Schlebaum v Director General, Department of Community Services (No 3)

[2002] NSWADT 128

CITATION:	Schlebaum (No 3) -v- Director General, Department of Community Services & Anor [2002] NSWADT 128
DIVISION:	General Division
PARTIES:	APPLICANT Anne Schlebaum 1. RESPONDENT Director General, Department of Community Services 2. RESPONDENT Michael Gliksman
FILE NUMBER:	013029
HEARING DATES:	19/04/2002
SUBMISSIONS CLOSED:	04/19/2002
DATE OF DECISION:	07/24/2002
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	access to documents - business affairs - access to documents - statutory exemption - Freedom of Information Act - access to documents - business affairs - Freedom of Information Act - access to documents - statutory exemption
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Legislation Amendment Act 1997 Children and Young Persons (Care and Protection) Act 1998 Freedom of Information Act 1982 (Cth) Freedom of Information Act 1989 Interpretation Act 1987 Administrative Decisions Tribunal Act 1997 Children and Young Persons (Savings and Transitional) Regulation 2000
CASES CITED:	Schlebaum -v- Director General, Department of Community Services and Gliksman [2001] NSWADT 97 Schlebaum (No. 2) -v- Director General, Department of Community Services & anor [2001] NSWADT 214 Attorney General’s Department v Cockcroft (1986) 10 FCR 180 Neary v Chief Executive, State Rail Authority [1999] NSW ADT 107 Raephel v Director General, Department of Education and Training [1999] NSW ADT 108 Bennett v Director General, National Parks and Wildlife Service [2000] NSWADT 136 BY v Director General, Attorney General’s Department [2002] NSWADT 79
REPRESENTATION:	APPLICANT N Abadee, barrister 1. RESPONDENT P Singleton, barrister 2. RESPONDENT No Appearance
ORDERS:	The agency’s decision to grant Dr Gliksman access to the disputed documents is set aside.

Introduction

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" AW’s two sons.

2 On 30 October 2001 the Director General, Department of Community Services (the agency), decided to provide Dr Gliksman with access to four documents (three file notes and a memorandum) pursuant to s 32 of the Freedom of Information Act 1989 (FOI Act). The documents were created as a result of telephone conversations officers of the agency had with Dr Schlebaum, a child psychiatrist. Dr Schlebaum phoned about several matters including concerns she had for the welfare of two children. The mother of the children (who is referred to in these reasons as “AW”) was a client of Dr Schlebaum and the children had consulted her as well.

3 Ms Davis, an officer of the agency, provided evidence that on 13 and 14 August 1996 she made two file notes of telephone conversations she had with Dr Schlebaum. These file notes are documents 1 and 2 respectively.

4 Ms Le Brocq, an officer of the agency in August 1996, provided evidence that between 1 and 10 October 1996 she made a number of file notes of telephone conversations she had with Dr Schlebaum and others. The document containing these file notes is document 3.

5 Document 4 is an internal memorandum between officers of the agency concerning the subject matter of Dr Schlebaum’s previous phone calls.

6 Dr Schlebaum objected to the agency granting Dr Gliksman access to the four documents giving rise to what is commonly known as a “reverse FOI” application. The original basis for Dr Schlebaum’s objection to the disclosure of the documents was that the documents are exempt under the “business affairs” exemption set out in Clause 7(1)(c) to Schedule 1 of the FOI Act. At the hearing Ms Abadee, representing Dr Schlebaum, submitted that the four documents are also exempt for the purposes of the FOI Act by reason of s29(5) of the Children and Young Persons (Care and Protection) Act 1998 (the 1998 Protection Act).

7 Mr Singleton, representing the agency, adopted a neutral position in relation to these proceedings. He gave some helpful oral submissions at the conclusion of Dr Schlebaum’s case. Dr Gliksman did not appear at the hearing but made several written submissions.

Background to these proceedings

8 The background to these proceedings is set out in two previous decisions on preliminary matters: Schlebaum -v- Director General, Department of Community Services and Gliksman [2001] NSWADT 97 and Schlebaum (No. 2) -v- Director General, Department of Community Services & anor [2001] NSWADT 214.

9 In Schlebaum -v- Director General, Department of Community Services and Gliksman [2001] NSWADT 97 at paras 2 - 7, the Tribunal set out the following background information:

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.

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.)

At a directions hearing on 8 August 2000, the agency advised the Tribunal that Dr Schlebaum objected to the release of 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.

