Qd v Northern Rivers Area Health Service

[2005] NSWADT 154

CITATION:	QD v Northern Rivers Area Health Service [2005] NSWADT 154
DIVISION:	General Division
PARTIES:	APPLICANT QD RESPONDENT Northern Rivers Area Health Service
FILE NUMBER:	043360
HEARING DATES:	31/03/2005
SUBMISSIONS CLOSED:	03/31/2005
DATE OF DECISION:	07/07/2005
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	access to documents - confidential material - access to documents - personal affairs - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:
CASES CITED:	Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 Saleam -v- Director General, Department of Community Services and ors [2002] NSWADT 41 Uddin -v- Chief Executive Officer, South Eastern Sydney Area Health Service and Anor [2002] NSWADT 228 Wiseman v Commonwealth (unreported, Federal Court, Sheppard, Beaumont and Pincus JJ, 24 October 1989)
REPRESENTATION:	D Hunter, solicitor J Boot, agent
ORDERS:	The decision of the North Coast Area Health Service to refuse the applicant access to 86 documents is varied. In substitution for that decision the Tribunal makes the following decision: 1. The Tribunal has no jurisdiction to review the North Coast Area Health Service's decision in relation to Documents 14 to 36, the entry dated 26/9/03 on 72, 73, the last three lines on the front page of Document 79, the first three lines on the back of Document 79 and the entry dated 26/2/04 on the back of 78; 2. The applicant has withdrawn his application in relation to Documents 9 and 11 and no orders are made in relation to those documents; 3. Access to the following documents, or parts of documents is refused:Documents 2, 3, 4, 5, 6, 37, 39, 41, 42, 44, 45, 46, 47, 61 to 70, entry dated 24/9/03 on front of document 72, 74, front of 75 (14/10/03 entry only), back of 75 (entry dated 15/10/03 only), front of 76 (entries after the first signature of Claudia Valenzuela only), front of 77, back of 77 (13/1/04 entry only), front of 78, back of 78 (17/2/04 entry only), 82 to 103.Access to the following documents, or parts of documents is given:Documents 1, 7, 8, 38 (which is identical to documents 40 and 60) 43, 59, 72 (entry dated 18/9/03 only), entry dated 15/10/03 on front of 75, entries on back of 75 dated 22/10/03 and 23/10/03, entry dated 24/11/03 down to first signature of Claudia Valenzuela on front of 76, entries on the back of 77 dated 14/1/04, 15/1/04 and 16/1/04, entries dated 27/2/04, 1/3/04 and 2/3/04 down to signature of Claudia Valenzuela on front of 79 and entry dated 8/7/04 on back of Document 79.

Introduction

1 Mr QD separated from his wife in July 2000. The separation has not been a smooth one and has resulted in proceedings under the Family Law Act 1975 in relation to access to the children. The middle child, who was 11 years old at the time of the hearing, experienced some emotional problems, including depression, following the separation. His mother was so concerned about her son’s state of mind that she organised for him to access the counselling service provided by the North Coast Area Health Service (NCAHS). After Mr QD found out that his son was attending this service, he requested his clinical notes. The NCAHS refused to provide him with the notes and he applied under the Freedom of Information Act 1989 (FOI Act) for access to “copies of all records relating to psychological counselling/treatment provided to (his son) in the period from 2001 to date.” The NCAHS gave Mr QD access to some documents but denied access to another 86 documents, relying on the exemptions relating to personal affairs and confidential information contained in the FOI Act. The documents are numbered 1 to 103, but there are no documents numbered 10, 12, 13, 48 to 58, 71 or 80-81.

Issues

2 Under s 16 of the FOI Act, Mr QD has a legally enforceable right to be given access to an agency’s documents in accordance with the FOI Act. The NCAHS cannot refuse him access to documents unless those documents come within an exemption. Under s 61, the burden of establishing that the determination is justified lies on the agency. Section 25(4) of the FOI Act requires the Tribunal to consider whether access should be granted to exempt documents in a form in which exempt matter is deleted, if that is practicable and that is what the applicant would wish. The question is whether the agency has satisfied the Tribunal that the documents they claim are exempt, come within any of the exemption provisions in the FOI Act. In these reasons, we deal with each category of documents in turn. Those categories are:

documents not covered by the application;

documents that the NCAHS has agreed to release;

documents to which the applicant is not seeking access;

documents that contain information provided by the son to counsellors during counselling sessions;

documents which contain information provided to or by the son’s mother; and

documents containing information provided to or received from third parties.

