Marden v Pharmacy Council of NSW

[2016] NSWCATAD 86

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Marden v Pharmacy Council of NSW [2016] NSWCATAD 86
Hearing dates:	On the papers
Date of orders:	06 May 2016
Decision date:	06 May 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Lucy, Senior Member
Decision:	1. Applicant’s application to the Tribunal is made within time. 2. The second respondent has established a prima facie case that the public interest consideration against disclosure in cl 3(a) of the table in s 14 of the Government Information (Public Access) Act 2009 (NSW) applies in the circumstances of this case. 3. The second respondent has not discharged the onus of establishing that any other public interest considerations against disclosure apply in the circumstances of this case and the Tribunal will not have regard to any other public interest considerations against disclosure in determining the correct and preferable decision. 4. The applicant is to file and serve submissions and evidence on which she seeks to rely within 3 weeks of the date of these reasons, identifying any earlier submissions or evidence on which she continues to rely. 5. The second respondent is to file and serve submissions and evidence on which the second respondent seeks to rely within 3 weeks of the date of these reasons, identifying any earlier submissions or evidence on which the second respondent continues to rely. 6. The first respondent and Information Commissioner are to file and serve submissions and evidence on which they seek to rely within 5 weeks of the date of these reasons, identifying any earlier submissions or evidence on which they continue to rely. 7. Any party who wishes to reply to submissions made by another party or the Information Commissioner is to do so within 7 weeks of the date of these reasons. 8. Matter will then be reserved to be determined on the papers, subject to considering any submissions to the effect that a hearing is required. 9. The parties have liberty to apply on 3 days' notice.
Catchwords:	GOVERNMENT INFORMATION – Whether application out of time - Whether applicant was entitled to apply for Tribunal review whilst Information Commissioner review pending – Applicant so entitled. REVIEW RIGHTS – Extension of time to seek review where multiple decisions made in respect of an access application – Period of time during which review rights are extended PUBLIC INTEREST CONSIDERATIONS AGAINST DISCLOSURE – Whether complainant has discharged onus of establishing that they apply – Whether disclosure of information could reasonably be expected to reveal personal information; prejudice court proceedings; expose person to risk of harm, serious harassment or serious intimidation; prejudice person’s professional interests; or prejudice the supply of confidential information.
Legislation Cited:	Government Information (Public Access) Act 2009 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Administrative Decisions Review Act 1997 (NSW)
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90 Attorney General’s Department v Cockcroft (1986) 10 FCR 180 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Marden v Pharmacy Council of New South Wales [2015] NSWCATAD 230 McKinnon v Blacktown City Council [2012] NSWADT 44 Smith v Pittwater Council [2016] NSWCATAD 67
Category:	Procedural and other rulings
Parties:	Judith Marden (Applicant) Pharmacy Council of NSW (First Respondent) Complainant (Second Respondent)
Representation:	Solicitors: K Mills (Applicant) Pharmacy Council of NSW (First Respondent) Complainant in person (Second Respondent)
File Number(s):	1410583
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the Second Respondent’s name is prohibited.Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) and s 107 of the Government Information (Public Access) Act 2009 (NSW), the publication of the paragraphs in the confidential version of this decision marked “Not for Publication” and their disclosure to the applicant is prohibited.

REASONS FOR DECISION

1. The applicant applied to the respondent (“the Pharmacy Council”), under the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”), for access to information contained in a complaint made about her. The Pharmacy Council decided to provide her with access to some of the information within the complaint and refuse access to the remainder.

2. The complainant was consulted by the Pharmacy Council and objected to the applicant being given access to the information. The complainant has been joined to these proceedings.

3. The Tribunal made orders to enable it to determine the preliminary issue of whether the complainant has discharged the onus of establishing that particular public interest considerations against disclosure of the information contained in the complaint, upon which the complainant relies, apply in the circumstances of the case.

4. Following a planning meeting held on 21 January 2016, the parties consented to the matter being determined on the papers. I am satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal and make an order dispensing with a hearing: Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”), s 50(2).

BACKGROUND

5. The background to this matter is set out in Marden v Pharmacy Council of New South Wales [2015] NSWCATAD 230. A briefer account is provided here.

