Amos v Western NSW Local Health District; Arnold v Western NSW Local Health District

NCAT Administrative and Equal Opportunity|2017-08-29

thority [2013] NSWADT 252 Category: Principal judgment Parties: David Amos (Applicant 2016/00378450) Ruth Arnold (Applicant 2016/00378451) Western NSW Local Health District (Respondent) Representation: Counsel: V Bulot (Applicants) N Sharp (Respondent) File Number(s): 2016/00378450 and 2016/00378451 Publication restriction: Section 107 of the Government Information (Public Access) Act 2009 applies to the paragraphs of these reasons marked "Not for publication".

REASONS FOR DECISION

By the amended applications filed in this Tribunal the applicants sought review of the internal review decision made by the respondent on 30 September 2016 concerning an application under the Government Information (Public Access) Act 2009, ("the GIPA Act") for documents relating to a report prepared by a Dr Victoria Hiley ("the Hiley report"), including a copy of the Hiley report.
At the hearing the applicants reduced the scope of their application and specified that they were seeking access only to: 1. the allegations in the Hiley report and the findings made by Dr Hiley with regard to each allegation; 2. the conclusions reached by Dr Hiley (specified as the information in the report under the heading "6. Conclusion") 3. three paragraphs of the Hiley report which appeared under the heading "7. Further conduct".

Background to the proceedings

The applicants are Visiting Medical Officers with the Orange Health Service (OHS). The respondent is a Local Health District constituted under s. 17 of the Health Services Act 1997. Local Health Districts' functions include conducting and managing public hospitals, health institutions and health services (s. 10 Health Services Act 1997).
The OHS has a rural cardiology hub serving the regional population. Dr Amos is a senior cardiologist and has been Director of Cardiology at the OHS. Dr Arnold is also a senior cardiologist, current Director of Cardiology at the OHS, and Chair of the Medical Staff Council. Within the OHS is the Cardiac Catheter laboratory which has three medical staff, being one Staff Specialist, Dr Arnold and Dr Amos.
It is not in dispute that on 3 December 2015 Dr Amos was conducting an intervention procedure on a patient at the Orange Health Service when he collapsed. Dr Arnold came from elsewhere to assist with the procedure. She examined Dr Amos and they agreed that he had suffered a vasovagal faint, having not eaten lunch or taken sufficient hydration during the day, as well as working upright for a prolonged time in a workspace which according to Dr Arnold and Dr Amos, often became overheated.
There was a patient waiting for treatment. Dr Amos and Dr Arnold agreed that the case needed to proceed and that Dr Amos was the only interventional Cardiologist able to perform the procedure. Accordingly after a while Dr Amos performed that procedure.
Dr Thomas, who is the Director of Medical Services at OHS, later became aware of this incident and some other circumstances surrounding it, and initiated some management (including risk management) action in relation to Dr Thomas' continued practice. It is not disputed that Dr Thomas met with Dr Amos and Dr Arnold on 9 December 2015. At that meeting Dr Thomas said that Dr Amos should not work until an independent medical assessment could be performed. Dr Thomas made a file note of that meeting. Dr Amos and Dr Arnold dispute the accuracy of that file note.
On 10 December Dr Amos returned to work after providing a clearance from his GP and a statutory declaration. On 11 December a complaint about the handling of the above incident, signed by Drs Amos and Arnold and three other Cardiology staff, was provided to the General Manager of the OHS. It was stated to be 'a formal complaint' and requested the matter be investigated.
Dr Hiley undertook the investigation of their complaints at the request of the respondent.

Publication restriction on evidence

Section 107 of the GIPA Act provides: "107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of: (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure." Prior to the hearing, orders were made by Senior Member Dinnen that the Tribunal would receive the unredacted Hiley report and closed witness statements and hear argument regarding the report, the interview transcripts and the closed witness statements in the absence of the public, the applicants and the applicant' legal representatives. In the proceedings I made further orders ensuring the non-disclosure of additional closed evidence and conducted parts of the proceedings in the absence of the applicants and their counsel. Sections of these reasons which contain information which was subject to these orders or would disclose information which is subject to an overriding public interest against disclosure is marked "Not for publication" and may not be disclosed to the public or the applicants.