3 Mr QD’s application under the FOI Act sought access to “copies of all records relating to psychological counselling/treatment provided to (his son) in the period from 2001 to date.” Documents 14 to 36 are documents produced by the Family Court of Australia or the Federal Magistrates Court pursuant to the Family Law Act 1975. There were also parts of other documents that do not relate to the application because they concern one of Mr QD’s other children. Those passages are the last three lines on the front page of Document 79 and the first three lines on the back of Document 79. The entry dated 26/9/03 on Document 72, document 73 and the entry dated 26/2/04 on the back of Document 78 relate to requests by Mr QD for his son’s records, not to the psychological counselling/treatment provided to his son. As these documents or parts of documents are not documents that are covered by Mr QD’s application to the NCAHS, this Tribunal has no jurisdiction to make any order about their disclosure.

Documents that the NCAHS has agreed to release

4 Part of the hearing was conducted in the absence of Mr QD and members of the public pursuant to s 55(b) of the FOI Act. During that part of the hearing, the NCAHS agreed to release certain documents to Mr QD. Some of those documents do not come within the scope of Mr QD’s request, but if the agency chooses to release those documents to him, then that is a matter for them. Those documents include Documents 1, 7, 8, 38 (which is identical to documents 40 and 60) 43, 59, 72 (entry dated 18/9/03 only), entries on the back of 77 dated 14/1/04, 15/1/04 and 16/1/04,” the entry dated 26/2/04 on the back of 78 (with some deletions), the entries dated 27/2/04, 1/3/04 and 2/3/04 down to signature of Claudia Valenzuela on front of 79 and entry dated 8/7/04 on back of Document 79. I have not treated all these documents as coming within the scope of Mr QD’s request so it is up to the agency as to whether it wishes to release those documents.

Documents to which the applicant is not seeking access

5 Mr QD is not seeking access to documents 9 and 11.

Documents that contain information provided by the son to counsellors during counselling sessions

6 Mr QD’s legal representative acknowledged that the son has said that he does not want his father to have access to information he provided to the counsellor. While not abandoning his application for those documents, Mr QD and his representative appeared to appreciate that it was unlikely to be in his son’s best interests for those documents to be disclosed. Documents falling into this category are documents 62, 63, 64, 65, 66, the final third of the back of 68, 69, 74, the entry dated 14/10/03 on 75, 83 to 87, 91, 95 to 101.

7 Under cl 6 of the FOI Act:

(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 persons (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.

8 In Commissioner of Police v District Court of NSW (Perrin’s case) (1993) 31 NSWLR 606, Kirby J remarked at 645, that:

...if there was clear evidence that there would be prejudice to persons by the disclosure of their personal affairs and the applicant wished the information for mischievous purposes it would undoubtedly be relevant for the tribunal to balance the competing claims in order to determine whether disclosure would be unreasonable. But that is not a necessary approach in every case. At the heart of the matter is the onus on the agency to establish the unreasonableness of the disclosure.

9 There is no doubt that the documents in this category concern the son’s personal affairs. The document records extremely sensitive and personal information about his thoughts and feelings towards himself, his family and his friends. The only question is whether disclosure would be unreasonable. There was uncontested evidence from three witnesses as to the adverse effects that disclosure would have on the son. For example, the evidence from Choong-Siew Yong, consultant Child and Adolescent Psychiatrist was that release of the son’s file to his father would be prejudicial to his mental health. Ms Dent, the Child and Family Coordinator with the NCAHS, gave evidence that the best outcomes in counselling are achieved when a relationship of trust is developed between the child and the counsellor. Once that relationship is established the child has a safe and neutral opportunity to express their thoughts and feelings and learn strategies with the counsellor to handle those thoughts and feelings. Ms Dent expressed the view that there would be no health benefit to the son if his father were to read the content of his counselling sessions. She also noted that the son had clearly told the counsellor that he does not want anyone to know the content of his clinical notes.

10 Mr QD gave evidence about the history of his relationship with his former wife and his children since the separation. He said that he wants access to the documents because it is important for him to know about the symptoms his son is exhibiting, the diagnosis and the treatment he is receiving. He is concerned that the NCAHS has relied on information that is incorrect, including an assumption that Mr QD has abused his son. He is also concerned that the NCAHS may be relying on biased information and that they have not asked him for any information about his son which may contradict or corroborate information from other sources.

