SPRAGG and AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY
[2017] WASAT 103
•26 JULY 2017
SPRAGG and AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY [2017] WASAT 103
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 103 | |
| HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 | |||
| Case No: | VR:20/2017 | 8 MARCH 2017 | |
| Coram: | MR D MACLEAN (MEMBER) | 26/07/17 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | VAUGHAN JEFFREY SPRAGG AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY |
Catchwords: | Freedom of Information Act 1982 (Cth) Health Practitioner Regulation National Law (WA) Act 2010 Application for review of decision of under Freedom of Information Act and National Law Exempt documents Protected information Breach of confidence |
Legislation: | Freedom of Information Act 1982 (Cth), s 12(2), s 22, s 37, s 37(1)(c), s 38(1)(a), s 40(1), s 40(1)(d), s 40(2), s 41, s 41(1), s 45, s 45(1), s 55 Health Practitioner Regulation National Law (WA) Act 2010, s 31, s 35, s 35(g), s 146, s 173, s 213, s 214, s 215, s 216 Health Practitioner Regulation National Law (WA) Regulations 2010, reg 14, reg 16(e), reg 17(g) Privacy Act 1988 (Cth), s 6, Sch 1 State Administrative Tribunal Act 2004 (WA), s 17, s 18, s 27(1), s 27(2), s 29, s 77 |
Case References: | Callejo and Department of Immigration and Citizenship [2010] AATA 244 Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) and another 74 ALR 428 Laurent and Commissioner of Police [2009] WASAT 254 Phoenix Eagle Company Pty Ltd v Tom McArthur Pty Ltd [2017] WASC 130 Vangel Colakovski v Australian Telecommunications Corporation [1991] FCA 152 Wisemant v The Commonwealth [1989] FCA 434 |
Orders | 1. The application is dismissed.,2. The decision of the respondent is affirmed. |
Summary | The applicant made a complaint to the Australian Health Practitioner Regulation Agency about a health practitioner. The respondent, pursuant to its function to oversee the receipt, assessment and investigation of notifications about registered health practitioners received the complaint as a notification and requested and received documentary material from the health practitioner as a result of the notification. Subsequently the applicant, pursuant to the Freedom of Information Act 1982 (Cth), applied for the access to the documents. The respondent determined that the documents were exempt from production and that it was not possible for the respondent to prepare a copy of the documents modified by deletions. The applicant sought a review of the decision. The Tribunal reviewed the decision and dismissed the application and made no order as to costs. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 CITATION : SPRAGG and AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY [2017] WASAT 103 MEMBER : MR D MACLEAN (MEMBER) HEARD : 8 MARCH 2017 DELIVERED : 26 JULY 2017 FILE NO/S : VR 20 of 2017 BETWEEN : VAUGHAN JEFFREY SPRAGG
- Applicant
AND
AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY
Respondent
Catchwords:
Freedom of Information Act 1982 (Cth) - Health Practitioner Regulation National Law (WA) Act 2010 - Application for review of decision of under Freedom of Information Act and National Law - Exempt documents - Protected information - Breach of confidence
Legislation:
Freedom of Information Act 1982 (Cth), s 12(2), s 22, s 37, s 37(1)(c), s 38(1)(a), s 40(1), s 40(1)(d), s 40(2), s 41, s 41(1), s 45, s 45(1), s 55
Health Practitioner Regulation National Law (WA) Act 2010, s 31, s 35, s 35(g), s 146, s 173, s 213, s 214, s 215, s 216
Health Practitioner Regulation National Law (WA) Regulations 2010, reg 14, reg 16(e), reg 17(g)
Privacy Act 1988 (Cth), s 6, Sch 1
State Administrative Tribunal Act 2004 (WA), s 17, s 18, s 27(1), s 27(2), s 29, s 77
Result:
Application dismissed
Summary of Tribunal's decision:
The applicant made a complaint to the Australian Health Practitioner Regulation Agency about a health practitioner. The respondent, pursuant to its function to oversee the receipt, assessment and investigation of notifications about registered health practitioners received the complaint as a notification and requested and received documentary material from the health practitioner as a result of the notification. Subsequently the applicant, pursuant to the Freedom of Information Act 1982 (Cth), applied for the access to the documents. The respondent determined that the documents were exempt from production and that it was not possible for the respondent to prepare a copy of the documents modified by deletions. The applicant sought a review of the decision. The Tribunal reviewed the decision and dismissed the application and made no order as to costs.