The issues before the Tribunal

The GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5).
Section 12 and 13 provide: "2 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. (3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies. 13 Public interest test 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."
Apart from the considerations listed in Schedule 1 to the Act, the considerations listed in s14 are the only other considerations that may be taken into account under this Act against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
The respondent submits that the applications should not be granted, on the ground that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. The relevant public interests specified in the GIPA Act against disclosure, in the respondent's submission, are: 1. Disclosure of the information could reasonably be expected to have the effect of prejudicing the supply to the LHD of confidential information that facilitates the effective exercise of that agency's functions (s 14(1)(d)); 2. Disclosure of the information could reasonably be expected to have the effect of prejudicing the effective exercise by the LHD of the LHD's functions (s 14(1)(f)); 3. Disclosure of the information could reasonably be expected to result in the disclosure of information provided to the LHD in confidence, (s 14(1) (g)); 4. Disclosure of the information could reasonably be expected to reveal an individual's personal information or contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (s 14(3)(a) and (b)).
The respondent also submits that it is relevant that no conditions can be placed on the release of the information (s 15(e)); and that the motives of the applicants are relevant.
The applicants dispute the grounds on which the public interests are claimed to exist and the evidence on which they are based. They identified the public interests in favour of disclosure as follows. 1. Based on material in the Hiley report Dr Amos may be able to seek rectification of a risk assessment which was prepared by the LHD with input from Dr Thomas and others, concerning him and the incident. He disputes the contents of the file note and claims that this is relevant to his professional reputation. 2. Disclosure would inform the applicants if the file note created by Dr Thomas in its dealings with Dr Amos, including after the Hiley report was provided to the LHD, should be corrected; and possibly enable them to challenge the LHD's reliance on the file note. Dr Arnold regards the file note as critical of her and damaging to her professionally. 3. Disclosure would promote openness, fairness and transparency Enhancement of accountability and transparency about the investigation. 4. Disclosure would enhance government accountability and contribute to an informed debate on an issue of public importance, specifically the management of the OHS. This is said to be an issue of some importance to the medical community in Orange.
I now turn to address the public interest considerations which are claimed to apply to the information and which would, if substantiated, be considerations against disclosure of the information.

Section 14(1)(d) - prejudice the supply of confidential information that facilitates the effective exercise of agency functions

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have the effect (whether in a particular case or generally) of prejudicing the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (s 14(1)(d) GIPA Act).
In this case the relevant functions were said to be the LHD's Human Resources functions and patient safety functions. I accept that these are both functions of the OHS and LHD. This is evident from the Health Services Act, the evidence of Catherine Nowlan, the General Manager of the OHS and Sandra Duff, Director of Workforce and Culture at the OHS, the policy documents tendered dealing with grievances, misconduct and complaints about clinicians, as well as evidence of a survey of staff and training program to encourage staff to speak up about patient safety.

The evidence

The respondent relied upon the following to demonstrate that the information supplied to the investigator by witnesses was confidential: 1. The NSW Health Policy "Complaint or Concern about a Clinician - Principles for Action PD2006-007" and in particular the following statement: "Privacy and Confidentiality Details of the matter should be disclosed only on a "need to know" basis, recognising any obligation to report information to other bodies, for example professional registration boards…all information in respect of complaints is to be treated as private and confidential." 1. The NSW Health Policy "Grievance - Effective Workplace Resolution" and in particular a statement under the heading "Staff Rights and responsibilities": "Key rights of all staff include: …Appropriate confidentiality and protection from recrimination…. Key responsibilities of all staff include: … recognising their role in harmonious workplace relations …Not releasing information relating to a grievance to any third party who have no legitimate involvement in the process." And: "2.3 Confidentiality All parties have rights and responsibilities in relation to confidentiality. Information relating to a grievance should only be provided on a "need to know" basis, and should not be provided to third parties who have no legitimate involvement in the process. Those involved in a grievance have both the right to confidentiality and the responsibility for maintaining confidentiality. This includes confidentiality of the identity of those involved, as well as the subject matter." 1. NSW Health Policy "Managing Misconduct" and the following statements: "those involved in a potential misconduct process have both the right to confidentiality and the responsibility for maintaining confidentiality, subject always to the overriding need to be able properly to undertake any inquiries or investigation that may be necessary, and to take the action required by this Policy Directive." "All persons involved must be advised of the outcome of the process in so far as it relates to them, having regard to the confidentiality rights of other people involved in the matter". "An investigation precedes, and is separate from any final decision by a decision-maker about whether to accept or not accept findings, and about whether and what further action (disciplinary or other) is required".
Ms Duff gave evidence that the above three policies applied to the Hiley investigation. She affirmed that it was a condition of the applicants' employment that they be aware of the employer's policies. It was the respondent's policy to treat information gathered and created for the purpose of such investigations as confidential and disclose it on a "need to know" basis as far as parties to the investigation were concerned. Outcomes of the process would be advised only insofar as it related to them.
Other documents in which confidentiality was emphasized were:

Terms of reference from the LHD to Dr Hiley in which she was authorised to direct staff to maintain the confidentiality of the investigation.
The LHD wrote to staff taking part (including Dr Amos and Dr Arnold) telling them the investigation was confidential: "You must not discuss it with any other person unless that person has a genuine need to know, with the exception of your support person. If you discuss the investigation in any other context you may be disciplined for breach of a lawful direction".
The LHD wrote to Dr Thomas on 18 January 2016 stating the investigation was confidential.
Dr Hiley, when interviewing staff, reminded them that the discussion and process was confidential (as recorded in the interview transcripts).

