Yee v Medical Council of NSW

[2017] NSWCATAD 370

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Yee v Medical Council of New South Wales [2017] NSWCATAD 370
Hearing dates:	On the papers
Date of orders:	15 December 2017
Decision date:	15 December 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P H Molony, Senior Member
Decision:	The new decision of the Medical Council made on 21 April 2017 refusing Mr Yee access to documents 3 and 4 is affirmed.
Catchwords:	Government Information (Public Access) – complaint handling function of the HCCC - referral of complaint to Medical Council of NSW - whether information then obtained by Medical Council relates to complaint handling function of the HCCC - excluded information – conclusive presumption of an overriding public interest consideration against disclosure.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Health Care Complaints Act 1993 Health Practitioner Regulation National Law (NSW)
Cases Cited:	Achieve Australia Ltd v Department of Family and Community Service (NSW) [2014] NSWCATAD 171 DF v Director General, Attorney Generals Department [2002] NSWADT 164. Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 Sinclair v Psychology Council [2017] NSWCATAD 8 Whyte v Medical Council [2014] NSWCATAD 190
Category:	Principal judgment
Parties:	Eh Farn Yee (Applicant) Medical Council of New South Wales (Respondent)
Representation:	Solicitors: Applicant – In person Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00160834

REASONS FOR DECISION

1. Mr Yee has applied to the Tribunal for administrative review under the Government Information (Public Access) Act 2009 (the GIPA Act) of a new decision made by the Medical Council of New South Wales on 21 April 2017, to refuse him access to certain information held by it, in relation to a complaint made by Mr Yee against Dr Phillip Chang, on the ground that it is excluded information (the decision under review).

Material before the Tribunal

2. In considering this matter I have had regard to the following material:

1. Administrative review application form filed by Mr Yee on 29 May 2017 with explanatory letter dated 16 May 2018.

2. Procedural directions documents filed by the Medical Council,

3. Access decision of the Medical Council dated 30 November 2016 refusing Mr Yee access to information found in four documents under the GIPA Act.

4. Access decision made on internal review by the Medical Council dated 25 January 2017 refusing Mr Yee access to information found in four documents as excluded information under the GIPA Act.

5. New access decision by the Medical Council dated 21 April 2017 refusing Mr Yee access to information found in four documents as excluded information under the GIPA Act.

6. Submissions of the Medical Council (date of filing unreadable).

7. Information Commissioner’s submissions filed 11 September 2017.

8. Confidential affidavit of Dr Stuart Dorney, Medical Director of the Medical Council, sworn 10 August 2017.

9. Open affidavit of Dr Stuart Dorney, Medical Director of the Medical Council, sworn 10 August 2017.

10. Directions/orders made by the Tribunal on 4 July 2017 and 12 September 2017.

Background

3. On 22 July 2015 Mr Yee made a complaint to the Health Care Complaint Commission (the HCCC) about Dr Chang, a specialist otolaryngologist. The HCCC notified the Medical Council of the complaint by email on 28 July 2008. Section 10 of the Health Care Complaints Act 1993 (the HCC Act) requires the HCCC to notify the appropriate professional council of complaints involving registered health practitioners. The Medical Council of NSW (the Medical Council) is Dr Chang’s professional council

4. On 4 August 2015 the HCCC wrote to Dr Chang seeking a response to the complaint. He provided an initial response on 6 August 2015, which was followed by one from his solicitors dated 12 October 2015.

5. The HCCC and the Medical Council discussed Mr Yee’s complaint at an “assessment consult” meeting where the HCCC determined to refer the complaint to the Medical Council under s 25B of the HCC Act. The evidence indicates that this usually occurs when there are outstanding issues relating to the complaint that do not warrant an investigation by the HCCC.

6. On 28 October 2015 the HCCC wrote to Mr Yee to advise him of that outcome. Relevantly, that letter said:

As your matter related to the conduct of a doctor the Commission was required to consult with the Medical Council of New South Wales. This consultation occurred on 22 October 2015, and it was decided to refer your complaint to the Council for further management as they are the appropriate body to deaI with such matters regarding doctors.

7. On 6 November 2015 the Medical Council wrote to Mr Yee advising, among other things, that:

The Council is in the process of advising Dr Chang of the above and obtaining his further response to your complaint. On receipt of this information, the matter will be reviewed by the Council to determine what action is necessary. Please be aware that any further correspondence from you will also be provided to Dr Chang.