Category: B
Representation:
Counsel:
Applicant : In Person
Respondent : Mr D Spencer
Solicitors:
Applicant : N/A
Respondent : Australian Health Practitioner Regulation Agency
Case(s) referred to in decision(s):
Callejo and Department of Immigration and Citizenship [2010] AATA 244
Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) and another 74 ALR 428
Laurent and Commissioner of Police [2009] WASAT 254
Phoenix Eagle Company Pty Ltd v Tom McArthur Pty Ltd [2017] WASC 130
Vangel Colakovski v Australian Telecommunications Corporation [1991] FCA 152
Wisemant v The Commonwealth [1989] FCA 434
This application
1 This is a review of a decision made by the respondent on 18 January 2017 (the Decision).
2 On 11 January 2016, an interaction between the applicant and a person registered as a health practitioner (Practitioner) took place. The applicant made a complaint (notification) to the Board on 17 March 2016. The respondent, as it was bound to do, assumed carriage of the inquiry arising from the notification. In the course of the inquiry, the respondent sought and was given information from the Practitioner.
3 On 6 December 2016, pursuant to the Freedom of Information Act 1982 (Cth) (FOI Act), the applicant sought 'all information, documentation, hand written notes, statements, written material, letters and reports that [the Practitioner] has provided to the Psychology Board of Australia [the Board] regarding a complaint I have submitted to the AHPRA [Australian Health Practitioner Regulation Agency] '.
4 The respondent decided that the documents requested were exempt from disclosure and denied the applicant access to them.
The Original Decision
5 The matters raised in this application were the subject of a decision made on 13 December 2016 (the Original Decision), in which the respondent identified and described the documents that fell within the scope of the applicant's request as:
1) Practitioner details, undated document 1;
2) Practitioner response, undated document 2;
3) email exchange with Practitioner dated 22 November 2016; document 3; and
4) Practitioner response, undated; document 4.
6 Copies of these documents (Documents) were received by the Tribunal as a part of the respondent's bundle of documents. The Documents were not provided to the applicant. It is clear, and the Tribunal finds, that these Documents were created in response to requests made by the respondent to the Practitioner following the notification by the applicant.
7 The respondent decided that each of the Documents that comprised the Documents were exempt pursuant to s 41 of the FOI Act (the personal information exemption) and that documents 2, 3 and 4 were also exempt under s 45 of the FOI Act (the material obtained in confidence exemption).
8 The respondent decided that the information contained in each of the Documents was personal information because the information was information or opinion about an individual whose identity was apparent or could reasonably be ascertained from the information or opinion. The information, according to the Original Decision was primarily the personal information of the Practitioner. The respondent was satisfied that the disclosure of the information of the Practitioner's personal information would be unreasonable.
9 The Tribunal agrees with and finds that the personal information exemption applied so that the Documents were exempt from production. This finding is addressed in more detail later in these reasons.
10 By its Original Decision, the respondent found:
There is a strong onus on AHPRA to provide protection against the release of personal information that is held in AHPRA's records and the Australian Privacy Principles contained in the Privacy Act 1988 add further weight to this factor.
The Review Decision
11 The applicant sought a review of the Original Decision. The respondent conducted an internal review. On review, the respondent decided the Documents were exempt documents on the bases found in the Original Decision, with an additional exemption. The respondent decided that s 40(1)(d) of the FOI Act (proper and efficient conduct of the operations of an agency exemption), exempted the documents from production.
12 The respondent found that:
the documents relate to the investigative and decisionmaking processes of AHPRA and [the Board]', and that the respondent 'must conduct its investigations into notifications thoroughly and impartially. The importance of the investigation obtaining information that is not constrained through apprehension of wider disclosure through FOI is central to why these documents are exempt documents under the FOI Act'.