6. The applicant applied to the Pharmacy Council under the GIPA Act for information contained in a complaint made about her. The Pharmacy Council consulted with the complainant who objected to disclosure of all of the information contained in the complaint on the basis that it was the complainant’s personal information.

7. On 16 May 2014, the Pharmacy Council decided to provide the applicant with access to some of the information in the complaint and to refuse access to the remainder.

8. In early June 2014, the complainant applied for an internal review of the Pharmacy Council’s decision to provide access to information.

9. On 30 June 2014, the internal review officer determined that some of the information to which the Pharmacy Council had decided to provide access should be provided to the applicant by making a new record of the information, purportedly in accordance with s 75 of the GIPA Act. The internal review officer determined to do this by redacting the handwritten information on the complaint form and replacing it with typed text.

10. At some time in August 2014, on or before 25 August 2014, the complainant applied to the Information Commissioner for a review of the Pharmacy Council’s internal review decision to provide access to the information (GIPA Act, ss 89(1), 90).

11. The applicant lodged with the Tribunal an application for a review of the Pharmacy Council’s decision on 13 October 2014. The decision under review, which was said to be attached, was the decision of the Pharmacy Council on internal review, dated 30 June 2014. At the time the applicant made her application to the Tribunal, the Information Commissioner’s review was still pending.

OUT-OF-TIME ISSUE

12. In Marden v Pharmacy Council of New South Wales [2015] NSWCATAD 230, I raised the issue of whether the applicant’s application to the Tribunal was lodged within time. The parties have since been given an opportunity to make submissions on this issue.

13. Section 101 of the GIPA Act provides:

“101 Time for applying for NCAT administrative review

(1) An application for NCAT administrative review must be made within 40 working days after notice of the decision to which the review relates is given to the applicant (unless subsection (2) gives a longer period to apply for NCAT administrative review).

(2) If the decision is the subject of review by the Information Commissioner, an application for NCAT administrative review can be made at any time up to 20 working days after the applicant is notified of the completion of the Information Commissioner’s review.

(3) If an application for NCAT administrative review of a decision is made while the decision is the subject of review by the Information Commissioner, the Information Commissioner’s review is to end.

(4) NCAT may, on application by a person wanting to make an application for NCAT administrative review out of time, extend the time for the making of such an application by the person if NCAT is of the opinion that the person has provided a reasonable excuse for the delay in making the application.

(5) An application to extend the time for the making of an application for NCAT administrative review must be in writing unless NCAT dispenses with the requirement in a particular case.

(6) The time for making an application for NCAT administrative review may be extended under this section even if that time has expired.”

14. The applicant submitted that her application to the Tribunal was within time. First, she said that the Tribunal had accepted that it was within time at a planning meeting in November 2014.

15. Whilst there may have been an informal discussion about whether the application was within time at this planning meeting, no directions or orders were made extending time. If the applicant’s application is out of time, the Tribunal does not have jurisdiction to determine it unless it has formed “the opinion that the person has provided a reasonable excuse for the delay in making the application” and extended the time for the making of the application pursuant to s 101(4) of the GIPA Act. Accordingly, any comments made at a planning meeting are not determinative of the issue.

16. The applicant also made submissions that, as a matter of statutory interpretation, she had made her application within time. She relied upon the following provisions of the GIPA Act:

1. s 54(7), which provides that “[r]eview rights on a decision are pending while the objector is entitled to apply for a review of the decision under Part 5 (ignoring any period that may be available by way of extension of time to apply for review), or any review duly applied for is pending”;

2. s 81, which provides that “[w]hen more than one reviewable decision is made in respect of a particular access application and those decisions are made at different times, the period (the review period) within which a person may apply for a review under this Part of any of those decisions is extended to the end of the review period for the last of those decisions”; and

3. s 101(2), which is set out above.

17. In relation to s 54(7), the applicant submitted that it applied both during the period the complainant had 40 days to seek review (following the internal review), and also during the period the complainant had sought review externally.

18. Section 54(7) effectively defines the meaning of when review rights are pending for the purposes of s 54(6). Section 54(6) provides as follows:

“If consultation establishes that a person objects to the disclosure of information but the agency decides to provide access to the information in response to the application, access is not to be provided until the agency has first given the objector notice of the agency’s decision to provide access to the information and notice of the objector’s right to have that decision reviewed, and is not to be provided while review rights on the decision are pending.”

