Uddin v Chief Executive Officer, South Eastern Sydney Area Health Service

[2002] NSWADT 228

CITATION:	Uddin -v- Chief Executive Officer, South Eastern Sydney Area Health Service and Anor [2002] NSWADT 228
DIVISION:	General Division
PARTIES:	APPLICANT Jashim Uddin RESPONDENTS Chief Executive Officer, South Eastern Sydney Area Health Service Daniella Cardenas-Gerard
FILE NUMBER:	023131
HEARING DATES:	25/10/2002
SUBMISSIONS CLOSED:	10/25/2002
DATE OF DECISION:	11/07/2002
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	access to documents - personal affairs - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Freedom of Information Act 1982 (Cth)
CASES CITED:	Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 In Re Thomas and Royal Woman’s Hospital and Director-General of Community Services (1988) 2VAR 618 Re Chandra and the Minister for Immigration and Ethnic Affairs (1984) 6 ALD 257 Re Colakovski and Australian Telecommunications Commission (1989) 22 ALD 44 Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 Re Green and Australian and Overseas Telecommunications Commission (1992) 28 ALD 655 Saleam -v- Director General, Department of Community Services and ors [2002] NSWADT 41 Saleam -v- Director General, Department of Community Services and ors [2002] NSWADTAP 30 Re French (1987) 12 ALD 525 Wiseman v Commonwealth (unreported, Federal Court, Sheppard, Beaumont and Pincuss JJ, 24 October 1989)
REPRESENTATION:	APPLICANT In person FIRST RESPONDENT V McTaggart, agent SECOND RESPONDENT In person
ORDERS:	1. In relation to document 67, the agency's decision is affirmed except in relation to the information recording the date and time of birth of the baby. The agency's decision in relation to that information is set aside; 2. In relation to document 13, the agency's decision is affirmed; 3. In relation to document 2, the agency's decision is affirmed.

Introduction

1 Mr Uddin applied under the Freedom of Information Act (FOI Act) for access to documents held by the South Eastern Sydney Area Health Service (the agency) in relation to the birth of his daughter. Mr Uddin is now separated from his former partner and mother of the child, Ms Cardenas-Gerard.

2 Ms Cardenas-Gerard applied to be joined as a party to these proceedings. That application was granted pursuant to s 67(4) of the Administrative Decisions Tribunal Act 1997 (ADT Act) as I was satisfied that her interests are affected by the reviewable decision.

3 Following two preliminary conferences, the scope of the applicant’s application was agreed as follows:

· all documents which contain information that the applicant was present at the birth;
· all documents which contain information that identify the applicant as the father;
· all documents which contain information that identifies the applicant, by name, as the father of the child;
· all documents which record the religion of the baby; and
· all documents which record the name of the baby.

4 The agency identified three documents which fell into this category: document 13 and document 67 from the baby’s file and document 2 from the mother’s file. Documents 13 and 67 were partially released to the applicant but certain information was deleted on the ground that it was exempt under the “personal affairs” exemption. In reliance on the same exemption, the entirety of Document 2 was not released.

Statutory framework

5 Under s 25(1)(a) of the FOI Act, an agency has a discretion to refuse access to a document if it is an exempt document. Exempt documents include those documents falling within the provisions of Schedule 1 to the FOI Act. The personal affairs exemption is found in Clause 6 and provides that:

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).
(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.
Onus of proof

6 Under s 61 of the FOI Act, the burden of establishing that the determination is justified lies on the agency. Section 25(4) of the FOI Act requires the Tribunal to consider whether access should be granted to exempt documents in a form in which exempt matter is deleted, if that is practicable and that is what the applicant would wish.

Overriding discretion

7 Even if the Tribunal finds that a document is an exempt document, there is a line of authority starting with Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93, suggesting that the Tribunal may nevertheless exercise the discretion given to agencies by s 25 of the FOI Act to disclose that document. At [91] of Mangoplah, the Tribunal defined the Tribunal’s overriding discretion in the following terms:

Framing the question in this way produces a need to locate special or overriding circumstances or interests before an exempt document is released, but only in the sense that some reason particular to the circumstances should be found for not claiming the exemption.
Evidence

8 In accordance with s 56 of the FOI Act, Ms Cardenas-Gerard gave evidence in confidential session. Section 56 provides that:

In determining a review application, the Tribunal:
(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter, and
(b) is to, where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative.
9 Although I have taken Ms Cardenas-Gerard’s confidential evidence into account I cannot record that evidence in this decision.

Decision and reasons

10 Document 67. Document 67 is entitled “Midwifery Care Plan/Integrated Notes.” The material deleted from Document 67 in Ms Cardenas-Gerard’s file, contains information about her general practitioner, the kind of birth she had and her medical history.

11 In Re Thomas and Royal Woman’s Hospital and Director-General of Community Services (1988) 2VAR 618 Deputy President Galvin stated, in relation to whether access should be granted to information provided to a hospital, that:

There is convincing evidence before the tribunal that the public has an expectation that all information given to a hospital by a client is to be kept confidential. Any situation which might result in the withholding of information to hospitals by clients and consequently be likely to give rise to disadvantage to the proper treatment of the client or to the proper administration of the hospital is, in my view, contrary to the public interest.
12 There is no doubt that the information outlined above concerns the personal affairs of Ms Cardenas-Gerard. The question of whether or not it is reasonable to disclose such information was considered in Re Chandra and the Minister for Immigration and Ethnic Affairs (1984) 6 ALD 257 at 259. The Administrative Appeals Tribunal observed:
. . . Whether a disclosure is ‘unreasonable’ requires, in my view, a consideration of all the circumstances, including the nature of all the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance.
13 The nature of the information in this case is Ms Cardenas-Gerard’s medical history. That information was disclosed to a hospital in circumstances where Ms Cardenas-Gerard was admitted to give birth. Mr Cardenas-Gerard does not consent to the information being disclosed. In those circumstances I am satisfied that disclosure would be unreasonable.