Ms Duff conceded the Hiley report did not explicitly state that the report itself was confidential. She stated that Dr Amos and Dr Arnold were informed of the outcomes of the report which affected them by letter. She accepted that some of the outcomes in the letter could be attributed to processes other than the investigation.
She said that investigations of this kind required full and frank disclosure from witnesses and witnesses at the OHS may not be willing to cooperate if they knew their evidence could be disclosed. She believed disclosure would affect the level of trust held by employees who had been told that their information was confidential. It created a risk that they would be less open and frank in future.
The respondent submitted that it was important for patient safety that employees feel safe in speaking up if they had concerns about a clinician's conduct. There was evidence that the collapse of Dr Amos during a procedure should have been made the subject of an incident report (AIMS) more promptly than was the case. The LHD has recently introduced a program to encourage staff to speak up if they have concerns about patient safety.
The respondent also relied on the following evidence which was covered by the non-disclosure orders.
NOT FOR PUBLICATION
NOT FOR PUBLICATION
NOT FOR PUBLICATION
NOT FOR PUBLICATION
NOT FOR PUBLICATION
NOT FOR PUBLICATION
Dr Amos agreed that he was aware that confidentiality was part of the workplace complaint handling process, and that it applied to the witnesses and the subject of the investigation. He agreed that he was given a lawful direction to keep the investigation confidential in letters sent to him by the LHD.
Dr Arnold said she agreed generally with confidentiality applying to complaint investigations, but believed some persons would have a right to know. She said she was told she would be informed of systemic changes which resulted but was not satisfied with the limited information she had received.
She said she sought in particular the findings and recommendations relating to the handling of the adverse material contained in the disputed file note, "which was used in a way adverse to Dr Amos in July 2016 …and could potentially still be used in an adverse way against myself."

Consideration of s 14(1)(d)

