Black v Hunter New England Area Health Service [2006] NSWCA 84 | Case summary

REASONS FOR DECISION 1 This is an application by Phillip Black for the review of a decision of the Hunter New England Area Health Service ('the Health Service') made under the Freedom of Information Act 1989 ('the FOI Act') to release a document to Mr Black with material deleted in respect of which an exemption was claimed. Background 2 On 10 October 2007, Mr Black applied to the Health Service for access to a "Triage Report" on him, which Mr Black stated had been lodged with the Health Service by Dr Glenda Lattimore in or about January 2006. The Health Service received the $30 fee on 6 November 2007. On 22 November 2007, the FOI Officer for the Health Service, relying on the exemption set out in clause 13 of Schedule 1 of the FOI Act in respect of documents containing confidential material, decided to refuse access to the document on the ground that the information provided to Dr Lattimore, which resulted in her preparing the confidential report, was provided to her in her professional capacity in confidence. The FOI Officer said the release of the report, which was provided to the Health Service in confidence, might prejudice the supply of such information to the Health Service in the future not only from Dr Lattimore but also from other health professionals. By letter dated 27 November 2007 addressed to the FOI Officer, Mr Black sought a review of this decision. 3 Initially, there appears to have been some confusion over the particular document to which Mr Black was seeking access. On 20 December 2007, the FOI Officer decided to allow Mr Black partial access to a form entitled "Mental Health - Triage Module" ('the Triage Form'), exempting certain material, again relying on clause 13, on the ground that the Form contained information obtained in confidence. On 15 January 2008, Mr Black sought an internal review of this decision. 4 On 4 February 2008, the Executive Support Service Manager for the Health Service confirmed the decision. In doing so, she relied on the exemption set out in clause 13 and also the exemption set out in clause 4 of Schedule 1, in respect of documents affecting law enforcement and public safety where the document contains matter the disclosure of which could reasonably be expected "to endanger the life or physical safety of any person" (clause 4(1)(c)). In relation to clause 4, the Manager stated: "The confidential report by a clinician was provided to the NSW Police and related to concerns about Mr Black and that he had firearms in his possession. It is understood that as a result of these concerns, the Police removed Mr Black's firearms. In doing so, there must have been reasonable fear for the life or physical safety of Mr Black or other persons." 5 The Manager went on to say that when contacted by the Mental Health Service, Mr Black had declined to attend for a mental health assessment. She stated that there were fears that release of the exempt information could endanger the life or physical safety of others. To assist in the internal review, medical opinion had been sought from a consultant psychiatrist who, the Manager stated, expressed the opinion that "it would be potentially damaging for Mr Black to have access to any medical record at this time and that a number of parties might be placed at significant risk should access be given to the information". The Manager therefore concluded: "There is reasonable evidence to support the view that release of withheld information would have an adverse effect on the operations of the agency and would endanger the life or physical safety of Mr Black or other persons." 6 On 7 April 2008, Mr Black applied to the Tribunal for a review of this decision. Pursuant to directions given by me at a Planning Meeting on 29 July 2008, the parties filed written submissions. In a letter dated 2 September 2008, Mr Black confirmed that the only document in issue is the Triage Form. On 26 September 2008, Mr Black applied to the Tribunal for the issue of summonses to Dr Glenda Lattimore and the unnamed consultant psychiatrist referred to the internal review decision. On 7 October 2008, in my absence, Montgomery JM, having heard submissions from the parties, and noting that the Health Service no longer sought to rely on the clause 4 exemption, denied the application. 7 At the hearing on 17 October 2008, Mr Black asked that I revisit his application for the issue of summonses. He told me that it was Dr Lattimore who provided information to a Health Service employee and it was the employee who completed the Triage Form to which he seeks full access. He said his reason for seeking to call Dr Lattimore and the unnamed psychiatrist to give evidence is that he wants to refute the basis on which the Health Service relied on the clause 4 exemption in the internal review decision. 