13 The respondent found that Documents 2, 3 and 4 addressed internal processes, namely 'the primary purpose of these documents is to assist the Board decide whether … the practitioner's actions were contrary to current acceptable standards'.
14 The Tribunal respectfully agrees with this categorisation. The Documents were provided to the respondent following a complaint against the Practitioner by the applicant. The respondent in the course of investigating the applicant's complaint sought a response from the Practitioner.
15 The respondent referred to s 35 of the Health Practitioner Regulation National Law (WA) Act 2010 (the National Law). The respondent noted, and decided, that the Board's functions include, but are not limited to the following:
• to register suitably qualified and competent persons in the health profession and, if necessary, to impose conditions on the registration of persons in the profession
• to decide the requirements for registration or endorsement of registration in the health profession, including the arrangements for supervised practice in the profession
• to oversee the receipt, assessment and investigation of notifications about persons who are or were registered as health practitioners under the National Law
• to establish panels to conduct hearings about health and performance and professional standards matters in relation to persons who are or were registered as health practitioners under the National Law
• to oversee the management of health practitioners and students registered in the health profession, including monitoring conditions, undertakings and suspensions imposed on the registration of the practitioners or students.
16 The respondent found that the Documents were collected for the purpose of the investigation undertaken by the Board under the National Law and that the information was to assist the Board in its deliberations.
17 The Tribunal agrees. The information was not collected by the applicant. Nor was it proper to provide the information to the applicant. The applicant was not charged with the responsibility of investigating the notification. There is no obligation upon the Practitioner to provide the information to the applicant. The Tribunal finds that the applicant misconceived his relationship with regard to the Practitioner and this misconception appeared to inform the basis for the applicant's submission that fairness required the practitioner to provide the Documents to him in circumstances where he asserted his documents had been provided to the Practitioner.
The hearing
18 Section 215 of the National Law provides that the FOI Act, in force as at 30 June 2010, applies as a law of a participating jurisdiction.
19 Section 55 of the FOI Act allows the applicant to apply for a review of the Decision.
20 The Health Practitioner Regulation National Law (WA) Regulations 2010 (Regulations) by regs 14, 16(e) and 17(g) operate so that this Tribunal is the relevant Tribunal and as such is the forum for this review to be conducted.
21 Under s 17 and s 18 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the application fell within the Tribunal's review jurisdiction.
22 The review is by way of a hearing de novo and the purpose of the review is to produce the correct and preferable decision at the time of the decision upon review (s 27(1) and s 27(2) of the SAT Act). The Tribunal may:
a) affirm the decision; or
b) vary the decision; or
c) set aside the Decision, and
i) substitute its own decision; or
ii) send the application back to the decisionmaker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and in any case, may make any order the Tribunal considers appropriate (s 29 of the SAT Act).
23 A decision in this application is a final decision and the Tribunal is obliged to include in these reasons the Tribunal's findings on material questions of fact, referring to the evidence or other material on which those findings are based (s 77 of the SAT Act).
24 The respondent submitted that the Original Decision and the Decision were correct.
25 The respondent also submitted that the Documents were exempt under s 37(1)(c) of the FOI Act. This exemption applies in circumstances which include where disclosure would or could reasonably expect to endanger the life or physical safety of any person. This exemption was not forcefully expressed at the hearing. No evidence was led to suggest that the provision applied. Taken at their highest part of the materials in the Documents, may have supported a suggestion that there was a basis for this exemption. However, the matter was not tested as the applicant did not have recourse to the Documents and as the Tribunal has decided that the Documents are exempt from production, on other grounds, the Tribunal is not required to make a finding in relation to this particular exemption.
26 The applicant's case was that he provided information which the Practitioner received and became aware of and it was unfair that he was not also provided with the Practitioner's material and responses.
27 There was no evidence that the Practitioner did receive copies of any document or material provided to the respondent by the applicant but it is clear that the Practitioner was aware of the detail of the applicant's notification.