The onus lies on the respondent to show that the disclosure of the information could reasonably be expected to prejudice the supply of confidential information which facilitates the agency's functions (s 14(1)(d) of the GIPA Act). The words "could reasonably be expected" in s 14 have the meaning that there must be a reasonable expectation (not fanciful, imaginary or contrived) that the disclosure could have the prescribed effect (Re Actors Equity Association of Australia and Australian Broadcasting Tribunal (No. 2) (1985) 7 ALD 584 at 590). As held in Attorney General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at 190, per Bowen CJ and Beaumont JJ, it requires: "a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act."
The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at [106].
In Director General, Department of Education and Training v Mullett [2002] NSWADTAP 13, it was held that it is whether the agency's ability to obtain such evidence will be impaired in future, that is in issue. It is necessary to determine whether the information is confidential, and whether it facilitates the effective exercise of the agency's functions. The application of this approach to s 14(1)d was endorsed in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [27-30].
In Raven v The University of Sydney [2015] NSWCATAD 104 Senior Member Lucy stated: "There must be some evidentiary basis from which the Tribunal may infer that disclosure of the information sought could reasonably be expected to prejudice the supply to an agency of confidential information. It is not sufficient for the respondent to make an assertion that this is the case: cf Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135, at [123]. The Appeal Panel in Camilleri observed, at [33], that: "the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received". [52-55]
Confidential information from witnesses in workplace misconduct investigations has been accepted in the past as falling under clause 1(d) - see for example Pemberton v Macquarie University [2014] NSWCATAD 76 and McInnes v Department of Education and Communities [2013] NSWADT 219.
In submitting that confidentiality did not apply to the information supplied to the investigator, the applicants submitted that: 1. The report was not expressly provided in confidence to the LHD, and the LHD did not direct Dr Hiley in its letter of appointment, that her report was to be confidential; 2. In any event, the applicants did not seek access to the witness transcripts and summaries thereof; 3. the confidentiality undertakings given to witnesses did not apply to Parts 6 and 7 of the report; 4. The Tribunal could withhold sections which contained witness evidence if it saw fit; 5. The Managing Misconduct Policy did not say that findings of the investigator were confidential; 6. The applicants did not seek to know what disciplinary action if any had been taken; 7. There was no direct evidence that Dr Hiley had regard to any of the policies relied on by the respondent and she did not refer to them in her report. In fact she referred to different policies.
In relation to (a) it is true that Dr Hiley did not label her report as "confidential" and the LHD did not expressly direct Dr Hiley that her report was to be provided in confidence; however, her report was prepared under the policies and covered by the directions referred to above. Therefore I am satisfied on the evidence that the relevant confidentiality provisions in those policies applied to the report.
In relation to (b), (c), and (d) the information provided by the witnesses is incorporated into the background, findings and conclusions, and is an inextricable part of it. That information remains covered by the confidentiality undertakings and policies when referred to in those sections.
In relation to (e) the Managing Misconduct policy states that outcomes are to be advised "having regard to the confidentiality rights of other people involved in the matter"; this indicates that findings and conclusions were also subject to the stated confidentiality rights.
As to (f), it was stated by Ms Duff, and made clear in the policies, and the unredacted parts of the report, that the report does not specify actual disciplinary action, as that is for the decision maker to determine. Therefore this point is not relevant.
In relation to (g), in the event that Dr Hiley was in error about the policies which applied to her report, which may well be the case, the question is whether the policies applied to her report. In my view they did, both on their terms and by the express statement of the respondent to its employees. As an agent of the LHD, investigating the conduct of its staff, it was not open to Dr Hiley to conduct such an investigation except under the authority provided by the LHD, and its policies.
On the basis of the evidence set out above as to the policies, circumstances and directions affecting the provision of information to the investigator, I am satisfied that the investigation process was confidential in nature and that witnesses were told that this was the case and directed to maintain confidentiality. Witnesses had an expectation that the information they provided would be treated confidentially and disclosed only on a strict need to know basis. This was the promise made by the workplace policies referred to. I conclude therefore that that the information provided by witnesses to the investigator as part of this process, including such information where it appears or is referred to in other sections of the report, is confidential in nature.
I now turn to whether disclosure of that information could reasonably be expected to prejudice the supply of confidential information which facilitates the agency's functions of human resources and patient safety.
NOT FOR PUBLICATION
There was also evidence from Ms Duff of her belief that such investigations were always conducted on a confidential basis and witnesses would be less willing to speak frankly if they knew their evidence could become public.
I was referred to the decision in Hurst v Wagga Wagga City Council [2011] NSWADT 307 which the respondent submitted should be distinguished. That case also concerned a workplace investigation. The Senior Member in that case rejected a submission that such investigations relied on the preservation of confidentiality, where there was no basis for comparing the effects on supply of information of preserving confidentiality with the effects where confidentiality was not maintained.
Clearly each workplace is different, and I am satisfied in this case on the basis of the evidence I have heard, that disclosure of the evidence provided by witnesses to Dr Hiley, whether in transcript form or as contained in the body of the report, could reasonably be expected to prejudice the supply of confidential information to the LHD from such witnesses. I am also satisfied that confidential information from witnesses facilitates the exercise of its human resources functions, particularly those in relation to the investigation of grievances and allegations. It is not fanciful or absurd to expect that staff witnesses in the LHD will be less willing to provide full and frank information to investigations about their colleagues if they are aware that such information can be disclosed without restrictions. The evidence in this case supports such a finding.
It is less clear that it could reasonably be expected to prejudice the supply of confidential information to the LHD that facilitates patient safety functions. Medical staff are obliged to have regard for patient safety. However, it is reasonable to expect, based on the evidence referred to above, that disclosure could discourage people from providing confidential information about patient safety issues where they were concerned about damaging their working relationships if that information was made public. After some consideration, I have decided that the evidence does tend to show that this is could reasonably be expected.
Based on the evidence above and my consideration of the issues, I am satisfied that this public interest consideration is substantiated.

Section 14(1) (f) prejudice the effective exercise by an agency of the agency's functions

This ground applies to information which is not confidential and therefore not covered by s 14(1)(d), but the disclosure of which could reasonably be expected of itself to prejudice the effective exercise of the agency's functions (Camilleri at [31]). As stated in that case, it is in a sense a "fall back" to s14(1)(d) and (g). Given my finding in respect of s 14(1)(g) it is unnecessary to consider this ground, however, I will say something about it briefly.