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.

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.

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.

10 As a result of the Tribunal’s decision on the papers, the matter was set down for a hearing on the preliminary question of whether the documents in dispute contain information relating to Dr Schlebaum's “personal affairs” and/or her “business, professional, commercial or financial affairs.” In Schlebaum (No 2) -v- Director General, Department of Community Services & anor [2001] NSWADT 214, the Tribunal decided that Dr Schlebaum has standing to bring these proceedings and that her application for review to the Tribunal was made within time. In reaching these conclusions, the Tribunal had to decide whether the information in the disputed documents concerned her “personal affairs” and/or her “business, professional, commercial or financial affairs.” The Tribunal found that the information did not concern her “personal affairs”, but did concern her “professional affairs.”

Identification of the applicant

11 The unusual circumstances of this case raise questions about publication of the applicant's name. The Tribunal would not normally identify a person, such as Dr Schlebaum, who has contacted the Department of Community Services (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 because of their connection with Dr Gliksman;

· Dr Schlebaum has been identified in two previous preliminary decisions and has not subsequently objected to being identified.

12 I also note that s 29(1)(f) of the 1998 Protection Act states that a person must not disclose the identity of the person who made a report of child abuse or neglect except with the consent of the person who made the report. Alternatively, the identity of the person can be disclosed with the leave of a court or other body before which proceedings relating to the report are conducted. In this case the fact that Dr Schlebaum did not apply to the Tribunal for a non-publication order implies that she consents to her identity being disclosed. If that assumption is not correct, then I grant leave for her identity to be disclosed for the reasons set out in the previous paragraph.

Preliminary question

13 An initial question which arises for consideration, but which was not addressed by any of the parties, is whether all the information in the four disputed documents is covered by Dr Gliksman’s FOI request. Dr Gliksman requested:

"any written material, including file notes of telephone conversations, from Dr Anne Schlebaum to any DOCS employee, regarding myself, in relation to” AW’s two sons.
14 It is clear from this application that the information requested by Dr Gliksman is information which relates to him and AW’s two sons.

15 I have concluded that much of the information in the four documents identified by the agency does not come within the scope of Dr Gliksman’s FOI request. Although the material in documents 1 and 2 are file notes of conversations an agency officer had with Dr Schlebaum, none of the material in those documents is information which relates to Dr Gliksman and AW’s two sons. Some of the material in document 1 relates to Dr Gliksman, but none relates to either of AW’s sons. Similarly, some of the material in document 2 relates to Dr Gliksman and the final 7 lines (apart from the last line) relate to one of AW’s sons, but the information is not connected in any way.

16 All of page 1 of document 3 relates to Dr Gliksman’s request, except the last line. None of page 2 of document 3 relates to Dr Gliksman’s request. That information relates to matters concerning Dr Schlebaum and one of AW’s sons. The remainder of the document records phone conversations Ms Le Brocq had with various public servants about the information provided by Dr Schlebaum and is not within the scope of Dr Gliksman’s request.

17 In relation to document 4, the first two sentences of the last paragraph of page 1 and the last sentence of the last paragraph of page 1 relate to Dr Gliksman’s request. The remainder of the document relates to Dr Gliksman but has no connection with either of AW’s two sons.

18 The question arises as to whether a request for access to documents under the FOI Act can be met by disclosing part of a document. Under s 16 of the FOI Act, “A person has a legally enforceable right to be given access to an agency's documents in accordance with” the FOI Act. The word “document” is defined in s 6 to include:

(a) any paper or other material on which there is writing or in or on which there are marks, symbols or perforations having a meaning, whether or not that meaning is ascertainable only by persons qualified to interpret them, and

(b) any disc, tape or other article from which sounds, images or messages are capable of being reproduced.

19 Section 21 of the Interpretation Act 1987 also defines document:
document means any record of information , and includes:
(a) anything on which there is writing, or

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or

(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or

(d) a map, plan, drawing or photograph.(Emphasis added.)

20 On the basis of these provisions, I have concluded that a “document” refers to any record of information. There is nothing in either to FOI Act or the Interpretation Act 1987 to suggest that a “document” means the whole of a particular record. It must only be “paper or other material on which there is writing”. Consequently an FOI request can relate to part of a record and still be a “document”.