8 Having heard oral submissions on this issue from Mr Black and Ms Johnson, who confirmed that the Health Service is no longer relying on the clause 4 exemption, I denied Mr Black's application for the issue of the summonses. In my view, neither the evidence of Dr Lattimore nor of the unnamed psychiatrist is relevant to the issue before the Tribunal, namely whether the partial exemption claimed by the Health Service, relying on clause 13 (documents containing confidential information) and clause 16 (documents concerning the operations of agencies) can be justified. The Relevant Legislation 9 The objects of the FOI Act are stated in section 5, as follows: 5 Objects (1) The objects of this Act are to extend, as far as possible, the rights of the public: (a) to obtain access to information held by the Government, and (b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading. (2) The means by which it is intended that these objects are to be achieved are: (a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and (b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and (c) by enabling each member of the public to apply for the amendment of such of the Government's records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading. (3) It is the intention of Parliament: (a) that this Act shall be interpreted and applied so as to further the objects of this Act, and (b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information. (4) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records as permitted or required by or under any other Act or law. 10 Pursuant to section 16(1) of the FOI Act, "[a] person has a legally enforceable right to be given access to an agency's documents". However, section 25(1)(a) states that an agency "may refuse access to a document" if it is an "exempt document", the onus being on the agency to establish this (section 61). Section 25(4) provides that an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and it appears to the agency that the FOI applicant would wish to be given access to such a copy. 11 Section 6(1) defines 'agency' so as to include a Health Service, and 'exempt document' as including a document referred to in any one or more of the provisions of Schedule 1. The exempt documents in Schedule 1 include, relevantly, those specified in clauses 4, 13 and 16, which have been relied on by the Health Service in these proceedings. The relevant parts of those clauses state: 4 Documents affecting law enforcement and public safety (1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected: ... (c) to endanger the life or physical safety of any person,... 13 Documents containing confidential material A document is an exempt document: (a) if it contains matter the disclosure of which would found an action for breach of confidence, or (b) if it contains matter the disclosure of which: (i) would otherwise disclose information obtained in confidence, and (ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and (iii) would, on balance, be contrary to the public interest. 16 Documents concerning operations of agencies A document is an exempt document if it contains matter the disclosure of which: (a) could reasonably be expected: ... (iv) to have a substantial adverse effect on the effective performance by an agency of the agency's functions, ... and (b) would, on balance, be contrary to the public interest. Evidence 12 Dr Dinesh Arya, the Area Director of Mental Health for the Health Service, provided an affidavit dated 11 September 2008 and gave oral evidence by telephone at the hearing. Dr Arya is a psychiatrist with 18 years experience. He said that one of the three main points of referral for the Mental Health Service is telephone triage by which a telephone referral can be made to the Mental Health Service by individuals including health professionals. A triage form is completed by a mental health clinician employed by the Service, recording information for the purpose of making an initial assessment and prioritising the urgency of any response. If necessary, the Service may contact the individual about whom a report is made and offer an assessment or invoke the relevant provisions of the Mental Health Act 2007. 13 Dr Arya said that while individuals may be sensitive and angry about the fact that the report has been made and/or personal information provided in the report, reports need to be as full and frank as possible so that a proper health and risk assessment can be made. Reports are made on a confidential basis. Dr Arya said that, in his opinion, if health professionals were to be aware that details of reports would be given to the subject person of their reports, the health professionals either would be reluctant to give any report at all or, more likely, would self-censor their reports. This would affect the ability of the Mental Health Service to make an accurate assessment, which would in turn impair the Service's ability to perform its function of providing health care and protection to both the subject individual and the community at large. 14 Dr Arya said he has been informed that Mr Black complained to the Health Care Complaints Commission about the health professional who made the telephone report about him. The Commission referred the complaint to the Psychologists Registration Board. Both bodies conducted a review of the relevant professional conduct and determined not to uphold the complaint. 