KT v Sydney South West Area Health Services - [2010] NSWADT 94

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CITATION: KT v Sydney South West Area Health Services [2010] NSWADT 94

DIVISION: General Division

PARTIES:
APPLICANT
KT
RESPONDENT
Sydney South West Area Health Services

FILE NUMBER: 093096

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 11 September 2009

DATE OF DECISION:
15 April 2010

BEFORE: Molony P - Judicial Member

CATCHWORDS: Privacy - information protection principle - personal information - access

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Health Records and Information Privacy Act 2002
Privacy and Personal Information Protection Act 1998

CASES CITED: KO & KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18
Department of Education and Training v ZR (No 2) (GD) [2009] NSWADTAP

REPRESENTATION:
APPLICANT
In person
RESPONDENT
A Britt, barrister

ORDERS: The Tribunal determines not to take any action in the matter.

REASONS FOR DECISION

Background

1 KT seeks a review of the conduct of a hospital, an entity belonging to the respondent, the Sydney South West Area Health Service (SSWAHS), that he asserts was in contravention of an information protection principle under the Privacy and Personal Information Protection Act 1989 (‘the PPIPA’) and which applies to the respondent. KT also asserts that the conduct was in breach of a health privacy principle under the Health Records and Information Privacy Act 2002 (“the HRIPA’).

2 KT had made an internal review application, pursuant to section 53 of the PPIP Act, to the SSWAHS on 17 March 2009. In that application he described the conduct he was complaining about in the following terms, verbatim :

3 In his request for internal review, KT described his complaint as concerning a refusal to grant him access to his personal/health information, the accuracy of his personal/health information, the delay in processing his request and the misconduct of Ms Jackie Mills in refusing to grant him access to the information. In regard to the latter KT asserted that Ms Mills was withholding access as a form of reprisal as KT had previously made a complaint against her.

4 The internal review was completed on 31 March 2009. The internal review identified two alleged breaches of both the PIPPA and HRIPA. The first was delay in providing KT with the information he requested, to which IPP 14 and HPP 7 were identified as the relevant principles. The internal review found that the time taken to process the requests had not been excessive and identified no conduct in breach of those principles. The second was an alleged refusal to provide him with access to personal information which he applied for access for in emails to the Manager of Human Resources dated 16 September 2008 and 12 November 2008. In the internal review identified IPP 14 as the relevant principle, but found no conduct in breach of that principle.

5 On 21 April 2002 KT filed an application seeking external review of that decision in this Tribunal. When describing, in his application, how relevant principles had been contravened by the Agency KT wrote:

6 He also alleged various breaches of a privacy code or practice and /or a health privacy code of practice. He alleged a refusal to allow him to access some document; that the Agency hide or had missing from it files ‘many health and personnel documents”; that he was put under surveillance when access personal and health information; that the Agency had failed to protect his health information against loss; and, that the agency “breached my privacy by not let me alone.”

7 The Tribunal’s jurisdiction to hear and determine this application for review of conduct arises under section 55(1) of the PPIP Act, section 21 of the HRIPA and section 38 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’).

Proceedings in the Tribunal

8 This application first came before Mrs S Higgins, Judicial Member of the Tribunal on 9 June 2009 at a planning meeting. At this planning meeting, KT asserted that he had originally made a request, by email, for access to his personal/health information held by the hospital, on 12 November 2008. He also said he received the documents 5 months later and when he did receive them there were documents missing.

9 At this planning meeting, by consent, orders were made for KT to file and serve a copy of the 12 November 2008 email and for the SSWAHS to file and serve an outline of its evidence and submissions.

10 The application was next before Judicial Member Higgins on 22 July 2009 at a directions hearing. At the request of the SSWAHS, Higgins JM made an order that the issue of liability of the SSWAHS in regard to the alleged contraventions be determined separately. Orders were made for the parties to file and serve and submissions and Judicial Member Higgins determined that the issues for determination in this application could adequately be determined on the papers pursuant to section 76 of the ADT Act.

11 On 4 November 2009, Judicial Member Higgins recused herself from determining this application and two other applications of KT that were allocated to her. This application and the other applications were all allocated to me for hearing and/or determination.

12 At a planning meeting held in December 2010 to consider this and a number of other applications involving the same parties, they were advised that I would be determining on the papers in accordance with the earlier orders. I agree that the matter is suitable for a determination on the papers.

13 The material before the Tribunal in this application is as follows:

Freedom of Information Act

14 The conduct that is the subject of review is that identified by KT in his internal review application quoted at paragraph 2 above. In KO & KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18, the Tribunal said:

disclosure

15 This passage was cited with approval by the Appeal Panel in Department of Education and Training v ZR (No 2) (GD) [2009] NSWADTAP 44 at [18]. The Appeal Panel found that the scope of the internal review, reasonably construed, confined the boundaries of the external review. This is so as s 54 of the PPIP Act allows an applicant to seek review of ‘the conduct that was the subject of the application [for internal review] under section 53,’ not other conduct.