28 Following the hearing, the applicant provided the Tribunal with his final submissions. These were:
It is unfair that [the Practitioner] can read what I have written about her in my complaint to AHPRA about her behaviour, but I cannot read her reply to my written material.
29 This submission was consistent with the applicant's case at the hearing.
30 The grounds stated in the applicant's application were:
I would like to see what [the Practitioner] wrote about me.
31 The applicant's submissions appeared to have been made on the basis that he was a party to the respondent's investigation of his complaint. He was a notifier and not a party. The applicant's submissions were misconceived. They demonstrated a misunderstanding of legal principle: Laurent and Commissioner of Police [2009] WASAT 254 at [23], namely the applicant sought to obtain the Documents by reason of his pursuit of his private interest in circumstances where the matter that arose for consideration was the public interest.
32 The applicant did not address either the FOI Act or the National Law in support of his application and relied entirely on his categorisation of fairness.
Analysis
33 The Documents were created and provided to the respondent because it was an entity exercising a function under the National Law. The respondent was entrusted with a public power to ask for the information contained in the Documents when investigating the applicant's complaint.
34 Section 214 and s 216(1) of the National Law provide:
Division 2 Disclosure of information and confidentiality
214. Term used: protected information
In this Division
protected information means information that comes to a person's knowledge in the course of, or because of, the person exercising functions under this Law.
216. Duty of confidentiality
(1) A person who is, or has been, a person exercising functions under this Law must not disclose to another person protected information.
Penalty:
(a) in the case of an individual a fine of $5 000;
(b) in the case of a body corporate a fine of $10 000.
36 The Privacy Act 1988 (Cth) (Privacy Act), by Sch 1 provides the Australian Privacy Principles (APP). APP 6.1 is
If an APP entity holds personal information about an individual that was collected for a particular purpose (the primary purpose), the entity must not use or disclose the information for another purpose (the secondarypurpose) unless:
(a) the individual has consented to the use or disclosure of the information[.]
37 The Privacy Act applies to this application. The respondent is an APP entity because it is an agency as defined in s 213 of the National Law and s 6 of the Privacy Act. The respondent held personal information collected for the purpose of its inquiry into the applicant's notification. The Documents record that the Practitioner opposed their disclosure. There is no evidence or suggestion that disclosure was open upon any exception contained in APP 6.
38 In refusing the applicant's request for access to the Documents, the respondent relied on the 'personal affairs exemption' (s 41) along with the 'breach of confidence exemption' (s 45); the 'proper and efficient conduct of the operations of an agency exemption' (s 40(1)(d)) and the 'protection of public safety exemption' (s 37) of the FOI Act. The Tribunal considers that it is bound to approach the application of these exemptions as public interest considerations: Vangel Colakovski v Australian Telecommunications Corporation [1991] FCA 152 (Colakovski), per Lockhart J. The exemption provisions are based in the furtherance of the public interest and not of the protection of private rights: Callejo and Department of Immigration and Citizenship [2010] AATA 244 (Callejo) at [93].
39 Section 41 of the FOI Act provides:
A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person[.]
40 The exemption does not apply if the personal information sought is matter relating to the applicant. This is not the case here. The issue in this application is whether the disclosure would involve the unreasonable disclosure of personal information about any other person.
41 In Callejo, Deputy President SA Forgie considered the steps in deciding whether a document may be claimed to be an exempt document under s 41 of the FOI Act. A decisionmaker must decide:
1) whether it contained information of a sort that is personal information and, if it did;
2) whether its disclosure under the FOI Act would involve the unreasonable disclosure of that personal information and if it did;
3) whether s 41 may be relied upon to claim that the document is exempt from disclosure in so far that it does;
- and after undertaking those steps, to decide whether it is possible to make a copy of the document from which the exempt matter under s 41might be deleted in accordance with s 22 of the FOI Act at[63]
42 Forgie DP, considered the issue of what is personal information' and referred to Lockhart J in Colakovski. Lockhart J considered the meaning to be given to the expression 'personal affairs' at a time when the assessment under s 41 of the FOI Act was upon the unreasonable disclosure of information relating to the 'personal affairs' of any person. The current assessment must be against the unreasonable disclosure of 'personal information' about any person.
