in support of its contention that the disclosure of Ms Goh’s medical records to her granddaughter would prejudice the supply of confidential information to the respondent in the future. For example, the proposition that doctors would be circumspect in what they wrote on medical records has no evidentiary foundation.

68. I do not accept the respondent’s submission that the circumstance that Ms Goh is deceased has no relevance to the question of whether release of her medical records to her granddaughter would prejudice the supply of confidential information to it. In my view, it could reasonably be expected that a hospital patient would be less likely to be concerned about providing information to a hospital if he or she anticipated that the information could be disclosed to a relative after his or her death, than if he or she anticipated that the information could be disclosed to a third party during his or her life time. I am not satisfied that it could be reasonably expected that provision of Ms Goh’s medical information to her granddaughter after her death, in circumstances where her granddaughter was one of her carers before her death, would deter others from providing health or personal information to the hospital or Ambulance Service, or from using either service, in the future.

69. For these reasons, the respondent has not discharged its onus of establishing that disclosure of Ms Goh’s medical records to her granddaughter could reasonably be expected to prejudice the supply of confidential information to an agency that facilitates the effective exercise of its functions, or to prejudice the effective exercise of an agency’s functions.

BALANCING THE PUBLIC INTEREST CONSIDERATIONS

70. I have found that the public interest considerations in favour of disclosure include:

1. the general public interest in favour of disclosure;

2. that disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance government accountability or contribute to positive and informed debate on issues of public importance;

3. that disclosure of the information could reasonably be expected to inform the public about the operations of the respondent; and

4. the public interest in the disclosure of information relating to the care of elderly people and people with dementia.

71. The personal factors of the application favouring disclosure are that:

1. the applicant is Ms Goh’s granddaughter;

2. she had a close relationship with her grandmother and provided care to her grandmother;

3. one of her motives in seeking the information is to find out whether there was any negligence by the hospital or the Ambulance Service which contributed to her grandmother’s death;

4. she is also seeking the information in order to better understand her grandmother’s death and to gain closure.

72. The public interest considerations against disclosure are that disclosure of the information could reasonably be expected to reveal Ms Goh’s personal information and to contravene a health privacy principle under the Health Records and Information Privacy Act. The respondent submits that disclosure of Ms Goh’s health information to someone who is not an “authorised representative” within ss 7 and 8 of the Health Records and Information Privacy Act “would cause great concern to the consumers of the Respondent that it could be practice to disclose such information despite consent not being given.”

73. Relevant to the weighing of these public interest considerations against disclosure are the views of any objectors. The respondent submits that weight should be given to the objection by the Ambulance Service of NSW to the release of its medical records of Ms Goh on the basis of privacy concerns. The respondent also submits that weight should be given to the objection to the release of Ms Goh’s personal information by the aunt, to whom it refers as Ms Goh’s “authorised representative.” The respondent submits that the authorised representative is genuinely concerned about her own safety, as demonstrated by a report she made to the police (which is not in evidence).

74. The applicant submitted that the views of the Ambulance Service should be given little weight. The applicant addressed the matters raised by the aunt in her submissions (which do not relate to cl 3(a) and (b)). She also submitted that the respondent had not taken into account that the authorised representative may be acting maliciously.

Weight to be given to views of objectors

75. I give the views of the Ambulance Service, to the effect that the information should not be disclosed because disclosure would contravene a health privacy principle, very little weight. This is because the requirement to consult with the Ambulance Service arose because the respondent considered that the information sought concerned the “business, commercial, professional or financial interests” of the Ambulance Service (GIPA Act, s 55(2)(b)). The Ambulance Service has not identified, in its response, how disclosure of Ms Goh’s personal information would affect those interests.

76. The weight to be given to the consideration that disclosure would contravene a health privacy principle is a different matter and is discussed further below.

77. There is no evidence that the aunt is Ms Goh’s “authorised representative” within s 8 of the Health Records and Information Privacy Act as claimed by the respondent. There is evidence that the aunt was made Ms Goh’s attorney, pursuant to a power of attorney made in 2001. However, that power of attorney was not an enduring power of attorney and was not effective if Ms Goh lost capacity. There is evidence that Ms Goh had dementia at the time of her death. A specialist geriatrician’s report made in July 2008 describes Ms Goh’s dementia as “moderate.” The aunt described Ms Goh’s dementia as being such that “she lost the ability to speak intelligibly.” In these circumstances, the respondent has not established that the aunt is Ms Goh’s “authorised representative.”

78. The issue of whether the aunt is an “authorised representative” of Ms Goh within the Health Records and Information Privacy Act is not, in any event, determinative. The aunt is a person with whom the respondent has to consult in relation to the access application if she is “a close relative of the deceased” and consultation is otherwise required (GIPA Act, s 54(3)). The term “close relative” is not defined, but it would include the aunt as Ms Goh’s daughter. Accordingly, we are satisfied that consultation with the aunt was authorised.

79. The aunt’s objections did not relate to the public interest considerations that the information in question was Ms Goh’s personal information, or that release of that information would contravene a health privacy principle; rather, the aunt’s concerns were about the effect which release of the information to the applicant would or may have on the aunt. The agency does not rely upon the public interest considerations to which the aunt directed her objections (that is, cl 3(e), 3(f) and 4(d) of the table in s 14 of the GIPA Act). Nor has the respondent adduced any evidence that disclosure of the information could reasonably be expected to have any of the effects identified in cl 3(e), 3(f) or 4(d).

80. In these circumstances, whilst I have had regard to the circumstance that Ms Goh’s daughter objects to the disclosure of Ms Goh’s personal information to the applicant, I have not taken into account the allegations she makes against the applicant and I have not taken into account any of the public interest considerations against disclosure in cl 3(e), 3(f) or 4(d) of the table in s 14 of the GIPA Act, upon which the aunt relies.

Weight to be given to public interest considerations

81. The public interest considerations which apply when it could be reasonably expected that disclosure would reveal personal information (as defined in the GIPA Act) and contravene a health privacy principle are generally given a significant amount of weight. Greater weight is generally to be attributed to these considerations when the information in question is particularly sensitive. I consider that health information in a patient’s medical records is sensitive information and, in most circumstances, there would be a very strong public interest in non-disclosure of such information. The weight to be given to the public interest against disclosure may, however, diminish after an individual’s death, when disclosure will no longer have a direct impact on the individual.

82. In the present circumstances, I consider that the public interest against disclosure of the information is outweighed by the personal factors of the application and the public interest considerations in favour of disclosure which are outlined above. The personal factors of the application are, in this case, to be given substantial weight. As the granddaughter and former carer of Ms Goh, the applicant has an interest in gaining access to the records. Her motivations are to understand what caused her grandmother’s death, to investigate her suspicions of negligence and to gain a sense of closure. Whilst the Tribunal has not formed any view about whether there was in fact any negligence as alleged by the applicant, it is consistent with the public interests in favour of disclosure, set out above, that the applicant be given an opportunity to explore this possibility.

83. For these reasons, the correct and preferable decision is to set aside the respondent’s decision to refuse to provide access to the information and, in substitution for that decision, to make a decision to provide access to the information sought by the applicant.

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: 03 September 2015