8. The Medical Council also wrote to Dr Chang advising him of the referral and inviting further confidential submissions. Dr Chang’s solicitors responded in writing by a letter dated 25 November 2015.

9. On 8 December 2015 the Medical Council’s Conduct Committee resolved to require Dr Chang to attend a conduct interview. On 16 December 2015 the Medical Council wrote to Dr Chang and Mr Yee advising of that decision.

10. The next day Mr Yee emailed the Medical Council requesting a copy of Dr Chang’s response. He was told the response would only be released with Dr Chang’s permission. His request for access would be included in the documentation for the interview, for Dr Chang’s consideration.

11. On 22 December 2015 the Medical Council provided Dr Chang with details of the arrangements for his conduct interview. That interview took place on 11 February 2016. In his open affidavit Dr Dorney explained that:

Conduct interviews are conducted on a confidential basis. They typically include discussion of the matters raised by the complaint, as well as any other issues which may have been detected by investigation of the complaint or the practitioner volunteers at the Conduct Interview.

12. The interviewers prepared a report of their interview with Dr Chang, who did not want his response to the complaint released to Mr Yee.

13. On 21 March 2015 Dr Chang was advised that the Medical Council had considered the report and determined to take no further action against him. He was provided with a copy of the report of the conduct interview. On the same day Mr Yee was advised of the outcome. He was not provided with a copy of the report.

14. The Medical Council advised the HCCC of the outcome of the complaint.

15. On 18 October 2016 Mr Yee made an application for access to information under the GIPA Act to the Medical Council seeking access to the responses of Dr Chan and his nurse regarding Mr Yee’s complaint to the HCCC.

16. In a decision dated 18 October 2016 the Medical Council identified four documents that fell within Mr Yee’s request, but refused him access to all of them (the access decision). Two documents, numbers 1 and 2 (consisting of a letter from Dr Chang to the HCCC dated 6 August 2015 and a letter from TessCox to the HCCC dated 12 October 2015) were found to be the subject of a conclusive presumption that there is an overriding public interest consideration against disclosure as stated by Clause 1 of Schedule 1 of the GIPA Act: see also s 14(1). The remaining two documents, number 3 and 4 (being a letter from TessCox to the Medical Council dated 25 November 2015 and a report of a Medical Council Interview with Dr Chang dated 2 March 2016) were, on balance, found to be the subject of an overriding public interest consideration against disclosure and access was refused accordingly.

17. On 14 December 2016 Mr Yee asked the Medical Council for an internal review of that decision.

18. On 19 January 2017 Mr Yee asked the Information Commissioner to review that decision under s 89 of the GIPA Act.

19. On 25 January 2015 a delegate of the Medical Council made an internal review decision in which the access decision was confirmed (the internal review decision). Rather than finding that documents 3 and 4 were on balance the subject of an overriding public interest consideration against disclosure, the internal review found that they were subject to a conclusive presumption that there is an overriding public interest consideration against disclosure, as they constituted excluded information of the HCCC within the meaning of Clause 6 of Schedule 1 of the GIPA Act.

20. On 22 March 2017 the Information Commissioner issued a decision which recommended that the Medical Council reconsider the access decision with respect to documents 3 and 4 (the Information Commissioner’s decision).

21. On 21 April 2017 the Medical Council issued a further decision following reconsideration of whether to release documents 3 and 4 (the new decision). The Medical Council refused access to the information in documents 3 and 4 because they were subject to a conclusive presumption of an overriding public interest consideration against disclosure as they constituted excluded information of the HCCC within the meaning of Clause 6 of Schedule 1 of the GIPA Act. The new decision noted that the HCCC did not consent to the release of its excluded information.

Decision on papers

22. This matter was referred to me to determine on the papers in accordance with an order made by Deputy-President Hennessey on 12 September 2017. Before proceeding to determine the matter, I have satisfied myself, as required by s 50(1) of the Civil and Administrative Tribunal Act 2013 that this matter can be adequately determined in the absence of the parties by considering the written submissions and material lodged with the Tribunal.

23. In reaching that decision I note that:

1. The applicant, who is in the United Kingdom, has not made any detailed submissions regarding the matter, apart from relying on the decision of the Information Commissioner, which, given the content of the new decision, is of little relevance to main issues requiring determination. He has previously, when asked, objected to a determination on the papers, but has not provided any reasons for that stance. In those circumstances, his unexplained objection to a determination on the papers does not persuade that the matter cannot be adequately determined without a hearing.

