DEY v Southern Western Sydney Local Health District

Jurisdiction

1. The Tribunal's jurisdiction to conduct this review derives from s100 of the GIPA Act read with s28 of the CAT Act and s9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).
2. In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s63(1). The Respondent bears the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision: GIPA Act, s105(1). The Respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier's Department [2002] NSWADT 277 at [57] and [59].
3. In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: ADR Act, s63(3).

The GIPA Act

1. Section 3(1) of the GIPA Act provides: 3. Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
2. Section 3(2)(a) of the GIPA Act requires that the Act be interpreted and applied so as to further that object.
3. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information. An access applicant has a legally enforceable right to access the information requested unless there is an overriding public interest against disclosing the information: section 9(1) of the GIPA Act.
4. Section 12 of the GIPA Act sets out the general public interest consideration in favour of access to government information. Section 12(1) of the GIPA Act sets out a general public interest in favour of disclosing government information. Section 12(2) provides that the agency may take into account any other considerations in favour of disclosure which may be relevant.
5. Section 55(2) of the GIPA Act provides that personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.
6. Section 13 of the GIPA Act sets out the public interest balancing test for determining whether there is an overriding public interest against disclosure. The balance is always weighted in favour of disclosure.
7. Before deciding whether to release or withhold information, an agency must apply the public interest test and decide whether or not an overriding public interest against disclosure exists in regard to the information sought. Section 13 requires the decision maker to: 1. identify relevant public interest considerations in favour of disclosure, 2. identify relevant public interest considerations against disclosure, 3. attribute weight to each consideration for and against disclosure, and 4. determine whether the balance of the public interest lies in favour of or against disclosure of the government information.
8. The only public interest considerations against disclosure that can be considered are those identified in section 14 of the GIPA Act. This includes considerations set out in schedule 1 to the GIPA Act.
9. Considerations against disclosure will only be relevant if it is established that the disclosure of the information could reasonably be expected to have the effect outlined in the table to section 14 of the GIPA Act.
10. Relevant to these proceedings is clause 1(f) and clause 3(a), (b) and (f) of the Table at section 14, which provide: 1. Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): … (f) prejudice the effective exercise by an agency of the agency's functions … 3. Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002. … (f) expose a person to a risk of harm or of serious harassment or serious intimidation,
11. The Agency must apply the public interest test in accordance with the principles set out in section 15 of the GIPA Act: a. agencies must exercise their functions so as to promote the object of this Act. b. agencies must have regard to any relevant guidelines issued by the Information Commissioner. c. the fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. d. the fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. e. In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
12. Pursuant to section 105 of the GIPA Act the burden of establishing that the decision is justified lies on the Respondent. 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].

"Could reasonably be expected…"

1. The words "could reasonably be expected to" have been held to require "something which is more than a mere risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived": Leech v Sydney Water Corporation [2010] NSWADT 198 at [28], adopted in Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 at [41]-[42] and cited in Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 at [28]. While it must be a "real" risk, the chance of it materialising need not be more probable than not: Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36] and the cases there cited. The phrase "'simply calls for an "objective assessment', on the evidence before the Tribunal, as to whether the claimed effects could be expected to arise, from the standpoint of a reasonable administrator. Ultimately, it is of course a question of fact": Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45].
2. In Attorney General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at 190, Bowen CJ and Beaumont JJ interpreted the term in the following way: In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require 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. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like...
3. The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Sheppard J at 112. 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].

Ex tempore decision and reasons (edited for clarity)