The evidence

The respondent relied upon evidence of workplace tension and low morale in the Orange Health Service and among Cardiology staff in particular, to show that disclosure of the information sought would prejudice the effective exercise of the LHD's human resources functions and patient safety functions.
In Ms Duff's view the level of conflict in Cardiology and the OHS was unusually high. The Medical Staff Council, of which Dr Arnold was chair, passed a vote of no confidence in the management of the Orange Health Service and the LHD. Dr Arnold had spoken to the media on behalf of the disaffected employees.
The respondent tendered a report by the Centre for Health Leadership on "Medical Engagement at OHS". Interviews with staff at OHS were conducted between 24 March and 9 May 2017. The report concluded:

"within the data there is a sense that "things had quietened down a bit lately" and a hope that this was a 'turning point'
The survey showed medical engagement results within the lowest relative engagement band compared to other organisations
Many respondents interviewed referred to "divisions and divisive action taken by colleagues, characterised as 'us and them'"

NOT FOR PUBLICATION
Dr Amos said in his affidavit: "The disputes which led to the Hiley report are still festering. Suppression of the findings and recommendations made by Dr Hiley does not resolve the underlying dispute and the mistrust between staff (including myself) and the administration."
The applicants argued that the respondent's evidence should be given little weight because: 1. Dr Thomas and Dr French were about to leave their employment with the LHD, therefore if their relationship with the applicants was acrimonious, this was about to end anyway; 2. They did not seek disciplinary material - only the findings; 3. The allegations had already been released to Dr Amos in the form they were put to him at interview, when his transcript was released to him, and there was no evidence that this had caused any prejudicial effect; 4. It was not put to the applicants in cross-examination that they would use the information to victimise anyone; 5. Patient safety did not arise as the complaint was about how the issue of Dr Amos' collapse was handled, not whether it should have been handled at all; 6. Suppressing disputation in the workplace is not a legitimate function of the LHD and disputation does not prejudice the LHD's functions.

Consideration of s 14(1)(f)

"Prejudice" should be given its ordinary meaning of "cause detriment or disadvantage" (McLennan v University of New England [2013] NSWADT 113).
While disclosure of the withheld information may create challenges with regard to workplace relations, it is not clear from the evidence that it could reasonably be expected to prejudice the effective exercise of the human resources functions of the LHD or OHS. Agencies frequently have to deal with lack of engagement and conflict in the workplace and I am not convinced that detriment or disadvantage to exercising those functions could be reasonably expected as a direct result of disclosure.
As to the effect on patient safety functions, while it was submitted that the disclosure would have a chilling effect on staff who might otherwise raise concerns about patient safety, that is more relevant to s 14(1)(I am not persuaded that disclosure of the information withheld could reasonably be expected to prejudice the effective exercise of those functions in the LHD or the OHS, solely by creating or adding to staff dissent and unrest. Medical and nursing staff have professional and legal obligations with regard to patient safety. There was no convincing evidence that showed disadvantage to patient safety could reasonably be expected.
Accordingly I am not satisfied that this ground is made out.

Section 14(1)(g) - result in the disclosure of information provided to an agency in confidence

In order to rely on this ground, the respondent must establish that the information in the report was provided to the agency in confidence. This ground therefore focuses on the content created by Dr Hiley, who provided her report to the LHD.
The applicants submit that it was not provided to the LHD in confidence, for the reasons previously stated - the report was not expressly said to be " in confidence"; the LHD did not direct Dr Hiley in its letter of appointment that her report was to be confidential; the confidentiality undertakings given to witnesses did not apply to the findings and conclusions; the policies were not referred to by Dr Hiley; and the Managing Misconduct Policy did not describe findings of the investigator as confidential.
The respondents rely on the evidence of confidentiality outlined above.
Based on that evidence, I am satisfied that the material withheld from the investigator's findings and conclusions, including the redacted text headed "Further conduct" in the report are confidential, on the following basis. 1. Portions rely on confidential witness information which was provided to the LHD's agent, Dr Hiley, in confidence. 2. The evidence demonstrates that any disclosure was governed by the "need to know" approach expressed in the policies. 3. While the final report was not marked "Confidential", it was expressly stated to be intended for the persons involved in making any decisions and taking any action based on the report, and the circumstances in which it was delivered, the policies which applied to it and the nature of the information it contained were such that it was provided in confidence (MJ v Department of Education and Commerce [2013] NSWADT 213).
It follows that it could reasonably be expected that disclosing that information would disclose information provided to the agency in confidence.
The applicants also submit, however, that the allegations are known to the applicants. Therefore it could not reasonably be expected that disclosure of the allegations would disclose information provided in confidence.
In the GIPA Act "disclose" is defined to include "make information available and release or provide access to information" (Sch 4 cl 1). Whether information was provided in confidence may be inferred from the nature of the information and the circumstances in which it was provided ( MJ at [70]; Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 at [68]).
Based on the evidence set out above, I am satisfied that the allegations which Dr Hiley drafted as part of her report were provided to the LHD in confidence. While they were put to Dr Amos and Dr Arnold and other witnesses, this was done as part of the investigation process, which the evidence clearly establishes was a confidential process. They were contained in the report as part of Dr Hiley's findings and were subject to the confidentiality provisions in the policies referred to above.
Accordingly I am satisfied that the information in the report in its entirety was provided to the LHD in confidence.

