Schlebaum (No 2) v Department of Community Services and Gliksman

[2001] NSWADT 214

CITATION:	Schlebaum (No. 2) -v- Director General, Department of Community Services & anor [2001] NSWADT 214
DIVISION:	General Division
PARTIES:	APPLICANT Anne Schlebaum FIRST RESPONDENT Director General, Department of Community Services SECOND RESPONDENT Michael Gliksman
FILE NUMBER:	013029
HEARING DATES:	27/09/2001
SUBMISSIONS CLOSED:	10/10/2001
DATE OF DECISION:	12/14/2001
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Freedom of Information Act - time for lodging application - Standing
MATTER FOR DECISION:	Preliminary matters
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Children (Care and Protection) Act 1987 Freedom of Information Act 1989
CASES CITED:	Schlebaum -v- Director General, Department of Community Services and Gliksman [2001] NSWADT 97 Wittingslow Amusements Group Pty Limited and Anor v The Director General of Environment Protection Authority of New South Wales (unreported decision of the Supreme Court of New South Wales, 23 April 1993) Re O’Sullivan (No 2) (1995) 9 VAR 3 O’Sullivan and Department of Health and Community Services (1997) 70 FOI Rev 59 O’Sullivan and Department of Health and Community Services (unreported) 1995/022225 from the Victorian Civil and Administrative Tribunal (VCAT) Gilling -v- General Manager, Hawkesbury City Council [1999] NSWADT 43 Re Williams and Registrar of Federal Court of Australia (1985) 8 ALD 219 Young v Wicks (1986) 13 FCR 85 Perrin's Case (1993) 31 NSWLR 606 at 625 Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 Re French (1987) 12 ALD 525 University of Melbourne v Robinson (1993) 2 VR 177 Gill v Department of Industry Technology and Resources [1987] VR 681, 687 11. 44-52 Accident Compensation Commission v Croom [1991] 2 V.R. 322, 329 1.46-330 1.34 K & S Lake city Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 Cooper Brookes (Wollongong) Pty Ltd v FC of T (1981) 35 ALR 151 Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 43 Raethel v Director General, Department of Education and Training [1999] NSWADT 108 Pope and Queensland Health [1994] QICmr 16 (18 July 1994) (1994) 1 QAR 616, [27] Lawless and Medical Board of Western Australia and Medical Practitioner X, Re [1995] WAICmr 19 (5 July 1995) Re Saxon and Australian Maritime Safety Authority (19 June 1995 - unreported)
REPRESENTATION:	APPLICANT N Abadee, barrister FIRST RESPONDENT P Singleton, barrister SECOND RESPONDENT In person
ORDERS:	1. The applicant has standing to bring these proceedings; 2. The applicant’s application for review to the Tribunal was made within time; 3. The matter is to be re-listed for telephone directions.

Introduction
1 These proceedings relate to four documents (three file notes and a memorandum) held by the Department of Community Services (DOCS). Dr Schlebaum, a child psychiatrist, contacted DOCS about concerns she had about the welfare of two boys. Among other things, the four disputed documents record Dr Schlebaum’s concerns. This decision addresses two preliminary issues which have arisen for determination under the Freedom of Information Act 1989 (FOI Act). These issues are whether Dr Schlebaum has standing to bring these proceedings and, if so, whether they have been brought within the time allowed.

2 The unusual circumstances of this case raise questions about publication of the applicant’s name. In general, the Tribunal would choose not to identify a person, such as Dr Schlebaum, who has contacted DOCS in relation to child protection matters. Despite the sensitivity of this information I have decided to identify Dr Schlebaum in this decision. The reasons for this are:

· Dr Schlebaum did not apply to the Tribunal for a non-publication order;
· Dr Gliksman and the other people referred to in the documents know that Dr Schlebaum notified DOCS about concerns she had about the welfare of certain children; and
· Dr Schlebaum has been identified in a previous preliminary decision: Schlebaum -v- Director General, Department of Community Services and Gliksman [2001] NSWADT 97.
History of this matter
3 In a previous decision relating to the same documents (Schlebaum -v- Director General, Department of Community Services and Gliksman [2001] NSWADT 97) I set out the history of this matter. So that the two preliminary issues arising in the present proceedings can be put into context, I have set out below paragraphs 1 to 7 of the previous decision:
(1) In March 1997, Dr Gliksman applied to the Director General, Department of Community Services (the agency) for access to information under the Freedom of Information Act 1989 (FOI Act). Dr Gliksman asked for "any written material, including file notes of telephone conversations, from Dr Anne Schlebaum to any DOCS employee, regarding myself, in relation to” a certain matter involving three children.

(2) On internal review the agency determined that Dr Gliksman should not be granted access to the four documents that fell within the scope of his request. Dr Gliksman applied to the Tribunal for a review of that determination.