19. Subsections 54(6) and (7), read together, precluded the Pharmacy Council from providing the applicant with access to the information she sought whilst the objector was entitled to apply for review of the decision to provide access, or whilst such a review was pending. It does not, of itself, determine the period in which the applicant is entitled to apply to the Tribunal for review.

20. Section 81 extends the period within which a person may apply for a review under Part 5 of the GIPA Act, where multiple decisions are made in respect of an access application. That was the case in these proceedings. The Pharmacy Council’s initial decision was to refuse access to some information and to provide access to the remainder of the information. On internal review, it made a decision that some of the information to which it had decided to provide access should be provided to the applicant by making a new record of the information, pursuant to s 75 of the GIPA Act, but apparently did not change its initial decisions about the information to which the applicant was to have access.

21. Section 101, which provides time limits for applying to NCAT, is within Part 5 of the GIPA Act. Accordingly, the effect of s 81 is to extend the period for applying for review in s 101(1) and (2) to “the end of the review period” for the last reviewable decision made in respect of an access application. The applicant’s construction of this provision was that the applicant had 40 working days, following the end of the review period for the internal review decision, to apply for Tribunal review. That is, she said she had 40 working days after 25 August 2014 (that date being 40 working days after the internal review decision of 30 June 2014) to lodge an application with the Tribunal.

22. The applicant’s construction does not accord with the natural meaning of the words in s 81. In my view, the effect of s 81 is to extend the applicant’s right to apply to the Tribunal to the end of the period within which the complainant was entitled to seek review of the internal review decision; that is, it was to extend the date for applying to the Tribunal to 25 August 2014.

23. The applicant’s final contention is that, because the complainant had a review pending with the Information Commissioner at the time she applied to the Tribunal, the effect of s 101(2) was that she was entitled to apply to the Tribunal at any time up until 20 working days after notification of the completion of that review. In the applicant’s submission, s 101(2) permitted her to apply to the Tribunal whilst the Information Commissioner’s review was pending. In support of this construction, the applicant relied upon ss 82(5) and 98 which provide that a decision is not to be the subject of internal review or Information Commissioner review if the decision “is or has been the subject of an administrative review by NCAT”.

24. I am not persuaded that ss 82(5) and 98 greatly assist the applicant. In my view, those provisions are primarily directed at the situation where the Tribunal is conducting or has conducted a review, and an applicant then seeks to have the decision reviewed internally or by the Information Commissioner.

25. The language of s 101(2) allows an application to be made “at any time up to 20 working days after the applicant is notified of the completion of the Information Commissioner’s review” (my emphasis). There are two possible constructions of this provision: on one construction, an application to the Tribunal may be made at any time after the relevant notification, until 20 working days after that notification; on another, the application made be made at any time until it is 20 working days after the notification.

26. Section 101(2) may usefully be compared to its equivalent provisions in respect of internal review and Information Commissioner review, ss 83(1) and 90. Section 83(1) provides: “[i]nternal review of a decision cannot be applied for more than 20 working days after notice of the decision is given to the access applicant or (in the case of the deemed refusal by an agency to deal with an access application) more than 20 working days after the deemed refusal.” The language of this provision makes it clear that internal review may only be applied for in the period between notification of a decision or deemed refusal and 20 working days later. Section 90 provides: “[a]n application for the review of a decision by the Information Commissioner must be made within 40 working days after notice of the decision to which the review relates is given to the applicant.” The term “within” conveys that the application must be made after notification of the decision. By contrast, the words “at any time” in s 101(2) leave open the possibility of an application being made prior to completion of the Information Commissioner’s review. It would appear that the legislature has made a deliberate decision to depart from the language used in ss 83(1) and 90 and it may be assumed that it did so to achieve a particular purpose.

27. On balance, I am satisfied that s 101(2) permits a person to apply to the Tribunal for review whilst Information Commissioner review is pending. This construction is consistent with s 101(3), which contemplates an application for review of a decision being made to the Tribunal whilst the Information Commissioner is reviewing that decision. It is, in my view, the construction is most consistent with the language which has been employed in the text of legislation, and is therefore to be preferred (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, Hayne, Heydon, Crennan and Kiefel JJ at 46-47 [47]).

