Black v Hunter New England Local Health District

NCAT Administrative and Equal Opportunity|2024-09-25

Background

These proceedings concern the Report that is held by the respondent.
The applicant has sought access to the Report in various ways and by various means since 2007. This has included applications under the GIPA Act (and the Freedom of Information Act 1989, the PPIP Act and HRIP Act before that). The history since 2011 was outlined in the respondent's submissions as follows: 14. In 2011, the applicant made an application under the GIPA Act for access to the Report. The respondent determined there was an overriding public interest against disclosure of information contained in the report and, again, refused access to the report in its entirety. 15. The applicant sought administrative review of the respondent's decision by the Administrative Decisions Tribunal. In Black v Hunter New England Local Health District […] (No. 2) [2012] NSWADT 235, the Tribunal set aside the decision of the agency with respect to the Report and, in substitution, determined to: a. grant access, in part, to a copy of the report, containing personal information and health information about the applicant; and b. refuse access to the remaining information in the report. 16. The respondent subsequently provided the applicant with a redacted copy of the Report in accordance with the Tribunal's orders. 17. The applicant made a further application for the Report under the GIPA Act in March 2020. The respondent determined to refuse to deal with this application in reliance on s. 60(1)(b) of the GIPA Act, on the grounds that the respondent had already decided a previous application for the information made by the applicant, and there were no reasonable grounds for believing that the respondent would make a different decision on the application. 18. The respondent's decision to refuse to deal with the applicant's access application was subsequently affirmed by the Tribunal on administrative review: Black v Hunter New England Local Health District (No 3) [2020] NSWCATAD 280. 19. The Tribunal's decision was then affirmed on appeal: Black v Hunter New England Local Health District [2021] NSWCATAP 105.

Material before the Tribunal

The applicant provided letters, copies of other correspondence and written submissions to the respondent and Tribunal.
The respondent provided a bundle of material, the Report filed on a confidential basis, and written submissions to the applicant and Tribunal.
Both parties made oral submissions at the hearing.
No witnesses were required for cross examination.

The applicant's case

The applicant's access application includes the definition of "health information" in the HRIP Act, the purpose of the HRIP Act in s 3(1)(b) "enabling individuals to gain access to their health information", the object of the HRIP Act in 3(2)(b) "to enhance the ability of individuals to be informed about their health care", and HPP 7 to submit that: 1. The redacted information in the Report contains opinions about him, that were included by the author of the Report, 2. The applicant has a legal right to the information in the Report and the respondent "must" provide him with access to it, 3. The applicant requires a reasonable opportunity to inspect and take notes from the information pursuant to s 28(1)(b) of the HRIP Act.
In relation to the GIPA Act, the applicant submits: Numerous other Acts have been used to deny my simple request. GIPA Act and HRIP Act are the relevant acts applicable to my simple request. … Again, my simple application to read the report, which I have an undeniable legal right to do so, has been made into a complicated example of a waste of tax [payer] funds, resources and time, which is completely against the objectives of the GIPAA 3(2). … Valid reasons for disclosure completely out weigh reasons for non disclosure but this fact is always denied and never fairly applied to my requests. Reasons for NON disclosure are very limited and specific, reasons for disclosure are not. Refer GIPA Schedule.
In relation to the previous decisions (including Tribunal decisions) about access, the applicant submits: Its another example of how the crown solicitors, agencies, tribunals, commissions etc. have always blatantly and unjustly been hell bent on denying a member of the public their legal rights and justice to access [personal] information. … Re Higgins decision 2010 this decision is false and misleading prior to the release of a [heavily] redacted copy of the report, which gave me the chance to read the released information, I did not have any knowledge of the contents of the report which Higgins claimed I did. Because the redacted copy of the report was released under appeal, I could not challenge his decision. … It is fair to claim that different decisions could have been reached if my various applications received full, fair and proper evaluation based on my legal rights at a number of hearings before various commissions. I had to deal with solicitors and barristers from the Crown Solicitors Office. … This meant I faced an impossible foe who I had no chance to challenge or debate.
The applicant expressed the reason for his interest in the Report and not having full access to it in the following terms: It is a FACT, that I have never met or spoken to the Psychiatrist or Psychologist mentioned … and I'm not sure who the GP's would be. What LEGAL RIGHT did [the author of the Report] have to consult with these people and use their comments in the report which is a PLANNED and DELIBERATE PSYCHOLOGICAL ABUSE of me to support her then client. Her actions were ILLEGAL. My understanding is that there has never been a similar matter ever dealt with by any tribunal, commission or agency, therefore the way this matter has been handled is incorrect and has set a precedent which is false and incorrect. … It is impossible to fully explain the detrimental effect the publishing of this report has had on my life and my family, since December 2005. It continues to do so, why because my children have decided that my x and I should not be in the same room or family events, and preference is given to her.