(3) On 14 July 2000 the Tribunal directed the agency to consult with certain people, including Dr Schlebaum, on the basis that the documents contained information concerning those people's personal and/or business affairs. Dr Schlebaum's representative advised the agency that Dr Schlebaum opposed the release of all four documents because they would disclose information concerning her business, professional, commercial or financial affairs and their disclosure could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency. (See Cl 7(1)(c)(i) and (ii) of Schedule 1 to the FOI Act.)

(4) At a directions hearing on 8 August 2000, the agency advised the Tribunal that Dr Schlebaum objected to the release f the four documents. As a result of an application by Dr Gliksman to the Tribunal on 9 October 2000, the Tribunal made an order, by consent, under s 65 of the Administrative Decisions Tribunal Act 1997 (ADT Act) remitting the decision not to release the four documents to the agency for reconsideration. The agency set aside its original decision and granted Dr Gliksman access to all four documents. That decision was subject to the proviso that the agency would first have to consult with people whose personal or business affairs would be disclosed if those documents were released. The agency also formed the view at that stage that nothing in the documents concerned Dr Schlebaum's business or personal affairs and she was not consulted. Dr Gliksman subsequently withdrew his application to the Tribunal under s 65(4)(b)(ii) of the ADT Act.

(5) The agency did not formally notify Dr Schlebaum of their decision to grant Dr Gliksman access to the documents. She found out that the agency had reversed its decision through a telephone call with an officer of the agency on 2 February 2001. I understand that this was because the agency took the view that the documents did not concern her personal or business affairs and she did not need to be consulted or notified of the decision.

(6) On 6 February 2001, Dr Schlebaum applied to the Tribunal for a review of the agency's decision to grant access to the documents subject to consultation with certain parties. She also applied for an urgent stay on the same day. I made Dr Gliksman a second respondent to Dr Schlebaum's application. I also granted a stay in relation to the agency's decision to provide access to the documents under review pending further order of the Tribunal.

(7) I raised a concern at the Directions Hearing on 5 April 2001 that the Tribunal may not have jurisdiction to hear Dr Schlebaum's application because it may be out of time. I directed each party to file written submissions on that issue and decided to determine that issue "on the papers" under s 76 of the ADT Act.

4 I made a tentative finding in Schlebaum -v- Director General, Department of Community Services and Gliksman [2001] NSWADT 97 based on the evidence then available, that Dr Schlebaum’s application to the Tribunal was out of time. I noted that the question of whether or not the documents in dispute contain information relating to Dr Schlebaum’s personal or business affairs is a preliminary question that the Tribunal would have to decide before determining whether there was any scope for extending the time.

5 A hearing was conducted on 27 September 2001. Both Dr Schlebaum and the Director General, DOCS (the Director General) were represented by counsel. The second respondent, Dr Gliksman, did not appear at the hearing but provided written submissions to the Tribunal.

6 Several issues arose at the hearing on 27 September 2001 which required clarification. I made certain directions including that any further written submissions from the applicant be filed by 10 October 2001. I also gave Dr Gliksman an opportunity to respond to those submissions which he did by letter of 15 October 2001.

Does Dr Schlebaum have standing to bring these proceedings?
7 Background. The background discussion concerning whether Dr Schlebaum has standing is set out in the previous decision of Schlebaum -v- Director General, Department of Community Services and Gliksman [2001] NSWADT 97 at [10] to [15]:

10 The reviewable decision under consideration is the agency's decision to grant access to the four documents requested by Dr Gliksman. Dr Schlebaum is seeking a review of that decision, but can only do so if she meets the requirements set out in s 55 of the ADT Act. Those provisions are as follows:
(1) A person may apply to the Tribunal for a review of a reviewable decision only if:
(a) the application is made by an interested person, and
(b) an internal review is taken to have been finalised under section 53 (9), and
(c) the application is made in the manner prescribed by the rules of the Tribunal, and
(d) the application is made within such period as may be prescribed by the rules of the Tribunal following the date on which the internal review is taken to have been finalised under section 53 (9).
Note. Section 4 defines interested person to mean a person who is entitled under an enactment to make an application to the Tribunal for an original decision or a review of a reviewable decision (as the case may be).

Is Dr Schlebaum an interested person?

