P v Greater Western Area Health Service

[2007] NSWADT 87

CITATION:	P v Greater Western Area Health Service [2007] NSWADT 87 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	General Division
PARTIES:	APPLICANT P RESPONDENT Greater Western Area Health Service
FILE NUMBER:	063250, 063418, 073069
HEARING DATES:	23 March 2007
SUBMISSIONS CLOSED:	3 April 2007
DATE OF DECISION:	13 April 2007
BEFORE:	Handley R - Acting Deputy President
CATCHWORDS:	access to documents - personal affairs - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 Martin v Commissioner of Police, NSW Police [2005] NSWADT 23 Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55 Saleam v Director General, Department of Community Services [2002] NSWADT 41 University of NSW v McGuirk [2006] NSWSC 1362
REPRESENTATION:	APLICANT In person RESPONDENT G Blackwell, solicitor
ORDERS:	File number 063250. The Tribunal varies the decision under review by determining that the following documents or parts of documents should be released to P: par 4 of p 9, the whole of pp 10 and 12 and Appendices F and I of the Protocol Investigations report dated 22 September 2005.; File number 063418. The Tribunal sets aside the decision under review and determines that part of an email dated 5 July 2006 is not exempt under the personal affairs exemption and must therefore be released to P.; File number 073069. The Tribunal varies the decision under review by determining that the following documents or parts of documents should be released to P: (1) document 39, excepting only par 6 on p 2 and par 6 on p 3, which are exempt pursuant to the personal affairs exemption; (2) document 40, excepting only parts of the following pages which are exempt pursuant to the personal affairs exemption: par 5 and 6 of p 3; par 1, 2, 3 and 8 of p 4; par 7 and 9 of p 5; par 2, 4 and 5 of p 6; (3) document 41 in full.

1 This matter involves three applications by P (‘the Applicant’) to review decisions of a delegate of the Greater Western Area Health Service (‘the Health Service’) refusing her requests made under the Freedom of Information Act 1989 (‘the FOI Act’) for access to information held by the Health Service on the ground that this would involve the unreasonable disclosure of information concerning the personal affairs of a person.

Background

2 File number 063250. The Applicant is a registered nurse who is employed by the Health Service. By application dated 22 February 2006, the Applicant requested access to a file concerning an investigation into her request made in July 2005 to transfer from Blayney Hospital to Orange Base Hospital. By letter dated 31 March 2006, Jenny McParlane, Director, Workforce Development of the Health Service, notified the Applicant that one document had been identified as being within the scope of her application: a report dated 22 September 2005 of an Internal Investigation prepared by Protocol Investigations. Access was refused on the ground that this was an exempt document, the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of a person, pursuant to Sch 1, cl 6(1) of the FOI Act (‘the personal affairs exemption’).

3 On 10 April 2006, the Applicant applied for a review of this decision. By letter dated 26 April 2006, John White, Director, Finance and Corporate Services with the Health Service, confirmed the decision. The Applicant requested an investigation by the NSW Ombudsman. As a result of advice received from the Ombudsman’s Office, Mr White decided to vary his decision of 26 April 2006 and grant partial access to the relevant document. He notified the Applicant of this by letter dated (in error) 26 April 2006 but posted, it would appear, on 25 June 2006. On 30 June 2006, the Tribunal received the Applicant’s application for a review of this decision.

4 File number 063418. By a further FOI application dated 12 October 2006, the Applicant sought access to an audiotape recording of a statement she made to Protocol Investigations during its investigation into her complaint in relation to Blayney Health Service, together with all documentation held about her by Protocol Investigations. By letter dated 23 October 2006, Mr White acknowledged receipt of this application and informed the Applicant that the Health Service would notify her of the result in due course. Having received no further response, on 7 November 2006, the Applicant wrote to the Chief Executive of the Health Service, Dr Claire Blizard, seeking an internal review (on the basis that since no determination had been made in relation to her application within 21 days of receipt, this was deemed to be a refusal to grant access, pursuant to s 24(2) of the FOI Act).