15 In cross-examination, Dr Arya acknowledged that the word 'Confidential' does not appear on the Triage Form. However, he said the Form is an internal clinical record, which, by its nature, is confidential. He said that, essentially, this is an information gathering form. Information is gathered so that a decision can be made about whether an assessment is necessary and whether action, such as treatment, is required. Many clients/consumers about whom a report is made will be aware of the referral. There is an obligation on the referring clinician to act in good faith and ensure, so far as is possible, that the information provided is correct. If information is obtained from another source suggesting that the initial information gathered is incorrect, then that later information will be recorded and taken into account in making any clinical decision. The Health Service's Submissions 16 The Health Service confirmed that it is no longer seeking to rely on the exemption set out in clause 4 of Schedule 1. It relies on the exemptions set out in clause 13(b) and clause 16(a)(iv). In respect of clause 13(b), the Health Service relies on Dr Arya's evidence that the Triage Form contains information that would normally be given and received on a confidential basis. Those providing such information expect that it should be treated in confidence. The Health Service relies on full and frank confidential assessments and disclosures of information by health professionals in performing its functions, including in relation to the health and safety of the public. If full and frank information is not recorded, the client/consumer may not get appropriate treatment and, in some circumstances, family/friends/members of the public will not be properly protected. The disclosure of such confidential information could reasonably be expected to prejudice the future supply of such information to the Health Service, which would be contrary to the public interest. 17 With regard to clause 16, the Health Service contends that receiving reports from health professionals plays an important part in performing its statutory functions set out in section 10 of the Health Services Act 1997. If the supply of full and frank information were prejudiced, it would have a 'substantial adverse effect' on the Health Service's ability to perform its functions. This would be contrary to the public interest. 18 With regard to the discretion to release documents in the public interest notwithstanding applicable exemptions, the Health Service contends there are no strong grounds justifying overriding either of the exemptions claimed. The information sought by Mr Black is, as far as he knows, personal to him alone, and he seeks the information to test its accuracy. Public interest considerations in relation to clause 13 and clause 16 favour non-disclosure, outweighing Mr Black's personal interests, and should not be disturbed. In any event, Mr Black's goal in seeking access to the information is not a relevant consideration because release of the document is release to the world at large: Cheney v Central Sydney Area Health Service [2008] NSWADTAP 29 ('Cheney'). 19 In relation to who provided the information recorded in the Triage Form, Ms Johnson noted that Mr Black claims that this was Dr Lattimore, because it was Dr Lattimore who provided information to the Police. Ms Johnson contended that contrary to Mr Black's assumption, it could have been members of his family or the Police who provided the information to the Mental Health Service recorded in the Triage Form. Mr Black's Submissions and Evidence 20 Mr Black submitted that the Health Service's representatives have attempted to turn this matter into a pedantic legal matter and have relied on generalisations. They have not, however, been able to show that a health professional who creates a medical report about a person whom they have not met, and to whom they have not spoken or provided professional services, can legally do so without verifying the contents of the report. Mr Black contended that Dr Arya's evidence is totally irrelevant to this matter because it fails to address the particular false information contained in the Triage Form. 21 Mr Black requested that the Tribunal review the internal review officer's reliance on the clause 4 exemption in justifying her decision. The review officer made statements about him that are false and misleading and without proof of their truth. These statements were very hurtful and damaging to him and his family. The Triage Form is not stated to be confidential, which one would expect if that were the intended nature of the document. It is a medical record about him and he should be entitled to access to it so that he is informed of its contents. He has no intention of making the document known to the world at large. The part of the document that has been released to him is not filled out completely or correctly, and insulting presumptions have been made. 22 Mr Black said Dr Lattimore had been treating his ex-wife. When asked by the Mental Health Service to have an assessment, he said he would seek the advice of his solicitors. They advised him not to do undergo an assessment because he had already had a psychological assessment and report prepared in relation to his matrimonial proceedings. 23 Mr Black said he knows that it was Dr Lattimore who contacted the Police about him because he has a copy of the Computerised Operational Policing System ('COPS') record for 23 December 2005 (in relation to event no E 362291690) which names the person providing details of an "occurrence" to the Police as Dr Lattimore. (Mr Black produced a copy of the COPS entry to the Tribunal confirming this.) Mr Black said that the local Police telephoned his home (following Dr Lattimore's report to them) and asked to see him. He was not home at the time, and his son took the message. Mr Black subsequently phoned the Police and invited them around. He had an open discussion with them and volunteered to give up his firearms to them while the matter was sorted out. It took him about 18 months to get his firearms licence restored and to regain possession of his firearms. 