Section 14(3) (a) - reveal an individual's personal information, and

Section 14(3)(b) - contravene an information protection principle under the Privacy and Personal Information Protection Act 1998

Personal information under the GIPA Act

The definition of "personal information" contained in Sch 4(4)(1) of the GIPA Act states that it means: "information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion."
There is an exception to the definition which is that it does not include information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions (Sch 4 (4)(3)(b)).

Whether the report contains personal information

It was submitted by the respondent that Dr Thomas' personal information and that of other persons was included in the body of the report. I was referred to the following cases: 1. AMH v Western NSW Local Health District [2013] NSWADT 282 in which it was held that information such as names, addresses, qualifications, interpersonal relationships, personal circumstances and opinions about persons who were identifiable were "personal information"; 2. Jones v NSW Department of Education [2017] NSWCATAD 51 in which it was held that an expression of the opinions and views of one person about another person was the first person's "personal information" as well as personal information about the second person; 3. Noble v University of NSW [2017] NSWCATAD 2 in which it was held that the disclosure of personal opinions of staff about their colleagues, given under an assurance of confidentiality, was sensitive and a significant consideration against disclosure.
I was also referred to the decision in Hurst v Wagga Wagga City Council [2011] NSWADT 307 which the respondent submitted should be distinguished on this point. At [78-82] the Tribunal considered documents containing the response of Council officers to a complaint about their conduct. The Senior Member found that the responses, which included information and opinions, were "entirely focused on their work, with one exception" and therefore were not personal information. In that case the officers were already known as persons about whom complaints had been made.
The applicants submitted that the Hurst decision should be followed and that "opinion on a complaint about a person" is not personal information. On a review of the decision, it is evident that the Senior Member's conclusion was based on a reading of the documents, which are not available to me. Also, it could not be said that the information in this case was entirely focused on the work of the individuals. It contains personal information and opinions about named persons of the kind referred to above, albeit in a workplace context. Therefore the decision in Hurst does not assist on this point.
The applicants also submitted that Dr Hiley's findings are not personal information, as Guideline 4 promulgated by the Information Protection Commissioner does not refer to findings in a report as personal information.
I find that the names of the witnesses and their roles at the OHS are not personal information as these are known. The names of the persons who were interviewed were, in any case, released to the applicants. The fact that the Guideline does not give findings as a specific example of "personal information" is not conclusive, as the examples are not exhaustive.
In my view the background, findings and conclusions in the report contain personal information of individuals, as they contain information and opinions about persons. While the applicants have said they do not seek the witness transcripts, in my view they also contain personal information. Disclosure of the withheld parts of those sections would reveal the personal information of individuals.

Whether the allegations have been revealed

Clause 1 of Sch 4 of the GIPA Act provides that: "reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)".
In Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 Molony JM observed, at [40], that: "The issue for consideration is not whether the document has been publicly disclosed, but whether the information they contain has been publicly disclosed. The effect of s 105(1) is to place the burden, of establishing that a decision with respect to an access application is justified, on the agency. In circumstances such as the present, that burden includes establishing that release under the GIPA Act could reasonably be expected to reveal an individual's personal information. Where there is material indicating that the information has already been publicly disclosed, that burden requires the agency to establish that it was not."
In that case it was held that information disclosed in open court was publicly disclosed and therefore revealed. See also Rowell v Department of Family and Community Services [2017] NSWCATAD 221; Nasr v State of NSW [2007] NSWCA 101; Nature Conservation Council of NSW v Department of Trade and Investment [2012] NSWADT 195 at [174].
The applicants submitted that there is evidence that the allegations have been "released to the world" as the allegations were disclosed when the transcripts were released to the applicants by the LHD under the GIPA Act. In fact a comparison of Exhibits C and D in the proceedings shows that Dr Amos received his transcript under internal review but Dr Arnold did not.
The GIPA Act provides that access cannot be made subject to any conditions as to the use or disclosure of the information (s 73(1)). I accept that the information in Dr Amos' own transcripts has been publicly disclosed.
Having reviewed the transcript provided to Dr Amos and compared it with the allegations contained in the report, I am satisfied that the information in the allegations as worded in the report was publicly disclosed. Accordingly, it would not 'reveal' them to disclose them now, and the ground under s 14(3)(a) cannot be claimed by the respondent with regard to the allegations.