5 On 27 November 2006, the Tribunal received the Applicant’s application for a review. She noted that since she had received no response to her application for an internal review within 14 days of receipt, she was treating this as a refusal to grant access (pursuant to s 47(6) of the FOI Act). By letter which the Health Service acknowledges was incorrectly dated 13 November 2006 (filed in the Tribunal on 15 December 2006), Mr White notified the Applicant that four documents and one audiotape had been identified as being within the scope of her application, and of his decision to allow full access to three documents and the audiotape, but only partial access to a further document (an email from Kathy Hillier to Richard Elligett) on the ground that full disclosure would involve unreasonable disclosure of an individual’s personal affairs.

6 File number 073069. By a third FOI application, dated 14 January 2007, the Applicant requested “a copy of all documents held by Greater Western Area Health Service containing any personal or professional information about myself”, together with “full disclosure of all documents relating to the investigation carried out by Protocol Investigations for Greater Western Area Health Service based on my request to transfer out of Blayney Health Service in July 2005.”

7 By letter dated 25 January 2007 (but not received by the Applicant until 7 February 2007), Mr White acknowledged receipt of the Applicant’s application, but notified her that it was necessary to consult third parties and, therefore, a further 14 days was permitted by s 59B of the FOI Act for the Health Service to deal with the application. In the meanwhile, the Applicant had applied for an internal review (on the basis that since no determination had been made in relation to her application within 21 days of receipt, this was deemed to be a refusal to grant access), which was received by the Health Service on 8 February 2007. By application to the Tribunal dated 11 March 2007, the Applicant sought a review of the deemed internal review refusal to grant access.

8 By letter dated 6 March 2007, Mr White notified the Applicant of his decision in relation to this third application. He said that he had identified 63 documents (listed in a Schedule) as falling within the scope of her application. Of these, documents 1 to 38 and 42 to 63 would be released to her in full. However, documents 39 to 41 were considered exempt on the ground that release of the documents would involve an unreasonable disclosure of an individual’s personal affairs. The Schedule of Documents did not include a copy of Protocol Investigations’ account for conducting their investigation.

9 Hearing. At the hearing in Bathurst on 23 March 2007, the Applicant requested an order prohibiting the publication of her name in my decision. The Health Service opposed this. In my view, given the private nature of some of the evidence in this matter concerning the Applicant, it is appropriate for me to make an order under s 75(2)(b) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) prohibiting publication of her name in this decision. However, I am not prepared to further anonymise the decision.

10 At the hearing, I clarified with the parties the documents in dispute to which the Applicant seeks full access. These are as follows:

First FOI application - the Health Service is claiming an exemption in respect of the whole or part of the following pages in the Protocol Investigations report: pp 4 to 10 and p 12, and Appendices D to I. At the hearing, Mr Blackwell said the Health Service no longer claims an exemption in respect of one of two documents contained in Appendix I, which document will, therefore, be released to the Applicant.


Second FOI application - the Health Service is claiming an exemption in respect of part of an email from Kathy Hillier to Richard Elligett.


Third FOI application - the Health Service is claiming an exemption in respect of the whole of three documents. At the hearing, Mr Blackwell said the Health Service would provide the Applicant with a copy of Protocol Investigations’ account for conducting their investigation. With regard to a series of emails between Glen Brown (Human Resources Consultant with the Health Service) and the Applicant dating from around July/August 2005, concerning her request for mediation, the Applicant questioned why these documents had not been listed in the Schedule and provided to her. Mr Blackwell said his instructions are that the electronic record of these emails has been destroyed and they can longer be accessed. He undertook to obtain an affidavit from the Health Service attesting to this. The Applicant also questioned why correspondence between her and Ms McParlane (two letters from each) was not included in the Schedule. Mr Blackwell undertook to check whether these further documents can be located and, if so, subject to his instructions, to provide a copy of these to the Applicant. Finally, the Applicant said she is also seeking access to the policies and criteria used by the Health Service in deciding whether to employ an external consultant to investigate grievances, and the reasons for the Health Service employing an external investigator (Protocol Investigations) in her case. Mr Blackwell agreed to obtain an affidavit from the Health Service concerning this.