11 To be an "interested person" an applicant must be entitled under the FOI Act to make an application to the Tribunal for a review of a reviewable decision. The FOI Act extends that entitlement to a person who is "aggrieved by the determination". Such a person is defined in s 53(3) of the FOI Act and includes:

(b) in the case of a determination that relates to an application made by some other person under section 17, 34 or 36, in respect of a document to which one or more of the provisions of Division 2 of Part 3 applies if:
(i) an agency or Minister should have, but has not, taken such steps as are reasonably practicable to obtain the views of the person as to whether or not the document is an exempt document by virtue of any one or more of the provisions of Part 2 of Schedule 1, or
(ii) an agency or Minister should have, and has, taken such steps but the determination is not in accordance with the views of the person,
12 In the agency's submission, the only basis on which Dr Schlebaum could be an aggrieved person is that the agency should have, but has not, obtained her views: s 53(3)(b)(i). The agency chose not to consult Dr Schlebaum after the Tribunal remitted the decision for reconsideration, because they had concluded that none of the documents concerned her personal or business affairs. (See FOI Act s 31(1) and s 32(1).)

13 An alternative view is that Dr Schlebaum is an aggrieved person because the agency "should have, and has" obtained her views (at the direction of the Tribunal) but subsequently made a determination which was not in accordance with those views. Dr Schlebaum's application for an urgent stay filed on 6 February 2001 states, in part, that "I was only told of this decision (against my expressed wishes) on 2/2/01 by David Croke (DOCS lawyer) verbally, not given the required 60 days notice." The reference to her "expressed wishes" indicates that Dr Schlebaum believed that she was an aggrieved person under s 53(3)(b)(ii) of the FOI Act because the agency "should have, and has" obtained her views, "but the determination is not in accordance" with those views.

14 The agency "conceded" that they had not obtained Dr Schlebaum's views, but the facts appear to be otherwise. In paragraph 4 of the agency's submission they make it clear that the agency did know Dr Schlebaum's views when they made their decision.

15 Whether 53(3)(b)(i) or (ii) is the provision relied on by Dr Schlebaum, she will only be an aggrieved person if the agency "should have" taken such steps as are reasonably practicable to obtain her views. The agency has submitted that they were not obliged to obtain her views because the documents do not concern her personal or business affairs. This is a matter which the Tribunal would have to determine as a preliminary issue if the other elements of s 53 of the ADT Act are satisfied.

8 Issues . Based on this analysis, one issue in these proceedings is whether the agency “should have” taken such steps as are reasonable practicable to obtain Dr Schlebaum’s views. The agency “should have” taken such steps in accordance with s 53(b), if it is:
· “a determination that relates to an application by some other person” (in this case Dr Gliksman);
· “under section 17, 34 or 36” (in this case s 17: access to an agency’s documents);
· “in respect of a document to which one or more of the provisions of Division 2 of Part 3 applies” (in this case s 31 or 32.)
9 There is no dispute that the first two requirements are met. In relation to the third requirement, the relevant portions of section 31 and 32 are set out below:
Section 31
(1) This section applies to a document that contains information concerning the personal affairs of any person (whether living or deceased).
(2) An agency shall not give access to a document to which this section applies (otherwise than to the person concerned) 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.
Section 32
(1) This section applies to a document that contains:
(a) information concerning the trade secrets of any person, or
(b) information (other than trade secrets) that has a commercial value to any person, or
(c) information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any person.
(2) An agency shall not give access to a document to which this section applies (otherwise than to the person concerned) 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 7 of Schedule 1.
10 Dr Schlebaum will only have standing if the provisions of s 31 and/or s 32 apply to the disputed documents. This conclusion is supported by the findings of Powell J in Wittingslow Amusements Group Pty Limited and Anor v The Director General of Environment Protection Authority of New South Wales (unreported decision of the Supreme Court of New South Wales, 23 April 1993). Powell J found at p 31 that because the disputed document in that case did not come within any of the classes enumerated in s 32(1) of the FOI Act, the provisions of s 32(2) requiring consultation were not triggered.

11 The issue to be resolved is whether the disputed documents contain information concerning Dr Schlebaum’s personal affairs or concerning her business, professional, commercial or financial affairs.

12 Evidence. The evidence consisted of:

· a statement of Paul Tsaousidis dated 16 August 2001;
· a letter dated 14 September 2001 from John McDonnell Assistant Crown Solicitor to Paul Tsaousidis;
· a letter from David Croke, legal officer to Dr Schlebaum’s client dated 1 August 2000;
· the three file notes and one memorandum comprising the documents which Dr Schlebaum is claiming should not be disclosed under the FOI Act (confidential Exhibit 1);
· a statement of Dr Schlebaum dated 24 August 2001;
· a statement of Elizabeth Le Brocq dated 27 August 2001; and
· a statement of Genevieve Davis dated 27 August 2001.
13 Dr Schlebaum’s statement was tendered and she was not required for cross-examination. In summary, she said that she is a consultant psychiatrist who was consulted by a patient, AW and her two sons who she regards as clients. As a result of information that the two sons told her she had grave concerns about their welfare. On 13 August 1996, she phoned DOCS to advise them of her concerns. She phoned DOCS again the following day. On 17 September 1996 she telephoned DOCS again after receiving new information from AW. When making each of these phone calls she believed she was making a notification under the now repealed s 22 of the Children (Care & Protection) Act 1987 (C (C & P) Act). In her view, she has a professional and moral obligation to notify DOCS of her concern that the boys were at risk. She believes that she was speaking to DOCS in her professional capacity as a child psychiatrist about her patients.