Whether disclosure would contravene Section 18 of the Privacy and Personal Information Protection Act

The definition of "personal information" in the Privacy and Personal Information Protection Act ("the PPIP Act") is the same as in the GIPA Act in general terms but contains different exceptions. Section 18 of the PPIP Act provides: "18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it."
"Disclosure' in the PPIP Act involves "making known to a person information that the person to whom the disclosure is made did not previously know" (Nasr at [127]).
For the reasons stated above in relation to s 14(3)(a), I am satisfied that the report contains personal information in the background, findings and conclusions. While the applicants have said they do not seek the transcripts in my view these also contain personal information for the reasons stated above. Disclosure of this personal information would breach s 18. This does not apply to the allegations, which were made known to Dr Amos when he was interviewed and given his transcript, and to Dr Arnold when she was interviewed.
There was no evidence that the exceptions in s 18 apply, nor was it submitted by either party.
Accordingly I am satisfied that the public interest considerations under s14(3)(a) and s 14(3)(b) are substantiated with respect to the background, findings and conclusions in the report but not the allegations.

Balancing the public interests for and against disclosure

Section 13 of the GIPA Act requires the Tribunal to identify the public interest considerations against disclosure of the information and those in favour of disclosure, and then determine the weight to be attributed to each, before determining whether the balance favours disclosure or non-disclosure.
The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74].
Under section 55 of the GIPA Act, the personal factors of the applicants, including identity and motives, can be taken into account as factors in favour of providing the Applicant with access to the information (s 55(2)).
Under s 55(3) the Tribunal is also entitled to consider the Applicants' personal factors as a factor against granting access, but in this case only to the extent that they are relevant to whether disclosure could reasonably be expected to have the effects of revealing personal information or breaching an information privacy principle.
The respondent relied upon conduct by the applicants which was claimed to have breached confidentiality in other circumstances. For the reasons stated above I am unable to consider those matters in relation to the public interests under s 14(1)(d) and (g). In any event, I do not think that their conduct is relevant as they would be under no obligation of confidentiality were the Hiley report to be released under the GIPA Act. The applicants submitted that the respondent had behaved inconsistently by disclosing other confidential material in these proceedings and in Supreme Court proceedings. I do not find this conduct relevant to the issues to be decided.
The only public interests against disclosure which may be considered are those in section 14.

The public interests in favour of and against disclosure of information covered by s 14(1)(d) and (g)

The following public interests against disclosure of the information which was provided by witnesses, not only in the transcripts but including where that information appears in other parts of the report, were established: 1. disclosure of the information provided by witnesses in confidence could reasonably be expected to have the effect of prejudicing the supply to the LHD of confidential information that facilitates the effective exercise of that agency's HR and patient safety functions. 2. disclosure of the report in its entirety could reasonably be expected to disclose information provided to the LHD in confidence.
The following public interests in favour of access were claimed: 1. Dr Amos may be able to use the contents of the Hiley report to seek rectification of the risk assessment and the file note which he considers affects his professional reputation. The risk assessment was tendered in the Supreme Court proceedings by the LHD. It referred to the incident and was considered in relation to determining whether Dr Arnold could return to work having been placed on involuntary leave for unrelated reasons. There was therefore evidence that Dr Amos has been the subject of action by the LHD in reliance on the risk assessment and the file note, although he is still employed at the OHS. There was no evidence of any imminent or threatened action against him, however. 1. Disclosure would inform both applicants if the file note should be corrected; and possibly enable them to challenge the LHD's reliance on the file note. Dr Arnold regards the file note as critical of her and damaging to her professionally. There was no evidence that any specific findings of Dr Hiley in relation to the file note were accepted or acted on by the LHD. There was no evidence that Dr Arnold had suffered professional damage as a direct result of the file note. 1. Disclosure would promote openness, fairness and transparency Enhancement of accountability and transparency about the investigation. I accept this and the respondent also conceded this point. 1. Disclosure would enhance government accountability and contribute to an informed debate on an issue of public importance, specifically the management of the OHS. This is said to be an issue of some importance to the medical community in Orange. Given that the incident which was investigated occurred almost two years ago, and concerned the management of one doctor by another in relation to one incident; and given that the evidence did not indicate that the handling of the incident was of great concern to staff other than the applicants and three other persons, I am not persuaded that it is an issue of public importance. The good management of the OHS is an important public interest, however.
In conducting the balancing exercise, I also consider the personal factors of the applicants, in that they work in the OHS and have a natural desire to see that it is managed effectively and well. They also have a natural concern that their professional standing is not harmed by anything the respondent does.
In my view, however, the public interests against disclosure in relation to the preservation of confidentiality undertakings and the effective exercise of the LHD's functions, carry more weight. The prejudice which could reasonably be expected to affect the LHD's HR functions in particular, and its ability to investigate complaints in confidence could be significant. While openness and accountability is important, the subject matter of the report and its handling is of limited public interest.