2. I have clarified with the parties that Mr Yee has been served with a copy of the open affidavit of Dr Stuart Dorney, the Medical Director of the Medical Council. Mr Yee, by an email dated 23 November 2017, confirmed that he has received that affidavit and the Medical Council’s submissions.

Complaints to the Medical Council or HCCC

24. In the Medical Council’s submission; complaints to it about medical practitioners, and complaints about medical practitioners to the HCCC, are dealt with in accordance with provisions of the HCC Act and the Health Practitioner Regulation National Law (NSW) (the HPRN Law), which provide for a form of co-regulation by the HCCC and the Medical Council. The Medical Council is a professional council as defined in s 4 of the HCC Act. Both organisations can receive complaints about registered medical practitioners.

25. Part 2 of the HCC Act provides that the HCCC is responsible for the assessment of complaints about health service providers, which includes registered medical practitioners. The HCCC is to notify the appropriate professional council of complaints received against members (s 10), and professional councils are to notify the HCCC of complaints they receive about their members in accordance with the HPRN Law (s 11 of the HCC Act and s 144G of the HPRN Law).

26. Division 2 of Part 2 of the HCC Act (s 11 to s 15) is concerned with liaising with registration authorities and professional councils. A note to the division says –

Note. Division 2 enables the professional councils and the Commission to act in collaboration with each other. The Division will allow complete information sharing between the two arms in the disciplinary system, with a decision to investigate a complaint being made only after there has been consultation between the Commission and the relevant professional council. Where a disagreement occurs as to the appropriate action, both bodies will retain the ability to refer the matter for investigation, thus creating an internal checking method for all decisions which may result in disciplinary action. This two-pronged system will also apply to decisions to refer complaints for conciliation and will involve the Registrar in the consultation process.

27. Section 11 of the HCC Act provides –

If, in accordance with the Health Practitioner Regulation National Law (NSW), a professional council notifies the Commission of a complaint made under that Law, the complaint is taken to have been made in accordance with this Act to the Commission.

28. Section 145A of the HPRN Law says that the professional councils are to consult with the HCCC with respect to complaints, “to see if agreement can be reached concerning the course of action to be taken concerning the complaint.” Section 12 of the HCC Act requires that the professional body, the HCCC and the Registrar of the Health Conciliation Registry consult, “[b]efore determining, as a result of the assessment of a complaint, whether to investigate a complaint, to refer the complaint for conciliation, to deal with the complaint under Division 9 or to discontinue dealing with the complaint.” If either the HCCC or the professional council consider that a complaint should be investigated, it must be investigated (s 13(1) of the HCC Act). If both agree that an investigation is not required, but either think it should be referred to a professional council for consideration as to whether that council should take further action, then it must be so referred (s 13(2)).

29. S 145A of the HPRN Law sets out the courses of action that are open to the Medical Council on receipt of a complaint –

(1) The following courses of action are available to a Council in respect of a complaint—

(a) the Council may make any inquiries about the complaint the Council thinks appropriate;

(b) the Council may refer the complaint to the Commission for investigation;

(c) the Council may refer the complaint to the Tribunal;

(d) the Council may refer the complaint to a Committee;

(e) for a complaint about a health practitioner or student who is registered in a health profession other than the medical or nursing and midwifery profession, the Council may deal with the complaint by inquiry at a meeting of the Council;

(f) the Council may—

(i) refer the practitioner or student for a health assessment; or

(ii) refer the matter to an Impaired Registrants Panel; or

(iii) refer the professional performance of the practitioner concerned for a performance assessment;

(g) the Council may direct the practitioner or student concerned to attend counselling;

(h) the Council may refer the complaint to the Commission for conciliation or to be dealt with under Division 9 of Part 2 of the Health Care Complaints Act 1993;

(i) the Council may refer the complaint to another entity, including, for example, a National Board;

(j) the Council may determine that no further action should be taken in respect of the complaint.

(2) The Commission must, on receipt of a complaint referred by a Council for investigation, investigate the complaint or cause it to be investigated.

(3) If a Council makes a referral under subsection (1)(f), the matter ceases to be a complaint for the purposes of this Law and the Health Care Complaints Act 1993.

(4) Subsection (3) ceases to apply in respect of any matter that a Council subsequently deals with as a complaint.