The respondent's case

The respondent submitted that it is lawfully authorised or required not to comply with HPP 7(1) in relation to the information sought by the applicant because HPP 7(2), together with s 22 of the HRIP Act, operate so that the conditions or limitations for accessing information under the GIPA Act apply. Specifically, the respondent submits that in this case: 1. The respondent was entitled to refuse to deal with the applicant's request for a complete version of the Report in reliance on s 60(1)(b) of the GIPA Act, as there are no reasonable grounds for believing that the respondent would make a different decision on the applicant's application for access to the Report under the HRIP Act. Here the respondent relied on its previous decision to refuse to deal with the applicant's application for access to the unredacted Report under s 60(1)(b) of the GIPA Act, that was affirmed by the Tribunal as the correct and preferable decision in Black v Hunter New England Local Health District (No 3) [2020] NSWCATAD 280 (Black (No 3)). The Tribunal's decision in Black (No 3) was affirmed on appeal: Black v Hunter New England Local Health District [2021] NSWCATAP 105. 2. In addition, or in the alternative, there is an overriding public interest consideration against disclosure under cll 1(d), 3(a) and 3(b) of the Table to s 14 of the GIPA Act. Here the respondent replied upon the decision in Black v Hunter New England Local Health District (No 2) [2012] NSWADT 235 (Black (No 2)) that allowed the applicant to have access to personal information and health information about the applicant in the Report but refused access to the remainder of the information in the Report on the basis of cll 1(d), 3(a) and 3(b) of the Table to s 14 of the GIPA Act.

Consideration

The Tribunal was able to review and consider an unredacted version of the Report the subject of the applicant's access application.
The document to which the applicant seeks access is a 9-page report that was received by the respondent on or around 30 December 2005. The Report concerns the applicant and was prepared by the treating psychologist of the applicant's former wife. The name of the treating psychologist of the applicant's former wife was subject to a suppression order by the Tribunal in Black (No 3).