Conclusion on preliminary issue

21 The agency’s decision to give Dr Gliksman access to documents 1 and 2 and to those parts of documents 3 and 4 which do not relate to his request was not the correct or preferable decision because those documents, or parts of documents, do not come within the scope of his request. Although none of the parties raised this issue, in my view there has been no breach of procedural fairness in coming to this conclusion. Dr Gliksman does not have access to the documents in dispute and would not have been able to make a submission in relation to this issue. The agency took a “neutral” position in relation to the review of their decision. Because my conclusion favours the applicant, it cannot be said that she is disadvantaged by not being given an opportunity to be heard on this issue.

22 These conclusions mean that the only material in dispute is page 1 of document 3 (except the last line) and the first two sentences of the last paragraph of page 1 and the last sentence of the last paragraph of page 1 of document 4.

Remaining Issues

23 The first question is whether, as a matter of statutory construction, those parts of the documents which are within the scope of Dr Gliksman’s request are exempt for the purposes of the FOI Act by reason of section 29(5) of the 1998 Protection Act which repealed the 1987 Protection Act.

24 The second question is whether, if I am wrong in my conclusions about the scope of Dr Gliksman’s request or the applicability of s 29(5), the documents, or any parts of the documents, are exempt pursuant to Clause 7(1)(c) to Schedule 1 of the FOI Act.

25 If so, the Tribunal must then consider whether, pursuant to s 25(4) of the FOI Act, it is practicable to give access to a copy of the document from which the exempt matter has been deleted.

26 If all or any parts of the documents are exempt, the final question is whether the Tribunal should exercise its “override discretion” to grant access to the documents either in part or in full.

Relevant legislation

27 Section 5(2)(b) of the FOI Act confers 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.” After considering an application for access to a document, an agency must determine whether to give access to the documents being sought. The burden of proof lies on the agency or Minister to establish that the determination is justified. (See s 61 of the FOI Act.)

28 Under s 25 of the FOI Act an agency may refuse access to a document if it is an exempt document. Schedule 1 to the FOI Act lists the categories of exempt documents. The category relied on by the applicant in this case is the business affairs exemption in Clause 7(1)(c). That provision states that:

(1) A document is an exempt document:
(a) if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person, or

(b) if it contains matter the disclosure of which:


(i) would disclose information (other than trade secrets) that has a commercial value to any agency or any other person, and

(ii) could reasonably be expected to destroy or diminish the commercial value of the information, or


(c) if it contains matter the disclosure of which:

(i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and

(ii) 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.

(2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made.
29 In addition to the business affairs exemption, the applicant relied on s 29(5) of the 1998 Protection Act which defines certain documents as exempt documents for the purposes of the FOI Act. That provision states that:
A report to which this section applies is taken to be an exempt document for the purposes of the Freedom of Information Act 1989.
30 The reports referred to in that section are reports that a child or young person is at risk of harm.

31 Under s 25(4) of the FOI Act, if the Tribunal determines that a document is an exempt document, access should not be refused “if it is practicable to give access to a copy of the document from which the exempt matter has been deleted.”

Evidence

32 The evidence in this case consists of the transcript of evidence before the Tribunal of 27 September 2001 as well as affidavits from Dr Schlebaum dated 24 August 2001, P Tsaousidis dated 16 August 2001, E Le Brocq dated 27 August 2001, Professor Kim Oates dated 2 April 2002 and Dr Paul Tait dated 10 April 2002. The Tribunal also had the benefit of written submissions from Dr Gliksman dated 30 September 2001 and 3 April 2002 and from Ms Abadee dated 19 April 2002. The written submissions from Dr Gliksman contained attachments which were not formally tendered in evidence. As there was no objection to Dr Gliksman’s submissions being considered by the Tribunal I have taken into account any relevant evidence in those attachments.

Exemption under the 1998 Protection Act

33 Applicant’s submission. The crux of the applicant’s submission on this issue was that s 29(5) of the 1998 Protection Act makes the documents exempt for the purposes of the FOI Act. If the documents had been created after the commencement of the 1998 Protection Act on 18 December 2000, and they could be characterised as reports to which s 29 applies, they would be covered by the exemption. Because the documents were created in 1996, the issue arises as to whether s 29(5) applies retrospectively to include the disputed documents.

34 Retrospective operation. Clause 10 of the Children and Young Persons (Savings and Transitional) Regulation 2000 provides that s 29 of the 1998 Protection Act is to apply to notifications which have been made under s 22 of the 1987 Protection Act. Clause 10 states that:

(1) Despite its repeal, section 22 of the old Act continues to apply so as to enable a notification to be made to the Director-General that a child or young person was abused before the repeal of that section.