28. In this case, the decision the subject of the Information Commissioner’s review was the decision to provide the applicant with access to information. However, due to the operation of s 81, the applicant’s right to apply for review of the decisions to refuse her access to information and to provide her with access to other information in a particular way, was extended. Accordingly, I am satisfied that the applicant made her application to the Tribunal for review of those decisions within time.

29. The applicant made what she described as a “contingency application” for an extension of time, in the event that the Tribunal found that her application was out of time. In case I am wrong about her application being within time, I will go on to consider this.

30. The applicant’s reasons for applying to the Tribunal when she did included that she was relying upon her solicitor’s advice. The applicant also stated that the Pharmacy Council had conveyed to her that it considered that her application was within time. The complainant opposed the grant of an extension of time.

31. Given the complexity of the legislative scheme and the absence of clear authority on the meaning of s 101(2), I am satisfied that the applicant has provided a reasonable excuse for the delay in making the application (if there was a delay) and I would grant her application for an extension of time under s 101(4) of the GIPA Act.

REVIEW CONCERNS MULTIPLE DECISIONS

32. The applicant’s position is that she is seeking review of the whole of the internal review decision, and that this decision wholly replaced the Pharmacy Council’s original decision of 16 May 2014. She disagrees with the view I expressed in Marden v Pharmacy Council of New South Wales [2015] NSWCATAD 230 at [19]-[23] that it was only the Pharmacy Council’s decision to provide access to information which was subject to internal review. In support of this position, the applicant relies upon s 84(1) of the GIPA Act which provides: “An internal review is to be done by making a new decision, as if the decision being reviewed (the original decision) had not been made, with the new decision being made as if it were being made when the access application to which the review relates was originally received.”

33. I do not accept that it follows from s 84(1) that an internal review necessarily concerns every decision made when an agency determines an access application. The scheme of the GIPA Act is to identify certain types of decisions which are “reviewable decisions.” These are set out in s 80. Whilst an agency’s determination of an access application might colloquially be referred to as its “decision,” a determination often consists (as it did in this case) of several decisions. Entitlement to internal review, Information Commissioner review and Tribunal review depends upon a person being “aggrieved” by a reviewable decision of an agency (GIPA Act, ss 82, 89, 100).

32. In this case, the complainant was not “aggrieved” by the agency’s decision to refuse the applicant access to some of the information the subject of her access application; on the contrary, this was a decision the complainant supported. Accordingly, the complainant’s application for internal review only concerned the decision or decisions about which the complainant was aggrieved; that is, the decision to provide the applicant with access to information and the decision to provide it in a particular way.

33. For the reasons given in Marden v Pharmacy Council of New South Wales [2015] NSWCATAD 230 at [19]-[23], the applicant is aggrieved by, and is seeking review of, the following decisions in these proceedings:

1. the decision to refuse her access to information (GIPA Act, s 80(d)); and

2. the decision to provide access to information in a particular way (GIPA Act, s 80(i)).

36. The complainant is aggrieved by, and is seeking review of, the following decisions:

1. the decision to provide the applicant with access to information (GIPA Act, s 80(d)); and

2. the decision to provide her with access to information in a particular way (GIPA Act, s 80(i)).

WHETHER GIPA ACT APPLIES

37. The complainant submits that the GIPA Act does not apply to the information sought because the complainant’s personal information was provided on the basis of a representation by the Australian Health Practitioner Regulation Agency (“AHPRA”) that the complainant’s identity would be kept secret and not disclosed and because the Pharmacy Council did not “collect” the information within s 4 of the Privacy and Personal Information Protection Act 1998 so that it is unsolicited.

38. These factors do not preclude the GIPA Act from applying. There is no question that the applicant made an application to an agency for government information. I find that the Act applies to the information sought.

PUBLIC INTEREST CONSIDERATIONS ON WHICH COMPLAINANT RELIES

39. The Tribunal has power to determine its own procedure (NCAT Act, s 38(1)). It must also seek to give effect to the Tribunal’s guiding principle, being to facilitate the just, quick and cheap resolution of the real issues in the proceedings (NCAT Act, s 36(1) and (2)).