16 When one contrasts the conduct KT complained of in his internal review application with that he relies on as showing breaches of relevant principles in his review application to the Tribunal, it is readily apparent that the latter have a much wider scope that the former.

17 The Tribunal’s consideration, however, is confined to a consideration of matters falling with the scope of the internal review.

The Issues

18 Fairly construed, the scope of the internal review requires that the Tribunal determine whether the Agency’s alleged delays in providing him with his personal and health information was conduct in breach of an IPP, HPP or a privacy code or practice and /or a health privacy code of practice.

19 It also calls for a consideration of the Agency’s conduct in dealing with his request for information of 14 February 2009 – which was variously made under the PIPPA, the HRIPA and the Freedom of Information Act 1989 – as first an application under the Freedom of Information Act 1989 (the FOIA) and then requesting payments of a fee under that Act, without proceeding to consider the requests under the PIPPA and the HRIPA.

20 Insofar as KT in his application to the Tribunal has sought to agitate matters beyond the scope of the internal review, the Tribunal does not have jurisdiction to determine them.

21 Much of the material KT has filed in support of his application, including substantial parts of his statement relate to those issues, some of which occurred after KT made his internal review application. Insofar as KT’s statement and the material he relies on relate to matters that are beyond the scope of the internal review, they are irrelevant.

22 Section 14 of the PPIPA gives an individual a right to access to personal information about that individual that is held by a public sector agency. It relevantly provides as follows:

14 Access to personal information held by agencies
A public sector agency that holds personal information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information.

23 Clause 7(1) of Schedule 1 of the HRIP Act contains a similar provision in regard to an individual’s health information.

24 KT contends that he first made a request for his personal/health information on 12 November 2008 in an email to Ms Mills. That email relates to minutes of a meeting held to discuss an assault in which KT was involved, and refers to allegations and disciplinary action against him. It includes a request that Ms Mills mail him ‘all details of investigation with statements of witnesses …’

25 Among the materials KT filed with the Tribunal on 20 August 2009 are a NSW Health Policy Directive, “Disciplinary Process in NSW health – A Framework for Managing” and a NSW Health Guideline, “Grievance Resolution in the NSW Department of Health, User Guide for Staff & Managers.” Both documents discuss staff member’s rights to access relevant information, with the former specifically referring to statements of witnesses.

26 KT’s email of 12 November did not request personal or health information, but sought witness statements.

27 In my opinion, on a proper reading, it is not a request by KT, under the PIPPA or the HRIPA, for access to his personal/health information held by the hospital. There is no indication that KT was making the request under either the PIPPA or the HRIPA. It cannot be fairly construed as such a request. Rather, it is a request for documents relating to an investigation of an alleged assault involving KT.

28 KT next says that he made a further application under the FOIA on 9 December 2008. That application and what befell it is not a matter about which KT sought to review. A copy of that application has not been provided to the Tribunal.

29 SSWAHS says that KT’s request under the PIPPA and HRIPA was made on 14 February 2009, which KT also relies on. That letter read:

30 On 16 February 2009 SSWAHS received the request. On the same day Ms Elaine Pan, Manager Medico Legal, wrote to KT requesting that he pay the FOI application fee of $30 and that he provide two primary forms of identification.

31 On 11 March 2009 Ms Pan wrote to KT.

32 In his statement KT acknowledged receipt of this letter and explained that he replied with a letter complaining about the delay, with a copy to the Privacy Commissioner. Relevantly that letter read:

IGNORING TO SEND IT UNDER PPIP & HIP..!!

personnel and health information.

delay in processing

my request and not providing my the request In manner time,

33 On 17 March 2009 he requested the internal review by fax. Receipt of the internal review request was acknowledged by the Agency on 24 March 2009, and the internal review was commenced the next day.

34 During that period, on 20 March 2009, the Director of Corporate Services wrote to KT advising that he could view the files he sought “in the company of authorised RPAH staff members” on 27 March 2009 at 11.00am and could obtain copies of the documents inspected upon payment of the appropriate fee.

35 KT declined this offer, wishing to have the internal review completed first.

36 On 26 March 2009 KT wrote to the internal review officer as follows:

referred

37 At the time KT made his application for internal review 29 days had passed since SSWAHS received his request for access to his personnel file and staff health records. That request was expressed to be made under the PIPPA and the FOIA. In his application letter KT said he wished to get the information as soon as possible but did not indicate any urgency.

38 The application was first referred to Ms Pan, the FOI Officer for the hospital, who then dealt with it by requesting payments of an application fee. The payment of an application fee is a necessary part of making an FOI application: see s 17(c) of the FOIA. KT told her that he did not wish to pay the fee and wanted his application considered under the PIPPA.

