Vafa v Northern Sydney Local Health District

[2020] NSWCATAD 44

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Vafa v Northern Sydney Local Health District [2020] NSWCATAD 44
Hearing dates:	16 December 2019
Date of orders:	07 February 2020
Decision date:	07 February 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Ludlow, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	FREEDOM OF INFORMATION – government information – whether information is held by agency – decision affirmed.
Legislation Cited:	Government Information (Public Access) Act 2009 (NSW) Administrative Decisions Review Act 1997 (NSW)
Cases Cited:	Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 McClymont v Department of Family and Community Services [2017] NSWCATAD 202 Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCATAD 186
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Jamshid Vafa (Applicant) Northern Sydney Local Health District
Representation:	Solicitors: Applicant (Self Represented) Northern Sydney Local Health District (Respondent)
File Number(s):	2019/00246248
Publication restriction:	Nil

REASONS FOR DECISION

1. On 5 March 2019 the applicant applied under the Government Information (Public Access) Act 2009 (the GIPA Act) for access to the following information:

“The CCTV of 6 March 2013 operation on, specifically the report following the operation which finished at 1.55 pm. Confirmation of laser treatment on my left hand in the post – acute care unit from 2.00 pm to 3.21 pm on 6/3/2013 at RNSH.”

2. The agency determined to provide access to Mr Vafa’s medical records but decided that it did not hold the CCTV footage. Its decision did not specifically address the “report following the operation”.

3. Mr Vafa sought external review by the Information and Privacy Commission. The Commission determined on 22 July 2019 that the agency’s decision was justified and made no recommendations.

4. Mr Vafa sought review of the decision by this Tribunal on 8 August 2019. At the case conference on 1 October 2019 Senior Member McAteer remitted the decision to the respondent to make a fresh decision concerning the information other than the CCTV footage.

5. On 22 October 2019 the respondent made a fresh determination. The determination found that when the respondent provided a full copy of Mr Vafa’s medical record, this included all information concerning the operation on 6 March 2013, and there was no report following the operation as the surgical team did not at any time use laser treatment on Mr Vafa.

6. The respondent determined that it did not hold the information sought and that Mr Vafa had been provided with all medical records concerning him in its possession.

Relevant legislation

7. Section 3 of the GIPA Act states that the object of the Act is to open government information to the public and states the intention of Parliament:

“(a)   that this Act be interpreted and applied so as to further the object of this Act, and

(b)   that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.”

8. Section 5 of the GIPA Act provides:

“There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.”

9. Section 53 provides:

“53 Searches for information held by agency

(1)   The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.

(2)   An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency’s searches must be conducted using the most efficient means reasonably available to the agency.

(3)   The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.

(4)   An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency’s established record management procedures.

(5)   An agency is not required to undertake any search for information    that would require an unreasonable and substantial diversion of the agency’s resources.”

10. Section 80 of the GIPA Act provides:

“80 Which decisions are reviewable decisions

The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part:

…

(e)   a decision that government information is not held by the agency,

…”

11. Section 105 provides:

“105   Onus on agency to justify decisions

(1)   In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.

(2)   If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.

(3)   If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.

(4)   If the review is of a decision to include information in a disclosure log despite an objection by the applicant for review, the burden of establishing whether the objection outweighs the general public interest to have the information included lies with the applicant for review.”

12. Section 63 of the Administrative Decisions Review Act 1997 provides

“63 Determination of administrative review by Tribunal

(1)   In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)   any relevant factual material,

(b)   any applicable written or unwritten law.

(2)   For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3)   In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a)   to affirm the administratively reviewable decision, or

(b)   to vary the administratively reviewable decision, or

(c)   to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)   to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”

Issues to be determined

13. The issue is whether the respondent’s decision that it does not hold the information is the correct and preferable decision.

14. Where the Tribunal is reviewing a decision that an agency does not hold information, it should consider:

1. whether there are reasonable grounds to believe that the requested information exists and is held by the agency and, if so,

2. whether the search efforts made by the agency to locate such information have been reasonable in all the circumstances of the case.

(Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5; McClymont v Department of Family and Community Services [2017] NSWCATAD 202.)

15. The applicant bears the onus of satisfying the Tribunal that there are reasonable grounds for believing that further information falling within the scope of the application exists which has not been supplied. The respondent bears the onus of satisfying the Tribunal that the searches conducted were reasonable in the circumstances (Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCATAD 186 at [33]-[34]).

The applicant’s evidence

16. Mr Vafa provided a statement which deposed that following an operation on his right wrist on 6 March 2013, he began experiencing sharp shooting pain in the middle bone of his left ring finger with “painful trigger finger symptoms”. He said that he received injections for pain relief on a number of occasions after the surgery. Mr Vafa maintains that he received laser surgery on his hand after the operation which he underwent on 6 March 2013.

17. The evidence showed that Mr Vafa complained to the Health Care Complaints Commission (HCCC) on 24 September 2015 concerning the treatment of his wrist. He states that the letter to the HCCC from the Director Clinical Governance dated 23 November 2015 which responded to that complaint, referred erroneously to his surgery taking place on 16 November or 16 March 2016 rather than 6 March 2013 and he suggested that this was part of an attempt by the respondent to cover up what they had done concerning the laser surgery.

18. The letter stated:

“… at no time did Dr Beard or any of the surgical staff at Royal North Shore Hospital use laser treatment during this procedure. The theatre in which the surgery was performed does have a sign which reads ‘Laser in Use’, which is displayed when laser procedures are being performed to provide precaution to those entering. This sign was not displayed during Mr Vafa’s procedure on 16 March 2016 and the laser was not active at any stage during Mr Vafa’s surgery.”

19. The HCCC stated in its letter to Mr Vafa on 14 December 2018 that it was unable to find any evidence that there were laser procedures performed on him in 2013. The letter noted that it had reviewed his complaint twice, consulted the Medical Council of NSW and reviewed the medical records.

20. Mr Vafa referred to the observations chart for 6 March after his surgery which shows that he experienced pain between the times of 14:15 and 15:15, while his surgery was recorded as finishing at 13:55. His pain score was recorded as measuring 7 at 14:15 and decreasing to 2 at 15:15. He was discharged at 15:21. He submitted that this showed that he received some treatment on his hand after the surgery which caused the pain he experienced later.

The respondent’s evidence

21. Ms Carol Parker is the Corporate Records Manager for the respondent. She requested that searches be undertaken for the relevant CCTV and Mr Vafa’s full medical record. She was informed by the Security Manager of the Royal North Shore Hospital that CCTV footage is only regained for 28 days and thus it was no longer held. She received a full copy of Mr Vafa’s medical record and did not find in that record any report following his operation or any mention of laser treatment being applied to Mr Vafa while he was a patient at the hospital. She was not aware of any other information system within the Local Health District which would hold the information sought.

22. Ms Parker submitted that the Observations sheet referred to by Mr Vafa recorded the pain he was experiencing as he woke up after the surgery on his wrist and did not indicate that he received laser treatment.

23. She agreed that the letter to the HCCC contained errors in relation to the date of the surgery but it was correct in stating that he did not receive any laser treatment.

Consideration

24. I have considered the matters raised by the applicant and respondent. Based on the available evidence, I am not satisfied that the applicant has established that there are reasonable grounds to believe that the requested information exists and is held by the agency. There is no evidence to suggest that laser treatment occurred. The evidence that he suffered pain after recovering from surgery can be explained as the effects of the earlier surgery. It does not establish that he underwent laser treatment. There is nothing else to suggest that there should be a report following his surgery apart from what has already been provided as part of his medical record.

25. As I am not satisfied that there are reasonable grounds to believe that the information exists and is held by the respondent it is not necessary to consider the adequacy of the searches.

26. The decision under review should be affirmed.

Order

1. The decision under review is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 07 February 2020