The effect of the GIPA Act on an application under the HRIP Act

In Commissioner of Police, NSW Police Force v Ritson [2023] NSWCA 300 (Ritson) the Court of Appeal confirmed that an agency's ability to refuse to deal with an access application for specified reasons under s 60 of the GIPA Act constitutes a "condition or limitation" on access to that information for the purposes of s 20(5) of the PPIP Act (see Ritson at [66]). The Court of Appeal in Ritson concluded (at [71]): For these reasons, the provision of access to documents pursuant to a request under s 14 of the Privacy Act should be read down so as to exclude the need to process an application in circumstances where s 60(1)(a), subject to subs (4), is engaged. A similar result may be reached by a process of implication from the terms of the Privacy Act, by application of s 25(b).
The respondent submitted that: 41. Applying the Court of Appeal's analysis in Ritson, the Tribunal may be satisfied in this case that: a. The provision of access to health information pursuant to a request under HPP 7(1) of the HRIP Act should be read down so as to exclude the need to process an application for information in circumstances where s 60(1)(b) of the GIPA Act is engaged; and b. That the same result is reached by relying on HPP 7(2), as the respondent is lawfully authorised to not deal with the request. 42. It is submitted that the Tribunal in this case may rely on the conclusions reached by the Tribunal previously in Black v Hunter New England Local Health District (No 3) to satisfy itself that the conditions for refusing to deal with the applicant's application are satisfied. Relevantly, in its 2020 decision the Tribunal found that: a. The information to which access is sought (that is, the Report) is the same information as was sought by the applicant's 2011 application. That application was determined by the Tribunal which decision, by application of s. 66 of the Administrative Decisions Review Act 1997, was taken to be a decision of the respondent (at [9] and [11]); and b. There were no reasonable grounds for believing that the agency would make a different decision on the later access application (at [17]-[18]).
The Tribunal decisions in Black (No 2) and Black (No 3) involved consideration of access applications of the applicant to the unredacted Report under the GIPA Act. Here the applicant requested the respondent to provide access to the unredacted Report under the HRIP Act, for the purposes of viewing and taking notes, in accordance with HPP 7. In the current proceedings, the means through which access has been sought and type of access stipulated has changed. However, the information sought and the reasons for the application are the same. Contrary to the applicant's submissions, he does not have an "undeniable legal right" to read the unredacted Report - this depends on the requirements and application of the relevant laws.
After considering the material before the Tribunal, the relevant legislative provisions, the Court of Appeal's decision in Ritson, and the Tribunal's decisions in Black (No 2) and Black (No 3), I am satisfied that the respondent's submissions at [55] are correct.
This is because there has been no change in circumstances since the decision in Black (No 3) that would cause the Tribunal to reach a different conclusion regarding the outcome of the applicant's application to access an unredacted copy of the Report on this occasion. The applicant is unable to subvert the outcome of the previous applications under the GIPA Act by an application under the HRIP Act. Such an outcome would undermine the intention of Parliament for the "harmonious operation" of the PPIP Act and the GIPA Act as part of the overall legislative scheme regarding information held by the government: Ritson at [52].

Refusal to deal with the application under s 60(1)(b) of the GIPA Act

Section 60(1)(b) was considered by the Tribunal in Klaric v Commissioner of Police [2020] NSWCATAD 47 (Klaric). The Tribunal described the requirements of the section in the following terms (at [30]): There are two components to s 60(1)(b) of the GIPA Act. The first is whether the agency has already decided a previous application for the information concerned in the present application, or information that is substantially the same as that information; and secondly, whether there are reasonable grounds for believing that the agency would make a different decision on the application.
The Tribunal's decision in Klaric was upheld by the Appeal Panel in Klaric v Commissioner of Police [2020] NSWCATAP 153, which aptly stated at [31]-[32]: When reviewing a decision under s 60(1)(b), the Tribunal is not required to assess the merits of the previous decision. In relation to Mr Klaric's application, the Tribunal was not required to review the Commissioner's previous decision that he did not hold certain information. Nor was the Tribunal required to review the truth or falsity of what is written in the information provided by the Commissioner. Rather, the Tribunal is required to be satisfied that there are no reasonable grounds for believing that the agency would make a different decision on the application. The Tribunal understood the meaning of s 60 and correctly applied it to the facts of this case. It would have been an error for the Tribunal to embark on a re-hearing of the merits of Mr Klaric's previous applications.
It would be erroneous for the Tribunal to embark on a re-hearing of the merits of the applicant's previous applications for access to the Report.
The Tribunal relies upon the conclusions reached by the Tribunal previously in Black (No 3) in satisfying itself that the conditions for refusing to deal with the applicant's application under 60(1)(b) of the GIPA Act are satisfied.
Turning to the two components of s 60(1)(b) of the GIPA Act, the Tribunal is satisfied that: 1. the agency has already decided a previous application under the GIPA Act for the information concerned in the present application, being an unredacted copy of the Report; and 2. there are no reasonable grounds for believing that the agency would make a different decision on the application.
The respondent is not required deal with an application for access to health information pursuant to the applicant's request under HPP 7(1) of the HRIP Act in circumstances where s 60(1)(b) of the GIPA Act is engaged, by virtue of HPP 7(2). Such an outcome is also consistent with s 5 of the PPIP Act and ss 22(1)-(3) of the HRIP Act.
As a result, I find that the conduct of the respondent that was the subject of the internal review application was not conduct that contravened HPP 7 of the HRIP Act.