11 At the conclusion of the hearing on 23 March 2007, I made further directions:

(1) requiring the Health Service to file and serve (a) an affidavit of evidence regarding the alleged destruction of the record of email correspondence between Mr Brown and the Applicant from around July/August 2005, (b) an affidavit of evidence regarding the policies and criteria used by the Health Service in deciding whether to employ an external consultant to investigate grievances, and the reasons for the Health Service employing an external investigator (Protocol Investigations) in the Applicant’s case, and (c) any submissions by the Health Service in relation to the above affidavit evidence.


(2) requiring the Applicant to file and serve any submissions in reply.

12 On 30 March 2007, the Tribunal received a letter from Mr Blackwell enclosing three affidavits:

(1) An affidavit dated 27 March 2007 by Richard Elligett, Manager of Workforce Policy and Programs with the Health Service, explaining that an external consultant was engaged to undertake the investigation into the Applicant’s “grievance” because the Health Service had insufficient resources to deal with the matter internally at the time.


(2) An affidavit dated 27 March 2007 by Glendon Brown, Human Resource Consultant with the Health Service, confirming that he and Mr Elligett were extremely busy at the time the Applicant’s letter was received, and they therefore decided to engage an external consultant whom they used regularly.


(3) An affidavit dated 28 March 2007 from Graeme Carden, Chief Information Officer with the Health Service, explaining that Mr Brown’s electronic ‘mail box’ was deleted on or about 4 April 2006 when his employment was terminated, in accordance with usual practice. When Mr Brown was subsequently re-employed in February 2007, a new ‘mail box’ was created for him.

13 By letter dated 28 March 2007, copied to the Tribunal, Mr Blackwell also sent the Applicant copies of the correspondence between the Applicant and Ms McParlane to which she referred above, together with the documents which the Health Service conceded at the hearing should be released to the Applicant, and further copies of other documents which the Health Service had agreed to release to the Applicant but she had not received.

14 The Applicant filed her further submissions on 3 April 2007. In particular, she requested copies of emails she sent to Mr White on 7 and 10 April 2006, evidence that she lodged a “grievance” or “vexatious grievance” in July 2005, and information regarding a file entry on 23 March 2006. These matters do not appear to be by way of reply to the affidavits and submissions provided by the Health Service in response to the Tribunal’s direction of 23 March 2007, and are outside the scope of further submissions permitted. The Tribunal will not, therefore, address these requests in its decision.

15 Pursuant to s 16(1) of the FOI Act, “[a] person has a legally enforceable right to be given access to an agency’s documents”. However, s 25(1)(a) states that an agency “may refuse access to a document” if it is an “exempt document”, the onus being on the agency to establish this. Section 25(4) provides that an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted and it appears to the agency that the FOI applicant would wish to be given access to such a copy.

16 Section 6(1) defines ‘agency’ as including a “public authority” (defined in s 7 so as to include a body such as an Area Health Service), and ‘exempt document’ as including a document referred to in any one or more of the provisions of Sch 1. The exempt documents in Sch 1 include, relevantly, those specified in cl 6, as follows:

“6. Documents affecting personal affairs


(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).


(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.”

17 For a document to be exempt under cl 6, firstly, it must contain “information concerning the personal affairs” of a person other than the applicant and, secondly, the disclosure of that information would be “unreasonable”. What constitutes the “personal affairs” of a person has been discussed in a number of decisions both of the courts and of the Tribunal. In Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43, at par 33, Deputy President Hennessy said the purpose of the personal affairs exemption is to allow the public interest in personal privacy to be balanced against the public interest in people having open access to information held by government.

18 The leading authority on what constitutes the “personal affairs” of a person is the NSW Court of Appeal decision in Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 (‘Perrin’s case’) where, at 625, Kirby P described “personal affairs” as meaning “the composite collection of activities personal to the individual concerned”. His Honour recognised, at 620-621, that cl 6(1) can embrace the personal affairs of the agency’s own officers and employees. He said, at 625, that while disclosing the names of police officers and employees involved in the preparation of police reports could not be classified as disclosing information concerning their personal affairs:

“It would be quite different if personnel records, private relationships, health reports or (perhaps) private addresses would be disclosed. Such information would attract the exemption.”

