Dezfouli v Justice Health & Forensic Mental Health Network - [2021] NSWCATAD 189 - NSWCATAD 2021 case summary — Zoe

NSWNSWCATAD

Dezfouli v Justice Health & Forensic Mental Health Network

[2021] NSWCATAD 189

NCAT Administrative and Equal Opportunity|2021-05-17|Before: Health J

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2021-05-17

Before

Health J

Source

Original judgment source is linked above.

Judgment (13 paragraphs)

[1]

REASONS FOR DECISION

Saeed Dezfouli is a forensic patient detained at the Forensic Hospital at Malabar which is administered by the respondent, Justice Health & Forensic Mental Health Network (Justice Health). Mr Dezfouli made an application under the Government Information (Public Access) Act 2009 (the GIPA Act) seeking access to his medical records for the period 1 January 2017 to the date of his application. I note that the application was not treated initially as an application under the GIPA Act and there was therefore some delay in responding to the request.
On 14 September 2020 Justice Health made a decision releasing to Mr Dezfouli some 3,243 pages of his health records for the period 26 January 2019 to 24 April 2020 (the date of his access request) with some redactions. The information redacted related to personal information of others and Mr Dezfouli does not seek to challenge those redactions in this application. The information was released as the documents had already been produced in response to a subpoena in the District Court in other proceedings involving Mr Dezfouli.
Justice Health identified a further 665 pages which fell within the scope of the request relating to the period 1 January 2017 to 25 January 2019 and refused to deal with the application in relation to this information on two bases: 1. under s 60(1)(a) of the GIPA Act on the basis that it was an unreasonable and substantial diversion of the agency's resources; and 2. under s 60(1)(b1) of the GIPA Act as the applicant had previously been provided with access to the information concerned under the GIPA Act.
It is this part of the decision which Mr Dezfouli asks be administratively reviewed by the Tribunal. Both parties appeared at a hearing on 17 May 2021 and Justice Health provided written submissions in addition to its oral submissions made at the hearing. The Tribunal also had received statements from Kevin Baron, Deputy Director of Nursing and Services, Forensic Hospital and Natalie Szulgit, Legal Advisor, Justice Health. Ms Szulgit gave evidence at the hearing.

[2]

The legal principles

The objects of the GIPA Act as set out in s 3 are to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.
Sub-section 3(2) provides that it is the intention of Parliament that the GIPA Act be interpreted and applied so as to further the objects of the Act and that the discretions conferred by the Act are to be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
A person aggrieved by a "reviewable decision" may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (ADR Act) of that decision. A decision to refuse to deal with an access application is a reviewable decision for the purposes of the GIPA Act (s 80 (c)). The Tribunal's function under s 63 of the ADR Act is to determine, based on the material before it, what is the correct and preferable decision, and may affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit it to the agency for further determination.
The burden of establishing that a decision made under the GIPA Act is justified lies on the agency, in this case Justice Health.
In accordance with s 60 of the GIPA Act an agency may decide to refuse to deal with an access application on a number of grounds. Sub-section 60(1)(a) is relevant to this application and provides that an agency may refuse to deal with an access application where dealing with the application would require an unreasonable and substantial diversion of the agency's resources. In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is not required to have regard to any extension by agreement between the applicant and the agency of the period within which the application is required to be decided (s 60(2)). Ordinarily, an agency must decide an access application within 20 working days after it receives it (s 57(1)).
Sub-section s 60(1)(b1) of the GIPA Act is also relevant and gives an agency the power to refuse to deal with an access information if the applicant had previously been provided with access to the information under the GIPA Act. Whether a person has previously been provided with the information under the GIPA Act (or its predecessor, the Freedom of Information Act 1989) is a question of fact and a condition precedent to the exercise of the discretion to refuse to deal with the application.
In Commissioner of Police v Danis [2017] NSWCATAP 7 the Appeal Panel said at [43]: Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient of (sic) deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications (see (a)) or by having to reprocess applications that have already received attention either through previous determinations (the focus of (b) and (b1)) … Read together it can be seen that the grounds listed in s 60(1) have as an aim the avoidance of wasteful use of administrative resources (see especially (a)) or situations where the applicant has already obtained a practical result (b), (b1) …
The Appeal Panel went on to say that when reviewing a decision based on s 60(1) the Tribunal "should examine the matter, at least in part, by reference to systemic considerations such as the role provisions of this kind play in promoting the efficient administration of the GIPA Act, and the avoidance of wasteful deployment of limited resources" (at [49]).
In relation to whether dealing with the application would require an unreasonable and substantial diversion of an agency's resources, ss 60(3A) and (3B) provide: (3A) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency may, without limitation, take into account the following considerations - (a) the estimated volume of information involved in the request, (b) the agency's size and resources, (c) the decision period under section 57. (3B) Any consideration under subsection (3A) must, on balance, outweigh - (a) the general public interest in favour of the disclosure of government information, and (b) the demonstrable importance of the information to the applicant, including whether the information - (i) is personal information that relates to the applicant, or (ii) could assist the applicant in exercising any rights under any Act or law.
The matters which may be considered under s 60(3A) are non-exhaustive. The factors in s 60(3A) and (3B) draw on two previous cases which dealt with the factors to be considered in an assessment of whether an application would require an unreasonable and substantial diversion of an agency's resources.
In Cianfrano v Director General, Premier's Department [2006] NSWADT 137 at [62] O'Connor DCJ stated that the matters relevant to such an assessment include: (a) the terms of the request, especially whether it is of a global kind or generally expressed request; … (b) the demonstrable importance of the document or documents to the applicant may be a factor in determining what in the particular case is a reasonable time and a reasonable effort … (c) more generally whether the request is a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications (d) the agency estimate as [to] the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost (e) the reasonableness or otherwise of the agency's initial assessment and whether the applicant has taken a co-operative approach in redrawing the boundaries of the application (f) the time lines binding on the agency … (g) the indication that is found in the Annual Report reporting requirements suggesting that requests involving more than 40 hours' work are seen as lying at the upper end of the range; suggesting at least that the view of government administrators is that a processing time that goes well beyond 40 hours may properly raise concerns (h) regard needs to be had to the degree of certainty that can be attached to the estimate that is made as to documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made (i) possibly, the extent to which the applicant is a repeat applicant to the agency in respect of applications of the same kind, or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application may have been adequately met by those previous applications.
That case dealt with the former freedom of information legislation applicable in NSW prior to the introduction of the GIPA Act. In Colefax v Department of Education and Communities (No. 2) [2013] NSWADT 130 the Tribunal confirmed that these matters remain relevant to an assessment under s 60(1)(a) of the GIPA Act, although it also found that the changed context of the GIPA Act, which requires that discretions under it are to be exercised so as to enhance its objects (s 3(2)(b)), could result in "differing weight and importance being accorded to the Cianfrano factors" (at [26]). Colefax also identified that the fact that an access applicant is seeking their personal information is a relevant factor in the determination (at [27]).
The principles espoused in Cianfrano and Colefax remain relevant to a consideration of whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources (Ruyters v Commissioner of Police [2020] NSWCATAD 223 at [18]).
As I stated in Ruyters, the tasks to be undertaken in considering whether dealing with an application would require an unreasonable and substantial diversion of the agency's resources are to identify and take into account any matters falling within s 60(3A) and then to determine whether, on balance, those matters outweigh the factors set out in s 60(3B). It is only where the matters in s 60(3A) outweigh those in s 60(3B) that an agency can refuse to deal with an access application on the basis that it would require an unreasonable and substantial diversion of an agency's resources [at [24]).