30. The HCC Act requires the Commission to undertake an initial assessment of all complaints it receives (s 19) to determine whether (s 20(1)):

• the complaint should be investigated

• the complaint should be conciliated or dealt with under Division 9

• the complaint should be referred to the Health Secretary in accordance with section 25 or 25A

• the complaint should be referred to another person or body in accordance with section 25B or 26

• the Commission should decline to entertain the complaint.

31. In this case, following consultation with the Medical Council, at the assessment the HCCC determined to refer Mr Yee’s complaint to the Medical Council in accordance with s 25B. That section provides:

(1) Following the assessment, the Commission may refer a complaint to the appropriate professional council (after consultation with that council) if it appears that the complaint (or part) should be referred to the professional council for consideration as to whether the professional council should take any action under the Health Practitioner Regulation National Law (NSW), such as performance assessment or impairment assessment.

Note. Section 13 (2) requires the Commission to refer a complaint to the professional council if either the Commission or the professional council is of the opinion that it should be referred.

(2) Despite section 27 (3), the Commission must discontinue dealing with a complaint (or part) under that section that has been referred to a professional council under this section.

The Government Information (Public Access) Act 2009

32. The GIPA Act commenced operation on 1 July 2010. The objects of the Act are set out in (s 3(1) -

In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

33. ‘Government information’ is given a wide meaning (s 4) being ‘information contained in a record held by an agency.’

34. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (s 9).

35. With respect to other government information, the Act establishes a principle that there is pubic interest in favour of disclosure (s 12(1)). Section 13 then provides that –

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

36. Section 14(1) & (2) then provide –

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information

37. In the present case the Medical Council decided, in the new decision, that the information Mr Yee is seeking is excluded information of the HCCC specified in schedule 2 of the GIPA Act; i.e. “information that relates to any function specified in that Schedule in relation to the agency.” (see the interpretive provisions in Schedule 4).

38. Clause 6 of Schedule 1 provides –

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of.

(2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information.

(3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5.

39. Clause 2 of Schedule 2 then relevantly provides –

2 Complaints handling and investigative information

…

The Health Care Complaints Commission—complaint handling, investigative, complaints resolution and reporting functions (including any functions exercised by the Health Conciliation Registry and any function concerning the provision of information to a registration authority or a professional council (within the meaning of the Health Care Complaints Act 1993) relating to a particular complaint).

…

40. Where a person seeks access to excluded information s 43 of the GIPA Act provides that:

(1) An access application cannot be made to an agency for access to excluded information of the agency.

Note. Information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency.

(2) An application for government information is not a valid access application to the extent that the application is made in contravention of this section.

41. The effect of a conclusive presumption of an overriding public interest against disclosure of information is that an agency is not required to balance the public interest test before refusing access to that information.

Brief outline of submissions

42. In short, the Medical Council argues that the information Mr Yee seeks to gain access to is information provided by Dr Chang to a professional council relating to a complaint made by Mr Yee to the HCCC. It is, the Medical Council says, clearly related to the HCCC’s complaint making function. Therefore, it is excluded information under Clause 2 of Schedule 2, and is the subject of a conclusive presumption of an overriding public interest against disclosure. In support of this submission the Medical Council relied on the decision in Sinclair v Psychology Council [2017] NSWCATAD 8.

43. As already noted, Mr Yee has not made any submissions relevant to the excluded information issue.

44. The Information Commissioner has made submissions. These were:

1. Any decisions made with respect to access to information under the GIPA Act should be made bearing in mind the Act’s objects (s 3), and to further those objects and the presumption in favour of disclosure (s 5);

2. With respect to the application of Schedule 1 of the GIPA Act the Information Commissioner referred to Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 and Achieve Australia Ltd v Department of Family and Community Service (NSW) [2014] NSWCATAD 171 as providing guidance on what is “excluded information”.

3. That the decision in Sinclair v Psychology Council [2017] NSWCATAD 8 in which the Tribunal offered a broad interpretation of clause 6(1) of Schedule, especially the words “in relation to” in the definition of “excluded information” in Schedule 4.

4. That the decision of the Tribunal in Whyte v Medical Council [2014] NSWCATAD 190 in which the Tribunal did not accept clause 2 of Schedule 2 could be construed to include the Medical Council as, ”an agency for the purpose of that clause.”