(2) A notification under section 22 of the old Act that has not been dealt with before the repeal of that section, or that is made as referred to in subclause (1), is taken to be:

(a) except as provided by paragraph (b), a report under section 24 of the new Act, or

(b) if the report has been made by a person to whom section 27 (1) of the new Act applies, a report under section 27 of the new Act, and is to be treated in all respects accordingly under the new Act.

(3) An investigation under section 22 (7) of the old Act that has not been completed before the repeal of that subsection is taken to be an investigation under section 30 of the new Act, and is to be treated in all respects accordingly under the new Act.

(4) Section 29 of the new Act applies to a notification under section 22 of the old Act that has been dealt with before the repeal of section 22 of the old Act.

35 It does not matter whether a notification under s 22 has been “dealt with” or “not dealt with” under the 1987 Protection Act. In either case, s 29 applies. (See Cl 10(2) and Cl 10(4).)

36 Notification under s 22. The next question is whether those parts of the documents within the scope of Dr Gliksman’s request are a notification under s 22 of the 1987 Protection Act. That provision states, in part, that:

Any person who forms the belief upon reasonable grounds that a child who is under the age of 16 years:
(a) has been or is in danger of being, abused, or

(b) is a child in need of care,

may cause the Director-General to be notified of that belief and the grounds therefor, either orally or in writing.

(2) a person who, in the course of:

(a) practising as a medical practitioner,

(b) following another profession, calling or a vocation prescribed by the regulations for the purposes of this subsection (other than the profession of a barrister or solicitor), or

(c) exercising the functions of an office so prescribed,

has reasonable grounds to suspect that a child who is under the age of 16 years has been abused (whether the abuse consisted of sexual assault or any other form of abuse) is required to comply with subsection (4) in respect of those grounds unless the person is a minister of religion for a person who is declared by the regulations to be exempt from the provisions of this subsection.

(4) A person who is required to comply with this sub-section in respect of having grounds to suspect that a child who is under the age of 16 years has been abused (whether the abuse consisted of sexual assault or any other form of abuse) shall:

(a) notify the Director-General of the name or a description of the child and those grounds, or

(b) cause for the Director-General to be so notified

promptly after those grounds arise.

(6) A person who failed to comply with subsection (4) is guilty of an offence. (Emphasis added.)

37 Individual’s opinions . Ms Le Brocq gave evidence that, “At that time I was of the opinion that the information provided by Dr Schlebaum did not constitute a notification under s 22 of the Children (Care and Protection) Act 1987 (the 1987 Protection Act.)” Ms Abadee, representing the applicant, drew the Tribunal’s attention to the confidential evidence of Ms Le Brocq given before the Tribunal on 27 September 2001. I do not consider that the evidence on which Ms Abadee seeks to rely is confidential. That evidence was that Ms Le Brocq had changed her mind about the status of the information that Dr Schlebaum gave her in September or October 1996. She is now of the opinion that the information did constitute a notification under s 22 of the 1987 Protection Act.

38 Approach to determination of the question. The question of whether any of the information in the documents constitutes a notification under s 22 of the 1987 Protection Act is a mixed question of fact and law and does not depend on Ms Le Brocq’s or Dr Schlebaum’s opinion. My task is to look at the relevant parts of the documents and s 22 of the 1987 Protection Act and determine the question on that basis.

39 Reasonable grounds for the belief. Dr Gliksman submitted that Dr Schlebaum did not have reasonable grounds for her beliefs about child abuse or neglect as required by s 22. The first page of document 3, except for the last line, records Dr Schlebaum’s belief, together with the grounds for that belief, that a child or children are at risk of abuse. In relation to document 4, the first two sentences of the last paragraph of page 1 and the last sentence of the last paragraph of page 1 records Dr Schlebaum’s belief, together with the grounds for that belief, that a child or children are at risk of abuse. The evidence and conclusions in relation to whether Dr Schlebaum formed her beliefs on reasonable grounds is set out below.

40 Royal Commission evidence. The evidence attached to Dr Gliksman’s submission of 30 September 2001 included the transcript of the evidence Dr Schlebaum gave to the Royal Commission into the NSW Police Service on 29 October 1996. The relevance of this evidence was to support Dr Gliksman’s submission that any notification of child abuse Dr Schlebaum had made to the agency was not made reasonably or in good faith.