11 Mr QD’s motives for seeking access to his son’s personal information do not outweigh the clear evidence of harm that such disclosure would be likely to cause to his son. In addition, disclosure of the documents, is disclosure to the whole world, not just to Mr QD. Despite his undertaking that he would not disclose the documents if he were given access to them, the FOI Act does not allow for the imposition of conditions on disclosure. Finally, even though Mr QD is the father of the child concerned that factor alone, or in combination with other relevant factors, does not make it reasonable for him to have access to the document. (Wiseman v Commonwealth (unreported, Federal Court, Sheppard, Beaumont and Pincus JJ, 24 October 1989), Saleam -v- Director General, Department of Community Services and ors [2002] NSWADT 41 at [50] and Uddin -v- Chief Executive Officer, South Eastern Sydney Area Health Service and Anor [2002] NSWADT 228 at [29]. In all the circumstances, I am satisfied that disclosure of the son’s personal affairs would be unreasonable.

Documents which contain information provided to or by the son’s mother

12 Several documents contain information provided by the son’s mother to the NCAHS either in person or by phone. That information consists largely of reports of how the son is progressing and things that he has said or done. Documents which fall into this category are Documents 2, 3, 4, 5, 6, 41, 42, 61, 67, the front of 68, the back of 68 down to the son’s first name, the last entry on 69, 70, the entry dated 15/10/03 on the front of 75, entries on the back of 75 dated 22/10/03 and 23/10/03, the entry dated 24/11/03 down to first signature of Claudia Valenzuela on the front of 76, front of 77, the entry on the back of 77 dated 13/1/04, the front of 78, the entry dated 17/02/04 on the back of 78, 92 to 94, 102 and 103.

13 In relation to the exemption in Cl 6, for the reasons given above, I am satisfied that the majority of these documents concern the son’s personal affairs including his family situation and disclosure would be unreasonable. The documents or parts of documents that do not fall into this category are the entry on the front of 75 dated 15/10/03, the entries on back of 75 dated 22/10/03 and 23/10/03 and the entry dated 24/11/03 down to first signature of Claudia Valenzuela on the front of 76. The NCAHS has not satisfied me that those parts of the document fall within the exemption in Cl 6. There was no evidence that the mother objected to the disclosure of these parts of the document and I am not satisfied that Cl 13 applies. Consequently those parts of the documents are to be released to Mr QD.

Documents containing information provided to or received from third parties

14 This group of documents cannot be identified with any particularity as to do so would disclose their content. The documents in this category are Documents 37, 39, 44, 45, 46 (identical to document 47), the entry in 72 for 24/09/03, the entry dated 15/10/03 on back of 75, 82 and 88 to 90. I am satisfied, having read these documents that they fall within the exemptions in Cl 6 and Cl 13. Section 55(a) of the FOI Act prevents me from disclosing my reasoning because to do so would disclose exempt matter.

Orders

15 The decision of the North Coast Area Health Service to refuse the applicant access to 86 documents is varied. In substitution for that decision the Tribunal makes the following decision:

1. The Tribunal has no jurisdiction to review the North Coast Area Health Service’s decision in relation to Documents 14 to 36, the entry dated 26/9/03 on 72, 73, the last three lines on the front page of Document 79, the first three lines on the back of Document 79 and the entry dated 26/2/04 on the back of 78.

2. The applicant has withdrawn his application in relation to Documents 9 and 11 and no orders are made in relation to those documents.

3. Access to the following documents, or parts of documents is refused:

Documents 2, 3, 4, 5, 6, 37, 39, 41, 42, 44, 45, 46, 47, 61 to 70, entry dated 24/9/03 on front of document 72, 74, front of 75 (14/10/03 entry only), back of 75 (entry dated 15/10/03 only), front of 76 (entries after the first signature of Claudia Valenzuela only), front of 77, back of 77 (13/1/04 entry only), front of 78, back of 78 (17/2/04 entry only), 82 to 103.
Access to the following documents, or parts of documents is given:
Documents 1, 7, 8, 38 (which is identical to documents 40 and 60) 43, 59, 72 (entry dated 18/9/03 only), entry dated 15/10/03 on front of 75, entries on back of 75 dated 22/10/03 and 23/10/03, entry dated 24/11/03 down to first signature of Claudia Valenzuela on front of 76, entries on the back of 77 dated 14/1/04, 15/1/04 and 16/1/04, entries dated 27/2/04, 1/3/04 and 2/3/04 down to signature of Claudia Valenzuela on front of 79 and entry dated 8/7/04 on back of Document 79.