43 Lockhart J considered that a person's affairs may be personal to him notwithstanding that they are not secret to him. Lockhart J said 'personal affairs' of a person within the meaning of s 41(1) and s 12(2) of the FOI Act connotes information which concerns or affects the person as an individual whether it is known to other persons or not. For example, a document may contain statements about a 'private life' in the sense of his personal life which is widely known in various circles of the community. Something may be notorious, but its notoriety does not deprive it of the character of information relating to the persons 'personal affairs'.
44 Forgie DP, considered that Parliament's adoption of the term, 'personal information' is a wider approach than 'personal affairs' and that Lockhart J's approach was wider than the earlier expression: Callejo at [66]. Forgie DP, considered that as currently worded, to meet the term personal information:
… All that there need be is information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion[.]
45 The Tribunal respectfully agrees with Forgie DP's analysis.
46 The Tribunal has considered firstly, whether the information is personal information before considering whether its disclosure involve the unreasonable disclosure of the personal information.
47 In undertaking the exercise in this way, the question of whether the disclosure involves the unreasonable disclosure is undertaken after the determination of whether the information is personal information is made. This is because 'whether or not the disclosure would be unreasonable is a question of fact and degree which calls for a balancing of all the legitimate interests involved': Wisemant v The Commonwealth [1989] FCA 434(Wisemant); as cited by Forgie DP in Callejo at [87].
48 The Tribunal considers that if the information was not personal information, the assessment of unreasonableness would not fall for consideration.
Do the Documents contain personal information?
49 The Tribunal finds that the Documents contain personal information. Document 1 contains the Practitioner's name, her profession, her address and telephone contact particulars. Document 2 contains a narrative such as to clearly identify the author and as such contains personal information. Document 3 contains the Practitioner's name, her telephone contact number and her email address. Document 4 contains the Practitioner's name and a narrative that clearly identifies the author.
Would the disclosure of the Documents involve the unreasonable disclosure of the personal information?
50 The Practitioner objects to the release of the Documents. The Tribunal finds that the release of the Documents would be unreasonable on this basis alone and that the public interest requires that access not be given under the FOI Act, since to do so would involve the unreasonable disclosure of personal information about the Practitioner.
51 The Practitioner's objection to the release of the Documents is significant but not determinative. The issue is one of the public interest in the public access to the Documents being exempt from disclosure. If there were a competing basis or ground advanced for the release, the objection might have assumed less significance and in any event would fall to be weighed against the merit of the competing basis or ground for release if one were advanced. However, in this case, other than a request for the release, which the Tribunal finds was in pursuit of an entirely private interest, no rational or reasoned basis consistent with the public interest for their release is asserted or apparent from the application.
52 Heerey J in Colakovski, considered the unreasonableness criterion in s 41(1) added:
… I do not think it is necessary in order to make out the s 41(1) exclusion that there is some particular unfairness, embarrassment or hardship which would inure to a person by reason of the disclosure. Such matters, if present, would doubtless weigh in favour of exclusion. But if the information disclosed were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, I think disclosure would be unreasonable[.]
53 The Tribunal finds that the application is a matter driven to satisfy the curiosity of the applicant. It is an entirely private matter. There is no public interest that would be met by the disclosure of the Documents.
The material contained in confidence exemption in s 45(1) of the FOI Act
54 This provision provides, relevantly:
A document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency or the Commonwealth), for breach of confidence.
55 To exempt from production under this provision, the Tribunal must be satisfied on the balance of probabilities, namely it is more likely than not, that disclosure of the Documents would found an action for breach of confidence. The Tribunal does not have to be satisfied that the action would be successful.
56 The information in the Documents was provided to the respondent by the Practitioner pursuant to a function that the respondent had under the National Law and an obligation that the Practitioner had to provide the information. The Tribunal finds that the information was received by the respondent in circumstances of confidence and in circumstances where there is a duty of confidence imposed by s 216 of the National Law upon the respondent not to disclose the Documents, which were protected information under the National Law.