5. That a consideration of the facts surrounding the creation of the information in issue in relation to the respective functions of the Medical Council and the HCCC may assist in determining the issues. The Information Commissioner drew attention to the language of clause 2 of Schedule 2 (the Information Commissioner’s underlining), before commenting that a consideration of information provided to the Medical Council by the HCCC may assist the Tribunal:

The Health Care Complaints Commission - complaint handling, investigative, complaints resolution and reporting functions (including any functions exercised by the Health Conciliation Registry and any function concerning the provision of information to a registration authority or a professional council (within the meaning of the Health Care Complaints Act 1993) relating to a particular complaint).

Consideration

45. In Whyte v Medical Council [2014] NSWCATAD 190 the applicant sought access to an explanation provided by a doctor who was the subject of a complaint to the HCCC and the Medical Council. Following receipt of that information, having liaised with the Medical Council, the HCCC determined to refer the complaint for dispute resolution.

46. The applicant subsequently sought access to the doctor’s explanation from both the HCCC and the Medical Council, both of whom refused to provide her with access to it. In reviewing a decision of the Medical Council to refuse access to that information, the Tribunal said, at [28]:

28 … Having regard to the circumstances in which Dr Hartnell's response came into existence, I am satisfied that the information in that response is excluded information under clause 2 of Schedule 2 of the GIPA Act. That is, it is information that relates to the complaint handling function of the HCCC and had the applicant sought access to that information from the HCCC her access request would have been an invalid request by reasons of subsection 43(2) of the GIPA Act.

47. The Tribunal went on to find that the Medical Council was not an agency for the purposes of s43 of the GIPA Act, Act because that section provides that an “access application cannot be made to an agency for access to excluded information of the agency.” As the excluded information in issue was not the Medical Council’s, but the HCCC’s, the Medical Council could not avail itself of s43.

48. The Tribunal then turned its attention to s 99A of the HCC Act which provides-

(1) If a person discloses information obtained in exercising a function under this Act and the disclosure is not made:

(a) with the consent of the person to whom the information relates, or

(b) in connection with the execution and administration of this Act, or

(c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or

(d) with other lawful excuse,

the person is guilty of an offence.

Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.

(2) A person may not be compelled in any legal proceedings to give evidence about, or produce documents containing, any information obtained in exercising a function under this Act.

(3) Subsection (2) does not apply to the following proceedings:

(a) proceedings under the Royal Commissions Act 1923,

(b) proceedings before the Independent Commission Against Corruption,

(c) proceedings under Part 3 of the Special Commissions of Inquiry Act 1983,

(d) an inquiry under the Ombudsman Act 1974.

49. The Tribunal then referred to Clause 1 of Schedule 1 the GIPA Act which relevantly provides –

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information the disclosure of which is prohibited by any of the following laws (which are referred to in this Act as overriding secrecy laws), whether or not the prohibition is subject to specified qualifications or exceptions and whether or not a breach of the prohibition constitutes an offence:

…

Health Care Complaints Act 1993

…

50. Principal Member Higgins said [at 38] –

… As I have noted above, the respondent obtained Dr Hartnell's response in the course of its consultation role under the Health Care Complaints Act when dealing with the applicant's complaint. As this was information obtained in its complaint handling role under that Act, I am satisfied that the overriding secrecy provision in the Health Care Complaints Act applies to the information in Dr Hartnell's report. On this basis I am also satisfied that the conclusively presumed overriding public interest against disclosure in clause 1(1) of Schedule 1 of the GIPA Act applies to the information in Dr Hartnell's response.

51. In Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130, at [59] the Tribunal said that the words “the person to whom the information relates” in s 99A(1)(a) of the HCC Act are to be given the widest import and should not be read down: see also DF v Director General, Attorney Generals Department [2002] NSWADT 164. There statements were prepared for an internal investigation requested by the Respondent, concerning a matter about which a complaint was also made to the HCCC. They were provided to the HCCC in response to that complaint, as well as for the Respondent’s own purposes. The Tribunal found that the documents were created for a dual purpose, including for the purpose of the investigative functions of the HCCC. As a result, the overriding secrecy provision of the HCC Act applied, and the information was the subject of a conclusive presumption of an overriding public interest consideration against disclosure.