14 Dr Schlebaum also gave evidence of the effect that disclosure of the documents to Dr Gliksman may have on her. She said that there are dangers involved in reporting suspected child abuse. Since 1975 she has received a number of death threats, her office has been broken into five times, her car has been tampered with on three occasions and her cat has been mutilated and killed.

15 Ms Le Brocq gave evidence that in 1996 DOCS employed her as an assistant manager. Much of her evidence cannot be recorded because it would disclose information which is allegedly exempt. (See s 55 of the FOI Act.)

16 Ms Le Brocq said that following her phone call with Dr Schlebaum she was concerned about the welfare of a particular child. She formed the view that this child was at risk, although not that the child was at immediate risk of harm. Ms Le Brocq gave oral evidence stating that she had changed her mind about the opinion expressed in paragraph 3 of her statement. She is now of the opinion that the file notes of telephone conversations she had with Dr Schlebaum and others (document 3) does constitute a notification under the now repealed s 22 of the (C (C & P Act).

17 Ms Davis is a senior case worker with DOCS. On 13 and 14 August 1996 she made two file notes of telephone conversations she had with Dr Schlebaum (documents 1 & 2). She said that at that time she was of the opinion that the information provided by Dr Schlebaum did not constitute a notification under s 22 of the C (C & P) Act.

18 Applicant’s submissions. In relation to the question of whether the disputed documents concern Dr Schlebaum’s personal affairs, the applicant submitted that disclosure of the name of an informant in the context of reporting child abuse constitutes disclosure of information concerning the personal affairs of that informant. In support of this proposition, the applicant cited two decisions: Re O’Sullivan (No 2) (1995) 9 VAR 3 and O’Sullivan and Department of Health and Community Services (1997) 70 FOI Rev 59. Ms Abadee was only able to obtain a case note of the second decision. After the hearing the Tribunal obtained a full copy of O’Sullivan and Department of Health and Community Services (unreported) 1995/022225 from the Victorian Civil and Administrative Tribunal (VCAT).

19 Alternatively, Ms Abadee submitted that the information provided by Dr Schlebaum in her conversations with DOCS officers concerned her business or, at the very least, her professional affairs because:

· the information was provided in her capacity as a professional practising child psychiatrist; and
· the information concerned her patient, AW, and AW’s children.
20 Ms Abadee submitted that the provisions of s 32(1) resemble those of s 43(1)(c) of the Freedom of Information Act 1982 (Cth) which provides for an exemption for information “concerning a person in respect of his or her business or professional affairs . . .”

21 Respondent’s submissions. Counsel for DOCS, Mr Singleton, said that DOCS was “neutral” in relation to Dr Schlebaum’s application on the issues of standing and out of time. However he said that the words “business, professional financial and commercial affairs” had to be read together, not in isolation. He also submitted that the question of whether a document that contains information concerning the personal affairs of Dr Schlebaum was a different question from whether release of that information would affect her personal affairs.

22 Dr Gliksman’s submissions. In Dr Gliksman’s submission of the 30 September 2001 he addressed the substantive issues, rather than the preliminary issues which are currently under consideration. So far as is relevant to these proceedings, he submitted, in brief, that:

· the information supplied by Dr Schlebaum was not a notification under the C (C & P) Act; and
· the information in the documents does not relate to Dr Schlebaum’s personal affairs.
Reasons and decision
23 Meaning of “personal affairs.” In Gilling -v- General Manager, Hawkesbury City Council [1999] NSWADT 43 I outlined some of the principles in relation to the meaning of “personal affairs.” In paragraphs 14 to 22 of her written submissions Ms Abadee helpfully set out some of the significant case law in this area. The relevant principles can be summarised as follows:
· The term "personal affairs" cannot be precisely or exhaustively defined;
· The dictionary meaning of “personal affairs is "matters of private concern to an individual": Re Williams and Registrar of Federal Court of Australia (1985) 8 ALD 219 at 221-222 per Beaumont J; Young v Wicks (1986) 13 FCR 85 at 89 per Beaumont J;
· In context, the words “personal affairs” mean the composite collection of activities personal to the individual concerned: Perrin's Case (1993) 31 NSWLR 606 at 625 per Kirby P;
· The information does not have to be confidential or secret to be personal, it may be widely known: Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 at 436 per Lockhart J;
· it is a question of fact in every case as to whether the name and address of a person amounts to their personal affairs: Perrin's case at p 644 per Clarke JA; Re French (1987) 12 ALD 525;
· a person's name, in isolation, is not generally part of their personal affairs: Perrin's case (1993) 31 NSWLR 606 at 638 per Mahoney JA and at 644 per Clarke JA;
· those aspects of a person’s life which arise from any position, office or other public activity with which the person occupies his or her time, do not normally concern their “personal affairs”: University of Melbourne v Robinson (1993) 2 VR 177 at 187 per Eames J;
· the fact that a person has made a telephone call concerns the personal affairs of the caller, unless evidence of the subject matter of the call, for example, that it was connected with the caller's duties as a public employee, might compel the conclusion that no question of personal affairs was involved: Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111 at 123 per Heerey J.
24 The purpose of consultation provided for in s 31 and 32 is set out in the Second Reading Speech (New South Wales Parliamentary Debates, Legislative Assembly, 2 June 1998, 1397 at 1400-1401) in the following terms:
Part 3 of the Bill also deals with consultation where a request for access relates to a document containing information relating to a person’s personal affairs or a person or organisation’s business affairs . . . This legislation attempts to balance the contending rights and interests of people seeking access to documents with the legitimate rights and interests of those people or governments to which the information relates.
25 The fact that Dr Gliksman knew when he lodged his original FOI application that Dr Schlebaum was the notifier is not relevant to the question of whether the information concerns Dr Schlebaum’s personal affairs. In Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111, the full Federal Court (Lockhart, Jenkinson and Heerey JJ) decided that notoriety does not deprive information of the character of information concerning a person’s “personal affairs.” Information can concern a person’s personal affairs even if it is not secret information.

26 Dr Schlebaum’s submissions involved two main propositions:

· Dr Schlebaum’s name concerns her personal affairs because it reveals that she made several phone calls to DOCS about her concerns and this information is confidential; and
· because Dr Schlebaum’s personal affairs have been affected in the past by disclosure of similar information, the information in the documents concerns her personal affairs.
27 Tribunal’s reasoning . In my view, the cases cited by Ms Abadee in support of the first submission do not assist her case significantly. In O’Sullivan and Department of Health and Community Services (unreported) 1995/022225 Deputy President Galvin refers to various exemptions including s 33(1) of the Freedom of Information Act 1992 (Vic) which is equivalent to Schedule 1, Clause 6(1) of the FOI Act. In relation to claims of exemption under 33(1) Deputy President Galvin found that information described as “General case note” fell within the ambit of s 33(1) the release of which would be unreasonable. Some of that information relates to the personal affairs of the persons named in the documents as clients. I was unable to identify anywhere in that case support for the proposition that the case notes in dispute contained information that related to the personal affairs of informers.

28 In the second case, Re O’Sullivan (No 2) (1995) 9 VAR 3, Deputy President Macnamara made the comment, at p 18, that:

In my view the evidence which the Tribunal has heard in the course of this appeal established that child protection matters generally are “personal” for those involved, whether as subject children, or notifiers or informants.
29 Deputy President Macnamara did not provide any reasoning to support this assertion. The issue was dealt with in more detail by Heerey J in Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111. Heerey J recognised that the fact that a person has made a telephone call may be information that concerns the personal affairs of the caller. But His Honour qualified that statement by saying, at p 123, that:
Evidence of the subject matter of the call, for example, that it was connected with the caller's duties as a public employee, might compel the conclusion that no question of personal affairs was involved.
30 In the present case the subject matter of the calls Dr Schlebaum made to DOCS (and the information recorded in the disputed documents) was connected with her position as a medical practitioner. It is arguable that s 22 of the C (C & P) Act (now repealed) obliged Dr Schlebaum, as a practising medical practitioner, to notify the Director General of the grounds on which she suspected that a child had been abused. Even if she was not under a legal obligation to do so, she may have had the option of doing so under s 22(1). That section provides that any person who forms the belief on reasonable grounds that a child has been or is in danger of being abused may notify the Director General of that belief.

31 Regardless of whether Dr Schlebaum’s phone calls had any legislative basis, the subject matter of the information recorded in the disputed documents arises from Dr Schlebaum’s position as a medical practitioner. The information may or may not be confidential but it is not personal to her as an individual. It concerns the personal affairs of her clients.

