Lenarcik v South Adelaide Local Health Network Inc - [2013] SADC 100

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
LENARCIK v SOUTH ADELAIDE LOCAL HEALTH NETWORK INC
[2013] SADC 100
Judgment of His Honour Judge Cuthbertson
30 July 2013
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - REQUEST FOR ACCESS
Applicant sought permission to appeal pursuant to s 40(2)(c) of the Freedom of Information Act 1991 from a determination made by the Ombudsman on an external review of the Respondent’s decision in relation to an application for access to a document.
HELD: (1) Decision of Ombudsman affirmed.
(2) Application for permission to appeal refused.
(3) No order as to costs.

Freedom of Information Act 1991 (SA) s 4 & s 40; District Court Act 1991 (SA) s 42E, referred to.
Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health (1985) 8 ALD 163, considered.

LENARCIK v SOUTH ADELAIDE LOCAL HEALTH NETWORK INC
[2013] SADC 100
INTRODUCTION

This is an application for permission to appeal in the Administrative and Disciplinary Division of this Court pursuant to s40 of the Freedom of Information Act 1991 (FOI Act) against a determination made by the SA Ombudsman.
HISTORY
The Applicant, Ms Nina Lenarcik, presented herself at the Flinders Medical Centre (the FMC) emergency department on 4 July 2010, and was treated between 4 July and 6 July 2010 and 12 July 2010 during her stay. The Southern Adelaide Local Health Network is the agency for the purpose of the FOI Act. [1]
[1] Section 4(1) of the Freedom of Information Act 1991 (SA)
The Applicant had made a number of requests under the Freedom of Information Act for the disclosure of information about the pathology results and treatments she believed she had received for a bacterial infection at the FMC emergency department during her stay. She was granted access by the Accredited FOI Officer, Ms M King, of the agency to a document, namely a copy of the Applicant’s medical record, including pathology results for those periods.
A further request was made for access to “blood test performed due [sic] vein operation in April 2001”[2].
[2] Application for Information under the Freedom of Information Act 1991 dated 9 July 2012
The Applicant made application for permission to appeal to the SA Ombudsman on 22 September 2012 for an external review of the agency’s determinations in respect of both matters. The application for permission to appeal applies to both determinations. On 9 November 2012, the SA Ombudsman confirmed the agency’s determinations pursuant to section 39(11) of the FOI Act. The agency had asserted that it could not locate any documents relating to blood tests performed in 2001.
In his determination, the Ombudsman concluded that:
I am satisfied that the agency has conducted a reasonable search for the documents that are the subject of the application. I am also satisfied that the agency has provided considerable assistance to the applicant to try to understand the treatment she was provided in 2010. I do not consider there is sufficient evidence to suggest the agency has failed to disclose all the documents that relate to the applicant’s stay in the Flinders Medical Centre in July 2010.
In relation to the second determination he concluded as follows,
I am satisfied that the agency has conducted a reasonable search for the documents sought by the applicant, and has not found the documents the applicant requests. It is possible that no blood tests were taken prior to the applicant’s operation in 2001, although I note this is not the applicant’s view.
While I note the views of the applicant and her general practitioner at that time, she has not provided me with any information that suggests the agency has failed to conduct a reasonable search for the documents she sought.
With reference to “April 2001” in the agency’s determination, the documentation the agency provided to me suggests that the searches were not confined to documents dated April 2001, but were conducted for any documents relating to the applicant in all of 2001.
APPLICATION FOR PERMISSION TO APPEAL
By Notice of Appeal dated 10 December 2012, Ms Lenarcik appeals to the Administrative and Disciplinary Division of this Court against determinations made by the SA Ombudsman.
The Applicant seeks the following orders in relation to the first application[3],
(1)    [The respondent] disclose information of the venereal bacterium for which the Applicant was administered two antibiotics: Ampicillin and      Gentamicin; An investigation of the infection in her blood;
(2)    A review of information relating to a procedure undertaken   in September 2000, which was the subject of earlier proceedings in                   this Court;
(3)    An investigation of the diagnosis apparently made by the appellant’s           general practitioner in 2010;
(4)    A report of an independent orthopaedic professor regarding previous          procedures; and
(5)    “Appropriate medical care” for life.
[3]    Notice of Appeal dated 10 December 2012
In relation to the second application the Applicant seeks the following orders[4],
(1)    A further, more thorough search, of records is requested.
(2)    The relevance of the requested information is crucial to a review of a          claim for negligence – District Court No: DCCIV-03-1475. The   appellant has been advised that all applicable blood tests should have              been submitted originally by the representing lawyer, however, they            were omitted from the claim without the appellant’s knowledge.
(3)    The requested information is vital for the correct diagnosis and   treatment of the appellant.
(4)    The appellant seeks a determination that either such information does                  exist or would reasonably be expected to have existed at the time of                   surgery, that such information has subsequently vanished from the                   system for reason/reasons unknown.
(5)    The appellant seeks advice on how to proceed with a relevant claim.
[4]    Notice of Appeal dated 30 November 2012
In dealing with these matters, I have had regard to the contents of two Affidavits from Ms Meridee Annette King sworn on 20 February 2013 and 7 March 2013, an Affidavit from John Paul Antoniw sworn on 20 February 2013 and an Affidavit from the Applicant Ms Nina Lenarcik sworn on 12 December 2012.
LEGISLATION
Section 40(2) of the Freedom of Information Act permits Ms Lenarcik to appeal against a determination made on an external review by the SA Ombudsman.
Section 40 (2) (c) provides that,
A person (other than an agency) who is aggrieved by a determination made on a review under Division 1 may appeal against the determination to the District Court.
A review under Division 1 is an external review of the agency’s determination; In this case, the external review by the SA Ombudsman.
The Court, on appeal, must uphold the assessment appealed from “unless satisfied that there are cogent reasons for not doing so”.[5]
[5] Section 40(7) of the Freedom of Information Act 1991 (SA)
Section 42E of the District Court Act 1991(SA) governs the conduct of the appeal, which states:
(1)   The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)   The Court, on an appeal –
a.   Is not bound by the rules of evidence but may inform itself as it thinks fit; and
b.   Must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms
(3)   The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
ARGUMENTS
The Applicant’s Case
The Applicant asserts that she underwent a medical procedure in 2001 and blood tests were done and therefore there should be documentation showing the name of the bacteria in the blood test results. Mr O’Flaherty, on behalf of the Respondent, asserts that the Respondent has thoroughly searched for any such document and as a result of those searches is unable to locate any such document.
The decision of the Ombudsman
The Applicant has failed to cast any doubt on the findings of the Ombudsman who was entitled to conclude that a reasonable search had been conducted and that no further documents existed or were able to be found.
This Court has no power to make other orders sought by the Applicant save for the production of further documentation.
DECISION
I agree with the Ombudsman that the agency has provided sufficient evidence to conclude that a reasonable search for the document had been carried out. I am satisfied that there is evidence to suggest that all documents located during the search have been provided to the Applicant.
I have had regard to the decision in Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health (1985) 8 ALD 163.
I do not find any cogent reason to depart from the determination made by the Ombudsman.
I make the following orders,
(1) Decision of Ombudsman affirmed.
(2) Application for permission to appeal refused.
(3) No order as to costs.