1. I agree with the respondent's characterisation of the public interest considerations in favour of disclosure pursuant to s12 of the GIPA Act, being the general public interest in favour of disclosing government information, and including especially that disclosure may provide information to the applicant to assist in identifying the need to seek access to appropriate health services. I place great weight on that public interest consideration in favour of disclosure in the circumstances.
2. I agree with the respondent's characterisation of the personal interest factors pursuant to s55(2) of the GIPA Act, include the applicant's general curiosity, the applicant's need to know whether she has been acting bizarrely so she can adjust her behaviour, and I afford that factor significant weight in circumstances where she otherwise believes that she does not engage in abusive behaviour.
3. I agree with the respondent's assessment of the applicant's legitimate and real fear that her ex-husband or his associates have located her, to at this time be afforded little weight, as it has been disclosed to her that the referrer is not her husband and she now believes the referrer to be Ms Prendergast of the Wingecarribee Shire Council, as the only individual she believes to have had access to all of the relevant information included in the report by the referrer and to have been in contact with her. On that basis, the applicant's fear in relation to ex-husband I think has some weight, but it is of little weight.
4. I also consider a personal factor in favour of disclosure is the applicant's concern that her medical records have been accessed or that personal circumstances are known and being shared by unknown persons as a result of the information relayed to her as having been included by the referrer to the Mental Health infoline. The information that the respondent has identified to the applicant as having been disclosed by the referrer, causes the applicant some personal concern for what information is being spread about her and where the source of that location is. I consider that to be a personal factor with some weight, but not significant weight.
5. With respect to the public interest considerations against disclosure raised by the respondent including clause 1(f) of the table at s 14, "prejudicing the effect of exercise of an agency's functions". I agree with the respondent that disclosure of an individual's personal information reported to the Mental Health Line could prejudice the effect of exercise of the agency's functions. At 4.19 of the respondent's reasons for its reviewable decision, it says that: "It is possible that on occasion, the service may be misused for reporting of false information about a person. However, there are policies and guidelines in place to provide the triaging clinician with guidance on assessing the referral to ensure this does not occur."
6. Being subjected to a mental health check is an intrusion into personal privacy. The agency's functions are potentially open to abuse where individuals can use its resources to make a complaint or make a referral or to seek a referral for an individual, without independent checks and balances being made. Here, on the evidence, none of the referrer's concerns or complaints were independently verified to have actually occurred. Although I do take into account the uncontested evidence relating to the applicant's medical conditions and general behavioural differences, there is no specific evidence of any of the concerns raised by the referrer having been looked into. I therefore afford this consideration little weight.
7. In relation to public interest considerations against disclosure at clause 3(a) and 3(b) of the Table to s14 of the GIPA Act, this is where I differ from the respondent's analysis. Clause 3(a) refers to the disclosure of personal information and clause 3(b) talks about contravening an information privacy protection principle. In my view, this needs to be about an individual whose identity is apparent from the information sought to be disclosed. In my view, on the material, some of the redacted information falls into this category and a lot does not. That is because the redactions involve any and all references to the Applicant's neighbours. On the evidence of the applicant, she says that she is on good terms with all of her neighbours and she refers to her neighbours being at least three separate individuals. There is insufficient evidence from the respondent as to why referring generally to "neighbours" in the material, would identify any specific individual whose identity is apparent.
8. In relation to clause 3(f) of the Table to s14 of the GIPA Act, "exposing a person to a risk of harm or of serious harassment or serious intimidation", I take into account the authority in AEZ v Commissioner for Police [2013] NSWADT 90, where the meaning of this provision is first discussed. At [85], it is said that: "In the context of s 14 of the GIPA Act, I am inclined to the view the meaning of harm should be confined to a real and substantial detrimental effect on a person rather than on their business interests."
9. Harm is thereby a real and substantial detrimental effect on a person. A detrimental effect may be to a person's physical, psychological or emotional wellbeing. At [89]: All of the definitions of harassment require a consideration of how the conduct complained of is experienced by the person alleged to be harassed and are concerned with whether that person was offended, worried, tormented, distressed or harassed by the conduct. Importantly, and I place emphasis on this, in the context of the GIPA Act, where the decision maker has to be satisfied that if the information is disclosed, it could reasonably be expected that the disclosure would expose a person to serious harassment. The assessment of the impact of the conduct on the individual concerned is an objective one although particular circumstances and vulnerabilities relating to that individual may be taken into account when making that assessment.
10. There is noted by the referrer, a concern about an increase in inappropriate and aggressive verbal behaviours by the Applicant, which they are attempting to stop by making this report to the Mental Health Line. The purpose of the complaint was so the applicant could be referred for help so the inappropriate behaviours would stop.
11. Taking the referrer's complaint at face value, on the evidence, there is no fear that the disclosure of the information that I consider should be released, would expose an individual to any serious harassment or intimidation. There is no evidence to suggest that the Applicant's verbal or behavioural conduct subject to the complaint would increase or accelerate as a result of the disclosure, and the applicant is either incapable or limited in the potential for any physical harassment or physical intimidation by reason of her disabilities. On the evidence, the extent of action threatened by the applicant if she were to find out the identity of the referrer is to apply for an AVO against that person. In the circumstances, I place little weight on the consideration against disclosure at clause 3(f) of the table to s14 of the GIPA Act.
12. In relation to third party objections, I take into account the referrer's concern to avoid further confrontation but I believe this will be allayed by the restriction in withholding the referrer's personal information.
13. In my view the public interest considerations in favour of disclosure, in relation to the material I have identified, outweigh the public interest considerations against disclosure and so I order those redactions identified to the Respondent by me on 6 September 2017, be released to the Applicant. Specifically those redacted parts of the document referring generally to a class of people, being "neighbours", by which an individual's identity is not apparent, should be unredacted and should be released to the applicant.

ORDERS 1. The reviewable decision is set aside; 2. In substitution, the Tribunal orders the Respondent to release the redacted information identified by the Tribunal to the Applicant within 14 days. 3. The Applicant's name should be anonymised pursuant to s64(1)(a) of the CAT Act; 4. All evidence and material filed with the Tribunal concerning the Applicant's personal and medical information should be restricted from release or publication pursuant to s64(1)(c) of the CAT Act.

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: 18 October 2017