Previous Tribunal decisions

The applicant and the respondent have each referred to earlier decisions of the Tribunal involving the Report. The applicant criticised earlier decisions of the Tribunal, suggesting that they have been wrongly decided. The respondent referred to the previous Tribunal decisions, in particular Black (No 2) and Black (No 3) in support of its position.
The ADT in MG v Department of Education and Training [2004] NSWADT 137 considered the effect of earlier decisions of the Tribunal at [35]-[36]: MG's arguments are dependent upon the view that two earlier decisions of the Tribunal, Y's case and BQ, should not be followed. While I agree that there is no obligation to follow earlier decisions, the Tribunal should be slow to reopen rulings of an earlier Tribunal. This is particularly so where earlier rulings were made following detailed submissions, including submissions from the Privacy Commissioner, as was the case in both Y's case and BQ. In BY v Director General, Attorney General's Department [2002] NSWADT 79, President O'Connor dealt with the question of precedent in the Tribunal as follows: "Threshold Issue: Reopening Prior, Considered Tribunal Rulings 21 The threshold question that arises before considering any further these contentions is whether the present Tribunal should revisit the prior considered rulings. Counsel for the Administering Minister acknowledged the importance of different panels of a Division of the Tribunal being seen to deal consistently with the same or like questions. He acknowledged that the view might be taken that it would not be appropriate to revisit the previous, considered rulings. 22 In my view, a later Tribunal should exercise caution in reopening prior, considered rulings of an earlier Tribunal. Ordinarily a later Tribunal should adopt the ruling of the earlier Tribunal; and leave these questions to be finally determined within the Tribunal at the Appeal Panel level. Notably in the earlier cases where the Administering Minister's submissions have been rejected, there was no appeal; but that may have been, as counsel for the Administering Minister suggested at hearing, because ultimately following full substantive consideration the determinations in issue were affirmed. 23 Normally a prior considered Tribunal ruling should only be reopened if a new, significant argument is raised before the later Tribunal. This is not such a case. Nonetheless, I consider that some discretion should be allowed to a Divisional Head sitting at first instance to revisit prior rulings, where the Divisional Head has doubts about the prior rulings or the questions involved are of great significance, such as ones raising important issues of power or jurisdiction. (Such a ruling may itself be appealed to the Appeal Panel. In that event, the Divisional Head, who would customarily preside, is ineligible. Where there is an appeal in relation to such a ruling, the Appeal Panel should, in my view, give consideration, if it regards the ruling as doubtful, to referring the controversial question to the Supreme Court for determination.)"
As the Appeal Panel stated in Independent Liquor and Gaming Authority v D & D Natural Health Pty Ltd [2021] NSWCATAP 170 at [51] (cited with approval in Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 at [98]): The Tribunal is not bound by the doctrine of precedent to follow earlier decisions. However, in the context of the legislation governing one of the predecessor Tribunal's to NCAT - the Administrative Decisions Tribunal - it was said that the Tribunal should ordinarily follow decisions of the Appeal Panel and decisions of the Tribunal as constituted by the President or a Deputy President, unless they are clearly wrong: Rittau v Commissioner of Police [2000] NSWADT 186 at [60]. We agree, however no such qualification has been expressed in relation to first instance decisions by Tribunal Members other than the President or a Deputy President. It follows that the Tribunal did not make a legal error by failing to follow the decision in MJ Trading v Independent Liquor and Gaming Authority [2018] NSWCATAD 260.
This Tribunal is not bound to follow previous Tribunal decisions, although the Tribunal should ordinarily follow decisions of the Appeal Panel and decisions of the Tribunal as constituted by the President or a Deputy President, unless they are clearly wrong. Black (No 2) was a decision of the then Deputy President of the ADT. The decision in Black (No 3) was upheld by the Appeal Panel in Black v Hunter New England Local Health District [2021] NSWCATAP 105. No identifiable error or new, significant arguments have been raised by the applicant which would cause the Tribunal to have concerns about the previous Tribunal decisions in either Black (No 2) or Black (No 3). Broad assertions from the applicant that a previous decision is "false and misleading" because the Tribunal assumed he had knowledge of what was in the Report, and that the prior decisions were not a "full, fair and proper" evaluation based on the applicant's legal rights, are insufficient.