19 With regard to when the disclosure of information is unreasonable, in Saleam v Director General, Department of Community Services [2002] NSWADT 41, at paragraph 38, the President of the Tribunal, O’Connor DCJ, followed the approach adopted by the Commonwealth Administrative Appeals Tribunal in Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257, at par 51:

“Whether a disclosure is ‘unreasonable’ requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was being obtained, the likelihood of the information being information that the person concerned would not wish to be disclosed without consent, and whether that information has any current relevance.”


(See also the decision in Martin v Commissioner of Police, NSW Police [2005] NSWADT 23.)

20 Pursuant to s 31(2) of the FOI Act, an agency shall not give access to a person (other than the applicant) “unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 6 of Schedule 1”.

21 The Health Service seeks to rely on the personal affairs exemption set out in Sch 1, cl 6 of the FOI Act to not release the whole or part of a number of documents within the scope of the Applicant’s applications. Mr Blackwell said that pursuant to s 31 of the FOI Act, where the documents at issue contain information concerning the personal affairs of a person, the Health Service has consulted that individual to obtain his or her views as to whether access to the document should be granted. All four individuals consulted had requested that the information concerning them not be released.

22 Mr Blackwell said the Health Service “believes it has need to ‘draw a line in the sand’ in relation to the quantity of time, energy, and resources that it commits to providing information that is not relevant to the business it is endeavouring to carry out and the fundamental services it provides to the community”.

23 The Applicant responded that the FOI Act provides a legal right for individuals to obtain access to information held by government. She is aggrieved by the conduct of the Health Service in instigating an external investigation into the incidents said by her to have occurred in the course of her employment with the Health Service, when she did not lodge a formal grievance. She is also aggrieved by the picture painted of her in Protocol Investigations’ report which she claims is based in part on false and malicious information, is derogatory, and suggests she is an unstable person. Finally, she is aggrieved by what she suggested was the inept handling of her FOI applications by Mr White. The Applicant seeks access to all relevant documents so that, if appropriate, she can make an application to the Health Service, pursuant to s 39 of the FOI Act, for the amendment of the Health Service’s records.

24 The role of the Tribunal is not to comment on the events that led to the Applicant seeking a transfer from Blayney Hospital to Orange Base Hospital, or the conduct of the investigation by Protocol Investigations or its consequent report. The Tribunal’s role, pursuant to s 53 of the FOI Act, is to conduct a review of the determinations made in respect of the Applicant’s FOI applications. In determining the Applicant’s applications, the Tribunal is required “to decide what the correct and preferable decision is having regard to the material then before it” (ADT Act, s 63(1)). In doing so, the Tribunal will have regard, where appropriate to the objects of the FOI Act stated in s 5 (see below).

25 The Applicant requested that the Tribunal exercise its power under s 58 of the FOI Act to report the conduct of Mr White to the Minister. She said that her first FOI application was lodged with the Health Service over a year ago and noted that, at first, she was denied access to all documents. It was only after intervention by the Ombudsman that part of the Protocol Investigations report to which she sought access was released to her. She submitted that the way in which Mr White has handled the matter indicates that he lacks understanding of the FOI process. Mr Blackwell rejected this. The Applicant noted that even in the most recent letter from Mr White, dated 6 March 2007, in response to her third FOI application, copies of some of the documents to be released to her were missing. Mr Blackwell undertook to follow this up and where any documents to be released have not been supplied, he will arrange for these documents to be provided to the Applicant. As noted above, he provided the Applicant with these documents with his letter dated 28 March 2007.

26 With regard to the Applicant’s complaint about the handling of her FOI applications by Mr White, I note the failure of the Health Service to respond to the Applicant’s applications within the required time frame, and that the initial response to her first application was an exemption being claimed in respect of the whole document identified as being within the scope of her application. This is despite the fact that one of the records of interview contained in the report is that between the Applicant and the investigator from Protocol Investigations, dated 18 July 2005. The Applicant complained to the NSW Ombudsman about Mr White’s response to her first application. The Ombudsman conducted an investigation and provided advice to Mr White, as a result of which he varied his decision and released the document to her in part (21 pages in whole or in part).