40. These proceedings have been particularly challenging procedurally in that the complainant’s identity is information claimed to be subject to an overriding public interest against disclosure, and yet both the applicant and the complainant are parties. The complainant has elected to participate in the proceedings by filing and serving written material, rather than by appearing (including at planning meetings or case conferences). The applicant’s solicitor has given the Tribunal undertakings that she will not disclose confidential material provided to her to the applicant. In this way, it has been possible to provide the complainant with an opportunity to participate in the proceedings whilst also providing the applicant with procedural fairness.

41. The complainant relies upon a number of public interest considerations against disclosure which are set out below and has provided the Tribunal with all the evidence and submissions upon which the complainant relies in relation to these considerations. At a planning meeting, the applicant’s solicitor indicated that she proposed to issue a number of summonses and to adduce evidence in order to respond to these, in particular to the consideration that disclosure of the information sought could reasonably be expected to expose the complainant to a risk of harm or of serious harassment or serious intimidation. There was also a prospect that the applicant’s solicitor would need to cross examine the complainant.

42. The complainant bears the onus of establishing that there is an overriding public interest against disclosure of the information (GIPA Act, s 105(2)). The Pharmacy Council also bears that onus to the extent that it contends that there is an overriding public interest against disclosure of the information. In its decision of 16 May 2014, the Pharmacy Council identified the following considerations against disclosure, “the information contains personal information about a third person” and “the information was made pursuant to a request by a third person”. The first of these refers, presumably, to cl 3(a) of the table in s 14. The second does not clearly capture any public interest consideration in the table in s 14. In the internal review decision, the Pharmacy Council identified the considerations against disclosure as being that disclosure could reasonably be expected to reveal an individual’s personal information (cl 3(a)) and that disclosure could reasonably be expected to prejudice a person’s legitimate professional or financial interests (cl 4(d)). The Pharmacy Council said in relation to cl 4(d) that this consideration formed the basis of the complainant’s objection to the release of information to the applicant and that, while the internal reviewer was “unable to substantiate this assertion,” it was taken into consideration.

43. In the circumstances of this case, I formed the view that the quickest, cheapest and fairest way to proceed was to determine, as a preliminary matter, whether the complainant has established a prima facie case that any of the public interest considerations against disclosure on which the complainant relies apply to the information sought, whilst also taking into account the Pharmacy Council’s position. Where the complainant has not established such a case, those considerations will not be taken into account by the Tribunal in determining the correct and preferable decision (see Administrative Decisions Review Act 1997 (NSW), s 63(1)). On the other hand, where the complainant has established a prima facie case that a public interest consideration against disclosure applies, the other parties and the Information Commissioner will be given an opportunity to make submissions as to whether they say it applies and as to where the balance of the public interest lies.

44. The complainant contends that disclosure of the information could reasonably be expected to have one or more of the following effects:

1. reveal the complainant’s personal information (s 14, table, cl 3(a));

2. prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings (s 14, table, cl 3(c));

3. expose a person to a risk of harm or of serious harassment or serious intimidation (s 14, table, cl 3(f));

4. prejudice any person’s legitimate business, commercial, professional or financial interests (s 14, table, cl 4(d)).

45. The phrase “could reasonably be expected to” is to be given its ordinary meaning (see, for example, Smith v Pittwater Council [2016] NSWCATAD 67 at [36]; McKinnon v Blacktown City Council [2012] NSWADT 44 at [40]). In Attorney General’s Department v Cockcroft (1986) 10 FCR 180 at 190, referring to that phrase in s 43(1)(c) of the Freedom of Information Act 1982 (Cth), Bowen CJ and Beaumont JJ interpreted the term in the following way:

“In our opinion, in the present context, the words ‘could reasonably be expected to prejudice the future supply of information’ were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like...”

46. The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Sheppard J at 112 and Smith v Pittwater Council [2016] NSWCATAD 67 at [37]. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at 106; Smith v Pittwater Council [2016] NSWCATAD 67 at [37].

Reveal personal information (cl 3(a))

47. “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” (GIPA Act, Sch 4, cl 4(1)). To reveal information means “to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)” (GIPA Act, Sch 4, cl 1).

48. The internal reviewer decided that the information should be provided to the applicant in redacted form to deny access to some of the complainant’s personal details. The internal reviewer also determined that it should be provided to the applicant in typed form, so as to conceal the complainant’s handwriting (which might disclose the complainant’s identity).