[3]

Subsection 60(1)(1b)

Before turning to s 60(1)(a) and the factors in ss 60(3A) and (3B), it is convenient to deal with the ground in s 60(1)(1b).
In the decision that was made on 14 September 2020 the reasons for refusing to provide access to the records for the period 1 January 2017 to 25 January 2019 in accordance with ss 60(1)(a) and (1)(1b) were: You have had the opportunity to access this information during your monthly meetings under the GIPA Agreement (Attachment 4). Access to your medical record from 26 January 2019 to 24 April 2020 spans over eight volumes and totals 2578 pages. To reproduce your previous records from 1 January 2017 to 25 January 2019 would require an unreasonable and substantial diversion of resources.
The reasons for the decision are not particularly clear in relation to s 60(1)(1b) but it appears that the first sentence of the quoted paragraph relates. As noted above, s 60(1)(1b) gives an agency the power to refuse to deal with an access information if the applicant had previously been provided with access to the information under the GIPA Act. There is no information within the decision to indicate that Mr Dezfouli has previously been provided with the requested information. At the hearing the representative for Justice Health said that at some stage Mr Dezfouli may have been provided with this material, but again no evidence was provided to establish that he had in fact been provided with the information now sought.
Mr Dezfouli stated at the hearing that he had been given access to progressive notes up to June 2017 but has not had access to his health records since that time.
In the absence of any evidence that Mr Dezfouli has been provided with the information sought in this application, that is, all his health records from 1 January 2017 to 25 January 2019, reliance on s 60(1)(1b) by Justice Health as a reason for refusing access cannot be maintained.
In her statement, Ms Szulgit, who was the officer who made the 14 September 2020 decision, states that during the decision-making process she concluded that Mr Dezfouli had had the opportunity to access his information for the period 1 January 2017 to 25 January 2019 during monthly meetings under the "GIPA Agreement". She stated that she considered that form of access to be sufficient to satisfy s 59(1)(b) of the GIPA Act.
Under s 58 of the GIPA Act, an agency can decide an access application by deciding that the information is already available to the applicant. Subsection 59(1)(b) provides that an agency can decide that information is already available to an applicant if the information is "available to the applicant from, or for inspection at, the agency free of charge in accordance with this Act or the agency's policies and practices". While I note that this provision was not the basis upon which the decision to refuse access was in fact made, it was raised at the hearing as an alternate basis for the decision.
A copy of the "GIPA Agreement" referred to by Ms Szulgit was attached to the decision. It is an undated document titled Framework for Management of Complaints and FoI Requests Saeed Dezfouli which "outlines the principles and a framework for the management of complaints and requests under Freedom of Information (FoI) from Mr Saeed Dezfouli managed in the Forensic Hospital". The framework envisages that Mr Dezfouli will be provided with access to his medical records through monthly meetings and that these meetings will continue to be offered to him whether or not he chooses to attend. The document states that, if a meeting is offered, Justice Health can refuse any FoI application from Mr Dezfouli on the basis of s 25(1)(b1) of the FoI Act. Subsection 25(1)(b1) of the Freedom of Information Act 1989 was in identical terms as the current s 59(1)(b) of the GIPA Act. The document goes on to state that the ability to refuse access to documents is not affected by Mr Dezfouli declining to attend a meeting.
The framework was clearly devised and entered into prior to the GIPA Act coming into effect in 2010. At the hearing Mr Dezfouli stated that the monthly meetings ceased in July 2017. Ms Szulgit stated that she had been informed that the meetings occurred up until March 2019.
No evidence has been provided that the GIPA Agreement is still current - both Mr Dezfouli and Ms Szulgit stated that meetings have ceased. There is also no direct evidence that meetings were offered during the relevant period and that the information sought in the current access request was available to Mr Dezfouli under the GIPA Act or otherwise. In these circumstances, I cannot be satisfied that s 59(1)(b) provides a proper basis to refuse access to the information.