27 I also note the some of the correspondence from Mr White is incorrectly dated or posted up to 11 days after the date on the letter, and that other factual errors have been made by the Health Service in the handling of the applications: for example, the statement that the Applicant withdrew her workers compensation claim when, in fact, the workers compensation insurer declined liability. The Applicant has also provided evidence about the FOI application fees being mislaid by the Health Service and about assurances from Mr White’s personal assistant that Mr White would return her phone calls, which did not happen (submissions filed on 17 November 2006 and attachments). Some of the statements by the Health Service in relation to this matter also strike me as being inapposite, for example about the need to draw a line in the sand, a statement that was repeated in its submissions. In my view, where an FOI application is received, the role (and focus) of the Health Service, is to respond to the application in accordance with its obligations under the legislation.

28 I can understand why in the light of these events the Applicant should be frustrated by the conduct of the Health Service in relation to her applications. She presented at the hearing as calm and well-organised, and her submissions, both written and oral, were well presented. However, the Tribunal’s power under s 58 to bring a matter to the attention of the Minister only arises where “the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed on the officer by or under this Act”. While the conduct of the Health Service in relation to the Applicant’s FOI applications, and of Mr White in particular, evidences some deficiencies, and indicates a lack of familiarity with the FOI Act and, notwithstanding other responsibilities and pressures, a failure to commit the time and resources to this matter that is deserved, I am not satisfied that Mr White has not acted in good faith. Thus, in my view, it is not appropriate to exercise the Tribunal’s power under s 58.

Review of Documents claimed to be exempt

29 I have reviewed the documents claimed to be exempt in relation to each of the three FOI applications.

30 First FOI application. The subject of this application was the Protocol Investigations report dated 22 September 2005. As mentioned above, 21 pages of this report have been released to the Applicant. Only those pages in respect of which an exemption is claimed in whole or in part are referred to here. The following is the outcome of my review:

Report pp 4, 5, 6, 7, and 8 refer to information contained in statements from witnesses, referring to the personal affairs of those persons, the disclosure of which would be unreasonable. Thus, the exemptions are properly claimed.


Report p 9 also refers to information contained in statements from witnesses, referring to the personal affairs of those persons, the disclosure of which would be unreasonable. However, par 4 of p 9 refers to a letter from the Applicant to Ruth Sandry (as to which see below) and principally refers to the Applicant’s personal affairs. It would be unreasonable not to release par 4 to her.


The part of p 10 of the report claimed to be exempt refers to the transcript of a meeting between the Applicant and David Wright, Deputy Director of Nursing at Orange Base Hospital, on 12 August 2005. This part principally refers to the Applicant’s personal affairs and it would be unreasonable not to release this part to her.


The part of p 12 of the report claimed to be exempt is similar to a document already in the Applicant’s possession, which is from Protocol Investigations’ report to the workers compensation insurer. It reveals nothing the Applicant does not already know about the personal affairs of others and it would be unreasonable not to release this part to her.


Appendices D, E, G, and H comprise the transcripts of interviews between Protocol Investigations and four “witnesses” conducted in the course of its investigation. The Health Service has consulted these four persons in relation to disclosure of this information, and has provided letters from two of the persons and from the union representative of the other two persons objecting to the disclosure. In my view, the transcripts contain personal information relating to those persons, the disclosure of which would be unreasonable.


Appendix F is a handwritten letter from the Applicant to Ms Sandry. In her submissions, the Applicant referred, in particular, to a reference in the Protocol Investigations report to a letter provided to it that she allegedly wrote. The Applicant submitted that this alleged letter would be her personal and intellectual property, and would refer to her personal affairs, so that the personal affairs exemption should not apply to it and she should be given access. The Applicant is aware that Ms Sandry was interviewed by and gave a written statement to Protocol Investigations in their investigation of the Applicant’s workers compensation claim, because this was referred to in Protocol Investigations’ report to the workers compensation insurer. In my view, given that the letter was written by the Applicant, the information contained in the letter is obviously within her knowledge, and that she is the person to whose personal affairs it principally relates, it would be unreasonable not to release this to her, and it should therefore be released to her in full.