24 Mr Black said that because he knows that the person who provided the information contained in the Triage Form was Dr Lattimore, he does not need to know the name of the "referral source" which has been exempted from the document supplied to him. But he wants access to the rest of the exempted material - he wants to know the truth about what was said about him. 25 Mr Black referred to the objects of the FOI Act, providing a legally enforceable right for members of the public to obtain access to documents concerning their personal affairs. He said the way in which the Health Service has responded to his request has been unjust, and a wasteful and destructive embarrassment for the Government, costing many thousands of dollars. He contended that the Health Service had failed to justify the claimed exemptions as required by the burden of proof imposed on it by section 61 of the FOI Act. Discussion Clause 4 While I acknowledge Mr Black's concern about the veracity of the information provided to the Health Service about him and recorded in the Triage Form, and accept that this has caused him significant hurt, the Health Service is no longer relying on the exemption set out in clause 4 of Schedule 1 and is no longer seeking to justify the claimed exemption on this basis. In its written submissions filed on 9 September 2008, the Health Service stated that it was now only seeking to justify the exemption by reason of clause 13(b) and clause 16(a)(iv) of Schedule 1. Thus, the application of clause 4 is now irrelevant to the outcome of these proceedings and I do not, therefore, propose to examine the relevant law as to how clause 4 should apply or whether there was evidence to justify relying on that exemption. Clause 13 26 The exemption conferred by clause 13(b) applies if three requirements are satisfied. First, the information must be obtained in confidence. Second, disclosure of that information could reasonably be expected to prejudice the future supply of such information to the Government or to an agency. In McGuinness v Bathurst Regional Council [2005] NSWADT 152 ('McGuinness'), at paragraph 8, Deputy President Hennessy said: "Whether or not disclosure could reasonably be expected to prejudice the future supply of such information does not necessarily depend on whether the informant herself could reasonably be expected to refuse to supply such information in the future. While that evidence is relevant, the Tribunal must answer a broader question, that is whether disclosure could reasonably be expected to prejudice the future supply of such information from a substantial number of the sources available or likely to be available to [the agency] ... ( Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 341)." 27 The third requirement is that the disclosure would, on balance, be contrary to the public interest. I note that in WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 ('the WorkCover case'), at paragraph 151, the NSW Court of Appeal, referring to the objects of the FOI Act set out in section 5(2)(a) and (b), recognised that the right to be given access to documents held by an agency is subject to such restrictions as are reasonably necessary for the proper administration of the Government: "Determining whether documents should be disclosed involves balancing those two matters. Thus, ... testing whether disclosure of documents would be contrary to the public interest requires the decision-maker 'to weigh the public interest in citizens being informed of the processes of their Government and its agencies on the one hand against the public interest in the proper working of Government and its agencies on the other': Harris v Australian Broadcasting Corporation [(1983) 78 FLR 236] (at 246)." 28 In Mr Black's case, I have examined the information contained in the Triage Form that the Health Service is claiming to be exempt. It includes the name of the person providing information to the Health Service, the name of the Health Service employee recording the information, and the reasons for the referral. I am satisfied from Dr Arya's evidence that information recorded in the Triage Form is provided to the Health Service in confidence. I do not accept Mr Black's argument that had the Triage Form been intended to be confidential, it would have marked as such. While, in many cases, whether or not a document is marked 'confidential' will be a reliable indicator of how it is intended that the document should be treated, I accept that there may be other situations where because of the nature of the information and the information gathering process, there is an expectation that the information gathered and recorded in that process should be treated as confidential. In my view, this is one such example. 29 In terms of the second requirement, I accept Dr Arya's evidence that if that information were not to be treated as confidential, this could reasonably be expected to prejudice the future supply of such information to the Health Service by health professionals and others, who would be reluctant to provide sensitive information if they knew their identity and the information provided could be disclosed to the subject person, whether for fear or harassment, intimidation or some other consequence. 30 With regard to the public interest, I also accept that the public interest in maintaining the integrity of the public health system through receipt of confidential information is of significant importance in terms of the health and safety of both individuals and the community more generally. In my view, disclosure of the information claimed to be exempt would be contrary to the public interest. 