39 A period of 21 days then passed before Ms Pan closed his FOI application, and forwarded his request on to the persons responsible for dealing with his PIPPA and HRIPA requests. KT complained about this delay, and six days after Ms Pan closed the FOI application, he sent an internal review application under the PIPPA and the HRIPA based on that delay.

40 The internal review officer considered the reasons why the FOI request was processed before the PIPPA and HRIPA requests. She wrote:

41 There is no explanation for the delay in closing KT’s FOI application after Ms Pan spoke with him on 18 February 2009, although I do note that the date of closure is also the date on which an FOI determination was required to be made under s24(2) of the FOIA to avoid a deemed refusal. As KT had not confirmed his advice that he would not pay the FOI application in writing, it can be argued that the delay was prudent.

42 For the delay in processing KT applications for access to his personal/health information to amount to conduct in breach of IPP 14 and HPP 7(1) it must be “excessive delay”.

43 The Online Macquarie Dictionary defines “excessive”:

excessive charges

excessive indulgence.

44 SSWAHS has referred to the definition in the online Oxford Dictionary:

“exceeding what is right, proportionate or desirable; immoderate, inordinate, extravagant.”

45 It is important to note that neither the HRIPA nor the PIPPA prescribe a time within which access to personal/health information is to be given. I agree with SSWAHS submission that in determining whether there has been excessive delay the facts and circumstances surrounding the request should be taken into account. Thus, what might be a reasonable delay in an ordinary application, may be excessive with respect to a request for health information, which is said to be required urgently to enable a decision to be made about recommended medical treatment.

46 In my opinion the relevant factors to be taken into account surrounding KT request of 14 February 2009 are that it was made under three separate pieces of legislation and encompassed, in reality, three separate applications for access under the FOIA, the PIPPA and the HRIPA. Secondly, under arrangements made within the agency different officers had responsibility for determining each of those requests. Thirdly, the request under the FOIA related to the same information as that made under the other requests, and was subject to statutory time limits. As a result, the request under the FOIA was considered first. Fourthly, KT orally advised the FOI officer that he did not wish to pay the applicable fee and wanted to rely on his other requests, but the FOI officer did not close the FOI application at that time; instead waiting for the expiration of the 21 day period in which a decision had to be made, before doing so. She then immediately transferred the requests to the relevant officers to consider the PIPPA and HRIPA requests. Five days later, but before any action was taken by those officers, KT sought a review of the conduct in delaying his access to the documents.

47 Another factor that needs to be borne in mind is that s 5 of the PIPPA provides that:

Freedom of Information Act 1989

48 Section 22 of the HRIPA provides:

Freedom of Information Act 1989

49 Given those provisions, and the internal arrangements for the processing of requests for access to information under the three Acts within the SSWAHS, I think it reasonable that KT’s request was first referred to the FOI officer. While I accept that there is some substance to KT’s complaint of delay as a result of the FOI officer not closing his FOI application soon after his phone conversation with her on 18 February 2009, I can also see that, as KT had not confirmed his advice in writing, an abundance of caution might well have led the FOI officer to wait as long as possible to close the application without written confirmation. This is especially so given the considerable history of disputes between KT and the SSWAHS.

50 Irrespective of the explanations for the delay, the reality is that the between SSWAHS receiving his request and his application for internal review of conduct (the delay) a total 29 days had passed. Given the relevant circumstances and conduct I do not accept that this is an excessive delay.

51 There is therefore no breach of IPP 14 or HPP 7(1).

The Fee

52 At the time KT made his internal review request the only fee which SSWAHS had sought to impose on KT was the standard fee under the FOIA. No fees or charges were imposed under the PIPPA or the HRIPA.

53 There is evidence of copying and/or access fees being requested, should KT wish to copy documents to which he was offered access by the Director of Corporate Services, after he had sought the internal view. The conduct could not be and was not conduct about which he sought an internal review. As a result it is not conduct which the Tribunal can consider in external review.

54 It follows that that there is no breach of IPP 14 or HPP7(1) as no fees or charges were demanded of KT under those Acts at the time he sought internal review.

Conclusion

55 It follows that KT has not demonstrated any breach of either IPP 14 or HPP 7(1).

56 As a result the decision of the Tribunal is not to take any action in the matter.

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Citations

KT v Sydney South West Area Health Service [2010] NSWADT 94

Most Recent Citation

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KO & KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18

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CITATION:	KT v Sydney South West Area Health Services [2010] NSWADT 94
DIVISION:	General Division
PARTIES:	APPLICANT KT RESPONDENT Sydney South West Area Health Services
FILE NUMBER:	093096
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	11 September 2009
DATE OF DECISION:	15 April 2010
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Privacy - information protection principle - personal information - access
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Health Records and Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998
CASES CITED:	KO & KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18 Department of Education and Training v ZR (No 2) (GD) [2009] NSWADTAP
REPRESENTATION:	APPLICANT In person RESPONDENT A Britt, barrister
ORDERS:	The Tribunal determines not to take any action in the matter.