Appendix I, document 1 (the second document has now been released to the Applicant) is a typed letter to the Director of Nursing at Orange Base Hospital from “the Fantastic Four”, a group of patients complimenting the staff, and in particular the Applicant, on their care of patients. In my view, this letter does not contain matter involving the unreasonable disclosure of personal information concerning the personal affairs of any person, and should, therefore, be released to the Applicant in full.

31 In summary, I am not satisfied that the Health Service have established that the personal affairs exemption can be claimed in respect of the following documents or parts of documents, which should, therefore, be released to the Applicant: par 4 of p 9; and pp 10 & 12 and Appendices F and I should be released in full. I am satisfied that the Health Service can rely on the personal affairs exemption in respect of the other documents or parts of documents claimed to be exempt.

32 Second FOI application. All the documents identified as being the subject of this application have been released to the Applicant except part of an email from Kathy Hillier (Acting Health Service Manager) to Richard Elligett (Human Resources Manager, Bathurst Office of the Health Service). This part refers to a relationship between the Applicant and another person, which Ms Hillier says she is aware broke up recently. In my view, while this contains information concerning the personal affairs of another person, it appears from other documents that this information is relatively widely known in the Applicant’s and the other person’s circles and disclosure would not be unreasonable in the circumstances. I am not satisfied that the Health Service has established that the personal affairs exemption can be claimed in respect of this part of the document, which should, therefore, be released in full to the Applicant.

33 Third FOI application. All the documents identified as being the subject of this application have been released to the Applicant except three documents, in respect of which the Health Service claims the personal affairs exemption applies in respect of the whole document. The first of these three documents (document 39 in the Schedule) comprises a report from Dr Peter Snowden, Consultant Psychiatrist, dated 9 June 2006, addressed to the Health Service’s workers compensation insurer, concerning the Applicant. In my view, the only parts of this report that contain information concerning the personal affairs of persons other than the Applicant, which it would be unreasonable to disclose, are par 6 on p 2 and par 6 on p 3. Thus, I am not satisfied that the Health Service has established that the exemption applies to the remainder of the document, which should, therefore, be released to the Applicant.

34 The second document (document 40) claimed to be exempt is a report by Protocol Investigations dated 24 May 2006 on the Applicant’s workers compensation stress claim. The report is attached to a fax dated 30 May 2006. There is no reason why this fax cannot be released. It contains no information concerning the personal affairs of any person. With regard to the report itself, pp 1, 2, 7, 8, 9 and 10 contain no information concerning the personal affairs of any person except the Applicant that is not already known to her, and these pages can be released to her in full. I note she already has copies of pp 8 and 9. Pages 3, 4, 5 and 6 contain information relating to the personal affairs of others, which I am satisfied it would be unreasonable to release. Thus, the relevant parts of these pages are exempt, with the consequence that the pages can only be released to the Applicant in part. The following parts of these pages should be exempt: par 5 and 6 of p 3; par 1, 2, 3 and 8 of p 4; par 7 and 9 of p 5; par 2, 4 and 5 of p 6.

35 There are also a number of Appendices to the report dated 24 May 2006. Of these, Appendices A, B, C, D, J, K, L, N, Q, R, S, T and U comprise transcripts of interview, signed statements or letters of nine “witnesses” who were contacted by Protocol Investigations in the course of preparing its report. Of these, four witnesses were contacted by the Health Service in relation to the first FOI application and objected to the disclosure of transcripts of interview. In my view, the transcripts, statements or letters that comprise the above Appendices contain information concerning the personal affairs of those nine persons, the disclosure of which would be unreasonable.

36 Appendix O is the report dated 22 September 2005, which was the subject of the first FOI application, reviewed above at par 30 to par 31. Appendices E, F, G, H, M, and P comprise correspondence (letters or emails) in which the Applicant was a party. Appendix I is a transcript of interview with the Applicant. Appendix V is the notification of the injury in respect of which the Applicant made the workers compensation claim and Appendix W is a WorkCover medical certificate in respect of this injury. Neither Appendices V nor W appear to have been provided to the Tribunal, but I can see no reason why these documents should not be released to the Applicant: the Applicant would have been the author of Appendix V, and she would have obtained Appendix W to submit this to the Health Service in conjunction with her claim. I am therefore not satisfied that that any exemption applies in respect of Appendices E, F, G, H, I, M, P, V, and W which should be released to the Applicant in full.