49. The complainant submits that it’s “a bet each way” as to whether the typed and redacted version reveals the complainant’s identity because “information in sections 16, 21 and 23 [of the complaint form] revealing my identity has been left.” The complainant says that the complaint was made to AHPRA and that the complainant was assured by an employee of that agency that the complainant’s identity would be kept confidential.

50. I have reviewed the redacted complaint form with which the Pharmacy Council proposed to provide the applicant. I find that the complainant has established a prima facie case that the material in section 16, the first sentence of the typed material in section 21 and all of the material in section 23 could reasonably be expected to reveal the complainant’s identity, and thus to reveal the complainant’s personal information.

Prejudice any court proceedings (cl 3(c))

51. Although the complainant has referred to the public interest consideration against disclosure in cl 3(c), the complainant has not identified the court proceedings which the complainant says would be prejudiced by disclosure of the information. Nor has the complainant provided any submissions about the application of this public interest consideration against disclosure. Accordingly, I find that the complainant has not discharged the onus of establishing that it applies.

Risk of harm, serious harassment or serious intimidation (cl 3(f))

52. The complainant contends that disclosure of the information sought could reasonably be expected to expose the complainant to a risk of harm or of serious harassment or serious intimidation. This public interest consideration was discussed by Molony JM in AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90 at [82]-[94]. As Molony JM explained, in respect of serious harassment or serious intimidation, “the decision maker be satisfied that release of the information could reasonably expose a person to intimidation or harassment that is heavy, weighty or grave, and not trifling or transient” (at [94]). Similarly, Molony JM found that “harm” refers to “a real and substantial detrimental effect on a person” (at [85]).

53. The complainant has provided confidential evidence and confidential submissions in support of the complainant’s contention that this public interest consideration applies. As discussion of this material would or might reveal the complainant’s identity, it is discussed in confidential paragraphs below (see GIPA Act, s 107(1)). These paragraphs may not be provided to the applicant and may not be published but may be provided to the applicant’s solicitor, subject to the undertaking she has provided to the Tribunal (NCAT Act, s 64(1)(a) and GIPA Act, s 107).

54. [NOT FOR PUBLICATION]

55. [NOT FOR PUBLICATION]

56. [NOT FOR PUBLICATION]

57. [NOT FOR PUBLICATION]

58. [NOT FOR PUBLICATION]

59. [NOT FOR PUBLICATION]

60. [NOT FOR PUBLICATION]

61. For these reasons, the complainant has not discharged the onus of establishing that the consideration in cl 3(f) of the table in s 14 applies in the circumstances of this case.

Prejudice any person’s legitimate business, commercial, professional or financial interests (cl 4(d))

62. The complainant has referred to this public interest consideration against disclosure but has not explained how the complainant claims it applies to the circumstances of the case. As indicated above, the Pharmacy Council’s reliance upon this consideration is wholly dependent upon the complainant’s position.

63. [NOT FOR PUBLICATION]

64. I am not satisfied that the complainant has discharged the onus of establishing that the consideration in cl 4(d) applies in the circumstances of this case.

Responsible and effective government

65. The complainant also relies upon “Responsible and effective government – GIPA Table 14(2) parts 1 and 3” in support of the complainant’s case that the information should not be disclosed. The complainant states that “disclosure of the relevant document will have a wide impact and a negative impact on the future co-operation by health professionals with regulatory bodies and that this was self-evidently not intended by Parliament.” The complainant has sought support for this argument from provisions in the Health Practitioner Regulation National Law (NSW).

66. There is no public interest consideration against disclosure which uses the language of “responsible and effective government.” Rather, cl 1 of the table in s 14 is headed “Responsible and effective government.” Clause 1 contains eight considerations. It is not immediately clear from the complainant’s submissions dated 19 April 2015 which of these considerations the complainant is relying upon. The complainant appears to be making the general point that if the complaint were to be provided to the applicant, this would discourage others from reporting pharmacists who did not comply with the continuing professional development regime. (I note that the applicant’s position is that she did comply with that regime and that it is not the function of the Tribunal to determine that question). In open submissions filed on 3 March 2015, the complainant indicates that the complainant is relying upon cl 1(d).