41 The Officer Assisting the Royal Commission, Ms Bergin, and the Commissioner, Justice Wood, asked Dr Schlebaum numerous questions in relation to several investigations into allegations of child sexual abuse about which Dr Schlebaum had either been involved or made comment. It was put to Dr Schlebaum by both Ms Bergin and Justice Woods that she had a closed mind in relation to certain allegations of child sex abuse and that she lacked objectivity and neutrality in assessing certain allegations of child sexual abuse. It was suggested that she had made certain assumptions which were unfounded and that she had not exercised restraint or care in making public statements about alleged paedophile activities. It was also put to Dr Schlebaum that she had failed to check allegations against clinical findings and had said things that were demonstrably wrong. Dr Schlebaum defended her actions but apologised for any inaccuracies in her comments.

42 Conclusions in relation to Royal Commission evidence. While the transcript of Dr Schlebaum’s evidence to the Royal Commission raises doubts about her judgment in relation to reporting and commenting on certain allegations of child sexual abuse, none of the issues raised by the Royal Commission relate to the matters recorded in the disputed documents. Evidence of what Dr Schlebaum said to the Royal Commission is not relevant to the question of whether, on a separate occasion, she had reasonable grounds for her belief that a child has been or is in danger of being abused or neglected.

43 Dr Schlebaum’s evidence. In relation to her August and September 1996 phone calls to the agency, Dr Schlebaum stated in her affidavit of 24 August 2001 that:

In each of my conversations I was acting in good faith in reliance on what AW and her sons had told me. I was not motivated by any desire to harm Dr Gliksman.
44 Dr Schlebaum was not cross-examined in relation to this evidence. Contrary to Dr Gliksman’s submissions, there is no evidence to support an inference that Dr Schlebaum did not have reasonable grounds for her belief at the time she telephoned the agency in 1996. Consequently, I find that the parts of document 3 identified as coming within the scope of Dr Gliksman’s application, constitute a notification under the 1987 Protection Act and are exempt from disclosure under the FOI Act pursuant to s 29(5) of the 1998 Protection Act.

45 Although those parts of document 4 which come within the scope of Dr Gliksman’s request are a second hand recording of a notification, rather than the notification itself, in my view a document which records such a notification is a document to which s 29 applies. If this was not the case then any record of a notification, other than the actual notification itself, would not be protected and the clear intention of the provision would be thwarted. Consequently those parts of document 4 coming within the scope of Dr Gliksman’s application, contain a notification under s 22 of the 1987 Protection Act and are exempt from disclosure under the FOI Act pursuant s 29(5) of the 1998 Protection Act.

46 These conclusions mean that it is not strictly necessary for me to deal with the second issue of whether any relevant parts of the documents are exempt pursuant to Clause 7(1)(c) to Schedule 1 of the FOI Act. However, in case I am wrong about the scope of Dr Gliksman’s FOI request or the applicability of s 29(5) of the 1998 Protection Act, I will go on to consider whether that exemption is applicable to the four disputed documents.

Exemption under Clause 7

47 Requirements of Clause 7. In Schlebaum (No. 2) -v- Director General, Department of Community Services & anor [2001] NSWADT 214 at [43] the Tribunal decided that each of the documents in dispute contains information which concerns the professional affairs of Dr Schlebaum. The remaining elements of Cl 7(1)(c) are whether disclosure:

(i) could reasonably be expected to have an unreasonable adverse effect on Dr Schlebaum’s professional affairs; or

(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency.

48 Prejudice to the future supply of information . In support of the submission that the documents are exempt because they contain matter the disclosure of which could reasonably be expected to prejudice the future supply of such information to government or to an agency, the applicant relied on:
(i) a letter dated 2 April 2002 from Professor Oates, Professor of Paediatrics and Child Health at the Children’s Hospital; and

(ii) a letter dated 10 April 2002 from Dr Paul Tait, Head of the Child Protection Unit, at the Children’s Hospital.

49 Professor Oates referred to the provisions of the 1987 Protection Act and the Act which has now replaced it, the 1998 Protection Act. He went on, to say, at page 3 that:
I believe it is very important that such information should be kept confidential. Although medical practitioners are mandated to report, they are told that in doing so they are protected from proceedings against them as a result of any such report, provided it is in good faith. Notifications made to DOCS are based on this knowledge.