Public interest considerations balancing test

The respondent also relied upon the public interest considerations against disclosure in cll 1(d), 3(a) and 3(b) of the Table to section 14 of the GIPA Act as grounds for refusing access to the information, namely: 1. Clause 1(d) - that disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, 2. Clause 3(a) - that disclosure of the information could reasonably be expected to reveal an individual's personal information, and 3. Clause 3(b) - that disclosure of the information could reasonably be expected to contravene a HPP under the HRIP Act.
Following my decision at [62]-[65] above it is not necessary to consider this issue further.
However, even if I was unable to be satisfied that the respondent's conduct did not contravene HPP 7 in reliance on s 60(1)(b) of the GIPA Act, I am also satisfied, consistent with the assessment of the Tribunal in Black (No 2), that the public interest considerations against disclosure in cll 1(d), 3(a) and 3(b) of the Table to section 14 of the GIPA Act outweigh the public interest considerations in favour of disclosure, thereby reaching the same outcome.

Conclusion

I am satisfied that the respondent was entitled to refuse to deal with the applicant's request to access a complete version of the Report in reliance on s 60(1)(b) of the GIPA Act.
It follows that I am satisfied that the conduct of the respondent has not contravened HPP 7.
The appropriate order is to take no action in regard to the matter raised in the applicant's administrative review application.

Orders 1. Pursuant to section 55(2) of the Privacy and Personal Information Protection Act 1998, the Tribunal determines to take no action with respect to the matter. 2. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, other than to the Tribunal and respondent, publication, broadcast, or disclosure of the confidential material filed by the respondent in these proceedings is prohibited.

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: 11 December 2024

The role of the Tribunal

The Tribunal has jurisdiction to review the decision or "conduct" of an "administrator" (the respondent), if "enabling legislation", (in this case the PPIP Act), provides that applications may be made to it for a review of the decision or conduct: ss 4(1), 7(1) and (2), 8 and 9 of the Administrative Decisions Review Act 1997 (ADR Act). In determining an application for review, the Tribunal is to decide what the correct and preferable decision or conduct is having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: s 63 of the ADR Act. For the purpose of reviewing the decision or conduct, the Tribunal may exercise all functions conferred or imposed by any relevant legislation on the administrator: s 63(2) ADR Act.
The former NSW Administrative Decisions Tribunal (ADT) in GA v Commissioner of Police, NSW Police [2004] NSWADT 254 articulated the preconditions for the exercise of the Tribunal's jurisdiction under s 55 (at [4]): There are three pre-conditions to the Tribunal's jurisdiction under s 55: - The person must have made an application for internal review under s 53; - The person must be dissatisfied with the findings of the review or the action taken by the public sector agency in relation to the application; and - The person must be asking the Tribunal to review the conduct that was the subject of the application.
The scope of the Tribunal's review is limited by the applicant's application for internal review and its scope: see OD v Department of Education and Training (GD) [2005] NSWADTAP 74 at [13]-[14].
As the Appeal Panel of the former ADT stated in KP v Narrandera Shire Council (GD) [2011] NSWADTAP 15, at [23]-[24]: The Tribunal may decide to take no action 'on reviewing the conduct'. It is uncontroversial that the Tribunal can decide to take no action whether or not it finds that the alleged conduct contravenes an Information Protection Principle (or a privacy code of practice or discloses personal information kept in a public register): AW v Vice Chancellor, University of Newcastle [2008] NSWADT 86; NW v New South Wales Fire Brigades (No 2) [2006] NSWADT 61 at [24]. But it must first make a finding. Section 55 does not give the Tribunal a discretion to review or not to review the conduct that is the subject of the application. … Section 55(2) does not give the Tribunal power 'not to carry out . . . a review'. In our view, s 55 requires the Tribunal to review the conduct and make a finding as to whether or not there has been a contravention of an information protection principle (or other contravention or disclosure as defined in s 52(1)) before deciding to take no action.

At a glance

Court

Decision date

Source

Judgment (12 paragraphs)

Parties

Cases Cited (9)