31 Thus, I am satisfied that the Health Service has established that the partial exemption claimed can be justified under clause 13(b). Clause 16 32 The Health Service also relies on the exemption set out in clause 16(a)(iv). Clause 16(a)(iv) requires first, that the disclosure of documents could reasonably be expected to have a substantial adverse effect on the effective performance by an agency of its functions, and, second, that the disclosure of the documents would, on balance, be contrary to the public interest. 33 A "substantial adverse effect" is one that is more than mere prejudice, and is sufficiently serious to cause concern to a properly informed reasonable person. The focus is on the future effect on the agency's function rather than the effect of disclosure on the matter in dispute between the parties. See McGuinness, at paragraph 21 (Hennessy DP, citing Re James and Australian National University (1984) 6 ALD 687, Re Thies and Department of Aviation (1986) 9 ALD 454, and Director General, Department of Education & Training v Mullet & anor [2002] NSWADTAP 13 (revised as at 11/6/02)); see also Gales Holdings Pty Ltd v Tweed Shire Council [2005] NSWADT 168 (Higgins JM), at paragraph 46. 34 Deciding whether or not disclosure is contrary to the public interest requires a balancing of competing interests, including the public interest in the applicant's right to know and the public interest in the proper working of the Government and its agencies: Forgie DP in Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301, at paragraphs 115 to 119, cited with approval by O'Connor DCJ, President, in Cianfrano v Director General, NSW Treasury [2005] NSWADT 7, at paragraph 83. 35 In Mr Black's case, the statutory functions of the Health Service set out in section 10 of the Health Services Act 1997 include those of protecting and maintaining the health of residents in its area, conducting and managing the health/health support services under its control, and consulting and co-operating with health professionals, individuals and organisations in its area. The Health Service contends the effect of the disclosure of the information claimed to be exempt would be sufficiently serious to case concern to a properly informed reasonable person. Release of the full document might discourage members of the public and professionals from reporting their concerns, and discourage professionals from making full and frank assessments. Dr Arya stated that the effect of this would be to impair the ability of the Health Service to perform its function of providing health care and protection to both the subject individual and the community at large. The Health Service contends that the increased risk of harm could result in difficulty in retaining staff, with its flow-on effects in terms of the ability of the Health Service to perform its functions. 36 I accept the Health Service's contention that disclosure of the full document could, for the reasons advanced, be reasonably expected to have a substantial adverse effect on the effective performance by the Health Service of its functions. I also accept that this would be contrary to the public interest. Thus, I am satisfied that the Health Service has established that the partial exemption claimed can be justified under clause 16(a)(iv). Residual Discretion 37 By virtue of section 63(2) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act') and section 25(1)(a) of the FOI Act, the Tribunal has a residual discretion to release documents otherwise found to be exempt pursuant to Schedule 1 of the FOI Act, and, in such a case, must consider whether to exercise its discretion to do so: University of NSW v McGuirk [2006] NSWSC 1362, at paragraph 102 (per Nicholas J). The principles guiding the exercise of the discretion were discussed by the President of the Tribunal, O'Connor DCJ, in Cianfrano v Director General, Premier's Department [2007] NSWADT 216. 38 The question to be considered is whether, bearing in mind the objects of the FOI Act expressed in section 5, stated above, there are strong grounds justifying the overriding of the exemptions found to apply. 39 Mr Black submitted that he has a legally enforceable right to obtain documents concerning his personal affairs. Indeed, this is stated in section 5(2)(b) of the FOI Act quoted above. However, what he does not recognise is that, like many rights, this is subject to certain restrictions "as are reasonably necessary for the proper administration of the Government". Moreover, as the Appeal Panel acknowledged in Cheney, at paragraphs 18 to 20, neither an agency nor the Tribunal can place restrictions on the use that is made of documents disclosed pursuant to the FOI Act. 40 In Mr Black's case, I am not satisfied that there are strong grounds justifying the overriding of the exemptions. In my view, both the exemptions claimed here reflect a particular need in the case of sensitive information supplied to the Health Service to impose restrictions on access to that information as reasonably necessary for the proper administration of the Government, in this instance, to enable the Health Service to perform its statutory functions. This is also reflected in the public interest, which, as I have stated above, would, in my view, be adversely affected by the disclosure of the information claimed to be exempt. 41 In conclusion, I am not satisfied that I should exercise the Tribunal's residual discretion to release the information found to be exempt. The decision under review must therefore be affirmed.

Black v Hunter New England Area Health Service

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