52. In Sinclair v Psychology Council [2017] NSWCATAD 8 the Tribunal was required to determine whether certain information, addressed to the Psychology Council was related to the functions of the HCCC under Sch. 2, cl. 2. At [69]-[71] the Tribunal held that information that resulted "directly from the referral" to a professional council by the HCCC under s. 25B of the HCC Act was excluded information of the HCCC under Sch. 2, cI. 2. Senior Member Perrignon explained –

69. As I have found, the Council’s request for the letter of 4 October 2010 was not made in exercise of a function under the Health Care Complaints Act 1993, but rather in exercise of a function under the Health Practitioner Regulation National Law. However, that request resulted directly from the referral to it by the Health Care Complaints Commission under section 25B of its Act. That was a referral for consideration as to what action, if any, to take under the National Law. The consideration itself resulted directly from the referral, and caused the Council to make inquiry about the complaint. That inquiry took the form of the request of 22 September 2010 for a response to the complaint.

70. In summary, there was a direct chain of causation between the Health Care Complaints Commission’s referral, and the Council’s request for the letter. To that extent, the letter produced by Captain Sinclair in response to the Council’s inquiry “related to” the exercise by the Health Care Complaints Commission of a function under section 25B.

71. Giving the phrase, “relates to” its ordinary meaning, and having regard to the fact that the Council’s request for the letter resulted directly from the referral by the Health Care Complaints Commission under section 25B, I am satisfied that the letter of 4 October 2010 related to the exercise by the Health Care Complaints Commission of a “function concerning the provision of information to … a professional council … relating to a particular complaint” within the meaning of Schedule 2.

72. It follows that the letter of 4 October 2010 constitutes “excluded information” as defined in Schedule 4, and attracts the conclusive presumption in clause 6(1) of Schedule 1 – namely, the conclusive presumption that there is an overriding public interest against its disclosure.

53. In making those findings Senior Member Perrignon followed Pertsinidis and placed a heavy emphasis on the wide interpretation to be given to the words “relates to” in the opening note to schedule 2 of the GIPA Act, which says –

Note. Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is excluded information of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency.

54. Also of significant importance is the definition of excluded information in schedule, in which the words “relate to” again appear –

excluded information of an agency specified in Schedule 2 means information that relates to any function specified in that Schedule in relation to the agency.

55. To, reiterate the functions of the HCCC mentioned specified in Schedule 2 are its –

…[C]omplaint handling, investigative, complaints resolution and reporting functions (including any functions exercised by the Health Conciliation Registry and any function concerning the provision of information to a registration authority or a professional council (within the meaning of the Health Care Complaints Act 1993) relating to a particular complaint).

56. In Mr Yee’s case the further information provided to the Medical Council by Dr Chang, both in writing from his solicitors and by his attendance at the conduct interview, to which Mr Yee now seeks access, arose as consequence of the HCCC’s referral of the complaint to the Medical Council. The letter of explanation written by Dr Chang’s solicitors is on all fours with the material in which the applicant sought access to in Sinclair. I have no hesitation in holding that it relates to the complaint handling function of the HCCC.

57. With respect to the conduct interview report there is, however, one further step which was taken by the Medical Council, namely the decision to require Dr Chang to attend a conduct interview. The Information Commissioner invited me to consider the circumstances leading to and the content of the conduct interview in deciding whether that process related to a function of the HCCC to which clause 2 of Schedule 2 of the GIPA Act applies. Having read the confidential documents provided to the Tribunal under s 107 the GIPA Act, I am firmly of the view that the report of the conduct interview clearly relates to the complaint made to the HCCC. That is, in many ways, an inevitable consequence of the co-regulation model which the legislation establishes between the HCCC and professional councils, such as the Medical Council. The fact that s 25B(3) of the HCC Act requires that the Commission discontinue dealing with a complaint referred to a professional council, does not mean that information obtained by the professional council, when considering that complaint, does not relate to a complaint handling function of the HCCC, Indeed the HCC Act makes it clear that a referral to a professional council is one of the ways the HCCC may exercise that function.

58. It follows that, like Senior Member Perrignon did in Sinclair, I think there is a direct link of causation between HCCC’s referral of the complaint, and the Medical Council’s request for submissions and for Dr Chang to attend the conduct interview. In my opinion, the information sought by Mr Yee is excluded information which is the subject of a conclusive presumption of an overriding public interest consideration against disclosure.

Order

59. As a consequence,the Tribunal orders that:

1. The new decision of the Medical Council made on 21 April 2017 refusing Mr Yee access to documents 3 and 4 is affirmed.

********

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: 15 December 2017