67. As the complainant has the onus of establishing that there is an overriding public interest against disclosure of the information sought, it is critical that the public interest considerations against disclosure, upon which the complainant relies, be clearly identified. It is not the Tribunal’s function to guess which public interest consideration against disclosure might apply. Accordingly, I will consider whether the complainant has established that cl 1(d) applies, but I will not consider whether any of the other public interest considerations, which have not been specifically identified, in cl 1 or cl 3, which might fall under the heading “responsible and effective government,” apply.

Prejudice the supply of confidential information (cl 1(d))

68. Clause 1(d) of the table in s 14 of the GIPA Act provides as follows:

“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…”

69. "Prejudice" is also to given its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].

70. In Commissioner of Police NSW Police Force v Camilleri [2012] NSWADTAP 19 at [33] the Appeal Panel outlined the general approach to be adopted in determining whether or not information was confidential information, commenting that “the question of whether the information supplied is ‘confidential information’ must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received.” In this case, of course, where the complainant is contending that the information supplied is confidential information, the complainant’s evidence on that point is relevant. The Appeal Panel also noted at [28]-[30] that when determining whether the consideration applies in the circumstances of a particular case, the Tribunal is required to engage in a relatively abstract analysis.

71. The complainant submits as follows:

“I argue that releasing my personal information sets a precedent for all Pharmacists and other medical professional [sic] which is in effect a general policy decision which will act to dissuade pharmacists from supplying confidential information about CPD points or other relevant matters to the Pharmacy Council of NSW (Pharmacy Council).

It seems likely that Pharmacy profession in NSW will become aware of this policy in a number of ways and it will have knock on effects to other Pharmacy Councils in other States and then the decision will flow through to other medical professionals regulated in a similar way.”

72. The complainant has not directly addressed the issue of whether the information supplied to AHPRA and forwarded to the Pharmacy Council was confidential information or whether disclosure of that information would prejudice the supply of confidential information to AHPRA. However, the complainant submitted:

“It is often other health professionals who see what is happening and report to the relevant body. If every health professional that made a report was identified then soon the source of that information would diminish and the health of the public would be put at unnecessary risk.”

73. The complainant’s submissions do not take account of the circumstance that AHPRA’s standard form for notification of a complaint contains a section “Notifier’s declaration.” In that section, there is space for the notifier to insert his or her name and his or her signature. Above the space for the notifier’s name and signature is a statement: “I am aware that AHPRA may send this form and attachments to the health practitioner / student concerned.”

74. In the absence of any submissions or evidence to the effect that complaints to AHPRA are generally made on a confidential basis, I am not satisfied that disclosure of this complaint in particular would prejudice the supply of confidential information in the future. Even accepting the complainant’s evidence that the complainant was assured of confidentiality by an AHPRA staff member, the words on the form itself indicate that complaints are generally not treated confidentially. In these circumstances, I am not satisfied that the complainant has established that the consideration in cl 1(d) applies.

DIRECTIONS

75. The remaining issues to be determined include:

1. the identification of any public interest considerations in favour of disclosure;

2. the identification of any personal factors of the application;

3. the question of whether the public interest consideration against disclosure in cl 3(a) applies to any of the information;

4. whether there is an overriding public interest against disclosure of any of the information sought;

5. whether the correct and preferable decision is to provide access to any of the information in typed form (so concealing the complainant’s handwriting).

76. The Tribunal makes the following directions, which apply to both the applicant’s application for review and to the complainant’s application for review:

1. The applicant is to file and serve submissions and evidence on which she seeks to rely within 3 weeks of the date of these reasons, identifying any earlier submissions or evidence on which she continues to rely;

2. The complainant is to file and serve submissions and evidence on which the complainant seeks to rely within 3 weeks of the date of these reasons, identifying any earlier submissions or evidence on which the complainant continues to rely;

1. The Pharmacy Council and Information Commissioner are to file and serve submissions and evidence on which they seek to rely within 5 weeks of the date of these reasons, identifying any earlier submissions or evidence on which they continue to rely;

2. Any party who wishes to reply to submissions made by another party or the Information Commissioner is to do so within 7 weeks of the date of these reasons;

3. Matter will then be reserved to be determined on the papers, subject to considering any submissions to the effect that a hearing is required;

4. Liberty to apply on 3 days’ notice.

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: 06 May 2016