57 This issue though, having regard to the words of s 45 of the FOI Act, is whether this is sufficient to found an action for breach of confidence?
58 To establish a case for relief for breach of confidence an applicant must:
1) identify with some specificity the information said to be confidential;
2) show that that information has the necessary quality of confidence; and
3) show that it was received in circumstances which imparted an obligation of confidence: Phoenix Eagle Company Pty Ltd v Tom McArthur Pty Ltd [2017] WASC 130 at [39].
59 In Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) and another 74 ALR 428(Corrs Pavey), Gummow J, in dissent, but not on this point, identified the criteria required to make out a case for protection in equity of allegedly confidential information as also including an actual or threatened misuse of that information.
60 Gummow J's dissent was on the issue of whether the term 'breach of confidence' in s 45 of the FOI Act is used in its technical sense. His Honour's view was that a document is an exempt document only if its disclosure were actionable under the general law.
61 The majority in Corrs Pavey, Sweeney J & Jenkinson J at pages 429 and 432 considered that the provision was:
wide enough to confer exempt status on a document which contained confidential information received under circumstances imposing an obligation of confidence, without regard to those considerations of public policy to which courts have allowed an influence in determining whether to grant or withhold remedies for breach of confidence in its technical sense.
62 The words of the provision at the time of Corrs Pavey were:
A document is an exempt document if its disclosure under this Act would constitute a breach of confidence. (see page 429)
63 Relevantly, the words of s 45(1) of the FOI Act are now:
A document is an exempt document if its disclosure under this Act would found an action, by a person … for breach of confidence.
64 The elements required to establish the exemption have changed. Does this change confine the term 'breach of confidence' to its technical meaning and how should this application be assessed?
65 Forgie DP, in Callejo at [149] said:
… The words of s 45 are clear. If a document is to be an exempt document, its disclosure under the FOI Act must be such that it "would found an action … for breach of confidence". That action would have to be by a person other than an agency or the Commonwealth.
66 The majority in Corrs Pavey considered the ambit of the provision was wider than that found by Gummow J. Namely, the exemption was wide enough to confer exempt status on a document in circumstances other than when a breach of confidence in its technical sense might be established. The majority contemplated that the provision would operate in circumstances beyond those in which Gummow J considered that the provision would operate.
67 The Tribunal considers that whichever meanings were given to 'breach of confidence' that the exemption in s 45 of the FOI Act operates in this instance.
68 The Tribunal considers that the criterion to found an action for a breach of confidence is met because:
1) The Documents contain confidential information capable of being specifically identified. These are the identity of the Practitioner, the Practitioner's contact details, thePractitioner's account of the interaction, thePractitioner's objection to the release of the Documents and the reason for the objection.
2) The information is confidential information. It was protected information and was provided under an obligation.
3) The National Law obliged the practitioner to give the confidential information and it was received, by reason of s 216 of the National Law, with an express obligation not to disclose it.
4) If the applicant were given access to the Documents, having regard to 2 and 3 above, this would constitute amisuse of the confidential information. It was not created for the applicant or any other person other than the respondent. There is no public interest in the applicant or anyone having access to the Documents.
69 In Corrs Pavey, the documents for which the exemption was claimed under s 45 of the FOI Act were given voluntarily, against a background where their delivery may have been required by legislation. Gummow J considered that if the documents had been supplied only pursuant to a direct requirement under statutory powers he would have some difficulty in seeing how any obligation of confidence could arise under the general law.
70 Gummow J, at page 437, considered that:
the question in such a case would rather be one of finding a statutory restriction (if there be one) upon use by the Service of the information in the documents, and then of measuring the terms of that statutory restriction against the terms of the exemption in s 38 of the FOI Act.
71 Section 38(1)(a) of the FOI Act provides that a document is an exempt document if 'disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment'.
72 The respondent did not assert this exemption applied. The Tribunal finds that in addition to being an exempt document under s 45 that the Documents were exempt from production under s 38(1)(a) of the FOI Act. The enactment, in this case, the National Law, by s 216(1) prohibited disclosure of protected information.