My view is that the vast majority of medical practitioners would be aware of these provisions and have been considerably reassured by them. The level of cooperation would be likely to be far lower if they were aware that the information they gave may not be confidential.

50 Further, Professor Oates’ expressed the opinion at page 3 to 4 of his letter, that:
I believe that if medical practitioners were aware that the information they supplied to DOCS on a confidential basis could become accessible at a future date, the rate of reporting to DOCS would fall considerably . . . I strongly believe that such information should not be released to a third party, otherwise the compliance with reporting by medical practitioners is likely to become extremely low.
51 Dr Tait, in his letter dated 10 April 2002, states that:
If it became known that departmental officers were using their discretion in making decisions about release of information to third parties without clear and explicit approval of the informants, there would be a significant reduction in the willingness of many people to make reports and a deep sense of mistrust would develop between professionals and departmental officers.
52 Dr Tait made the comment that whether or not departmental officers considered the information provided by Dr Schlebaum to be a “notification” under the legislation, “it seems quite clear that in her mind she was making a report or a notification to the Department in good faith.”

53 In relation to the legal interpretation of the words “could reasonably be expected” Ms Abadee made the submissions set out below.

54 The words “could reasonably be expected” appear in s 43(1)(b)(i) of the Freedom of Information Act 1982 (Cth) which is analogous to Clause 7 to Schedule 1 of the FOI Act. The classic statement was made by Bowen CJ and Beaumont J in Attorney General’s Department v Cockcroft (1986) 10 FCR 180 at 190, where their Honours said that:

In our opinion, in the present context, the words “could reasonably be expected to prejudice the future supply of information” were intended to receive their ordinary meanings. That is to say, they require a judgment to be made by the decision maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act.
55 O’Connor J in Neary v Chief Executive, State Rail Authority [1999] NSW ADT 107 made the following statement at paragraph 35:
. . . there must be more than a mere risk. . .all relevant factors, including public interest considerations , should be taken into account. The extent and nature of the effect will be relevant, and often decisive. It is necessary to assess what is reasonable in the circumstances. (Emphasis added.)
56 The Tribunal adopted that approach in the decision of Raephel v Director General, Department of Education and Training [1999] NSW ADT 108 at [53]. That approach has also been followed in Bennett v Director General, National Parks and Wildlife Service [2000] NSWADT 136 at [41].

57 Ms Abadee submitted that there is no public interest in favour of disclosure of the documents. In her submission it was clearly in the public interest that information of the kind contained in those documents be excepted from the general right of public access so that people are not deterred from complying with their legal and moral obligations to report suspected cases of child abuse.

58 Reasoning and decision. On the basis of this evidence and Ms Abadee’s legal submissions, I am satisfied that disclosure of any of the information provided by Dr Schlebaum to the agency and recorded in the four documents could reasonably be expected to prejudice the future supply of such information to the Government or to the agency. Although not all the information in the documents constitutes a notification under s 22 of the 1987 Protection Act, the information all relates to concerns about child care and protection. Medical practitioners such as Dr Schlebaum expect that when they disclose such information to the agency it will be kept confidential. I accept the evidence from Professor Oates and Dr Tait that medical practitioners would be less inclined to communicate such information in the future if their confidentiality could not be guaranteed.

59 In the light of this conclusion, I do not need to determine whether disclosure could reasonably be expected to have an unreasonable adverse effect on Dr Schlebaum’s professional affairs.

Deletion of exempt matter

60 The Tribunal must now consider whether, pursuant to s 25(4) of the FOI Act, it is practicable to give access to a copy of the document from which the exempt matter has been deleted. Having determined that the remainder of the documents do not come within the scope of Dr Gliksman’s request, there is no further material in the documents to which access can be given.

Override discretion

61 The final question is whether the Tribunal should exercise its “override discretion” to grant access to the documents either in full or in part. For the purposes of this decision I have assumed that the Tribunal has a discretion to grant access to exempt documents. (See BY v Director General, Attorney General’s Department [2002] NSWADT 79 at [75]). Although the parties did not make submissions on this point, I have taken into account all the material and the provisions and objects of the FOI Act and concluded that there is nothing about the information itself or the surrounding circumstances which persuades me that I should exercise an overriding discretion to give Dr Gliksman access to the documents.

Orders

The agency’s decision to grant Dr Gliksman access to the disputed documents is set aside.