32 The applicant’s second proposition is that the information concerns her personal affairs because it will have an adverse effect on those affairs if disclosed. For the name of a notifier or informant to “concern” their personal affairs the information must be “related to” or “pertain to” those affairs. (See definition of “concern” in The Macquarie Dictionary, 3rd edition where concern is defined as “that which relates to or pertains to one.”) Dr Schlebaum gave evidence that disclosure of the information would affect her personal affairs because she alleges that she has suffered threats and harassment as a result of making allegations of child abuse in the past. While there may be an impact on her personal affairs if the information is disclosed, that is not the same as saying that the documents “concern” her personal affairs. I do not consider that the word “concerning” in the context of s 31 and s 32 of the FOI Act means that disclosure of the information will affect one’s personal or business affairs at some time in the future.

33 On the basis of this reasoning my conclusion is that none of the disputed documents contains information concerning Dr Schlebaum’s personal affairs.

34 Meaning of business and professional affairs. The next question is whether the documents contain information concerning Dr Schlebaum’s business, professional, commercial or financial affairs. The first requirement of s 32(1)(c) is that the information is not a trade secret or information that has a commercial value to any person. It is clear that the information in the documents does not fall into either of those categories.

35 Dr Schlebaum did not submit that the information concerned her commercial or financial affairs. Her submission was that they concerned her business affairs or, at the very least, her professional affairs.

36 The terms “business” and “professional” affairs should be interpreted in their context. In Wittingslow Amusements Group v Environment Protection Authority (unreported, NSW Sup Ct, Powell JJ, 23 April 1993) Powell J considered a report which forecast the likely acoustic impact of an amusement park not yet in operation. Powell J noted at p 29 that “the classes of documents enumerated in s 32(1) are discrete classes, and are not intended to be ‘read down’ by reference to each other (see, for example, Gill v Department of Industry Technology and Resources [1987] VR 681, 687 11. 44-52 per Murray J.; Accident Compensation Commission v Croom [1991] 2 V.R. 322, 329 1.46 –330 1.34 per O’Bryan J.)” While I agree that the words in s 32(1) should not be ‘read down’ by reference to one another, they must be read and understood in the context in which they appear. In K & S Lake city Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 at 514, Mason J set out the parameters of the contextual approach to statutory interpretation:

. . . to read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context ( Cooper Brookes (Wollongong) Pty Ltd v FC of T (1981) 35 ALR 151 at 156-157, 169; Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461, 173). Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasise the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.
37 Powell J noted at p 29, of Wittingslow that one of the purposes of s 32 (in conjunction with Cl 7 of Schedule 1 of the FOI Act) is “to protect persons or companies . . . from the commercial disadvantage which they might suffer if commercially sensitive, or commercially valuable, information which they have provided, directly or indirectly, to an agency were to be disclosed.” Powell J said that there was nothing in the disputed report dealing with such matters as the cost of installing or operating the proposed “rides” and other amusements, or the projected profits. His Honour concluded that the information did not concern the professional, commercial or financial affairs of the defendant. The information was merely information as to the likely acoustic impact on the neighbourhood of an amusement park.

38 In Raethel v Director General, Department of Education and Training [1999] NSWADT 108 President O’Connor considered the question of whether certain information constituted the business affairs of a school, or school system. In that case the applicant had sought access to the Universities Admission Index (UAI) and the Higher School Certificate (HSC) mean scaled results in certain subjects. President O’Connor concluded at [46] that:

The primary data (student performance in external examinations) would not, I consider, ordinarily be construed as 'business affairs' or 'financial affairs' information. The ordinary understanding, I consider, of these terms is that they relate to the kind of information broadly identified by Powell J. In a school context, the terms might refer to such matters as the school's income and expenditure, the employment relationship with its teachers, the teaching program, discipline and fund-raising. A student's academic performance is an outcome to which the business conducted by the school may be a significant contributor. It does not, in my view, form part of the school's 'business affairs'.
39 The Information Commissioners in Queensland and Victoria have adopted a broad approach to the interpretation of the words “business” and “professional” affairs. In Pope and Queensland Health [1994] QICmr 16 (18 July 1994) (1994) 1 QAR 616, [27], the Queensland Commissioner stated at [29], that:
The four adjectives in the phrase "business, professional, commercial or financial affairs" were clearly not intended, because of the substantial overlap between them, to establish distinct and exclusive categories, but rather the phrase was intended to cover, in a compendious way, all forms of private sector commercial activity, and thereby to also cover commercial activities carried on by government agencies. The use of the words "professional affairs" was, in my opinion, intended to cover the work activities of persons who are admitted to a recognised profession, and who ordinarily offer their professional services to the community at large for a fee, i.e. to the running of a professional practice for the purpose of generating income.
40 The Western Australian Information Commissioner endorsed these views in Lawless and Medical Board of Western Australia and Medical Practitioner X, Re [1995] WAICmr 19 (5 July 1995) at [75]. The Information Commissioner found in that case (at [77]) that “information obtained from a medical practitioner about his treatment of a particular patient and his professional opinions and assessment of the outcome of that treatment is, prima facie, information about the professional affairs of that practitioner.”