73 Section 216(2)(b)(ii) of the National Law may allow disclosure if the Documents were not exempt from production. However, the Tribunal finds that this is not the case. These provisions do not, here, work to relieve the prohibition on disclosure that exists by reason of s 216(1) of the National Law.
The adverse effect on the proper and efficient conduct of the operations of an agency pursuant to s 40(1)(d) of the FOI Act
74 Section 40(1)(d) of the FOI Act provides an exemption for documents concerning certain operations of agencies. It provides:
(1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
…
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency[.]
76 By reason of s 31 of the National Law, the Board and pursuant to s 35(g) of the National Law, the Boards functions include overseeing the receipt, assessment and investigation of notifications about persons who are registered as health practitioners in the health profession. Section 146 of the National Law allows for a notification to be made to it and requires it to keep a record of the notification. Section 173 of the National Law allows an assessor, for the purpose of conducting an assessment of a registered health practitioner to require a practitioner to give information to the assessor.
77 As discussed previously, a person exercising functions under the National Law must not disclose to another person protected information: s 216.
78 The Tribunal finds that the proper and efficient conduct of the operations of the agency are assisted by the circumstance that information provided to it by a registered health practitioner under compulsion is protected information and its disclosure is prohibited. The agencies operations are advanced when a registered health practitioner is forthright and frank in providing information when required. The Tribunal finds that the prospects of a forthright and frank answer are considerably enhanced in circumstances where the practitioner has confidence that the information provided is protected information. The Tribunal finds that this is particularly the case in the instance of these Documents. Here, the Practitioner objects to the disclosure of the Documents and the Tribunal finds that the Practitioner considered that the applicant behaved in an aggressive manner in the interaction that took place between them on 11 January 2016.
79 A finding that the exemption did not apply could have a substantial adverse effect on the proper and efficient conduct of the operations of the agency. It would certainly result in health practitioners taking a litigious or guarded stance in providing information to the respondent if that information were not protected information and exempt from production under this exemption. The Tribunal finds that it would be detrimental to the proper and efficient conduct of the operations of the Board if there was a risk that personal information might be provided to a notifier that the health professional believed was an aggressive or dangerous person.
80 This finding does not end the task that the Tribunal is required to undertake in considering whether this exemption applies to the application. Section 40(2) of the FOI Act obliges the Tribunal to consider whether disclosure of a matter in the Documents would, on balance, be in the public interest.
81 The Tribunal has examined the Documents and is satisfied that there is no matter in the Documents which would be in the public interest to disclose. For the exemption in s 40(1) of the FOI Act to be overcome by a public interest in the disclosure of material allowed for in s 40(2) of the FOI Act, there has to be a basis for being positively satisfied that disclosure would be in the public interest. The Tribunal finds that there is no basis for being satisfied.
The document affecting enforcement of law and protection of public safety exemption pursuant to s 37 of the FOI Act
82 Section 37(1)(c) of the FOI Act provides:
(1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(c) endanger the life or physical safety of any person.
84 Taking the matters contained in the Documents at their highest there is not a sufficient basis for being satisfied on the balance of probabilities that disclosure of the Documents would or could reasonably be expected to endanger the life or physical safety of the Practitioner or any person. At their highest, the Tribunal considers that the Documents demonstrate that the Practitioner believed her physical safety was endangered during the interaction of 11 January 2016.
Does s 22 of the FOI Act apply?
85 Section 22 of the FOI Act allows for an edited copy of the Documents to be provided in some circumstances.
86 The Tribunal considers that s 22 of the FOI Act does not operate in this application. The Tribunal finds that it is not possible to prepare an edited copy of the Documents. If the exempt information were removed none of the information sought by the applicant would remain.
87 The Tribunal has read the Documents and finds that they are not capable of being edited so as to remove the exempt matter and leave any meaningful content.
88 For these reasons the application is dismissed.
Orders
1. The application is dismissed.
2. The decision of the respondent is affirmed.
I certify that this and the preceding [88] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D MACLEAN, MEMBER
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