The public interests in favour of and against disclosure of information covered by s 14(3)(a) and (b)

This concerns the personal information contained in the report with the exception of the allegations.
In conducting the balancing exercise, I may consider the personal factors of the applicants, to the extent that they are relevant for or against disclosure.
The respondent urged that Dr Amos and Dr Arnold were hostile to Dr Thomas. They denied this. As to his personal motives, Dr Amos stated: "I would like to see the findings of the Hiley report to ascertain whether the use and the reliance on the incident was fair and appropriate…I am not able to simply move on without receiving some closure".
According to Dr Amos, Dr Thomas made a medical assessment of him without a proper history or examination "which I consider to be against the law", created a false record of their meeting on 9 December 2016, and damaged his reputation by making adverse and inaccurate input into a risk assessment. Dr Amos said he could not say whether he would provide to the media any information which he received from the LHD. It would depend on the contents. He said media were present at the meeting but he did not attend and he did not contact the media.
Dr Arnold was also critical of Dr Thomas' conduct but denied that there were tensions or animosity between herself and Dr Thomas. She gave evidence that she asked members of staff to sign the complaint against Dr Thomas. Dr Arnold was involved in a meeting of the Cardiac Catheter Lab on 17 May 2016 which criticised another report concerning Dr Amos as "completely deficient" and "erroneous" and determined to raise issues with the review with the Ministry of Health, the AMA and the Cardiac Society.
She did not exclude the possibility that she would give any information received to the Medical Staff Council or the media. Her stated goal was to promote fairness and transparency in the LHD. She said she was not seeking the information with regard to Dr Thomas, it was about fair treatment in the workplace. I note that she stated in her affidavit, however, that in her opinion that Dr Thomas made a "false medical diagnosis" of Dr Amos, and that this could constitute professional misconduct. She expected that the Hiley report would contain findings on this as well as what she regarded as the "false file note" created by Dr Thomas. She stated that the file note contained details which she regarded "as potentially damaging to my professional reputation".
Based on the above evidence, I am satisfied that the motives of Dr Amos and Dr Arnold include a desire to determine whether any disciplinary action could be taken against Dr Thomas, although they were not able to demonstrate how likely this was. Their evidence satisfied me that these motives were at least partly personal in nature.
I have found that the following public interests against disclosure of the personal information in the report have been established: 1. That disclosure of the background, findings and conclusions (but not the allegations) in the report would reveal the personal information of a number of staff employed by the respondent. 2. That disclosure would contravene s 18 of the PPIP Act by disclosing personal information in the background, findings and conclusions (but not the allegations), where none of the exceptions in that section apply.
The same public interests apply in favour of disclosure and the same considerations are relevant as applied to the information covered by s 14(1)(d) and (g).
In conducting the balancing exercise, I find that the public interest factors against disclosure of the personal information are greater than the public interests in favour of disclosure. While there is an assumption favouring access, in my view there is insufficient public interest in the matters raised by the applicants, which are personal in nature, to outweigh the public interest in protecting the personal information of persons which was canvassed in this investigation report.

Conclusion

The outcome is that the respondent has established that its decision is justified, although the reasoning of this Tribunal has differed somewhat from that on internal review.
Accordingly, the correct and preferable decision in the circumstances is to affirm the decision of the respondent.

ORDERS

The Tribunal orders: 1. The decision under review is affirmed. 2. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, paragraphs [29] to [34], [51] and [61] of these reasons are not to be published. 3. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, any confidential evidence filed with the Tribunal or given in a confidential hearing pursuant to s 107 of the Government Information (Public Access) Act 2009, is not to be published. 4. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, paragraphs [29] to [34], [51] and [61] of these and any confidential evidence filed with the Tribunal or given in a confidential hearing pursuant to s 107 of the Government Information (Public Access) Act 2009, is not to be disclosed to the applicant.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2017

At a glance

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Judgment (24 paragraphs)

Cases Cited (8)

Cited By (5)