41 The Commonwealth Administrative Appeals Tribunal (AAT) took a similar approach in Re Saxon and Australian Maritime Safety Authority (19 June 1995 - unreported). The AAT made the observation at [98] that the term “business, commercial or financial affairs” are “words of very wide application, and cover all the aspects, both fiscal and administrative, of an organisation or undertaking.” This approach reflects a broad interpretation of the term “professional affairs” which is consistent with the purpose of s 32. Section 32 provides that when an agency intends to disclose information, which affects a person’s business or professional affairs, that person is consulted. The consultation process ensures that the views of that person are taken into account in any subsequent decision about access.

42 In view of the purpose of s 32, the terms “business and professional affairs” should be given a broad meeting. Obtaining the views of a person as to whether a document is exempt does not oblige the agency to make a decision which conforms with those views. The legislation should be interpreted broadly so that people whose interests may be affected are given an opportunity to put their point of view. In that way the agency can more easily balance the public policy interests for and against access being given.

43 Dr Schlebaum is admitted to a recognised profession and offers her services to the community for a fee. The information was provided in her capacity as a professional practising child psychiatrist and concerns her patient, AW, and AW’s children. Based on these findings and a broad interpretation of “professional affairs” my view is that each of the documents in dispute contains information which concerns the professional affairs of Dr Schlebaum.

Internal review
44 Before considering the second preliminary issue as to whether Dr Schlebaum lodged her application within time, a related question about internal review in FOI applications needs to be addressed. A requirement of s 55(1)(b) of the ADT Act is that a person can only apply to the Tribunal for a review of a reviewable decision if “an internal review is taken to have been finalised under s 53(9) of the ADT Act.” Under s 53(4) of the FOI Act, the procedures for internal review provided by the FOI Act apply to the exclusion of s 53 of the ADT Act. In addition, under s 53(4)(b) of the FOI Act, any reference in the ADT Act to an internal review of a reviewable decision under that Act is taken, in its application to a decision made under the FOI Act, to be a reference to an internal review under the FOI Act.

45 Consequently, s 55(b) of the ADT Act should be read as requiring that an application cannot be made for a review of a determination made under the FOI Act until an internal review under the FOI Act is taken to have been finalised.

46 Section 34(7)(b) of the FOI provides for internal review of a decision to grant access when a third party should have been consulted, or has been consulted and has objected to access being granted. In this case the third party who was consulted (Dr Schlebaum’s client) sought internal review. Dr Schlebaum, who was not advised of the determination to grant access, did not seek internal review.

47 The third party applied for an internal review on 22 November 2000 and was advised on 6 December 2000 of the outcome of that review. According to a letter to Dr Gliksman of 14 December 2000, DOCS wrote to the third party on 6 December 2000 advising her of the outcome of her internal review application. The letter also states that the third party “has a period of 60 days from 6 December 2000 in which to apply to the Administrative Decisions Tribunal to review the Department’s internal review decision.”

48 Even though Dr Schlebaum did not request an internal review, I am satisfied that the requirement in s 55(1)(b) of the ADT Act has been met. If I am wrong about this, and “an internal review” in s 55(1)(b) relates to an internal review requested by the applicant (in this case Dr Schlebaum) then s 55(2) applies. I am satisfied in accordance with s 55(2)(c) that it is necessary for the Tribunal to deal with the application in order to protect the person’s interests and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned.

Out of time issue
49 A further condition precedent to an application for a review of a reviewable decision under the FOI Act is that a review application is to be made “within 60 days after notice of the determination to which it relates is given to the access applicant.” (For the reasoning in relation to this conclusion, see Schlebaum -v- Director General, Department of Community Services and Gliksman [2001] NSWADT 9 at [17] to [22].)

50 "Access applicant" is defined in s 52B of the FOI Act to mean "a person who has made an access application." "Access application" is defined to mean "an application for: (a) access to a document of an agency or Minister, or (b) an amendment to an agency's or Minister's records."

51 I concluded in the previous decision that Dr Schlebaum is not an "access applicant" because she did not apply for access to or amendment of documents. I found that Dr Gliksman is the "access applicant" and notice of the decision to provide him with access to the documents in question was given on 30 October 2000. I went on to conclude that “sixty days from 30 October 2000 is 29 December 2000. Dr Schlebaum lodged her application on 6 February 2001. Consequently it is out of time.”

52 This conclusion did not address the question of whether “the determination” is the original determination or the determination following internal review. Since the Tribunal’s previous decision, further information has come to light. On 5 October 2001, the solicitors for the DOCS wrote to the Tribunal enclosing a copy of a letter dated 30 October 2000 from Ms Isobel Bothwell, FOI co-ordinator for DOCS, to Dr Gliksman. The letter advised Dr Gliksman of her decision to release the documents on certain conditions relating to consultation with third parties (not including Dr Schlebaum). The solicitors representing DOCS advised that the document was faxed on 30 October 2000 and sent by mail.