14 There are no special or overriding circumstances or interests that I can identify, or that have been brought to my attention, which would justify the Tribunal exercising its overriding discretion to those parts of the document identified above.

15 The only other information recorded on Document 67 which has not been disclosed to the applicant is the date and time of birth of the baby. This is information concerning the personal affairs of the baby, and arguably of Ms Cardenas-Gerard. Ms Cardenas-Gerard did not object to its disclosure. In those circumstances I am satisfied that it is reasonable to disclose that information to the applicant.

16 My orders in relation to document 67 are that the agency’s decision is affirmed except in relation to the information recording the date and time of birth of the baby. The agency’s decision in relation to that information is set aside.

17 Document 13. Document 13 on Ms Cardenas-Gerard’s file records personal details and some medical history. Only one personal detail has been deleted from this document. I am satisfied that that detail relates to Ms Cardenas-Gerard’s personal affairs. She does not consent to that information being provided to the applicant. I am satisfied that disclosure would be unreasonable and that there is no basis on which to exercise an overriding discretion to release that information. As a matter of interest, the information does not come within any of the categories outlined by the applicant and set out in paragraph 3 above.

18 My order in relation to document 13 is that the agency’s decision is affirmed.

19 Document 2. Document 2 is a document recording information about the personal information of the baby and Ms Cardenas-Gerard. In particular, the document nominates a religion in relation to the baby. The applicant stated that it was this information that was crucially important to him. The document does not contain information concerning the applicant, consequently Cl 6(2) does not apply. The agency claims that this document is exempt in its entirety.

20 Whether or not disclosure of this information would be reasonable involves balancing the public interest in protecting personal privacy against the public interest in the applicant having access to the documents. (See Re Colakovski and Australian Telecommunications Commission (1989) 22 ALD 44; affirmed on appeal in Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429.)

21 Mr McTaggert told the Tribunal that he has been advised by Records Personnel at the St George Hospital that all babies born at that hospital have their religion copied from the mother’s file, therefore the religion identified is not necessarily the religion of the baby. Ms Cardenas-Gerard gave confidential evidence which related to the accuracy of the information recorded in the document.

22 Although the question of whether disclosure is unreasonable, is not the same as the question of whether disclosure would be contrary to the public interest, the test in s 59A is nevertheless relevant. Section 59A provides that:

For the purpose of determining under this Act whether the disclosure of a document would be contrary to the public interest it is irrelevant that the disclosure may:
(a) cause embarrassment to the Government or a loss of confidence in the Government, or
(b) cause the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason. (Emphasis added.)
23 I am not persuaded that any questions about the accuracy of the information or its source are relevant to whether it is unreasonable to disclose it.

24 A more controversial issue is whether or not the applicant’s interest in the information is a relevant consideration. The applicant did not reveal what his interest in the information was, apart from saying that as a father he has a responsibility to look after the “baby’s best interests and make sure her life is safe and that she will grow up in a peaceful environment without any kind of future problems.” Ms Cardenas-Gerard gave confidential evidence about her understanding of the applicant’s interest in the information. If the applicant is granted access, there is no restriction on the extent to which he can communicate that information to others.

25 Section 11(2) of the Freedom of Information Act 1982 (Cth) provides that a person’s interest in seeking access is not relevant to the decision to give access. There is no analogous provision in the FOI Act, but the approach taken in this Tribunal has been to follow the line of reasoning adopted by the Administrative Appeals Tribunal in Re Green and Australian and Overseas Telecommunications Commission (1992) 28 ALD 655. In Saleam -v- Director General, Department of Community Services and ors [2002] NSWADT 41, the Tribunal concluded at [46] and [47], that:

Ordinarily the motives or purpose of the access applicant have no relevance to the judgment required of an agency or the Tribunal (on review) in considering whether cl 6 is invoked. . .
26 This decision was upheld on appeal. (See Saleam -v- Director General, Department of Community Services and ors [2002] NSWADTAP 30.)

27 Based on the Tribunal’s general approach in the past, I have not taken into account the applicant’s interest in the information for the purpose of determining whether disclosure is reasonable.

28 There is no doubt, given the personal nature of the information in Document 2, that if the applicant was not the baby’s father, it would be unreasonable to disclose the document. The question then, is whether the relationship between the applicant and the person whose personal affairs are contained in the document (the baby and Ms Cardenas-Gerard) affects the reasonableness of disclosure in this case.

29 While the relationship between the parties was taken into account by the Administrative Appeal Tribunal in Re French (1987) 12 ALD 525, the Federal Court has not found that factor to be relevant. In Wiseman v Commonwealth (unreported, Federal Court, Sheppard, Beaumont and Pincuss JJ, 24 October 1989), information on the financial affairs and marital intentions of the applicant’s wife was not disclosed on the ground of reasonableness. This approach appears to have been supported by a more general statement of the President of this Tribunal in Saleam -v- Director General, Department of Community Services and ors [2002] NSWADT 41 at [50]:

For the reasons given, I consider that the FOI Act does not establish a scheme under which agencies can deal differentially as between third party applicants who make the identical request for someone else's personal records, and under which agencies can make varying calculuses as to the 'reasonableness' of disclosure in that way.
30 In my view, even though the applicant is the father of the baby, that factor alone, or in combination with other relevant factors, does not make it reasonable for him to have access to the document.

31 There are no special or overriding circumstances or interests that I can identify, or that have been brought to my attention, which would justify the Tribunal exercising its overriding discretion in relation to this document.

32 My orders in relation to document 2 are that the agency’s decision is affirmed.