37 The third document (document 41) claimed to be exempt is a report by Dr Snowden dated 4 April 2006, addressed to the Health Service’s workers compensation insurer, concerning the Applicant. The report is attached to a fax dated 18 May 2006 with further handwritten notations. There is no reason why this fax cannot be released. It contains no information concerning the personal affairs of any person. With regard to the report itself, it appears that Dr Snowden relied entirely on information provided to him by the Applicant in the course of the consultation. The information in the report concerns the Applicant’s personal affairs. Where there are references in the report to the personal affairs of others, the Applicant supplied this information to Dr Snowden and, therefore, it would be unreasonable not to provide her with access to this information. Thus, I am not satisfied that the Health Service has established that the exemption applies to this document which should, therefore be released to the Applicant in full.

38 In the NSW Supreme Court decision in University of NSW v McGuirk [2006] NSWSC 1362, at par 102, Nicholas J held:

“s 63 ADT Act provides the Tribunal with the discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it.”

39 In Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55, at par 44 ff, I discussed other relevant case law and how, in my view, the discretion should be exercised. First, in cases where exercise of the residual discretion is in issue, the Tribunal must first consider whether particular documents are exempt under the Act, and only if it finds documents to be exempt should it then consider whether to exercise the residual discretion. Second, the discretion should only be exercised where there are strong grounds justifying the overriding of an exemption. The approach to be taken is one of balancing the competing interests involved according to the words of the Act, bearing in mind the stated objects of the Act: General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84, at par 151. In NSW, the public interest is a relevant matter in determining whether there are strong grounds justifying exercise of the discretion, and this should be considered in the light of the objects of the FOI Act, set out in s 5:

“(1) The objects of this Act are to extend, as far as possible, the rights of the public:


(a) to obtain access to information held by the Government, and


(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.


(2) The means by which it is intended that these objects are to be achieved are:


(a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and


(b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and


(c) by enabling each member of the public to apply for the amendment of such of the Government’s records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading.


(3) It is the intention of Parliament:


(a) that this Act shall be interpreted and applied so as to further the objects of this Act, and


(b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information.


(4) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records as permitted or required by or under any other Act or law.”

40 I have reviewed the documents or parts of documents that I am satisfied are exempt pursuant to the personal affairs exemption. In terms of the objects of the FOI Act, as a consequence of this decision, the Applicant will gain access to further relevant documents concerning her personal affairs. In my view, should she wish to do so, this will enable her to apply for the amendment of records held by the Health Service concerning her personal affairs if she can establish that its records are incomplete, incorrect, out of date or misleading. In this instance, I am not satisfied that there are strong grounds in terms of public interest or other considerations justifying exercise of the residual discretion to override the personal affairs exemptions that are warranted in this case.

41 File number 063250. The Tribunal varies the decision under review by determining that the following documents or parts of documents should be released to P: par 4 of p 9, and pp 10 and 12 and Appendices F and I of the Protocol Investigations report dated 22 September 2005.
42 File number 063418. The Tribunal sets aside the decision under review and determines that part of an email dated 5 July 2006 is not exempt under the personal affairs exemption and must therefore be released to P.
43 File number 073069. The Tribunal varies the decision under review by determining that the following documents or parts of documents should be released to P: (1) document 39, excepting only par 6 on p 2 and par 6 on p 3, which are exempt pursuant to the personal affairs exemption; (2) document 40, excepting only parts of the following pages which are exempt pursuant to the personal affairs exemption: par 5 and 6 of p 3; par 1, 2, 3 and 8 of p 4; par 7 and 9 of p 5; par 2, 4 and 5 of p 6; Appendices A, B, C, D, J, K, L, N, Q, R, S, T and U; Appendix O as per file number 063250, above; (3) document 41 in full.

I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL.


REGISTRAR

18/06/2007 - Pursuant to s 87 of the Administrative Decisions Tribunal Act 1997, the correction of an accidentalomission. - Paragraph(s) Inserted para 35 & 36. Amended orders and para 43.