53 In addition, neither the applicant nor the Tribunal knew on 23 September 2001 when the matter was heard, that Dr Schlebaum’s client (whose children were mentioned in the disputed documents) had requested an internal review of DOC’s decision to give Dr Gliksman access to the disputed documents.

54 The issue in relation to whether Dr Schlebaum lodged her application within time, is whether time started to run from:

· 30 October 2000, when Dr Gliksman was advised of DOCS’s decision to release the documents on certain conditions relating to consultation with third parties; or
· from 6 December 2000 when the third party was advised of the outcome of the internal review; or
· from 14 December 2000 when Dr Gliksman was advised of the outcome of the internal review.
55 Without considering whether the Tribunal can extend the time, it is only if time runs from 14 December 2000 that Dr Schlebaum’s application will have been lodged within the 60 day time period provided in s 54(a) of the FOI Act. Sixty days from 14 December 2000 is 12 February 2001. Dr Schlebaum lodged her application on 6 February 2001.

56 Section 54(a) in combination with s 52B of the FOI Act provide that time runs from when the access applicant (Dr Gliksman) was given notice of the determination rather than from when a third party is given notice of a determination to which he or she has objected. It appears anomalous that time begins to run, not from the date the third party was given notice, but from the date the access applicant was given notice of the determination. However, this anomaly can be explained by reference to s 32(3) of the FOI Act. That sub-section provides a detailed procedure for notifying third parties of an agency’s determination, for advising them of their rights of review and appeal and for advising them of the procedures to be followed for the purpose of exercising those rights. That section states that:

(3) If:
(a) an agency determines, after having sought the views of the person concerned, that access to a document to which this section applies is to be given, and
(b) the views of the person concerned are that the document is an exempt document by virtue of clause 7 of Schedule 1, the agency shall:
(c) forthwith cause written notice to be given to the person concerned:
(i) that the agency has determined that access to the document is to be given, and
(ii) of the rights of review and appeal, and the rights of complaint to the Ombudsman, conferred by this Act and the Ombudsman Act 1974 in relation to the determination, and
(iii) of the procedures to be followed for the purpose of exercising those rights, and
(d) defer giving access to the document until after the expiration of the period within which an application for a review or appeal under this Act may be made or, if such an application is made, until after the application has been finally disposed of.
57 I said in the previous decision, Schlebaum at [24) that
Section 31(3)(c) provides that the agency must also give written notice to a third party who has objected to the release of the documents “forthwith”. Ideally notice should be given to the access applicant and to any third party on the same day. But whether notice to a third party is given on the same day or shortly after, an agency is obliged to advise a third party of his or her rights of review to the Ombudsman and the Tribunal and the procedures to be followed. This means that, among other things, the agency must advise the third party of the date by which any application to the Tribunal must be lodged. That date will be 60 days from the date notice of the determination was given to the access applicant.
58 It is obviously desirable that there is only one date from which time begins to run. If time ran for third parties from the date they were notified, then that date could well be a different date from the date the access applicant was notified. Once the 60 day period has expired and no appeal has been lodged, the agency will be free to give the documents to the access applicant.

59 In this case the agency advised the third party that she had 60 from the date she was advised of the determination to apply to the Tribunal. The agency should have advised her that she had 60 days from the date the access applicant, Dr Gliksman, was advised of the determination.

60 The next question is whether “the determination to which it relates” in s 54(a) is the original determination (given on 30 October 2000) or the determination following internal review (given on 14 December 2000.) It is a requirement of s 55(1)(b) of the ADT Act that a person cannot apply to the Tribunal for a review of a reviewable decision until an internal review is taken to have been finalised. In this context, the determination referred to in s 54(a) must be the final or operative determination, that is the determination following internal review.

61 However, Dr Schlebaum’s situation is complicated by the fact that she was not notified of the agency’s decision to give Dr Gliksman access to the documents. Consequently she did not apply for an internal review of that decision. It was only when she found out about the agency’s decision on 2 February 2001 that she lodged an application with the Tribunal.

62 Nevertheless, in my view, she is entitled to apply to the Tribunal for a review of the agency’s decision because she meets all the pre-conditions discussed above. She applied to the Tribunal for a review of the decision on 6 February 2001. That application is within time because it was made within 60 days after 14 December 2000, the date notice of the determination to which it relates was given to the access applicant.

Orders

(1) The applicant has standing to bring these proceedings.
(2) The applicant’s application for review to the Tribunal was made within time.
(3) The matter is to be re-listed for telephone directions.